The implementation of environmental policy in Ireland: Lessons from translating EU directives into action 9781526127563

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T H E I M P L E M E N TAT I O N O F E N V I R O N M E N TA L P O L I C Y IN IRELAND

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The implementation of environmental policy in Ireland Lessons from translating EU directives into action

Bernadette Connaughton

Manchester University Press

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Copyright © Bernadette Connaughton 2019 The right of Bernadette Connaughton to be identified as the author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN  978 0 7190 8887 2  hardback First published 2019 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Typeset by Toppan Best-set Premedia Limited

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For Brendan, Aisling, Niall and Darragh

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Contents

List of figures and tables

page viii

Preface and acknowledgements

ix

List of abbreviations

xi

List of Irish terms 1 Environmental policy making and the implementation challenge

xiv 1

2 Theories and concepts: Implementation, Europeanisation and multi-level governance

20

3 Developments in EU environmental policy

49

4 EU environmental policy and Ireland: Actors, institutional adaptation and implementation

71

5 Case: Waste management

106

6 Case: Water

133

7 Case: Biodiversity

159

8 Are great expectations in Brussels dashed in Dublin?

186

Bibliography

206

Index

232

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Figures and tables

Figures 2.1 Features of top–down and bottom–up approaches to implementation 3.1 Article 260 TFEU infringements for DG Environment (year end 2017). Source http://ec.europa.eu/environment/ legal/law/statistics.htm (accessed 26 March 2018) 4.1 EU directives and the Irish system. Adapted from Falkner et al. (2005: 6) 4.2 Top-down implementation process 4.3 Bottom–up implementation process

page 48 56 85 103 104

Tables 1.1 Statistics on EU environmental infringements. Source: DG Environment. http://ec.europa.eu/environment/legal/ law/statistics.htm. (accessed 10 June 2018) 5.1 Key policy directions and legislation directing waste management 6.1 Key policy directions and legislation directing water quality 7.1 Key policy directions and legislation directing nature conservation 8.1 Aims and challenges of the waste, water and biodiversity directives 8.2 Explanations of how implementation is addressed

14 112 139 165 190 195

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Preface and acknowledgements

For the most part, the ‘Irish summer’ of 2018 will be remembered fondly for golden sunshine, blue skies, children spending time at the beach without shivering in their wetsuits, and bumper ice-cream sales. But it was also revealing of the types of environmental pressures Ireland is struggling to address, which are accelerated by economic growth, demographic changes and consumer habits. In June 2018 the heatwave exposed the vulnerability of water supplies, particularly in the Greater Dublin area, as the prolonged spell of dry weather resulted in falling levels in rivers and lakes across the country. The increases in water consumption during the hot weather raised further alarm bells about shortages, and some water restrictions were introduced as monitoring the water supply became more challenging. At the end of the month, Ella McSweeney highlighted that a third of all bee species in Ireland could be extinct by 2030 in an article in The Irish Times. She referred to research published in 2006 by scientists Dr Úna Fitzpatrick and Dr Tomás Murray (now working in the National Biodiversity Data Centre in Waterford). They surveyed the Irish bee population and drew on previous records by Professor John Breen (formerly of the University of Limerick). The question raised was: what are we going to do if our ‘great unpaid pollinators’ go ‘missing’? Towards the end of the summer the first litter survey of Ireland’s coasts and waterways found that 40 per cent of our rivers, beaches and harbours were littered or heavily littered. This highlighted an absence in environmental awareness of those visiting these amenities and a failure to enforce litter laws. These examples reflect the reality of our environmental stresses and emphasise how important it is for all levels of government and administration, citizens, NGOs and business to work together to conserve and protect our environmental resources. The effective implementation or ‘translation into action’ of EU environmental directives requires this. This book explores the complex process of implementation, conceptually and empirically. It strives to understand how the EU has influenced and ‘Europeanised’ Irish environmental policy over time, and analyses the essential role of public administration. The narrative on water supplies, bee population and litter are not just references from summer

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x

Preface and acknowledgements

2018. They are also illustrative of the cases discussed in the book – water, birds and habitats, and waste management. I hope this study will be of interest to both scholars and policy actors who appreciate our environmental heritage, and are engaged in the circuitous, often tortuous, and ongoing efforts to give effect to environmental policy. The research for the book was enriched by the contributions and insights from officials at all levels of government, academics, activists and business through formal interviews, seminars and conversations. I acknowledge their contribution and respect the requests for anonymity. My thanks also go to Rob Byron, Tony Mason and the team at Manchester University Press for their advice and assistance in bringing this work to publication. In particular, I want to thank my husband Brendan, my children Aisling, Niall and Darragh, and my mother, Kathleen, for their support and encouragement. The cover photo, taken in June 2018, is of the boardwalk in Ballycroy National Park, near Westport, in Northwest Co. Mayo. Ballycroy is Ireland’s sixth national park, nested in my mother’s native county. It stretches over 11,000 hectares, including one of the last intact blanket bog systems, and gives impressive views of the Nephin Beg mountains.

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Abbreviations

AIE

Access to Information on the Environment

CAP

Common Agricultural Policy

CDBs

City and County Development Boards

CEE

Central and Eastern Europe

CITES

Convention on International Trade in Endangered Species of Wild Fauna and Flora

CJEU

Court of Justice of the European Union

EAP

Environmental Action Programmes

EC

European Commission

EDA

Economic Development Association

EEA

European Environment Agency

EIA

Environmental Impact Assessment

EIR

Environmental Implementation Review

ELIG

Environmental Law Implementation Group

ENGO

Environmental non-governmental organisations

EP

European Parliament

EPA

Environmental Protection Agency

IBEC

Irish Business and Employers’ Confederation

ICCEUA

Interdepartmental Coordinating Committee on European Affairs

IFA

Irish Farmers’ Association

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xii

List of abbreviations

IMF

International Monetary Fund

IMPEL

European Network for the Implementation and Enforcement of Environmental Law

IPPC

Integrated Pollution Prevention and Control

IUCN

International Union for the Conservation of Nature

MLG

Multi-Level Governance

NBDC

National Biodiversity Data Centre

NESC

National Economic and Social Council

NGO

non-governmental organisation

NHA

National Heritage Area

NIECE

Network for Ireland’s Environmental Compliance and Enforcement

NPWS

National Parks and Wildlife Service

NSDS

National Strategy for Sustainable Development

OECD

Organisation for Economic Co-operation and Development

OEE

Office of Environmental Enforcement

ORP

Organisational Review Programme

RBDs

river basin districts

RBMPs

river basin management plans

RIA

Regulatory Impact Assessment

RTÉ

Raidió Teilifís Éireann

SAC

Special Area of Conservation

SLA

service level agreement

SPA

Special Protection Area

SPC

Strategic Policy Committee

SSBs

state sponsored bodies

SWAN

Sustainable Water Network Ireland

TCCA

Turf Cutters and Contractors Association

TD

Teachta Dála



List of abbreviations

TEU

Treaty on European Union

TFEU

Treaty on the Functioning of the European Union

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UNFCCC United Nations Framework Convention on Climate Change WEEE

Waste Electrical and Electronic Equipment

WFD

water framework directive

xiii

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Irish terms

Aer Lingus

Air fleet Aer Loingeas

An Bord Pleanála

Planning board

An Fóram Uisce

Water Forum

Bord Gáis Éireann

A utility company now known as Ervia

Bord na Móna

Semi-state company (fuel)

Bunreacht na hÉireann

Constitution of Ireland

Coillte

State forestry service

Dáil Éireann

Lower house of parliament

Dúchas

The Heritage Service

Fianna Fáil

Soldiers of Ireland

Fine Gael

Irish race

Forfás

National policy and advisory board for enterprise, trade, science, technology and innovation

Garda Síochána na hÉireann

Peace guard of Ireland

Gardái

Guards

Oireachtas

Irish Parliament (both houses)

Raidió Teilifís Éireann

RTÉ Broadcasting Company

Seanad Éireann

Senate (upper house of Parliament)

Sinn Féin

We ourselves

Slean

Two-sided spade for cutting turf

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List of Irish terms

xv

Tánaiste

Deputy Prime Minister

Taoiseach

Prime Minister

An Taisce

National Trust for Ireland

Teachta Dála

Member of Dáil Éireann

Teagasc

Means ‘instruction’ is a semi-state body in agri-food sector responsible for research and development

Uisce Éireann

Irish Water

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1

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Environmental policy making and the implementation challenge

Community environmental legislation will only be effective if it is fully implemented and enforced by Member States. (Statement of the European Council EC 6–1990, 18–21 note 4)

Introduction Environmental protection is inherently a cross-border issue which creates opportunities for transnational regulation. Since the 1970s, the EU has developed a corpus of law which makes up the environmental acquis and extends to a wealth of areas such as air, nature, noise, water and waste. This is complemented by advancing policy in cross-cutting issues such as environmental impact assessment, access to information, public participation and liability for environmental damage. The expansion of the EU environmental policy illustrates the efforts made to contain environmental challenges by encouraging the convergence and strengthening of national regulation among member states, more so than the creation of distinct European policy processes and institutions. As well as having transnational impact, the EU environmental policy has consequences for each level of government in Europe – national, regional and local – through its implementation. In theory the institutional architecture of the EU implies a very clear-cut separation between policy making and implementation activities whereby member states are primarily responsible for ensuring the translation and effective compliance with directives. In practice the interrelationships and interactions that arise in a system of multi-level governance presents a multifaceted implementation reality. This study investigates that reality by exploring Ireland’s experience of implementing EU environmental policy through three case studies – habitats, water and waste. It argues that Ireland’s implementation record in EU environmental policy is significantly influenced by the low issue salience of environmental policy, a range of structural shortcomings in the public administration system and a very steep learning curve. This chapter introduces the broader context of the study by outlining the EU’s role as presented in the Treaties and the significance

2

The implementation of environmental policy in Ireland

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of the European Commission and the Court of Justice of the European Union (CJEU) in the pursuit of effective implementation. It considers explanations for the EU implementation gap and the extent to which it is regarded as a persistent problem. This is followed by a discussion of Ireland’s environmental performance, which sets the scene for the theoretical and empirical discussions presented in later chapters. Environmental policy and implementation By their nature environmental problems dictate that implementation is unlikely to be an automatic process (Gollata and Newig, 2017; Knill, 2015; Jordan, 1999). Its complexity is augmented by the requirements for the coordination, planning, resources and support of a wide range of actors in both the public and private sector spheres. The effective implementation of environmental measures is more typically the ‘weak link’ in the regulatory chain since the need for substantial financial and technical resources, organisational problems within administrative structures and various other elements make the implementation of (sometimes unclearly) written provisions difficult at national and local levels. Member states are also unlikely to be neutral arbiters of environmental policy implementation since their responses are strongly influenced by domestic politics, bureaucratic and economic interests. Despite these challenges and conundrums the experience of EU environmental policy indicates that when implemented effectively, environmental legislation yields positive outcomes (Signals, 2016; 2012). Eurobarometer opinion polls on the attitudes of European citizens towards the environment also confirm that for most EU citizens a good quality environment is an important contribution to their quality of life, as are the state of the economy and social conditions (Eurobarometer, 2017). Despite an affirmation of the benefits of a good environment, the European Environment – State and Outlook series contends that Europe faces considerable environmental challenges due to the degradation of ‘natural capital’ by socioeconomic activities and unrelenting global pressures on the environment since the 1990s (EEA, 2015: 9–10). Although the study points to progress in Europe in areas such as reducing greenhouse gas emissions and reducing hazardous pollutants, it also highlights difficulties such as a failure to halt biodiversity loss, despite the designation of protected areas across Europe. The 2008 financial crisis and subsequent economic recession did deliver some respite from environmental pressures but when viewed holistically it becomes evident that trends in Europe and globally reveal a number of ‘systemic challenges’ which may be worsened by feedbacks, interdependencies and lock-ins in environmental and socio-economic systems (EEA, 2015: 13). The political and scientific discourse has responded to this with an apparent consensus that ‘business as usual’ isn’t an option and perceptions of environmental risks have changed.

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Policy making and implementation challenge

3

This is evident in the emphasis on ‘green growth’ in EU plans such as the Europe 2020 Strategy (EC, 2010) which promotes a smart, sustainable and inclusive economy. Also significant are the Seventh EAP (2014) and the circular economy policy framework initiated in 2015. An increased awareness of global and systemic risk indicates that a full adherence to the implementation of the acquis is crucial. In 2011 the European Commission reported on the costs of not implementing the EU environmental acquis and noted that implementation gaps exist across most environmental sectors and in almost all member states. Their study estimated that the cost of implementation gaps with respect to current legally binding targets could be around €50 billion per year (EC, 2011a: 8–9). It emphasised how non-implemenation is not just harmful to the environment and internal market, but also has significant human health impacts. The evidence that implementing the environmental acquis is a difficult task across the EU is borne out in the high number of open cases in the environmental sector. These findings were reiterated in the 2015 State of the Environment Report (EEA, 2015), the results of a 2015 survey of national environmenal authorities (IMPEL, 2015) and in various communications from the Commission to the Council, including COM (2016) 316 final, on the introduction of regular environmental implementation reviews. The depiction of the environment is therefore of a complex policy field which presents equally complex implementation challenges. Academic analysis also identifies EU membership as a highly significant factor in explanations for strong domestic policy output (Liefferink et al., 2009: 677). Over time the content of environmental policy in the member states has become increasingly ‘Europeanised’ but a convergence in policy content does not necessarily result in effective compliance. This book employs theoretical perspectives gleaned from both traditional implementation theory and EU implementation studies to understand the implementation process of three environmental directives in Ireland. Implementation is analysed through the application and interpretation of implementation models to explain the interactions of actors, institutions and actions. An understanding of implementation processes, rather than policy content or legislative output, is important as these are critical pathways that determine success or failure. An exploration of how Ireland has adapted to the complexity of EU environmental legislation also contributes to our understanding of the ‘Europeanisation’ of the public policy process in Ireland and the performance of Irish public administration. Implementation in the European Union Implementation in the EU refers to ‘putting into effect’ European laws, decisions and policies (Thomann and Sager, 2017; Knill, 2015; 2006a) formulated and

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The implementation of environmental policy in Ireland

agreed during the policy-making process by the European Commission, European Parliament and Council of the European Union.1 This implies three parts: the first is the transposition of EU legislation into national legislation through the enactment or revision of national legal instruments. The second part requires the adherence and enforcement of such legislation through administrative and practical procedure and considers its effect on the behaviour of the target groups. The third refers to how the legislation/policy influences and forms part of the political, legal and social environment. This is akin to Easton’s (1965) systems theory approach which also implies three stages – output, outcome and impact (the latter in terms of effectiveness and problem-solving capacity). The success of any policy depends on its implementation and it is crucial that EU policy is effective since it makes an important contribution to its legitimacy (Brown, 2016). Establishing whether EU law is actually applied in practice, however, is one of the most challenging tasks in research on European integration since there is no homogenous measure of implementation (Falkner et al., 2005: 33). Implementation itself has become a central political issue in the process of European integration since the early 1980s and the launch of the single market initiative. According to Article 3a of the Treaty of Lisbon the member states, and ultimately national governments, are responsible for implementation by taking ‘any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. Article 9D, Treaty of Lisbon appoints the Commission as the institution that has to monitor whether the member states perform this role effectively. As there are over 200 pieces of legislation to monitor in 28 member states, this is a major task in the environmental field. Of particular significance is the heterogeneity in the national administrative structures in charge of implementing the directives. EU policy must be accommodated by very different administrative traditions (Knill, 2001; 1998). This is further complicated by the increasing decentralisation and fragmentation of national administrative systems into the various multi-level agencies and structures that tend to diminish hierarchical control even within government. Other actors of significance are interest groups and individual citizens on whom the Commission relies in order to assess the progress of implementation and the CJEU, which ensures that European legislation is uniformly interpreted and disputes are adjudicated. The European Commission and the Court of Justice act as supranational monitoring and enforcement institutions. Article 258 of the Treaty on the Functioning of the European Union (TFEU) empowers the European Commission to open infringement proceedings against member states found in violation of European law. Before this procedure is followed through, the Commission takes a number of formal and informal steps to call for the correct

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Policy making and implementation challenge

5

implementation of the legislation. It first takes up informal contacts with the competent national authorities in order to discuss the details and possible problems concerning the execution of the affected measure, followed if necessary by a reminder letter (formal notice) and, further, a reasoned opinion explaining to what extent law has been infringed (see Börzel et al., 2011). Following a reasoned opinion, the member state is given a time-limit within which defective implementation must be redressed and if this does not occur the Commission makes a referral to the Court of Justice and initiates the adjudication phase. Article 267 TFEU provides for references for preliminary rulings from the courts and tribunals of the member states themselves. The Commission gives a high priority to infringements that ‘undermine the rule of law’ (European Commission, 2014) and, as a result, Commission oversight has become more aligned to standard operating procedures that record perceived implementation shortfalls (European Commission, 2017a). The vast majority of cases are solved at the early stages of proceedings but there are differences between states in their proclivity to convert substandard adherence to EU rules to adequate compliance. The European Commission’s monitoring report on the application of EU law in 2016 identifies Cyprus and Belgium as the member states with the highest number of open cases and Estonia as having the lowest total number of open cases. In the specific case of member states that have failed to implement directives within the deadline agreed by the Council of Ministers and the European Parliament, the Commission may request the Court to impose a financial penalty on the member state concerned the first time the Court rules on such a case. This possibility, introduced by the Lisbon Treaty, is laid down in Article 260 (3) of the TFEU. If, despite the first ruling, a member state still fails to act, the Commission may open another infringement case under Article 260 of the TFEU, with only one written warning before referring the member state back to the Court. In these circumstances the Commission can propose that the Court imposes financial penalties on the member state based on the duration and severity of the infringement and the size of the member state concerned. Each year the Commission draws up an annual report on its monitoring of the application of EU law and the 2016 report (published July 2017) details that the European Commission launched 986 new infringement proceedings against member states. The EU compliance system itself appears to be quite effective since, sooner or later, all non-compliance cases get settled (Panke, 2010) but it can take years. The process itself is a mixture of both formal and informal communication at initial stages and may culminate in highly formal legal proceedings. Of crucial importance for the functioning of EU legislation is an effective public administration, and where national administrative bodies are inefficient or ill-equipped to manage this the legislation will be ‘mismanaged’ (Petter Graver, 2002: 5).

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The implementation of environmental policy in Ireland

In order to understand EU implementation it is necessary to appreciate the legislative instruments that the EU has at its disposal – regulations, directives and decisions – listed in Article 288 TFEU. Directives are the most utilised legislative instrument and allow national and sub-national governments a substantial degree of flexibility in terms of choice of form and method to use in implementation. They are binding as to the results to be achieved, and therefore cannot be regarded as flexible in outcome. These acts, unparalleled in other legal systems, comprise approximately 80 per cent of all EU legislation (Ciavarini Azzi, 2000: 53). A time limit is normally specified with the directive, along with a binding result to be achieved, but within a framework which provides member states with discretion over the process to achieve this goal. However, while directives respond to the fact that member states are not composed of linear administrative systems and reflect different traditions, they also add further complications for effective implementation. This provides a window of opportunity for national governments to potentially erode the original objectives of EU policies. This gives member states with weak implementation capacities time to reach full compliance (Börzel, 2002: 206). Such variability of application and enforcement also led to the establishment of specialist agencies such as the European Environment Agency (EEA) in 1990 and to the increasingly detailed nature of Union directives in an effort to minimise significant national variations in the implementation of EU laws. In addition, implementation can be regarded as a slippery concept. A range of terms is used to refer to the process of successful implementation or the notion of deficit. These include: incorporation and application (Peters, 1997); legal implementation and practical application/final implementation (Thomann and Sager, 2017; From and Stava, 1993) and formal transposition (Mastenbroek et al., 2014) and (non-)compliance (Börzel and Sedelmeier, 2017; Thomson, 2007). The literature presents a Babylonian variety of understandings and definitions of compliance often using it synonymously with effective implementation. For the purposes of this study an extensive definition of implementation by Bursens (2002: 175) will be used which considers implementation to be the whole of the actions exercised by the various relevant authorities of the member state in order to effect European legislation within that member state. Consequently, the implementation of European regulation encompasses four consecutive stages: (1) formal transposition (2) practical application (3) enforcement/control, and (4) outcome/results.

This definition incorporates transposition which predetermines the subsequent moves in implementation and the Court of Justice considers timely transposition as a rigorous obligation (Haverland and Romeijn, 2007). It also encompasses ‘practical’ as well as ‘formal’ implementation. Practical implementation refers to the establishment of agencies and policy instruments (practical application),



Policy making and implementation challenge

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monitoring and inspectorate (compliance), and the actual adherence to the law by the regulated (practical application, compliance). This may be summarised as ‘law in action’ (Versluis et al., 2011: 184).

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Explanations for the implementation gap Explanations in the academic literature on the EU implementation gap appear to be stimulated by two basic questions. To what extent is the implementation of policy a problem in the EU? What kind of problem is it? Numerous authors have referred to the notion of an EU ‘implementation deficit’, ‘implementation gap’ or ‘compliance problem’ (Börzel and Sedelmeier, 2017; Spendzharova and Versluis, 2013; Mastenbroek, 2007; Steunenberg, 2006; Glachant, 2001; Jordan, 1999; Knill and Lenschow, 1998; Lampinen and Uusikylä, 1998; From and Stava, 1993) whereby the stated goals of a policy or piece of legislation do not translate into the desired outcomes. This raises questions of how this deficit is defined. It can mean the incorrect transposition into national legislation (From and Stava, 1993), imply the difficulties in translating a stated policy into an operational policy (Thoman and Sager, 2017; Peters, 2000) or be distinguished as a gap between policy goals and policy outcomes (Jordan, 1999) which undermine the notion of a level playing field within the EU regulatory system. Indeed, perfect implementation rarely, if ever, exists and as a consequence any deficit in implementation is not peculiar to the EU. Several scholars have argued that the level of implementation and compliance with EU law compares well to the level of compliance with domestic law in democratic liberal states (Sverdrup, 2003). Member states are also obliged to restrict implementation to compliance with the EU’s minimum requirements and restrain from practices of ‘gold plating’, which may hamper the role of markets (Thoman, 2015). Overall, the number of commencements of proceedings before the CJEU is very low in relation to reminder letters, reasoned opinions and the bilateral negotiations that take place between the Commission and national administrations in order to find solutions. This system is referred to as taking ‘the form of a highly developed “management–enforcement ladder” – a twining of cooperative and coercive measures that, step by step, improve states’ capacity and incentives for compliance’ (Tallberg, 2002: 632). Despite this, many observers consider poor implementation and non-compliance to be a serious problem for the EU and one that is systematic and ‘pathological’ (Lampinen and Uusikylä, 1998; Mendrinou, 1996; From and Stava, 1993). Many studies have challenged this view and questioned the methods prompting such conclusions. For example, Börzel’s (2002; 2000a) analysis contested claims that implementation was a ‘Southern problem’ and demonstrated that levels of non-compliance were modest and remained stable over time when measured against a growing body of European legislation and EU enlargements.

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The implementation of environmental policy in Ireland

The accession of ten Central and Eastern European (CEE) states in 2004 and 2007 revived debates about the ‘Mediterranean Syndrome’ and the legacies of weak administrative capacity, patronage, poor governance and low levels of development. Yet a longitudinal analysis of compliance encompassing EU enlargements since 1973 indicates that enlargement does not lead to deterioration in compliance with EU law (Börzel and Sedelmeier, 2017). Administrative capacity is an important factor in explaining why implementation deficits occur in some member states and accordingly the Commission promoted the use of pre-accession conditionality and financial/technical assistance towards the CEE candidate countries. Arguably this strategy alleviates the emergence of an East–West divide in implementation despite the prevalence of low bureaucratic quality in CEE. It is apparent that implementation is a highly politicised issue and process. In particular, the transposition of directives ‘is not a mechanical process, in which their contents are simply “translated” into the national codes. It is a political process in which directives are re-interpreted and gradually changed in order to adapt for the different national interests’ (Steunenberg, 2000: 371). The salience of an issue will increase its politicisation, blame-shifting and resistance at the national level. A wealth of research on implementation in specific policy sectors and of individual EU directives clearly demonstrates that the laws derived from one and the same EU directive differ considerably between the member states. Indeed, for that reason Commission bureaucrats have encouraged the use of regulations rather than directives wherever the Treaty allows.2 Several factors can be attributed to the increasing politicisation of implementation problems, including the growth in the acquis, rules by the CJEU, economic and institutional crises, inability to meet deadlines and public opinion. Research indicates that the launch of the internal market project in the late 1980s was a turning point in relation to perceptions of implementation (Jordan, 1999), whereas the change from European Community to European Union following the Treaty on European Union 1992 heralded symbolic significance for better implementation standards because it conveyed pitching ambitions at a higher level (From and Stava, 1993). Such commentary aligns with enforcement theorists who note that deepened cooperation and increases in general adjustment pressure over time result in growing compliance problems. Although the idea of ‘one size fits all’ may be utopian, the variable implementation of EU rules can have a marked impact on the efficacy of agreed policies and a distorting effect on the single market. It increases the transaction costs and imposes problems for citizens and businesses when relating to several sets of rules. Clearly, a dilution of standards through weak or non-implementation provides firms based in non-complying member states with a competitive advantage. At societal level resistance arises around issues such as costs involved

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or impact on local employment and the ability of non-governmental actors to mobilise opposition to European legislation. Over time, the European institutions have introduced various approaches to improve implementation and monitoring capacity. For example, the European Commission attempts to build capacity by developing organisational instruments such as data-based systems, rules and procedures, in order to monitor and sanction non-compliance by the domestic administrations. Since 1984 it has reported every year on the legal action it has brought against the member states. Member states are now obliged to routinely report their transposition initiatives and issue press releases on court referrals. Regularly published scoreboards also act as a stimulus to improve performance and efforts have been made to facilitate various groups to report on, and deliver, complaints. On the one hand, these mechanisms can be effective since member states don’t wish to weaken their political credibility as ‘good Europeans’ with poor performances. On the other hand, it is challenging to produce reliable data and much of the Commission’s information is based on submissions from the member states themselves. The Commission’s implementation statistics primarily refer to the problems of formal transposition and statistics don’t sufficiently capture the challenging problems of practical application. Learning more about the gap between ‘law in the books’ and ‘law in action’ presents a challenge to EU implementation research (Thoman and Sager, 2017; Treib, 2014; Falkner et al., 2005) and understanding how domestic actors, institutions and processes adapt to compliance obligations. Until recently large states have been the principal subject of analysis (Börzel, 2000b; Knill, 1998) but small member states are also confronted with implementation challenges (Liefferink et al., 2009; Falkner et al., 2008). The following section contextualises the study by reflecting on Ireland’s environmental performance since 2008. It acknowledges the tensions that have arisen over the implementation of EU environmental legislation as Ireland has been subject to both criticism from the European Commission and a series of adverse rulings from the CJEU. Ireland’s environmental performance Towards the end of the second decade of the twenty-first century Ireland could be considered at a juncture in environmental governance as it attempts to deal with the consequences of the development model robustly applied since the 1980s, climate change mitigation challenges, the aftermath of the great recession and the impending impact of Brexit. Ireland’s environmental performance is intrinsically linked with economic performance and societal changes over time. After decades of economic underperformance Ireland experienced strong growth from the early 1990s and

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The implementation of environmental policy in Ireland

became known as the Celtic Tiger economy. This turnaround in fortunes was initially attributed to a range of factors including adjustment to sensible fiscal policies, foreign direct investment with export-oriented policies, the benefits of EU membership and the broader international economic environment. In the mid-2000s competitiveness faltered and domestic demand with an over-reliance on construction replaced exports as a driver of growth. The close correlation between credit expansion in the economy and house price inflation suggested that property market movements were increasingly driven by banks’ lending practices rather than the state of the real economy. This became all too apparent as the global financial crisis and worldwide recession unfolded and Ireland experienced an unprecedented decline in GDP. From 2008 to 2014 Ireland remained seriously affected by the crisis and a large budget deficit imposed serious constraints on all areas of public administration; putting at risk its commitments as an EU member state to meet environmental obligations. The crisis itself was described by the National Economic and Social Council (NESC) as five-dimensional – banking, fiscal, economic, social and reputational (NESC, 2009). By autumn 2010 the financing of the Irish banks became critical as investors were increasingly apprehensive about both the Irish banking sector and public finances. The government’s efforts to introduce remedial measures and plans to restore confidence had not succeeded in combating the situation or ensuring funding. This forced Ireland to request aid from the EU and IMF on 21 November 2010 and a closely monitored Financial Assistance Programme for Ireland of €85 billion was agreed with a joint European Union, IMF, European Central Bank (ECB) mission. The focus of the three-year programme rested on reforming the banking sector, undertaking a massive fiscal adjustment to correct the deficit by 2015 and a return to sustainable growth. Ireland successfully exited the ‘bailout’ in December 2013 and during 2014 economic recovery set in. In the early years of the crisis, environmental protection, as an imperative in repairing Ireland’s fortunes, was officially presented in the context of ‘green growth’. This type of investment presented the potential to enable employment and innovation within a low carbon economy. In addition, environmental charges or where savings could be made by managing environmental resources more effectively, such as water metering, were emphasised under the conditions of the assistance programme. The crisis represented a challenging set of conditions for sustaining environmental progress, supporting compliance and restoring Ireland’s reputation. In terms of environmental performance, Ireland is evaluated both nationally and internationally (EPA, 2016a; 2012; 2011; OECD, 2010a; NESC, 2010). Two key observations may be drawn from the findings: evidence of both good progress and accelerated pressures. First, it is recognised that Ireland still has a relatively good environmental quality and there is evidence of advances in policy and institutional development. This is supported in the evaluation of the

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Organisation for Economic Cooperation and Development (OECD) in 2010, a decade after its first environmental performance review of Ireland (OECD, 2010a). It recognised the improvements in environmental infrastructure through progress in waste management and public transport; certain emissions of air pollutants fell and initiatives in renewable energy commenced. It also acknowledged a strengthening in environmental institutions, particularly in the area of enforcement. Second, notwithstanding the most recent recession and despite taking positive steps forward to consolidate environmental policy, Ireland faces a range of environmental challenges that have both been accelerated by, and inherited from, the economic, demographic and social changes of the past twenty-five years. Ireland’s experience of boom to bust and nurturing economic recovery is chronicled in a range of academic and official publications. The enormous economic growth during the ‘Celtic Tiger’ period changed consumer patterns and accelerated environmental pressures relative to other EU member states (EPA, 2008). Government policy on competitiveness and low taxation was at odds with principles of sustainable development and the Irish approach was more aligned to development that had to be sustained (McDonald and Nix, 2005: 12). In an exposition of Irish politics in the aftermath of the Celtic Tiger, Kirby and Murphy (2011: 15) asserted that the boom period largely failed to resolve the country’s long-standing development problems and was indicative of an unsustainable carbon-intense Irish growth model. They further comment that ‘if Ireland’s model of development created vulnerabilities to which it eventually succumbed, among these was a greater environmental vulnerability as state policy paid little more than lip-service to curbing carbon emissions’ (Kirby and Murphy, 2011: 81). Since then several policy and legislative initiatives have been introduced to steer Ireland towards a more sustainable future including a revised government strategy Our Sustainable Future, a Framework for Sustainable Development for Ireland (GoI, 2012) and the Climate Action and Low Carbon Development Act 2015. Although Ireland is more sparsely populated than many other EU member states, its population has increased since 1996 by approximately a million people to 4.5 million. A general demographic trend towards increased urbanisation and suburbanisation impacts on the environment through changes in land use and infrastructural/service requirements. This exacerbates the trajectory of a lopsided spatial development already in existence between Dublin and the rest of the country. The patterns of settlement, design and density in Irish housing during the boom led to significant problems, illustrated by the incidence of derelict housing estates during the crisis and densely populated towns without adequate facilities. This has transitioned to a severe housing shortage and homelessness crisis emergent from late 2014. All developments place greater strain on the provision of services, including environmental, traditionally delivered by local authorities. The urban trends contrast with developments

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The implementation of environmental policy in Ireland

in agriculture where 60 per cent of the land is devoted to agricultural activities though farm numbers and its contribution to GDP has declined. Agricultural pollution is a dominant source of water pollution, carbon emissions and habitat destruction, prompting a need for farmers to engage with a range of environmental measures such as an Agri-Environment Options Scheme and the implementation of the Nitrates Action Programme. Other sectors where environmental stresses have become more prominent are industry sectors such as tourism which is strongly coupled with the quality of the environment. Associated environmental pressures from these sectors include energy consumption, waste and transport. Despite an engagement with renewable energy to diversify energy sources, an increased energy requirement is synonymous with increases in consumption for heating, electricity and transport. Besides the dependency risks associated with these trends, there are also implications for meeting international greenhouse gas emission targets. Ireland has much distance to go before any aspiration of a transition to a low-carbon society is achieved. Among other actions this requires driving the integration of sustainability principles into public policy to genuine fruition rather than focusing on unidimensional economic recovery or technical innovation. Overall, Ireland faces significant governance challenges in order to transition to a low-carbon economy and society, and actively participate in the climate mitigation goals of the Paris Agreement effective from 2016. Ireland’s environmental policy performance also warrants further exploration within the context of EU commitments and domestic politics. EU environmental policy is highly significant in shaping Irish environmental policy (Connaughton, 2014a; 2010a; Laffan and O’Mahony, 2008a; Flynn, 2007; 2004). Ireland has shown commitment to EU policy and sought to catch up with other member states since it has more readily fitted into the laggard or straggler camp in terms of environmental policy output. But where advances are evident it would appear that Ireland has responded to the incentives of the ‘stick’ rather than ‘carrot’. The country received billions of euros in EU structural funds from the late 1980s, a portion of which contributed to developing environmental infrastructure but didn’t target altering individual behaviour. What can be observed is a pattern of delayed responses to a variety of EU environmental initiatives or indeed efforts to hold off EU infringements. Arguably, Ireland’s efforts to stave off EU fines or deal with critical CJEU judgements have been the effective ‘stick’ to introduce change. Cashman (2010: 7) comments that interventions by the European Commission have been an important factor in Irish reforms. For example, Ireland’s “Green” presidency in 1990 coincided with the outlawing of bituminous coal in Dublin. What was likely more significant was that the coal ban enabled the closure of a Commission infringement for breach of European air quality norms that

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had already been launched. Similarly, the long overdue Waste Management Act in 1996 resolved a critical infringement arising from the absence of a requirement for an Irish local authority waste site to hold a waste permit. As a country that has struggled with environmental compliance, the recent economic crisis and its aftermath presents a challenge for maintaining environmental commitments and promoting sustainable development. Added to this is Brexit which will have unique implications for Ireland given that there is a shared land border with Northern Ireland. The referendum outcome raised the inconvenient reality of a shared border between the North and South of Ireland becoming an external border of the EU. Brexit also raises uncomfortable questions about what this means for the consistency of environmental regulation on the island of Ireland, habitat protection, water quality and waste movements. The environment did not feature strongly in the referendum campaign in comparison to the economy. But it would appear that Brexiteers believe they can deliver better standards and improvements in areas such as water quality by ‘taking back control’ (Cowell, 2017). A bonfire of environmental regulations in the UK and an unplanned no-deal Brexit would lead to significant regulatory mismatch between Ireland and the UK, and therefore across the border with Northern Ireland, whereby a divergence in standards would be harmful for citizens and industry. For example, businesses will need to know which rules apply to them, investors will require confidence to commit to developing green technologies and climate change commitments will need to be addressed. There are also a range of horizontal procedures in EU environmental policy that apply to the UK – and therefore Northern Ireland – such as access to justice and public participation. All of this points to the potential for a governance gap and a diminution in the institutional cooperation between the two jurisdictions on the island underpinned by the North South Ministerial Council established by the Good Friday Agreement in 1998. Environment is one of the six areas of cooperation whereby common policies and approaches are agreed jointly though implemented separately in each jurisdiction. Translating EU environmental directives into action Ireland’s formal and practical implementation experience of EU environmental legislation is at the centre of this study. Since 2005 the Irish public administration has become much more conscious of the necessity for effective transposition, application and compliance with EU environmental legislation (Connaughton, 2014a: 55). For example, the report of the Department of Environment’s Organisational Review Programme in 2011 identified the implementation of EU environmental directives as ‘one of the biggest strategic challenges’. It

14

The implementation of environmental policy in Ireland Table 1.1  Statistics on EU environmental infringements 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Denmark

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Ireland

8

10

17

13

8

7

6

8

4

4

5

4

38

34

35

34

25

17

11

10

7

13

7

12

Italy

61

60

45

35

46

40

25

25

18

20

15

18

Spain

40

42

37

40

33

27

32

29

30

28

26

30

UK

33

33

31

26

18

11

13

18

16

13

12

15

also acknowledged that Ireland had performed badly in this area resulting in reputational damage (DPER, 2012: 78). In 2018 the situation appears more positive and the recent Environmental Implementation Review (EIR) for Ireland (2017) refers to a greater tendency to be proactive in managing complaints and cooperating with the Commission in terms of environmental reform initiatives (EC, 2017a: 27). One indicator of whether satisfactory transposition and compliance is attained in a member state is illustrated by the number of infringement cases arising (see table 1.1). In 2017 the European Commission launched nine actions against Ireland in six different sectors within the environmental sphere. In February 2017 it was announced that the European Commission was taking Ireland to the CJEU for its failure under Directive 91/271/EEC to ensure urban waste water is adequately collected across the country and treated to prevent serious risk to public health and the environment. This aligns with the findings identifying the maintenance and securement of investments in water infrastructure as one of the most urgent environmental issues Ireland faces (EC, 2017a). In addition to ensuring adequate water services the other main challenging areas are the protection of raised bogs and the designation of Natura 2000 areas. With regards to implementation performance Ireland is now meeting the criteria of ‘reasonable’ (EC, 2017a: 27). This is a marked improvement since the period from 2006 to 2009 when Ireland had over thirty infringement cases, as did the larger member states of Spain, Italy and UK (see table 1.1). By the end of 2012, this figure had dropped to eleven. Consistent with the main infringements by environmental sector recorded across the EU, the areas of waste, water and nature presented substantial implementation challenges for Ireland and are the most controversial. In the past many of Ireland’s difficulties have stemmed from the non-application of environmental law which has prompted commentary: Ireland tends to make reforms to how it manages the environment only in extremis, i.e. because there is an ECJ case, and then it tends to do so in a way that minimally



Policy making and implementation challenge

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changes the status quo. Many problems stem from the fact that environmental duties are devolved to local authorities without clear and credible mechanisms to ensure effective performance. (Personal Interview A)

Over time the CJEU has delivered several judgements against Ireland for not transposing EU regulations into national law and for otherwise failing to meet EU requirements. In 2005 Case C-494/01 was a landmark judgement which referred to Ireland’s infringements as ‘general and persistent in nature’ and prompted a major reform of waste management (ECJ, 2005).3 In 2007 following Case C-418/04 the Court ruled Ireland had failed to protect wild birds under the Birds Directive 79/409/EEC. Six complaints from Ireland, including input from BirdWatch Ireland, the Golden Eagle Trust and An Taisce, led to the judgement. In late 2008 and 2009, the Court issued its judgement on a number of cases against Ireland relating to the implementation of the urban waste-water treatment directive, three cases concerning the environmental impact assessment directive, a case related to public participation and access to justice, and a case relating to the disposal of domestic waste waters in the countryside through septic tanks and other individual waste water treatment systems. Ireland focused on decreasing the number of infringements and implementing the Court’s rulings. The threat of fines and reputational impairment motivated successive Ministers of the Environment to prioritise these issues to a greater extent. For example, one of John Gormley’s first acts as Minister in the Fianna Fáil-Green government (2007–11) was to travel to Brussels in July 2007 and meet with the Environment Commissioner Stavros Dimas to explore how Ireland should deal with ongoing EU infringement procedures (O’Mahony, 2012: 210). At the beginning of 2010, there were thirty-two open cases of infringement of environmental law by the Commission. By the start of 2011, this figure had dropped to twenty-two. The Fine Gael-Labour coalition (2011–16) took the rescue of Ireland’s reputation in Europe seriously and the appointment of a senior Fine Gael party figure, Phil Hogan, facilitated action on a roadmap to deal with the outstanding infringements. More substantial progress in attaining closures is apparent from 2012 but the controversial aspects of legacy cases, including the inspection of septic tanks and cutting of raised bogs on Natura 2000 sites made resolution difficult. In the month before Ireland took up the Presidency of the Council of the EU in January 2013 the Court ruled on two separate cases. In C-279/11 Ireland had incurred an unfavourable court judgement in 2008 by failing to comply with Directive 85/337/EEC on environmental impact assessment. Ireland had set high thresholds below which projects accompanied by significant environmental impact would be exempt (Connaughton, 2014a: 57). The Commission reissued proceedings and this prompted an alignment of national law with the 2008 judgement. In C-374/11 the 2009 judgement of the court found that

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The implementation of environmental policy in Ireland

Ireland had not carried out its obligations under Directive 75/422/EC (as amended) to put in place proper legislation on septic tank regulation. Ireland was fined a lump sum plus a daily penalty until proper measures were adopted given the threat to public health and water supply. The national efforts to address this regulatory deficit in spring 2012 had led to politicised opposition at the local level which prompted revisions and further delays to introducing the scheme. The issue had mobilised opposition TDs and local councillors. Marian Harkin, a Connacht member of the European Parliament, spearheaded a campaign against the measure which she believed unfairly discriminated against rural dwellers. In 2017 Ireland maintained a regular inflow of complaints (approximately 40), five Article 258 TFEU infringements and two Article 260 TFEU infringements that together encompass water, nature and access to justice measures. The enormity of addressing any of these issues retrospectively is reflected in an official’s comment: You have to telescope what should have taken ten years into three to four years which is very difficult and a big shock to the system to catch up. The system starts creaking and people have to go from zero to quite a sophisticated evolved process that needs certain capacities, legal and ecological competence. To get there is very difficult in an era of declining resources. (Personal interview B)

The challenges also include public opposition to costs, perceptions of an attack on Irish culture and tradition, infringement of rights, public apathy, the threat of heavy fines and most significantly the environmental degradation. These features of the rather tortuous path of implementing EU environmental directives are discussed in the second part of the book. Organisation of the book In Ireland environmental protection has moved from the systemic to institutional agenda and is recognised as a key area of public policy. It is also an accepted EU policy domain and this requires the member states to translate its objectives, primarily through directives, into action. This calls for an implementation process that encompasses transposition, practical application and enforcement in order to achieve satisfactory outcomes. Administrative cooperation is highlighted in the Treaty on the Functioning of the European Union and Article 197 stipulates that ‘effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.’ The public administration system plays a crucial role in this process as government in action and principal coordinator. This was highlighted in the Advocate General’s opinion which preceded a judgement handed down to Ireland by the European Court in April 2005 (Case 494/01)

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for inadequate implementation of the Waste Directive 75/442/EEC. The AC noted that ‘this situation of non-compliance can only be redressed by a revision of the general policy and administrative practice of the Member State’. It is constructive to engage in an analysis of Ireland’s approach and this study aims to further our understanding of the Irish public administration and its interactions with environmental stakeholders and the EU. More generally implementation has long been regarded as the ‘Achilles’ heel’ of the policy making process (Hill and Hupe, 2014; Pressman and Wildavsky, 1973). Chapter 2 presents the key theories and concepts addressed in the book. At the centre of the theoretical framework are implementation theories and the concept of Europeanisation. Implementation theory conceptualises the way in which law and policy are put into action but the literature concedes that there is no ‘one best way’ or unified model universally agreed upon for studying implementation. The academic literature on Europeanisation contributes to understanding the implementation of EU policy since this is examined as part of a process of domestic change. Both theoretical approaches conceptualise change and process through ‘top–down’ and ‘bottom–up’ approaches. Multi-level governance is acknowledged as a framework to link our understandings of implementation theory and Europeanisation which encompass the various levels of governance – European, national, regional and local. This is presented as a model to inform the analysis in part two of the book. Chapter 3 completes part one by setting the context for a detailed study of Ireland’s implementation of environmental policy by presenting an analysis of the EU policy which determines its content. The second part of the book focuses exclusively on Ireland. Chapter 4 presents a discussion on the development of environmental policy making in Ireland in a historical and contemporary perspective. It explores how the implementation of EU environmental policy takes place within the institutional framework in Ireland. The chapter illustrates how a regulatory institutional framework developed and that the EU is a major driver of environmental policy in Ireland. Its impact, however, has been more obvious on policy content whereas institutional adaptation and procedural arrangements for implementation have been more subtle. The chapter unpacks key variables for understanding the implementation of EU environmental policy in Ireland – the salience of the environmental issue, goodness of fit, political-administrative culture, weak autonomy of local government, behaviour of target groups and capacity. The fifth, sixth and seventh chapters consider these variables and give effect to the theoretical framework discussed in earlier chapters through the presentation of waste management, water and habitats directives. The waste management case has a specific focus on the Landfill Directive 1999/31/EC. It demonstrates the dilemma between economic competitiveness and sustainability. Waste is

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The implementation of environmental policy in Ireland

a case where progress is demonstrable in relation to education, infrastructural development and improved enforcement. It presents governance challenges at the local level for local authorities, private sector partners and the public. Water is paramount to public health and Chapter 6 discusses the implementation of the Water Framework Directive 2000/60/EC in Ireland which creates an overarching system to improve water quality. The directive will replace a number of other water quality directives and attempts to establish an integrated approach toward the objective of ‘good status’ for Irish waters. The directive requires significant investment in water infrastructure, monitoring and significantly the development of stakeholder involvement. In particular the recognition of the ‘polluter pays’ principle in the directive has provoked major controversy in Ireland with respect to the introduction (and removal) of water charges. Chapter 7 investigates the Habitats Directive 92/43/EEC which promotes biodiversity protection. The directive anticipates the creation of a Europe wide network of protected nature sites called Natura 2000. Ireland is still lagging behind in designating sites for habitats and its counterpart, the Birds Directive 79/409/EEC, which has one of the smallest networks of areas for protected birds in the EU. The Irish experience of implementing the directive crystallises the difficulties of negotiation and changing ingrained practices and attitudes towards nature conservation amongst a range of stakeholder groups. Ireland prides itself on its striking landscape yet it has proved difficult to ensure sites are appropriately protected. For example, the degradation of peat bogs in Ireland is an issue of European and global significance in terms of rare habitat at risk. All three environmental cases represent issues that are politicised at national and local level and recognised as exemplifying implementation difficulties. All three cases utilise the analytical framework embodying both the methodological approaches employed in traditional implementation theory and the Europeanisation literature. The cases are presented with an examination of the national approach to the implementation (‘top-down’) and the sub-national context within which local implementers must give effect to centrally determined rules (‘bottom–up’). The top-down model is clearly rooted in the distinction between policy formulation and implementation. The bottom–up approach unpacks implementation processes and zones in on relations between policy, practice, the local environment and its players. Together, top-down and bottom–up approaches generate a more comprehensive view of policy implementation and illustrate that policy cannot always mandate what matters to outcomes at the local level. The conclusions in Chapter 8 synthesise the main findings, considers the overall effectiveness of environmental policy implementation in Ireland and how implementation may be conceptualised. Can generalisations be made about the implementation of EU environmental legislation in Ireland? Is there a better understanding of the implementation process? The



Policy making and implementation challenge

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conclusions offered reflect on the empirical cases, the politicisation of implementation, and applicability of the theories to explain the development of environmental governance in Ireland and how implementation unfolds.

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Notes 1 Used in the European context implementation can also refer to the powers of the Commission as laid down under Articles 290 and 291 TFEU to implement legislation at Community level. This implementation activity is referred to as ‘comitology’. Council Decision of 28 June 1999 (1999/468/EC), the Commission, with the EP (in cases of co-decision) arranges implementation of EU legislation by use of three types of committees composed of member state officials: advisory, management and regulatory committees. The definition of implementation as investigated in this study is one that focuses on the member state level and not rule-making or comitology at the EU level. 2 Recommendations for the Improvement of the Application of Community Law by the Member States and Its Enforcement by the Commission, Commission staff working paper, September 2001 (final version), Series: White Paper on European Governance. 3 The volumes in environmental cases have led to a new development in the procedure: the CJEU accepts that the Commission can bring a case of a more general character, without having to establish each specific infringement.

2

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Theories and concepts: Implementation, Europeanisation and multi-level governance

Without proper implementation policy has neither substance nor significance. (Knill, Tosun and Bauer, 2009: 520)

Introduction Implementation is a complex yet important area of study, both within the field of public administration and in terms of the legitimacy of the European Union. Implementation research largely developed to explain the disparity between the ambitions and reality of policy and was initially rather pessimistic in nature (Versluis, 2007; Pressman and Wildavsky, 1973). This chapter presents the key theories and concepts addressed in the case studies adopted to investigate the translation of EU environmental directives into action. At the centre of the theoretical framework is implementation theory. One important justification for investigating implementation theory is the importance of understanding the contribution of environmental, political and organisational factors to the complexity of the policy process. The policy process is much more complex, difficult to navigate and prone to uncertainty than is often assumed. Implementation studies, grounded in the field of public administration, are a systematic effort to understand the factors that facilitate or constrain carrying out public policy. The chapter provides a synthesis of implementation theories that seek to conceptualise the way in which law and policy are put into action. The literature features two main approaches – the ‘top–down’ school and the ‘bottom–up’ school of policy implementation. Efforts to combine them or conceptualise in general models of implementation are also discussed. The second distinct theoretical dimension employed here is Europeanisation, which is also illustrative of ‘top–down’ and ‘bottom–up’ approaches. Europeanisation is extensively explored in the literature and generally contributes to understandings of implementation as part of a process of domestic change in the member states. The scholarship on the implementation of EU legislation and its impact on the polity, policies and politics of the member states gains from interpretations of Europeanisation as an appreciation of the importance

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of governance and institutionalisation (often understood using historical, sociological and actor-centred approaches to studying institutions). The third theoretical literature invoked in this book addresses the concept of multi-level governance which influences the implementation of policy in the European Union. Multi-level governance (MLG) serves as a framework to link our understandings of implementation theory and Europeanisation which encompass the various levels of governance – European, national, regional and local. Environmental policy is a case that has advanced multi-level governance studies and stressed the significance of MLG approaches to improve policy implementation. A recasting of implementation models with Europeanisation approaches, and placing this within a framework of multi-level governance, has the potential to demonstrate connections and patterns that further our understanding of environmental policy implementation. It is argued that the constraints of implementation research can be improved by accepting theoretical diversity rather than looking for one common theoretical framework. Implementation theory Until the 1970s policy analysis was primarily concerned with the ‘problem’ focus at the ‘front end’ of the policy-making process. A frequently voiced criticism was that both legislators and scholars were far more concerned with the passage of legislation than with its effective implementation and this eventually shifted attention to outputs and outcomes (Wildavsky, 1979: 502). Implementation research developed in an attempt to generate a systematic knowledge regarding what emerges, or is induced, as actors deal with a policy problem. The models presented were variable in their approaches but coalesced in their attempt to present a strategy to explore the ‘missing link’. Scholars initially attempted to ‘model’ implementation by presenting a rational set of sequences involved in the successful implementation of those public policies enacted as laws or other authoritative statutes (O’Toole, 1986; Sabatier and Mazmanian, 1981; 1979; Hogwood and Gunn, 1984). A very distinctive vein of study emerged making a clear distinction between policy formulation and implementation. This so-called top–down model came under attack from those who argued that implementation problems were far more complex and that the state did not possess sole control of policy implementation. For example, Parsons (1995: 481) illustrates this point by questioning whether it is easier to put a man on the moon than put a homeless family in decent accommodation. ‘Man on the moon does not serve as a convincing model for policy areas in which defining goals, building consensus and acquiring resources are infinitely more problematic’ (Parsons, 1996: 481). In the late 1970s and 1980s the study of implementation was broadened to advance alternative perspectives such as the bottom–up approach that indicated the complex mix

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The implementation of environmental policy in Ireland

of issues to be understood at the operational level (Hjern et al., 1978) and about how implementation may best be studied. The scholarship also focused on the search for a general theory to explain policy implementation (Winter, 2003; Goggin et al., 1990; Sabatier, 1986), the difficulty of which has been discussed by numerous commentators (Peters, 2014; Winter, 2003; Matland, 1995). The divergences in methodological standpoints led to a demise in ‘implementation’ as a widely used concept even though it remains a significant issue for practitioners. From the mid-1980s, implementation studies appeared to fade from attention as pressures to reform the public sector focused attention on New Public Management (NPM), which questioned the state as a service provider and the public sector as a problem solver (Hood, 1991). Market and managerial approaches offered a radical alternative to the hierarchical framework within which analysis of ‘implementation’ and evaluation had for so long taken place. NPM was deemed to address key problems of implementation failure – such as lack of clear unambiguous policy objectives, resource availability and control over implementing agencies. The framework of public policy was consequently shaped by increasingly common concerns about cost-effectiveness, delivery of policies and services, better monitoring and evaluation. De-institutionalising via market type solutions became standard practice through mechanisms such as competitive tendering and contracting out, and also the expansion of the role of the non-profit sector. Most of these structures involve a principal-agent relationship between the public sector and the market actors engaged in service delivery. From the 1990s, the perceived shift from government to governance alleged that the hierarchical bureaucratic model was no longer the standard context for policy implementation. This has led to the participation of a wider range of actors, in what has been coined a ‘differentiated polity’ (Rhodes, 1997), whereby the state’s responsibilities are not clearly demarcated. Part of the organisational responses to the ‘hollowed state’ include attempts to manage through networks of increased structural complexity and “implementation as partnership” (Hill and Hupe, 2009: 92–3) or ‘joined up government’ (Davies, 2009: 80). There is some irony to this since implementation theorists had earlier contended that much of the ‘misery studies’ and ‘horrors of war’ resided in problems of horizontal collaborations (Linders and Peters, 1987). Some of these obstacles reflect coordination problems induced by implementation structures that require multiple organisations, not necessarily in the same policy area, to cooperate and function well (Peters, 2014). In turn, fragmented responsibility is an ongoing organisational challenge for the modern state and reduces accountability. For example, while contracting out (when most players are private, external agents) is supposed to enhance accountability,

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23

the arrangements may compound all the conditions in which policy fails at the implementation stage. Such developments outstrip the advancement of new skills, leaving policy makers with a potential gap between programme intentions and the outcomes achieved by isolated contractors (see Chalmer and Davis, 2001). In short, public administration relationships have become much more complex. The legacy of NPM and emphasis on partnership and collaboration suggests that implementation research became reconceptualised along a number of parallel, overlapping lines of research such as formal and deductive approaches, institutional analysis and networks and network management in the study of governance (Peters, 2014; O’Toole, 2004a; 2000). Furthermore, it was deemed unhelpful to have a ‘narrowly literal’ definition or homogenous methodological approach to implementation (O’Toole, 2000) in academic research. To some extent, implementation was regarded in the wider context of selected models on other parts of the policy process and the argument for better theories. Alternatively, other concepts such as regulation or evaluation could be construed to have taken its place. In terms of the focus of attention and publications on ‘implementation studies’ per se, this has mainly identified either the variables or processes that are involved. For example, greater attention was attributed to the study of variables (Goggin, 1986) because of the extreme difficulty of designing and gathering empirical data on organisational and political processes. The classification of what are the dependent and independent variables raises methodological questions about how to study implementation. Despite a suggestion that implementation theory is yesterday’s news, implementation studies have never really gone away. There is a revival in interest both conceptual and empirical (see Hupe, 2010; Cairney, 2009; May and Winter, 2009; Barrett, 2004; Exworthy and Powell, 2004), but within a milieu that must engage with the contemporary context. As Peters comments, ‘The single lonely [implementation] organisation may be dead, but it has not been replaced by any single model of implementation structure’ (2014: 136). At least three versions of the byzantine ties among organisations are apparent – the public sector, NPM with the private sector, and governance – to provide alternatives to traditional implementation models (Peters, 2014: 136). Yet each of these categories may in themselves constitute ‘ideal types’. A more recent variant on the top–down model is evident in regard to the diversification of policy instruments (Howlett, Ramesh and Perl, 2009). The usefulness of these ‘tools of government’ employed for the implementation of each policy depends on factors such as institutional arrangements and the social context. The policy type and the instruments selected will affect the overall implementation arrangement and process, as certain instruments favour

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the formation of particular implementation structures. For example, mandates aimed at regulating the behaviour of target groups normally require a staff for inspecting and enforcing the mandate and a set of sanctions. Overall, implementation studies highlight issues and useful details that other approaches may ignore as well as informing us how the system succeeds or fails in translating general policy objectives into concrete and effective action. However, implementation research can arguably be improved by accepting theoretical diversity rather than looking for one common theoretical framework (Winter, 2015). The narrower implementation studies which emerged during the 1970s are advanced by additionally valuing broader perspectives, such as links with institutional theory and multi-level governance. This is constructive for studying the implementation of EU environmental policy since efforts to give effect to EU policy commitments may induce institutional change and take place within a multi-levelled system of governance. The search for models – top–down, bottom–up, synthesis A general review of this field of literature initially directs researchers to two major schools of thought – top–down and bottom–up. First generation top–down models – ‘the missing link’ The top–down approach is principally concerned with how implementing officials can be directed to do their job more effectively and whereby policy designers concentrate their attention on factors that can be manipulated at the central level in order to obtain compliance. It is argued that legislators and other policy formulators can go a long way toward assuring effective policy implementation if they ensure that a statute incorporates a sound technical theory, provides precise and clearly ranked objectives and structures the implementation in a wide number of ways so as to maximise the probability of target group compliance. Much of this literature focuses on descriptive and prescriptive assumptions that policy is and should be made at the ‘top’ and implementation is essentially an administrative and hierarchical follow-on process (Barrett, 2004: 252) that treats implementers as agents for policy makers. This is of course ironic since a policy programme is characterised by social interaction and, almost by definition, is the result of the politics of policy making (Hupe, 2010). Pressman and Wildavsky (1973) pioneered the idea of an ‘implementation deficit’ and argued that effective implementation was essentially an ability to forge links in a causal chain so as to put policy into effect. The more clearance points required in the vertical implementation sequence, the greater the likelihood that an accumulation of shortfalls will occur. One of the key messages in their analysis of the Oakland Economic Development Administration (EDA)

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programme in California illustrates the difficulty of implementation – the ‘missing link’ – since it requires almost 100 per cent cooperation of all agencies involved in the chain of command. The greater persistence in attempting to reach clearance points (although at the expense of delay) can, however, result in a bandwagon effect whereby each clearance obtained increases the probability of the next one. The setbacks inherent in Pressman and Wildavsky’s top–down perspective remain widespread and may be expressed as the ‘thesis of incongruent implementation’ (Hupe, 2010: 67). A more developed conceptualisation of implementation was put forward in later editions of the Oakland, California study (Wildavsky, 1979). The main theme of these works is that implementation has to be understood as a more evolutionary, ‘learning’ process, rather than as the kind of policy implementation sequence that was originally asserted. To this end the bargaining mechanisms for the implementation of policy are as important as structures of authority (Pressman and Wildavsky, 1984: 87–124). A further group of theorists contributed to the top–down debate by offering models as opposed to general approaches (Sabatier and Mazmanian, 1981; Van Meter and Van Horn, 1975). These models aimed to direct the attention of those studying implementation to identify factors that affect the achievement of statutory objectives throughout the entire process rather than provide prescriptions for policy makers. Sabatier and Mazmanian’s (1981) framework seeks to highlight the manner in which legal directives can significantly constrain the behaviour of implementing officials and other actors. A checklist is used to estimate the probability that a statute will achieve its mandated objectives. The greater the amount of behavioural change, however, the more problematic successful implementation becomes. The requirement of a rational system and ideal type of implementation is also evident in the views of analysts in the late 1970s who proposed a model of what ‘perfect’ implementation would look like. This was based on unitary systems with a single line of authority, uniform enforcement of set rules and unlimited resources (Dunshire, 1978; Gunn, 1978; Hood, 1976). Such an approach is akin to the economist’s idea of perfect competition, or Wilson’s (1887) rationale that politics and administration should be kept strictly separate. The notion of ‘perfect administration’ is unattainable and breaks down since implementation is a political process whereby success must involve a very thorough ‘follow through’ (Hill and Hupe, 2009; Hogwood and Gunn, 1984). Implementation processes can be conceptualised as an ‘assembly line’ but can also be perceived as involving games, and a wide variety of games may be played (Bardach, 1977). One of Bardach’s (1977) prescriptions is that attention should be given to ‘fixing the game’ which appears to involve two related usages of ‘fixing’ – as mending and as something analogous to cheating. The ‘fixer’ may be an important legislator or executive official who controls resources

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to closely monitor the implementation process and to intervene on an almost continuous basis. Second generation bottom–up models – ‘link gone missing’ In sum, the main way in which implementation has been explored in the top–down literature is explicitly prescriptive, seeing gaps as deficits, as problems for those who made policy, and offering advice on the way such gaps may be prevented (Hogwood and Gunn, 1984; Sabatier and Mazmanian, 1981; 1979; Gunn, 1978). This was opposed by ‘bottom–uppers’ such as Hjern and Porter (1981), Hjern and Hull (1982) and Lipsky (1980) who argued that a more realistic understanding of implementation can be gained by looking at a policy from the view of the target population and the service deliverers. The fundamental point of the bottom–up approach to implementation is that the most important activity in policy determination takes place at the lowest level of the organisation (Linders and Peters, 1987) and may be determined by consensus building and bargaining (explicit or implicit) between members of the organisation and their clients (Peters, 2014; Barrett and Fudge, 1981). This provides a context for two environments: the management skills and cultures of the organisations involved in implementing public policy, and the political environment in which they have to work. The argument is such that most implementation problems stem from the interaction of a policy within the micro-level institutional setting. Central policy makers can only indirectly influence micro-level factors and street level implementers may have considerable discretion in how they apply policy. This leads to a wide variation in how the same national policy is implemented at the local level. Lipsky, the theorist principally associated with the term ‘street-level bureaucrat’, first presented his ideas in 1971 prior to Pressman and Wildavsky’s study of the EDA. Lipsky (1980: xii) argued that ‘the decisions of street level bureaucrats, the routines they establish, and the devices they invent to cope with uncertainties and work pressures, effectively become the public policies they carry out’. Street-level bureaucrats have considerable discretion and to cope with the pressures upon them, develop methods of processing people in relatively routine and stereotyped ways. They become tied to implementation patterns by inadequate organisational resources, indeterminate objectives and the overwhelming and unending demands of their (sometimes difficult) clients. They consequently adjust their work habits to reflect lower expectations of themselves and their clients. This applies better to social policies than to regulatory policies with target groups who are stronger and less likely to demand more services. In a study of community policing, Hill (2003) argued that policy as written often fails to teach implementers what they need to know to do policy or undertake reform. Street-level bureaucrats often learn about reforms from non-state networks of professionals, or implementation

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resources, rather than from government or its agents (Hill, 2003: 266). Therefore a lack of change is a failure, in part, to connect with opportunities for an individual or organisation to learn and suggests that more or better implementation resources can be part of the remedy. A second approach to bottom–up studies is the work by Benny Hjern and colleagues dating from 1978 to 1982. They argued that, in defining implementation, its frame of reference is not formal constitutional organisation but the arrangements and procedures of the living constitution (Hjern and Hull, 1982: 105). This body of work asserts that researchers must construct empirically the networks within which field-level decision-making actors carry out their activities, without predetermining assumptions about the structures within which these occur (Hjern and Hull, 1982; Hjern and Porter, 1981). This argues for an alternative perspective to be adopted, one that focuses on the actors and agencies themselves and their interactions, and for an action-centred or bottom–up model of analysis as a method of identifying more clearly who seems to be influencing what, how and why (Barrett and Fudge, 1981). Hjern et al. (1978) concluded that programme success was far more dependent upon the skills of specific individuals in local implementation structures and pools of organisations than upon the efforts of central government officials. The idea of this approach is to understand the policy–action relationship and get away from a single perspective of the process that reflects a normative administrative or managerial view of how the process should be. Given their focus on the strategies pursued by a wide range of actors, bottom–uppers are better able to deal with strategic interaction over time than are top–downers (Sabatier, 1986: 34). However, while the networking methodology is a useful starting point for identifying many of the actors involved in a policy area, it needs to be related via an explicit theory to social, economic and legal factors which structure the perceptions, resources and participation of those actors. Synthesis-hybrid models of implementation The overview of traditional implementation theory illustrates that the top-down approach is useful where a dominant public programme in the policy area is under consideration or where the analyst is solely interested in the effectiveness of a programme (Sabatier, 1986: 36). However, if, depending on scores relative to the conditions for effective implementation, one is interested in inter-local variations, then a bottom–up approach should be employed since it is better for assessing the dynamics of local variation and large numbers of actors without power dependency. Both stances have been criticised (Goggin et al., 1990; Linders and Peters, 1987; Sabatier, 1986) and referred to as ‘normatively biased’ (Hupe, 2010: 66) since they tend to ignore the portion of the implementation reality explained by the other. It remains one of the major challenges of implementation research to disentangle analytically the

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effects of implementation that involves multiple layers (Hupe et al.,, 2014). Often neglected in the two main schools of implementation is the state as an actor caught between pressures from above and below. Although the state has occasionally been characterised as an intermediary or gatekeeper in the conversion of plans into actions, the state is rarely used as the primary unit of analysis. A further consideration is addressing the question of the relative influence of the different sorts of variables on policy as it is converted into action (Goggin et al., 1990: 12). Winter’s (2012) critique of first (top–down) and second (bottom–up) generation implementation theory stresses that identifying barriers and factors to ease implementation research had not succeeded in sorting out the relative importance of the explanatory variables. The conditions under which these variables are important and the reason we should expect them to be important have been largely ignored, or treated superficially (Matland, 1995). Adding new variables does not directly bring adequate clarification within reach. In a review of implementation research comprising more than 100 studies and over 300 variables, O’Toole (1986) asserted that there were too many variables to distil and too few cases (i.e. overdetermination). Scholars advocated the need for structure and a more scientific search for the patterned regularities as well as the idiosyncrasies of implementation decisions and actions (Matland, 1995; Goggin et al., 1990). This is reflected in efforts to synthesise implementation theory and the presentation of a variety of general models (see Winter, 2015; Sabatier and Jenkins-Smith, 1999; Matland, 1995) in ‘third generation’ studies. One such approach is not to view implementation as an isolated ‘stage’ in the policy-making process or separate from agenda setting (Sabatier, 1986: 39) but concentrate on knowledge, learning and capacity. Sabatier and Jenkins-Smith’s (1999) advocacy coalition framework attempts to bring together the best of the top–down and bottom–up implementation literature. It introduces the premises of policy change, including learning; a policy sub-system of actors and the notion that public policies should be viewed as belief systems, which relate to sets of values, priorities and causal assumptions. The focus moves away from implementation to policy change, making implementation indistinguishable from the general policy cycle, but not explanatory of the policy process. Other approaches include elaborating on network theory, learning, communications, specifying the conditions under which variables are important and attention to structure. The ‘governance literature’ also examines ‘the ways in which hierarchy has been replaced as a mechanism of delivery’ in diversified delivery processes that involve a variety of agencies working on the ground. The concept of networks is used in bottom–up theory and is important for many of the attempts to synthesise the different approaches. Hill and Hupe (2009: 67–8) note that networks may be crucial for the type of implementation

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deficit that Pressman and Wildavsky highlighted and that effective implementation, as suggested by Hjern et al., may depend upon the development of collaborative networks. The UK network literature indicates their significance for successful policy formation and implementation and suggests that governments have sought to foster policy networks and policy communities (Rhodes, 1997). The roots of this approach lie in inter-organisational theory but to a large degree implementation per se is neglected in most discussions of policy networks (Hill and Hupe, 2009: 68). As a theoretical approach it does not see implementation in terms of the realisation or non-realisation of hierarchically determined goals. A response to improve control is the application of the principal-agent model which introduces incentives to ensure that agents or street-level bureaucrats provide what the principal requires without the need to direct command or control. Several issues arise from an exploration of implementation theory. First, implementation models, both descriptive and prescriptive, provide a lens to understand the most complex stage of the policy process. Second, methodological debates have produced two dominant approaches to studying implementation, albeit from convergent standpoints (top–down and bottom–up). Third, the ‘holy grail’ of methodological divergence prompted implementation studies to be generally encapsulated within a number of theoretical developments, principally governance approaches. This has led to a ‘repackaging’ of implementation in the wider theoretical discourse of governance, new-institutionalism and new public management. Fourth, the explanations that emerge can be determined by the selection of dependent and independent variables. Cases selected in the literature demonstrate that there are hundreds of different variables that may be selected to study implementation, depending on the issue. The conditions for studying implementation are presented in this chapter while Chapter 4 identifies the key features of environmental governance in Ireland. EU implementation studies A key question is how do traditional implementation approaches apply to the EU given it is sui generis? National governments are both agents of the European Commission and, by virtue of their membership of the European Council and Council of Ministers, simultaneously its principals (Bergman, 2000). The fact that much implementation theory emanated from the federal system of the USA is not a coincidence since the diffusion of powers between different levels of government is a recipe for implementation challenges (Thoman and Sager, 2017). Classical implementation literature (top–down) deals with the designation of a clear centre of authority which is difficult to translate to the ‘multi-centred’ collective problem-solving EU system. The EU, its policy-making process, the number of decision points, structure and

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concerns about delegation and accountability, undoubtedly militate against securing perfect implementation. The potential of the EU to foster innovative approaches to governance, however, extending to a multiplicity of actors, institutions and relationships embodies characteristics of second generation (bottom–up) implementation studies. In common with the challenges inherent in implementation studies there are different theoretical choices to make and no defined ‘one best way’ to investigate EU implementation. Alternatively, several scholars have mapped the research into categories that are relatively indicative of developments in EU studies. In the late 1980s the research derived from a variety of disciplinary backgrounds such as law and public administration. In the 1990s implementation became influenced by the Europeanisation school and current research agendas concentrate on the development of quantitative studies; ‘bringing domestic politics back in’ and moving beyond the strong focus on legal compliance to investigate practical implementation (see Knill, 2015; Thomson, 2009; Kaeding, 2008; Versluis, 2007; Falkner et al., 2005; Mastenbroek, 2005). Further, the study of implementation failure in EU environmental policy is discussed specifically in the literature. Two groups of factors that Pridham (1996) has distinguished as genetic and systemic causes of implementation problems (Börzel, 2000a; Pridham, 1996) can be observed. Genetic causes arise from the specific structural character of EU environmental policy making, such as the nature of the policies and of the EU policy process. Systemic or domestic accounts of implementation problems refer to the specific features of the political and administrative institutions of the individual member state. EU studies commencing from the late 1980s viewed implementation processes as technical, largely depending on clearly worded provisions, effective administrative organisation and streamlined legislative procedures at the national level (see Siedentopf and Ziller, 1988). Such top–down approaches in the EU implementation literature also linked up with elements of the bottom–up school of implementation studies by emphasising that the role of actors (parliaments, interest groups, sub-national government) within a well-organised state apparatus were as important for the preparation of negotiating positions that are an essential prerequisite for effective implementation later. EU studies advocate one of the most consistent findings of implementation research, namely that good implementation presupposes the participation of implementing organisations in the decision-making processes (From and Stava, 1993: 65). However, unlike the theory development in public administration fields during the 1970s, there are no specific theoretical approaches developed that explain EU policy implementation (Versluis et al., 2011: 192; Knill, 2006: 360). The tendency is to draw on existing theory with a predominant research focus on legal conformance. A particular problem for the EU is that it has no single pattern of policy implementation (Treib, 2014; Peters, 1997; Héritier et al., 1996).

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Each policy area raises its own implementation questions and there is often no causal link between implementation performance and choice of policy instruments. More recent contributions have emphasised the importance of adopting a more performance-oriented approach to EU policy implementation (Thomann and Sager, 2017; Zhelyazkova, 2013), including an emphasis on all angles of the implementation cycle. A second generation of EU implementation studies dates from the late 1990s and Europeanisation is the term used to refer to the method by which studying interactions between the EU and its member states have shifted towards a focus on the policy process. In the mid-1990s Europeanisation emerged as a significant area in the study of European integration (Harmsen, 1999; Olsen, 1996; Ladrech, 1994). Most definitions focus on Europeanisation as a process and one in which there is a transformation or, perhaps, more accurately, a change in the policy-making processes and outcomes in the member states arising out of participation in European level institutions and policy making (Rees and Connaughton, 2010: 15). The assumption is that change in the domestic polity is a response to adaptational pressures, although the degree of causality is often disputed. In such accounts, Europeanisation is not treated as a dependent variable but rather as a process leading to ‘still unspecified outcomes’ (Lenschow, 2006: 57). EU implementation studies play an important role in our understanding of Europeanisation (Falkner et al., 2005; Börzel, 2002). Implementation is an example of the broader phenomenon of Europeanisation since implementation refers to the processes through which European norms are transposed, adhered to and enforced at the domestic level (Sverdrup, 2007; Falkner et al., 2005). Implementation is also affected and conditioned by the various levels of government from supranational to local. Transposition takes place at the national level but practical application and enforcement is generally delegated to subnational authorities and other executive (or regulatory) agencies outside the central government hierarchy. Owing to their relative autonomy these agencies can be well placed to work ‘double hatted’ in the sense that they interact directly with the European Commission in enforcing EU law, while at the same time they perform traditional tasks as agents of national ministries (Mastenbroek, 2017; Martens, 2005). On the one hand, it is very difficult to determine whether there is such a figure as a European public servant (see Sager and Overeem, 2015) arising from this policy work. On the other hand, officials working in such agencies are linked to their counterparts transnationally and since 2000 the number of EU enforcement authorities has grown from one to seven (Scholten, 2017). What may be interpreted from the literature is that despite a proliferation of EU studies on implementation they have not yielded a common theoretical framework for explaining implementation. Most compliance and implementation

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studies develop their own assessment criteria and collect their own empirical data (Knill, 1998). As a result, a comparison of empirical findings and theoretical claims becomes difficult. The methods employed in EU implementation studies are reflective of both qualitative and increasingly quantitative approaches. Many studies focus on infringement and draw on statistical data published in the annual reports on monitoring the application of community law (EC, 2017c; see Börzel and Sedelmeier, 2017; Tallberg, 1999). Other scholars have created new data sets to demonstrate the impact of other variables besides overly relying on infringement data (Mastenbroek; 2003). This also includes explaining variation in member states’ correct transposition (Zhelyazkova, 2013). Qualitative research remains a dominant design to develop and test explanatory factors such as the importance of domestic politics for the implementation deficit in member states and particularly policy areas. The most typical empirical studies are of environmental, social and transport policies (Falkner et al., 2005; Heritier et al., 2001; Haverland, 2000; Knill and Lenschow, 2000) though a range of policy areas have also received attention. These include veterinary drugs regulation (Thomann, 2015), migration (Dörrenbächer, 2017) and consumer protection (Zhelyazkova, 2013). Versluis (2007: 50–1) comments, however, that studies on the implementation of European legislation are numerous, yet narrow in perspective, since many of them focus on the legal aspect of implementation. This is supported by Treib (2014) and, more recently, Heidbreder (2017) who remarks that policy implementation in the EU is most prominently analysed taking compliance (as in conformity with the EU directive) as a conceptual starting point. What has been missing is more attention to practical implementation (or ‘law in action’) which largely remains a ‘black box’ (Thomann, 2015; Versluis, 2007; Mastenbroek, 2005; Mendrinou, 1996). Thus, there is relatively little insight into how regulators enforce European legislation or how, including in what ways the regulated comply with it. This would suggest that the contribution of traditional implementation theories can be valuable for understanding how EU policies are translated into action. Europeanisation In common with traditional implementation theory, Europeanisation may be employed to study the relationship between member states and the EU from both top–down and bottom–up perspectives. From a top–down perspective the EU is the independent variable and the national political-administrative system is the dependent variable, whereby the subject of study is the change of national institutions and policies. Definitions of the top–down approach include the ‘central penetration of national systems of governance’ (Olsen, 2002: 923–4). From a bottom–up standpoint, Europeanisation is also a ‘national

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level process of the construction of institutions, formal and informal rules, and public policies that subsequently spread to the European political system (Brunazzo, 2010: 2). This regards Europeanisation not only as a constraint but as a potential opportunity for strengthening the role of certain groups, state and non-state actors in domestic and EU policy making. This can stimulate learning processes in the member states that could strengthen actors and their impact on national and European decision-making processes (Paraskevopoulos et al., 2006; Radaelli, 2006). A comprehensive definition of Europeanisation encapsulating both approaches is developed by Radaelli (2003: 30), who refers to it as ‘the processes of (a) construction (b) diffusion, and (c) institutionalisation of formal and informal rules, procedures, policy paradigms, styles, “ways of doing things” and shared beliefs and norms which are first defined and consolidated in the making of EU decisions and then incorporated in the logic of domestic discourse, identities and political structures, and public policies’. In addition, Bugdahn’s (2005: 177) contribution complements explaining the outcomes of EU policy implementation with the reference to domesticisation. Notably, ‘the implementation of EU policies is best conceptualized as a blend of effective EU influence over domestic policy choices in a given policy area – defined as Europeanization – and of domestic choices of non-prescribed or non-recommended policy options in the same policy area – which is termed domestication’. Institutional approaches Many contributions to the Europeanisation debate have explicitly based their arguments on neo-institutionalist thinking (Radaelli, 2003; Bulmer and Burch, 2001; Cowles et al., 2001; Knill, 2001; Knill and Lenschow, 2000; Börzel, 2000b). Institutionalist accounts tend to assess the extent of the impact that EU institutions, decision-making procedures and rules have upon different state policy-making processes (Knill, 2001; Harmsen, 1999). There are three main approaches to ‘new’ institutionalism – historical, rational choice and sociological. The three variants are distinct in their ontological understanding of human behaviour – either calculus or culture led (Hall and Taylor, 1996) – and hence the logic behind change. Historical institutionalism stresses the resilience of national policies and institutions against outside pressures. The hypothesis tested is that the current outcomes of public decisions are channelled by the existing and past institutional arrangements, whereby public policy choices made in the past shape choices forged today. It is only in exceptional cases of fundamental performance crises or external shocks (‘critical junctures’) that the discrepancy between exogenous pressure and actors’ adaptive capacity and self-reinforcing feedback gives way from the path of continuity or ‘path dependency’. Administrative structures and procedures are embedded in the member states’ respective legal and

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political traditions, which constitute the institutional core of national administrative traditions (Knill and Lenschow, 2000; Knill, 1998). The traditions emanate from the country’s political culture, namely the opinions, attitudes and values of a given society regarding the political system. Organisational or administrative culture refers to the values, attitudes and opinions of society as a whole towards the administration, which is interlinked and dependent on the existing societal and political culture. In studies focusing on EU environmental and transport policies, Knill (2001; 1998) examines the interplay of national administrative traditions and European policy implementation. The impact of traditions on the effective implementation of EU legislation is paramount, since the formal and practical transformation of EU law rests mainly at the national level. For example, implementation challenges were demonstrated in the German experience of implementing environmental policy where the regulatory mode of EU policy was alien to Germany’s administrative structure, problem-solving philosophy, organisational routines and state-society relations (Héritier et al., 1996). Sociological institutionalists suppose that individual behaviour is led by duties and obligations (March and Olsen, 1989). The core notion of sociological institutionalism is that life is organised by relatively stable sets of shared meanings and practices. Institutions are defined as practices, administrative rituals or symbols – a definition that is broader than the rationalist focus on formal rules and the technical requirements of the task at hand. These rules are followed because they are seen as the ‘logic of appropriateness’ that is natural, rightful, expected and legitimate. Political and organisational cultures also effect whether domestic actors can use adaptational pressures emanating from Europeanisation to induce structural change. Checkel (2001: 562) proposes a mechanism of social learning, according to which domestic agents acquire new identities and interests in the absence of material incentives. Compliance will be smooth if a directive fits policy makers’ beliefs and if they act as norm advocates for change. What may be gleaned from this discussion is that sociological and historical institutionalism offers two competing hypotheses regarding the possible effect of the EU on national policies. While the former predicts convergence, the latter predicts that divergence persists. Empirical studies on the Europeanisation of environmental policy, however, suggest a much more differentiated pattern, with convergence in some respects and persistence (or even divergence) in others. Therefore, these two bodies of theory manifestly fail to account for what appears to be a differentiated pattern of national change (Liefferink and Jordan, 2005: 105). Rational choice or actor-centred institutionalism focuses on strategic, goaloriented behaviour within institutional limits, conforming to a refined version of rational choice theory. A rationalistic logic embodies actors’ engagement in strategic interactions using their resources to maximise their utilities on

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the basis of the preferences (March and Olsen, 1989). Mastenbroek (2007) demonstrates how the transposition of EU legislation is a collective action problem in which the various domestic actors need to cooperate to produce outcomes. Each domestic stakeholder holds substantive preferences regarding the contents of a directive. This may result in ‘opposition through the backdoor’ in the implementation of a directive as an indication of protest against the EU decision-making process (Falkner et al., 2004: 277). From a rationalist institutionalist perspective, the misfit between European and domestic pressures, policies and institutions provides social and political actors with new opportunities and constraints in the pursuance of their interests (Börzel and Risse, 2000). Successful implementation is also conditioned by the existence of multiple veto points in a country’s institutional structure which can allow actors to hamper domestic adaptation (Tsebelis, 1995). The more power is dispersed across the political system and the more actors that have a say in political decision-making, the more difficult it is to foster the domestic consensus necessary to introduce institutional changes beyond incremental adjustment in response to Europeanisation pressures. Top–down Europeanisation: the goodness of fit and mediating factors Radaelli (2006: 59–60) comments that studies of the top–down approach focus on the chain of ‘pressure from Europe on the member states and investigates intervening variables in order to gauge the reactions and change at the domestic level’. Most of the analysis on top–down Europeanisation conducted before the 1990s sought to understand the implementation of European policies as an objective to understanding how member states organised their EU business. Such research became more developed and rooted in theoretical explanations from the late 1990s and early 2000s. Central to these explanations in the literature is the ‘goodness of fit’ which utilises the frameworks of new institutionalism (Knill, 2001; Börzel and Risse, 2000; Knill and Lenschow, 1998). For example, the study by Cowles et al. (2001) concentrates on the ‘goodness of fit’ grounded in frameworks of social constructivism and rational choice institutionalist frameworks. The goodness of fit thesis stresses that institutional change at the European level is likely to intersect with pre-existing institutions in the member states. It assumes that there is a clear European policy, which can be fully understood at the domestic level, and within which domestic actors are able to express particular preferences. The pressure of the EU on the member states varies according to the degree of misfit between the supranational policies and institutions and their national (and sub-national) counterparts (Börzel and Risse, 2003). Knill and Lenschow (1998) were among the first to posit that domestic change is determined by the congruence or ‘fit’ between Europeanisation processes – understood as institutional norms, rules, regulations and procedures

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– and their domestic equivalents. For example, when a directive is in line with the current policy legacy of a country and with the organisation of interest groups, it is likely to be well implemented. When it envisions major policy shifts and the reorganisation of interest groups, it is more likely to suffer from poor implementation. In other words, the closer the ‘fit’ between European policy and domestic policy the fewer adaptational pressures with less impact or change necessary to existing policy. Alternatively, ‘misfits’ occur in instances where EU policy requires significant pressures for change and where states may oppose such change. This may arise when public administrators, economic and social actors are not willing to bear the burden of implementation. As soon as the gap between existing arrangements and external requirements becomes too big (‘misfit’), it is anticipated that implementation within the existing institutional framework will yield ineffective results. The incorporation of integrated policy measures requires comprehensive legal and administrative adaptation to preserve the consistency of the EU regulatory framework. Adaptation is often rendered even more difficult because administrators tend to be reluctant to give up traditional problem-solving approaches and policy instruments which they have considered effective (Knill and Lenschow, 2000). Only where adaptational pressure is moderate, thereby requiring adaptation within the constraints of core traditions, will successful adaptation be likely. It is assumed that such change is mediated through a range of domestic factors including political elites (change agents or norm entrepreneurs), institutional veto points and organisational culture and learning. Risse et al. (2001: 6) elaborate on this with a standard three-step model which recognises that misfit and adaptational pressure constitute a necessary but insufficient condition for change and that the nature and likelihood of domestic change can only be explained through domestic mediating factors. In other words, adaptational pressures must pass through and interact with facilitating and/or obstructive factors specific to the member state. Börzel and Risse (2003) clarify this further by identifying two alternative mechanisms or paths of domestic change that correspond to two institutional logics. The ‘logic of consequentialism’ follows the logic of redistribution and hypothesises that EU policy and institutional prerequisites may strengthen or weaken domestic actors by providing resources such as expertise or political legitimacy. According to this rational choice account the likelihood and nature of change will be determined by the differential empowerment of actors and conditioned by two structural mediating factors. The first is the existence of veto points within the political system, which may inhibit the ability to reach agreement on the need for domestic adaptation. The second is supporting formal institutions which can facilitate change by empowering agents with material and ideational resources with which to exploit EU level opportunities for change (Börzel and Risse, 2003: 64–5). Alternatively, domestic change

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may occur as a consequence of changing norms, values and preferences of actors arising from greater interaction and processes of socialisation and learning triggered by EU membership. The ‘logic of appropriateness’ is underpinned by a sociological institutionalist perspective, the nature of which is affected by the influence of ‘change agents’ or norm entrepreneurs, such as advocacy coalitions or epistemic communities,1 that mobilise in order to persuade and facilitate the redefinition of interests and identities by domestic policy makers. In addition, cooperative informal institutions (norms, values, standard operating procedures) will shape adaptation depending on whether they are compatible with those prevailing within the EU (Börzel and Risse, 2003: 68). The idea that misfit constitutes a necessary condition for change is contested in the literature (Thomann, 2015; Haverland, 2000). The hypothesis that the goodness of fit/misfit with existing policies predicts the ease of implementation is not sufficiently supported by empirical research (Haverland, 2000; Knill and Lenschow, 1998) and is criticised as the number of Europeanisation studies grows. It has also been described as too static an explanation (Mastenbroek, 2007). A further contribution to Europeanisation approaches is to enlarge the top–down model and go ‘beyond the study of mechanical implementation’ in order to ‘account for crucial feedback loops’ (Saurugger, 2014: 184). Saurugger’s study is of Europeanisation in times of crisis and the establishment of new policy instruments to oversee economic and financial actors/developments. She argues that the analysis puts the Risse et al. (2001) three-step model under pressure as EU norms cannot always be measured by the degree of fit and misfit with the domestic level, nor are the national institutions always mediating factors. The acknowledgement of domestic and European time frames; issue salience (also see Spendzharova and Versluis, 2013); the politicisation of citizens and actors suggests alternative interpretations of sequencing in Europeanisation (Saurugger, 2014: 185), and also indicate the usefulness of the traditional implementation literature. However, although goodness of fit by itself is insufficient to explain implementation performance, the perspectives it represents remain useful to investigate in conjunction with features of traditional implementation theory (top–down). Even a seemingly good legal fit may be accompanied by a practical misfit if national legal provisions are not enforced. This places an emphasis on understanding institutional dynamics in more detail. Bottom–up Europeanisation: domestic mobilisation Bottom–up perspectives on Europeanisation are defined by Risse et al. (2001: 2) who refer to the ‘emergence and development at the European level of distinct structures of governance, that is, of political, legal and social institutions associated with political problem solving that formalise interactions among the actors, and of policy networks specialising in the creation of authoritative

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European rules’. Radaelli (2006: 60) contributes another perspective to this discussion. He argues that the bottom–up cluster of research has a completely different research design from the goodness of fit thesis. The bottom–up approach does not start from European politics or policies as the independent variable for tracking down the consequences for domestic actors, policies and politics. Rather it starts and finishes with the domestic actors (just like the bottom–up school of traditional implementation theory). By using time and temporal causal sequences a bottom–up approach checks if, when, and how the EU provides a change in any of the main components of the system of interaction. Finally, ‘bottom–uppers’ try to measure the consequences of all this in terms of change at the domestic level (Radaelli, 2006: 60). In this instance, Europeanisation is not the explanans, or the solution, rather it is the explanandum, the problem that needs to be explained (Graziano and Vink, 2007). Contributions to this approach avoid conceptualising Europeanisation as a ‘black box’ whereby the focus is exclusively on the outcomes of the influence exerted by the EU on the member states, such as convergence. Bottom–up perspectives see Europeanisation as a process (Radaelli, 2006) rather than as an end product which enables an analyst to observe the extent to which alterations in a policy area are produced by Europe, or by domestic or global pressures. Alternatively, concentration may be directed to investigating the interactions between domestic and EU actors engaged in both vertical and horizontal networks and institutional linkages. This perspective views actors as active participants in the decisions that they must subsequently adjust to. Hence, change at the member state level, as a consequence of EU policies, may in turn affect the mobilisation of the member states on the European level. Börzel (2002) has examined how national governments seek to upload national policies to the European level thereby reducing the potential adaptation costs (or degree of misfit) at a later stage in the implementation process, as well as other associated costs to different domestic client groups. The strategies that member states may pursue in trying to shape European policy include ‘pace-setting’, ‘foot-dragging’ and ‘fence-sitting’. This is related to an earlier discussion by Börzel (2000b) where she developed a model to illustrate the interplay between domestic and European factors in environmental policy implementation. The ‘push-and-pull model’ is based on two major propositions. First, compliance problems only arise if the implementation of European policies imposes considerable costs on the public administrations of the member states (resonating with the goodness of fit thesis). Second, pressure from ‘below’ – where domestic actors may mobilise against ineffective implementation (pull) and from ‘above’ – where the Commission may introduce infringement proceedings (push) – may increase the chances of the effective implementation of costly EU policies (Börzel, 2000b:147–8).

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The mobilisation and focus on domestic actors shares features of the bottom– up approach. For example, environmental organisations act as ‘watchdogs’ drawing the attention of both public authorities at national and supranational levels and public opinion on examples of ineffective compliance with EU environmental legislation. Other actors such as political parties, the media, business and industry can also mobilise in favour of the implementation of a policy. Börzel (2000b) notes that domestic mobilisation is most effective if it is able to link up with European institutions, reinforcing external pressure for adaptation by initiating infringement proceedings. This interpretation is aligned to the principle of ‘shared responsibility’ which recognises the contribution of informal institutions such as public advocacy groups and citizens’ associations in its emphasis on increasing the participation of a wide range of societal actors. What the discussion on Europeanisation as implementation demonstrates is that like traditional implementation theory, Europeanisation cannot be conceptualised in terms of one direction only. Bulmer (2007: 51) comments that, ‘arguably the greatest debate in the theoretical literature has related to whether Europeanisation is exclusively a top–down phenomenon or whether it is in part horizontal. The debate is a function of the analyst’s interpretation of the dynamics of Europeanisation.’ Some studies have sought to link both the bottom–up and top–down aspects of Europeanisation by focusing on the role of member state governments as the intermediaries in the processes of transmission in ascending and descending stages of the policy process. For example, Börzel (2002) focuses on national executives and how member states have an incentive to ‘upload’ their policies to the European level to minimise the costs in ‘downloading’ them at the domestic level. But they differ in both their policy preferences and their action capacities. Brunazzo (2010) refers to ‘shapers’ and ‘takers’ as a means of employing top–down and bottom–up approaches in a discussion on the Europeanisation of the Italian cohesion policy, whereas Schmidt (2006) claims that EU decision making is correlated with European pressures on the policies, practices and institutions of the member states. As member states respond differently to the top–down pressures of Europeanisation, they will also acquire a different presence at the EU level, thereby displaying a different degree of Europeanisation on the bottom–up side. A contribution that reaches out to the bottom–up implementation literature is the proposal to think of EU member states (and implementers) as problem solvers who use their leeway to ‘customise’ EU rules to local contexts (Thomann and Zhelyazkova, 2017; Thomann, 2015). This should receive increased attention and Thomann and Zhelyazkova (2017) note that by introducing a bottom–up notion of member state discretion to Europeanisation research helps address salient questions regarding rising levels of Euroscepticism and Brexit, which highlight how European integration is being perceived as a loss of national

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sovereignty over policy. This suggests using customisation research to illuminate how transposition can be a potential opportunity to modify EU law and take back control.

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Multi-level governance The governance debate rotates around issues of state intervention and societal autonomy whereby the literature has focused on different components and aspects of this phenomenon. Understanding how EU directives are translated into action is also assisted by interpretations of the EU as a system of multi-level governance (MLG) which facilitates the identification of the bottom–up features of implementation. Bache and Flinders (2004: 2) acknowledged that Marks (1993) first used the phrase multi-level governance to capture developments in EU cohesion policy following its major reform in 1988. MLG also acknowledges that the EU is not a true federal type system but has its own features of governance that also includes the complexity of different levels – namely EU, national, regional and local. His definition referred to ‘a system of continuous negotiation among nested governments at several territorial tiers – supranational, national, regional and local’ (Marks, 1993: 392). MLG emphasises the shift from a unified central authority to a diffusion of power in the policy-making process that extends to the participation of non-state actors and the increased interdependencies between national, regional and local governments. It occurs on three axes – centre-periphery axis, state society axis and national-international axis – that respectively confront characteristics of the state in terms of sovereignty, centralisation and mobilisation capacity of actors (Zito, 2009). An EU agenda to push for more effective engagement of civil society and stakeholder consultation is evident and in 2009 the Committee of the Regions published a White Paper on Multilevel Governance which articulated that, ‘the challenge of multilevel governance is to ensure that there is a complementary balance between institutional governance and partnership based governance. The development of political and administrative culture in the EU must therefore be encouraged and stimulated’ (COR, 2009: 5). The interplay between national and European influences makes it clear that EU environmental policy is a form of multi-level governance (Knill and Liefferink, 2007: 119) and EU environmental policy has increasingly advanced multi-level governance (Gollata and Newig, 2017; Piattoni, 2010). Its implementation addresses both responsibilities at different levels of government and sharing competencies between different types of actors at different levels of governance. The relevance of sub-national governments is less straightforward than in the case of regional development. Alternatively, the role of civil society actors is more pronounced in environmental policy (Piattoni, 2010: 140).

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Hooghe and Marks (2003) draw a distinction between MLG Type I (i.e. governmental institutions) and MLG Type II (i.e. the institutions of governance – agencies, private and third sector). MLG Type I refers to a limited number of jurisdictions at levels that are general purpose and overlapping with each level catering for a particular territory (as in a federal type system). The unit of analysis is individual governments. MLG Type II denotes a governance jurisdiction that is not affiliated to only a few levels but may operate on numerous territorial levels. It can align with jurisdictions that are task specific, have overlapping memberships in policy networks and a flexible design, referring to ad hoc governing bodies established for delivering specific services (for example regional policy). The unit of analysis is the policy, not the individual government. In relation to the EU Bache (2008) suggests that it may be understood as a combination of Type I and Type II MLG, which allows for the stability provided by formal institutions of government (Type I) overlaid by more flexible arrangements (Type II) that ensure greater effectiveness by bringing the appropriate local stakeholders into the policy process. This acknowledges the changing inter-governmental relationships, new tools of governance, the essence of democratic communities and the shifting boundaries between the public and the private spheres that coexist with an institutional focus and defy geographical boundaries (Bache et al., 2015; Piattoni, 2010). This will not, however, lead to more uniform environmental governance (Weale et al., 1996). Its use as an analytical tool is that it maps the actors involved at multiple geographical scales but also enables the investigation of more nuanced implementation concerns such as delegation and network management (Bache et al., 2015). In short, actor constellations operating within arenas of multi-level governance engender implementation in action. MLG can connect the top–down and bottom–up ideas from implementation theory and in understanding the process of change in domestic polities, politics and policy from the Europeanisation school. It is a lens to inform how the implementation gap is influenced by institutions and actors operating on a decentralised level with variable political influence and administrative capacities. If regional and local government structures are weak then EU involvement will not produce positive results. Following the top–down perspective of Pressman and Wildavsky (1973), MLG also illuminates how layers and levels contribute to implementation deficits and goal setting complexity. MLG theory is also consistent with the bottom–up school where actors from the sub-national level have an important role to play in delivery and ability to manoeuvre. In EU studies the extension of attention to actors beyond government officials also embodies characteristics of the bottom–up school of traditional implementation theory and the theoretical shift to governance which emerged during the 1990s. Treib et al. (2007: 5) discuss the numerous conceptions of governance in the literature and how these different modes can be organised according to

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whether they highlight elements of the politics, polity and policy. They identify modes of governance with reference to the EU according to whether they are based on legally binding provisions or soft law and whether they involve a rigid or a flexible approach to implementation. This takes into account not just institutional accounts and actor constellations but also policy instruments. Hence, the EU is not just a new level of governance but has fostered innovative approaches to governance extending to a multiplicity of actors, institutions, instruments and relationships involved in the process of governing. European policy implementation thus takes place in a multi-level system of governance (Gollata and Newig, 2017; Heidbreder, 2017; Fairbrass and Jordan, 2004) as distinct to those arenas in which national level authorities are the main actors. Model of analysis This chapter has illustrated the development of theoretical insights into how implementation takes place and how the Europeanisation of policy content impacts on actors, institutions and processes at the domestic level. A principal outcome of the discussion is that although a ‘catch all’ theory does not exist to explain either implementation or Europeanisation, two dominant approaches in implementation theory and EU studies – top–down and bottom–up – have comparative advantages as explanations in different contexts. In relation to traditional implementation theory, the two approaches provide a rounded perspective of the implementation process since explanations of both hierarchical and local network delivery methods can be captured to substantiate the findings. In Europeanisation studies the top–down perspective largely views the member states predominantly as the passive recipient of policies, structures, procedures and norms from a proactive EU to which they must adapt. A recasting of Europeanisation to understand times of crisis (Saurugger, 2014), however, suggests the importance of feedback loops and the impact of particular variables. Although Europeanisation research is predominantly top–down in orientation, bottom–up studies have been undertaken (see Thatcher, 2004) and further insights are obtainable from the multi-level governance perspective. As with implementation theory they consist of a different research design and also commence with mapping the relevant actors. More recent contributions emphasise customisation, domesticisation and the importance of the bottom–up approach to facilitate explorations of implementation performance in EU policies (Thomann and Sager, 2017; Thomann, 2015). Such approaches facilitate learning and knowledge about where the barriers to effective implementation lie, and potentially identify weaknesses in the EU policy-making process. Taking this approach can draw on both the traditional implementation studies and the bottom–up understandings of implementation as part of a negotiated process. The different approaches have comparative advantages as explanations

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in contexts and no one theory provides all the answers (Peters, 2014; Sabatier, 1986). Overall, the literature lacks resolution since there is no agreement on a general model or specific set of variables. In the desire to construct a comprehensive model, authors appear to ignore the possibility that what they are trying to combine are incommensurate paradigms. To a large extent this boils down to arguments about methodology, and about how to study implementation. It is asserted, however, that a combination of factors and approaches is needed to explain implementation processes and performance. In relation to the Europeanisation of environmental policy specifically, Liefferink and Jordan (2005) comment that the only way to circumvent the problem of causality has been to resort to thorough and detailed empirical research. This section presents the theoretical framework of this book which is inspired by the traditional implementation analysis, the insights from new institutionalism inherent in the Europeanisation literature and the concept of multi-level governance. These concepts inform the study of how implementation is approached by actors and the patterns, how processes and targets are prescribed, to institutional factors that prohibit or facilitate such changes and the types of policy instruments utilised. The role of institutions is significant since ‘they provide perhaps the most useful avenue for approaching issues of process’ (Peters, 2008: 58). For methodological purposes, the traditional implementation frameworks are important for informing the ‘how’ to study implementation. As well as providing alternating standpoints (top–down and bottom–up) on implementation experiences in Ireland, the study also emphasises in practice how implementation may be studied rather than controlled. This involves tracing the sequences of actions, responses that generate events and outcomes and paying close attention to accounts and context. Using both top–down and bottom–up perspectives facilitates the interpretation of whether the Irish approach to EU environmental directives illustrates the ‘iron fist’ of enforcing solutions or the ‘velvet glove’ of managing the problems. The combination of both approaches also facilitates considering outputs, outcomes and processes involved in implementation, thus providing more insight into practical implementation which, as noted, is not significantly embraced in the EU implementation studies literature (Treib, 2014: 16; Versluis, 2007: 63). A particular challenge of practical implementation is that it ‘adds additional layers of complexity to implementation analyses, and implies a focus of different governance levels (Thomann and Sager, 2017; Hill and Hupe, 2009). Different phases of implementation also leave different traces and can be variable between and within member states. In other words, transposition may take place but compliance by the regulated leaves something to be desired. Practical implementation involves the establishment of institutions, the adoption of policies or the abolition of existing standards and explaining implementation. In relation to the Europeanisation literature, Bailey (2002) asserts that including practical implementation with analyses of policy adaptation requires tracing through

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the policy chain and reaffirms the importance of goodness of fit for successful adaptation to EU policies. In addition, practical implementation can be a ‘blind spot’ for the Commission since it lacks the in-depth knowledge of street-level implementation necessary for the infringement procedure to work efficiently, or to be satisfied that compliance has taken place. For this study the dependent variable is implementation. Implementation is explained by investigating the Irish experience of translating EU environmental directives (waste, water and habitats) into action in accordance with the agreed targets and timetable. This is investigated both: (i) across time, and (ii) in terms of delivery behaviour pertaining to key actors and institutions within the policy network. The framework of analysis utilises the features of extant models and presents an adaptation of the ‘hubs and spikes’ from Treib’s (2007) overview of modes of governance encompassing polity, politics and policy. This provides a structured illustration of the different conditions of implementation for top–down and bottom–up theory which are summarised below (see figure 2.1). Top–down implementation conditions In his critique of top–down approaches to implementation Sabatier (1986: 23) sought to synthesise what had developed into the identification of a large number of variables into a shorter list of ‘six sufficient and generally necessary conditions for the effective implementation of legal objectives’. This check list of conditions includes: 1 2 3 4 5 6

clear and consistent objectives adequate causal theory legal structure to enhance compliance committed and skilled implementing officials support of interest groups and sovereigns changes in socio-economic conditions.

The criterion for the top–down method is used to explore implementation directed by Irish central public administration, and control of that implementation. From this perspective, policy success depends on how well Irish bureaucratic structures implement the EU directive. Implementation efforts move between the levels of government as well as within levels of government. If implementation of the directive is a matter of horizontal implementation, in which a national legal act must be applied solely by an agency in the executive branch, the number of actors remains low and implementation can be obtained more smoothly. But if vertical implementation is the norm, implying that various segments of the national administration must interact with different levels at the sub-national level, the undertaking is more challenging.

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EU directives clearly engender legal objectives but are unique in that while they specify the thrust and targets of the legislation, they must first be transposed into national law. The research presented in the case studies reviews the formal and administrative implementation progress of directives, commencing with transposition. In order to do so it is necessary to encapsulate the characteristics and structural features of Irish environmental governance (Chapter 4). This includes adaptation to European policy which is discussed with reference to the goodness of fit between EU and domestic requirements. The difficulties inherent in implementation illustrated by a top–down analysis tend to be caused by factors such as: • • • • •

emphasis on ‘clear and consistent policy objectives’ was a mistake time frame initiated by central decision makers multitude rather than a dominant law or agency under-estimation of ‘street level’ bureaucrats’ strategies (Hill and Hupe, 2009; Sabatier, 1986)

Bottom–up implementation conditions The bottom–up methodology begins with the actors rather than the problem. This approach maps the actors involved in the policy network and identifies the principal actors in each region. This is a more dynamic account of EU implementation since it does not portray a member state as a unitary actor and views the constitutive parts. The EU appears to be particularly suited for the bottom–up approach to implementation (Heidbreder, 2017). For example, the variety of national policy and administrative styles appear to make developing workable policies from the top down a difficult challenge. The literature reviewed in this chapter presented the principal features of the bottom–up approach as: 1 2 3 4 5 6

begins with the actors rather than the problem ‘The living constitution matters’ (Hjern and Hull, 1982: 105) free to see all kinds of consequences able to deal with a policy problem with many actors better able to deal with strategic interaction networking methodology (Sabatier, 1986; Hjern et al., 1978).

The bottom–up implementation perspective denotes that networks, within which the field level decision-making actors carry out their activities, must be empirically constructed in order to obtain evidence of the complexity and dynamics of implementation. A greater fragmentation of actors is likely as a result of new public management reforms which have advocated the

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decentralisation of policy to the control of specialised implementing agencies. A second strand of thinking about the public sector relates to participation (Peters, 2001), which also decentres the process of governing, albeit differently. The argument is that if more actors are involved in the decision-making process this will make for better decisions and improve the quality of implementation. However, as the number of actors involved in implementation increases, a larger number of problems can result and the literature on implementation in federal systems supports the multi-level governance arguments (Mbaye, 2001). Non-compliance or variations in the application of EU law are regarded as the consequences of the differences in interests between these actors. In the Irish case, local authorities traditionally had an important role in implementing environmental legislation. If local authorities or other local domestic actors do not facilitate the introduction of new national law either as a result of bureaucratic drift or resistance, this will cause delay. The literature instructs that one reason why some of these actors may drift or resist is because they did not participate in the EU decision-making process (Lampinen and Uusiklyä, 1998). Actors may attempt to claw back what they perceive to have been lost at the EU level or the national actors did not take into account the street level. Other explanations may include the motivation and role played by private sector operators who have become an integral part of environmental delivery services following privatisation and the introduction of contracting out. Using the bottom–up methodology provides evidence for understanding the local implementation conditions in Ireland and the preferences of local actors. The difficulties with this method are revealed by factors such as: • ‘bottom–uppers’ being likely to overemphasise the ability of the periphery to frustrate the centre • prior efforts of individuals to affect participation rates are not being taken into account • failure to start from an explicit theory of the factors affecting its subject of interest. (Hill and Hupe, 2009; Goggin et al., 1990; Sabatier, 1986) In summary, top–downers view themselves as key actors since they frame many of the policy decisions. This does not necessarily ignore strategic decisions from other actors but illustrates where the locus of power resides in the political-administrative system. The bottom–up studies move into a realm where there is a more blurred distinction between policy formulation and implementation, or policy as evolution. The evaluative criterion is less clear in comparison to the top–down approach. This may be ‘anything the analyst chooses which is somehow relevant to the policy issue or problem’ (Sabatier, 1986: 33).



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It does not require the careful analysis of official government (or EU) decisions but rather focuses on discovering the strategic interaction among multiple (local) actors. The strength and utility of this approach is to understand the implementation structure better and, hence, the process. Europeanisation and new-institutionalism Implementation theory is complemented by theoretical perspectives from the Europeanisation and new-institutionalism literature. They attempt to understand processes of domestic change, performance and institutional accounts in response to EU policies or in studies of transposition which focus on selected directives. The interpretation of Europeanisation as predominantly about governance, and conceptualisations of Europeanisation as institutionalisation (utilising historical, sociological and actor centred institutionalism), have contributed to understandings about the implementation of EU legislation and its impact on the domestic polity, policies and politics. The findings of the case studies in environmental policy are located in a particular historical and cultural milieu as opposed to occurring in isolation of political events and their surroundings. As the new institutionalists assert, ‘the organisation of political life makes a difference’ (March and Olsen, 1989: 747). Formal and informal institutions have important structuring effects on implementation outcomes and, as noted, ‘thick’ descriptions provide rich accounts of culture and inform judgements about the possible transferability of findings to other milieu. This is relevant for studying the implementation of EU environmental policy since efforts to give effect to EU policy commitments can induce institutional change. A recasting of implementation models with Europeanisation approaches can demonstrate connections and patterns that have not previously been highlighted in studies of Irish environmental governance. The theoretical framework for the study represents a cross-fertilisation of approaches. A presentation of implementation conditions is presented in figure 2.1. The figure acknowledges the diametrical characteristics of both top–down and bottom–up approaches. However, it also brings them together to acknowledge that explanations of implementation within the domestic polity, politics and policy process benefit from exploring both approaches. The top–down approach characterised by features such as rational prescription, prediction, elite led policy, hierarchy, stagist approach to policy making and administrative execution evolves into explanation (description), decentralised problem solving, participatory approaches and fusion. The hierarchical approach to the way organisations and administrative systems work becomes mediated by actors who may be operating with different assumptions from those formulating the policy, leading to different interpretations and modifications. Top–down and bottom–up activities have their strengths and weaknesses, but are potentially mutually supportive, together contributing to a gradual process of change.

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Top–down

Bottom–up

Central locus of authority (cabinet, departments, agencies)

More dispersed loci of authority

Clear and consistent objectives

Begin with the actors rather than the problem

Adequate causal theory

Networking

Legal structure Hierarchy

Territorial features

Socio-economic conditions

Understanding local conditions

Committed implementing officials and support of interest groups Predominantly public actors

‘Living constitution’ matters Partnerships across government, private sector, civil society

Figure 2.1  Features of top–down and bottom–up approaches to implementation

The conditions and features in the model inform the case studies discussed in Chapters 5–7. Chapter 3 provides a context for investigating the implementation of environmental policy in Ireland by presenting an overview of the development of EU environmental policy. Note 1 Advocacy coalitions consist of actors from a variety of institutions who share a set of policy beliefs (see Sabatier, 1999). Epistemic communities also contain actors with shared beliefs and a common policy focus which may be coordinated cross-nationally.

3

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Developments in EU environmental policy

Two issues stand out: the extent of our knowledge about the state of the environment and how it is safeguarded; and effective ways of dealing with problems on the ground. (Janez Potočnik, Conference on the Communication on Implementation, Brussels, 15 June 2011)

Introduction The EU has pioneered actions and responded to social concerns regarding the state of the environment. Despite humble beginnings EU environmental strategy has evolved into an autonomous policy area as opposed to a mere appendix to economic integration (Krämer, 2006; Hildebrand, 1993). It is now impossible to understand the environmental policy of any member state without taking into account an understanding of EU environmental policy. This chapter presents an overview of how environmental policy has advanced to become one of the most developed areas of EU policy making, making it a most likely case for Europeanisation. It is argued that the progress of EU environmental policy illustrates efforts to encourage convergent standards and strengthen national regulation among member states. The ultimate success of this policy area, however, is reliant on effective implementation and compliance within the member states. The chapter illustrates that EU environmental policy has made a greater mark on member state policy than politics and polity and that this inhibits its transformative capacity. The discussion commences with a commentary on international and EU developments in the environmental policy sphere which have become intertwined with an agenda of sustainable development and climate action. An analysis of the features and principles of the EU environmental policy process is examined, including the traditional ‘command and control’ system, efforts to include approaches increasingly linked with new forms of regulation, the introduction of new policy instruments and networked forms of governance. These initiatives are linked to recognition of the extent of the implementation challenge. Examples of how EU actors and institutions have advocated strategies

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to consolidate policy and understand the genesis of the implementation deficit are also identified. To underpin this and provide a context for the empirical cases investigated in Chapters 5–7, the environmental, social and economic problems of three major environmental areas –waste management, water and biodiversity – are considered concurrently with an overview of EU policy responses. EU and international environmental policy developments Although evidence of actions to protect the environment may be traced back to the nineteenth century it wasn’t until the late 1960s that environmental policy emerged as a central governmental concern and multilateral activity. In 1957 the Treaty of Rome established a Common Market and actively promoted a ‘continuous expansion’ in its activities without direct mention of the necessity for environmental protection (Hildebrand, 1993). The first significant political statement from the Community on environmental issues was the Commission’s communication on a community environmental policy adopted in 1971. On the basis of this, the member states reached a political agreement on the guiding principles of an environmental policy at a European Council meeting in Paris in 1972. This initiative was influenced by the conference on human environment convened by the United Nations in Stockholm, also in 1972. The Stockholm Conference raised awareness of the growing seriousness of environmental problems and led to the establishment of the United Nations Environment Programme which continues to act as an anchor to pursue environmental protection on a global platform. Despite agreement on guiding principles the early European environmental policy was developed in an ad hoc manner since it lacked formal legitimacy in the Treaty of Rome. The initial approach from 1973 was the launch of a series of Environmental Action Programmes (EAPs) by the European Commission.1 The EAPs presented a broad non-binding framework of principles and objectives into which more detailed pieces of legislation would need to be inserted. Over time, Article 100 EEC became regarded as the legally secure and less politically contested vehicle to advance environmental legislation. This aligned the ethos of a fledgling environmental policy to the harmonisation of national rules on industrial pollution in order to eliminate trade distortions between member states in an emerging common market. Although the early EAPs were largely aspirational, sufficient progress was evident in that by 1980 some fifteen EEC directives relating to water, waste and air were established, as well as regulations dealing with waste and air (Jordan, 1999). This was during a period of international economic turmoil due to the oil crises and the subsequent period of ‘Eurosclerosis’ that engulfed the Community. By the mid-1980s environmental issues had sufficiently entered

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the mainstream political agenda which began to stimulate awareness and re-orient the strategy of environmental advocacy from confrontation to one of building consensus. The environment had also reached a level of issue particularity internationally as a result of the attention to problems such as acid rain, the depletion of the ozone layer and the Chernobyl nuclear reactor disaster in 1986. The entry into force of the Single European Act (SEA) in 1987 finally underpinned the Treaty basis for environmental policy and significantly took into account environmental protection in the completion of the internal market. Three articles numbered 130r, 130s and 130t (now amended to TFEU Articles 191, 192, 193) provided for the principles and objectives of European environmental policy, legislative process, and the possibility of member states adopting more advanced environmental standards at the domestic levels (Delreux and Happaerts, 2016: 25–8). During the 1990s the institutionalisation of EU environmental policy was further addressed by the establishment of the EEA in 1993, further treaty revisions which reformed decision-making processes and the emphasis on new policy instruments. The Treaty on European Union (TEU) (1993) and the Treaty of Amsterdam (1997) adopted new principles and the mainstreaming of sustainable development as an overarching policy objective. The latter advocates that all policy measures should be framed within the wider context of sustainability and is complemented by the EU sustainable development strategy (and subsequent revisions) adopted in Gothenburg in 2001. The TFEU incorporated all six principles of environmental policy – precaution, preventive action, rectification at source, polluter pays (under Article 191), environmental integration (Article 11) and sustainable development (Articles 3 and 11). Despite institutional gains, momentum slowed and the Treaty of Lisbon included little by way of environmental content suggesting that ‘the legal underpinning of environmental policy had essentially been settled by the late 1990s’ (Benson and Jordan, 2010: 363). By this time climate action was firmly on the EU agenda and influenced legislation developed from the early 2000s, notably the directive on the Emissions Trading Scheme which created a market for emissions trading in the EU. The crisis from 2008 may not have directly targeted environmental policy but it did divert attention from it given the enormity of the economic and financial woes. At this point the EU had embraced the ‘better regulation’ agenda, along with attempts since the 1990s to improve the application of existing environmental rules. This was essential given that the enlargements of the EU made over a hundred million additional citizens subject to the impact of the environmental acquis. What the crisis did prompt was a reframing of discourse and strategy in terms of ‘green jobs’ or the ‘low carbon economy’, whereby the ‘Europe 2020’ growth strategy directly acknowledged sustainable growth. With the commencement of the Juncker Commission in 2015 the responsibility for environmental issues

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also stretched to incorporate a vice-president portfolio in energy to oversee sustainability issues, in addition to the Commissioners for Climate Action (and Energy) and Environment. Internationally, the development of a strong environmental policy overseen by political authorities to correct for market failure has enhanced recognition of the EU as a ‘regulatory state’ (Majone, 1996). The enlargement to 27 member states (taking into account the UK’s decision to trigger Article 50 of the Lisbon Treaty) also makes the EU a significant economic weight in the global economy. It enables the EU’s international leadership, represented by the European Commission, in resolving the trans-boundary dimensions of environmental problems. This is most apparent in cooperation with international fora such as the World Trade Organization (WTO) and UN and the discourse is broadening to advocate a balance between environmental sustainability and competitiveness. Arguably, this may be interpreted in light of self-preservation, and EU leadership on environmental policy may be explained by ‘a model of regulatory politics that combines the effects of domestic politics and international regulatory competition’ (Keleman, 2010: 336). International environmental agreements can legitimise existing EU rules and avoid a ‘race to the bottom’ whereby standards are reduced to the lowest common denominator in order to maintain competitiveness. To this end the EU has led efforts to ‘green’ international trade institutions like the WTO and shield its own rigorous environmental standards from being struck down as illegal non-tariff barriers to trade (Keleman, 2010). In addition, threats such as climate change and poverty are inherently global and need to be reconciled at the international level as well as through policy responses across sectors. In alignment the EU participates in the UN Conferences on Sustainable Development such as the Rio+20 Earth Summit in June 2012. These commitments and the subsequent regulatory, reporting and monitoring processes promote sustainable development and have in turn slowly been reflected in EU environmental policy. Although there is a risk that outcomes become represented as a renewal of political rhetoric rather than concrete actions, the EU also has an opportunity to exercise influence in complex negotiations through the presentation of a unified external position. The EU’s changing internal political and legal conditions during the 1990s enabled more progressive positions which are illustrated in the negotiation of the Kyoto Protocol at the Conference of Parties (COP) 3 in December 1997. At Kyoto the EU exerted significant influence and the introduction of legally binding targets to reduce emissions was achieved. In contrast, the difficulty of achieving a win-win outcome in international negotiation is illustrated in COP15 in Copenhagen which failed to produce a legally binding global climate treaty to succeed the Kyoto Protocol. The disappointing result questioned the EU’s competence and capacity to act globally and the EU learned important lessons from COP15.



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It adapted its leadership strategies in order to achieve a more meaningful outcome with the Paris Agreement at COP21 in 2015 (Parker, Karlsson and Hjerpe, 2017).

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Environmental policy making This section interprets the dynamics of the EU environmental policy making which is an outcome of alliances and bargaining among the EU member states and between the EU institutions. The member states have different commitments to the active promotion of sustainable development and despite well documented evidence of environmental threats, it is difficult to unseat the belief that furthering environmental protection will be at the expense of economic development. The European Commission is a central actor in environmental policy making through its roles of executive, policy initiator, external representation and its aim to ensure compliance with EU law. The European Commission is formally independent but it is highly responsive to national initiatives either to reconcile environmental and internal market aspects, or to address international environmental problems. Early directives largely owed their existence to their lack of conflict with the interests of the established and powerful directorates in trade and industry (Haigh and Lannigan, 1995: 22) and environmental affairs received full status of Directorate General (DG) in 1981. As well as the designated portfolios assigned to the separate Commission DGs, the sector has its own council, pro-active European Parliament Committee on Environment, Public Health and Food Safety (ENVI) and distinct set of lobby groups. This illustrates the challenge of synchronising policy in areas like Agriculture, Industry and Energy; breaking down boundaries and avoiding turf wars over environmental initiatives that impinge on sectoral interests. With the European Parliament (EP) the Commission developed clear incentives to encourage a strong EU role in the environmental area. As a policy shaper it became instrumental in seeking opportunities for agenda setting and progressing initiatives under the rubric of the Monnet method of decision making. The structural reforms associated with the euro crisis, however, absorbed the Commission’s energies and strengthened the role of the Commission presidency. The greater attention to the internal agenda has contributed to a shift in environmental policy making towards ‘passive policy dismantling’ and a decrease in ambitious policy proposals (Steinebach and Knill, 2017). From the 1970s environmental developments stemmed from coalitions of policy makers including the Commission, the EP and national governments that successfully navigated economic concerns and reconciled differences to secure agreements on environmental innovations. The EP has the status of a co-legislator on environmental affairs and is regarded as a champion of environmental protection in the legislative process. Under the ordinary legislative

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procedure the EP and the Council are on an equal footing in the policy-making process whereby both institutions have to agree to adopt EU environmental legislation. The EP also has a veto power in the EU’s ratification decisions on international environmental agreements. It acts as a source of political pressure on other actors to work together in networks, and its Petitions Committee is active in hearing environmental complaints. Ironically, while in the traditional sense there is no government to control, the EP exerts more influence on environmental measures than many national parliaments do. But its vocal and radical support for the environment is deemed to have waned somewhat since the early 2000s as its amendments to Commission proposals became fewer and less ‘green’ (Burns et al., 2013). In contrast, the European Council has never taken a very active or sustained role in environmental policy making (Benson and Jordan, 2010) though the emphasis on climate change politics provides impetus. In terms of environmental non-government organisations (ENGO) while environmentalists in Europe have not gained the prominence of their US counterparts in litigation; the European Environment Bureau acts as an umbrella federation for 31 countries to coordinate their work in Brussels. Overall, the ENGO sector has become increasingly ‘Europeanised’ through their focus on the legislative process and oversight roles. The Court of Justice of the EU plays a pivotal role although, unlike the Commission, Council and EP, it is not directly involved in EU environmental policy making. The Court has advocated a repeatedly pro-environment interpretation of the Treaty in its various judgements though an adequate conceptual basis for its approach has not always been evident (Jacobs, 2006: 194). It has issued over 700 judgements dealing with environmental issues, accounting for approximately 9 per cent of all Court cases (Krämer, 2016). Although a majority are the result of infringement proceedings against member states these judgements have been crucial for the legitimacy of environmental measures. A key task of the Court is balancing the often conflicting requirements of market integration with those of environmental protection.2 The Directive 2008/99/ EC on the Protection of Environment through Criminal Law also has the potential to transform enforcement in ensuring that environmental rules are fully effective. It obliges member states to impose criminal penalties in their national legislation in respect of serious infringements of European legislation. New departures in environmental policy making and efforts to achieve compliance are demonstrable in the recalibration of environmental policy instruments and in applying new modes of governance to complement their application. A feature of this strategy is to shift away from the traditional command and control approach and its emphasis on direct regulation and uniformity. New Environmental Policy Instruments lead to a broadening of the spectrum of actors with greater consideration to cooperation, self-regulation, and the use of ‘soft law’ such as voluntary agreements or economic incentives.

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The Emissions Trading System is an addition to the toolbox of policy instruments in the form of a market-based instrument that offers polluters economic incentives to reduce their emissions by creating a market in which tradable allowances are bought and sold. The diversification of policy instruments is embedded in a re-orientation in modes of governance towards participatory and network style forms of policy formulation and implementation, though very few of these approaches are actually devoid of state involvement (Jordan, Wurzel and Zito, 2005). The moves to develop partnerships, participation and networks can also be frustrated by the negotiating style of national participation in EU decision making. Implementation actors and target groups need to be incorporated more concretely in order to avoid political decisions that are out of step with the reality on the ground. Part of the complication with EU policy implementation is that in EU parlance, implementation is interpreted by many as: Has European legislation been correctly transposed into the national legislation of the member states? Therefore, a directive may not have been implemented in the usual sense of the term (see Falkner et al., 2005; From and Stava, 1993). In conclusion, planning, market-based and information instruments can be effective and enhance the flexibility of EU environmental policy. But they can also become encumbered by the methods and practices of traditional government and administrative tradition. An element of hierarchical steering from governments is entailed since additional policy instruments have not supplanted regulation, though shifts towards governance will further adjust relationships between actors. EU implementation challenges The environmental acquis is broad, ambitious, complex and presents equally demanding implementation challenges. This includes insufficient attention paid to deadlines and completeness during the adoption of legislation, shortcomings in skills and awareness in national and regional administrations, weak administrative capacities, ineffective enforcement policies and practices, inappropriate sanctions, insufficient data under-investment and delayed investment in necessary infrastructure. Poor or incomplete implementation gives rise to economic and social costs as well as environmental degradation. The variation in implementation record among member states also militates against the functioning of the internal market (EC, 2016). This contradicts the aspirations of the Seventh EAP which prioritises better implementation and the need to support member states in efforts to improve it. In all, the environment remains a sector with a high number of open cases and the majority of cases are infringements under Article 258 TFEU. For example, out of a total of 893 new infringement cases launched in 2014, 174

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35 30 25

15

Ar cle 260 TFEU infringements for DG Environment (year end 2017)

10 5 0 Austria Belgium Bulgaria Croa a Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden United Kingdom

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Figure 3.1  Article 260 TFEU infringements for DG Environment (year end 2017)

cases were in the environmental field. Under Article 260 TFEU the Commission has the authority to refer a case back to the Court if a member state fails to comply with an earlier judgement and financial penalties can be imposed. The scale of implementation difficulty in the environmental sphere compromises the EU EAPs and, as a consequence, the Commission is beginning to take more ‘horizontal’ cases which address systemic problems or those with a broad scope in areas like waste, water or air quality. The scoreboard result in figure 3.1 indicates that member states are not a homogenous group. Nor can a clear distinction be made in relation to small or big states. Small states face structural disadvantages in day-to-day EU policy making, since they all have less voting power, less economic and financial capacities and fewer staff in the ministries back home (Panke, 2010). Yet they differ in their responses to these structural disadvantages. Other issues that bear weight in explanations are the level of economic development and how advanced the environmental regulatory framework is. The latter is likely to align with wealthier member states that are deemed to have more environmental policy preferences and action capacity (Börzel, 2002). The impact of the crisis from 2008 also affected member states’ performance in terms of directing resources to enforcement activities. The implementation dilemma itself has been described as a policy problem without a political solution (Jordan, 1999). Yet over the past twenty years several initiatives have been introduced to enhance and improve the implementation

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of EU environment laws in order to build citizen confidence in their public administrations and promote a level playing field. Attention has also shifted from the creation of new rules towards the better application of existing rules. For example, as far back as 2001, the White Paper on European Governance alluded to the implementation deficit: ultimately the impact of European Union rules depends on the willingness and capacity of member state authorities to ensure that they are transposed and enforced effectively, fully and on time (White Paper on European Governance, COM (2001) 428 final: 25). The White Paper suggested reforms such as setting up coordination units within central governments to improve enforcement and encouraging national courts to take a more active role in controlling the application of Community rules (Petter Graver, 2002). The development of ex ante methods such as capacity building networks, training in EU law, benchmarking excellence and twinning arrangements are examples of instruments to improve implementation effectiveness. Financial assistance under the structural and cohesion funds and programmes LIFE and ENVIREG facilitated member states in complying with restructuring and implementation. An association called the Implementation and Enforcement of Environmental Law (IMPEL) was also established. IMPEL originated in 1993 as an informal network of European regulators and authorities concerned about environmental implementation and in conjunction with its IMPEL Review Initiative Tool (IRI) has gained credence over time. It provides a framework for policy makers, environmental inspectors and enforcement officers to exchange ideas, and promote the development of enforcement structures and best practices on the ground. Its work is recognised in the seventh EAP’s (EC, 2013) commitment to revising the EU legal framework on environmental inspections and sharing best practice. A European Forum of Judges for the Environment promotes the enforcement of national, European and international environmental law by contributing to the better knowledge of judges in environmental law. The Commission also meets annually with the member states and relevant stakeholders, including national experts in the Technical Adaptation Committee, high-level meetings of environmental directors, expert meetings and stakeholder consultations. These meetings facilitate the exchange of best practice, discussion of implementation issues and clarification of legislation, and are complemented by compliance promotions by the Commission (EC, 2009). As a small administration the Commission does not have the resources to assume the role of inspectorate but it regularly receives a large number of complaints, petitions and letters from citizens, NGOs and other EU institutions, constituting vital sources of information about the actual state of implementation. The contradictory nature of some of this information relative to information provided by national authorities is contentious and creates difficulties for the Commission to fulfil its role of guardian of the treaties. The EP has given

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strong backing to the principle of an EU environmental inspection force in order to hold states more accountable over implementation. Since 2009 complaints are recorded in a central registry and new problem-solving approaches have been deployed in the so-called package meetings with national officials. In March 2012 the Commission adopted a communication entitled ‘Improving the Delivery of Benefits from EU Environment Measures: Building Confidence through Better Knowledge and Responsiveness’, which complemented its earlier 2008 initiative on implementing environmental law. It set out suggestions to improve implementation on the ground and emphasised further support for European networks of environmental professionals. The national authorities at regional and local levels comprise a distinct target group, as they have crucial responsibilities in regulatory areas. Their increasing involvement in the EU policy-making process is regarded as both an opportunity and a risk (Borghetto and Franchino, 2010). Therefore opportunities to provide sub-national authorities with increased knowledge of EU policy objectives, working methods and instruments to improve enforcement are essential. The communication also outlined criteria for how member states should deal with citizen complaints and address the Aarhus access to justice principles in environmental decision making.3 The broader impact of Commission enforcement of environmental legislation was explored in a study to assess the benefits delivered to the EU in 2016. The analysis indicated that the requirement to address infringements cases led to positive developments in the creation of new policy instruments, citizen involvement, gradual improvement of the legislation and a targeting of more broader, systemic problems in how member state administrations applied regulation (EC, 2016). A newer contribution to the range of initiatives is the Environmental Implementation Review (EIR) which was launched in May 2016. The EIR is affiliated with greening the European Semester and it is a two-year cycle that aims to deliver the benefits of environmental policy to business and citizens through supporting better implementation and troubleshooting problems before they manifest as infringements. The cycle begins with country reports – the first set of which were published in February 2017. The second part consists of country dialogues and the Commission highlights the implementation difficulties common across member states in communication with the Council of the EU, EP and Committee of the Regions. Owing to the voluntary nature of the EIR and the belief that cooperation is the member states’ interest, the initiative for country dialogues with DG Environment has been left with the member states. The three cases – waste, water and biodiversity – are introduced in the following sections. Each represents the accumulation of considerable expertise and understanding of their significance for a good environment at the international, EU and national levels. Waste, water and biodiversity are characterised



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by implementation challenges and together count for 61 per cent of the environmental sector infringements in 2017 (http://ec.europa.eu/environment/ legal/law/statistics.htm; sourced 26 March 2018).

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Waste management An EU approach to waste management is based on three principles within the waste hierarchy – prevention, recycling and reuse – and improving final disposal and monitoring. Waste management is a complex environmental problem that emphasises the quandary between economic competitiveness and sustainability. From 2007 a slight downward trend in waste generation was recorded due to the economic crisis (EEA, 2014). Waste generation and treatment indicators suggest that ‘without additional waste prevention policies, waste generation is expected to increase by seven per cent from 2008 to 2020’ (EC, 2011b: 8). At 60 per cent, the most waste in Europe is generated from construction, demolition activities and mining; whereas municipal waste constitutes 10 per cent. Although traditionally approached from a predominantly engineering, economic or managerial point of view, the societal and political questions surrounding waste have gained prominence. Arguably the ‘history of environmental policy in the EU begins with waste policy’ (EC, 2005: 8) as the first waste framework directive was adopted in 1975. This was followed by a range of EU measures addressing specific issues such as hazardous waste, waste shipment, polychlorinated biphenyls, packaging and the landfilling of waste. The early directives set out a set of general measures applicable in all member states, and were rapidly followed by a range of specific actions on hazardous waste, packaging and the landfilling of waste. The development of waste legislation was also prompted by several scandals related to the handling of waste. The Seveso Waste Shipment scandal,4 for example, altered policy maker’s attitudes to the potential impact of poorly managed waste. Waste scandals precipitated increasing hostility among local communities towards the designation of new landfill sites and the impact of emissions from incinerators on human health. The Community strategy for waste management adopted in 1989 sought to allay concerns with unrestricted waste movements within Europe and introduced the proximity principle.5 The Directive on Integrated Pollution Prevention and Control (IPPC) introduced in 1996 advocated a permit system to tackle pollution from industrial and agricultural facilities and set standards for several waste-related activities. Attention then shifted towards policies and legislation designed to minimise the generation of waste, move the emphasis from end-of-pipe technologies and towards securing the re-utilisation and resource use of waste. The emphasis on a life-cycle approach to waste is illustrated in the 1996 Waste Strategy Communication which reinforced the concept of a waste

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hierarchy, reaffirmed the ‘polluter pays’ principle6 regarding waste (such as producer responsibility) and developed the concept of waste streams (for example electrical and electronic equipment, end-of-life vehicles, packaging waste). The Thematic Strategy on Waste Prevention and Recycling (COM (2005) 667) provided the basis for an upgrade of EU waste policy in 2010 (in alignment with the strategy on the sustainable use of natural resources). A revised Waste Framework Directive 2008/98/EC restates the waste hierarchy and constitutes a modernisation and simplification of the existing legal framework to promote waste prevention, reuse and recycling, with waste disposal only as a last resort. The directive did not set binding targets for waste prevention despite pressures from the European Parliament. Instead, national governments were given five years to set up national waste prevention programmes in an effort to improve implementation. By the end of 2014 27 national and regional waste prevention programmes were adopted in 24 countries (EEA, 2014). Of particular interest to this study is a ‘daughter directive’ on landfill (99/31/ EC). Given its ethos to divert waste towards recycling and biological treatment, it is a major driver for the development of waste management policies at the national level (EC, 2005: 11). It lists a number of requirements for member states in order to ensure that the negative effects of landfilling on the environment are kept to a minimum. It provides technical requirements for the operation of landfills and sets up a system of operating permits for sites. Additionally, the directive set member states specific targets for the reduction of the use of landfill and each member state is obliged to produce a National Biodegradable Waste Strategy. The landfill directive did not give countries binding specifications on what to do with municipal solid waste: a situation that led many member states to opt for incineration. The circular economy package adopted by the Commission in 2015 includes more ambitious targets for recycling municipal and packaging waste, including a landfill ban for separately collected waste streams. The practical implementation of the landfill directive is variable across member states but the rate of municipal waste landfilling still fell from 49 per cent in 2004 to 34 per cent in 2014 (EEA, 2017; Eurostat, 2016). The member states still largely dependent on landfill are Cyprus, Malta, Croatia, Latvia and Greece. Norway, Ireland and Poland significantly reduced the proportion of municipal waste going to landfill between 2001 and 2010 (EEA, 2014). A key challenge is more waste separation since only 19 per cent of waste is collected separately in the EU28 capitals (EEA, 2014). The highest recycling rates occur in Austria and Germany – with the UK and Ireland demonstrating the fastest increase in a decade. Increasing recycling rates and declining rates of landfilling are linked and EEA countries achieved an average total recycling rate of 33 per cent in 2014, compared with 23 per cent in 2004 (EEA, 2015). This is substantial progress

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but the EU targets themselves are highly ambitious and the large differences between member states makes the 50 per cent recycling target by 2020 difficult to achieve. What can be deciphered from the overview is that although EU waste policies have not achieved the foremost objective of prevention, developments since 1975 have resulted in a quite formidable regulatory framework comprising a complex network of legislation at EU and national levels. The implementation of waste policy remains a key priority for the European Commission and this is confirmed in the Seventh EAP, the Roadmap to a Resource Efficient Europe (EC, 2011c) and the Circular Economy Package which includes an ‘EU Strategy for Plastics in the Circular Economy’ presented in January 2018. Water Water is a critical resource for the entire planet and is essential for supporting all life. Disruptions to the water supply through periods of drought and flooding upsets the quality of life, food supplies and economic activity. Such events are likely to become more frequent and extreme according to predictions on the impact of climate change (EEA, 2017). In addition, water scarcity or ‘stress’ has been a particular challenge in Southern Europe for several decades. The effectiveness of water governance is an imperative that must ensure policy coherence with energy, agriculture and planning policies; plus engagement with all relevant stakeholders across the EU at different levels of government. The Citizens’ Initiative on the human right to water also emphasises the importance of dialogue and effective implementation of the water framework directive (WFD). Water is an EU environmental sector expressed in approximately thirty water management directives (McNally, 2009; Lanz and Scheuer, 2001). Its early policy development was characterised by harmonisation to remove trade barriers and protect public health. Between 1975 and 1980 several directives and decisions were introduced to set standards for waters intended for particular uses, including bathing and drinking, and controlling the discharge of particular harmful substances into surface and ground water. Developments waned during the 1980s but by 1991 directives on Nitrates (91/676/EC) to curb agricultural pollution and an Urban Waste Water Treatment (91/271/EC) were introduced. Despite this wide-ranging legal framework EU water legislation was criticised for not being developed out of a clear concept whereby fragmentation led to conflicting and sub-optimal practical interpretations in implementation (Barreira, 2006). By the mid-1990s the Commission, European Parliament, NGO sector and scientific community all called for a reconsideration of the approaches to water. A communication defining the basis for a new European water policy

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was adopted (CEC, 1996) and aligned to this was recognition of the precautionary and polluter pays principles. The adoption of the Water Framework Directive (WFD) (2000/60/EC)7 as an overarching harmonisation of existing EU water policy was an arduous process and a political struggle which took careful stewardship between 1998 and 2000. Arguably, the passage of the WFD is ‘central to debates about a putative shift of institutional power from the Council of Ministers towards the European Parliament in environmental matters’ (Page and Kaika, 2003: 1). The directive was created through the co-decision process and, following the differences in standpoint between the institutions, was concluded through a conciliation process in June 2000. The directive streamlines water legislation through repealing seven earlier ‘first wave’ directives, one regulation, and affects a number of other pieces of water legislation (Keessen et al., 2010: 197–221). The drinking water and bathing water directives, however, remain as free-standing directives. Central to the WFD is the goal of effective water governance at EU level through a coherent and effective legal framework, water pricing policies, public participation and an integrated water resources management system (Barreira, 2006; Page and Kaika, 2003). The directive sets out the aim of achieving a ‘good status’ for European waters by 2015–17 and emphasises the need to improve water efficiency in sectoral policies such as agriculture. This shifts policy from concentrating on the protection of waters of special interest (e.g. drinking water), to protection through an overall awareness of the entire natural cycle of a river basin. River basins are units comprising the areas of land and sea, made up of one or more neighbouring river basins, together with their associated ground and coastal waters (Barreira, 2006: 81–2). Water management is therefore based on the geographical areas of river basins rather than on administrative and political boundaries in order to protect water resources in an integrated way. To complement the WFD, a Floods Directive 2007/60/EC requires national administrations to assess and map flood risks and hazards and to manage them by putting in place flood risk management plans. The implementation of water legislation remains problematic, however, and the complex package of objectives, instruments and obligations that comprise the WFD are set against a background whereby hardly any water directive was ‘fully implemented and enforced in the prescribed way or by the prescribed deadline, nor have its objectives been achieved’ (Keessen et al., 2010: 12). Shortly after entry into force of the WFD a Common Implementation Strategy was introduced in 2001 to bring together national experts and stakeholders through the development of advisory groups and non-binding guidance documentation. This is an acknowledgement of the shared technical challenges since many of the European river basins are international, crossing

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administrative and territorial borders. This requires a common approach in order to successfully drive the implementation of the directive. Water is also one of the fields selected in 2010 for the ‘Fitness Checks’ that form part of the European Commission’s Smart Regulation policy, which means that evaluations are conducted to identify what works and what doesn’t work well as a means of improving the overall performance of directives in all member states. This is demanding, as almost half of Europe’s water bodies were projected to have poor ecological status in 2015 (EEA, 2013). Overall, the programmes are organised around six-year management cycles – 2015, 2021, 2027. The identification of River Basin Districts (RBDs) and Authorities took place in 2003 which coincided with the deadline for the transposition of the directive. Few member states met the required deadline and the Commission launched eleven infringement cases whereby the European Court of Justice (ECJ) ruled against five member states for non-communication (CEC, 2007). Although member states have since managed to navigate the roadmap of the directive and submit river basin management plans (RBMPs), delivering the environmental objectives remains formidable. The slow implementation progress is partly a reflection of the directive’s “revolutionary ambition” in how waters in Europe should be managed, EU and national interpretation, and possibly weak enforcement mechanisms (Voulvoulis, Arpon and Giakoumis, 2017). The fourth implementation report published in 2015 builds on assessments of the RBMPs available in 2013 and identified that most member states have difficulty with the implementation of their programme of measures (EC, 2015a). In 2018 the second set of plans were completed. Public participation is also an important aspect of the directive since meeting the objectives of RBMPs involves balancing interests and ensuring transparency, and requires citizen and NGO cooperation to ensure enforceability. Article 14 of the directive refers to widening participation in water policy making through public access to information and extensive consultation. Most member states have opted to work within existing traditional administrative structures and assign a competent authority to manage the catchments. This is observed as a potential barrier to the effective integration and governance championed by the directive (Vouloulis, Arpon and Giakoumis, 2017) and risks institutional ‘misfit’ between management structure and catchment management requirements (Moss, 2003). Accordingly, centralised decision making can lead to missed opportunities for public involvement or a lack of priority for new participatory forms of water governance. The public is very sensitive about whether water should be regarded as a commercial product. The issue of water pricing is controversial even though there are significant costs in relation to supplying water and in addressing pollution. The provision of ‘full cost recovery pricing’ (drinking, irrigation

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and industrial) is a means of determining realistic pricing to promote careful use of water resources. This is stressed in studies indicating that households use around a third less water when they are charged for the actual amount they use (EEA, 2013). Member states are required to ensure that the price charged to consumers for fresh water and for the treatment of waste water will ‘take into account’ the full environmental costs (Page and Kaika, 2003: 5). For many countries charging for water has a long tradition but measures to ensure the recovery of environmental and resource costs are limited. The lack of cost recovery and inefficient infrastructure only adds to the bill to be paid by the next generation. Issues around water have gained significant traction and interest from citizens. This is illustrated by the EU Citizens’ Initiative introduced in 2012 which is an example of participatory democracy designed to bring EU law making closer to European citizens. The ‘Water and Sanitation are a Human Right’ campaign secured close to 1.9 million signatures across member states forcing the Commission into an official position on the role of water in the EU. Biodiversity Biodiversity, notably the variety of ecosystems and species, is the world’s natural capital and a long-standing environmental priority for the EU. Biodiversity loss is regarded as the most critical global environmental threat alongside climate change – and the two are inextricably linked (EEA, 2009). EU citizens live in one of the most densely populated global regions and have a long history of land use impacting significantly on nature. Between 1900 and the mid-1980s Europe had already lost two-thirds of its wetlands, and almost three-quarters of its sand dunes and heaths, resulting in large-scale nature destruction through a combination of land-use change, infrastructure developments, pollution and urban expansion (EC, 2015b). In terms of climate change mitigation, biodiversity makes a key contribution but its loss is also a victim of the effects of climate change. Declining biodiversity threatens human welfare, especially for the rural poor and indigenous communities whose livelihoods often depend directly on biodiversity and ecosystem provision through food, water and energy (OECD, 2014a). Biodiversity is also being eroded in Europe where recent data shows that 60 per cent of species and 77 per cent of habitats continue to be in unfavourable conservation status through habitat loss, pollution and over-exploitation (EEA, 2018). The EEA Environmental Indicator Report 2017 affirms that the EU has much to do in order to protect nature and strengthen ecological resilience since the EU’s natural capital is not yet being protected in line with the ambitions of the Seventh EAP. European policy on biodiversity is derived from two principal sources: United Nations Convention on Biological Diversity and EU strategies/

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directives, noting the current EU Biodiversity Strategy to 2020 which is the main framework for wider EU biodiversity goals. The European Community signed the UN Convention on biodiversity in 1992. The convention calls for each party to develop a National Biodiversity Strategy and Action Plan to guarantee that the objectives of the Convention are fulfilled in each country. In October 2010, the tenth Conference of the Parties to the Convention on Biological Diversity in Nagoya, Japan, agreed to a Strategic Plan for Biodiversity 2011–20 and the Aichi Biodiversity Targets. This plan provides an overarching framework on biodiversity, not only for the biodiversity-related conventions, but for the entire United Nations system and all other partners engaged in biodiversity management. In addition, a UN Intergovernmental Panel for Biodiversity and Ecosystems Services (an equivalent to the UN panel on climate change) promotes the significance of policy awareness to combat threats to ecosystems. Key pan-European developments such as the Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979) and the Berne Convention on the Conservation of European Wildlife and Natural Habitats (1979) provided the impetus for the EU to address its deficit in nature conservation policy. EU rules on biodiversity have also been driven by the necessity for compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora in (CITES) in 1975 which set up a system of permits and certification. In common with EU environmental policy more generally, an economic rationale was invoked to justify the Commission’s legislative proposals in environmental management. During the 1980s the lack of a standard EU-wide classification or inventory of threatened habitats and species was problematic and it was difficult to ascertain the extent of the biodiversity problem. Further, protected areas were presented in a confusing array of categories developed by a combination of national and international law (McCormick, 2001). The Wild Birds Directive, EC 79/409 introduced in 1979 aims to protect all wild birds through the protection of habitats (Article 1) whether threatened or not and the maintenance of bird population levels (Article 2). The directive establishes a system of designated sites for the protection of the natural habitat of the wild bird species called Special Protected Areas (SPAs). The broad structure of the provisions on wild birds is to first lay down the requirement to designate or establish the protected area in question and then to lay down the particular control or framework for control that is to operate within that type of protected area. Designation of SPAs was required by 1981 but progress was extremely slow and scarcely monitored by the Commission in the early years (McIntyre, 2002: 59). It is difficult to integrate the directive into national environmental policy and this is the focus of several CJEU judgements. It is most controversial among hunters and ‘a considerable number of cases before

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the CJEU have been concerned with the compatibility of national hunting rules within its provisions’ (McIntyre, 2002: 60). The Habitats Directive, EC 92/43 has similar measures but extends its coverage to around one thousand other rare, threatened or endangered species of wild animals, flora and fauna (McCauley, 2008; McIntyre, 2002). It is the cornerstone of EU biodiversity and nature conservation as the directive seeks to establish ‘favourable conservation status’ for habitat types and species of Community interest. The habitats directive also includes provisions for aspects of the birds directive and forms a central pillar of EU sustainable development policy (Morris, 2010: 362). As well as a framework for protected sites the habitats directive also guides decision makers in plans and projects that might affect protected species and areas (McCauley, 2008), thus extending to sectors like agriculture, fishing, urban development and road construction. This makes its policy implementation problematic. Central to the directive is the creation of a European-wide network of protected nature sites called Natura 2000 between 1992 and 2007. It is composed of SPAs under the birds directive and Special Areas of Conservation (SACs) under the habitats directive and now covers more than 18 per cent of the EU’s land and 4 per cent of Europe’s seas (CEC, 2018). Natura 2000 is the principal focus of the nature directives for creating a good/favourable status for species and habitats. The implementation of the directive can be divided into two phases, namely the designation and then the management of sites. In the first phase (three years) each member state needed to establish a list of proposed sites of Community importance and submit them to the Commission for approval. No member state met the 4 June 1995 deadline. In phase two of implementation member states are required to establish necessary conservation measures and management plans under Article 6 to maintain/restore sites. Regarding phase one the Commission initiated enforcement actions against 11 out of the then 15 member states, including Ireland in 2001. Greece and Germany had previously been reprimanded by the ECJ for having failed to transpose the habitats directive into national law by 1997 (McIntyre, 2002: 62). Overall, birds and habitats have proved to be challenging directives to implement and underscore the importance of the regional and local levels of administration. Financial instruments such as the EU LIFE programmes are designed to encourage the development of projects to improve the conservation status of species and habitats. Europe has designated approximately 17 per cent of its land area and a considerable offshore mass as part of the Natura 2000 nature protection network (EC, 2010). But this continues to face relentless pressure due to demographics, development, pollution, climate change and the spread of invasive species. Dunes, bogs and grasslands are the habitat groups with the worst conservation status. Habitats associated with traditional



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agricultural practices are in particular need of conservation action. A lack of public awareness of the consequences of biodiversity loss is also palpable. A special Eurobarometer report on attitudes towards biodiversity in 2015 recorded that only 30 per cent of EU citizens on average knew the exact meaning of the term biodiversity or had heard of the term. The proportion of respondents who said they have never heard of the term ranged from 17 per cent in Sweden to 65 per cent in Germany (Eurobarometer, 2015). Conclusion This chapter has discussed how EU environmental policy developed from the modest introduction of non-binding environmental action plans in 1973 to one of the world’s most rigorous regulatory frameworks in 45 years. It endeavours to raise and maintain environmental standards in all major sectors of the environment and the chapter has paid particular attention to the areas of waste, water and biodiversity. The expansion and embedding of EU environmental policy has also provided opportunities for the EU institutions to develop their role and status in the EU policy-making process. In particular, the European Commission cultivated its position as initiator of policy and also played a proactive role in progressing international negotiations on environment and climate action. In this way its leadership role as a policy entrepreneur and as the guardian of the treaties illustrates how it can imprint on state policy actions and accentuate its international credentials. In the twenty-first century climate action has emerged as an overarching political and policy priority for the EU and it demonstrates how the EU’s internal and external environmental policies are ‘deeply interwoven’ (Delreux and Happaerts, 2016: 229). Policy making in the original environmental sectors from 2005–10 approximately is characterised by a ‘back to basics’ approach (Benson and Jordan, 2010: 369) which has also been described as ‘policy dismantling’ (Steinebach and Knill, 2017: 440–1). This has emerged from the better regulation agenda and a decline in environmental policy activism in economically sensitive areas within the Commission during the crisis, as opposed to the decisionmaking deadlocks of the EU political-administrative system (Steinebach and Knill, 2017: 440–1). For the EU member states EU environmental policy has enabled environmental progress in a (global) way that they would never have accomplished individually. Brexit raises the question of what happens to environmental policy and practice when one member state leaves ‘the club’. Two issues to note are: what is the UK’s imprint on the development of EU environmental policy, what has it consisted of, and what form will their exit take? It is claimed that the UK has made important contributions to climate change targets, CAP, fisheries, the IPPC directive and, early on, with the

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habitats directive (Gehring and Phillips, 2018). The UK has demonstrated leadership in climate policy which may impact on commitments made by the EU to the Paris Agreement. Brexit also means that one of four member states with a common law system will be leaving the EU and, overall, common law thinking will be less influential (Gehring and Phillips, 2018). In turn, EU membership has provided the UK with a repertoire of environmental standards and fundamental principles, including the precautionary principle. A ‘Green Brexit’ may be a myth as rather than resulting in better environmental protection for the UK, Brexit might be the Trojan horse through which to lower the administrative burdens of compliance, and could pose a risk of environmental ‘dumping’. However, it has been noted that regardless of ‘hard’ or ‘soft’ Brexit, EU environmental law will still have considerable impact on regulation as importers have to comply with many EU environmental product and process standards when they trade with the EU (Burns, Jordan and Gravey, 2016). The ultimate success of the environmental policy area, however, is reliant on effective implementation in the member states. Efforts to improve EU implementation capacities continue to be promoted with the development of new monitoring instruments, such as the Environmental Implementation Review (EIR) initiatives and ‘fitness checks’. In January 2018 the European Commission launched an Action Plan to assist member states with the application of EU environmental laws. In March 2018 the European Commission launched a high-level expert group to help deliver the actions of the Action Plan on environmental compliance assurance and governance in 2018 and 2019. The Environmental Compliance and Governance Forum is composed of representatives from member states, and representatives of EU networks of legal, policing, inspection and environmental agencies. The chapter has explored the variety in implementation performance among member states and how implementation, both formal transposition and practical compliance, has become a salient and resource intensive issue for both the European Commission and the national, regional and local levels of governance. If non-compliance becomes the focus of an infringement procedure then the member state is referred by the Commission to the CJEU. This is the option of last resort and the Court has concrete sanctioning mechanisms at its disposal. Under Article 260 TFEU the Court can impose financial penalties if the member state is not complying with its rulings. By 2014, twenty-one cases had come under the rubric of this second round judgement (Delreux and Happaerts, 2016: 118). The second part of this book examines the environmental policy-making process in Ireland and focuses on waste (Landfill Directive 99/31/EC), water (Water Framework Directive 2000/60/EC) and biodiversity (Habitats Directive EC 92/43). No single source stands alone as the best for studying implementation and evidence is dispersed. The research evidence for exploring how Ireland

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translates EU directives into action was collected from multiple sources: documentary analysis and semi-structured interviews. The interviewees provided valuable commentary to help interpret Ireland’s implementation challenges. They are drawn from the European Commission, government departments, EPA, local government, ENGOs and the private sector, and the majority of them wished to remain anonymous. All three cases – waste, water and biodiversity – represent issues that are politicised at national and local level and are recognised as exemplifying implementation difficulties. They also demonstrate global challenges. For example, the challenges of conserving the world’s species are perhaps even larger than mitigating the negative effects of global climate change (EEA, 2018). This illustrates how significant EU and international cooperation is and how EU environmental policy and it implementation must be transformative in addition to the application of rules. Notes 1 The content of the four EAPs from 1973 to 1992 was largely prescriptive and top–down. A change in emphasis occurred with the Fifth Programme 1993–2000, which introduced sustainable development as the main objective of environmental policy. 2 Some cases have been landmark judgements in environmental policy. For example, the ‘Danish bottles’ case (Case 302/86 Commission v. Denmark [1988] ECR 4607 (September 1988)) resulted from a direct action brought by the Commission against a national regulation. In its judgement the ECJ confirmed that protection of the environment constitutes one of the Community’s essential objectives and upheld the national legislation. 3 The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus (Århus). It entered into force on 30 October 2001. The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective. 4 In 1983, forty-one barrels of dioxin waste turned up in an abandoned abattoir in Northern France. They contained contaminated waste materials from a chemical plant in the town of Seveso, Italy, resulting from a chemical accident in 1976. The waste had been transported to the Italian border and then disappeared for eight months before being located in France. 5 Proximity principle originated as a response to the threat that in a market without frontiers, waste would be drawn inexorably to the cheapest point of disposal within the Community. Such a principle has potentially more serious implications where the waste in question is a recoverable, tradable commodity (see Tromans, 2001).

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6 The ‘polluter pays’ principle has different interpretations and implementation. Many countries have institutionalised a shared financial responsibility between industry and local authorities (an exception would be Germany). In this scenario, the public finances approach takes the lead at the expense of a policy of integration of environmental objectives in the decision making of all relevant actors in the waste system. Variations in the implementation of the polluter pays principle may have a significant impact on industry. 7 The targets in the directive include RBMPs presented by 2008 and finalised by 2009; pricing policies introduced by 2010 and WFD objectives to be reached by 2015. The first management cycle ends in 2021 and the second cycle ends in 2027.

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EU environmental policy and Ireland: Actors, institutional adaptation and implementation The EU of course cannot really force member states to alter their domestic institutional architecture. It just keeps churning out relatively good environmental laws and hopes that some of these will eventually take hold and have an impact. (Flynn, 2007: 27)

Introduction The implementation of EU environmental directives within and across policy areas requires a well-coordinated institutional framework which is fit for purpose. This chapter appraises the framework for environmental governance in Ireland in a historical context. It considers how policy, politics and polity have shaped the development of an Irish policy style and presents an overview of the main actors, institutions and processes in the environmental field. The role of actors is further distinguished between those which engage (‘upstream’) with EU environmental policy making and actors who grapple (‘downstream’) with implementation. In order to contextualise the explanations of how environmental policy has evolved, this chapter identifies several landmark events in its development. The historical overview is illustrated with commentary on how environmental issues have been articulated, debated and politicised. The chapter charts the development of a fledgling institutional framework underpinned by a policy style exhibiting a lax attitude to environmental enforcement and its residual position in policy priorities. This outlook has transitioned over time to one of official recognition that the full integration of environmental policy must be addressed, however challenging. A poor implementation record and a profile of environmental ‘laggard’ is not acceptable. But has over forty years of EU membership, economic and social transformations resulted in better implementation and effective environmental outcomes? Central to the discussion is how Ireland engages with EU environmental policy making and what conditions arise to facilitate or obstruct implementation. Both national and local administrations require sufficient capacity to deal with technical regulation and new policy instruments. The Irish system’s efforts to

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emphasise clear provisions for transposition and administrative interpretation, in conjunction with efforts to streamline, provide opportunities for consultation and resource the political-administrative system are investigated. This demonstrates that the transposition of environmental directives is often driven by timeliness and consistent translation indicating strong conformity but poor application. The chapter also explores the extent to which the environmental policy-making process has been Europeanised. Since Ireland is a ‘downloader’ of EU environmental rules this has consequences for how policy measures are absorbed by domestic institutions. Implementation is mediated by characteristics of the political-administrative system in the challenge to find a ‘goodness of fit’ between EU policy content and the performance of formal and informal institutions necessary to give effect to it. The discussion on Ireland’s environmental policy architecture serves to unpack key variables for understanding the implementation of EU environmental policy in Ireland – salience of the environmental issue, goodness of fit, political-administrative culture, weak autonomy of local government, behaviour of target groups and capacity. The significance of these variables is investigated in detail in the empirical cases of waste, water and habitats. Context: institutions An interpretation of environmental governance should acknowledge the prominence of environmental issues on the national and local policy agendas. Historically, low levels of environmental awareness among policy makers and the public have typified national perceptions of environmental challenges in Ireland. Priorities have largely remained focused on economic development rather than countering threats to the physical environment. In terms of developing a robust regulatory regime, there is a broad consensus that the EU has been a major driver of Irish environmental policy (NESC, 2010). When Ireland joined the EU in 1973 an underdeveloped environmental regulatory regime was not out of step with other European countries as the environment was only beginning to emerge as a central area of government activity. Ireland could be differentiated from its EU counterparts, however, since it was a predominantly a rural society with agriculture as the principal economic activity. Ireland was correspondingly far less industrialised and urbanised in comparison to other member states and threats of environmental degradation were not as apparent. In contrast, large member states can trace their nascent environmental actions back to the nineteenth century (Flynn, 2007: 86). The institutional framework for Irish environmental governance is rooted in the architectural features of the Irish political-administrative system which are significantly shaped by the country’s political history under colonialism. Ireland is a unitary political system characterised by a strong executive and

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subordinate local authorities. Upon independence in 1922, the Parliament, government and public administration were all consciously modelled on British institutions. The Irish Constitution Bunreacht na hÉireann (1937) provides for a bicameral legislature – the Oireachtas composed of an upper house, Seanad Éireann, and a lower house, Dáil Éireann, together with the government and court system. The head of government in Ireland is the Taoiseach and the head of state is the President who is elected by the people every seven years. Central government is composed of fifteen departments of state and the ministers and junior ministers nominated by the Taoiseach. It is served by the civil service which is permanent, politically neutral and imbued with a public service ethos. Observable features of the political-administrative system are its centralised, sectoral and hierarchical characteristics (O’Malley and MacCárthaigh, 2012), strong party government and a legislature with relatively little policy effect (Hardiman, 2012; Gallagher, 2009). Central to the government apparatus are departments led by ministers who direct policy downwards throughout the rest of the public service and translate government objectives into workable policies. A sectoral approach has tended to influence the policy-making process and departmental responsibilities for the environment and local government can be traced back to 1938 when the first government agency for local affairs in Ireland was created (ORP, 2012: 69). It was not until 1977, however, that ‘Environment’ was acknowledged in the title of a government department. Prior to this the principal institution in existence was An Foras Forbatha, the National Institute for Physical Planning and Construction Research, created in 1964. This institute undertook work in the areas of conservation and amenity planning (heritage, tourism) until it was disbanded due to public finance cutbacks and transformed into an Environmental Research Unit of the Department of Environment in 1987 (Flynn, 2007: 90). The remit of the disbanded institute is instructive since it indicates that during the 1960s and 1970s environmental problems were generally perceived as issues connected to planning and heritage/ conservation. The institutional and policy vacuum at the national level for pollution control implied that local authorities were left to deal with environmental regulation without adequate guidelines or concrete policy initiatives. In contrast to the ‘rule making structures of environmental policy that emerged in Germany and the USA, Ireland opted for a more discretionary system based on voluntary codes of practice for regulated activities’ (Davies, 2008: 67–8). The remit of ministers and departments charged with environmental policy responsibilities was redefined over time although consistently twinned with local government functions. In some respects, the department was viewed as an advantageous portfolio for ministers, given the substantive public works portfolio, particularly in respect to enhancing a minister’s profile in the local constituency.

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In 2012 an Organisational Review Programme (ORP) conducted as part of the public service modernisation agenda identified strengths and weaknesses of the Department, including commentary on its capacity to transpose EU directives. It reported that from 2002 the Department was subject to upheaval and structural change as a result of a broadening remit given the decision to transfer responsibility for the National Parks and Wildlife Service and Met Éireann to it (ORP, 2012: 65). The Department also had to manage significant expansions to its capital programmes during the boom years and cope simultaneously with the political decision to decentralise the civil service in 2003. The ORP cites that a combination of structural change and decentralisation ultimately saw around 1,600 staff either joining or leaving the Department between 2004 and 2010 (ORP, 2012: 65). Strategic adjustment was ongoing during the recession in conjunction with declining funding for local authorities and the non-replacement of staff. In May 2016 water policy was separated from other environmental policy functions and included in a Department of Housing, Planning, Community and Local Government. This reflected a reconfiguration of the previous Department of Environment, Community and Local Government and a new Department of Communications, Climate Action and Environment was created. This highlights the significance of climate change policy and an objective of the reorientation should facilitate greater synergy between climate and sustainable energy policy. Air quality, waste and Aarhus convention obligations come under the Environment section of the department. Subnational government in Ireland is derived from the Local Government (Ireland) Act 1898. Historically, responsibility for environmental infrastructure lay with local authorities whose environmental functions are rooted in preindependence Victorian sanitary legislation that is still ‘vestigially extant’ (Cashman, 2012). The primary units of local government in Ireland are counties and cities; the state is divided into 31 areas (26 county council areas, 3 city councils and 2 city and county councils in Limerick and Waterford). The Local Government Acts 1925–2014 deal with local authorities’ structures and powers. Political power is exercised on a collegiate basis through the elected council, which exercise reserved functions defined by law. They include decisions on policy and financial matters. The executive advises and assists the councillors, and discharges the day-to-day business of the local authority within defined policy parameters. While the division of roles between councillors and the executive is clearly delineated in statute, in practice, the policy and executive roles have overlapped (OECD, 2008). Although the elected council is the policy-making forum, the manager tends to play the most significant role in articulating policy positions. Local authorities have significant responsibilities in planning and in the delivery of permits, and to date most of their regulatory work rests on regulations that have been defined at the centre of government (OECD, 2010b). An early

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cornerstone of the Irish environmental framework shaping local level is the Planning and Development Act 1963, largely drawn from the British Town and Country Planning Act 1959 (Taylor and Horan, 2001: 385). The 1963 Act placed strong emphasis on conservation and provided planning authorities with an array of special conservation powers (Mawhinney, 1989: 99). Ironically, agriculture and forestry were both omitted from local planning controls but the Act did introduce public participation in the planning process, which was significant for environmental matters (Connaughton, 2010a: 124). A consequence of entrenching responsibility for air and water pollution, waste management and sanitation in local government services was that environmental affairs became enshrined as local political issues. Regulatory functions arising from these core environmental tasks were added to the local authorities’ remit but continued to be operationalised via outdated legislation and with no emissions standards in operation until the late 1970s (Flynn, 2004). The ensuing result of such practice, combined with low levels of ecological awareness, was a state of paralysis in local environmental administration by the end of the 1980s. By this time local authorities had acquired a conflict of interest via their dual role as ‘gatekeeper and poacher’ (Coyle, 1994: 73) since they were simultaneously agents of development and in control of environmental regulation within local boundaries. The robust enforcement of environmental legislation required a regulatory capacity which was absent and if enforced stringently on industry could have potentially exposed the local economy to the risk of losing jobs. An incongruous twist to this situation was that local authorities, as polluters themselves, remained exempt from many of the pollution controls they were attempting to enforce on others. The latter end of the 1990s witnessed the introduction of a range of policy documents of which the launch of Sustainable Development: A Strategy for Ireland (NSDS) in 1997 (reviewed in 2002) was central. Unfortunately, targets included in the strategy were rapidly eroded by the intensification of development during the Celtic Tiger era that continued into the next decade. The NSDS 1997 emphasised the role played by regional authorities by giving them a coordination role among the sub-national structures and charged them with promoting partnership and defining sustainability priorities for their regions. Despite the aspirations of strategies like this sufficient resources for implementation were not allocated. A striking feature of Irish local government is that its public affairs remit is far narrower than in many other European countries and its constitutional position is rather weak in comparison. One of its most challenging aspects is a lack of financial independence. The abolition of rates on domestic property and agricultural land and the decision in 1997 to abolish domestic water charges curtailed local authority discretion in raising revenue and cemented an in loco parentis relationship between central and local government (OECD, 2008). The economic crisis and large budget deficit imposed further serious

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constraints on government action and put at risk local authorities’ ability to meet their environmental commitments. Additionally, despite having a development role, the resources and expertise to cope with economic expansion were not invested in local government over time. Rather, a proliferation of executive agencies linked to central government and local development fora were established to support economic functions and new services to the detriment of building capacities in the sub-national tier of government. An effort to redress such anomalies was envisaged in the introduction of Better Local Government in 1996 which advocated enhancing local democracy, serving the customer better and providing proper resources. Section 48 of the Local Government Act 1991 gave statutory recognition to Strategic Policy Committees (SPCs). The latter, in addition to the introduction of CDBs, aimed to reduce the gap in the elected members’ policy function and increase the involvement of non-elected representatives (stakeholders, communities and professionals) in the decision-making process through more direct forms of involvement in local issues. Although the committees made policy recommendations the full council retained the final say over most policy decisions. The most recent blueprint for changes to local government structures and activities are set out in Putting People First – Action Programme for Effective Local Governments (DoECLG, 2012a) published in October 2012. These plans are implemented by the Local Government Reform Act 2014. The intentions are to move from a highly centralised system of public administration to a certain level of decentralisation and a greater alignment of local government and local development. The Act abolished the CDBs and established local community development committees. The CDBs’ remit was to draw up and oversee the implementation of a county or city strategy for economic, social and cultural development. Under the reforms each local authority is also required to draw up a framework for public participation in local government. The main institutional innovation occurred at central, rather than local, level in the early 1990s, largely in response to EU reforms, commencing with the Single European Act 1987. The establishment of the regulatory body, the Environmental Protection Agency (EPA), under the EPA Act 1992 reflected the government’s acknowledgement that shortcomings in environmental governance were evident (EPA Review, 2011). A National Sustainable Development Partnership titled Comhar was established in 1999 in an effort to harness stakeholder participation from public and private sectors, experts and ENGOs to advise on policy. One such example is the Irish Business Employers’ Confederation (IBEC), which is perceived as a key stakeholder in areas such as climate change, waste management and water. Aligned to IBEC is Repak which is Ireland’s first voluntary initiative between industry and the Department of the Environment. Organised farming interests are formidably represented by the Irish Farmers’ Association (IFA), which is the largest, and probably

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predominant, farmers’ lobby group. The IFA also represent aquaculture interests and are instrumental in negotiations surrounding the implementation of environmental directives and nature conservation. The key functions of the EPA are outlined in Section 52 of the 1992 Act: to promote and coordinate environmental research; promote environmentally sound practices; provide advice to the central government as well as the local authorities on environmental issues; and serve as the liaison to the EEA. The growing corpus of Irish environmental law, in turn, driven by the domestic implementation of EU law witnessed a significant increase in the number of statutory functions assigned to the EPA. Environmental regulators in Ireland are responsible for in excess of 500 environmental protection functions, contained within approximately 100 pieces of legislation (EPA, 2009: 3). The agency plays an important role in implementation, both upwards through its interactions with the Department and downwards in its regulatory oversight of local authorities. In its formative years the EPA was criticised for its performance but its contribution to strengthening environmental governance and engaging with stakeholders is considerable. From the perspective of its legal obligations, the EPA is deemed to have a record for competent and fair regulation of activities subject to the directives on IPPC and waste (Scannell, 2006). Despite this, the EPA was criticised by the European Commission along with other Irish authorities for its implementation performance. When the EPA assumed responsibility for licensing and controlling local authority waste facilities, ‘in practice it operated a licensing “go-slow” policy’ where facilities were left in legal limbo with licence applications submitted but not decided (Cashman, 2010: 11). This formed part of the Commission’s argument that the implementation of the Waste Framework Directive (75/442/EEC and revised as 2008/98/EC) was characterised by systemic failures in Case C-494/01. In 2003 the failures of local authorities to execute their environmental duties combined with general difficulties in enforcing EU legislation prompted the establishment of the Office of Environmental Enforcement (OEE). It was created as a separate office within the EPA with a further remit to monitor the performance of local authorities. The newest institutional entity linked to environmental policy is Irish Water which came into being on 1 January 2014. Irish Water is the national utility with responsibility for delivering public water and waste water services, taking over a role that was previously held by local authorities (see Chapter 6). Irish ENGOs have generally struggled with regard to their mobilisation, national impact and in their relationships with Irish public administration. In surveying this in a historical context, Flynn (2007: 84) argued that ‘Irish state institutions and Irish environmentalists simply do not trust or respect each other’. One of the oldest ENGOs is An Taisce which was established as the Irish National Trust in 1948 and promotes the conservation of Ireland’s natural

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and built heritage. It was allocated some formal access to the policy-making process as a ‘prescribed body’ under planning and development regulations. An Taisce is also a founder member of the Irish Environmental Network, which represents thirty ENGOs and supports their coordination, activities and lobbying efforts. Despite the demise of social partnership the consolidation and recognition of an Environmental Pillar in 2009 has also facilitated ENGO advocacy and policy engagement with government. The Environmental Pillar has the right to nominate persons to national, regional and local government bodies to further attune them to how public administration is coping with implementation challenges. ENGOs have been critical of the functioning of the institutional framework and a lack of access to environmental justice. One example of where they have pointed to complications is the functional relationship between the EPA and An Bord Pleanála (ABP) (EPA Review, 2011). The EPA decides on environmental matters and the ABP decides on planning matters, which is a further example of the structural fragmentation of the overall approval system. ABP is the planning appeals board established to process appeals from authority land use decisions and it remains separate to the EPA. Both the applicant and third party objectors have a right to appeal a decision concerning an application for development consent taken by a local planning authority to ABP. Appeals to ABP are ‘undoubtedly easier to take, faster and less expensive than a judicial review action, and to that extent indicate a likely procedural compatibility with Aarhus and the requirements of the EU Directive 2003/35/EC’ (Turner and Scannell, 2010: 37). Beyond planning matters, the Ombudsman holds the Office of Commissioner of Environmental Information under regulations SI No. 133 of 2007 in parallel with his/her oversight role of maladministration. The Commissioner decides on appeals against decisions on requests for access to environmental information. Despite the onset of the economic crisis in 2008 and the subsequent collapse in public finances the unfavourable CJEU rulings on Ireland ensured that environmental enforcement activities did not collapse. However, recession did impact severely on staffing and resources available to the Department, EPA and local authorities. In November 2011 Comhar was subsumed within NESC which is reminiscent of the removal of An Foras Forbatha in 1987. During this period the challenges for reviewing environmental governance in Ireland were recognised in the recommendations from expert groups, the review of the EPA reporting in 2010, ENGOs and the policy document Our Sustainable Future, a Framework for Sustainable Development for Ireland (GoI, 2012). Coincidentally, just prior to the impact of the crisis, the Irish government had proactively commissioned the OECD to undertake a review study of the Irish public service. The report included waste management in the local government sector as a case demonstrating governance challenges

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and presented reform options. In general, the public service was portrayed as displaying poor coordination, considerable institutional fragmentation and weak performance practices (OECD, 2008). A review of environmental governance was supposed to be conducted in autumn 2013 following the Irish presidency of the EU but it is difficult to see evidence of a systematic appraisal. Instead, the Irish government reacted to various controversies arising concerning cutting on raised bogs in SACs, the water charges debacle, and pay-by-weight waste collection changes. Context: policy style As one of the weaker national regulatory regimes prior to EU membership, the Irish environmental policy style was largely reactive and environmental issues were not prioritised. Consequently, environmental threats resulting from post-1950s industrialisation had remained unchecked for decades and this was reflected in the rather lax environmental standards attracting operations such as the asbestos industry (Yearley, 1995: 659). The features of an Irish environmental policy style can be explored by investigating how core characteristics of the Irish political-administrative system have impacted on policy responsiveness, administrative capacity and relationships with stakeholders. Irish public administration’s features of centralisation and departmental sectoralisation influence adaptation and challenges for the environmental policy field, which in turn prescribes and requires horizontal coordination and integration. The Ministers and Secretaries Acts 1924–2013, Civil Service Regulation Acts 1956–2005 and the Public Service Management Act 1997 provide for the formal structure of the civil service and the principal legislative provisions governing the minister’s powers. The doctrine of ministerial responsibility is a cornerstone of government accountability and how government works in Ireland despite the proliferation of agencification since the 1990s. The minister in charge of each department is designated a ‘corporation sole’, whereby the minister is essentially the department and the acts of the department are the acts of the minister for which he/she is responsible to the Dáil. From the perspective of the Act the Oireachtas has no direct constitutional linkage with the civil service, and civil servants are accountable to their minister. The principle of ministerial responsibility also enables Parliament to focus on the work of a particular minister rather than censuring the whole of government. The doctrine remains crucial to the operation of departments and the relationships between the actors within them. The legacy of the Ministers and Secretaries Act 1924 as the legal basis for the civil service has implications for policy responsiveness. It intensified the characteristics of centralisation and control within departments and an outcome of this system is an aversion to risk. Accountability reforms are included in the Civil Service Renewal Plan launched

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at the end of 2014 (DPER, 2014). Steered by the Department of Public Expenditure and Reform which was established in 2011, the plan forms part of the Irish government’s ongoing public service reform programme. The Minister is not just a head of department with legal responsibility but also a member of Cabinet with collective responsibility. Article 28.4.2 of Bunreacht na hÉireann provides for collective responsibility where ministers retain prime democratic accountability for actions in areas under their supervision. The convention of collective responsibility stipulates that, once cabinet reaches a decision, all ministers must support that decision and defend it in public. Cabinet meetings are conducted under the aegis of cabinet confidentiality which is outlined in Article 28.3.4 of Bunreacht na hÉireann. Secrecy is also a feature of Ireland’s administrative inheritance underpinned by the culture supported in the Official Secrets Act 1911. The Freedom of Information (FoI) Act 1997 (repealed by the Freedom of Information Act 2014) was introduced to promote openness and access to the political administrative system. In the environmental sphere the right of access to information is strengthened following the Aarhus Convention1 and Directive 2003/4/EC. Directive 2003/4/EC was transposed two years after the deadline by the EC (Access to Information on the Environment) Regulations (AIE), 2007 (S.I. No. 133 of 2007).2 Such developments indicate that public authorities are obliged by law to make environmental information available to any applicant on request. However, the principle of cabinet confidentiality has been invoked to avoid disclosure of environmental information in Ireland, which implies an insistence on remaining rooted in pre-existing features of the political-administrative culture. In March 2007 a request for documents relating to certain cabinet discussions on greenhouse gas was made by a Green Party representative. The Department of Taoiseach agreed to release eight documents, but withheld others, including one document noting comments made at a cabinet meeting on 24 June 2003 (Ryall, 2011: 64). In refusing the request the Department argued that both the principle of cabinet confidentiality and the combined effect of Articles 8(b) and 10(2) of the AIE regulations restricted the disclosure of the information. The Commissioner ordered the documents to be released in October 2008 and declared that there was no such express exception for cabinet discussions under the directive. This decision was overturned by the High Court on 4 June 2010 in An Taoiseach v. Commissioner for Environmental Information and Justice O’Neill’s judgement found that the Commissioner had no jurisdiction to decide that the effect to the AIE regulations was at odds with the provisions and stated objectives of the directive. The judge also reaffirmed the supremacy of EU law over national law where a conflict exists, but emphasised that it was left to member states to determine procedures for the enforcement of EU law subject to the principles of equivalence and effectiveness. Therefore, discussions at cabinet were regarded as ‘internal

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communications’ and subject to discretionary exceptions to the requirements of disclosure in the public interest. The significance of procedural autonomy is of interest in observing the implementation of EU environmental directives. A consequence of the High Court ruling, however, is an ‘undermining of the effectiveness of the Commissioner to enforce the rights conferred by Directive 2003/4/EC’ (Ryall, 2011: 67). The ruling was appealed to the Supreme Court but was withdrawn in 2014. The case itself, and indeed subsequent efforts by various stakeholders to access documents relating to cabinet discussion on Ireland’s greenhouse gas emissions, raise issues about the transparency of government decision making on the environment. A more recent case serving to highlight access to environmental information is National Assets Management Agency (NAMA) v. Commissioner for Environmental Information. In June 2015 the Supreme Court found that NAMA is a public authority subject to the AIE regulations 2007/2011. While action on AIE matters remains relatively low, the Commissioner for the Environment is delivering on a range of contentious AIE issues. Overall, individual departments remain vested with considerable autonomy within their own sectors. The premise of the lead department is generally retained even on the ‘major shaping issues’ arising from Brussels once the broader governmental system is kept informed (O’Mahony, 2012: 204). Irish negotiators rarely ‘upload’ environmental policy preferences in a solo run and instead seek amendments to Commission proposals where an issue poses potential difficulty for the domestic system, or they act collaboratively through joining with other delegations in the policy-making process. The policy style is oriented to accommodate what the Irish system can live with rather than being a proactive engagement with substantive environmental issues. As discussed in Chapter 3 the protection of the environment is increasingly prominent at EU and international level and this challenges administrative capacity at the domestic level. In order to progress the Environmental Policy Integration (EPI) agenda its principles need to be incorporated into administrative cultures and practices as well as policy documents. The implementation of EU policies in areas such as energy and agriculture has highlighted the importance of an integrated approach to the environment in Ireland (NESC, 2010). Despite a proliferation of international and domestic reform documents that assert the importance of coordination, it would appear that examples of good practice which engage enterprise and citizens are sector/area specific rather than entrenched across the administrative system. The clash between autonomous departmental priorities and institutionalising EPI is demonstrated in, for example, efforts to address the requirements of the directives in Environmental Impact Assessment (EIA) 85/337 (as amended and reviewed in 2014/52 EU) and Strategic Environmental Assessment (SEA) 2001/42 EC. A traditional official approach to finding solutions is likely to bring representatives

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from the main government departments together in order to find a collective solution. Advances in EPI require coherent, cross-cutting policy making and mutual understanding rather than a silo mentality. The silo mentality is difficult to supplant and an environmental department’s ability to lead can be reduced to a minnow type status without a strong minister in cabinet. The reality is that each department has its own priorities and stakeholders and they manage their own relationship with the sub-national level independently. The revised sustainable development strategy launched in 2012 endorsed – yet again – the traditional structures to promote integrated priorities through a high-level inter-departmental group on sustainable development chaired by an official coordinator. Over time environmental issues and climate change have been included in the remit of various cabinet committees and consultative bodies but the effectiveness of this is questionable. The review of the EPA in 2010 recommended a high-level environmental governance network to coordinate the relevant aspects of government actions in inter-connected areas such as climate change and biodiversity. But evidence of progress in this specific recommendation is hard to detect and not promoted. More recently, the enactment of the Climate Action and Low Carbon Development Act 2015 has led to the establishment of the Climate Change Advisory Council which publishes its own reports independent of government and is modelled on the pre-existing Fiscal Advisory Council. Further, the Irish policy style is also sculpted by the state’s interactions with interest groups and the tensions in finding compromise between taking long-term decisions for environmental protection and the advocacy of powerful economic interests. It is suggested that engagement with representation from the agricultural and business communities can be described as ‘negotiated compliance’ (Davies, 2008; Taylor, 2001), whereas relationships with environmentalists have often been adversarial in style (Flynn, 2004). Resistance to proposed solutions tends to be marshalled through classic lobbying tactics by local constituents, lobbyists and the business community within the party political system. An important feature shaping these relationships is the emphasis on development that took root from the late 1950s. Structures such as the Industrial Development Authority (IDA) created in 1949 became prominent in the attempt to win jobs and investment to all geographical areas of Ireland in the promotion of balanced regional development. The establishment of distinct environmental standards at EU level during the 1970s and 1980s should have been emulated within the domestic regulatory environment. Yet Taylor (2005: 153) emphasises that environmental governance in the 1980s was influenced crucially by the IDA’s development ethos and the lax regulation by local authorities, leading to industry operating to minimalist pollution control standards. The EU structural funds, while imperative for economic growth in terms of building infrastructural

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capacities, also had implications for conservation. In contrast, environmentalists struggled to have their voice heard in the formal policy-making process. From the mid-1990s the establishment of the EPA did serve to re-orient practices and recognise that the environment should be ‘managed’ (see Taylor, 2001). Positive developments are apparent through initiatives from the business community and the integrated pollution control licensing. These developments did not resolve the challenges involved in decoupling environmental degradation and resource consumption from economic and social development, or promote a paradigm shift from ‘business as usual’. The influence of the farming lobby on the policy-making process has also made enforcing stricter environmental standards more complex and environmental damage unquestionably followed from the intensification of agriculture introduced under the Common Agricultural Policy (CAP). The ability of organised farming interests to resist enhanced environmental regulation is also evident in the political debacles surrounding the implementation of the habitats and nitrates directives (O’Mahony, 2007). Agriculture is also a key contributor to Ireland’s greenhouse gas emissions (EPA, 2016a) and yet a sustained increase in both the dairy and beef sectors is projected (as evidenced in the publication of Food Harvest 2010 and Food Wise 2025 policies). Such back-to-back goals and experiences can contribute to the development of an adversarial environmental policy style with protracted processes rather than collective problem solving. This is illustrative in the difficulties to implement the EIA and SEA directives and threatens the reduction of environmental impact assessment/proofing to a bureaucratic process or tick-box exercise. In terms of the climate change example, domestic politics was influential in shaping the 2015 legislation. This is quite divergent from the Climate Change Act of 2008 adopted by the UK which is often the source of policy lesson learning. Intense lobbying by business and farming interests were among the factors ensuring that legislation was diluted to the non-inclusion of targets and that the process of policy diffusion from the UK was constrained (Torney, 2017). The main political parties are also active in shaping an environmental policy style though their policy differences in general can be indistinct and are likely to be influenced by local constituency level politics. For example, in terms of climate policy the preferences of Irish political parties ‘remain in their infancy’ and the ‘political costs and benefits of climate policy remain poorly understood’ (Little, 2017: 200). How is EU policy implemented in Ireland? Capacity limitations that militate against ‘perfect implementation’ are identified as a principal problem for national administrations. Deficiencies may exist within the administrative apparatus of states, including gaps in the quality

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and quantity of administrative staff. A clear determinant of capacity limitation is the executive inability to adapt national law to EU directives in a timely manner. Effective inter-ministerial coordination is particularly important whereby lateral coordination and good consultation between all government departments concerned (or clearance points) enables the working out of a well-grounded, realistic national position (Siedentopf and Ziller, 1988). The different structural features of the legislation also matter (Macrory and Purdy, 1997). The quality of drafting will make implementation easier and transposition may signal problems at later stages of implementation (Mastenbroek, 2003). In countries such as Ireland, Greece and Luxembourg, the inclusion of verbatim text into national law presents a strong conformity of national legislation but poor application. Measures put in place in this way can fail on the ground due to shortcomings in the application of legislation by national, regional and local administrations that lack qualified staff. This section discusses how EU legislation intersects with the Irish system in transposition, application and enforcement. Top–down: formal procedures for transposition and enforcement The transposition and enforcement elements of implementation are predominantly shaped by the top–down features of the Irish institutional framework. This discussion focuses on the constitutionally determined characteristics of implementation and the perspective of implementation as a largely apolitical process. This is interpreted from the first generation EU implementation literature as a process that concentrates on the formal mechanisms of EU policy adoption and procedural ability to give effect to EU legislation in a timely manner. Transposition is time consuming since it brings into play a formal process of preparing heads of a bill outlining the provisions which it is desired to make in law, circulating them to other ministers and departments, modifying them in the light of any criticisms proffered and then passing them to the parliamentary draftsman for translation into formal legal language. Once this is completed, a space in the parliamentary schedule has to be secured and the measure subjected to the rigours of parliamentary debate. The bodies principally responsible for enforcement are the local authorities and the EPA. There are in excess of 150 legal instruments, since the mid-1970s, and the transposition of law is a huge body of work. The normal time frame is 18–24 months. Adequate public consultation needs to be ensured and due attention given to participation in international agreements. Accession to the EEC in 1973 required an amendment to Article 29.6 of Bunreacht na hÉireann 1937 which stated: ‘no international agreement shall be part of the domestic law of the state save as may be determined by the Oireachtas’. Section 2 of the European Communities Act 1972 provided that,

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EU

Member state

Supervision and monitoring by Commission

Enforcement Local Aathorities EPA

Houses of the Oireachtas + Cabinet + Departments + Attorney General’s Office

Transposition Text of directive

Decision-making process

Implementation

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Application

Society (Enterprises)



Enforcement by Commission

Figure 4.1  EU directives and the Irish system

‘The Treaties governing the EC and the existing and future acts adopted by the institutions of those Communities shall be binding on the state and shall be part of the domestic law thereof.’ This heralded a major change in Irish administrative law but did not provoke any significant political debate. The amendment to Article 29 of the Constitution permitted Irish membership and provides that the Constitution cannot be invoked to nullify European law or any national law required by membership. Section 3(1) of the Act provided a means of ensuring that a minister could make a ministerial order to give effect to EC directives without recourse to full legislation by means of an act of the Oireachtas: ‘A Minister of State may make regulations for enabling section 2 of this act to have full effect.’ A Section 3(3) prohibiting indictable offence by this means has been amended by the European Communities Act 2007. The 1972 Act was the original transposing measure and has been amended following each successful referendum to amend the Constitution in relation to membership (Conlan, 2007: 382). Several methods are employed to incorporate European legislation into national law, namely, primary legislation (Act of the Oireachtas with the full parliamentary scrutiny process), secondary legislation (statutory instruments or a ‘regulation’ in routine parliamentary business) and administrative action by way of departmental circular or departmental scheme which is not embodied either in a statute or a statutory instrument. Over time the process has become more rigorous and formalised following criticism from the European Commission, condemnation over the lack of Oireachtas scrutiny of statutory instruments introducing European measures and efforts to reform the coordination of EU

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business in the aftermath of the referendum on the Treaty of Nice in 2001. Implementation is more reflective of the ‘down-stream’ but the changes in ‘upstream’ coordination and scrutiny are also significant. The EU (Scrutiny) Act 2002 (now amended) provides the legislative basis for the scrutiny of EU business. Initially this was undertaken by an EU Scrutiny Sub-Committee of the Oireachtas Joint Committee for European Affairs. In 2007 the Oireachtas established a full and separate Joint Committee on European Scrutiny. The report of the Sub-Committee on the Review of the Role of the Oireachtas in European Affairs in 2010 highlighted many of the practical issues, in particular timing, that arise in Oireachtas scrutiny and made recommendations for greater engagement (HoO, 2010). In 2011 a Joint Committee on European Union Affairs was convened and the Programme for Government articulated that arrangements for the consideration of EU matters in the Oireachtas should become mainstreamed across all Oireachtas sectoral committees (GoI, 2011). In the early decades of EU membership, the translation of European directives into Irish law often lacked precision and clarity and embodied a commitment to resources that was difficult to sustain in a relatively small administrative system (Coyle, 1994). In general, Section 3 of the European Communities Act of 1972, permitting the implementation of directives by Irish ministerial regulations, was the method of transposition most regularly utilised (Laffan, Manning and Kelly, 1988: 388). An Act of the Oireachtas was only deemed essential where a directive or group of directives impinged in considerable detail on an existing corpus of Irish law. Until the late 1980s transposition was also interpreted as informing the relevant authorities of new administrative procedures resulting from EU policy developments via circulars and memos on an ad hoc basis (Connaughton, 2010b: 135). An explanation for this method is the difference in administrative tradition between Ireland and the continental European states with their emphasis on administrative law. In Ireland, public notices and departmental circulars are used to implement a change in administrative practice but were regarded as unacceptable by the Commission as a method of transposition. In general, this method was used as a ‘gap filler’ pending the introduction of formal legislation or as a means of avoiding the parliamentary draftsman in areas where the target of a particular directive was predominantly civil and public servants. It was regularly utilised in the environmental policy sphere to effect changes in practice at the local authority level and a possible explanation is that in most instances no pre-existing legislation existed. Following the Single European Act 1986 the Commission began to use Article 226 infringement proceedings more aggressively, in particular, to expose member states for failing to transpose environment directives properly (Krämer, 2006). The ECJ made it clear that

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any ‘environmental directive containing mandatory requirements could not be implemented through “non-binding” national measures, in particular by administrative provisions (Krämer, 2006). This led to an abandonment of transposition and translation via circular but an increase in the use of statutory instruments may not have resulted in more effective transposition. In 1994 the use of statutory instruments was challenged in the Irish Supreme Court when a plaintiff challenged a SI that overturned an Irish statute. The role of the Minister to make regulations was upheld in Meagher v. Minister for Agriculture [1994] 2 I.R. 329 (H.C. & S.C.).3 The case challenged the constitutionality of approximately 500 directives implemented by the state in twenty years of membership. The court largely supported the position of the minister on the basis that this was the only practical way of handling such large numbers of directives despite the possible implications for the Oireachtas. The use of SIs, the difficulty of linking back to primary legislation and the loss of transparency due to the diminished role of elected representatives in implementing the legislation (or, at least, in determining the form it should take) remains a source of contestation in the Irish system. A reliance on the executive for implementing directives is not unique to the Irish case but a balance needs to be struck between the timeliness of transposition and effectiveness of the legislation transposed. To this end Cashman (2012) comments that the Commission received complaints about Ireland’s initial transposition of the EIA directive and defects in statutory instruments concerned. ‘This coincided with a growing Commission recognition that the quality of national transposing measures needed to be systematically checked in order to ensure that objectives agreed at European level were not diluted or disregarded at national’ (Cashman, 2012). Examples of where the issue has been reported officially include the OECD’s review of Ireland’s environmental performance, which noted that the environmental legal system ‘lacks coherence’ and its track record for transposing EU legislation into national law has been far from adequate (OECD, 2010a: 7). The report of the Organisational Review Programme (2012) on the Department of Environment, Community and Local Government also identified the implementation of EU environmental directives as ‘one of the biggest strategic challenges’ facing the Department and acknowledged that Ireland’s poor performance had resulted in reputational damage (DPER, 2012: 78). A symptom of this problem is a historic deficit in expertise and the absence of environmental lawyers in the Department which is typically established in environmental ministries elsewhere (Cashman, 2012). This was reiterated by the panel that conducted the Review of the EPA in 2011 which expressed concerns about the skills and standards employed in legislative drafting and in the case of statutory instruments particularly.

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The office of the Attorney General advises and plays a key role in determining the direction which should be followed in transposition and also leads Ireland’s defence in the Court of Justice. The Office of the Attorney General, however, remains relatively small and arguably under-resourced for this task. The enhancement of expertise in the departments could potentially facilitate recognising and responding to transposition shortcomings. Internal management weaknesses can also be accompanied by a lack of effective joined-up approaches between departments that can manifest not only in technical problems but politicised conflicts in the domestic arena. For example, ‘the explicit linking of agricultural support to enhanced environmental practice through crosscompliance had major consequences for both agricultural and environmental policy-making in Ireland’ (O’Mahony, 2012: 212). Despite difficulties with effective and timely implementation, it is evident that the ‘down-stream’ system has evolved over time. The Interdepartmental Coordinating Committee on European Affairs (ICCEUA) developed a set of guidelines on best practice for the transposition of EU directives in 2005 that have been subject to revision (GoI, 2006). In particular, the guidelines take into consideration the transposition and scrutiny processes adopted in the UK and in Scandinavian member states. They also integrate the principles of Better Regulation, the Regulatory Impact Assessment (RIA) model and take into account the increasing influence of the courts and evolving case law on the transposition process (GoI, 2006). An upgrading of procedure was undertaken and the effort to view the broader effects of regulation is particularly significant for environmental policy. For example, between 1998 and 2002, a total of 85 letters of formal notice were notified to Ireland with regard to cases involving bad application of EU environmental legislation (McKenna, 2004: 3). An additional 33 letters of formal notice were notified for cases involving issues of non-communication of national implementing legislation or the nonconformity of such legislation, giving a total of 118 letters of formal notice (McKenna, 2004: 3). Several of these letters involved a failure to respond to Commission information requests, and were based on Article 10 (duty of cooperation) (repealed and replaced in substance by Article 4 as amended by the Treaty of Lisbon). The 2006 guidelines for transposition advocate that preparation for the drafting of legislation commence at least as soon as the directive is published in the Official Journal of the EU. It prescribes early consultation with the Attorney General’s Office and that views expressed by Oireachtas Committees in the scrutiny of the draft directive and/or consultation processes during the RIA are taken into consideration. The guidelines also request that any infringement proceeding taken against Ireland should be promptly brought to the attention of the relevant minister, the Department of the Taoiseach and the Attorney General’s Office. One interviewee commented that there may be



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numerous reasons why directives can be delayed. He cited the example of the Directive on End of Life Vehicles (2000/53/EC). The Department tried to ensure there would be a collective compliance scheme but we could not find a consensus between all the industry stakeholders on the development of one. We came close but talks broke down at critical points and that invariably delayed its transposition and infringements proceedings were brought against Ireland … In terms of enforcing something, if a voluntary agreement is in place then you are bringing most parties along with it and therefore need less state resources to see that it is enforced. It was not achieved in the case of the end of life vehicle directive and that would explain its delay. (Personal Interview C)

Transposition also requires a streamlined administrative response from the government department which is assigned responsibility for the EU directive. In each Department the responsibility for a directive falls to the specialised section and not to an EU division. The role of a ‘fixer’ is relevant to the Irish case given the central position played by a lead official within this department. If practical, departmental officials involved in the negotiation of the directive are closely involved in its transposition. In general, this involves no more than two officials at Assistant Principal or Principal Officer level. Usually, the same official is involved in the Council working parties and advises the Minister at Council meetings. The lead officer draws up a planning schedule for the implementation of the directive, showing which departments are involved, and the measures to be taken to transpose the directive. The schedule should be forwarded to the Department’s EU Co-ordinator and regularly monitored. One development in Irish public administration that frustrated the accumulation of official expertise in the department was the political decision to promote decentralisation in 2003. Almost 180 staff working on a range of policy and operational issues were transferred to a decentralised office on the outskirts of Wexford, and in some cases individual sections are split between locations (ORP, 2012). This damaged departmental coherence, hindered the development of teams to undertake implementation schemes, resulting in loss of institutional memory; and officials resident in the Customs House did not know their colleagues in Wexford. Obstacles aside, it is evident that there are significant improvements in meeting transposition deadlines and, in particular, very constructive communication with the Commission and CION (Communications on Implementing EC law and Improving delivery of benefits from EU Environmental Law) assessors. While it appears that Ireland’s improved record is largely a response to the ‘stick’ of critical court judgements rather than the ‘carrot’ of strategic compliance, the efforts of recent years are receiving acknowledgement. At official level in the Commission the Irish authorities’ attempts to address the legacy cases was referred to as ‘very impressive’ and ‘relationships with authorities

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in Ireland is really good’ (Personal Interview D). The challenge is that there is no room for complacency and the official was referring to the resolution of historical issues and not pre-infringement measures coming under any informal dialogue with the Commission. Learning is evident in the establishment of a dedicated Environmental Compliance Unit during 2011 to facilitate effectiveness in early adoption and transposition of directives and proactively involving stakeholders, including the Commission and other departments. The Department also engages with ENGOs through the Environmental Law Implementation Group (ELIG) formally established in 2012. ELIG is an expert group which brings together officials from departments/agencies, local government, An Taisce and members of the Environmental Pillar to open up consultation and communication on options and solutions for effective implementation and to identify ‘early warning’ issues. For environmental directives there is no statutory requirement for the EPA to be consulted but there are informal arrangements that allow for effective input from the EPA on the development of legislation and advice provided on request to government departments. The EPA plays a central role in enforcement, taking approximately twenty prosecutions a year, and has a special investigations unit that in liaison with the Gardaí deals with evidence collection on indictment. It issues directions to local authorities and 600–700 notifications on non-compliance to industry facilities every year. Since about 2005, a significant amount of work has been connected to complaints about facilities, such as old landfill sites. Through the OEE the EPA now leads a Network for Ireland’s Environmental Compliance and Enforcement (NIECE). NIECE provides a framework for a coordinated and consistent approach in the implementation of environmental enforcement activities and special investigations. The network provides assistance for development of best practice to local authorities and other agencies designated with implementation tasks. Intensive agriculture and waste are the sectors where the most prosecutions occur. A growing part of the EPA’s role is interacting with the European Commission on compliance and assisting the Department in responding to formal complaints or legal cases being taken by the EU. EPA staff members attend hundreds of national and international meetings annually where they represent the Irish administration as the competent authority for the enforcement of a wide range of legislation or where the Department does not have technical expertise (Personal Interview E). Given this input into the more ‘downstream’ aspects of dealing with EU directives it would make sense if the EPA’s role into the ‘upstream’ aspects of negotiation and legislative development were more formalised. An illustration of how the EPA’s responsibilities have become more formally demarcated is in respect to water policy. With the establishment of Irish Water the EPA is the national environmental regulator with responsibility for supervising Irish Water’s supply of drinking water and the authorisation



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of discharges from their waste water treatment plants. This has the potential to develop into a tense relationship Irish Water view the EPA as a regulatory threat who could impose significant cost and complexity to their plans for infrastructure delivery. The Commission for Energy Regulation is the economic regulator of public water services and its consumer protection. Bottom–up: participation and collaboration between actors and institutions Bottom–up approaches present the view that good implementation presupposes the participation of implementing organisations in the EU decision-making processes. It also emphasises understanding implementation from the perspective of these actors and the networking opportunities that may develop. In particular, this discussion focuses on the collaboration and participation of both central and local actors in the enforcement and application stages of implementation. Government departments routinely engage in consultation with other actors but the implementation (compliance) stage does tend to become more adversarial (O’Mahony, 2007). A feature of the Irish case is that local government has no formalised input into the ‘upstream’ process of negotiating EU directives. The ELIG dialogue appears to be focused on implementation after the adoption of directives at EU level. National officials rarely involve local authority officials in the EU policy-making process – unless a technical or ‘on the ground view’ is required. The following comments are instructive: Where necessary we would touch base with the larger local authorities and our technical people would get a view from them. We haven’t seen a great need for formalised consultation arrangements with local authorities but where it is liable to be of benefit we would talk to them, but on informal rather than formal sense. (Personal Interview F) Prior to the Maastricht Treaty there were institutional problems in Dublin as they were not even responding to correspondence from the Commission. I think it has changed now and we are propelled into discussions and negotiations on technical systems. When you have all lawyers negotiating and no technical people then you get law that is un-implementable. But it is very rare that local authorities are brought into any kind of negotiations. (Personal Interview G)

While local authorities have no formalised role in terms of servicing meetings at EU level or linking with the permanent representation, more direct contacts with Brussels have been established since the 1990s in twinning or networking projects. Prior to this the Department regulated relations and while this may have been sufficient in environmental policy it resulted in local authorities ‘lacking a centrally coordinated perspective on relevant EU issues’ (Coyle, 1997: 81), since they were not interacting with other government departments

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more central to EU business. Collectively, local authorities present views on environmental policy to central government through the Local Government Management Association but this is rare. This leaves local authorities with regulatory burdens of financial and expert implications that have been adopted at the national or EU level, but have not been properly discussed with local authorities in advance (OECD, 2010b). The experience of the local level giving effect to EU directives is also shaped by national and local reform initiatives. The adoption of the National Sustainable Development Strategy (NSDS) in 1997 and the initiation of local government reform from 1996 onwards, and more recently with Putting People First (2012), have provided for a number of consultative forums to reach out in a structured way to various stakeholders involved in environmental governance. The most notable of these was Comhar whose recommendations were sought on the development of the revised NSDS which was a component in the programme for government between Fianna Fáil and the Green Party (2007–11). Despite extensive consultation during 2007 between stakeholders under the umbrella of Comhar, the recommendations forwarded to the Department of Environment, Heritage and Local Government remained in limbo and the strategy was not launched until just prior to the Rio+20 Earth Summit in June 2012. Delays addressing Comhar’s advice demonstrates a failure of government to take these contributions seriously and give genuine effect to the structures it creates for consultation in sustainable development (Connaughton et al., 2008: 155). It also indicates that a shift from government to governance through the employment of principles of partnership and collaboration were not applied consistently in the environmental sphere. Comhar was originally conceived outside the institutional mechanisms of Ireland’s neocorporatist approach to policy making called ‘social partnership’. The Environmental Pillar fits within such fora but was established in the aftermath of the social partnership heyday. Partnership and participation principles were also integrated into reforms of the local government system underpinned by the Local Government Act 2001 which introduced CDBs) and SPCs. As noted, the CDBs have been replaced by local community development committees which don’t appear to have a very different remit and local development bodies with social partners operating locally are represented. The CDBs served as a platform that did not previously exist to engage stakeholders but it remains to be seen how effective and integrated the new structures will be. Our Sustainable Future (GoI, 2012) acknowledges that such structures have a role to play in the implementation of their City/County Strategies for Economic, Social and Cultural Development but need to further emphasise cross-cutting issues and diversify sustainable development beyond the strong social emphasis in future planning. Our Sustainable Future (2012) also recognises that in light of emerging EU environmental priorities, a strengthening vertical governance is also required and advocates

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better coordination between relevant government departments and bodies at regional and local level. This aligns with cautions in the debates on deliberative democracy that the emphasis on horizontal coordination should be regarded as a complement to, rather than a replacement for, vertical forms of coordination (O’Toole, 2004a). SPCs through their remit to advise and assist the council in the formulation and development of policy, should present an opportunity for the elected councillors (one of whom is the chairperson) and various community stakeholders to participate in environmental planning in conjunction with the relevant management team member who provides a supporting role. There are mixed opinions on the performance of SPCs in general and some interesting feedback came up in interviews with various officials. [SPCs are] approval by consensus, not vote … consensus [is seen] as a recipe for inaction or supremely acceptable solutions. (Personal Interview H) we [SPCs] do work with the environment one in particular and meet them once or twice a year (annual report and one other topic). The idea of them was to prepare policy going forward but they have not been proactive on that element. But they do have input into what they think money should be spent on what should be achieved in waste infrastructure etc. They do have a certain amount of influence. (Personal Interview I) The Environment SPC makes suggestions that still have to go back to the council. The SPC recommends and the council simply throws it out, certainly the case in environment… [It is] very thin on partnership – three to four people represent a very broad sector … [For example] a GAA [Gaelic sport] representative for community and rural affairs is an expert on full forward but rural affairs? The idea that three people can represent thirty to forty groups is nonsense. (Personal Interview J)

The views contrast with the prescription that environmental planning is identified as a task which should be addressed by each local authority ‘within the framework of reformed local government structures and utilising, in particular, the developing strategic policy committee system’ (Waste Working Group, 2001: 9). It is incumbent on local authorities (officials and elected members) to play a critical role in influencing better implementation performance. Environmentalism has been identified as among the weakest sub-sectors in the voluntary sector in the Republic of Ireland (Mullally and Motherway, 2009). The coordination of ENGOs has improved at the central level through the role of the Irish Environmental Network (2008) and the advent of the Environmental Pillar (2009). At the local level NGO participation is traditionally dispersed and fragmented rather than characterised by strong local networks. The promotion of Local Agenda 21 activities provided a greater onus for local authorities to incorporate local environmental/community groups into partnership arrangements and local partnership funding is available from local authorities.

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This complements the actions required to achieve the targets and outcomes of EU environmental directives, although it has been argued that community activists will warily greet consultation measures that may be superficial and not allow for meaningful input (Fagan et al., 2001). Initiatives such as the Environmental Pillar and ELIG can attempt to address these issues and raise questions about how such structures can relate to the local level effectively. The Irish record is quite poor on consultation and developing trust in local level relationships, and is not helped by the perennial weakness of local government. Examples are instructive and illustrate the flaws in environmental governance, some of which are addressed very slowly and incrementally. For example, the EPA Act 1992 incorporated a role for oral hearings in the case of planning objections but any decision to hold an oral hearing remained at the discretion of the EPA (Davies, 2008: 70). Environmental groups also argue that local authority personnel have been hostile to engagement with the public participation regulations. This includes the requirement to provide access to information held by public authorities, rights to participate in decision making on the environment and rights to challenge decisions. Deficient administrative practices, poor enforcement and weak judicial control pose considerable challenges for those who seek to invoke the right of access to environmental information in Ireland (Ryall, 2011). For example, Ireland was also the only member state to introduce participatory fees for members of the public wishing to participate in development consent procedures (Cashman, 2012). The delays in ratifying the Aarhus Convention and giving it full effect add to the frustration of Irish ENGOs as the absence of timely access to information and environmental justice at a reasonable cost stymies the fulfilment of their remit. Informed members of the public who participate in environmental decision making can play an important role in encouraging an integrated approach to the environment and enhancing implementation of environmental policy, but it is challenging. Two examples are the difficulties in mobilisation behind long-term sustainability issues and navigating the legislation. A support march organised by Stop Climate Chaos before the UN climate conference in 2009 attracted just 400 people approximately. The Climate Action and Low Carbon Development Act 2015 is testing for ENGOs and individuals to enforce as it does not contain any duties towards individual citizens (Kennedy, 2016: 79). Membership of ENGOs remains small and activities are often reliant on committed individuals. But their dedication is apparent and the numerous environmental issues covered by CJEU judgements against Ireland have been instigated by ENGOs, emphasising their oversight role, sophistication and willingness to apply the law. A semi-professional network has emerged among environmentalists, including the use of ‘straw man’ litigants who are willing and able to face the financial implications of legal challenges.

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The principal involvement of the public in environmental oversight is generally viewed as populist localism. If anything, environmental controversies from the late 1990s suggested that the public became more alienated from the institutional mechanisms designed to represent them, given the rise in Nimbyism (Not in my Back Yard) and public protest against infrastructural facilities and charges. The most eventful by far are the water charges protests in which tens of thousands marched in opposition to the re-introduction of water charges and the role of Irish Water in autumn 2014. The water charges campaigns were borne of budget cuts and concern that Irish Water was a ‘Trojan horse’ for privatisation rather than an effort to stymie public investment in much needed infrastructure. A lack of environmental awareness and, arguably, a lack of appropriate communication can be further identified as reasons for public discord around government initiatives. Despite the recognition that formal consultation with the public is important, there is scepticism about its effectiveness. Information on environmental issues is extensive and technical, so it needs to be communicated well. Another perspective to this is synonymous with how embedded brokerage is in the political administrative culture. In his assessment of public involvement in environmental decision making, Motherway (2002: 16) notes that, regarding the public desire to change something, ‘if you do not have a minister on your side your chances are poor’. Dissension with the public over infrastructure or environmental policy making has developed into contentious disputes motivating the involvement of local councillors and TDs. This is bottom–up activity that is illustrative of the strong attachment that Irish citizens have to their local area and how this is represented in constituency level politics. Examples include proposals for incinerator sites, domestic water charges, bin collection charges, septic tank inspections, turf cutting in areas designated for habitat protection and local objections to wind turbines and pylons. This also demonstrates both the idiosyncrasies of the electoral system and the failure of mechanisms to moderate conflicts arising from environmental compliance. ‘We are not very good at conflict resolution. We [the public] have processes but when a decision needs to be made we say to hell with the process we don’t want it’ (Personal Interview G). This comment raises questions about the effectiveness of institutional fora established to promote sustainable policy making and implementation. It suggests that if the process fails then top–down imposition or alternatively policy-administrative paralysis are likely options. Europeanisation of Irish environmental policy: actors, structures, processes The Europeanisation literature presented in Chapter 2 discussed the top–down explanations centred on the goodness of fit argument and bottom–up accounts

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which seek to understand interactions between domestic actors and the EU level. Both approaches are relevant in interpreting the Irish response to EU environmental policy and its implementation. The standard model of Europeanisation assumes that such change is mediated through a range of domestic factors including political elites (change agents or norm entrepreneurs), multiple veto points, political and organisational cultures and learning (see Risse et al., 2001). In other words, adaptational pressures must pass through and interact with the mediating forces – facilitating and/or obstructive variables – specific to the member state. This section discusses the mediating factors and changes to environmental policy actors, structures and processes as a result of interacting with EU environmental rules. Together with the features of the Irish policy process unpacked in this chapter, several key variables may be distinguished as prominent for understanding the implementation processes explored in the waste, water and habitats cases. Europeanisation of environmental policy Comparative studies have addressed the effectiveness of new environmental policy instruments (Jordan, Wurzel and Zito, 2003) and the Europeanisation of national environmental policy (Jordan and Liefferink, 2004). The analyses illustrates that the same broad causes have not produced the same policy responses and that while there is considerable convergence in the content of environmental policies, there are varied approaches to their application. The discussion on historical context and policy style in Ireland illustrate the residual place of environmental initiatives and implies a weak goodness of fit between the EU and the pre-existing institutional architecture for environmental policy making. In the Irish case the need to comply satisfactorily with EU directives has driven the development of an environmental policy (Connaughton, 2010a; 2005; Laffan and O’Mahony, 2008a; Flynn, 2007) though not all domestic developments can be ascribed to the EU (Flynn, 2004). EU policy and international engagement led to a shift away from an ad hoc emulation of British practice which shaped environmental regulation (where it existed) towards an effort to embrace other models. The Irish approach to dealing with environmental challenges continues to reflect a practice of lesson drawing from abroad or what Flynn (2004: 119) has referred to as Ireland’s role of a ‘passive “taker” of environmental policy content long before the EU came along’. The European influence started to become evident in the legislation introduced in the late 1970s. For example, the Local Government (Water Pollution) Act 1977 revised the Fisheries Act 1959 and reflected the focus on water quality issues at EU level. Ireland has continued to ‘download’ environmental standards but is not an ‘uploader’ like Germany or the Scandinavian member states (see Börzel, 2002). In terms of

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leading, Ireland plays its part, as much as it can as a small nation, through participation at Council and in the various working groups. The exigencies of EU membership and a trajectory of increased environmental pressure on natural resources have led to the introduction of several policy strategies. The substantive and procedural obligations defined in EU legislation have resulted in the modernisation of the domestic legal framework. For example, the introduction of the Waste Management Act 1996 significantly led to the advancement of waste regulation. EU stimulation is also apparent in the selection of policy instruments and employment of principles such as producer responsibility to give effect to environmental policy. However, despite the relative success of initiatives such as the Waste Electrical and Electronic Equipment (WEEE) scheme, it is unlikely that the Irish government would have been prompted to innovate without EU inducement (Flynn, 2007). The Irish case reflects strong adaptational pressures to which policy content has been either modified or introduced to satisfy EU requirements. Political and organisational culture: centralisation and adaptation of pre-existing institutions Besides policy content, ascertaining the goodness of fit is illustrated by the adaptation of the pre-existing institutional framework and the introduction of new actors and institutions. The literature on the Europeanisation of administrative structures reveals evidence of the centralisation of environmental policy making competencies in the hands of central government departments and agencies at the expense of subordinate levels of government (Börzel, 2007: 228). This is also reflected in Ireland where central government officials have dominated decision making and direct communication with the EU institutions. The Europeanisation of environmental policy has also led to more institutional innovation and EU awareness at the central level, even though local actors have greater responsibility for implementation and securing compliance. The dominant institutional changes at the central government level are evident in government departments and the EPA. In 1977 the department was given the responsibility to formulate and coordinate environmental policy though ‘the environment in an ecological sense remained securely at the fringe of the Department’s priorities at the beginning of the 1980s’ (Taylor and Horan, 2001: 378). There was a miscellaneous environment section, but in fact all that did was look after cats, dogs and parks and playgrounds (Taylor and Horan, 2001: 378). In reality, the direction of the department remained largely unchanged and fragmented as the formulation and coordination of environmental policy was not a dominant concern and resources were not channelled to the environmental section. It is anticipated that the environmental

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dimension would have developed beyond this over time but clearly the EU dimension acted as the principal catalyst. An EPA official referred to a lack of optimal resources in the Department: Depending how quickly the directives come in or not they come in via the Department of Environment and I would ask the question were they ever resourced enough to take on board all these directives in comparison to say Germany where they have an enormous civil service to take these things through. So I wonder sometimes … on some things like WEEE we have done fairly well. (Personal Interview E)

The EU is now a huge focus of the department’s work and the past decade has brought a realisation that despite a background of a broad agenda and constrained resources it needs to strengthen its capacity to implement EU environmental directives (ORP, 2012: 71). This relates to consolidating legislation into a coherent framework with ‘the aim of simplifying and clarifying requirements and promoting better compliance’ (OECD 2010a: 17). In the words of one official, ‘the EU is a huge focus, it bites severely if we get it wrong’ and ‘we need to move away from the classic department fire-fighting response to the Commission on our back’ (Personal Interview K). An example of how the environment component has evolved is illustrative in the case of waste. Following the acceleration of the EU waste programme from 1990, a waste management section composed of six officials was set up in 1994 to prepare for prospective legislation and policy statements. Prior to this there was ‘no one who specialised in waste management in the department’ (Personal Interview C). In 2001 the section was split into two parts – one covering waste disposal (infrastructure and regulation) and the other recovery and recycling – with a staff of 16. By 2009 this had increased to 24. In 2018 waste management policy was under the remit of the environment division in the Department of Communications, Climate Action and Environment. As noted, the corpus of EU directives and programmes also played a large part in creating a demand for the EPA. The EPA places environmental data and monitoring in the public domain and it is directly linked into the EEA. On the one hand, the introduction of the EPA can be perceived as an upgrading of an ineffective institutional framework to manage environmental policy emanating from Brussels. On the other hand, commentators have recommended prudence in attributing too many domestic initiatives to EU influence, since the creation of the agency and shift to integrated permitting can also be attributed to indigenous learning about policy developments in the UK (Flynn, 2004; Taylor and Horan, 2001). It may be argued that the EPA reflects a ‘domestication’ of administrative options in Europeanised policy areas. Harmsen (1999: 86) regarded domestication as the use of a familiar repertoire of institutional routines and practices to deal with challenges posed by European integration.



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The options can be innovations transferred from other states or familiar to member states. Political culture and learning Top–down Europeanisation perspectives like the ‘goodness of fit’ are motivated by the outputs of European integration whereas bottom–up approaches are more central to process. Bottom–up interpretations illustrate the interactions between domestic and EU actors engaged in vertical and horizontal networks at all levels of government, EU and national. Irish officials act as ‘change agents’ and ‘boundary spanners’ between the domestic and EU levels (Laffan and O’Mahony, 2008b) through their socialisation with EU officials/national counterparts. Therefore, as time passes fewer infringement procedures should ideally occur (Thomann and Sager, 2017; Mbaye, 2001). Irish officials participate in EU level working groups, initiatives such as the IMPEL and the environmental policy dimension of departments have been considerably extended with specialist sections. In EU negotiations the same Irish officials attend all meetings, given the small size of the administration, and there is close contact between the department and the Permanent Representation leading up to negotiations, and in the negotiating process. In building expertise and in being exposed to their counterparts in Brussels it might be supposed that some subtle cultural change or new thinking may be introduced at the domestic level. ‘Even officials within the Department had little understanding or knowledge when it came to environmental matters such as carbon taxation. There was a culture there and that takes time to change through re-educating, retraining certain officials or reallocating them’ (Personal Interview L). The EPA is networked with its other agency affiliates in Europe and its officials have perhaps the most potential to act as ‘norm entrepreneurs’ in the environmental field. But the ‘street level bureaucrats’ at local authority level remain largely divorced from the EU policy-making process and struggle in terms of capacity and expertise on EU affairs. A knowledge of European environmental legislation in local authorities is considered low (Scannell, 2009) but more opportunities with nationally led training and consultancy services on the EU are available. The conundrum of weak local capacity compounded by weak local autonomy is an important theme to explore in the implementation of EU environmental policy in Ireland. The OECD Review (2010a: 11) of Ireland’s environmental performance cited the lack of ‘enforcement capacity in smaller municipalities’ as a main impediment to making Ireland’s environmental regulatory framework consistent with EU legislation. This was also recognised in the EPA review in 2011 which commented that ‘fragmentation in the governance arrangements within and among the various tiers of Government was militating against the achievement of the most effective and efficient outcomes’ (EPA Review Group, 2011). The European Commission

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cannot exert pressure directly on local government because it is central government that is responsible under the treaties. The unwieldy governance arrangements reflect ‘path dependency’ and are indicative of how Europeanisation has not resulted in institutional change through reform. Fragmentation is also indicative of the legislative framework in the general areas of planning and environmental law, which is regularly amended and likened to a ‘complex jumble of provisions spread over a range of different instruments’ (Ryall, 2012: 207). Differential empowerment of actors: farmers, industry and NGOs In addition to the impact of institutional legacies, the organisation of key interest groups will also impact on whether EU directives are likely to be well implemented (Saurugger, 2014) and condition domestic change. Where difficulties have arisen in complying with environmental commitments this is often related to target group behaviour and difficulties in securing agreement with relevant stakeholders at the domestic level. There are costs to the Irish Exchequer, members of the public and enterprises involved in meeting environmental obligations and ‘it is only at the implementation stage that the full costs are widely appreciated’ (NESC, 2010). This becomes a major bone of contention between various stakeholder groups since there is a historical reluctance to utilise fiscal incentives to encourage behavioural change in Ireland. To be honest we would have got nowhere without Europe if you were trying to deal with vested interests and landowners etc. or ram through the regulations we have now. But to be fair to the Department and the more enlightened areas in IBEC everyone has to do it in Europe so it is not a disadvantage to Ireland to do it. If Ireland Inc. was on its own trying to regulate, for example, better air quality, then we would say the cost is too much. (Personal Interview E)

As noted by Lampinen and Uusiklyä (1998), strong levels of corporatism drastically reduce the number of veto players and results in fewer infringements. Countries that are pioneers of environmental policy are characterised by a coalition for ecological modernisation. For example, in the Netherlands the degree of organisation of environmentalists is higher than that of the trade unions (Jänicke, 2005). The discussion on Ireland demonstrates that partnership in the environmental sphere is a poor relation to the national model of social partnership working between 1987 and 2009 to formally incorporate the key interest groups, unions and employer groups into the public policy process. The success of interest groups like the IFA to act as veto players reflects their domestic national status and participation in an integrated policy community rather than a redefinition of roles or authority as a result of Europeanisation. For example, difficulties have arisen with regard to the habitats and birds directives (O’Mahony, 2007). Implementation has illustrated the cultural beliefs

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and sensitivities of Irish farmers regarding the interference of environmental law upon sacrosanct land rights. Protracted negotiations have been a feature of the farming lobby’s involvement in implementation and generally they have been successful in securing compensation. The debacle with the farmers’ associations over the implementation of the Nitrates Directive (1991/676/ EEC) is illustrative of this. Although its implementation deadline was in 1995, the appropriate measures were not agreed until late 2005. More recent negotiations with farmers’ groups prior to the adoption of national climate action legislation in 2015 are also indicative of the strength of the farming lobby. Business interests represented by IBEC have largely been regarded as more constructive and proactive in pushing for technical environmental approaches driven by EU development. Unsurprisingly, business representation is more likely to champion EU-driven proposals that are more compatible with their interests and modernisation agendas. Their input is significant in the delivery of environmental services since public provision has gradually been removed following trends towards privatisation and contracting-out which decreased local authority service provision. Both groups of actors – farmers and industry – illustrate the operation of veto players, domestic opportunity structures and the promotion of strategic interests in giving effect to EU environmental policy in Ireland. Their actions demonstrate the reinforcement of existing domestic consensual and adversarial styles rather than changes as a result of the Europeanisation of environmental policy (Börzel, 2007: 228). In contrast, Irish environmentalists are more likely to perceive the Commission and the CJEU as their first and only true court of appeal for promoting good environmental practice. The mobilisation of ENGOs illustrates features of bottom–up Europeanisation since their non-state centred dynamics and actions are not captured by the goodness of fit model. A proliferation of complaints and petitions mobilise for effective EU environmental policy implementation and Irish environmental groups are active in bringing infringements to the attention of the European Commission since they have been largely ignored at home. The mobilisation on complaints is aptly illustrated in the judgements against Ireland in cases C-494/01 on waste (see Chapter 5) and also C-418/04 on birds, where six complaints from Ireland led to the ruling in December 2007 that Ireland had failed to protect wild birds (see Chapter 7). Irish ENGOs have also presented before the EP’s Petitions Committee. For example, Friends of the Irish Environment presented the details of a full aerial survey and hundreds of photos of illegal turf cutting on raised bog sites to the Petitions Committee in 2011. They were critical of the Commission as well as the Irish authorities and demonstrated that seventeen out of twenty-two protected sites had been mechanically cut in 2011. Overall, the enforcement advocacy role is enormous and is largely left to ENGOs who are less politically significant and perhaps less representative of society in

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comparison to farmers and industry. This reflects that a Europeanisation of environmental policy has not altered beliefs in any substantive way. Each sector represents the interests of its own stakeholders and this is shaped by the strength of the government department.

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Model of analysis revisited In this section the model of analysis set out in Chapter 2 is revisited, namely features of top–down and bottom–up implementation theory complemented by insights from Europeanisation perspectives. Together the review on traditional implementation theory, perspectives from EU studies and an investigation of the development of environmental policy, institutions and practices in Ireland inform the selection of several variables. The introduction in Chapter 1 outlined that the European Commission has a complicated role in EU policy implementation as it is based on indirect relationships. The literature on EU implementation studies reveals that while the agenda may be evolving, substantial research on compliance generally analyses the infringement data provided by the Commission. The difficulty with Commission data is referred to in Chapter 2 and the data does not look at the compliance of a member state/national variances in practical implementation but the reaction to non-compliance. The case studies focus on Ireland’s performance and learning in environmental policy implementation. The Commission is regarded as an external variable since it is several paces removed from the dynamics of policy implementation ‘at the coalface’. As indicated in Chapter 2 the dependent variable is implementation. Implementation is explained by investigating the Irish experience of translating EU environmental directives (waste, water and habitats) into action in accordance with the agreed targets and timetable. What are the most likely causes of implementation challenges? The extensive scholarly literature illustrates that vast numbers of variables may be identified as having an impact on the phenomenon of implementation. The selection of variables is determined by general challenges which shape the implementation stages of the policy cycle and influence giving effect to EU environmental directives in Ireland. The following independent variables both trigger change and impact on the dependent variable in this country study. • • • • • •

political salience of the issue national and sub-national administrative capacity (delivery behaviour) autonomy of sub-national government selection of policy instruments goodness of fit with EU policy requirements target group behaviour.



EU environmental policy and Ireland Independent variables

Intervening/mediating variables

Goodness of fit

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Selection of policy instruments Autonomy of local government Administrative capacity Target group behaviour Salience of the issue

Political-administrative culture

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Dependent variable (Implementation) Clear and consistent objectives Adequate causal theory Legal structure to enhance compliance by implementing groups Committed and skilled implementing officials Support of interest groups and sovereigns Changes in socioeconomic conditions

Figure 4.2  Top–down implementation process

Intervening or mediating variables stand between the independent and dependent variables and they mediate the effects of the independent variable on the dependent variable. In this study, national political-administrative culture is identified as an intervening/mediating variable. Figures 4.2 and 4.3 show how the variables have been incorporated into the theoretical framework and explored in the study. The independent variables align with the features and conditions for top–down and bottom–up implementation models. Top–down implementation theory implies that the first three conditions specified (clear and consistent objectives, adequate causal theory, legal structure to enhance compliance) can be dealt with by the initial policy decision (the directive) and imply relatively neutral procedures. Whereas the latter three (committed and skilled officials, interest group/sovereign support and changes in socio-economic conditions) are largely the product of subsequent political and economic pressure during the implementation process. The strength of this approach (see Figure 4.3) is that it facilitates understanding the local conditions and challenges for effective policy implementation. The findings illustrate how local actors perceive the problems and the strategies developed for giving effect to EU directives. In this case a random sample of firms was not selected as was the case in Hjern et al.’s (1978) study which was investigating the viability of small firms. The actors discussed in the case studies are directly involved in the delivery of environmental services. Their experiences are conditioned by central-local relations, resources, expertise and specific local conditions. The frame of reference for this is not necessarily formal constitutional arrangements and organisational rules but the arrangements and procedures of the ‘living constitution’ (Hjern and Hull, 1982: 105). The ‘living constitution’ referred to in this research is the operational environment and

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Independent variables Salience of the issue

Dependent variable (implementation) Assessment of problem

Autonomy of local government

‘The living constitution matters’

Goodness of fit

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Policy instruments

Intervening/mediating variables

Political-administrative culture

Autonomy of local government

Regional plans and their fit with traditional functions Performance of local actors in service delivery

Administrative capacity Target group behaviour

Focus on actors and their perceptions

Figure 4.3  Bottom–up implementation process

daily engagement between different levels of government, service providers and interaction with the public that constitute the implementation ‘habitat’. By endeavouring to understand the ‘living constitution’ the implementation analyst acquires a more thorough knowledge of implementation challenges at the local level. In addition, even though formal institutional rules may not be a specific focus of Hjern and Hull’s (1982) intentions when they considered attributes of bottom–up implementation, the autonomy of local government invariably matters in understanding the ‘living constitution’ of sub-national authorities in Ireland. Irish local government is structurally weak and this is regarded as fatal for environmental policy implementation (Davies, 2008: 125). Conclusion This chapter illustrates that although there was little progress in advancing environmental policy prior to EU membership it is now an established policy field, underpinned by a variety of institutional developments. With hindsight it appears that the breadth and depth of how Europe ‘hit home’ in the environmental sphere was not anticipated by officials or the public (Connaughton, 2014a: 66). It is also plausible to believe that an equivalent regime would not exist without Ireland’s EU membership. In the fifth decade of engagement with EU environmental policy Ireland’s political-administrative framework to give effect to EU directives should be robust and fit for purpose. The experience of EU environmental policy and its engagement with actors, institutions and processes point to a number of issues that must be confronted in order to sustain successful implementation. First, environmental affairs are nested within the Irish political-administrative culture and have traditionally

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struggled to achieve a salient position on the policy agenda. This has consequences for developing a strategic perspective, or the provision of satisfactory resources or acceptance by the public that stringent regulation is necessary. During the recession, between 2008 and 2013, the level of priority accorded to environmental affairs was reduced and budgets significantly cut back. Second, the less a policy ‘fits’ the legal and administrative structure of a member state, the higher the adaptational pressure in the implementation process. Arguably this is this case in Ireland given the underdeveloped environmental policy framework, societal and political culture, weak central-local relations, the ability of agricultural and business interests to circumvent unpalatable environmental proposals and unreformed institutional arrangements that are required to embrace EU rules. Third is a scenario which Flynn (2007: 177) alludes to as the mismatch between ‘hardware’ and ‘software’. The ‘hardware’ refers to Ireland’s policy style, institutional framework, social values and attitudes, whereas the ‘software’ reflects policy content which is more readily Europeanised. The efforts to give effect to new software exposed the creaking hardware capabilities. Both national and local administrations require sufficient capacity to deal with technical regulation and new policy instruments. The key features of the above discussion may be summarised into the following variables – salience of the environmental issue, goodness of fit, political-administrative culture, weak autonomy of local government, behaviour of target groups and administrative capacity. The question may be posed whether these issues remain important if tested in detail in the empirical cases. Notes 1 The EU is a party to the international Aarhus Convention which entered into force on 30 October 2001. It involves significant commitments by public authorities to ensuring access to information on the environment, opportunities for participation and access to justice regarding decisions related to the environment. Ireland signed the Convention in 1998 but did not ratify it until June 2012 and was the last EU member state to do so. Two directives were adopted following the EU ratification: Directive 2003/4/EC, on public access to environmental information, and Directive 2003/35/EC, on public participation in environmental decision making. 2 The AIE regulations operate in parallel with FoI and provide for an office of Commissioner for Environmental Information. This role is assigned to the person holding the office of the Information Commissioner under the Freedom of Information Act 2014. The appointment to these remits is concurrent with the official position of Ombudsman. 3 Also see Maher v. Minister for Agriculture [2001] 2 I.R. 139 (H.C. & S.C.).

5

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Case: Waste management

It is not ‘one size fits all’, so it is quite clear that some [directives] will pose a greater challenge to Ireland … The landfill directive is one such directive in terms of the biodegradable municipal waste diversion targets that have to be achieved … that is to an extent a difficulty we have to face up to. (Interview, Central government official, 25 February 2009)

Introduction Waste is not just an environmental problem but one that pertains to socioeconomic spheres and intensive public discourse, and affects a variety of interests and stakeholders. This observation emphasises that waste management is a distinctive sustainable development challenge and the economic, social, governance and environmental spheres must be taken into account in order to understand the challenge of implementation. Whilst EU waste legislation is reasonably well transposed into national legislation (although sometimes with significant delays) the lack of its ‘real world’ application causes widespread failure in achieving the agreed environmental protection objectives in practice (EC, 2009). In response to EU pressure and in appreciation of mounting levels of waste, Irish waste management practices have undergone a major overhaul since the mid-1990s (EPA, 2017). The main focus of policy development is in respect of conventional policies, albeit ‘with a steadily modernising twist’ (Eunomia Ltd, 2009: 8). Irish waste management policy is at an important junction and needs to encourage a reorientation from the lower echelons of the waste hierarchy to greater emphasis on prevention (DoECLG, 2012b). Central to discussions in this chapter is the Landfill Directive 1999/31/EC and whether Ireland’s implementation of the directive and adherence to the earlier waste framework legislation was influenced by structural shortcomings in the political-administrative system. In 2005, waste was a focal element of contention in the CJEU judgement against Ireland in Case C-494/01 which humiliatingly referred to Ireland’s failure to adhere to environmental laws and standards as ‘general and persistent in nature’. The empirical findings

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acknowledge that both the perceived inaction prior to Case C-494/01 and action in its aftermath to resolve the problems, impact directly on the implementation of the Landfill Directive 1999/31/EC. A poor ‘goodness of fit’ existed between the objectives of the directive, pre-existing Irish waste management policy and the formal and informal institutions necessary to determine the directive’s compliance and enforcement. The Irish administration has grappled with waste governance by relying on technical advice to inform policy, advancing incineration which prompted local resistance, prolonged indecision about the appropriate institutional structures to manage waste, and becoming reliant on the private sector. The problem of waste management in Ireland Waste management challenges Waste management is a contentious and emotive issue and has precipitated policy and governance challenges in Ireland. Its policy, management and issue particularity has been referred to as a national environmental crisis (Fagan, 2011; Boyle, 2002), politically contentious (Davies, 2008) and a high priority area of environmental policy in Ireland (Eunomia et al., 2009; Bacon, 2002). For public administration a steep learning curve has resulted in considerable investment and awareness that strengthening and enforcing implementation is essential. For all this, the private sector is now the main actor in waste collection and it is also active in developing treatment facilities. Local authorities withdrew from these vital services but remain important for civic engagement, regional planning and local enforcement. During the Celtic Tiger years Ireland’s growing prosperity was reflected in changing employment profiles and the level of personal expenditure on goods and services, which increased by nearly 60 per cent between 1995 and 2002 (CSO, 2006). The impact of the recession from 2008 led to a sharp decrease in consumption which was reflected in reduced volumes of commercial and household waste. Waste volumes associated with the construction industry in particular collapsed by 81 per cent between 2007 and 2011 (EPA, 2012). Current data demonstrate that municipal waste generation has increased by 6 per cent since 2012 (EPA, 2017). With economic growth and population increases, a rise in waste generation to pre-recession levels is a potential risk. Municipal waste generation is a good indication of societal consumption patterns since household waste forms a key component of it. Most household waste is collected at the kerbside and municipal waste recovery has increased significantly in Ireland with 59 per cent of this waste recovered in 2012 (EPA, 2014). However, these statistics do not highlight how much of this waste is recovered in Ireland and what constitute waste shipments. Ireland’s performance in waste recycling and recovery for packaging waste, Waste Electrical and

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Electronic Equipment (WEEE) and in household collection services has progressed substantially since 2008. The end of life vehicles stream is more challenging and Ireland did not meet the targets in 2015. Landfill is the traditional destination for municipal waste but this has changed owing to the development of waste recovery infrastructure since the late 1990s. Householders are incentivised to recycle with, for example, pay-by-weight schemes and official reporting indicates a steady decline in landfill dumping (EPA, 2014). Ireland achieved the first and second targets for diversion of biodegradable waste from landfill in 2010 and 2013, largely due to the economic downturn. In July 2016, Ireland informed the Commission that it would avail of the derogation for the 2016 target under the landfill directive. This means that fulfilment of the target is in 2020 and EPA data indicates that this target will be met. This is quite a turnaround when compared to pre-2008 volumes of waste disposal to landfill. Yet landfill capacity and the development of waste infrastructure options remain critical and landfill capacity is not evenly distributed throughout the state. While 21 landfills reported accepting municipal waste in 2011 (EPA, 2014) this was reduced to 6 by 2017 (EPA, 2017a). Low landfill capacity is a problem since it leads to potential environmental impacts due to stockpiling waste or illegal activities. Ireland is also reliant on exporting waste for final treatment and recycling due to a lack of infrastructure. Ireland has no glass manufacturing facility, paper mill or metal smelter and the export of these waste streams means opportunities are unexploited (EPA, 2014) and dependent on export markets. Evidently a long lead in time for planning waste infrastructure is a reality and success in meeting the directive’s targets was likely facilitated by the introduction of municipal waste incineration in 2012. Policy instruments such as the food waste regulations in 2013 and various landfill levies have also assisted with enabling diversion. The most significant change in waste management practice from 2012 is that more residual waste is recovered (i.e. used as a fuel) than disposed to landfill (EPA, 2014). In relation to energy recovery treatment options, licences were granted for three incinerators in Ireland. This was highly controversial and granting planning permission to Covanta for the Poolbeg facility in Ringsend, Co. Dublin led to a stand-off between the former Green Party minister John Gormley and Dublin City Council in 2010. A ‘put or pay’ clause was included in the contract which raised contentious issues about the direction of waste in the capital and a barrister was appointed to investigate the contractual arrangements entered into by the Council. The redacted report (‘Hennessy’) was published in 2011 by the incoming Fine Gael Minister Phil Hogan who also dropped the proposed levy on incineration. The Covanta incinerator was not only the object of intense opposition from Green Party politicians and the residents in Ringsend, Irishtown and Sandymount but also the private sector. The Irish Waste Management Association also

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protested at the size of the incinerator and how the necessity to feed it would stifle ongoing investments to develop facilities for recycling and composting. The facility went ahead but the hospitalisation of eleven workers and the temporary closure of the plant in June 2017, within days of its opening, brought incineration back into the media focus (O’Sullivan, 2017a). The opening of the Poolbeg plant boosts national capacity for incineration and this may risk the gains in recycling behavioural changes being substituted by an emphasis on energy recovery. In May 2018 planning permission was granted to Indaver for its twin incinerator project in Ringaskiddy, Co. Cork. This marks the latest instalment in a saga running since 2001 between the protesting local community and Indaver who have lodged several planning permissions. The current application was under the Planning and Development (Strategic Infrastructure) Act 2006. These issues raises questions about the direction of waste but, as a society, Ireland also needs to make further progress in relation to infrastructural selfsufficiency and prevention. The National Waste Prevention Programme (NWPP) established in 2004 is a response to this dilemma and a requirement under the revised waste framework directive. The NWPP works with both public authorities and producers and leads initiatives like the Stop Food Waste campaign. The NWPP is an example of where Ireland has been proactive and EEA reviews have acknowledged the breadth and depth of its programme (EPA, 2017a; 2016b). A rudimentary interpretation of the profile of waste illustrates two key issues regarding the future of waste management in Ireland. One is the projected increased generation of waste arising from economic recovery and population growth over time and the second is its management. The statistics indicate that efforts to manage waste successfully concentrated on the lower levels of the waste hierarchy though recycling rates have hugely increased. Also, the EPA (2016) indicates that Irish waste statistics suggest some evidence of a de-coupling of waste production rates from economic activity, though this was expedited by the severe recession and austerity and it will be a challenge to hold on to this progress. Effective waste management is not only critical to just environmental protection and public health but also to sustainable economic development and growth. One of the main barriers to a reduction in the relatively high volumes of waste production in Ireland is the historically low base of environmental awareness in Irish workplaces and homes. The levels of awareness and behaviour reported demonstrate that most people did not generally consider environmental issues and were unlikely to consider recovery as an option when purchasing goods, let alone prevention and minimisation (Coakley and Cunningham, 2003: 22). Also, while sanctions such as on-the-spot fines and prosecutions are in place for fly-tipping and littering, they do not appear to act consistently

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as an effective deterrent. In addition, waste collectors report high rates of contamination in bins presented for collection, which limits their ability to recycle the material (EPA, 2016b). Academic commentary has argued that the prioritisation of economic growth by governments has led to an array of structural conditions that support production for profit, regardless of the lack of sustainability of such patterns of production and consumption (Fagan and Murray, 2007: 210). Effective waste management can raise business costs but can also be highly profitable for those in the waste industry itself. Murray (2006) claims that lucrative waste contracts explain the readiness of the private sector to become engaged in this crucial social function. He advocates that economic considerations both internal and external to the waste management industry have played a key role in shaping Ireland’s waste strategy. By 2017, the waste sector was almost exclusively privatised though a number of these firms have gone into receivership or liquidation. Environmental liabilities and remediation costs are a potential risk for the state. It is evident, however, that what was referred to as the waste ‘crisis’ is not simply a technical problem regarding the capacity of the state to dispose of the waste generated by rampant consumption, it is also a ‘crisis of governance’ (Davies, 2008: 103–9). Ongoing disputes over waste charges/options1 and the location of landfill sites or amenity centres have undoubtedly contributed to antagonism towards government waste policy by those who feel most directly affected by such decisions. For example, public protests arose when the regional waste management plans were published as they involved an element of thermal treatment. This evolved into protest over the burning of waste materials as illustrated in protests by Limerick residents in 2017 over Irish Cement’s plans to burn waste as fuel (MacNamee, 2017). The more controversial elements of waste governance have received considerable coverage in the media since 2001. However, a lack of proactive public participation, as opposed to protest, deters waste reduction efforts and Local Agenda 21 principles. Waste governance illustrates both the ambivalence of Irish society towards environmentalism and a minimalist approach to resolving its development problems, resulting in a weak model of environmental policy integration (Connaughton et al., 2008: 146). Waste management is a public policy issue which is multi-faceted and within which the network of actors has diversified to incorporate not only the public, but the private and NGO sector. Who governs, regulates, strategises and ultimately ‘owns’ waste flows in Ireland remain critical questions. The institutional framework for waste remains weak even after twenty years of waste management planning. Other sectoral areas, such as transport and energy, have strong agencies but waste roles remain dispersed to a number of coordinating local authority offices which are promoted as ‘regional’.

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Waste management policy in Ireland The Irish policy approach to waste management reflects efforts to transition from a crudely managed one-dimensional approach, heavily dependent on landfill, to efforts to comply with the waste hierarchy and the polluter pays principle. Further policy development will be influenced by the European Commission’s Closing the Loop (2015) document and legislative proposals which promote the circular economy (DCCAE, 2016). It is evident that in terms of governance and stimulation for reform of this sector, the EU is the principal driver. EU legislation regulates waste and shapes the context for regulation at the national level. Waste is also a local issue and this is further emphasised through the proximity principle. Historically a reserve function in Irish local government, waste management was largely viewed in terms of waste disposal. In all, the antiquated government system for waste management remaining in existence in the mid-1990s was not capable of dealing with changed economic conditions, population growth and consumer trends. At the institutional level the capacity and lack of expertise inherent in local authorities was often emphasised (McDonald and Nix, 2005; Taylor, 2001) and managing the waste performance of individual local authorities was highly variable, which had important ramifications for enforcing EU directives and achieving national targets. For example, in 2002 Mayo County Council managed to divert less than 3 per cent of household waste from landfill compared with 49 per cent achieved in Galway. From the mid-1990s there was a discernible government drive to develop strategies, enact legislation, direct resources and promote information campaigns on waste. The Irish approach has developed from the 1970s/1980s method of control through statutes and ministerial regulations to respond to EU pressures ‘to develop a modern waste policy foundation and to establish a comprehensive legislative framework that would facilitate and underpin the implementation of sustainable waste management practices’ (DELG, 2002: 1). This addressed the vacuum in waste management policy at the national level prior to 1996. Table 5.1 indicates the principal legislation and policy statements introduced. Initiatives to introduce principles of EU environmental policy such as the polluter pays, producer responsibility, prevention, proximity and precautionary are also evident. While the volume of policy and legislative development is impressive a practical consequence is its disjointed nature and the Waste Management Act 1996 has been amended substantially over time, along with associated regulations (see EPA review 2011). In 2009 waste management policy was described as being ‘in flux’ (Eunomia Ltd, 2009) and it took until July 2012 to publish the new waste policy entitled A Resource Opportunity: Waste Management in Ireland. Since 2012 there has been a clear government policy focus on waste as a resource and a virtual elimination of landfilling (EPA, 2016a). Policy also ensures conformity with

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Table 5.1  Key policy directions and legislation directing waste management Waste Management Act 1996 Changing Our Ways 1998 Waste Management (Amendment) Act 2001 Cleaner Greener Production Programme 2001

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Preventing and Recycling Waste – Delivering Change 2002 Protection of the Environment Act 2003 Waste Management – Taking Stock and Moving Forward 2004 National Waste Prevention Programme 2004 National Overview of Waste Management 2004 National Biodegradable Waste Strategy 2006 Policy Direction (Action against illegal waste activity, movement of waste) 2005 Policy Direction (Preparation of an enforcement policy in respect of unauthorised waste activities) 2008 International Review of Irish Waste Policy 2009 Green Public Procurement Green Tenders January 2012 Regulatory Impact Analysis July 2012 A Resource Opportunity: Waste Management in Ireland, 2012 Towards a Resource Efficient Ireland: A National Strategy to 2020 (NWPP documents and annual progress reports) Waste Reduction Bill 2017

the revised EU Waste Framework Directive which was transposed into Irish law in March 2011 by the European Communities (Waste Directive) Regulations 2011 (S.I. 126 of 2011). This legislation was very significant as it introduced many new obligations for public and private sector waste operations as well as for regulatory authorities (EPA, 2012). A Resource Opportunity is a pragmatic document that refers to Ireland making ‘the further progress to become a recycling society’ (DoECLG, 2012b) rather than overtly emphasising sustainability. The phasing out of flat-rate bin collection fees was implemented in 2017, with a shift to a universal ‘pay by weight’ basis. Refining the context: Ireland’s compliance with EU waste management policy Before giving a more detailed account of practical implementation in waste management, this section refines the context for understanding the long road taken by Irish public administration to meet EU requirements and the landfill

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directive. In October 2002, DG Environment held a name, shame and fame event in relation to landfills and Ireland was identified as having five infringement cases against it. The proceedings concerning the non-communication of the national measures transposing Directive (99/31/EC) on landfill of waste had reached the reasoned opinion stage (McKenna, 2004: 9–10). Further EU vigilance was stimulated by the discovery in 2001 of illegal dumps of toxic and hazardous waste at several locations including North Co. Dublin, Coolnamadra and Whitestown Quarry. Landfill was being officially tolerated on wetlands and even in SACs such as Killbarry Bog in Tramore, Co. Waterford. By 2005, the problem of the large-scale illegal landfills had greatly diminished but 25 unauthorised landfills and 15 unauthorised waste handling facilities remained. To add to these deficits the department was mandated to take responsibility for unauthorised hazardous waste within the site of a former steel works at Haulbowline, Co. Cork following the liquidation of its company Irish Ispat. An inspection of the site itself was the subject of a European Commission delegation in 2011. Illegal waste was also associated with criminal activity in the guise of the cross-border illegal movement of waste. During 2002, four illegal dumps containing waste from the south of Ireland were identified in Northern Ireland. Northern Ireland was also used as a transit point to take waste to Scotland where landfill charges were lower than in Ireland. In addition, the illegal laundering for diesel and other illegal fuel operations in the border areas produced a lot of toxic waste products which were dumped in the surrounding countryside. Increased enforcement effort and coordination between the EPA, relevant local authorities and the National Bureau of Criminal Investigation has reduced this practice and chased prosecutions (EPA, 2005; 2014). However, the illegal face of waste is also personified by the ‘man and the van’ whereby fly-tipping and backyard burning requires constant vigilance by local authorities. A percentage of the population engages in such activities in order to avoid payment of waste charges. The acknowledgement of wide-scale illegal dumping and EU surveillance was a catalyst for the establishment of the OEE in 2003. Despite (or in spite of) this, in 2005 the Court of Justice referred to Ireland’s failure to adhere to environmental laws and standards as ‘general and persistent in nature’.2 On 20 April 2005 the CJEU ruled against Ireland in Case C-494/01 on the persistent and general failure to fulfil obligations of the WFD. Although the key focus of this chapter is the landfill directive, the (revised) waste framework directive is significant and interlinked since it lays down the core principles and the basic rules for handling waste. As a consequence, all subsequent regulation derives from the WFD which should have been implemented from 1977 onwards. Regulations had been introduced in 1979 but they only controlled private landfills, of which there were maybe only one or two (Personal Interview

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M). It was the local authorities – who were supposed to enforce EU waste legislation not break it – who owned and operated the majority of landfills. It is evident that Ireland was serially non-compliant with the directive given the extent of unauthorised activities tolerated, the irony that local authorities considered their activities exempt from planning law, and the lack of transposition into national legislation until the Waste Management Act 1996. Adequate waste management plans were non-existent and prior to the establishment of the EPA in 1993 waste activities were not controlled through issuing permits or conducting regular inspections. During the first half of the 1990s the Commission’s case focused on the critical weaknesses of the formal application of waste management requirements in Ireland, in particular the exemption of local authority landfills from authorised permits and external control (Personal Interview A). These lapses were addressed through the introduction of EPA licensing in the Waste Management Act 1996. Yet from the late 1990s the Commission noted that the EPA was introducing the licensing system very slowly (processing licence applications over three- and four-year periods), de facto allowing sub-standard landfills to continue functioning. Where court action was taken against illegal operators, the penalties imposed by the courts were almost always very low compared to the potential illicit profits made. The European Commission also noted a failure to enforce waste rules effectively for illegal waste disposal by private parties and this coincided with the privatisation of waste collection and waste infrastructure. An investigation of twelve complaints concerning unauthorised waste activities in Ireland in the period 1997–2001 finally led to proceedings against Ireland. The European Court examined each complaint via EPA reports, newspaper articles and correspondence. Examples included the unauthorised disposal of waste material at Murphy’s Rock, Co. Cork in 1999. This was ironic since the EU had co-financed the construction of the Blackpool bypass in Cork which generated this waste. Further, the project was under the responsibility of Cork City Council which is a waste management authority. A member of the legal team representing Ireland in the case commented that cumulatively the evidence from these complaints determined the case against Ireland. Although the European Commission was satisfied with the Waste Management Act 1996 as a framework they proceeded on the basis of Ireland’s substantive failure to comply with the directive (Collins, 2009). Essentially, they were able to demonstrate that ‘from maybe eight or ten different geographical locations there was disrespect for the 1996 Act and local authorities were doing nothing about it’ (Personal Interview M). This official further noted: ‘We should have fought like hell to get the resources to fix the problems that were being cited by the Commission case, instead of attempting illogically to defend it.’ In other words, the operational implementation failure as a result of late transposition,

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large-scale administrative problems, and a vacuum in domestic legislation for twenty years was obvious. The result was a landmark ruling on Case C-494/01 in 2005 – the first time a member state was condemned for the systemic lack of implementation of core waste management rules (Personal Interview A). Since then there have been comparable rulings against Italy, Spain and Greece. Such developments illustrate that the European Commission has no means to remedy the basic underlying problems in member states but can only wait for a judgement on infringements (Milieu, Ambien Dura and FFact, 2009). The judgement in the Commission v. Ireland of 26 April 2005 demonstrates that it is primarily for the national authorities to conduct the necessary onthe-spot investigations and facilitate the Commission in ensuring that EU legislation is applied. On 23 September 2010 the Commission sent Ireland an additional letter of formal notice to comply with the 2005 judgement (bringing the case under the subject of Article 260(2) TFEU proceedings). The Commission observed that the length of time elapsing between detection of an illegal site/operation and ensuring full compliance with the directive represented a crucial criterion for determining whether the requirements of the directive were properly met. On 30 September 2010 the clean-up of the Haulbowline Island’s East Tip site was added to the follow-up of Case C-494/01. The responsibility for the degree of substantive failure lay squarely with the public authorities and is symptomatic of the late development and attitudes to developing a framework for environmental governance discussed in Chapter 4. The waste dilemma is summed up in the comment from one of Ireland’s regional waste offices, ‘[Case] 494–01 occurred because there were no resources, no targets, no monitoring and the bulk of complaints coming from Ireland was more than all the other countries put together’ (Personal Interview H). This view is echoed from the OEE where an interviewee commented that the enabling legislation and direction for waste came ‘twenty years too late, vetoes delayed things further and it all had to be done in a rush because of the ECJ judgement’ (Personal Interview G). In this case study implementation delay is palpable. Ireland responded by addressing the fragmented nature of waste management and addressing the structural/administrative deficiencies highlighted by striving towards a more systematic and coordinated enforcement of waste rules. This involved applying concrete actions to site specific cases, including commitments towards the rehabilitation of unlicensed landfills with the provision of attending to wetlands lost as a result of waste. Further sites arose in the interim which also required remediation for environmental, reputational and economic reasons (DoECLG, 2015). Dealing with Case C-494/01 indicates a steep learning curve for the public administration as it worked to ensure full compliance

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with the judgement. In April 2012 A Roadmap for Case C 494/01 Commission v. Ireland was approved by the Irish government and agreed with the Commission in April 2012. It detailed each outstanding issue and in the event of insufficient resources being available from the Environment Fund, the government committed to vote funding to address compliance shortfalls. A further programme of measures was published in 2015 detailing the compliance deliverables on each item of the judgement. Officials had hoped for an earlier closure of the case but it was not until 22 October 2015 that it was officially closed at EU level – a full decade after the original judgement. Taking this context into account the remainder of this chapter explores Ireland’s waste management experience through the lens of top–down and bottom–up perspectives of implementing EU environmental policy. Top–down implementation – adequate causal theory In contrast to interpretations of top–down implementation as a streamlined administrative and legal process, Ireland’s implementation of the landfill directive points to something of a ‘roller-coaster’ experience. Although it is a technical area of environmental management, waste issues have been highly politicised in Ireland, nonetheless they have also been characterised by learning. The socio-economic environment over the past two decades has also changed from boom to bust and recovery, with different ministers approaching the waste challenge differently. Fianna Fáil Ministers Dempsey, Cullen and Roche were pragmatic in seeking solutions whereas Green Party minister John Gormley was opposed outright to incineration, and advocated the advancement of new technologies. In 2011 the Fine Gael minister Phil Hogan retracted his predecessor’s proposal to introduce a levy on incineration and Alan Kelly of Labour and Denis Naughton of Fine Gael upheld this. Incineration and energy recovery now have a role to play in treating waste that cannot be recycled or reused. This reaffirms the primacy of local level politics and the acknowledgement of political contestation in Europeanisation explanations. Ireland’s core decisions in waste, although shaped by EU law, have been driven by local disputes and policy choices. Implicit theory to effect change Together with the (revised) waste framework directive, the Landfill Directive 1999/31/EC sets out stringent operational and technical requirements for safe and controlled landfill activities, ranging from the integrated monitoring of sites, to pre-treatment of waste and reduction of biodegradable waste going to landfill. Together they indemnify the ‘clear and consistent objectives’ required to commence analysis of top–down implementation. In negotiations Irish

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officials from the Department of Environment lobbied hard for four years derogation to the landfill directive’s schedule because of the country’s heavy dependence on landfill.3 While this may appear to conform to taking a proactive stance in terms of Ireland’s interest, seeking the derogation was symptomatic of wider difficulties that the Irish authorities experienced with EU waste management legislation, and also further slowed down implementation. The high dependence on landfill and lack of facilities for diversion represented a distinct ‘misfit’ in terms of domestic policy orientation and practice for Ireland. Prior to 1996, waste management was still governed by the 1878 Public Health (Ireland) Act (Rudden, 2007: 271). The lack of transposition of the original waste framework directive from 1975 resulted in a status quo where waste policy remained loosely managed through Public Health statutes and ministerial regulations made under the European Communities Act 1972 (Meehan, 1996). Waste disposal by landfill provided a source of income to local authorities, and local authority monitoring was very patchy. The primary legislative response of the Irish government was the introduction of the Waste Management Act 1996. The Act and a policy document directed at local authorities from 1998 called Changing Our Ways (DoELG, 1998) impacted on waste management more than other policy developments. The Act consolidated all existing legislation on waste, and the policy document – the first to outline specific national waste targets for the future – was a pre-emptive response to the upcoming landfill directive. In addition, Waste Management (Licensing) Regulations 2004 (SI No. 395 of 2004) constituted the transposition into Irish law of the Landfill Directive (1999/31/EC) which came into effect on 16 July 2001. Article 5 of the directive sets out requirements for member states to establish a national strategy for the reduction of biodegradable waste going to landfill and the National Biodegradable Strategy was formally published in April 2006. The fact that the 1996 Act was in place before the Landfill Directive was adopted at EU level did mean that the substantive legal framework was in place before the latter directive took effect. The national biodegradable strategy required by the landfill directive was supposed to be published by 16 July 2003. Public consultation on the draft raised several issues, including the impact of regulation 1774/2002 on animal by-products. This resulted in delays in order facilitate negotiations between the Department of Environment and Department of Agriculture and Food on how the latter were going to implement the animal by-products regulation in Ireland. There were also questions over the infrastructure required to cater for the volumes that would have to be dealt with. With transposition already decades behind, the question arises as to whether the incorporation of the waste framework and landfill directive into Irish national law prescribes ‘adequate causal theory’ for the implementation

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of waste management regulations in Ireland. The central tenets of the 1996 Act have remained central to consolidating core waste rules in Ireland, though further strategy development and many new regulations have since been adopted. In the passage of time it is evident that strategies have taken cognisance of a move away from local authorities as providers of waste services towards regionalisation and private sector participation. Prior to case C-494/01 local authorities, as the designated implementing agencies, were not initially provided with the resources – either financial or in terms of staff expertise – necessary to implement a regulatory programme. In addition, the prescription of waste regions crossing local authority boundaries was not specified in detail. There was some success with the introduction of new policy instruments to induce behavioural change but contestation and criticisms of their application is also evident. The plastic bag levy launched in 2001 was considered successful whereas in 2002 the introduction of a conservative landfill levy as opposed to a genuine disincentive to using landfill was not effective. The outcomes illustrated two important issues, namely that the public should be provided with other alternatives to deal with their waste and that illegal disposal of waste requires vigilance. The situation was summed up by an official: It [the system] evolved in an ad hoc way … any local authority who never had a landfill will never build one and any one that has a landfill is stuck with a landfill and they have a huge decision as to whether they build a new landfill or let the private sector. But the difficulty is that the city/county manager is caught in a dilemma to make sure that he can guarantee the infrastructure for his ‘city state’. So they have this dual role making sure that (a) there is this waste infrastructure there first of all and (b) it must be affordable. The fear is that if they leave the scene that the private sector will enter and the prices will go up through the roof. They will complain (private sector) that the public is wickedly expensive but the public sector is paying for all the recycling bring-banks and infrastructure that the private sector does not have to do. (Personal Interview G)

Regional waste planning Individual local authorities within a ‘regional’ structure are the key public authorities in conjunction with the EPA and OEE to give effect to compliance. Section 22 of the Waste Management Act 1996 requires local authorities to prepare waste management plans and provided for the collaboration of two or more local authorities to make a regional waste management plan. It was anticipated that these regional groupings could avail of economies of scale by facilitating the construction of larger, more efficient landfills, creating a market for a number of incinerators, developing recycling infrastructure (Rudden, 2007; Boyle, 2002). This was a new approach to waste management as local authorities traditionally exercised their waste planning and management functions

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in isolation from each other, and generally from other service providers. What emerged was ad hoc structure that did not parallel the eight planning regions served by the Regional Authorities established in 1994. The waste regional alignment for waste was based on political boundaries non-aligned to the Regional Authorities and/or other regional structures. From 1996 to 1999 regionalisation was encouraged but: ‘No one sat down and gave instructions on whom to include or exclude in regional groupings. The Act itself gave the Minister power to take decisions on this and issue instructions but this was not done. The Waste Management Planning Regulations in 1997 contained what the content of a plan should be and may have prompted the groupings’ (Personal Interview N). The threat of intervention from Europe created tensions between central government and the six local authorities that had not adopted plans (Davies, 2008: 92). In all, central government was keen to move the waste planning process forward in order to avoid confrontation with the European Commission, but it was also unwilling to renegotiate the content of the plans in the face of resistance from locally elected councillors (and, in some, cases TDs) who had the responsibility for adopting them. In this instance clearance points in the implementation process were hampered by locally elected councillors acting as veto players. The Irish political system is not typically characterised by formal veto points since the authority of government with a majority in the Dáil is regarded as traditionally strong. However, since 2016 Ireland has had a minority government, which although rare, is not unknown historically. A variation is coalition government and/or dependence on independent TDs. This means Irish governments may not be as strong or majoritarian as is sometimes assumed. The nature of the Irish electoral system, however, promotes the mobilisation of partisan veto players and can even pit members of a political party against each other. Arguably, the socialisation of locally elected councillors in EU matters is also less developed than ministers who run a department or TDs who participate in Oireachtas committees. Additionally, given the dominant features of localism and brokerage in the political system, they are less likely to accept the premise of the superior order of EU law within their own constituencies. Stalemate ensued as Longford rejected the draft regional plan for the Midlands in November 2000 and joined seven other councils, Louth, Donegal, Laois, Roscommon, Wexford and Galway who also rejected waste management plans. Resistance from specific veto points can be overcome if the statute provides sufficient sanctions and/or inducements to convince role occupants to alter their behaviour. What became exacerbated in this situation was a conflict over the implementation of infrastructure between and within counties with respect to the elected tier and the permanent local authority officials. Eventually Minister Noel Dempsey ignored the concerns of local democracy and directed the county/city managers to approve their own plans.

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A further enhancement of executive functions took place with the Protection of the Environment Act (2003) which allocated further authority to the county manager and provided local authorities with explicit powers to stop collecting waste from householders who had not paid their charges. Surveying the process also demonstrates the absence in support of typically one lead implementation agency identified in implementation models, as arguably the EPA and An Bord Pleanála have different roles to play. No single agency is assigned or accepts full responsibility for ensuring adherence to national and EU waste policy in regional waste management plans, or for monitoring landfill capacity developments. In many respects the EPA/OEE is the agency given the role to focus on sanctions, incentives to overcome resistance and to give implementation a high priority. The number of agencies involved in waste regulation is further extended to include the National Trans Frontier Shipments Office (NTFSO) for hazardous waste, a National Waste Collection Permit Office (NWCPO) set up in 2012 and since 2015, three Waste Enforcement Regional Lead Authorities (WERLAs) responsible for coordinating local authority enforcement within their regions.4 The 2012 policy indicates that waste management plans will remain a local authority function, guided by ongoing reform of local government, but with the support of a National Waste Management Coordination Committee. Commentators note that the lack of a national waste management plan in favour of regional plans may be a hindrance to implementation (Watson, 2013: 20) but a centralisation of waste management implementation structures is apparent (Connaughton, 2014b). An important structural reform is the formation of three waste regions in 2013 – Connacht-Ulster, Southern and the Eastern-Midlands – which reduces the number of regions from ten. In May 2015 the three regional plans covering the period 2015–21 were published simultaneously, reflecting alignment with EU/national policy, new efforts at coordination, single access points and shared services as per public sector reforms. A review of waste enforcement structures took place in 2013 and, following this, the WERLA offices were created to further drive performance and consistency in coordinating enforcement activities. The new structures present an opportunity to address the implementation log-jams that local authorities experience as a consequence of unclear policy direction from the centre. National policy is not always lucid in relation to which targets and policies the regions are required to implement (Watson, 2013; Hogg et al., 2009), as evidenced with approaches to incineration. The department is now more focused on keeping as much of the municipal solid waste that is generated in Ireland recovered and disposed of in Ireland to meet the principles of proximity and self-sufficiency, yet it is unclear what the strategy for this is. The target achievements in the plans are supported through local authority executive orders but waste management is



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carried out by the private sector with the result that competition and market forces will significantly influence how waste is directed. Role of the private sector Involvement of the private sector is a dominant aspect of Ireland’s ‘implicit theory’ for implementing EU obligations but the consequences, intricacies and inevitable tensions in public/private relations were not thought through. As Ireland’s municipal waste stream became increasingly privatised in the period up to 2011, municipal involvement in establishing contracts or determining the flow of waste declined drastically. This is not surprising given the inadequacy of local authority performance over time. Contracting-out is the most common arrangement for waste collection services across the OECD where local authorities retain responsibility for service quality and the ability to direct waste streams, while simultaneously maintaining competition by allowing private sector firms to bid for contracts (OECD, 2008: 329). The efficiency of contracting out refuse collection was demonstrated as more cost-effective for Irish local authorities (Reeves and Barrow, 2000: 147). Yet Ireland became an exception to OECD trends as it privatised so much of the waste structure. In 2010 only 5 per cent of municipal waste was collected under contractual arrangements with the private sector via competitive tendering and even large urban areas in Dublin are privatised. Local authorities with mixed service provision saw unbridled competition between public and private sectors for the same customers in ‘side by side competition’ rather than managing this through a tendering process. By 2016 Kilkenny Borough Council was the only local authority still in the household waste collection market (EPA, 2016b: 9). There is no evidence that private providers charged higher or lower collection fees than local authorities (OECD 2008: 331) but the private sector does ‘cherry pick’ the more profitable routes in urban areas. The public loses out since the outcome is not optimal in terms of efficiency and results in unequal treatment (communities not served by routes and difficulties applying waiver schemes). In addition, the ownership of waste and control of waste streams to waste disposal facilities became a critical issue with the increase in direct private sector delivery. Most existing landfill capacity is publicly owned whereas alternative waste treatment facilities are inevitably developed through private financing. This necessitates good coordination of regional waste plans in order to take into account the waste infrastructure needs at national level and to guarantee economic viability of investment. The dilemma is illustrated in a controversial judgement on 21 December 2009. Mr Justice McKechnie ruled that four Dublin local authorities had breached competition law by abusing their dominant position in household

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waste collection in a bid to remove rival private operators, Panda and Greenstar Ltd. The judge informed the High Court that if a private company collects waste, they own it and can determine where that waste goes (Kelly, 2009). The withdrawal of local authorities from direct service provision in waste in 2011 led to a concentration of firms and also removed the interpretation of a conflict of interest, since local authorities were both regulators and competitors with the private sector. The development of the market to remove local authorities and replace them with the private sector was not a desirable or foreseeable policy goal, neither was it regulated effectively. A commitment to the private sector’s partnership with the state is pledged in A Resource Opportunity. This includes a Waste Forum meeting twice per year to consolidate cooperation and review policy practices and outcomes. A more consistent approach to articulating policy expectations and opportunities to the private sector is realistic ‘since industry needs adequate notice for investment and this will facilitate a more satisfactory implementation structure’ (Connaughton, 2014b: 213). Expertise and support Implementation is also affected by the availability of expertise where the support of all actors and appropriately qualified officials builds capacity and is a variable that most directly affects the policy outputs of implementing agencies (Connaughton, 2014b). The development of the waste plans is the prerogative of consultants in Irish public administration. The engineering consultants M. C. O’Sullivan played a pivotal role in drawing up all but two of the country’s original waste plans, including feasibility studies for thermal treatment. According to Boyle (2002: 183) government’s reliance on the expertise offered by M. C. O’Sullivan signified recognition of their own lack of expertise in waste management planning. Central government actively advised local authorities that they should seek assistance from these waste management experts to draw up the plans that utilised an integrated approach to waste (Davies, 2008: 91). For practical implementation, the OEE is central in providing direction to local authorities dealing with the EU regulatory framework. A training programme for local authority enforcement staff was introduced which led to confidence in taking prosecutions and capacity to prepare files to Director of Public Prosecutions (DPP) standards. The Environmental Enforcement Network is also coordinated by the EPA. It not only brings together waste enforcement officers in local authorities but also other agencies with a role in enforcement, including the Garda Siochána and customs officials. Although prompted by the difficulties in satisfactorily implementing EU legislation, the enforcement network is one of the first attempts in a member state to replicate the IMPEL model (Personal Interview G). This exercise in capacity building has had considerable success in tackling offences such as illegal dumping and illegal

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cross-border movement of waste. This has been highly significant for implementation at the local level since ‘it is up to local authorities to drive the work and it [enforcement network] provided a capability to enforce’ (Personal Interview H). Sustaining this expertise is dependent on funding provided to local authorities. Also arising from the enforcement network are thematic working groups such as, for example, packaging. These are wound down as issues are dealt with and help to bring more structure to local authorities in their preparation of enforcement plans and the systematic structure now required for inspection. The Department is also more likely to liaise with the local authorities if drafting legislation. For example, a producer responsibility liaison group, of eight to ten people from the local and regional level, the EPA and the Department existed to ‘bounce around ideas’ and obtain views and feedback from the implementers before going to other stakeholders or public consultation (Personal Interview F). This process commenced with the WEE directive and was replicated in dealing with regulations on end-of-life vehicles and farm plastics. A liaison between central and local levels of government is important since it should also assist in avoiding the ‘paradox of increasing policy discretion’ through a standard reaction of piling rules on top of rules, which has effects opposite to what rule makers intend (Hill and Hupe, 2009: 168). Undertaking capacity building jointly with the relevant officials and including local officials in drafting domestic regulation following on from EU directives reduces unwieldy discretion and brings more consistency to implementation. From the central level perspective of the top–down approach it does appear that initially no clear vision was articulated on how to bring the first regional plans to fruition and develop economies of scale. In 2005 a second round of regional waste plans was subsequently adopted without any full official evaluation process of the first round or change to the arbitrary territorial boundaries. It is now accepted that this structure did not yield effective waste management infrastructure and A Resource Opportunity reduced the regional formations from ten to three. In the aftermath of the panic to establish waste planning and then respond to Case 494/01, the system for implementation did not find favour with the European Commission, who in 2009 considered, an enforcement system devolved to too many separate local authorities is not ideal. This is for several reasons: waste movements and issues that cross functional boundaries; thinness of staffing in each local authority and lack of critical mass in terms of expertise, experience etc.; risks of inconsistency and incoherence as between different authorities; likely greater cost of trying to fund many separate enforcement authorities. The creation of the OEE with other associated measures (creation of a network of agencies) was an attempt to overcome these difficulties but I think it is sub-optimal. (Personal Interview A)

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A valid theory of how to proceed also became bound up in complex relationships between the public and private sector over who had the power to own and direct waste. Local authorities were expected to fulfil the requirement of EU legislation without the authority to direct waste. Because they did not have this authority they could not guarantee an income stream for infrastructure development. They also withdrew from waste collection and the private sector filled the gap. In surveying waste collection in several European countries, Dijkgraaf and Gradus (2008) noted that the public versus private debate places too much emphasis on ownership when primary attention should be given to market structure, regulations and incentives, and the level of contract completeness. ‘Analysis suggests that regulation may be more effective than simple privatisation. Regulation is central to ensure quality and efficiency gains’ (Dijkgraaf and Gradus (2008: 17). The problems which developed in Ireland suggest that the regulations were poorly applied because the market was not structured properly – hence implementation became unsatisfactory and required adjustment. Bottom–up implementation – the ‘living constitution’ matters At sub-national level, waste management was traditionally a source of revenue for local authorities but it has evolved into an increasingly significant expenditure item (OECD, 2008). Following the 1996 Act, local authorities’ role in waste management developed into a wider, holistic environmental protection role. This contrasts with the concentration on obtaining waste collection revenue and managing the local dump in the era preceding this. Local government now manages horizontal relationships with private sector operators and communities, as well as vertical links with the EPA and the Department. The discussion on the local implementation habitat is explored through three key points: local controversies over waste, difficulties local government has in dealing with centrally derived decisions, and weak resources. From the viewpoint of local authorities, the repercussions of the ECJ Case C-494/01 were considerable: ‘[The] European court case was really about non-implementation of the regulations and in part landfill. As a result the local authorities have to pick up the pieces and do the things that the European court wants Ireland to do. [It is] very difficult and complaints for planning submissions are a big problem’ (Personal Interview I). The Changing our Ways policy statement (DOELG, 1998) provided quantitative targets for diversion from landfill but no satisfactory financial basis to fulfil them. It is asserted that central government failed to give support and direction to local authorities, leaving them to bear the consequences of previous low cost waste disposal strategies. The time frame within which these targets were set also corresponds with the government decision to abolish domestic water rates and changes to



Case: Waste management

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the structure of local government finances from 1997. Central government reduced the rates support grant and gave permission to local authorities to charge for services, leading to the imposition of increased bin charges. Centrally derived decisions and local ‘fit’ From a bottom–up perspective, regions should have a ‘stronger voice’, better funding and greater capacity. These prescriptions correspond with general ideals put forward in local government reform. The establishment of the waste management regions, however, created a division between central and local government whereby national politicians nurtured a distance between themselves and the difficult decisions needed for the management and regulation of economic growth (Fagan and Murray, 2007). At local level, the necessity for the Waste Management (Amendment) Act 2001 and the Protection of the Environment Act 2003 can be perceived as ‘a lack of good democracy or failure of ideas’ (Personal Interview O). As local communities were being encouraged to take ownership of local sustainable development and stakeholder engagement, power was ironically shifted from locally elected representatives to the county manager and was not channelled through the mechanisms intended to revitalise sub-national government (Connaughton et al., 2008). The frustration of local officials working under such imposition is illustrated in this comment: ‘The Department would take the view that we are a crowd of Indians. Regulations were issued and came down to us but prior to 1990 at least some of these regulations were unworkable. They would sometimes contact us at a pre-draft stage to ask for steering, but very rarely’ (Personal Interview H). Local authorities cannot alter the requirements of the landfill directive and were not part of its negotiation. Where problems arise, the origin is likely to be due to a lack of resources, a vacuum of expertise and the fragmentation of waste governance. Other difficulties occurred in providing clarification to local contractors on licensing laws and applications. In respect to the latter, comments from a private sector contractor illustrate the confusion encountered, ‘Sometimes you go to the Department and they say go to the local authorities. You go to the local authorities and they say go to the Department. They say that is an implementation measure that the local authorities have to do. You are caught between a pillar and post and then you go to the EPA’ (Personal Interview P). The discussion on top–down implementation acknowledged that local authorities were not architects of any of the regional configurations. Local actors identify the key structures for waste at sub-national level as the county and the council. Local officials progressed the second set of regional plans in 2005 without controversy and the consultants employed were recognised as holding the expertise and resources. The effectiveness of local authorities working together to deliver services in cooperative networks across city/county

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boundaries is variable and they can be in competition with each other to the detriment of finding sustainable solutions. For example, the quantitative measures for meeting the targets for biodegradable waste diversion were outlined in the National Strategy on Biodegradable Waste 2006 (DoEHLG, 2006a) but the regulation was dealt with separately. The byelaws introduced to enforce the segregation of food waste from households and commercial premises were hampered by economic competition among local authorities which controlled the majority of dumps licensed for household waste. The reality was that revenue from landfill was used to straddle the financial shortfall between local government expenditure and the central government grant. Typically, the finance to implement waste plans is a critical indicator of capacity at local level. The economic crisis which crystallised in 2009 led to reductions in local authority budgets affecting allocations to waste management and the non-renewal of local authority staff on contracts, which are high in the environment area. An official interviewed referred to waste management as having drawn the short straw in relation to budget priority. To the chagrin of some private sector contractors, the Environment Fund is an important source of funding for local authorities to provide waste infrastructure, enforcement and waste reduction research. Initially, the grant allocations from the Fund were deliberately targeted at recycling initiatives that would be visible at local level in order to help raise awareness and to demonstrate the government’s commitments to supporting recycling development. The experience of several local authorities, however, indicated that providing some of the infrastructure can equate with a ‘white elephant’ since the waste to utilise it could not be guaranteed. The other side to this dilemma is the absence of infrastructure. Waste contractors operating at local level questioned why they should raise private capital when there isn’t a level playing field for them to participate in. Issues that led to delays in implementing the landfill directive included the hesitation of local waste collectors to take initiatives such as waste segregation through the introduction of a third bin for biodegradable waste collection since they feared their competitors would undercut them. Eventually, household food waste regulations (S.I. No. 71 of 2013) made it mandatory and waste collectors must provide a separate collection service (though not all do). Building local capacity The goals for infrastructural delivery and changing waste practices to minimisation, reuse and prevention, all raise questions about the types of implementation structures to further them. From 2001 regional waste managers have been appointed to assist regional waste authorities. Each region has a waste steering committee which meets for strategic planning and a technical adviser from the Department also regularly meets with this group. Since 2008 local authorities

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are required to implement a code of practice and training for local authority staff in waste management and assessment of risk. This provides a framework for staff to take decisions in dealing with both illegal and historic landfills. By late 2009 fourteen local authorities were working closely with the EPA on the Local Authority Prevention Demonstration (LAPD) programme which has focussed on specific targets such as paper reduction and initiatives for apartments and shopping centres. Waste prevention is now a priority and a collaborative Local Authority Prevention Network (LAPN) working with awareness officers undertake dedicated EPA grant aided prevention and resource efficiency activities with local communities and businesses. Local authority personnel remain the first responders to investigate breaches of waste legislation and, since 2008, this is complemented by enforcement plans, the OEE-led enforcement network and, more recently, the WERLAs established following the national review of enforcement capacity in 2013. Enforcement action plans require an overt presence of staff to ensure compliance through visible enforcement activity on the ground such as roadblocks, inspections of premises and port inspections. Some local authorities, such as Cork County Council, have also used aerial surveillance to identify unauthorised sites, such as scrapyards, operating in their area. The introduction of the lead regional enforcement authorities is underpinned by the Department’s commitment to continue to support the costs of the enforcement network post 2014 in order to retain the 120–130 officers across local authorities (DoECLG, 2012c). Collectively, in 2014, they performed some 64,000 inspections and initiated over 450 prosecutions (EPA, 2015a). Illegal dumping is an ongoing phenomenon and local authorities receive additional funds and are encouraged to invest in covert surveillance and smart technology to crack down on those dumping waste illegally. The frustration in dealing with laundering or illegal dumping was expressed in official interviews whereby the high number of incidences and callouts was highlighted, emphasising the drain on local authority resources that could be diverted elsewhere. Formal consultation with the public is a mandatory aspect of local authority waste planning. Local actors (including local officials) acknowledged the importance of public consultation but were sceptical of its effectiveness. In general, local authorities have not been very successful in engaging the general public during the consultative process. A low level of interest, regardless of consultation mechanisms, is at odds with the mobilisation of groups opposed to waste infrastructure or waste disposal charges and their campaigns around the country (Leonard, 2006; Murray, 2006). For example, Davies (2003) identified a discrepancy between public participation in the formal process of waste management planning and informal protests against the infrastructure associated with waste management in her study of the anti-incineration campaigns in Galway.

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Local actors in service delivery Only 11 of the 29 county councils in Ireland were involved in household waste collection by 2002 (EPA, 2006a) as a result of rising costs and declining customer numbers. Such developments prompted the private sector to buy up waste disposal units and gain greater control over the market. By 2012, 32 of the 34 local authorities were no longer providing direct waste collection services (DoECLG, 2012c), yet 29 per cent of occupied households in Ireland did not participate in, or were not offered, a waste collection service. Many local authorities handed over their customers to private firms, including Dublin City Council, which transferred its client base to Greyhound in autumn 2011. During the same period Kerry County Council sold its waste collection service for less than €500,000 in order to avoid the increasing losses and in view of more stringent regulation arising in the future. In terms of infrastructure/ regulation there are over 600 waste facilities permitted by local authorities in Ireland and over 1000 waste collection permits in force. There are also 2,750 waste authorisations, issued by both local authorities and the EPA, in place for smaller-scale activities such as ‘bring banks’ and other recycling collection points (EPA, 2015a). Overall, the exploration of waste collection in Ireland illustrates weak competition or collusion, because of the trend to concentration in the market. However, local authorities have been responsible for issuing and oversight of waste collection permits, which are necessary if a private sector firm is to collect waste. This is an issue that the private sector was sensitive to, even though the collapse in side-by-side competition reduced the observations of inconsistency in the dual regulator/competitor role of local authorities. Any attempts to introduce competitive tendering will be contested by the private sector. This scenario reflects a fundamental difference between the operation of the public and private sectors. The private sector is motivated by profit and local contractors want to have guidance for their operations and then proceed to pursue profit. The circumstances that have arisen also add to the debate on whether local waste collection should be a public or private service and are a manifestation of the mistakes made in the haste to comply (late) with the EU regulatory framework. It should have been the case that local authorities contracted out different waste regions to different waste contractors and avoided monopolies and avoided different trucks driving up the same road because they have three customers each on that road. We should never have allowed that from a sustainable point of view and there was no forward thinking at the time. But that is the legacy we are dealing with now and we have to cooperate with them [private sector]. (Personal Interview I)

However, the support of the private arm of business is critical for the implementation of waste regulation.

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Case: Waste management

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Another unforeseen consequence arising from the implementation of waste decisions and the privatisation of services at local level is the impact on disadvantaged socio-economic populations. As local authorities stepped back from waste management services the requirement to provide a clear system of assistance for weaker socio-economic groups was poorly addressed and altered after the new entrants were in place and could apply pressure on the local authorities to deal with their concerns and issues. The vacuum that arose from the demise of the local authority waiver system was brought to the attention of the Ombudsman and the Department. A senior local authority official referred to the Department’s position on this issue as ‘schizophrenic’ since it was allegedly refusing to deal with it. The private sector perceived the waiver debacle as further evidence of little strategic thinking and one of their representatives commented, ‘Private companies want to make money … Waste is a service that cannot be provided at no cost to the taxpayer. Not provided unless we as a society want to pay for it as a public service.’ Assessment of change An exposition of the waste case demonstrates that meeting the stipulations of EU directives is effected by many factors, among them economic growth, consumption patterns, demographic change, regulation and enforcement, waste collection service provision, user charges, administrative and technical capacity, landfill access, planning, politicisation and public support. The past two decades have witnessed considerable changes in how waste is managed in Ireland. Case 494/01 exposed a glaring deficit in how the state complied with environmental regulation and the ramifications of that case were enormous. The transposition of the revised waste framework directive in March 2012 was officially delayed by three months but this is incomparable to the twenty years it took to introduce its predecessor. Despite this tortuous path Ireland has met the targets in the landfill directive date and transitioned from an almost total reliance on landfill to higher levels of recovery. Future challenges are to introduce policy moves towards self-sufficiency in waste management and deal with emerging issues such as marine litter, the debate on plastics, better regulation of household waste collection and, of course, prevention. Brexit can be added to these challenges as it poses several threats to the progress achieved in waste management and its enforcement on the island of Ireland. Any divergence from EU law and any deviations in environmental standards will create problems across the Irish border. In the past different costs and systems for waste management between Northern Ireland and the Republic of Ireland stimulated illegal dumping and illegal movement of waste to Northern Ireland. A cross-border repatriation programme was established under the EU Shipment of Waste Regulation 2006 and both jurisdictions engaged in greater cooperative efforts to reduce waste smuggling. This chapter

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has detailed the laborious route Ireland treads in order to deal with illegal dumping and inadequate waste management policy implementation. Brexit may prompt new openings for illegal waste movements and, in the short term, any prospect of reduced instruments for cross-border cooperation would make it harder to monitor illegal waste movements at the border. In the EDA study, Pressman and Wildavsky (1973) clearly showed that policy makers can strongly affect the implementation process by basing a programme on a valid causal theory rather than a dubious one. In reality, the evidence in this case illustrates that policy was not thought through for the implementation stage and the system evolved in an ad hoc, incremental fashion. Difficult lessons were learned and progress in developing implementation strategies can be observed. Prior to the mid-1990s, local authorities were the biggest operators of waste collection in the country, they were not regulating themselves properly and no one was regulating them. This scenario, the lack of enforcement structure to deal with and prosecute illegal waste, all coalesced into the CJEU judgement against Ireland. While the 1996 Act and subsequent statutory instruments form the regulatory framework, the operation of the regulation has required amendment over time. Local authorities took a huge backward step out of the waste stream and this has provided enormous opportunities for the private sector. Market consolidation has taken place with single companies offering both collection and disposal services beyond their regional boundaries. Private sector providers compete and are active on the same collection itinerary which raises questions about their ecological footprint. The Department’s regulatory impact assessment in 2012 referred to this system of regulation as ‘laissez-faire’ and ‘incomplete regulation’ relative to the prerequisites of the WFD. The government opted to preserve the market structure in place and strengthened the regulatory regime applying to household collections. A second observation is the transposition and further implementation stages of the Landfill Directive 1999/31/EC. This illustrated the role of government and the centrality of the Department, the EPA and OEE in rectifying the failures with appropriate assessment, prosecutions and a comprehensive revision of permitting regulations. Local authorities struggled to fulfil the regulatory obligations in policy and a resource in enforcement has developed to assist with this function. The continued financial support from central government is essential to sustain it. The supervision of local authorities by the OEE and support for their capacity building performance needs to continue. In respect to sanctions, Case C-494/01 revealed the requirement to secure better outcomes and a need to interact with the Irish court service more effectively. In line with government policy there is an increased use of higher courts and the High Court has been employed on several occasions to secure environmental outcomes (DoECLG, 2015). The research findings from the local level also

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correspond with views that the governance of waste became more fragmented given the wide range of institutions involved and coupled with the engagement of the private sector. Additionally, as the means through which Ireland discharges its waste obligations, the ability of the waste regions and their plans to deliver is questionable since there are no genuine regions. The first waste management plans were deemed ‘unknown territory’ and ‘a shot in the dark’ according to some local officials interviewed. For example, the consultants justified the inclusion of thermal treatment on the basis that it was unrealistic to expect that 50 per cent of household waste could be recycled (Allen, 2007: 212). Regional planning did not deliver the infrastructure in a coordinated fashion and officials continue to monitor this aspect for continued EU compliance. The current policy demonstrates that while waste management plans remain a function of local authorities, central oversight is a feature of their conception and implementation which serves to undermine a ‘regional’ objective. A rationalisation of structures to lessen the fragmentation of the structural and bureaucratic arrangements was deemed justified in A Resource Opportunity 2012 through the creation of the National Waste Collection Permit Office and reduction in waste regions to three. Infrastructural deficits remain, such as the lack of a hazardous waste landfill, and rather limited capacity for other infrastructure (waste to energy, recycling). The number of landfill sites is reduced to six and in November 2016 an emergency situation arose whereby there was insufficient capacity for waste disposal. To prevent or limit potential environmental pollution, both Meath and Wicklow County Councils activated the available landfill capacity in Knockharley and Ballynagran under Section 56 of the Waste Management Act 1996 for the period to end-December 2016. Dublin City Council, as Lead Authority for the Eastern and Midlands Waste Management Planning Region, also invoked this legislative provision, which gives a local authority the broad power to take measures in order to prevent or limit environmental pollution. This scenario also emphasises a reality that the amount of waste sent to landfill since 2014 increased. Moving towards improved recycling infrastructure underpinned by resources from the Environment Fund needs to be sustained to fund civic amenity sites, transfer stations and materials recovery facilities. Overall, the waste case demonstrates active implementation following the European Court’s judgement in 2005. Progress in recent years has resulted in a guarded optimism that ‘we’ll probably make it alright’ for the statutory targets. In translating policy aspirations into action, the government will need to ensure that the relevant departments and agencies, along with local government, pursue a coordinated approach in supporting waste recovery, carefully design instruments to incentivise actions relevant to giving effect to the waste hierarchy and provide certainty for the industry (Connaughton, 2014b). This

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is a very different situation from the ‘town dump’ image of waste management and reflects a modern industry underpinned by a more mature policy framework with the commitment to bring about behavioural change.

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Notes 1 In 2005 the Competition Authority conducted an investigation into consumer allegations that Greenstar Recycling Holdings Limited (‘Greenstar’) abused its dominant position by charging ‘high’ or ‘excessive’ prices for household waste collection. The conclusion was that its conduct did not constitute an abuse contrary to Section 5 of the Competition Act, 2002. 2 The volumes in environmental cases have led to a new development in the procedure: the ECJ has accepted that the Commission can bring a case of a more general character, without having to establish each specific infringement. See Case C-494/01 Commission v. Ireland [2005] ECR I-3331 paras 27–39. In regard to fines and periodical payments, the first such penalty was in fact imposed in an environmental case, against Greece, concerning the dumping of waste in Crete. See Case C-45/91 Commission v. Greece [1992] ECR I-2509. The follow-up case was Case C-387/97 Commission v. Greece [2000] ECR I-5047. 3 The Directive sets targets for the reduction in the amount of biodegradable municipal waste sent to landfill to 75 per cent by 2006, 50 per cent by 2009, and 35 per cent by 2016, of the total levels of biodegradable waste produced in 1995. Ireland negotiated a four-year extension to the first two compliance dates specified in Article 5 of the Directive (2006 to 2010, and 2009 to 2013 respectively). 4 The three Waste Enforcement Regional Lead Authorities (WERLAs) for the Southern, Eastern and Midlands, and Connacht/Ulster Regions are Cork County Council, Dublin City Council and Leitrim and Donegal County Councils (combined) respectively.

6

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Case: Water

Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such. (Recital 1 of the Water Framework Directive)

Introduction The regulation of water quality in Ireland is largely driven by European legislation such as the WFD and directives in nitrates, habitats, groundwater, drinking water and bathing water. The principal problem doesn’t appear to be a lack of national legislation to respond to EU policy but rather the effective implementation and enforcement of it. Water is also a public health issue and high-profile controversies over water contamination in major urban areas and the contamination of several rural drinking schemes illustrate key infrastructural problems and pollution. Moreover, water has become one the most politically controversial public policy areas in Ireland given the contestation and protest arising over water charges. Central to the discussion is the Water Framework Directive 2000/60/EC which is deemed to be the most significant piece of water quality legislation to be developed by the EU to date. Adopted in 2000, the directive was introduced to streamline European water legislation into one overarching strategy to attain ‘good water status’ across the EU. Yet fifteen years after its introduction the effectiveness of the directive itself was being questioned as its systemic objectives were not being met (Voulvoulis, Arpon and Giakoumis, 2017). The WFD is not a target-based instrument but instead focuses on setting specific operational and technical implementation commitments in pursuit of sustainability. As with the waste management case, the performance of the political-administrative system will be explored in order to investigate how Ireland manages one of its most critical resources. The Irish approach has developed from a low base of experience and ad hoc liaison between government bodies. Ireland is not in compliance with the WFD and struggles with many of its ambitious features. A coordinated effort to fulfil effective implementation is difficult since different plans and

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strategies operate to different geographical boundaries. In addition, the ability to apply the ‘polluter pays principle’ and finance the necessary infrastructure to deliver a good quality water supply remains unclear. Public participation is also a strong focus of the directive but the public’s main attention remains largely on the payment of water charges rather than conservation issues.

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Water Quality in Ireland Challenges for water policy – regulation, rights and security It is often assumed that water is plentiful in Ireland but, in reality, access to a sufficient supply of good quality water is extremely complex and costly. In terms of water status Ireland is generally viewed as having ‘good biological quality in its rivers, lakes and in-shore and marine waters’ (OECD, 2010a: 11). Further, the quality of groundwater and surface waters are considered to be among the best in Europe (EPA, 2015b). This indicates a relatively stable representation of national water standards and a reduction in the level of seriously polluted waters has continued since 2004, with six river water bodies assigned bad status under the WFD in 2010–15 compared to nineteen in 2007–9 (EPA, 2017b). But while some water bodies demonstrate improvement, others have deteriorated and conditions are not good enough overall to meet the requirements of the WFD. Some 69 per cent of monitored water bodies were classified as of moderate or worse status during 2010–15 which suggests insufficient action to prevent deterioration (EPA, 2017b). Challenges include controlling eutrophication and spread of pathogens whereby the principal sources of pollution are agriculture and municipal activities. The urban waste water sector is also problematic with poor infrastructure that is limiting Ireland’s ability to fully address the Urban Waste Water Treatment Directive 91/271/EEC. Monitoring public water supplies in Ireland is the responsibility of the national utility – Irish Water – and local authorities monitor group water schemes. In 2017 the EPA’s report on drinking water found that quality in public supplies remained high and there were fewer people on boiled water notices at the end of 2016. However, the EPA monitoring highlights that thirty-two public water supplies serving over 163,000 people still lack adequate treatment to prevent cryptosporidium entering the supply (EPA, 2017c). Risk management and the implementation of Drinking Water Safety Plans to protect supplies may be emphasised but this requires continued investment. A water supply is considered safe if the water quality meets the drinking water standards. An example of how this can be woefully below standard is illustrated by the shutdown of Galway City’s water supply in spring 2007 after hundreds of people fell ill. The water supply was contaminated with pathogens and localised lead pollution. Unregulated development had been a cause of the

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water contamination, along with insufficient waste treatment plants in areas that had been over-developed along Lough Corrib. Clearly, this pointed to a lack of compliance with environmental directives and the local council had been aware of the risk of cryptosporidium for some time. A blame game ensued whereby the Minister for the Environment Dick Roche was accused of attempting to shift responsibility to the local level, which did not have the resources for investment. A political campaign of opposition emerged and protesters brought their empty water bottles to deposit at City Hall in order to highlight the rising cost for citizens forced to purchase bottled water, ironically in a city that had led recycling pilot schemes less than a decade earlier (Leonard, 2007). The experience in Galway has been replicated in other areas and illustrates that a supply is only secure if risks are properly managed from the source to the tap – catchment to consumer. Public health is one feature in the overall goal of security of water supply and its protection through sufficient regulation. The relationship between the production capacity of our water treatment plants and the maximum demand for water is another. Ireland has rich water resources which will become more strategically important to the economy as the value of water increases globally in the coming decades. Yet in 2012 Ireland’s water services system was regarded as expensive in its operational costs, too much water was lost through leakage, and collection rates for non-domestic charges were too low (PwC, 2012). The water sector is composed of ageing infrastructure which has struggled to cope with the impact of demographic trends and economic growth during the 1990s, increased tourism numbers, and the huge increase in development during the Celtic Tiger era. It would appear logical to address this but securing funding for investment through the introduction of domestic water charges is extremely contentious in Ireland. Government funding remained the principal source of finance and delivery of water services was distributed across 34 local authorities. Unsurprisingly, inadequate arrangements for funding resulted in a substantial and historic under-investment in water and waste water services in Ireland (EPA, 2012; PwC, 2012). Private sector involvement by means of Public Private Partnerships (PPPs) emerged as a means of upgrading infrastructure and addressing requirements for the urban waste water directive. Overall, the water services sector accounted for a majority of PPP projects (Reeves, 2011). The WFD states that ‘water is not a commercial product like any other but rather, a heritage which must be protected, defended and treated as such’ (Recital 1, WFD, 2000). A variety of views exist on whether water is a public or common good, or whether water rights are property rights. A human right to clean drinking water and sanitation is recognised in the declaration by the United Nations General Assembly in July 2010. This focuses on water as a social and cultural good and not primarily as an economic good. The question

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of the ‘right to water’ is by no means novel but the distinction needs to be clearly made as to whether this pertains to recognising water as a need or as an individual right. The right to water and sanitation as a human right was the subject of an EU Citizens’ Initiative in 2013 and it campaigned on the basis of a request to the EU to set binding targets for all member states to achieve guaranteed coverage of water and sanitation services, no liberalisation of water services and universal access to water. The Right2Water movement in Ireland tapped into this platform in the campaign against water charges using the argument that water charges discriminate against working people and the unemployed in favour of the wealthy, since water is already paid for through progressive general taxation.1 Although Article 45 of Bunreacht na hÉireann (1937) contains directive principles of social policy it does not include a specific right to either water or sanitation (Conaghan, 2012a). Ireland may be considered a ‘water secure’ country but clarity on rights is different to the technical and economic aspects of delivering a service. Irish legislation does not unequivocally recognise the supply of potable water to each citizen and the provision of sanitary services as a right. Recovery of costs of water services Chapter 3 discussed the primary aim of the WFD which is to achieve good water status in Europe, and to protect and secure the water supply. Article 9 of the directive stresses the cost-recovery principle: namely that ‘the polluter pays’ and that each member state should take account of the principle of recovery of the costs of water services. It is recognised that member states have different circumstances and how the directive is implemented is left to member state governments once they ensure conformity with its objectives. Legal opinion provided at the request of the Oireachtas Joint Committee in 2017 notes that the directive left ‘member states free to determine, on the basis of an economic analysis, the measures to be adopted for the purposes of the application of the principle of recovery of cost’ (JCFFW, 2017). This implies that member states can take into account their own economic and social considerations in deciding on recovery costs. Issues of water pricing/water charges emerged as a politically charged issue in Ireland when the 2011–16 government attempted to introduce water charges following a commitment to do so as part of structural reforms to the water services sector outlined in the EU/IMF Memorandum of Understanding (Department of Finance, 2010). The ‘Irish poll tax’ experience was acutely unpopular due largely to the sustained cutbacks on public services and increases in taxation from 2009, which also included the launch of a household/property tax from 2012. Although the billing and payment of water charges did commence, it was paused in 2016 and funding water services has now reverted to general taxation.

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This lack of domestic water charges in Ireland is rather unique relative to other EU member states and can be traced back to a series of populist decisions by successive governments, principally the abolition of domestic rates by Fianna Fáil in the budget of 1978. This transferred liability from householder to central government through a central government grant paid to local authorities. As recession took root in the 1980s local governments’ authority to levy charges for water was reintroduced in 1983. Local authorities tried to re-introduce flat charges to counter their impoverished financial position but encountered significant opposition in Dublin. This led to an anomaly between Dublin and the rest of the country until Dublin County Council was split in three in 1994 and attempts were made to introduce domestic water charges in the new local authorities of Fingal, South Dublin and Dún Laoghaire-Rathdown. The issue became the subject of a political campaign and in a by-election held in Dublin West in 1996 the Socialist Party’s Joe Higgins polled very strongly as an anti-tax candidate. The incumbent Environment Minister Brendan Howlin abolished domestic charges via the Local Government (Financial Provisions) Act 1997 in a politically charged move given that Labour had performed poorly in the by-election. As a centre-left party Labour was especially vulnerable to competition on the left on charges for water and refuse collection. This approach to managing water services finance was unsatisfactory and Convery (2013) claims that, ‘We should not have abandoned water charges in 1997, but the system we had then – lump sum payment – was very deficient, because it did nothing to encourage the efficient use of water and it rewarded the irresponsible and the feckless.’ Also, the local authorities had sought standardised methods for dealing with charges and income distribution issues were not considered. Successive Fianna Fáil governments grappled with upgrading water infrastructure during the boom years but deficiencies were not addressed. In 2008 alone, the cost borne by the state for the provision of domestic water services was reported to be €590 million (Conaghan, 2012a: 8). Although a plan for water metering was proposed by the Green Party this was postponed until at least 2012. Up to 2015, the only domestic users paying for water were those in group water schemes where water supplies are cooperatively sourced by groups who do not have access to the better quality public supply schemes. This applies to less than 10 per cent of the population and such schemes have benefited from historic grants and funding to dig private wells, which for some have been subsidised by the taxpayer. In 2018 Ireland was the only member state (with the exception of Northern Ireland) where households were not paying directly for the water they use. One effect of this is the complete lack of encouragement for individuals to grasp the implications for sustainability. Or as Scott (2003) observed, under an ‘absent hand’, a generation of people is growing up without realising that water is expensive to deliver. With excessive water use not discouraged, Ireland climbed up the

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marginal cost curve more quickly than necessary, owing to wastage by customers and suppliers, but more often leakage from old pipes. Although much of the debate in Ireland has focused on introducing domestic water charges and the need to improve infrastructure, a reality is that industry and agriculture are the biggest consumers of water. Policy guidance and legislation Roles and responsibilities for water services changed from 2013 with the establishment of a national utility, Irish Water, responsible for developing public water services, monitoring public water supplies and ensuring the quality and security of drinking water. Local authorities are responsible for monitoring group water schemes and regulated small private supplies. The EPA undertakes the environmental regulation of Irish Water, testing and water audits. Under the drinking water regulations, Irish Water must notify the EPA of failures or risks to public health from a public water supply. The Commission for Energy Regulation is the independent economic regulator for Irish Water and public water services. The EPA also has the remit for river basin management planning and assigns various responsibilities to other public bodies, including local authorities, Inland Fisheries, National Parks and Wildlife Service, Waterways Ireland and the Marine Institute. Up to 2016, the environment and local government policy concerns were part of the same government department but water is now aligned with local government in the Department of Housing, Planning and Local Government. What this description reveals is that functions and obligations in respect of water and waste water are spread out across a number of different regulatory bodies and agencies. Responsibility for sanitation is one of local government’s oldest functions (Gleeson, 2003). Water legislation in Ireland dates back to the Local Government (Sanitary Services) Acts, 1878–2001 whereby statutory responsibility for water management and protection rested primarily with local authorities. This phase of water provision characterised practices up to the 1970s and is regarded as the ‘hydraulic municipal’ model, whereby water was treated as a plentiful resource and supply with an emphasis on hydraulic development as a means of delivery. Post EU membership in 1973, the Water Pollution Acts, 1977 and 1990 constituted the main legislation to implement EU directives with supporting regulations. The legislative controls on water are complex, composed of a host of regulations introduced to cover issues from groundwater to water conservation grants. There is a wide ranging set of environmental standards for Irish waters and the Water Policy Regulations S.I. No. 722 2003; Surface Waters Regulations S.I. No. 272 of 2009; Groundwater Regulations S.I. No. 9 of 2010 govern the shape of the WFD. Water protection is also linked to numerous other directives – nitrates, urban waste water, floods, marine, birds and habitats. In all, there are currently 79 pieces of legislation listed on the



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Table 6.1  Key policy directions and legislation directing water quality Water management policy and legislation Water Pollution Acts 1977 and 1990 Water Services Act 2007 Water Services Investment Programme 2010–12

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Water Sector Reform Implementation Strategy 2012 Water Services (Amendment) Act 2012 Water Services Act 2013 Water Services Act (No. 2) Act 2013 Water Services Act 2014 Water Services (Amendment) Act 2016 Water Services Bill 2017 Report of Expert Commission on Domestic Public Water Services 2016 Joint Committee on the Future Funding of Domestic Water Services Report 2017 Report of working group on future funding of domestic water services 2017 River Basin Management Plan 2018–2021

Department of Housing, Planning and Local Government website. Table 6.1 illustrates the key policy directions and legislation directing water quality in Ireland. Prior to 2013, the Water Services Act 2007 was the principal source of legislation governing the delivery of water supply, waste water collection and treatment services. It emphasised the role of the minister to facilitate safe water provision and an overall responsibility for the performance of water services authorities (Conaghan, 2012b: 54). The 2007 Act was deemed to provide a comprehensive legal framework for water in a single enactment since it encompassed a wide-ranging review of legislation – some 150 pieces – on water supply, collection and treatment of waste water. Along with the Waste Management Act 1996 (see Chapter 5) it set out the obligations and entitlements on the part of local government on water services delivery to Irish citizens. What it does not address, however, is provision for the charging of domestic water services users or the provision of services to each citizen as a right. Unlike what transpired in the waste sector, the Water Services Act 2007 upheld the centrality of public authorities in terms of ownership and democratic accountability in the provision of water services. Legislation defining the regulatory framework for the water sector was introduced in 2013. It provided the new utility with water services functions relating to the installation of water meters in domestic properties whereas a

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second act was passed in December 2013 which granted a transfer of functions and services from the 34 local authorities to Irish Water. From January 2014 the structural reform of water services became highly politicised in terms of the Irish Water project office set-up, consultancy, metering programme, communications and water charging initiatives. Following this, a Water Services Act was passed in 2014 to reverse or adapt Irish Water’s competences to new political circumstances following mass protests on water. Provision was made for a future plebiscite on the ownership of water and the formation of a customer consultative forum on public water. Irish Water published its business plan titled Transforming Water Services in Ireland to 2021 as the roadmap to a single utility. The plan was approved by government subject to budgetary and regulatory review. However, charging for domestic water services was suspended altogether in an amendment Act in 2016 following a general election which eventually led to the establishment of a minority Fine Gael government. Water charges was a key campaigning issue, especially for the small left parties and Fianna Fáil also endorsed the removal of water charges though their message was inconsistent. The Water Services Bill 2017 facilitated the recommendations of the report of the Joint Oireachtas Committee on the Future Funding of Domestic Water Services. This upholds the discontinuance of domestic water charges, allows for the refund of charges paid since January 2015, and also specifies the establishment of a Water Advisory Board which will report on a quarterly basis to an Oireachtas Committee on the performance of Irish Water on the implementation of its business plan. The outcome is clearly a compromise to overcome the difficult domestic politics stirred up by the water charges controversy and clashes with the ethos of the WFD. Refining the context: values and actions Before embarking on an exploration of the implementation process there are three contextual issues worth noting, namely actions regarding water conservation, investment and the nature of Ireland’s infringements in the water sector. In relation to the latter a long history of poor compliance following the incorporation of European legislation into national law is a feature of several member states’ performance. This is reflected in a tendency to ‘water down’ the rigour of regulations through a process of attrition in the policy-making process (Page and Kaika, 2003). This contrasts with perceived public support from European citizens whereby almost 75 per cent of those surveyed in Eurobarometer back the role of the EU in proposing additional actions to address water problems (Eurobarometer, 2012). Citizens very quickly become aware of problems with the quantity and quality of local water and support heavier fines for polluters.

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Although conservation awareness is somewhat patchy, support from EU citizens to charge according to the volume of water they use is evident (EEA, 2013). Despite this, flat-fee water charges are still common in parts of Europe (Conaghan, 2012a) and it is not clear whether the WFD’s call for efficient water use by 2010 has in fact resulted in changes in national policies. While low-income households must have access to affordable water services it is argued that keeping prices artificially low for all users is not the best approach as it may lead to less efficient water use and a vicious cycle of underfunded service providers with poor infrastructure (EEA, 2017; 2013). This is an EU-wide issue and the Irish experience is one of general ‘reluctance to make much use of fiscal incentives to encourage environmentally friendly behaviour. Ireland opposed efforts at EU level to make domestic water metering and charging compulsory’ (NESC, 2010). An absence of adequate conservation measures increases the need for expensive investment to meet water deficits – be they domestic, industrial or strategic. Full compliance with the WFD is likely to cost several billion euros in the period to 2027 (PwC, 2012). Ironically, a Comptroller and Auditor General’s report in 2011 found that little, if any, improvement in the level of water lost through leakage and other measures was evident, despite €1 billion in state investment in the preceding decade. European pressures are an important factor driving this investment and water quality monitoring in general. Arguably EU environmental infringements have been instrumental in prompting action to address water deficits. For example, on the 14 November 2002 Ireland was found to be in breach of water quality standards under the EU Drinking Water Directive 98/83/EC in (mainly) private group water schemes. The Court threatened to impose a sizeable fine on Ireland and this stimulated a programme of investment to upgrade rural water programmes. In addition, the government argued that the Water Services (Amendment) Bill 2011 was required to ensure Ireland complied with a CJEU ruling in 2009 on the treatment of waste waters from septic tanks. Indeed, the Court ‘castigated’ Ireland for incorrect regulation and inaction which led Ireland to adopt a comprehensive registration/inspection system for septic tanks in 2012 (Conaghan, 2012b: 59). The measures were strongly criticised by opposition TDs and rural groups who claimed that many householders had already paid large amounts on septic-tank construction and maintenance at personal, rather than taxpayers’ cost. As of January 2017 there were four open infringement proceedings in the water and waste water area: failure to correctly implement the Urban Waste Water Treatment Directive 91/271/EEC (initiated in 2013); deficiencies in water quality under the Drinking Water Directive 98/83/EC; failure to produce the second cycle of RBMPs, due in March 2016 (plans later launched in April 2018); and weaknesses in the transposition of the WFD, which was the subject of a Reasoned Opinion issued in November 2011 (DoHPCLG, 2017). The

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Commission is taking Ireland to the CJEU for the infringement under 91/271/ EC for its failure to ensure that urban waste water in 38 areas is adequately collected and treated. This is an example of where demographic demand is in excess of investment, leading to a capacity shortfall and compliance gap. Ireland provided a response to the reasoned opinion in November 2016, including timelines for planned works in the deficient areas by Irish Water (DoHPCLG, 2017). According to the EU Environmental Implementation Review Country Report on Ireland (COM (2017) 63 final) one of Ireland’s main challenges is the maintenance of investments urgently required for water services. Top–down implementation – adequate causal theory The Water Framework Directive 2000/60/EC (WFD) is widely accepted as the most substantial and ambitious piece of European environmental legislation to date (Voulvoulis, Arpon and Giakoumis, 2017). Unlike other directives that prescribe key targets, the WFD concentrates on specific operational and technical implementation obligations for member states. It focuses on environmental sustainability (EC, 2012), the development of a holistic approach integrating the wider environmental system (Howarth, 2006) and a platform for system level shifts (Voulvoulis, Arpon and Giakoumis, 2017). Traditional implementation approaches are unlikely to be satisfactory since a ‘paradigm’ shift is required which suggests why there are many delays and problems in its implementation across the EU. The EU perspective on Ireland notes a weakness in transposition and key concerns around abstraction, drinking water source protection measures, and aligning the definition of water services in national legislation with Article 9 of the WFD (DoHPCLG, 2017). Water services are part of ongoing reforms and while the burden of implementation falls on government the participation of the private sector is required given the substantial investment costs. In 1998 the government adopted a water services pricing policy framework which provided for full cost recovery and metering by 2006 for non-domestic users only, in an effort to keep in line with the polluter pays principle. This move suggested that Ireland was advancing the implementation of water services pricing policy incrementally (Gleeson, 2003: 217). As noted, water charges are controversial in Ireland and in negotiations on the WFD in 2000 the government obtained an exemption which is provided for under Article 9.4. The ‘Irish exemption’ allowed Ireland opt out of domestic water charges under two conditions: that ‘established practices’ for water did not involve water charges and that the system implemented did not violate the environmental and water preservation aims of the directive. Legal structure to enhance compliance Legislation works because it is technically feasible and, in the main, supported by stakeholders (Irvine and O’Brien, 2009: 374). By means of a number of

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statutory instruments the Irish administration introduced regulations, including S.I. No. 722 of 2003, which sets out the general duties of public authorities in respect of WFD implementation (Spence, 2012; McNally, 2009). Eventually, a wide-ranging piece of framework legislation was introduced under the Water Services Act 2007 which aimed to give coherent expression to Irish water legislation in a single enactment. Its intent was to consolidate and modernise the diverse body of water legislation in existence, extending over some eighteen Acts and as far back as the nineteenth century (Gleeson, 2003). The Bill had a long gestation, given that it was passed by the Seanad in July 2004. The legislation included provision for a broad range of powers to enable water services authorities to carry out their operational and supervisory functions, with a central, coordinating role assigned to the minister. The Act also provided for a strategic planning process as a means of expediting improvements in water services infrastructure. Local authorities were required to have a water plan similar to development plans and the EPA was granted additional enforcement powers (Blennerhasset, 2008: 156–7). Public opinion was important as the cryptosporidium problems in Galway were ongoing and authoritative protections for water supplies were promoted strongly. The most complex issues to address were fears that the Bill would become a mechanism for the introduction of domestic water charges and the privatisation of water. Privatisation was deemed prohibited by a triple lock of safeguards and the law instructed that water services authorities could not contract with private operators where this could potentially involve the transfer of assets or infrastructure. Provision was also made to ensure that any proposal by future governments to reintroduce domestic water charges would require additional legislation. According to Spence (2012) the Act achieved what the Waste Management Act did in 1996 in that it set out local government’s obligations in water services delivery but that it ‘deliberately dodges fundamental questions which must be answered in order to put any effective system in place’ (Spence, 2012: 7). Namely, it did not include any provision to charge domestic users for the supply of water services. Committed and skilled implementing officials Given the long implementation time frame, the WFD process has particular arrangements that are shaped by discussion convened under the Common Implementation Strategy which provides practical guidance to those responsible – political directors of water services and technical working groups. The supervisory authority for public drinking water supplies is the EPA which was required to oversee the introduction of a programme for monitoring water status (EPA, 2006b). One of the national challenges in implementing the WFD has been the large number of authorities involved in its coordination, overseen by the Department and a WFD National Coordination and Management Committee, National Technical Implementation Group (NTIG), and the Water Policy

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Advisory Committee (EC, 2012) Examples of agencies included in the management of river territories are Waterways Ireland, the Shannon Regional Fisheries Board, the Electricity Supply Board, the Office of Public Works and the Shannon-Foynes Port Company and the National Parks and Wildlife Service. The administrative arrangements adopted were a three-tier structure of government departments, EPA and regional networks to address Article 8.1, which required integrated management and planning based on RBDs. The EPA was given responsibility for overseeing the reporting and for identifying and mapping groundwater and surface water within RDBs. The (then) 34 local authorities were designated for planning and establishing programmes of measures. The approach adopted, however, was natural geographical areas in contrast to water management systems which are based on the administrative boundaries of local authorities. A lead local authority was designated as chair of each RBD management board within a ‘network of existing players’ to give effect to the directive along existing administrative alignments (Flynn and Kröger, 2003: 156). In all, 400 river basins were grouped into a total of eight identified RBDs (Eastern, South Eastern, South Western and Western), three shared with Northern Ireland (Shannon, Neagh Bann and North Western), and one based in Northern Ireland (North Eastern). As in other member states the spatial fit for the WFD can produce a misfit since water crosses national/administrative frontiers and necessitates the participation of a wide range of actors and institutions at multiple levels of governance (Moss, 2003: 210). Although the RBDs were an institutional departure, Ireland had begun experimenting with hydrological catchment water management as early as 1997 and domestic water legislation in force since 1977 had actually mandated such an approach (Flynn and Kröger, 2003; Gleeson, 2003). The directive mandated this approach to planning with the first measures to improve water quality, expected by 2012, and the first six-yearly cycle of planning completed by 2015. A large proportion of the national development plan investments 2000–6 went on reaching WFD targets and improving water quality rather than usage and supply aspects. Draft RBD plans and programmes of measures were published by local authorities in December 2008 and subject to a six-month public consultation. The bulk of the technical work was produced by consultants and guided by the EPA. To ensure a consistent approach was taken through all the RBDs, a national approach facilitated the series of RBD-sponsored studies (McNally, 2009: 135), the objective of which was to gain a better scientific approach to monitoring. The adoption of the plans was delayed and was finally reported to the Commission in October 2010, after which an infringement case for non-reporting of plans was closed. The Commission’s evaluation of the plans considered the level of ambition to be low – only 18 per cent more rivers were expected to meet objectives in 2015 than in 2009,

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and large numbers of exemptions were applied (EC, 2012). Transparency and monitoring networks were flagged as issues in terms of assessment of objectives, assessment of specific pollutants and also the impact of agriculture as a significant pressure on water resources (EC, 2012: 45). The evaluation also pointed out that while cost of water supply to households was met by government funding, the environmental and resource costs were not estimated due to a lack of suitable data. Investment by the city and county councils in water services was guided by the river basin management planning process completed in 2010 and priorities are set out in the Department of Environment Community and Local Government’s Water Services Investment Programme 2010–12. Weaknesses in delivery through 34 separate water services authorities inevitably led to fragmentation and an inability to secure advantages through economies of scale. An assessment by the consultants PwC in 2012 indicated that the system was too expensive in its operational costs per connection, lost too much water through leakage, had no economic regulation, no consumer protection and collection rates for non-domestic charges were pathetically low at 52 per cent on average. However, it also pointed to its strengths, as operators in local authorities are close to their consumer base, are locally accountable and can mobilise resources in time of need (PwC, 2012). But the overall finding was one of a sector with no consistent policies and no standards. Under S.I. No. 350 of 2014 a Water Policy Advisory Committee composed of the principal state agencies involved in water was established to provide policy advice and assistance to the minister on the implementation of the WFD and on broader water resource issues. This includes support for making the RBMPs and programmes of measures. Ireland was late with the production of the second cycle of RBD plans which were required by March 2016. On 25 November 2016 the European Commission issued a pilot infringement request with regard to the delay. The government finalised the plans by the end of 2017 following completion of a public consultation process. In the ‘second cycle’ of RBDs the Eastern, South Eastern, South Western and Shannon River Basin Districts are being merged to form one national RBD. For the North Western and Neagh Bann International River Basin Districts, a single administrative area is being established south of the border for coordination. New responsibilities have been assigned to the EPA in relation to catchment characterisation work, national technical implementation and reporting. The NTIG, including EPA and local authorities and Irish Water, will ‘oversee technical implementation of the RBMP at a national level and provide a forum to ensure co-ordinated actions amongst all relevant State actors and address operational barriers to implementation that may arise’ (DoHPCLG, 2017). The EPA will coordinate the ongoing monitoring of implementation and local authorities continue to perform enforcement duties on the ground. The objective

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is to improve on the first cycle’s implementation of the WFD since the structure of multiple RBDs was deemed overly complex both in terms of developing the first tranche of plans and efforts to implement them. Yet merging the river basins system into one RBD is suggestive of a retreat to administrative centralisation and militates against the very idea of hydrologically distinct systems. Support of interest groups and sovereigns Following attempts to introduce the first RBMPs and progress a water services investment programme overseen by the Department, a review of water governance was proposed in 2010. This was overtaken by the arrival of the Troika and a rather different reform of water services was introduced from 2012. By this stage, the agenda was determined by the Memorandum of Understanding (MOU) 2011, which in turn was predominantly consistent with the measures included in the four year National Recovery Plan 2011–14. The negotiations with the Troika were run by the Department of Finance but in reality the bulk of the work on the programme had already been completed – and this included a provision for introducing water charges (see Connaughton, 2016). It specified that ‘Irish Water would become a major State monopoly requiring separate independent regulation to promote efficiency and competitiveness in the consumer interest and the general economic interest.’ Accordingly, an impetus for a reform of water governance dissipated as the main focus was on setting up a new water utility. This was a complex technical exercise requiring new economic regulation for the public water sector and a new funding regime based on domestic water charges and raising capital on international markets. What was to unfold was a political nightmare for the incumbent Fine GaelLabour government. The Programme for Government (2011) between Fine Gael and Labour committed to the creation of Irish Water (Uisce Éireann), installation of household water meters and the introduction of a fair funding model to deliver water based on use above a free allowance (GoI, 2011). Under the terms of the bailout the government was obliged to implement a wide range of structural reforms intended to underpin Ireland’s economic stability and the water-related investment in infrastructure and services required had to be addressed without further pressure on Exchequer funding. Staffing levels and operating costs were also deemed vastly more expensive compared to the UK (DoECLG, 2012d). Consultation on the shape of the utility took place and PwC delivered a First Phase Report in November 2011 on two alternative structural options for ‘Irish Water’. One was a self-financing water utility and the other an entity to manage investment in the water sector through local authorities acting as agents of the new corporate body. On publication of the report, the approach favoured was to embed Irish Water in an existing commercial semi-state

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company and this eventually went to an Bord Gáis Éireann (now known as Ervia) who arguably had the required expertise to establish the utility, provide services and support development. In an era of public sector austerity the government also accepted the rationale that the needs of the new model for water service delivery would be met through existing capabilities since this would be cost-effective and practical. The minister can issue written directions to Ervia or Irish Water in relation to the performance of their functions and can request that they comply with specified government policies (Browne, 2015: 6). The model presented itself as a single implementing agency acting as the water services authority, and a single point of contact for customers. But this agency would be embedded as a subsidiary of the existing state agency and operating with the EPA and local authorities. Irish Water was to account to two regulatory bodies, namely the Commission for Regulation of Utilities (CRU, originally called the Commission for Energy Regulation) as the economic regulator for the water industry with responsibility for determining the costs of water services (whereby Irish Water may submit a water charges plan), and the Environmental Protection Agency (EPA) as the environmental regulator. Overall, the new authority would be statutorily responsible for both investing and operating water services infrastructure in its role as a provider of drinking water and waste water services to domestic households, commercial and industrial customers. In descriptions of the new service the official documentation brimmed with the language of corporate governance and activities such as strategic plans, management systems and sourcing private finance for investment in capital projects. Prior to the establishment of Irish Water under the Water Services Act (No. 1) 2013 in July 2013 the leading minister, Phil Hogan, referred to the reform programme as the means of ensuring that Ireland had a ‘world class water and waste water infrastructure that meets all environmental and public health standards’. This included a procurement process for the installation of water meters. Charges would be introduced in 2014 and it was estimated that Irish Water would have over 90 per cent of the meters installed by that time. A further issue for consideration was the regional and local focus of Irish Water and its relationship to working with the operational regions based on RBDs and the local authorities managing those plans. Amid protest from the Opposition on the lack of opportunity for debate, the Water Services (No. 2) Act 2013 was rushed through all stages over four hours in the Dáil on the 19 December 2013. It provided for the transfer of water services functions and assets from the water services authorities to Irish Water. Following the negotiation of service level agreements (SLAs) local authorities became agents of Irish Water under the Act. In the initial plans Irish Water were to take over the local authority operations on a phased basis from January 2015 to January

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2017. In contrast, the SLA agreement, with input from the unions leaves staff with the local authorities until 2026, with no compulsory redundancies allowed (Brennan, 2014). Even in theory the model for Irish Water was somewhat unwieldly given the extent of the reform required, but the politics of its implementation fell into complete disarray in 2014. This commenced with an interview on RTE radio 1 given by Irish Water’s managing director John Tierney revealing that the utility had spent/committed €100 million on its set-up, project office and systems, half of which going to ‘consultants’. This prompted an outcry in Leinster House and the Oireachtas committee responsible for environmental business called the senior management of Irish Water to give an account of spending plans. This was followed by an invitation from the Public Accounts Committee, a flurry of parliamentary questions, and was also the beginning of an intense media scrutiny of Irish Water since it was not clear what the benchmark costs for establishing a public utility company were. In its defence, Irish Water cited examples of spending from other water utilities on similar systems (O’Brien, 2014). Explanations for how Irish Water would operate were posed to Minister Phil Hogan who gave less than satisfactory answers indicating he was unaware of the detailed breakdown of Irish Water’s spending since he did not ‘micro-manage’ the organisation and quipped, ‘You can’t make an omelette without breaking eggs’ (O’Toole, 2014). In May 2014 the government reached agreement on water charges and allowances, advocating that the average annual household charge would be around €240 until the end of 2016 and those households with meters installed would pay for actual usage. Agreeing on the range of charges and exemptions produced tension between the coalition parties and the Taoiseach Enda Kenny had insisted on going ahead with announcing the scale of the charges before local elections. The Labour Party coalition partners were concerned about provisions to take into account the ability to pay and how people without meters would be charged, since 75 per cent of homes would not have a meter by the end of 2014 and would be reliant on assessed charges (McInerney, 2014). The impending water charges likely contributed to the disastrous result for the Labour Party in the local elections and the party leader Eamon Gilmore resigned and was replaced by Joan Burton. When the regulator published the framework for the charges in July the average charge per household was interpreted by many as underestimated and those who had meters installed calculated that their charges would be much higher than promised. Given this uncertainty the fact that the charges were also about conservation and getting people to manage their usage gained little traction in the debate. Irish Water, on the other hand, was left with the administrative challenge of implementing a complex price tariff and dealing with the public’s concerns about the affordability of water charges as they commenced the billing process.

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From October 2014, Irish Water controversies became a daily news item as the public was infuriated with an announcement that staff would have access to a bonus payment regime. There was also confusion about the process, and low numbers of the public were registering with Irish Water. Opposition to the charges intensified and thousands marched in protest in Dublin and other towns in the largest demonstrations seen in years. In response, the government acknowledged that the timetable for setting up Irish Water had been too ambitious. One of the arguments made was that the schedule was dictated by the demands of the Troika, which incidentally wanted water charges up and running by the start of 2014 but had agreed to a government request that they be delayed until 2015. The Irish public remained concerned that the ultimate plan was to hand over significant parts of the water infrastructure to private water utilities. The coalition parties were delivered a further political blow in the Dublin South West by-election to replace Brian Hayes, Fine Gael, who had been elected to the European Parliament. Paul Murphy, who ran under the umbrella of the Anti-Austerity Alliance, effectively turned the by-election into a referendum on water charges and won, beating the favourite Cathal King of Sinn Féin. In the weeks that followed, Sinn Féin changed their position on water charges and declared that their reversal would be a precondition if the party were to enter government after the general election due in 2016. Paul Murphy became a front person for the ‘We Won’t Pay’ group encouraging a mass campaign of civil disobedience with non-payment as its centre piece. The by-election coincided with the first mass anti-water charge protests across the state and helped to popularise the movement. Hundreds of small-scale community marches and protests against the installation of water meters were also organised swiftly via social media. Protests came to a head in November when anti-water protestors gathered in Jobstown in Dublin where the Tánaiste Joan Burton was attending a graduation ceremony. She and her political adviser were trapped in her car by the crowd for more than two hours. A row broke out between government figures and the Socialist Party TD Paul Murphy as to whether or not it was a peaceful protest, eventually leading to a court case. The water protests elevated the charges issue to discussion in the Economic Management Council and on the 19 November 2014 the Minister for the Environment Alan Kelly announced a revised water charges package with capped costs – that is, suspending metering until 2018 and a rebate of €100 for consumers through the tax or social welfare systems. The measures also included a commitment to hold a referendum if water charges are to leave public ownership. The Water Services Act 2014 formed the legislative basis for the revised policy on water charges, including the capped charges agreed by the government and the late payment fees; the proposal to hold a plebiscite in relation to any future proposal to change the ownership structure of Irish

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Water; the introduction of a new water conservation grant that was awarded to all regardless of their water consumption; the establishment of a public water forum; a statutory dispute resolution system and a number of other associated measures. Central to this approach was convincing middle-ground voters and the substantial U-turn in the charging system, which indicated just how politically charged the issue was for the coalition parties. The decision to charge a flat rate for water created tensions with EU authorities as Troika officials carried out a second post-bailout inspection of Ireland’s finances (Beesley, 2014). A crucial consideration was to ensure that the debts of Irish Water would remain off the state’s balance sheet. Both the annual budget deficit and the national debt would increase if these liabilities remained on balance sheet, necessitating further retrenchment. The government insisted that Irish Water would go off balance sheet but the decision itself was with the Commission’s statistical division, Eurostat. In July 2015 Eurostat announced that Irish Water did not pass the so-called Market Corporation Test and state funds spent on the utility would have to stay on the Exchequer balance sheet until 2020.2 At the crux of this remained the question of whether having abandoned the derogation and introducing water charges, the government could still be found to be in breach of the directive, since flat charges provide no incentive for households to conserve water. In terms of politics, the implementation of the water charges led to both coalition parties, and in particular Labour, suffering significant electoral loss in the 2016 general election. A suspension of water charges followed negotiations on government formation which eventually resulted in a Fine Gael minority government. Water was a contentious issue in the negotiations and it was agreed to establish three advisory fora to report on Irish Water’s effectiveness: a statutory external advisory body, an expert commission to examine a long-term funding model for water services, and an Oireachtas committee to make recommendations to the Dáil. The Expert Commission on Domestic Public Water Services reported in November 2016 and it proposed that the adoption of a constitutional provision on the public ownership of water services should be fully addressed by the Oireachtas committee investigation. The Commission also advocated that the funding of water services for domestic use should be out of taxation, as a matter of budgetary policy, and the cost of water services provided by Irish Water recovered from the state. Excessive or wasteful use of water should be discouraged by charging for it, and it was argued that this maintained a consistency with the polluter pays principle (Expert Commission on Domestic Public Water Services, 2016). In April 2017 the Joint Committee on the Future Funding of Domestic Water Services recommended that while funding certainty was essential, domestic water charging provided for under the Water Services Act 2014 be discontinued and funded from within general taxation (JCFFW, 2017a).

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Legislation advanced in 2017 subsequently expunged the existing water charges liabilities of domestic customers, provided for refunds and introduced a levy for excessive use of water. An Fóram Uisce (the Water Forum) was also created by the Water Services Bill 2017 and is composed of a range of stakeholders to advise the minister on water policy issues. In respect to the WFD, the Joint Committee emphasised Ireland’s full compliance with its EU obligations. This was asserted in terms of directing funding to the water utility to invest in water infrastructure (JCFFW, 2017a). The government is required to defend this stance with the European Commission in terms of the ‘cost of recovery’ principle and maintain government funding for investment. In giving evidence to the Joint Committee on the Future Funding of Domestic Water Services on the 15 February 2017, Aurel Ciobanu-Dordea representing DG Environment stated that, ‘The EU Water Directive is not intended to be applied in an abstract world’ (JCFFW, 2017b). He pointed out that Ireland is a long way from having a good status in its water under the WFD and it was ‘evident that previous water pricing policies have been ineffective’ in terms of revenue for infrastructure or incentivising efficient water use (JCFFW, 2017b). Further, when asked directly about Ireland’s compliance with the WFD and its derogation under Article 9(4) referring to ‘established practices’, the Commission official stated that, in the first generation of RBMPs, Ireland had indicated its intention to apply water charges and the ‘use of Article 9(4) is no longer possible’ (JCFFW, 2017b). Legal evidence to the same committee session from Matthias Kelly clarified that the ‘Irish derogation’ was introduced ‘specifically to meet conditions in Ireland where water had not historically been charged for in this way’. He explained with reference to case law that in his opinion the use of the derogation continues to be available to Ireland. However, from the Commission’s perspective, the crux of the matter appears to be whether Ireland has demonstrated that the application of Article 9(4) does not prevent it from achieving the objectives of the WFD. Bottom–up implementation – local capacity and public engagement Since its inception the WFD has stimulated wide-ranging research through national and EU funding. The technical needs of the directive have been comprehensively discussed and documented in guidance strategies and published via the Common Implementation Strategy. Yet member states struggle with the implementation of EU standards and some commentators argue that there is a lack of political pressure from ENGOs or by the general public who do not consider water quality to be a major issue (Knill and Liefferink, 2007). Practical implementation therefore suffers as changes are introduced in a formal (top–down) way.

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From a bottom–up perspective, stakeholders in the implementation of legislation can be interpreted as all those interested and actively involved, including the administrative agencies. The living constitution for the WFD implementation consists of water authorities required to participate directly or indirectly across politico-administrative boundaries and interact with a range of actors and interests to ensure quality and availability of water. In addition to command and control methods, a networked approach with transparency and public involvement is an essential but difficult process in the complex negotiations on RBMPs. Local capacity The appraisals of implementing the first cycle of plans in multiple RBDs indicated that the governance and delivery structures in place were not as effective as anticipated (DoHPCLG, 2017; SWAN, 2012; Irvine and O’Brien, 2009). This is acknowledged in the consultation on the second cycle of plans, ‘Whilst national measures have generally been effectively implemented, one could argue that the importance of local delivery for many measures was not well understood in developing the first cycle plans, or more importantly, in considering implementation of the plans’ (DoHPCLG, 2017: 21). The challenge of coordinating 34 local authorities militated against strategic planning and the local authority boundaries did not align to river basins which made integrated RBMPs difficult to implement. The various local authorities also had different priorities and demonstrated a variable degree of commitment which further diluted a consistent country-wide approach. Efforts to action the RBMPs illustrated the fragmented administrative system as a barrier to the successful implementation of the WFD (SWAN, 2012). The formulation of the RBMPs also exposed the lack of scientific experience and capacity within local authorities to undertake the technical work involved. Most of this work was conducted by external consultants on contracts and this raised the question of how to maintain knowledge and sustain progress when those contracts expired. In addition, the targets set in the first cycle were not realistic. These targets were set at a time when the concept of river basin management planning was new to member states, and in an Irish context, before the impact of the economic downturn on the capacity to deliver such targets was clear. The recession from 2009 led to significant staff reductions and further pressure on local authority capacity. The duplication of expenses for inspection, analysis and personnel – not to mention the labyrinth of bodies, many of which had no clear lines of communication with each other, suggested that Ireland would fail to implement the WFD unless there was a radical restructuring of water services/management. For example, the Sustainable Water Network (SWAN)3 interpreted these challenges as an urgent need to commence a review

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of water governance. In December 2010 SWAN submitted a detailed proposal for a new system of water governance in response to the requirements in the RBMPs in order to harness the benefits of an integrated catchment-based approach to the management of the water environment (SWAN, 2012: 10). The issue of a lack of a single body having ultimate responsibility for water management and the fragmentation along administrative lines was also identified in the Irish Water Phase 1 Report in 2012. Yet instead of proceeding with a considered reform of the water sector first, the establishment of Irish Water advanced and river basin planning details didn’t receive adequate attention. Ironically, the introduction of one central body rather than a web of local authorities became bound up with economic considerations rather than environmental. In line with its advisory remit SWAN recommended that scientists should be recruited by Irish Water and their qualifications be recognised on a par with engineers since their analysis indicated that the predominance of engineers in senior local authority roles had resulted in ‘a bias in water management in local authorities in favor of engineering management solutions at the expense of more catchment based environmental approaches’ (SWAN, 2012: 10). Overall, local authority capacity to implement the WFD was considered limited during the first planning period. The second cycle of plans will operate in a different environment and reference is made to almost €2 billion of planned investment by Irish Water. National authorities retain responsibility for implementing the plans but sub-national structures will drive that implementation, along with Irish Water’s oversight in improving operational services. Since 2013, Irish Water has been working through SLAs with the local authorities,4 and since 1 January 2014, Irish Water has statutory responsibility for all aspects of water services planning, delivery and operation at national, regional and local levels. The work will be supported by five regional committees for coordination purposes and technical advice input from the EPA. Each is obliged to produce a Regional Integrated Catchment Management Programme for the period 2017–21 and is required to track implementation through an annual reporting process. The RBMP 2018–21 was launched in April 2018 and provides for the oversight of officials and scientists based in the local authorities, EPA and the Department which contributes to an implementation structure. But the plan is criticised by environmental groups and considered by SWAN to lack ambition by failing to impose appropriate obligations on sectors responsible for pollution. Participatory measures for water Article 14 of WFD requires dialogue among stakeholders in order to give effect to the goals of the WFD. The consultation exercises on water planning and draft RBMPs have tended to follow a well-worn path, employing methods such as public information meetings, adverts in local papers, other printed

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media and (technical) website pages. Information is routinely made available but the question is: how accessible is it to the public and how are the technical aspects of catchment planning explained? There were 300 submissions for the consultation phase of the first round of RBMPs which doesn’t measure engagement or ascertain whether there is continuous involvement on the part of stakeholders (e.g. agriculture, fisheries, ENGOs or the general public). Overall, little thinking or debate appeared to have been undertaken with regards to what constituted good participation practice (Flynn and Kröger, 2003: 157). The first RBMPs largely approached consultation with stakeholders and the general public through the establishment of river basin district advisory councils and the dissemination of documents entitled Water Matters outlining the main water management issues for each area (GoI, 2009). S.I. No. 413 of 2005 stated that advisory councils should comprise a balance between representatives elected by local authorities and those from relevant stakeholder parties, including water protection groups, business and agriculture. The aim of these bodies was to perform a ‘dual conduit’ as official advisory structures for management teams of RBD projects and also as stakeholder forums (Irvine and O’Brien, 2009: 368). Their performance on either front has been deemed weak and limited as it was difficult to commit resources to the councils and meetings were largely composed of routine updates on WFD implementation. It has been suggested that the operation of the advisory councils also lacked transparency, openness and clarity (Irvine and O’Brien, 2009: 370), in terms of disseminating decisions and, in particular, with respect to their remit as the conduit for dialogue with stakeholders. In terms of Water Matters, the public response was limited and wasn’t followed up with any substantive information. There is no evidence to suggest that the information the public and various stakeholders needed was actually accommodated in that document. Irvine and O’Brien (2009: 271) suggest that the Water Matters consultation performed ‘poorly against the indicators of accountability and responsiveness’. Effective stakeholder engagement will continue to be one of the most challenging aspects of implementing the WFD. The public consultation document issued by the Department in 2017 asserts that lessons from the first planning phase have been learned and more meaningful public/stakeholder engagement will be delivered by the National Water Forum and the establishment of a Local Authority Water and Communities Office (LAWCO). SWAN recommended a National Water Forum back in 2012 and it would appear that the purpose of the body introduced in 2017 will facilitate public and stakeholder engagement in water policy development. The LAWCO serves the regional level and will ‘drive public engagement, participation, and consultation with communities and stakeholders at local level, and co-ordinate these activities across all thirty one local authorities’ (DoHPCLG, 2017). The office is operated by Kilkenny and Tipperary county councils, for all local authorities, on a shared services

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basis. What is suggested by the consultation document is that ‘bottom–up public engagement’ is underway with the new structures introduced via local government reform from 2013, namely the Public Participation Networks, local community development committees, rural development groups and partnerships, sectoral interest groups and various community groups. The question is whether the methods employed in information sessions and meetings with management teams remain the same or whether they demonstrate that an informed approach to what constitutes good participation practice has evolved since the first cycle of plans. Assessment of change Water remains a prominent issue on the government agenda due to public health controversies, water shortages following flooding incidents, biodiversity management, jobs and the water charges debacle. Ireland’s rivers and waterways are also subject to pollution pressures as a result of urban waste water discharges, agriculture, land management and development. The Irish administration has struggled to lodge and implement a comprehensive plan to govern Ireland’s water resources. This also needs to be addressed for the whole island and cross-border water management has focused on the management of three international river basin districts – North Western, Neagh Bann and Shannon districts. How cross-border river basin management will be managed after Brexit is unclear. The WFD itself ‘offers a platform for system-level shifts that need to take place’ in the water sector and it is evident that implementing it like any other directive is not going to work (Voulvoulis, Arpon and Giakoumis, 2017). Ireland’s experience of managing water services since the advent of water directives is uneven, difficult and messy. Effective governance is a key ingredient yet it is challenging to prove that this is validated in the structural reform introduced to improve water services delivery since 2012. The management of water continues to ‘go through many hands’ and remains a highly politicised issue. As noted in the overview, the origins of the fragmented nature of the Irish water and waste water network can be traced back to the nineteenth century and the early foundation of public water supplies, based on individual urban council areas and river basins. With expansion and development, water services remained disjointed given the sparse rural nature of a significant part of the Irish population and the development of services within individual local authority boundaries. This is clearly a causal factor in the rising costs of water services in Ireland compared to other member states, and the ‘catch-up’ in infrastructure demands, given the decentralisation of the system. Ireland’s implementation of the WFD is mixed and the public administration acknowledges that the first set of targets was too ambitious and weren’t

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grounded on a sufficiently developed evidence base. The second-cycle RBMP represents an allegedly new approach and this is composed of a single river basin district approach, an improved evidence base to underpin decision making and more effective practices in public consultation. At present, this is aspiration and ultimately time will tell if these central/regional/local structures will be any more effective in meeting objectives and engaging the public. The fact that river basin management has been reduced to one plan suggests efforts towards reducing administrative costs, questions whether any real learning is sustained from the previous generation of planning, and does not appear to represent the spirit of the WFD. A successful implementation will be demonstrated by whether the environmental objectives of the WFD/ RBMP are genuinely met and within the designated timescale. To date efforts to address the directive have been under-resourced and largely lacking the horizontal application towards economic sectors that have responsibility for water pollution. This chapter has illustrated that, since 2008, steps have been taken to address the fragmentation in the system, by alleviating local authorities of roles in water service through the creation of a new utility: Irish Water. The creation of Irish Water suggests moves towards a more top–down implementing structure characterised by a central technocratic agency. Plans for Irish Water came into existence during a period of crisis; whether its genesis will fit with the ethos of ‘never let a serious crisis go to waste’ remains to be seen. Irish Water as a new semi-state body with responsibility for investment in water infrastructure was touted in the Fine Gael document on jobs, Rebuilding Ireland – A New Era for the Irish Economy in 2009 (New Era, 2009). In July 2009 the Special Group on Public Sector Numbers and Expenditure Programmes (McCarthy Report) also recommended a single national authority responsible for water and sewage services. But it was the arrival of the Troika in late 2010 which prompted swift institutional change and greater emphasis on a charging structure for water. As noted, the birth of Irish Water was mired in controversy with a number of mistakes made in the implementation of its set-up operations. First, the formation of a new utility was a complex process that was pushed through in less than two years. Second, the introduction of domestic water charges by using universal metering was happening simultaneously. Doing both at once proved hugely problematic as charging by metering was being ‘rolled out’ before the actual installation of meters were at an advanced stage, or before leaks were fixed. European pressures via the Troika did play a role in this, given the emphasis on the cost of water operations in Ireland. The Confidence and Supply Arrangement in support of the minority-led Fine Gael government confirmed the retention of Irish Water as a single national utility in public ownership, responsible for the delivery of water and waste water services. As

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a commercial utility, Irish Water would have been able to finance its developmental plans from the European Investment Bank. There is no evidence to suggest that the management and delivery of water services should revert to local authorities. They will remain involved for a considerable period, acting as agents of Irish Water for the operation and maintenance of services. Irish Water now sets the level of service, in light of its contract with the regulator, and progress is reported with new treatment plants, conservation projects, pipe repairs and the identification of leaks through meters. Even in member states which had previous arrangements for catchment management, the policy shift towards the WFD’s integrative and participatory requirements has proved difficult (Voulvoulis, Arpon and Giakoumis, 2017). An awareness of the WFD may never reach many members of the general public in Ireland because they do not necessarily perceive themselves as part of the process. Their perceptions may be shaped by the experience of locally contaminated water supplies and the ill-fated introduction of domestic water charging; as opposed to participation and communication from water advisory bodies and information on integrated catchment management. Improving participation opportunities and citizen engagement mechanisms are critical and are clearly an aspiration of the second-cycle river basin management plan (e.g. the Local Authority Water and Communities Office). Given the experience of the water charges fiasco, common sense should prevail in moving beyond lip-service to consultation processes to guiding active citizen engagement. The water charges protests emerged as a flashpoint, proving to be the most sustained movement against austerity policies. While some of the reaction was political opposition to water charges under any circumstances, there was a distinct resistance to a further tax in a period of cut-backs – particularly so soon after a household property tax was introduced. The difficulty is in how to bridge the gap in terms of the investment required by the WFD objective that is also linked to providing a water service fit for purpose, and the finance to do so. Domestic water charges are a well-established practice across EU member states to incentivise efficient water usage and metering can encourage conservation, albeit commodifying water usage. Irish citizens resist being water ‘customers’ and believe that water services should remain in public ownership, and public ownership should be enshrined in the Irish Constitution as an extra measure of protection against any privatisation. Notes 1 The main umbrella organisation responsible for driving the water charge protests is Right2Water. Protests were largely driven by senior organisers in the Unite and Mandate trade unions. The Anti-Austerity Alliance was the main political entity active in the protest movement.

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2 The reasons for the Eurostat ruling are not clear, but are likely to centre, in part at least, on the €100 annual grant that the government agreed to pay to households that signed up for Irish Water. The European Commission voiced serious concerns that the government’s package had diminished the prospect of the Irish Water being self-sufficient and this is likely to have been a key factor in the Eurostat ruling (Bardon and Taylor, 2015). 3 The Sustainable Water Network (SWAN) is an umbrella network of 25 of Ireland’s leading ENGOs, national and regional, working together to protect and enhance Ireland’s aquatic resources through coordinated participation in the implementation of the WFD and other water-related legislation. 4 The Ervia Board agreed in principle not to renew the SLAs beyond 2025 when they are due to end, and to move to a fully integrated public utility operations model (Dáil Éireann Debate, 26 October 2017). The Water Services Acts already provide the necessary protections for terms and conditions, and pensions, of local authority staff working under the SLAs in such circumstances.

7

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Case: Biodiversity

People still attach a social value to the domestic cutting of peat and do not always recognise a contradiction with peatland preservation. (Renou-Wilson, Bolger, Bullock, Convery, Curry, Ward, Wilson and Müller, 2011: xii)

Introduction It tends to be overlooked just how important biodiversity is in maintaining a prosperous and stable future for the world’s population. Ireland may be a small country but it hosts approximately 28 land mammal species, over 400 bird species, more than 4,000 plant species and over 12,000 insect species (DoEHLG, 2006b). Through EU and domestic law the Irish state is required to conserve species and their natural habitats, many of which are significant owing to their uniqueness internationally and relative depletion elsewhere. Habitats are of particular importance and can be bracketed into broad categories, including native woodlands, grasslands, coastal and marine, and peatlands. Despite this, the evidence indicates that many of these habitats do not reach a favourable status when measured against both international and legal obligations to protect biodiversity. Central to these commitments are the EU birds and habitats directives, whose implementation has given rise to the creation of a European-wide network of sites for habitat and species, called Natura 2000. The methodology undertaken to create Natura 2000 is through the designation of habitat conservation areas known as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). In order to halt further biodiversity loss, it is critical for Ireland to pursue an integrated approach to natural resource policy (OECD, 2010a: 21). This envisages stronger environmental management and the pursuit of a more balanced approach between land-use policies, including agriculture, and nature conservation. EU directives not only provide for the designation of protected sites but also guide decision makers in initiatives that may affect protected species and areas. However, biodiversity governance ‘is as much about the species and areas that need to be protected as it is about the ways in which

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they need to be protected’ (Beunen and Duineveld, 2010: 323). The Birds and Habitats directives have been controversially received across the EU, particularly by the farming community, and Ireland is no exception. This chapter explores how all stages of implementation of the birds and habitats directives are subject to high adaptational pressures and conflict with stakeholders whose private property can be subject to this legislation. It also illustrates the dilemmas of horizontal coordination in the implementation process as over time several government departments were responsible for the implementation of habitats which became and remain a politically charged issue. Biodiversity trends in Ireland Biodiversity plays a role in clean air, water, food, shelter, medicines, health and recreation. It supports pollination and soil fertility, regulates climate and protects us from extreme weather (EPA, 2016a; EC, 2015b). Ireland’s biodiversity resources are the combination of climatic, geological, topographical and historical factors. Overall, there is less diversity in flora and fauna in contrast to continental Europe which is a result of Ireland’s geographical isolation and glacial history (DoEHLG, 2006b). As elsewhere, the development of agricultural practices and demographic change impacted on the landscape, as evidenced in the clearing of almost all of Ireland’s native woodlands. The Irish population peaked in the mid-nineteenth century prior to the famine in 1845–47, and changes in its aftermath engrained the trend in rural depopulation. This in turn altered agricultural routines which further influenced the landscape. Despite having fewer endemic species many of Ireland’s habitats are internationally important due to their scarcity in Europe (e.g. peatlands). Ireland’s wet climate is one of the main factors resulting in the formation of different types of peatlands that accommodate species in combinations not found elsewhere. Ireland remains an important site in blanket bogs, holding 8 per cent of them globally and its raised bogs are the most important remaining in Europe (DoAHG, 1998). In their natural state peatlands act as long-term sinks for atmospheric carbon dioxide. They are the largest terrestrial carbon store on the planet – more important than forests – and they help protect against climate change. As in other countries, however, Irish peatland has undergone serious losses due to drainage, peat extraction, afforestation and overgrazing. The raised bogs are the most endangered peatland habitat and more than half were destroyed between 1814 and 1946 prior to the establishment of An Bord na Móna1 to cut peat by mechanical means. In 1969, there were just 100,000 hectares of raised-bog left in Ireland and the semi-state body owned almost half of it.

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It was not until 1990 that an agreement was reached with Bord na Móna to transfer a portion of ecologically valued raised bogs to the National Parks and Wildlife Service (NPWS) for conservation. Ireland’s Fourth National Report to the Convention on Biological Diversity stated that, ‘It is estimated that there has been a ninety-nine per cent loss of the original area of actively growing raised bog in Ireland, and one-third of the remaining one per cent has been lost in the last ten years’ (DoAHG, 2010). In May 2010, the government banned turf cutting on 31 raised bog SACs, and decided that turf-cutting would cease on a further 24 raised bog SACs at the end of 2011. It is important to note that the scientific advice is emphatic about the prohibition of any cutting on a raised bog, as it is considered detrimental. This contrasts with other SPAs and SACs that do not rule out farming activities. This firmly limited the scope for compromise, led to considerable controversy and prolonged negotiation to find a means of protecting the best remaining examples of raised bog in Ireland. The emphasis on accelerating economic growth, changing land use and its supporting infrastructure from the 1960s onwards negatively impacted on Ireland’s biodiversity wealth. The intensification in agriculture following EU membership in 1973 is also a significant contributory factor to habitat degradation. Yet ironically, it is the impact of EU environmental legislation that is a basis for biodiversity protection. The national and local political impetus to champion nature conservation is largely absent amidst competing economic concerns. Despite the introduction of a Wildlife Act in 1976, Ireland’s conservation activities remain under-resourced. In addition, public awareness is low and misguided by perceptions that biodiversity resources were intact as a result of late economic development. This mix of reasons provides an explanation as to why Ireland did not advance comprehensive conservation measures effectively. The consequences are summed up in an unflattering record whereby in 1996 Ireland was listed by the International Union for the Conservation of Nature (IUCN) as ‘the worst achiever in the OECD protecting the smallest amount of national territory for biodiversity’ (Clerkin, 2002: 17). It was emphasised (citing OECD indicators) that Ireland protects 1 per cent to strict international standards. This raises the question of what is endangered, why is this so, and whether there is any progress to report since then. Some 14 per cent of the national land areas are covered by designated areas, there are six national parks in Ireland, and together these designations of 430 SACs and 154 SPAs cover most of the areas of significance for biodiversity. Since 2007, the area of forested land has increased whereas there is a decrease in the total area of peatlands. In 2013 the EU’s assessment of the status of protected habitats and species illustrated that 91 per cent of the 58 habitats assessed have unfavourable conservation status (DoCHG, 2017).

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Although nine habitats demonstrated some improvements, a further eighteen were reported as dis-improved with the majority unchanged in their condition. The overall trajectory is that Ireland’s biodiversity is in an increasingly vulnerable state, which is further compounded by the threat of climate change (DoCHG, 2017; NBDC, 2017; EPA 2016; DoAHG, 2014a). Many lakes and coastal habitats were also assessed as ‘inadequate’ and the condition of a number of peatland and grassland habitat continues to be ‘bad’. Some iconic species such as the pearl mussel, along with the sea lamprey and natterjack toad are in distinct decline as are more than a quarter of Ireland’s breeding birds, whereas one third of Ireland’s wild bees are under threat of extinction (DoCHG, 2017). Invasive species are a major threat for biodiversity on the island and require a coordinated all-Ireland approach, the potential for which could be further threatened by Brexit. Regulations on the prevention and management of the introduction and spread of invasive alien species came into force in the EU in 2015. Yet an all-island portal, Invasive Species Ireland, which was used to distribute information closed due to lack of funds. The deficit in public engagement regarding the necessity to foster biodiversity is officially recognised and the Biodiversity Action Plan 2017–21 features this challenge prominently. Surveys have indicated that knowledge of biodiversity in Ireland is below the EU average but that citizens strongly support conservation measures as a moral obligation and would like to be more informed (Eurobarometer, 2015).2 On a positive note, the 2016 Barometer survey, commissioned by the Heritage Council, found that consumer awareness and understanding of biodiversity had grown in Dublin, and other urban areas, since 2010 (Heritage Council, 2016). It is generally accepted that more needs to be done to communicate biodiversity-related issues to a broader audience. In its submission to the national biodiversity action plan in 2017, An Taisce advocated the importance of educating communities about the importance of biodiversity so that they may be empowered to ‘lead the way in its conservation’ (An Taisce, 2017). It criticised the past top–down approaches to conservation policy which have served to alienate communities and emphasised that bottom–up solutions with collaborative approaches should be more central in the government’s action plan. An instructive example is the Burren Life Programme which is aimed at mainstreaming cooperative agri-environmental initiatives that are aimed at conserving the habitats of the Burren area in Co. Clare. Overall, rural farmers, NPWS officials and environmentalists have experienced a difficult coexistence on these issues, as demonstrated by the IFA’s neuralgic reactions in the ‘Keep out campaign’ of 2002 and more recently the clashes with the Turf Cutters and Contractors Association (TCCA). If the directives’ objectives are going to be successful in the long term it is essential to pay attention to landowners concerns and consultation since the bulk of lands within Irish SACs are owned and managed by private landowners.

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The relationship between biodiversity degradation and the intensification of food production demonstrates the need for sustainable land use change and resource usage. Support from a range of policies, in particular planning, are essential so that designated areas do not merely become biodiversity ‘islands’ of protection. Biodiversity is central to policies such as tourism whereby initiatives like the ‘Wild Atlantic Way’ deliberately market the western seaboard as a destination rich in nature and wildlife. Key sectors associated with biodiversity loss are agriculture, forestry, fisheries, mining, peat extraction and infrastructure (including cumulative one-off housing) developments. Sustainability is mainstreamed in decision-making policy, more in principle than practice, and environmental impact assessment exercises have been narrowly applied in Ireland. It would appear that genuine cross-cutting horizontal measures for biodiversity conservation are largely absent despite the fact that bodies like Bord na Móna and Coillte are state or semi-state owned. A draft National Peatlands Strategy was published in 2014 which attempts to set down clear principles to guide government policy on all Irish peatlands. The objective is to apply these principles to sectoral plans and actions. Building awareness of the importance of ecosystem services and sustainability into actual sectoral policy decisions is going to be challenging and it remains to be seen how committed initiatives such as Food Wise 2025, rural development policies and the marine sector are in genuinely striving for these goals. Institutional framework for biodiversity Ireland’s national biodiversity policy is strongly linked to EU and international nature conservation commitments. Ireland is a signatory to the United Nations Convention on Biological Diversity and has signed and ratified a range of other international conventions that strive to protect biodiversity. EU legislation is particularly significant as a driver of habitat conservation in that it represents an intervention into the control of land use. In the European Conservation Year 1970 Ireland had one national park, no other legally protected areas dedicated to nature conservation, no legislative protection for wildlife and no state agency with overall responsibility or even a primary focus on nature conservation (Craig, 2001: 141). Approaches have changed markedly since Ireland’s accession to the EU and official protection is shaped by relying on acquisition and public ownership of lands, including six national parks, thereby enabling their direct management by public agencies. Ireland’s third biodiversity action plan (2017–21) lists 119 actions under a framework of seven objectives3 and achieving the outcomes associated with these goals requires the active engagement of an array of stakeholders, coupled with a deepening in public awareness. The responsibility for biodiversity is vested in the Minister for Culture, Heritage and the Gaeltacht but its overall

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implementation necessitates active involvement from areas managed outside the department, such as climate change, environment, agriculture, marine and local government (planning and development). Local authorities have key nature conservation roles through the operation of the planning system and An Garda Síochána and Customs also have enforcement duties. A range of public bodies including the EPA, National Biodiversity Data Centre (NBDC), Teagasc, Marine Institute, Office of Public Works, Waterways Ireland, Coillte, Fisheries Ireland and the Heritage Council also have roles. The Heritage Council was established as a public interest body under the Heritage Act 1995 in the aftermath of the Mullaghmore controversy. At Mullaghmore in the Burren, Co. Clare a conflict ran throughout the 1990s which pitched those for and against the location there of a proposed visitor centre. The environmentalists were successful in litigation and the project was withdrawn. This highlighted that ‘state agencies and local governments could no longer simply assume they did not require planning permission for their own developments’ (Flynn, 2007: 103). A National Biodiversity Forum was advocated in Ireland’s second national biodiversity plan (2011–16) and it consists of fourteen members from local government, academia, ENGOs, business and agriculture (DoAHG, 2011). The forum is involved in the formation of national plans and stakeholder engagement on an all-island basis. The institutional framework for biodiversity is influenced by the ‘lead department’ model in public administration and the cross-cutting approaches needed test the official system. For example, the principal farming interest groups traditionally liaise with the agriculture department and marine is also incorporated in this departmental configuration, alluded to by one interviewee as a ‘fortress structure’ (Personal Interview Q). NPWS is part of the Heritage Division charged with the conservation of a range of ecosystems and populations of flora and fauna and they have a field management staff located throughout the country. The NPWS was originally part of the Office of Public Works (Buckley, 2004: 107) but was re-named Dúchas in 1994. Commentators characterised it as a ‘weak Cinderella’ agency with limited independence (Flynn, 2007: 147) although it was enthusiastically promoted as a heritage brand. Dúchas did not endure and was controversially transferred to the Department of Environment following a general election in 2002. Explanations for its demise include a recognition that the freedom to comment on planning remain under the political control of the minister with local government responsibility. Also, Dúchas was considered too assertive in promoting its mandate to protect Irish heritage but it also failed to identify a sufficient number of conservation areas (Collins et al., 2007). From an official perspective the decision to reintegrate heritage in the Department of the Environment made sense since there is a single framework and council in Brussels for all environmental measures, and with all issues under one minister this may fit



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Table 7.1  Key policy directions and legislation directing nature conservation Biodiversity policy and legislation Wildlife Act 1976 Biodiversity reports to the Convention on Biological Diversity 1998, 2006, 2010, 2014

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European Union (Natural Habitats) Regulations, SI 94/1997 Wildlife Amendment Act 2000 Planning and Development Act 2000 First National Biodiversity Plan 2002 European Communities (Birds and Natural Habitats) Control of Recreational Activities Regulations 2010 Actions for Biodiversity 2011–16: Ireland’s second Biodiversity Plan European Communities (Birds and Natural Habitats) Regulations 2011 Wildlife Amendment Bill 2016 Third National Biodiversity Action Plan 2017–21 EPA Biodiversity Action Plan 2014–18 National Peatlands Strategy in 2015 National Raised Bog SAC Management Plan 2017–22

better with planning and EPA functions. Despite this, heritage was again separated from environment in 2011 though there doesn’t appear to be a clear policy or management rationale for this. The core biodiversity related legislation is that concerned with nature conservation (illustrated in Table 7.1). Central to this are the Wildlife Act 1976 and its amendment in 2000, and the European Communities (Birds and Natural Habitats) Regulations 2011 which consolidate and revise regulations introduced between 1997 and 2005. The physical planning system in Ireland is governed by the Local Government (Planning and Development) Acts which date back to 1963. The process of drawing up development plans resides as a local authority function and the planning acts allowed for the involvement of third parties. Ironically, three exceptions from development control were agriculture, forestry and peat extraction, all of which impact substantially on biodiversity conservation. Large-scale forestry4 and peat extraction were later brought within the planning system through the environmental impact assessment process. The Wildlife Act 1976 featured as the key piece of legislation for the protection and conservation of wild flora and fauna until its amendment in 2000. It

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replaced both the Game Preservation Act 1930 and the Wild Birds Protection Act 1930. The Act also provided a reasonable base for the conservation of wildlife habitat through its species protection provisions, and foresaw similar aspects introduced under the birds directive (see DoAHG, 1998). Fish species could only be added with the agreement of the minister in charge of marine and natural resources. Prior to the Act, protection was not assured outside national parks and an IUCN study in 1987 reported that Ireland was far behind every country in Europe in setting up nature reserves, having only 44 at the time, most of which were all previously owned by the state (Temple Lang, 1988: 169). Public money was not designated to buy up reserves for birds despite international obligations and this was excused by the Irish government as due to a lack of available Exchequer funds. During the 1970s a state land acquisition fund was in place but it was being utilised for afforestation, fisheries and national parks. These examples illustrate the difficulties encountered with the Act since, when it became law, ‘there was no national policy to say how it should be implemented’ which was in part due to the fragmented system of public bodies that held responsibilities for it (Temple Lang, 1988: 169). The Act itself may have anticipated features of the Birds Directive 79/409/EEC but it was still inadequate for full compliance. The creation of nature reserves and refuges, and regulations were made under the EC Act 1972 in August 1985. The Habitats Directive 92/43/EEC was transposed into national law in 1997 and represented a ‘fundamental shift’ in nature conservation policy and law (DoAHG, 1998). The limited powers to ensure protection and generally requiring the consent of landowners in the Wildlife Act 1976 were revisited in an amendment to the Act in 2000. This enabled putting National Heritage Areas (NHAs) on a statutory basis for the first time. The Act also includes a number of provisions relating to international wildlife issues (enabling Ireland to ratify the CITES Treaty). Details of Ireland’s protected sites can be found on the NPWS website. The habitats regulations were amended twice by SI 233/1998 and SI 378/2005 and encountered criticism over the failure to implement them. The European Communities (Birds and Natural Habitats) Regulations 2011 revises and consolidates the birds and habitats regulations and clarifies the roles of certain departments and agencies. A further modernisation is a strengthening of the legislative basis for the integration of biodiversity concerns into development plans under Section 10 of the Planning and Development Act 2000, as amended. In recent years further attention to raised bogs has been imperative and prompted the introduction of a National Peatlands Strategy in 2015, the National Raised Bog SAC Management Plan 2017–22 and the Wildlife Amendment Bill 2016 which provides for the implementation of a reconfiguration of the Raised Bog NHA network.



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Refining the context: the birds, the bees … and the bogs The wild birds and habitats directives create a comprehensive yet complex framework for the conservation of important species of flora and fauna. Their integration and enforcement in policy and legislation which is fit for purpose raises particular challenges for biodiversity. It can be somewhat of a ‘poor relation’ among other competing environmental issues and this emphasises the necessity to promote its mainstreaming. In particular, habitat conservation needs to be fully integrated into the planning system with clear guidelines regarding the degree of development consistent with the conservation of the habitat. Examples of socio-spatial activities with the greatest impact are agriculture, fishing, road construction and the cumulative effects of one-off housing on wildlife sites in Ireland. A meaningful engagement with the objectives of the EU directives would prevent the loss of further important sites and safeguard their conservation management plans. But across the member states, EU directives have also raised ‘considerable antipathy’ given that halting the decline in biological diversity requires societal behavioural shifts (Beunen and Duineveld, 2010). Government interventions may spur the aversion of stakeholders who use land in protected areas and also provoke criticism from ENGOs. As with the other case studies discussed in this book the biodiversity directives are beset with implementation trials and beleaguered enforcement. Overall, the timetable for implementing the habitats directive, in particular, proved unrealistic and all member states should have transmitted their lists for candidate SACs by 1995, yet no state met the deadline (Craig, 2001: 145). Ireland has been subject to a number of court proceedings and while the term ‘proper planning and sustainable development’ is a subjective one (McIntyre, 2002: 63), the habitats directive represents an instance of where principles and policies need to be set out clearly in planning legislation. Illustrations of court cases include the proposed Galway outer by-pass in Sweetman v. An Bord Pleanála, C-258–/11 where the development would have involved irreparable priority habitat loss. Between November 1998 and April 2002 the Commission initiated two sets of infringement proceedings against Ireland following six complaints made against the Irish state. Both related to poor transposition of the birds and habitats directives by neglecting to designate and classify SPAs for wild birds and subsequently inadequately protecting some of Ireland’s most threatened bird species. The resultant case 418/04, culminated in the longest judgement ever delivered on an environmental issue (Personal Interview B) and was close to the spirit of the judgement in the waste case 494/01 in that it pointed to a series of failings across the administrative system. What is significant

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about this case is that it prompted extensive amendments to implementation processes since Ireland had comprehensively failed to protect some of its most threatened bird species, including the Kingfisher, the Chough and the Corncrake. An added complication in addressing the biodiversity directives is that responsibility is dispersed across an even wider range of public bodies and consent functions than the waste remit. Case 418/04 cast a critical eye over planning consents and the failure to produce an appropriate assessment of land use plans. The suite of SPAs was not undertaken correctly and Ireland did not apply the correct criteria in choosing them, and in including areas for classification. The outcome of the case had significant implications for aquaculture licensing in Ireland and pointed to a range of agricultural policy issues regarding the safeguard of birds in the wider countryside, and the protection of specific species of birds. It also led to the rewriting and updating of the 1997 transposing regulations in 2011 and an amendment to the planning Acts in 2010 (to ensure habitats would not be forgotten). It is significant that the European Court shifted the burden of proof to a large extent to Ireland and supported the Commission’s arguments. As with the waste case, a significant programme of measures sets out the actions Ireland has taken in response to the judgement (DoAHG, 2014b). A more recent addition to Irish debates surrounding habitats is the controversy over the protection of Ireland’s raised bog SACs. Under the habitats directive, Ireland had to submit peatlands for protection in Natura 2000 from 1998. Active raised bogs are a highly endangered form of biodiversity and any extraction from them can only be allowed if a specific legal process is followed. This involves an assessment of impacts, non-availability of alternative solutions and provision of compensatory habitats. The Commission first initiated infringement proceedings against Ireland in 1999 and in June 2011 the Commission issued a reasoned opinion (‘final warning’), requesting that Ireland take urgent action to improve the implementation of legislation that protect peat bog habitat. The infringements involve systemic breaches of the habitats directive and the environmental impact assessment directive in relation to peat extraction on protected bogs. The 2011 regulations enable prosecution in the courts of those who do not comply with conservation measures such as the cessation of turf cutting on SACs. The regulations have provided the state with a number of legal instruments to address any breaches of the legislation including injunctions, sanctions, restoration of bogs following damage, as well as power to ‘compel the perpetrators of unlawful environmental damage to meet the costs of remediation and restoration’. The enforcement of this is complex and demonstrates how local engagement and responses from the politicaladministrative system have grappled with the impact of how ‘Europe hits home’ despite over two decades of implementation.



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Overall, the Habitats Directive 92/43/EC is very much aligned with the Wild Birds Directive 79/409/EC and both are mentioned interchangeably given that together they form the core of EU biodiversity policy and are central to Natura 2000. The following sections discuss their implementation from a top–down and bottom–up perspective.

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Top–down implementation – adequate causal theory Unlocking the transposition process Ireland’s experience of the birds directive indicates that very little site monitoring was undertaken and, consequently, there was a marked deterioration of sites, with several under immediate threat, when the habitats directive was introduced in 1992 (Taylor, 2001: 82). The CJEU identified several areas in which the authorities had not transposed the birds directive correctly or had not implemented it in a way that was consistent with the directive’s intention (Personal interview B). The fact that land in private ownership was not addressed highlights how ‘nature conservation issues in Ireland have been heavily politicised with farmers and landowners resisting previous moves by the state to curb any practice or development on the land that might damage biodiversity’ (Laffan and O’Mahony, 2008a: 182). Its counterpart in EU biodiversity policy – the habitats directive – was therefore a landmark attempt to intercede in the control of land use and marked a distinctive paradigm shift for conservation authorities (NESC, 2010). Under the habitats directive, member states were required to identify sites for special conservation and to submit these to the European Commission. As with the birds directive the basis for this was scientific criteria. In terms of Ireland’s negotiating position on the habitats directive it would appear that ‘there wasn’t a huge realisation in the system as to what the implications would eventually be … we went into it a little bit too blind’ (Personal interview B). In relation to the transposition process little progress was apparent between 1992 and 1994, although Ireland was required to transpose the habitats directive into national law before 10 June 1994. Yet behind the scenes extensive consultation was taking place, between Dúchas and the Department of Agriculture, on the form of the regulations (Grist, 1997: 92). It was not until 26 February 1997, however, that the directive was transposed into Irish law by the European Communities (Natural Habitats) Regulations in order to halt infringement proceedings. The transposition method fell under the European Communities Act and this removed much the public debate about the provisions and their far-reaching consequences, particularly for landowners, and the restrictions on what they would be able to do with their land. Despite this, transposition occurred in ‘a constitutional and legal environment that accorded considerable protection to landowners under the principle of natural justice underlined in

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an Irish Supreme Court Judgement’ MacPharthalainn v. Commissioners for Public Works [1994] 3 LR 353. This upheld the right of landowners to be granted the opportunity to object to designation and was at the heart of the strong cultural sensitivity about property rights in Ireland (Connaughton, 2010; Flynn, 2007; Taylor, 2001). In a Dáil debate in 1996 the then minister, Michael D. Higgins, was accused of ‘casting himself as some sort of new Cromwell trying to take over land without consultation or compensation’ (Dáil Debates, 26 November 1996). The legal consequences were profound whereby the site conservation measures contained in the regulations focussed on activities (rather than sites) and sought to integrate controls into the existing planning and environmental system in areas that had previously been unregulated or inadequately regulated (McIntyre, 2002: 100). Besides the incorporation of protective requirements, the regulations also put in place a process with provisions for objections, appeals and arbitration. Unsurprisingly, the potential for conflict between landowners and regulators was high and since these were such significant measures, it is remarkable that the directive was transposed by regulation in 1997 instead of through primary legislation.5 Concerns with the directive led to its inclusion in the negotiations of the 1996–99 social partnership agreement, Partnership 2000. In the agreement reached with the farm organisations, compensation was provided for landowners affected by the directive because of their concerns about the devaluation of land and loss of income. Compensation for farmers proved to be the key to unlocking the transposition process (Grist, 1997). Farmer representatives also sought and achieved an independent appeals board. Given that this was a new and far-reaching system of land controls it would have been preferable to have opened up the process to democratic debate and amendment in Parliament rather than negotiation and compromise between interest groups in private (Laffan and O’Mahony, 2008a). By April 1998, all member states with the exception of Ireland and Luxembourg had sent lists of definitive sites to the Commission and a letter of formal notice was issued on 24 April 1996. Application: the role of a central agency? The primacy of a lead department, political direction and organisational capacity are issues that impacted on the application of the directive. As noted, the ownership of the heritage function in Irish government moved between departments and remained under-resourced. Three different departments – Environment, Agriculture and Arts, Culture and Gaeltacht were involved in the consultation and transposition of the directive. The Department of Environment and Local Government had primary responsibility for negotiations at EU level whereas the key stakeholders affected were farmers who are part of a tight policy community and liaise directly with the Department of Agriculture. The

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interdepartmental structures for the coordination of cross-cutting issues such as nature conservation were weak and this had a direct impact on the negotiations (McIntyre, 2002). The responsibility for the directive was transferred from the Department of the Environment to the newly created Department of Arts, Culture and Gaeltacht in 1993. This had repercussions for liaison with the EU institutions and also for steering the early stages of the directive’s implementation. As a new department that had relatively little EU business it lacked the familiarity with procedures and methods in Brussels and rarely dealt with the European structures. The NPWS, formerly Dúchas, was designated by the department as the responsible agency for implementing the directive. The notifications for the first phase of proposed SACs took place in March 1997, immediately following the introduction of the Habitats Regulations. This phase focused on sites supporting ‘priority’ listed habitats and involved over 200 sites covering an area in excess of 550,000 hectares. The second phase published in 1999 concentrated mainly on land and freshwater sites for non-priority listed habitats. Finally, the third phase in 2000 was mainly composed of marine sites. Many of the areas are located in the western part of the country. A number of issues needed to be addressed, however, including the inadequate designation of sites, protection from unsuitable developments on site and adjoining sites, and the appeals procedure (Clerkin, 2002: 178). In addition to engaging the relevant government departments a further organisational culture and learning challenge determined by the directive was the question of applying the habitats regulations of 1997 to the general planning and consent systems. In reality it was widely ignored by the relevant consent authorities. One reason for this was that transposition had taken the form of a stand-alone regulation that was separate from the core regulatory framework of the consent bodies. ‘So because it wasn’t in the planning acts, it was generally not seen as part of the planning toolkit for the planning kit’ (Personal Interview B). Further complexities arising in implementation stemmed from the recognition that the habitats directive would be prohibitively expensive to implement. Some land uses would have to be discontinued and/or there would be future restrictions on land for conservation purposes. The European Commission recognised this and identified a method of delivering that funding to each member state through the rural development fund. In Ireland this fund was managed by the Department of Agriculture through the administration of the Rural Environment Protection Scheme and its successor. The difficulty, from a habitats implementation perspective, was that from 1997 to 2007 no significant restrictions were placed on farmers in Natura areas and yet they received funding. As a result, farmers saw all the restrictions but did not appear to make the link between the assistance and the designations. One instance where this became problematic for the Irish government was

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Owenduff-Nephin Beg in Co. Mayo when the Court ruled against Ireland (Case-117/00) in 2002 for failing to comply with Article three of the birds directive. The judgement recognised the environmental impact of overgrazing on uplands and acknowledged the need to protect wild bird species, including migratory species, rather than those just listed for SPA protection (McIntyre, 2002: 128–9). In this case, the Commission viewed Ireland as not protecting a SAC from the overstocking of sheep and not protecting the habitats of red grouse, also threatened by the overgrazing over a wider area. When the Department approached the Department of Agriculture and the Irish Farmers Association it found itself unable to deliver a solution based on the rationale that agricultural activity had caused environmental damage. In the end the government established a new scheme to incentivise farmers to bring down their stock numbers. This was in addition to the subsidies they were already receiving under the REPs scheme. A complexity with habitats is the bespoke requirements and sensitivities in relation to different sites and it is acknowledged by heritage officials that farmers and turf cutters require compensation in proportion to the burden they carry. To move to a more sophisticated scheme would require the Department of Agriculture, which has historically resisted such developments, to adapt. This is difficult, yet the Irish administration needs to avoid further environmental infringements with the European Commission in agricultural activities and turf cutting. Political contestation and implementation A critical part of the implementation of the habitats directive was the minister’s actions in establishing the modalities for site designation and notification of landowners whose lands were in a designation (Laffan and O’Mahony, 2008a: 188). The minister also had to find a way of overcoming the entrenched opposition of the farming community to EU or state imposed restriction on their use of land. Initially, the designations were made on scientific grounds although the Commission argued that collaborative principles and consideration for economic, social and cultural issues were enshrined in the habitats directive (O’Riordan et al., 2015). Yet methods of consultation followed the traditional routes of putting advertisements in the papers and generally lacked the establishment of an effective dialogue between the conservation authorities and landowners until the Natura network was finalised. Many farmers and landowners were extremely frustrated with ‘the science-first, top–down, non-communicative manner’ with which designations were made and implemented (Bryan, 2012: 86). The consultation was deemed unsatisfactory and it is evident that farmers’ groups were able to politicise the issues to their own advantage. By being far more influential than conservationists, the IFA entered protracted negotiations with the national authorities and was effectively able to veto progress in both

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transposing and applying the directive. The compensation provisions were the element of the regulations over which the most consultation took place (Grist, 1997: 92). Although the designation of SACs is unchallengeable, the method of their establishment is not and it was compatible with the directive to make provision for payment of compensation. For farmers who did not want to join rural environmental protection schemes a national compensation scheme was put in place which required Commission state-aid sanction, received in 2003. The dissatisfaction felt by farmers over the notification and consultation processes led to problems in enforcing the directive as the principal stakeholders rejected how the habitats directive applied to them. A change of government in 1997 resulting in a coalition between Fianna Fáil and the Progressive Democrats produced a sceptical Minister (Síle de Valera) and Minister of State (Eamonn O’Cuiv), both of whom were vocal critics of EU initiatives and attentive to constituency concerns. By 1999, the Commission signalled its dissatisfaction with the government’s laggard stance on transmitting the full list of designated sites under the habitats directive by alerting them to a potential risk in approving the Community Support Framework for structural funds unless action was taken. This led to the Minister for Finance, Charlie McCreevy promising Commissioner Michel Barnier that Ms de Valera’s department would implement the habitats directive within six months (FitzGerald, 2000). In September 2000, Minister de Valera appeared to express her frustration in a speech at Boston College when she commented that directives and regulations agreed in Brussels can often seriously impinge on identity, culture and traditions. The delayed full list of sites nevertheless resulted in the Court of Justice of the EU ruling against Ireland (Case C-67/99) on 11 September 2001. During their tenure both de Valera and O’Cuiv put considerable effort into talks with DG Environment in order to explain the local difficulties with the directive and stress the importance of local cooperation in order to achieve sustained conservation. They also engaged in a political climb-down in relation to the turf cutting on raised bogs, although it is incompatible with their conservation and the 1997 regulations signalled the cessation of turf cutting on those sites. The minister did ensure that commercial turf cutting was immediately brought to an end, but in 1999 ten-years derogation was granted to other turf cutters. She also established a scheme for the purchase by the state of freehold ownership or turbary rights, in affected areas. Essentially, this was ‘a derogation granted by Ireland to itself’ and although Minister O’Cuiv informed the Commission of this action, they did not move against Ireland in those ten years. At the end of 2010 the minister announced an immediate ban on turf cutting on 32 raised bogs, it was further banned in 24 additional active raised bogs at the end of 2011, and a compensation scheme was announced. The Commission

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had serious concerns about the effectiveness of the response and it was also ardently opposed by some turf cutters who were supported by the Independent TD Luke ‘Ming’ Flanagan and TCCA. The case illustrates a lack of awareness of biodiversity and indicates the turf cutters’ high levels of mistrust and suspicion of the authorities. It has also frustrated ENGOs who observed that neither the Irish authorities nor the European Commission were proactive in protecting the sites. Protesting turf cutters appeared before court in connection with illegal turf cutting and faced fines owing to their rejection of the directive, insisting it is their age-old right to harvest peat. One outcome of this scenario was a review of Ireland’s natural heritage areas and negotiations between the Department of Arts, Heritage and Gaeltacht and the European Commission, whereby the ban was lifted in 2014 for around 45 (total or partial) sites and allowed 2,500 active turf cutters to cut in affected areas. Essentially, the review of NHAs set out a significant reconfiguration of Ireland’s NHA raised bog network to meet conservation targets while reducing the impact on the taxpayer by ensuring that the minimum numbers of turf cutters are impacted (OECD, 2014b). Bottom–up implementation – the living constitution matters Failures of traditional implementation – hearing but not listening The existence of an implementing agency or policing role is a top–down approach to implementation that does not facilitate building acceptance of the need to meet the requirements of the directive at local level. This is particularly evident in the debacle over turf cutting on SACs which forced the system to respond with a more bottom–up approach to finding solutions for local people and a better understanding of local needs. This is in line with the spirit of the directive which requires that conservation measures take into account the economic, social and cultural requirements, as well as the regional and local characteristics of the area. Notwithstanding, policy implementation is particularly challenging in the realisation of ecological networks where ‘local portions concur in forming national and even wider systems’ (Ferranti, Beunen and Speranza, 2010: 296). Key actions to facilitation are education and training for local and regional authorities, involving stakeholders and managing conflict situations, and finding the necessary funds to manage protected areas. In taking stock of the top–down ‘science first’ approach taken in the designation of SACs it is evident that the Irish government failed to enable stakeholders take ownership of nature conservation. The majority of lands within Irish SACs are, and will continue to be, owned and managed by private landowners, principally farmers, and their cooperation is crucial. In 2011, the EPA published a research report titled ‘Bogland’ which reported that peatlands are ‘Ireland’s last great area of wilderness’ but their management

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is not sustainable (Renou-Wilson et al., 2011). Although peat soils cover approximately one-fifth of the national land area, there are no more intact raised bogs left in Ireland while few peatlands remain in their natural state. The authors of the research included recommendations for a national peatlands strategy process, more citizen involvement, a national peatland park, proactive management of protected areas, review of the peat industry and the enforcement of regulations. What was evident to the authors is the ambiguity and lack of public understanding regarding the significance of peatland habitat. Under the original national regulations in 1997, the powers to control damaging activities in a SAC apply from the date of publication for the proposal to designate the site (Craig, 2001: 145). It is noted that this went beyond the requirements of the directive which only necessitated protection once the site had been formally designated a SAC, adopted at the end of a protracted EU process. This means that most sites containing priority habitats such as raised and blanket bogs were protected in theory from April 1997 (Craig, 2001: 145), but in practice they weren’t. In terms of peatland, Ireland designated 31 raised bogs as SACs between 1997 and 1999 but the ten-year derogation to cease turf cutting followed almost immediately. Following an EU review in 2002, Ireland designated 24 more SACs. A further 75 NHA raised bogs were designated for protection under national legislation in 2004. In 2006 the Fernandez study assessed the conservation status of approximately half of the designated raised bogs in Ireland and concluded that turf-cutting activities and raised bog conservation were incompatible. The Fernandez report demonstrated that domestic turf cutting was taking place on 117 out of the 139 designated bogs. The research pointed to the destruction of priority habitat over a ten-year period. It is quite apparent that the ten-year derogation Ireland gave to itself in terms of turf cutting on raised bogs was irreversibly destructive. While the ‘science first’ approach to designation was criticised, the intervening period did not provide any way forward in terms of supporting people who depend on turf for home fuel or livelihoods to adopt alternatives. Ministerial sympathy for the concerns of farmers influenced the terms upon which implementation proceeded – which was political rather than technocratic (Laffan and O’Mahony, 2008a: 193). Opposition was built from the grassroots upwards and characterised by wide-ranging mobilisation. Irish ministers have had a tendency to U-turn on actions concerning the bogs issue. Green Minister John Gormley did not intend to extend the ten-year derogation on turf cutting on SAC bogs, and yet granted extensions in 2009 and 2010 to allow more time to find a solution. Ironically, this was attempted by establishing an interdepartmental review body rather than by working with farmers who had managed their land for generations. In May 2010, the government finally confirmed the end of turf cutting for domestic purposes on the 31 raised bog SACs designated up to 1999, and that turf cutting on the other

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24 SACs would cease from the end of 2011. But during the general election campaign in early 2011 assurances were again given by the caretaker Minister O’Cuiv (and supported by Fine Gael and Labour) to turf cutters on SAC bogs for 2011. EU sanctions precipitated the formation of the Peatlands Council on the 5 April 2011 which brought together stakeholders affected by the designations (NPWS, 2011). Membership included government departments/bodies, including Bord na Móna, An Taisce, Irish Peatland Conservation Council, IFA, Irish Rural Link and the TCCA. The agenda for their first meeting focused on finding some resolution to the recently appointed Minister Jimmy Deenihan’s announcement on 23 May 2011 which reversed the commitment to domestic turf cutters and contractors for the 2011 season. Likely driven by the European Commission’s proceedings, the minister’s announcement led to frustration and confusion since some turf cutters were not aware of the discussions and encountered the authorities in their bogs. This was also a period of crisis for the new formed Fine Gael-Labour coalition government. This was six months after Ireland’s bailout by the Troika and Ireland was under significant pressure from the Commission. The Dáil passed legislation to allow the confiscation of turf-cutting machinery on the protected bogs. Protests in Glenamaddy and Portumna demonstrated that turf cutters did not want relocation or compensation but wanted to protect their rights. The top–down approaches to implementation were clearly unsatisfactory, inconsistent and illustrated from the outset a lack of an effective enforcement plan for a handful of raised bogs. Social value, locality, ‘God given rights’ … and turf Turbary – the right of private individuals to cut turf for domestic use – has taken place in Ireland since the fifteenth century. Bog ownership and turf cutting has existed in Irish families for generations and local people do not want to see this generational chain broken, or an end to their own supply of domestic fuel in rural Ireland. The bogs issue is a very emotive one and environmental issues linked to owning and controlling land are viewed as being at the heart of modern Irish cultural nationalism (Leonard, 2006: 41). An Irish official commented that the issues raised by the birds and habitats directives are very close to farmers and between the two directives they have designated about 15 per cent of the land area of the state. It involves applying limitations to how people can use the land, which is unpopular. This further highlights the contradictions in top–down management conservation which implies a government approach to ensure that economic development takes place outside protected conservation areas ‘in fulfilment of national defined rather than locally defined priorities’ (Wilcock, 1995: 252). This fails to concede the significance of locality and the diverse economic and social realities in the rural countryside. But in terms of this ‘living constitution’ it is also important to pay attention to the nature of the activities involved. It is

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argued that local communities ascribe social value to harvesting turf but do not necessarily acknowledge the contradiction with bog preservation (Renou-Wilson et al., 2011). References to traditional turf cutting conjures up images of local families engaged in cutting small amounts of turf by hand, using a slean. The greatest damage to raised bog habitat, however, is the result of intensive cutting by commercial turf cutters and mechanisation rather than the actual nature of the practice. The state acquisition of raised bogs is viewed as a potential solution since these habitats don’t require grazing regimes (Craig, 2001: 148) and are also better value for money than compensation (Renou-Wilson et al., 2011). This clashes with views that ‘it would be far more prudent to pursue a policy where conservation goes hand in hand with rural dwellers, a policy where the guardians of our natural heritage are supported rather than punished’ (Dáil Éireann Debate Private Members’ Business-Turbary Rights: Motion (resumed, Wednesday 7 March 2012). Irish landowners are aggrieved that, as people directly impacted by this legislation, they have not been adequately communicated with over time or consulted appropriately by the state. The habitats directive does not require notice to be given to those with an interest in land within a site proposed for designation. This is left to the discretion of the member states and Ireland’s implementing regulations provided that notice of the inclusion of land in the candidate list should be given to certain parties. The Irish administration did communicate with farmers but it did so by traditional top–down methods, like public announcements and site notifications. The landowners could object but only on scientific grounds to the proposed designation and were informed that a list of activities considered to be potentially damaging to habitat could not be carried out without ministerial consent (DoAHG, 1998). Where agreement could not be reached it was referred to an SAC Appeals Advisory Committee. It would appear that the announcements were extensive and involved a general letter drop of over 200,000 letters to rural households in the areas involved, public meetings, adverts in rural and farming press sources, including a free-phone information line (DoAHG, 1998). Landowners argued that this was inconsistently delivered, late and often misleading. For example, when the Fianna Fáil-Progressive Democrats government enacted the Wildlife (Amendment) Act in 2001, it gave effect to the designation of NHA sites and landowners felt excluded from the process or pointed out that it was contradictory to previous assurances. This led to a widespread breakdown in trust and illustrates a complicating factor with EU directives given the scope and detail of regulation to secure the conservation of nature on private lands. This needed to be achieved through ‘an effective system of agreements through farm plans in most cases, to avoid bureaucratic systems more likely to cause resentment than to stimulate conservation activities’ (Craig, 2001: 148). When the process

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commenced in the early 1990s officials had to do a manual trawl through hard copy records of property registration and claimed it wasn’t possible to do this on a wide-scale basis (Personal interview B). It appeared inevitable that some landowners would be missed, particularly on bogs where a family’s grandparents may have been cutting, but which were unregistered. In 2011, Minister Deenihan’s announcement on the cancellation of turf cutting in SAC designated peatlands led to emotive reactions and angry scenes. The economic recession was well entrenched and fuel security was a key concern for many people following two particularly harsh winters. The issue was no longer anger about restrictions to what landowners viewed as their ‘God given right to do’ but was further entangled with economic factors. Families owning their own bank of bog had access to fuel security at a reasonable cost. The issue was particularly politicised in the West (e.g. Kilteevan, Roscommon) South West (e.g. Moanveanlagh, North Kerry) and across the Midlands of Ireland. Individual TDs in all major parties were vocal in support of the turf cutters and local meetings were well attended by landowners who resisted compensation, which appeared to them as the only item on the government agenda. Some landowners blocked access to bogs so that NWPS rangers could not enter as they began machine cutting. It was reported that rangers were threatened by turf cutters opposed to the ban on harvesting peat on raised bogs, including SACs – for example Coolrain Bog (Mooney, 2012). Gardai were present at these locations and the illegal turf cutters/contractors openly defied the law and were supported by members of the local community. Political support came from local Roscommon TD and TCCA representative, Luke ‘Ming’ Flanagan at Monivea bog near Athenry, who claimed that the cutters were ‘vindicating our rights … we will fight it through the courts and fight it politically and fight it on the bogs’ (Barry, 2013). Despite the threatening overhang of formidable EU fines these actions led to only a handful of prosecutions. Officials now point to the development of more coordinated efforts at consultation. It was acknowledged that more successful consultation ‘happened at the wrong end of it’. It is hugely resource intensive and countless meetings need to be held to build trust. To some degree this was frustrated by a policy of non-engagement on behalf of the TCCA from 2011. Some progress was made from 2012 in a effort to obtain agreement with communities to move to other bogs and better facilities. On a local level, Abbeyleix Bog Project is an example of a community initiative tasked with ensuring that the site is managed for conservation, education and local amenity purposes. The EU also co-financed a LIFE project on raised bogs to improve the conservation status of raised bogs in twelve Natura 2000 sites in the Midlands. Beliefs and actions – TCCA and bottom–up mobilisation In 1981 an amendment to the Turf Development Acts 1946–80 promoted the mechanisation of peat extraction by providing development grants for access

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roads to bogs, drainage and the cost of purchasing, leasing or hiring turf development equipment (Section 2 (5) Bog Development Act 1981). It is evident that it is not just the industrial-scale operations of Bord na Móna that causes damage on Irish bogs but that local turf cutting is also highly mechanised since the turf is typically cut by diggers. The TCCA was founded in 1998 and, as noted, remains the main representative body for turf cutters. Central to the beliefs of the turf cutters is the view that EU legislation disrespects an important element of traditional rural life and interferes with property rights. Some of its members have claimed they are willing to go to jail in order to defend these beliefs and they also assert that bogs recover, whereby turf cutting can be compatible with the environment, citing centuries of practice. Many turf cutters felt that the ministerial decision to end the derogation in 2011 came without warning for them and the TCCA position was that SAC boundaries should be changed to allow turf cutting to continue. Although the media focused on the highly mobilised campaign of resistance by TCCA members, in reality, three-quarters of those who had cut turf on the 53 SACs, had stopped by 2012 (Mooney, 2012). A central grievance articulated by landowners in the Peatlands Council was that they had taken care of their property in a state worthy of designation but were being discriminated against. Key problems for the 9,000 or so turf cutters included: a reluctance to give up turbary rights (whether actively cutting or not); bogland overgrowth and resultant flooding if unplanned drainage restrictions were placed by the NPWS without comprehensive consultation with local farmers; the impact on incomes and the value of their properties; fuel supply security; cultural heritage (TCCA, 2012). At the core was the fear that if landowners entered into an agreement to cease turf cutting for a modest short-term financial reward they would make their property worthless in the long term. An atmosphere of distrust led the TCCA to distance itself from other rural groups and withdraw from formal negotiations (O’Riordan et al., 2015: 10–11). It conducted its own consultation with peatland communities and published its findings in a report in 2012, stressing legitimacy issues surrounding the selection of the designated sites (O’Riordan et al., 2015: 12; TCCA, 2012). The salience of the issue prompted An Taoiseach Enda Kenny to convene a four-day Peatlands Forum commencing on 28 February 2012 to examine proposals from turf-cutting communities, including written submissions from a range of bodies on implementing the habitats directive. It was independently chaired by a High Court judge, Justice John Quirke, and some 140 representatives from more than 50 turf-cutting communities addressed the forum in open plenary sessions (Quirke, 2012). The forum provided an opportunity for turf-cutting communities to ‘have their say and the TCCA chairperson Michael Fitzmaurice (later elected to Dáil Éireann in 2014) presented a plan to contribute towards a resolution.

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The proceedings were published as the Quirke Report and the forum, by its model, sought to derive legitimacy and utilise participatory practices (O’Riordan et al., 2015: 13). Quirke’s report confirmed the distrust felt by turf cutters who were acknowledged as ‘hardworking, decent, respectable and law abiding citizens of this State who have no intention or wish to break any Irish or European law’ (Quirke, 2012: 161). The recommendations sought to balance the inflexibility in terms of continued environmental damage to sites, and adherence to the directive, with the complexity of the rights enjoyed by turf-cutting communities. Under Article six of the habitats directive he proposed the preparation of a ‘national plan’ to secure acceptance of protection on sites and adequate compensation for restrictions on turf cutters. The forum changed the dynamic between the parties in question and ‘reframed the conflict to focus on the displacement impacts of the designations and the apparent failure of state agencies to address the rights of turf cutters’ (O’Riordan et al., 2015: 13). A private member’s motion on 6 March 2012 sought submission of a national plan to the Commission and was unanimously passed. This can be regarded as a success for the TCCA who demonstrated they could influence environmental implementation and the government shifted from its stance on de-classification of the original sites. Resolutions have since focused on relocation to nearby good quality bogs, full or part de-designation of bogs where relocation is not a possibility, delivery of turf while awaiting relocation and compensation that is acceptable to the turf cutter. A national plan proceeded in consultation with stakeholders and a review of raised bog NHAs was published in early 2014. The Peatlands Strategy published in 2015 set out a new regulatory regime for turf cutters but indicated that bans on turf cutting would be lifted in some areas with new, alternative protected sites created elsewhere (which is likely to be on stateowned land). This was followed by the National Raised Bog Special Areas of Conservation Management Plan 2017–2022, which includes plans to commence restoration work on bogs across the country and commits progression of the relocation of turf cutters to non-designated SAC/NHA bogs. The plan’s goals include nurturing the amenity and exploring the educational potential of several sites in collaboration with local communities. An example of this is The Living Bog project launched in 2015 at Clara Bog, Co. Offaly. At the launch of the plan in 2017 it was estimated that the government had spent €28.7 million on compensating turf cutters on raised boglands (O’Sullivan, 2017b). By December 2017 a total of 64 turf cutters had been relocated to non-designated bogs and, while making headway is slow in terms of identifying and investigating sites, it is predominantly a workable compromise for the turf cutters, though with the potential to become contentious. Some problems have arisen in relocating turf cutters to suitable, alternative plots, such as from the Moanveanlagh Bog in North Kerry which was a source of conflict and TCCA contestation in Minister Jimmy Deenihan’s own constituency from



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2011. Overall, the turf cutters’ beliefs and actions highlight the gap between various environmental actors and their roles in the guardianship of the countryside. Michael Fitzmaurice, the Independent TD and Chair of the TCCA was quoted as saying: ‘It’s fine for so-called environmentalists who have gas coming out of their backsides in Dublin … They don’t always understand rural Ireland’ (Courtney, 2018). Assessment of change Ireland has some of the most unique habitats in Europe which sustain a range of species. They are listed for protection because they are recognised as being under threat at EU level and have global significance. Ireland is also an important staging post and destination for migratory birds and holds significant populations of birds that are rare elsewhere, as well as internationally important wetland bird communities. Yet, four decades since the introduction of biodiversity legislation, the evidence points to a trend of poor status in respect of priority habitats (National Biodiversity Indicators, 2017). In April 2016, the European Commission called on Ireland to step up its efforts to designate SACs and to establish conservation objectives and measures for all of them (EPA, 2016a). The National Biodiversity Plan for 2017–21 sets out 119 actions to protect the Irish landscape and those forms of life it supports. The development of a sectoral adaptation plan for biodiversity is assigned to address the requirements for improving the resilience of biodiversity to climate change, and this is in line with the Climate Action and Low Carbon Development Act 2015. But this will be futile unless clearly defined targets and a time frame for implementation are adhered to. Although employment numbers in biodiversity have increased and educational programmes have been established, funding for conservation remains poor overall and mainstreaming biodiversity into economic and development considerations is weak. If the Irish economy consolidates its recovery, future land use changes will likely further threaten species and habitats. Article 18(1) of the birds directive required member states to comply with the directive within two years of its notification. In both the birds and habitats cases transposition was significantly delayed. The negotiation of the habitats directive in particular proved to be ‘tortuous and convoluted’ – a situation that was mirrored in other member states (Taylor, 2001: 83). Despite this, it is officially asserted that Ireland had anticipated the first pillar of biodiversity policy (birds directive) with the enactment of the Wildlife Act 1976. Nonetheless, the Act was relatively weak with regard to habitats protection on land in private ownership since very little could be introduced without agreement with landowners (Laffan and O’Mahony, 2008a: 182) and this has not fundamentally changed. One of the problems presenting when the Act became law was that there was no national policy to guide how it should be implemented

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(Temple Lang, 1988: 169). Fragmentation among state bodies regarding the relevant responsibilities made it very difficult for the Department responsible to influence the essential cooperation and collaboration required. The difficulty was not in deciding what needed to be done, but in summoning up the official determination to do it. The legislative and policy framework was substantially revised two decades later, including rewriting the regulations for transposing the habitats directive in 2011. Amendments to the planning legal framework placed the conditions of the habitats directives centrally in order to ensure they would not be overlooked. The habitats case (encompassing the birds directive) also demonstrates the difficulties involved in the translation of EU directives into action when major policy shifts are required. In terms of the framework (Risse et al., 2001), adaptational pressures must pass through and interact with facilitating and/or obstructive factors specific to the member state. Evidence of misfit is apparent in the Irish case, given the difficulties that arose immediately in transposition, namely the ability of the political-administrative system to assume leadership and responsibility for the directive and the emergence of conflict between landowners and regulators. The designation of SACs was a complex process which Irish authorities did not have the capacities to carry out effectively. It also prompted a considerable degree of political conflict across layers of governance and between various stakeholders, since the obligations of the directive impinged on the sacredness of land rights in Ireland. Therefore, the case illustrates that if European measures are not in line with the core preferences of the principal interest groups then implementation will be controversial. Agricultural/rural lobby groups remain very strong and successfully lobbied for implementation not to cut across their interests. Although ENGOs have been active in advancing complaints to the European Commission, as in Case C-418/04, they have less influence in the domestic policy-making system. A comment from an ENGO representative is quite telling: ‘They have funded us and ignored our submissions. Bilateral unofficial communications they are more comfortable with, but not open dialogue’ (Personal Interview R). Turf cutting on SAC/NHA sites remains controversial and provides an interesting insight into the opposing views and beliefs of environmental stakeholders. Following surveys carried out by the NPWS in the late 1990s, 139 of Ireland’s 1,500-plus raised bogs were designated as SACs/NHAs. The bog owners were told that from 2008 they would no longer be allowed cut the turf on their land. The Boglands Report published by the EPA in 2011 presented research evidence that disturbances in the form of industrial and domestic peat extraction, private afforestation, overgrazing, wind farms and recreational activities have a major negative impact on the hydrology and ecology of the habitats. Minister de Valera’s self-awarded derogation for domestic cutting

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was environmentally destructive and by now most of the habitat has been lost, which makes conservationists adamant that turf cutting must end. Friends of the Irish Environment (FOIE), one of the most vigilant groups campaigning for peatland preservation, conducted an aerial survey in 2012. The evidence gathered is contained in a report titled Defining Ireland’s Protected Raised Bogs from Illegal Extraction (FOIE, 2012) and its title page suggests that the report be read in conjunction with the FOIE report in May 2011 and their petition to the European Parliament. The findings illustrated the continuing destruction of priority habitat sites and found no evidence of hand cutting. On this issue the Irish environmental movement lost traction in the debate and felt that the government sent out the wrong message to the opponents of conservation measures, namely, ‘Protesting would stop the restriction coming even after the ten years. And protest they have’ (Morris, 2011). When viewed over time the bogs debate also illustrates the abject failure of the enforcement of the habitats directive. From a time a landowner is notified of the proposal to designate a site as an SAC, the site enjoys full protection. It is clear that this protection has been theoretical and not always implemented in practice. Given the lack of resources and staff available to Dúchas/NPWS and the lack of recognition of designation by some landowners, problematic enforcement was inevitable. From the perspective of landowners, the reasons are also complex, rooted in the heritage and traditions of rural Ireland and turf cutters feel that environmentalists don’t understand this. Consultation processes were weak and landowners felt disrespected in the ways they were approached. The early compensation schemes were not satisfactory and it was felt that pledges were left dishonoured by the authorities which bred distrust. In interviews, an official indicated that when designations commenced in Northern Ireland ‘armies of people’ called door to door to sit people down and explain the issue to them (Personal Interview B). This type of resource intensive approach wasn’t possible in the Irish administration and instruments like advertisements or post were used. A reality is that a significant proportion of the rural community rejects how the habitats directive applies to them, and there is a low buy-in from agricultural representatives and across the spectrum of political parties, excluding the Green Party. Overall the introduction of EU biodiversity legislation from 1979 was much more far reaching than originally thought by Irish officials: It can sometimes feel at bit endless and you are constantly fire-fighting and there isn’t the space to think strategically forward on certain things. But, having said that, having met the requirements of the judgement you are doing an awful lot of implementation. Through those judgements you have to fix the process to deliver what you should have had ten years ago. So in a way that is a step forward and we are getting more coherent delivery of the directive than we had. (Personal Interview B)

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The habitats directive in 1992 involved the first intrusion on land use given that agriculture wasn’t traditionally subject to planning controls. In addition, it shifted conservation activity from being almost wholly on public lands towards privately owned land. Crucially, the habitats directive is legislation that introduces an objective test in respect of whether a decision to grant or refuse a planning consent is made, as outlined in the judgement 418/04 in the Commission v. Ireland case. The manner in which the Natura 2000 programme is implemented in the future requires flexible solutions, given the participation and much needed cooperation of private landowners. A major challenge is enforcement and it is evident that doing the bare minimum to protect and conserve natural habitats will have far-reaching consequences. Brexit adds to these threats as the island of Ireland forms a distinct geographical unit in terms of natural environment, and plant and animal species do not observe the existence of borders. Although the UK was an early advocate of nature conservation laws and supported the inception of the habitats directive, its enforcement has also been controversial and viewed as a ‘burdensome obstruction to development’ (Hilson, 2018: 105). Any efforts to disentangle the protection afforded to biodiversity under EU law will further threaten the vulnerable habitats spanning both sides of the border in Ireland. Post-Brexit will be important for building on the common approaches taken between North and South to halt and reverse the loss of biodiversity. Notes 1 An Bord na Móna is a semi-state company in Ireland, created in 1946 by the Turf Development Act 1946. The company began developing the peatlands of Ireland with the aim to provide economic benefit for Irish Midland communities and achieve security of energy. 2 In 2015 35 per cent of the Irish people interviewed for Eurobarometer had never heard the term ‘biodiversity’ and more than 90 per cent would like better information about its importance. 3 These include mainstreaming biodiversity into decision-making across all sectors; strengthening the knowledge base for the conservation, management and sustainable use of biodiversity and ecosystem services; increasing awareness and appreciation of biodiversity and ecosystem services. 4 By the beginning of the twentieth century most of Ireland’s native deciduous woodlands were already lost and only 1.5 per cent of the country was covered in forestry. Since the 1920s government policies have encouraged the planting of forests and the figure, in 2018, stood at 11 per cent of land area. This has mainly consisted of planting the non-native sitka spruce in favour of the slower-growing deciduous broad leafed trees. The monoculture conifer planting approach is increasingly criticised amid concerns about forestry biodiversity. Coillte now has a policy of planting 10

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per cent broad leaves but this is considered too low by many critics of sitka spruce and other non-native conifers. 5 The right of a cabinet minister to amend an existing statute by regulations for the purpose of implementing directives was challenged unsuccessfully in a case concerning the implementation of two directives prohibiting the use of specified hormones in livestock. The Supreme Court held that if compliance with a directive necessitated adopting a measure, which by implication amends an existing statute, the measure prevails over the statute because it is, in substance, a measure of community law. The state must also have due regard to Article 15.2 of the constitution, which vests the sole and exclusive power of making laws for the state in the Oireachtas. Any choice of principle or policy left to the member state then requires legislation by the Oireachtas. According to Grist (1997: 95) it would seem that the constitutional issue relating to compensation called for this directive to be implemented by primary legislation.

8

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Are great expectations in Brussels dashed in Dublin?

People now appear to think that implementation should be easy; they are, therefore, upset when expected events do not occur or turn out badly. We would consider our effort a success if people began with the understanding that implementation, under the best of circumstances, is exceedingly difficult. They would, therefore, be pleasantly surprised when a few good things really happen. (Pressman and Wildavsky, 1973: xii–xiii, reflecting on the lessons of the Economic Development Administration’s employment programmes for Oakland, California)

Introduction Implementation theory has developed along a lengthy, winding road since Pressman and Wildavsky’s (1973) study on an economic development programme for Oakland, California. Their promotion of the ‘implementation deficit’ acted as a catalyst for theory building and empirical investigation into the penultimate step of the stagist framework. The advancement and nonresolution of implementation theory have contributed to alternative ways of conceptualising the public policy process (Sabatier, 1999). Its development as a field of inquiry, however, largely focused on studies of national systems, whereas the implementation of EU policies gives rise to the challenge of applying decisions taken within the EU institutional framework to the national, regional and local levels of all member states. This study has focused on Ireland’s experience of the implementation of EU environmental directives. It represents the challenges of a small member state with a weak background in environmental policy and a highly centralised system of public administration. Central to the argument is the observation that Ireland’s implementation record in waste, water and biodiversity policies has been influenced by structural shortcomings in public administration. The theoretical framework for exploring the empirical cases was introduced in the first part of this book. It is influenced by traditional implementation theory and the ‘goodness of fit’ argument informed by the Europeanisation school. It thereby links the process of implementation, viewed through the lenses of ‘top–down’ and ‘bottom–up’ models, to institutional factors that adapt to,

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prohibit or facilitate the changes required for effective compliance. Later chapters focused on environmental policy making in Ireland and the cases of waste (Landfill Directive 99/31/EC), water (Water Framework Directive 2000/60/EC) and biodiversity (Habitats Directive EC 92/43). All three cases represent issues that are politicised at national and local level, and are recognised as exemplifying implementation difficulties. They also demonstrate global challenges. For example, the challenges of conserving the world’s species are perhaps even larger than mitigating the negative effects of global climate change (EEA, 2018). This illustrates how significant EU and international cooperation is and how EU environmental policy and its implementation must be transformative. The main conclusion reached here is that Ireland’s performance in transposition, practical application, enforcement/control and outcomes in the three environmental cases does demonstrate that great expectations in Brussels were dashed in Dublin. Efforts to meet these expectations have been influenced by the low issue salience of environmental policy objectives, political contestation and historical shortcomings in the capacity of the administrative system to give effect to EU legislation. Domestic politics and infrastructural solutions deemed unpopular with the public inevitably played an important role in explaining implementation difficulties. The top–down procedural politics between national and local levels of bureaucracy, public and private sectors, stakeholder engagement and the fragmented institutional arrangements developed to deliver environmental services provide more tangible reasons for ongoing implementation challenges. But there is also evidence of much learning within the public administration system and examples of innovation in the public and private sectors which need to be underpinned. In what follows, the nature of EU environmental policy implementation is revisited and explanations provided by the variables – issue salience, goodness of fit, national and local administrative capacity, autonomy of local government, selection of policy instruments and target group behaviour are presented with evidence from the case studies. The discussion then returns to how implementation is theorised, how we think about what influences its success and failure and how it should be studied. It revisits the ‘top–down’ (transposition, control) and ‘bottom–up’ (practical applications, outcomes) approaches to implementation and upholds the importance of utilising both approaches in an attempt to understand the implementation of EU policy in a national system of public administration. The European Union and the ‘holy grail’ of implementation Chapter 3 concluded with a review of how EU environmental policy had developed over 45 years. It catalogued how the EU has produced one of the

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most internationally rigorous sets of regulatory standards aimed at safeguarding the environment. During this time it has attempted to adapt the traditional command and control approaches that were typically employed in regulation towards new governance arrangements. The EU epitomises a system of multilevel governance and the implementation of environmental policy demonstrates this effectively. The EU institutions have been important drivers of policy initiatives and guardians in upholding the legal framework, whereas the member states have the primary responsibility for the effective transposition and compliance of the regulatory framework. From 2000 an awareness of climate change and the urgency in addressing it have shaped environmental politics though the areas of waste, water and biodiversity remain central to the environmental acquis and are, in turn, affected by the overarching nature of climate change. Efforts to reduce greenhouse gas emissions in terms of mitigation measures, and reactive efforts to cope with the irreversible consequences, in terms of adaptation measures, are a horizontal political and policy concern. Climate action now commands the dominant place in the EU’s environmental policy agenda and is the focus of its international environmental leadership. It is also illustrative of a global system of multi-level and multi-sectoral governance whereby governments, business and civil society participate, ideally to collaborate on solutions. More ambitious and stronger policy efforts are necessary if the EU is going to meet its own 2050 roadmap of targets to cut emissions and harness renewable energy efficiencies. Strict targets will be essential in the underperforming sectors of agriculture and transport, as well as energy, which is required to become almost decarbonised by 2050 (Delreux and Happaerts, 2016). The regional and local levels are increasingly recognised as key players in climate actions and are engaging in networks and projects to support the emission reduction, promote renewable energies and adapt local industry. They require support from both the EU and national governments if they are to sustain initiatives and accelerate those changes (Jänicke et al., 2015). This is evident in the application of ‘mainstream’ environmental legislation and is borne out in this study. In each of the environmental sectors of waste, water and habitats, the delivery of local services, connection to the planning process and engagement with stakeholders is pertinent at the local levels. The challenges of climate change are at the core of environmental governance, namely the belief in a dichotomy between the economy and the environment. Sustainable development is the main discourse for managing the relationships between economy, environment and society, yet many policy actions still remain wedded to the traditional model of development. This makes the challenge of implementing EU environmental directives even more complex as economic decision making is unreformed and political engagement with citizens on environmental sustainability remains more cosmetic than real.

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The EU continues to espouse the benefits of implementing environmental policies and strengthening environmental governance. Better implementation of environmental legislation and its integration in sectoral policies benefits citizens in the long run and provides a stable regulatory underpinning for business. But it remains problematic and Ireland’s experience demonstrates that there is no quick fix to effectively absorb technical directives into national law and apply them. Monitoring efforts are uneven across Europe and the information generated by the European Commission can be incomplete and out of date since much of it is available by requests rather than systematic evaluations. To this end, the European Commission invites citizens and civil society actors to report lapses in implementation, which may prompt inspection actions. The environmental sector had the highest number of open cases in 2012 whereby the Commission initiated actions with 24 of the 27 member states. Some of these countries, including Ireland, found themselves exposed to future financial penalties. Notwithstanding individual member state issues, the Commission strives to improve implementation capacities with better regulation agendas and both hard and soft instruments. In December 2016 it adopted a new Communication on enforcement policy called EU law: Better Results Through Better Application in order to be ‘bigger and more ambitious on big things, and smaller and more modest on small things’ (EC, 2017b: 6). It aims to be more strategic on enforcement and in dealing with infringements to address policy priorities. It is evident that these initiatives enhance the public management measurement culture which has had a growing foothold in public administration systems over the past twenty years. But perhaps the most significant tool developed is the modification of Article 260 TFEU, enabling the CJEU to impose financial penalties directly on member states. This adds a steely edge to the Court’s role and since its founding it has issued in excess of 700 judgements on environmental topics. The majority of these cases have been instigated by the European Commission against states with recalcitrant transposition, application and enforcement records. Although the judgements result in considerable burdens to national administrations they have been instrumental in driving the pace of domestic improvements. This is particularly evident in the waste case explored in this study, since the circumstances of Case 494/01 drove the modernisation of the Irish waste sector and the delivery of services and infrastructure. The cases selected to analyse how Ireland implements EU environmental directives were waste, water and biodiversity. The directives highlighted are representative of legislation which has been controversial, technically complex, demands high capacities/resources and are incumbent on securing the cooperation of stakeholders from business, community and agricultural backgrounds. Table 8.1 provides a very general guide on the prescribed aims and challenges of the directives.

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Table 8.1  Aims and challenges of the waste, water and biodiversity directives Sector

Aims of the directive

Challenges

Biodiversity EC 92/43

• Conservation of natural habitats and of wild fauna and flora • ‘Favourable conservation status’ for habitat types and species of Community interest. • Timetable for preparation of lists of sites; Commission selection of sites; designation by member states

• Technically rational ‘science first’ approaches • Barriers to participatory and collaborative principles • Conflict over land rights

Water 2000/60/EC

• Achieving a ‘good status’ for European waters by 2015–17 • Awareness of the entire natural cycle of a river basin • River Basin Districts (RBDs) and six-year management programmes

• Horizontal integration of existing environmental measures, e.g. biodiversity • Effective participatory water governance • Cost • Life-cycle approach to RBM planning

Waste 99/31/EC

• Detailed standards for the operation of landfills and the diversion of biodegradable waste. • Targets for the reduction in the amount of biodegradable municipal waste sent to landfill

• Decoupling waste from economic activity • Changes in consumer behaviour • Infrastructural deficits

As outlined in Chapter 3 the selected directives correspond to key environmental sectors and major environmental infringement categories. These issues are akin to a ‘moving target’ in terms of implementation but also factor into continuous policy development in waste, water and biodiversity. First, in terms of waste, despite the development of a formidable regulatory framework since 1975, EU controls have been unable to stem increased waste generation and implementation needs to be prioritised. It is asserted that if current EU waste management policy was implemented in full then it alone would contribute to 30 per cent of the EU’s emissions reduction target (EC, 2017b). Acting on the recommendation to establish a dedicated European body to oversee the implementation and enforcement of EU waste law (Milieu, Ambien Dura and FFact, 2009) may strengthen top–down control of the process from the EU level but will not address changing citizens’ attitudes towards waste consumption. The European Commission presented new waste rules in 2014 that were withdrawn and replaced by the circular economy agenda of

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the Juncker Commission. What should be further emphasised is waste prevention, and a greater effect given to environmental principles such as precautionary and producer responsibility. Ireland has met all the targets to date for the landfill directive and is on track to meet the final diversion target due in July 2020. The reduced consumption during the recession provided some reprieve in meeting the targets since waste generation per capita decreased between 2007 and 2012. However, with a growing economy and population, increased waste arisings follow and waste management remains a challenging environmental sector for Ireland. Major reforms were undertaken to comply with rulings by the CJEU but some of this progress is hard won. The separate collection of household waste, informed waste prevention and infrastructural deficits are key concerns. The latter is confirmed by the reduced export options for recycling and a dwindling landfill capacity. In 2017 China, the world’s largest recyclable materials importer, decided to place an embargo on the import of plastics and paper from Europe. Given the growth in the Chinese middle class and changing consumer habits, China has its own plastics dilemma and the policy came into effect on 1 January 2018. This is hugely problematic for Ireland since approximately 95 per cent of Irish plastic was exported to China and it is not possible to stockpile it (Finn, 2018). This is also an EU waste emergency and in January 2018 the European Strategy for Plastics in a Circular Economy (EC, 2018) was launched. This must address the sheer volume of plastic production in Europe as well as its lagging recycling and detrimental environmental impact, particularly in relation to marine litter. On 28 May 2018 the European Commission began to action on these intentions with the publication of a proposal for a plastics directive to reduce the impact of single-use plastic products on the (marine) environment. Second, in relation to water the EU strives to modernise water legislation and respond to citizens’ demands for good quality water. The sector underwent restructuring as a result of the WFD and water legislation, and is also subject to the evaluation through the Fitness Check, which assesses whether regulation is ‘fit for purpose’. Most of the water legislation is integrated into the WFD and the river basin approach goes beyond EU territories. It is asserted that, ‘The WFD has been scrutinised by more legal experts than any other legal text, in trying to understand its “real” meaning, with some even judging it as the “worst” piece of EU legislation’ (Voulvoulis, Arpon and Giakoumis, 2017). It remains characterised by a substantial implementation deficit (Krämer, 2016) and Ireland has struggled with its complexity and several of its guiding principles, including the costs of recovery. The good ecological status of Irish waters is under threat from increased development, particularly in the more densely populated eastern parts of the country. A key test will be the ability

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to progress the necessary investments required for water services and this is the remit of Irish Water. The awareness of water stress doesn’t appear to have taken hold in Ireland as generally there is good quality water in sufficient quantities. Water pollution remains a key concern across member states (Eurobarometer, 2017) and citizens have become more involved in water policy advocacy as evidenced by the Right2Water initiative. As the impact of shortages in the Mediterranean region resulting from climate change become more obvious this will heighten an awareness of its value as a critical resource for human health and ecosystems. The European Commission introduced a proposal to revise the drinking water directive in February 2018 and this is viewed as a direct response to the European Citizens’ Initiative. As well as improving the quality of drinking water, the proposals contain commitments to better access for vulnerable groups of citizens and better information. Third, it may not receive the same political attention as climate change but biodiversity is declining rapidly throughout the world. It is both effected by, and an important asset to counter, the negative impacts of climate change. In this area the EU and its member states have been influenced by international initiatives since the 1970s. Nature policy is an area of environmental protection that is not as developed as others since it was difficult to provide a justification for its legal basis in advance of the Single European Act (Delreux and Happaerts, 2016: 173). In addition to the biodiversity strategy for 2020, the main regulatory drivers remain the birds and habitats directives which have spearheaded the Natura 2000 network. Chapter 7 has indicated that the majority of Ireland’s habitats listed under the habitats directive hold inadequate or bad conservation status. Ireland has not completed all designations or effectively set out clear conservation actions for the management of Natura 2000 sites. Adequate resources are not currently in place to fulfil implementation of the biodiversity directives and protect species such as the curlew or hen harrier and their habitats. Land management is a controversial subject in Ireland and attempts to conserve existing raised boglands illuminate this. Turf cutting is the main cause of the reduction in Ireland’s original raised bog area and this practice has been taking place for centuries (Valverde et al., 2013). Most of the cutting was originally done by hand, but it is now almost all by machine, akin to a scaled-down version of commercial methods. Despite a ban on turf cutting in protected sites, illegal cutting continues and, where possible, bog restoration projects have been introduced. To address birds and habitats directives both in Ireland and across the EU requires a genuine integration of biodiversity principles into agriculture, planning and transport policy initiatives. In particular, agriculture needs to play its part in ensuring that CAP reforms are wide-ranging in terms of nature protection, as opposed to isolated examples of good agricultural practice.



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How do we understand the implementation process? Revisiting the theoretical framework A principal component of this research is ‘how’ implementation is studied with reference to Irish environmental policy. Waste, water and biodiversity were investigated using interpretations of both top–down and bottom–up implementation theory. On the one hand, it could be argued that the top–down versus bottom–up debate is a sterile argument which was part of the effort to develop a widely applicable implementation model. On the other hand, the search for a widely accepted core theory dating from the early implementation scholarship may be unresolved, but the modus operandi of the top–down and bottom–up approaches offer value in understanding and explaining implementation. From the mid-1990s implementation theory has also benefited from the theoretical wave of studies from the Europeanisation research agenda. This study illustrates that the implementation of EU directives involves a process by which the norms contained in a directive must be adopted by member states through learning and adaptation. The speed at which they successfully meet the criteria will depend on the depth of the national norms, culture and institutional idiosyncrasies. No specific theoretical approaches for the analysis of European implementation processes are developed (Knill, 2006) but the utility of, for example, institutionalism or network approaches, indicates how EU implementation research is receptive to theory from sub-fields of political science. This study affirms that understanding the translation into action of the three environmental directives requires both understanding and explaining the role of institutions. Taken together, the theoretical perspectives gleaned from traditional implementation theory and EU implementation studies facilitate explanatory depth in a national study. A national study of the impact of the EU policy-making process is, however, also methodologically complex given the multi-level nature of the EU. The ubiquity of policy interactions is the inevitable by-product of complex policy systems, highly differentiated both vertically (territorially) and horizontally (functional differentiation) (Glachant, 2001: 241). In such a system, implementation is not only a top–down process, initiated by a policy decision at the EU level which progresses within a hierarchical model until it reaches its policy targets. Instead, the implementation of a particular European text should be viewed as part of a ‘complex patchwork’ or ‘dynamic interactions’ across a multi-level and multi-centred policy system (Glachant, 2001: 241). A rationale of the bottom–up approach is the acknowledgement of ‘many centres’ (O’Toole, 2004b) within a public administration system. This raises interesting questions about the interactions between different levels of administration and how EU regulatory policies, such as the environment, challenge well-established

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administrative patterns. This was evident in the Irish case given the poor fit with EU environmental policy. In the implementation of EU policies various levels of government also have a legitimate claim to engage in policy formation and decision making. This corresponds with Exworthy and Powell’s (2004) metaphor of implementation streams leading to big windows at national level and little windows at local level. In administrative systems such as the UK’s, where central-local relations are constrained by the formal legal structure, it is rare for local government to be able to influence policy formation (Hill and Hupe, 2009). In this study, the research illustrated that the relevance of ‘competing centres’ was more applicable to the fragmentation of the institutional arrangements for the environmental sectors in Ireland across public and private spheres. Local government was largely excluded from central government’s engagement in EU negotiations and rarely consulted, even though local authorities remain quite central to implementation. Using both top–down and bottom–up theoretical perspectives on implementation and institutional insights enabled a more comprehensive understanding of how implementation is steered from central government and experienced by local government and various stakeholders. The empirical research findings demonstrate that the implementation of EU directives gained momentum when Ireland had to avoid EU fines. This drove the imposition of legislation from central government and also advanced a style of managing implementation at the local level through advancing capacity building or the removal of functions. Ireland’s experience of implementing EU environmental directives also demonstrates that steps in the top–down implementation process can hardly be regarded as neutral. Rather, they have been characterised by political contestation, debate over resources, roles and territory. Bottom–up implementation perspectives acknowledged that a local assessment of the implementation criteria up for consideration is important. The ‘living constitution’ referred to in this research is the operational environment at the local level of government and its engagement with other levels of government, service providers and interaction with, or by, the public. In obtaining an understanding of the ‘living constitution’ the implementation analyst acquires a more thorough knowledge of implementation challenges at the local level and what constitutes the implementation ‘habitat’. The variables identified were selected by examining the academic scholarship in implementation theory within EU implementation studies and using these insights to understand the critical features of implementing EU environmental policy in Ireland (see Chapter 4). The practical, institutional and socio-cultural factors are at least as important from the perspective of environmental policy as the choice of legal instruments. The selection of variables – and justifying



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Table 8.2  Explanations of how implementation is addressed Theoretical perspective: top–down/ bottom–up

Input, process and output variables

Implementation ease

Implementation difficulty

Political salience of issue

Medium

Strong

Top–down Bottom–up

National and sub-national administrative capacity

Strong

Strong

Top–down

Autonomy of sub-national government

Medium

Medium

Bottom–up

Goodness of fit with EU policy requirements

Strong

Medium

Top–down

Selection of policy instruments

Medium

Medium

Top–down

Target group behaviour

Strong

Strong

Top–down Bottom–up

Variable = strong, medium, weak level of explanatory power.

which are the most important and under what circumstances – is an acknowledged difficulty in implementation studies (O’Toole, 2004b). In this study they provided an insight into practical implementation and the determinants of change with political-administrative culture regarded as a mediating influence on institutions. A summary of the findings is presented in Table 8.2. In a study of the data sheets directive it was argued that the impact of issue salience provides an explanation when member states do not enforce or comply with EU legislation (Versluis, 2007: 63). In such instances, directives are simply not considered to be important enough but when a classical top–down approach is taken, opportunities for a non-salient case to be enforced increase (Versluis, 2007: 63). The waste, water and biodiversity cases illustrate how environmental policy acquired a more dominant place on the national policy agenda from the mid-1990s. This is due to the necessity to comply with EU rules and the changes in consumer behavioural patterns. Prior to the 1990s the implementation of EU environmental legislation was ad hoc and rather lax. A ‘bureaucratic drift’ was compounded by the low political salience of environmental policy generally. Little Exchequer commitment was directed to waste and biodiversity in particular and the realisation that significant (strategic infrastructural) investment was necessary in all three environmental sectors occurred slowly. The review of literature and reports on Irish environmental

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policy have illustrated that a permissive attitude to dumping and treatment of waste, water pollution and habitat neglect was prevalent at both community, official and political levels. For example, the principal infrastructure in waste was the county council dump on the fringe of the local Irish town and this was largely the beginning and end of waste treatment. The 1990s onwards witnessed a tranche of strategy development and technical modernisation in environmental services. Political salience has strong explanatory power for demonstrating implementation difficulties. When issues were largely ignored on the policy agenda there was an implementation vacuum. The political imperative to comply with EU rules to avoid fines provided impetus. The findings of this book also demonstrate that while the administration has been slow to change its traditional problemsolving approaches, capacity building relationships between the EPA and local authorities, activities of the OEE, infrastructural investments, site designations for conservation and funding enforcement networks at sub-national level, all stem from attempts to address environmental infringements. These developments align with arguments that low issue salience generally equates with low adaptation pressures (Knill, 1998). When issue salience shifts from low to moderate, due to political recognition of the policy problem or an imperative to adhere to supranational legislation, then moderate institutional adaptation results. Ireland acquired the unwelcome celebrity of being the first member state condemned by the Court of Justice for a systemic lack of implementation of core waste management rules and failures to control illegal landfills. To comply with the judgement, the Irish authorities had to prioritise waste management for a decade owing to the magnitude of the ruling. As outlined in Chapter 5 this encompassed reforms, closing illegal landfills and funding costly clean-up and remediation works. Departmental officials worked closely with the EU Commission in implementing its programme of measures and transforming waste management practices. Another observation about political salience is that when environmental issues become controversial, then EU rules can be viewed quite negatively by stakeholders. The directives are acknowledged but the details often aren’t. During the water charges debacle in 2014 the content of the WFD itself was largely ignored. References to the EU or the Troika may have contributed to the argument but not in winning the battle to convince people to conserve water or pay water charges. It was commented at the time that, ‘The public revolt against water charges is not, for the most part, a rebellion against the eminently sensible idea that a small state should have a single public utility to develop its water system. It’s an expression of anger about bigger things: command-and-control politics; trust-me- I’m-an-expert arrogance; rotten, feckless disregard for the realities of life at the bottom of the heap’ (O’Toole,

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2014). The government’s effort to restrict turf cutting on raised bog SACs/ NHAs was a provocative issue in parts of rural Ireland and the political fall-out elicited sympathy for them from many politicians. The same support doesn’t appear to be apparent for ENGO concerns about the lack of political will to protect threatened species and habitats and the proposals contained in the Heritage Bill. The environmental movement does not even come close to matching the political currency or emotion of the turf cutters’ campaign. In contrast, groups like An Taisce were traditionally viewed as middle-class Protestants imposing foreign values on rural Ireland and lacking in understanding of heritage and tradition. Goodness of fit with EU policy requirements The obligations of EU membership have required Ireland’s adherence to directives on waste management, water and biodiversity since the 1970s. During 2002 the EU Commissioner for the Environment, Margot Wallstrom, visited Ireland and commented: ‘The Commission does not have one model that goes for all member states. You have to find an Irish model’ (Newman, 2002). From the Commissioner’s words it may be interpreted that while member states must comply with the specific content of a directive, a ‘one best way’ is not prescribed in order to achieve its aims. All environmental cases demonstrated a mismatch between the pre-existing institutional frameworks which affected implementation; the process was often overwhelming and subject to uneven impact. The Irish administrative set-up presented a misfit with the horizontal features of EU environmental policy and the capacity to operationalise its detailed regulations. With modernisation reforms together with the establishment of the EPA and the provision of greater expertise, it could be assumed that more effective results should have emerged faster. The Irish system’s engagement with EU environmental policy resonates, however, with a view that the ‘objective efficiency of state machineries’ have not had any ‘real influence’ over implementation, rather ‘history as embodied in national institutions has determined implementation patterns of directives across member states’ (Duina, 1997: 155). Although a lack of technical expertise was palpable, in particular at local authority level, characteristics of the political-administrative system embedded in traditions such as centralisation, weak local government, informality, brokerage, departmental autonomy and a sectoral approach, in conjunction with historically weak environmental regulation, all provided substantive explanations for the implementation challenges. The ‘goodness of fit’ thesis also underpins a sociological institutionalist perspective, whereby a ‘logic of appropriateness’ is affected by the influence of ‘change agents’ or norm entrepreneurs that mobilise to persuade and facilitate

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implementation. Over time, elite mobilisation through official networks at EU level, such as IMPEL, and the role of the EPA in its capacity building role with local authorities, sought to introduce a culture of organisational learning. It would appear that the nature of the technical regulation emanating from Brussels presents a better fit with the cultural norms which have developed within the EPA, rather than within the Department or local authorities. In the case of waste, the strategy pursued by Irish officials during negotiations of the Landfill Directive 1999/31/EEC was characterised by efforts to delay the introduction of targets to divert waste from landfill and create a ‘soft landing’, since landfill was the predominant method of waste disposal. The empirical research highlighted a vacuum in waste management policy rather than a clash between pre-existing domestic regulatory measures constituting a ‘misfit’. The central administration progressed measures in national policy but their absorption within the institutional system was far more problematic. It was anticipated that local authorities could deliver regional economies in spite of political unwillingness at central government level to support this through devolving resources and authority. Instead, local authority adaptation remained ‘path dependent’ and power shifted to the private sector in waste collection. In respect to water, Ireland has traditionally been proactive in terms of addressing water quality issues of small supplies. However, the delivery of water services through (at one point) 34 separate water services was perceived as problematic. The river basin management approach was new and challenging, and a considerable amount of catch-up infrastructure was required in order to meet the provisions for safe water. In terms of birds and habitats, Case 418/04 culminated in the longest judgement ever delivered on an environmental issue (Personal Interview B) and was close to the spirit of the judgement in the Waste Case 494/01 in that it pointed to a series of failings across the administrative system. An added complication with habitats responsibility is that it is dispersed across an even wider range of public bodies and consent functions. The European Communities (Birds and Natural Habitats) Regulations 2011 were introduced to meet CJEU rulings against Ireland which found significant weaknesses in Ireland’s previous transposition regulations. The regulations were required to complement provisions in the Planning and Development Act 2010 which now recognise that the birds and habitats directives must be adhered to in planning consents. Overall, the goodness of fit variable presents strong explanatory power for ease of implementation once there is a relative absence of veto points and veto players in the implementation process. It provides a medium-level explanation of implementation difficulty in the Irish case where moderate adaptation pressure led to several institutional adaptations and the emulation of EU policy content, but did not induce the pre-existing institutional framework to change significantly.

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Selection of policy instruments A range of policy instruments and technical procedures have been introduced to give effect to policy with some successful results, notably market-based instruments in waste such as ‘weight based charging’ which has led to more household recycling and the plastic bag levy. User charges are generally resisted and viewed as double taxation as evidenced with the water charges. It is apparent that without full implementation of the polluter pays principle and/ or a carefully formulated instrument mix taking into account roles and interaction between public and private sectors, the incentives available to alter behavioural patterns will not be sufficient to combat cause with effect. Policy instruments produce moderate change through the adaptation to market-based instruments, motivating engagement with the private sector and multi-agency partnerships. The extent to which the state can use new instruments to ‘steer’ final policy outcomes, however, depends on several factors. They include the historical patterns of regulation and control within the particular policy area, the institutional interests in maintaining traditional forms of control, the need for legal political authority in the area and the strength of societal organisations and networks (Baker and Eckerberg, 2008: 12). The empirical findings here demonstrated the strength of the business lobby or farmers vis-à-vis ENGOs and softer policy instruments are more likely to be successful when supported by the former. The cases demonstrate that the traditional command and control approaches to regulation remain central through the provision of a strong legislative framework. Autonomy of sub-national government Local government autonomy provides medium explanations of implementation ease/difficulty. Weak autonomy constrained implementation and is linked to issues of capacity. Issues arising in the cases raised questions as to whether local authorities are the right authorities to lead on delivering infrastructure in their local area and charting strategic change in environmental governance locally. In waste, the effectiveness of regional coordination was criticised, leading to its revision in 2012. One of the problems is the territorial and competitive nature of relationships between local authorities. The development of waste management and water services in Ireland appears to be leading back to greater centralisation with fewer regional groupings and the establishment of Irish Water. Environmental service delivery responsibilities have been hollowed out of local government and to some degree replaced with information, monitoring and enforcement activities. The provision of adequate funding is testing for local authorities and, as discussed in Chapter 6, Fianna Fáil’s fateful decision to abolish domestic rates in 1978 severed the connection that should exist between citizens and their councils, This removed the principal mechanism by which taxes raised locally were spent

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locally and cemented an in loco parentis relationship between central and local government. National and sub-national administrative capacity The capacity/lack of capacity indicates strong explanatory power for implementation ease/difficulty and is linked with the resources allocated to implementation, either financial or expertise. This was required at both national and sub-national level though it is more problematic for local authorities who are at the coalface of application and enforcement. As noted in Chapter 4, a review of Ireland’s environmental performance cited the lack of enforcement capacity in smaller municipalities as a principal impediment. In each case the difficulties encountered by local authorities in facilitating Ireland’s consistence with the EU regulatory framework was highlighted through both the top–down and bottom–up discussions on implementation. Reliance on the private sector increased due to capacity deficits and the EPA was found to play a significant role in channelling expertise both to the Department and down to local authorities. What the implementation of the three directives illustrated in particular about the adaptation of the public administration system is its increasing fragmentation over time, even if there is evidence of centralisation with the establishment of agencies such as Irish Water. Fragmentation is also a feature of Irish planning and environmental law (Ryall, 2012) despite efforts to revise the planning and development Acts to incorporate the environment. In 2010 the OECD (2010a: 7) reported that Ireland’s environmental legal system ‘lacks coherence’ and its track record for transposing EU legislation into domestic environmental legislation was less than adequate over the four decades of membership. The Irish approach does not generally advance environmental policy further than the mandatory EU requirements, but the lack of consolidation of the environmental legislation can render policy inadequate. Legislation that is complex and difficult to understand becomes a systemic barrier to implementation (EPA Review Group, 2011) and institutional fragmentation makes its enforcement more difficult. In addition, central government devised policy with a clear expectation that the private sector would come on board to fill in the gaps where the public sector was unable to take adequate action. Tension over the direction and ownership of waste suggests that the system to implement EU waste legislation was not rigorously analysed within the Department and consequently precipitated structural problems. This lack of strategic perspective has been long identified as a characteristic of the small Irish administrative system (Chubb, 1992) and the ‘hollowing out’ of the Department. A partial decentralisation of the civil service and the nonreplacement of staff during the economic crisis further diluted its capacity. It is argued that the EPA developed into the institutional actor most equipped

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with the technical resources for a strategic perspective, albeit from the perspective of regulation. The habitats case is instructive in highlighting the importance of stronger administrative capacity building to also harness stakeholder engagement. Land management is a controversial subject in Ireland and while examples such as the Burren are praised, the Natura 2000 designation process is fraught with awareness and communication problems which led to mistrust and misunderstandings. A lack of resources is apparent to address this, and to support conservation and land management plans. The NPWS is somewhat removed from the local authorities and cannot be responsible for delivering the directive by itself – nor does it have responsibility for this. Local authorities do not necessarily have the requisite ecological expertise among their staff but are required to build capacity. Dealing with the turf-cutting controversies has forced officials to come up with solutions for local people and obtain a better understanding of what local people need. Hence, one of the lessons from infringements, and in the three cases explored, is that in order to overcome capacity deficits and fragmentation the various authorities and stakeholders must work together more effectively. Following the judgement in Case C-494/01, central government provided resources for enforcement networks – NIECE. The officers are trained and their activities overseen by the OEE and this is now regarded as a model of good practice by the European Commission. Apropos, the more proactive approach now taken to environmental complaints enable the resolution of some issues at national level without the European Commission’s involvement. The facilitation of public consultation allowed Birdwatch Ireland to provide an input into the process of SPA designation. The environmental charity VOICE managed the Recycling Ambassador Programme initiated in 2018. The programme will host workshops over Ireland to assist people to recycle properly and reduce contamination in bins. Such examples contrast with the public administration’s approach to environmental policy in early decades of EU membership. Target-group behaviour Target-group behaviour referred to the role of implementers in the public and private sectors. The role of civil society, although acknowledged as critical, was not as central as the public administration itself to discussion in this study. However, the role of ENGOs has been emphasised throughout the book and in particular citizen protest on water was discussed in Chapter 6. Not surprisingly, the actions of target groups spanning across institutions and levels of government has strong explanatory power for implementation ease/difficulty. The cases indicated how Ireland’s difficulties in fulfiling the requirements of the directives can lie in the strength of vocal agricultural groups or industry representation, which successfully lobbies to ensure implementation does not

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cut across the interests of their members. In the habitats case it was noted that the antagonism arising from top–down approaches to conservation can be regarded as an imposition and they created resentment towards the NPWS and environmentalists. Such issues, also illustrated by septic tank protests in 2012–13 can quickly become emotive when aligned to the urban–rural divide. The illegal turf cutting on raised bogs and defiant opposition from the TCCA is another example. The TCCA did not appear to acknowledge the damage done to the bogs or appreciate that Ireland is required to designate additional raised bogs as Natura 2000 sites. Environmental networks at the local and regional level, where elements of civil society should play an important role, are traditionally viewed as weak in Ireland. In the push for economic development the so-called social partnership model largely accepted civil society actions that conformed to the dominant economic perspective. To some extent the strength of civic participation in environmental issues lies in the mobilisation of community issues, though their remit may be transient in nature. Officials tend to view such advocacy as linked to NIMBY (not in my back yard) protests or singular issues, rather than functioning as intermediaries or mediating structures. In the implementation of environmental policy in Ireland such networks do not significantly alter the use of hierarchical political authority (Connaughton, 2010). Many campaigns, incineration for example, may be defined locally but are decided nationally (Flynn, 2007; Davies, 2004). A difficulty in securing the public’s acceptance of environmental solutions and infrastructure is ‘disamenity’ and the recognition of ‘community gain’. There is a perception that it is unfair when national infrastructure is sited in a local community without compensation or ‘community gain’. In contrast with the NIMBY perspective, this acknowledges a reality that externalities arise from some public works even if they meet statutory regulatory requirements. The potential for job creation in these developments is usually small and while local authority residents need and will benefit from facilities, all the disadvantages and dangers are generally foisted upon communities surrounding the selected sites. Ireland: Individual success stories or genuine reforms in environmental governance? The overview of Ireland’s experience has indicated a rather convoluted and tortuous approach to implementing EU environmental directives. Public administration weakly and belatedly adapted to the entrenched institutionalisation and regulatory density of EU environmental policy. Domestic politics and infrastructural solutions deemed unpopular with the public and various stakeholders explain some of the implementation difficulties. The procedural

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politics between national and local levels of bureaucracy, public, business and agricultural sectors and the fragmented institutional arrangements explain even more. This chapter also revisited the theoretical framework and asserted the usefulness of embracing explanations using the top–down and bottom–up approaches to implementation. A criticism of these methods is that they each ignore the contribution of the other approach. The challenge for implementation studies is how to blend the insights from these incommensurate paradigms and avoid a synthesis which is too prescriptive. The research did not set out to confirm one or another of the approaches but rather applied features of both in order to acquire a more comprehensive account of how implementation happens and what this illustrates about how the public administration system deals with environmental policy. Implementation is not just an apolitical technical exercise and there is more to ‘what happens after a bill becomes law’ (Bardach, 1977). The discussions in this book did not just aim to describe ‘what happened’ but also to ask ‘how did it happen in this way’. Rather than integrating environmental concerns into mainstream policy making environmental reforms have often been actioned to address infringements and negative court judgements. The experience of implementing the three directives endorses the commentary in Chapter 1 that Ireland tends to react to the ‘stick’ rather than the ‘carrot’ when it comes to compliance with EU environmental policy. The enormity of addressing these implementation issues retrospectively is reflected in an official’s comment: You have to telescope what should have taken ten years into three to four years which is very difficult and a big shock to the system to catch up. The system starts creaking and people have to go from zero to quite a sophisticated evolved process that needs certain capacities, legal and ecological competence … Doing it on the foot of an adverse court judgement is probably the most painful way, in a way you have a gun to your head, the Commission have you over a barrel and there is a very tight time schedule to deliver the requirements of the judgement before they refer you back to the court for fines. (Personal Interview B)

Ireland is at another juncture as government and business interests attempt to consolidate the economic recovery evident from 2014 onwards. An improvement in infrastructure, housing and transport services is critical both for reversing economic decline in rural Ireland and in terms of building sustainable cities. A good environmental reputation is essential for important economic sectors in agri-food and tourism. All of these goals must be managed in tandem with meeting international obligations on greenhouse gas emissions, water quality, air quality and waste management. A central indicator is Ireland’s profile and performance on greenhouse gas emissions which shows how rising emissions and economic growth have not decoupled, and progress in renewable energy developments is slow. EPA data from December 2017 demonstrated that Ireland’s

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emissions rose by over 7 per cent since 2015 (EPA, 2018) indicating that the country is not on a pathway for long-term decarbonisation and will face substantial fines. All evidence points to missing the binding 2020 targets for emissions reduction, placing Ireland as one of the poorest climate mitigation performers in the EU and simultaneously over-dependent on energy imports. In summing up, the implementation of water quality, waste management and nature protection remain key challenges for the Irish politico-administrative system. In each sector the Irish administration has attempted to harmonise the regulatory framework, improve consultation and address enforcement capacity. But despite progression in the implementation of directives and evidence of systemic learning, environmental governance continues to lack coherence and effectively address horizontal actions such as strategic environmental impact assessment in development consents. Of the three cases biodiversity is the most difficult in terms of the range of issues and stakeholder engagement. Ireland struggles with addressing clear conservation objectives, has not yet completed the Natura 2000 designation process and the protection of raised and blanket bogs is under threat. The Environmental Implementation Review (EIR) for Ireland in 2017 highlighted all sectors and also found that Ireland could improve its implementation performance by working on issues where it has a sound knowledge base and existing good practice (EIR, 2017). Somewhat ironically the EIR report commended Ireland for excellence in complying with a rule by the Court of Justice since it has resulted in a major reform of the (waste) sector. Ireland’s efforts in building on learning and good practice in environmental governance are, however, exposed to Brexit and its potential to weaken legislative protection. EU environmental policy has also shaped UK policy and is the principal driver for the environmental protection in place in Northern Ireland. The UK Government’s Brexit White Paper in February 2017 included assurances that the UK would remain proactive as a ‘leading actor’ on climate change and environmental policy on its EU departure. It will continue to have international obligations under the UN Framework Convention on Climate Change (UNFCCC), the Aarhus Convention and biodiversity commitments under the Convention on Biological Diversity, the Bern and Bonn agreements. The UK government published a ‘Twenty Five Year Plan’ for the environment in January 2018. Its executive summary refers to Brexit as a ‘once in a lifetime chance’ to deliver progressive environmental protection but it is light on detail. However, analysis indicates that post-Brexit risks governance gaps, coordination problems between Westminster and devolved nations, and an anomaly between strong EU regulations and weaker international commitments by the UK (Burns, Gravey and Jordan, 2018). On EU exit the UK government may maintain the environmental acquis and a guarantee that environmental standards will not be lowered after Brexit

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formed a House of Lords amendment to the UK Government’s Withdrawal Bill in April 2018. But this does not address equivalency in terms of compliance and enforcement. In addition, references to a hard border are generally discussed in relation to economic objectives rather than the environmental standards impacting on citizens and business. It is unclear if environmental standards will definitively be upheld in the absence of European Commission and CJEU oversight and Northern Ireland does not have an independent EPA. A hard border between Ireland and Northern Ireland could lead to divergent environmental standards presenting the risk of environmental dumping as well as an oversight gap. For water quality and nature, which highlight the trans-boundary character of environmental issues, there is a practical justification in recognising the island of Ireland as a single bio-geographic unit. The cross-border dimension of post-Brexit depicts another layer of environmental governance which raises many questions for implementation.

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Index Note: Page numbers in bold refer to figures and tables. Aarhus Convention 69n.3, 204 Ireland and 74, 78, 80, 94, 105n.1 Access to Information on the Environment Regulations (AIE) 80, 81, 105n.2 agriculture 72, 134, 138, 163 CAP and 67, 83, 192 habitats and 12, 100–1, 161, 171–2 pollution and 12, 59, 61, 83, 134 air quality 12–13, 50, 56, 74 Bache, I. 41 and Flinders, M. 40 Bardach, E. 25 biodiversity 58–9, 64–7, 159–85 climate change and 64, 65, 162, 192 decline/loss 2, 64, 163, 192 institutional framework for 163–6 invasive species 66, 162 legislation/policy 165–6, 165, 183 species in decline 162, 168, 197 trends in Ireland 160–3 see also Birds Directive; Habitats Directive Birds Directive 18, 65, 66, 166, 181, 192 bottom–up implementation 174–81 CJEU C-418/04 15, 101, 167, 168, 182, 184, 198 infringement proceedings 167–8, 172 Irish farmers and 100–1, 160 landowners and 176 top–down implementation 169–74

BirdWatch Ireland 15, 201 Bord na Móna 160–1, 163, 176, 179, 184n.1 Bord Pleanála, An (ABP) 78, 120, 167 Börzel, T. 7, 38, 39 and Risse, T. 36 Brexit 9, 39–40, 67, 68, 184, 204–5 Ireland and 13, 129–30, 155, 162, 184, 204 Brunazzo, M. 39 Bugdahn, S. 33 Bulmer, S. 39 Bunreacht na hÉireann 73, 80, 84, 136 Burren, The, County Clare 162, 164, 201 Cashman, L. 12, 87 Celtic Tiger 10, 11, 75, 107, 135 Checkel, J.T. 34 CITES 65, 166 civil service 73, 74, 75, 79–80, 200 climate action 51, 52, 67, 101, 188 Climate Action and Low Carbon Development Act 11, 82, 94, 181 climate change 13, 52, 54, 61, 188 biodiversity and 64, 65, 162, 192 mitigation 9, 12, 64 Climate Change Advisory Council 82 Coillte 163, 164, 184n.4 Comhar 76, 78, 92 Commission for Energy Regulation 91, 138, 147

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Commission for Regulation of Utilities (CRU) 147 Committee of the Regions (COR) 40, 57 Common Market 50 Conference of Parties (COP) 52, 53 Convery, F. 137 Cork City Council 114 Council of the European Union 4, 12, 15 county councils 127, 128, 131, 132n.4, 145, 154 Court of Justice of the European Union (CJEU) 4, 5, 7, 54, 63, 65–6, 86–7, 173 C-418/04 15, 101, 167, 168, 182, 184, 198 C-494/01 15, 16–17, 77, 106–7, 113, 114–16, 189, 198 financial penalties and 5, 16, 68, 132n.2, 189 infringements, Ireland and 14, 167–8, 196 judgements/rulings, Ireland and 9, 12, 15–17, 66, 115, 130, 173, 191, 196, 198 Cowles, M. et al. 35 Denmark 14, 56, 69n.2 Department of Agriculture, Food and the Marine 117, 170, 172 Department of Arts, Heritage and Gaeltacht 174 Department of Communications, Climate Action and Environment 74, 98 Department of Environment, Community and Local Government 73, 127, 130 ORP 13–14, 74, 87 Putting People First 76, 92 Resource Opportunity, A 111, 112, 122, 123, 131 water services programme 139, 145, 146

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Department of Environment, Heritage and Local Government 92, 126 Department of Environment and Local Government 90, 113, 117, 124, 164–5, 170 Department of Housing, Planning, Community and Local Government 74, 138, 139 Department of Public Expenditure and Reform 80 DG Environment 53, 56, 58, 113, 151, 173 Dijkgraaf, E. and Gradus, R. 124 Drinking Water Directive 62, 133, 141, 192 Dublin City Council 108, 128, 131 Dúchas 164, 169, 171, 183 Easton, D. 4 emissions 11, 12, 59, 75, 80, 81, 83, 203–4 EU and 2, 52, 188, 190 Emissions Trading Scheme 51, 55 End of Life Vehicles Directive 89 ENVIREG 57 Environment Fund 116, 126, 131 Environmental Action Programmes (EAPs) 50, 55, 56, 57, 61, 69n.1 Environmental Compliance and Governance Forum 68 Environmental Impact Assessment 15, 81, 83, 87 Environmental Implementation Review (EIR) 14, 58, 68, 204 Environmental Law Implementation Group (ELIG) 90, 91, 94 environmental non-government organisations (ENGOs) 54, 76–8, 90, 93, 197 enforcement advocacy role of 94, 101–2, 182 environmental performance Ireland and 9–13 OECD’s evaluation of 10–11, 87, 99

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234 Index Environmental Pillar 78, 90, 92, 93, 94 environmental policy 49–69 Europeanisation of 3 implementation and 2–3 infringements, statistics on 14 instruments 23–4, 54–5 international developments 50–3 ‘policy dismantling’ 67 policy making 53–5, 67 transnational impact of 1 see also implementation; Irish environmental policy Environmental Protection Agency (EPA) 76, 78, 90–1, 109, 198 ‘Bogland’ report 174–5, 182 drinking water and 134, 143, 147 EEA and 77, 98 emissions data 203–4 enforcement and 113, 143, 145 Environmental Enforcement Network 122 EU directives and 90, 98–9 European Commission and 77, 90 implementation and 77, 120, 197 Irish Water and 138, 147, 153 licensing system 77, 83, 114 OEE and 77, 90, 113, 115, 118, 120, 122, 123 planning objections, hearings 94 review (2011) 76, 82, 87, 99 river basin management 138, 144, 145 environmentalists 54, 100 Irish 77, 82, 83, 94, 101, 162, 164 Ervia 147, 158n.4 EU Directives 4, 6, 102 Ireland and 13–16, 43, 44 Irish system and 85–6, 85 procedural autonomy 81 EU (Scrutiny) Act 86 EU Shipment of Waste Regulation 129 EU statutory instruments (SIs) 80, 85–6, 87, 130, 165 waste regulations 112, 126 water regulations 138, 143, 145, 154

EU/IMF Memorandum of Understanding 136, 146 Eurobarometer 2, 67, 140, 184n.2 Europe 2020 Strategy 3, 51 European Citizens’ Initiative 61, 64, 136, 192 European Commission (EC) 2, 3, 4–5, 50, 54 Action Plan 68 Closing the Loop (2015) 111 complaints to 101, 114, 182 enforcement and 4–5, 58, 66, 189 environmental issues and 52, 57 environmental policy making and 53, 67 EPA and 77, 90 implementation and 4–5, 9, 57, 58, 61, 102 infringement data 14, 102 infringements 5, 12–13, 14–16, 63, 86, 114–15, 144, 145, 167–8 interventions, Irish reforms and 12–13 Ireland, criticism of 85, 87, 123 legacy cases, Ireland and 89–90 plastics directive proposal 191 recycling and 60 Smart Regulation policy 63 waste rules 190–1 European Communities Acts 84–5, 86, 117, 169 European Communities (Birds and Natural Habitats) Regulations 165, 166, 169, 198 European Conservation Year 163 European Council 29, 50, 54 European Economic Community (EEC) 50–1, 84–5 European Environment Agency (EEA) 3, 6, 51, 60, 64, 77, 98 European Environment Bureau 54

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European Parliament (EP) 4, 57–8, 60, 61, 62 ENVI committee 53 Petitions Committee 54, 101, 183 European Semester 58 European Union (EU) Biodiversity Strategy to 2020 65 Commissioner for the Environment 80, 81, 197 enlargements 7–8, 51, 52 Forum of Judges for the Environment 57 implementation 3–7, 187–92, 190 implementation deficit 7–9 international policy developments 50–3 multi-level governance system 188, 193 plastic production, recycling and 191 policy-making process 193 structural funds, Ireland and 12, 82–3 European Union (Natural Habitats) Regulations 165 Europeanisation 17, 20–1, 30, 32–40, 47, 95–7, 193 bottom–up approaches 32–3, 37–40, 42, 99, 101 definition 31, 33 domestic mobilisation 37–40, 96, 97, 98–9 ‘goodness of fit’ 35–6, 37, 99 institutional approaches 33–5 Irish environmental policy 96–102 Italian cohesion policy 39 ‘logic of appropriateness’ 37 ‘logic of consequentialism’ 36–7 member states’ strategies 38 ‘misfits’ 36, 37 ‘push-and-pull model’ 38 top–down approaches 32, 35–7, 42, 99 Eurostat 150, 158n.2

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Expert Commission on Domestic Public Water Services 139, 150 Exworthy, M. and Powell, M. 194 Fernandez Valverde, F. 175 financial crisis 2, 51, 67, 78, 105 Fisheries Act 96 Fisheries Ireland 164 Floods Directive 62 Flynn, B. 96 forestry 75, 163, 165, 166, 184n.4 Freedom of Information Acts (FoI) 80, 105n.2 Friends of the Irish Environment (FOIE) 101, 183 Galway City 134–5, 143 Garda Siochána (Gardaí) 90, 122, 164, 178 Germany 34, 56, 60, 66, 67, 70n.6, 73, 96, 98 Gormley, John 15, 108, 116, 175 Greece 56, 60, 66, 84, 115, 132n.2 Grist, B. 185n.5 Habitats Directive 18, 159, 166, 187, 190, 192 agriculture and 83, 100–1, 161, 171–2 application, central agency and 170–2 attitudes to 160, 167 bottom–up implementation 174–81 change, assessment of 181–4 compensation schemes 173, 178, 180, 183 conservation status of habitats 161–2, 192 government departments and 170–1 infringement proceedings 167 landowners and 170, 171–3, 176, 177–8, 179, 181, 183–4 politicians and 173–6, 178, 180–1 REPS Scheme 171, 172, 173

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236 Index social value, locality 176–8 TCCA and 178–81 top–down implementation 169–74 see also Natura 2000; peatlands Harmsen, R. 98 Heidbreder, E.G. 32 Heritage Act 164 Heritage Council 162, 164 High Court rulings 80, 81, 122, 130 Hill, M. 26–7 and Hupe, P. 28–9 Hjern, B. et al. 27, 29, 103 and Hull, C. 26, 104 and Porter, D. 26 Hooghe, L. and Marks, G. 41 implementation 2–3, 83–95, 193–202, 195, 203 bottom–up 91–5, 103–4, 124–9, 174–81, 194 bottom–up conditions 45–7, 48 capacity limitations 83–4 causal theory and 44, 48, 103, 116–24, 130, 142–51, 169–74 challenges 16, 55–9, 87, 102 compliance 9, 203 costs 100 deficit 7–9, 24–5, 28–9, 56–7, 186 definition 6 enforcement/control 6, 58, 90 European Union and 3–7, 68 failure, causes of 30 goodness of fit 197–9 guidelines for transposition 88–9 living constitution and 27, 45, 48, 103–4, 124–9, 152, 174–81, 194 non-compliance and 8–9 policy instruments 199 political salience and 195–6, 195 practical implementation 6–7, 43–4 Regulatory Impact Assessment model 88

statutory instruments and 87 target-group behaviour 201–2 top–down 84–91, 116–24, 142–51, 169–74, 194 variables 8–9, 194–5 veto players and 100–1 Implementation and Enforcement of Environmental Law (IMPEL) 3, 57, 99, 122, 198 implementation studies 3, 20, 22, 29–32 bottom–up approaches 30 Europeanisation, influence of 30, 31 genetic causes of implementation problems 30 model of analysis 42–8, 102–4 problems, systemic causes of 30 qualitative research 32 top–down approaches 29, 30 variables 23, 32, 194–5 implementation theories 3, 17, 18–19, 20, 21–4, 186, 193 bottom–up models 18, 20, 21–2, 26–7, 28, 104 ‘fixing the game’ 25–6 governance and 29 ‘living constitution’ 103–4 networks and 28–9 repackaging of implementation 29 street-level bureaucrats 26–7 synthesis-hybrid models of implementation 27–9 thesis of incongruent implementation 25 top–down conditions 44–5, 46, 47, 48 top–down models 18, 20, 21, 23, 24–6, 27, 28, 103, 103 variables 28, 29 incineration 59, 60, 107, 108–9, 116, 120, 127, 202 institutional theory 24, 33–5, 193 historical 33, 34 neo-institutionalism 33, 47

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rational choice/actor-centred 34–5, 36 sociological 34, 197–8 institutions/institutional framework 72–9 biodiversity and 163–6 Comhar 76, 78 ENGOs 76–8 Environmental Research Unit 73 government departments 73, 74, 97 Irish legislature 73 OEE 77, 201 see also Environmental Protection Agency; Irish Water Integrated Pollution Prevention and Control (IPPC) 59, 67, 77 Interdepartmental Coordinating Committee on European Affairs (ICCEUA) 88 International Union for the Conservation of Nature (IUCN) 161, 166 Irish Business Employers’ Confederation (IBEC) 76, 100, 101, 162, 172–3, 176 Irish Environmental Network 78, 93 Irish environmental policy 79–83 access to information and 80, 81 Environmental Policy Integration (EPI) 81, 82 EU membership, effects of 104–5 Europeanisation of 96–102 farming lobby and 83 IDA’s development ethos, influence of 82 policy responsiveness 79 state interaction with interest groups 82 Irish Farmers’ Association (IFA) 76–7, 100, 162, 172, 173, 176 Irish Waste Management Association 108–9

237

Irish Water (Uisce Éireann) 134, 142, 150, 157 EPA and 138, 147, 153 establishment of 77, 146, 148, 153, 156 implementation of the RBMP 145 local authorities and 140, 147–8 regulation of 90–1, 138, 146, 147 SLAs 147, 148, 153, 158n.4 structure of 146–7, 149–50 water charges and 95, 146, 148–9 Irvine, K. and O’Brien, S. 154 Italy 14, 39, 56, 59, 69n.4, 115 Juncker Commission 51–2, 191 Kirby, P. and Murphy, M. 11 Knill, C. 34 and Lenschow, A. 35–6 Kyoto Protocol 52 Lampinen, R. and Uusiklyä, P. 100 Landfill Directive 17–18, 68, 106–32, 187, 190, 198 assessment of change 129–32 biodegradable waste 108, 116, 117, 126, 132n.4 bottom–up implementation 124–9 building local capacity 126–8 challenges in Ireland 107–10 energy recovery 108, 109, 116 EU policy, Ireland’s compliance with 112–16, 191 expertise and support 122–4 fines/prosecutions 109–10 governance 110, 111, 131 hazardous waste 113, 120, 131 illegal dumping 113, 114, 122–3, 127, 130 implementation 106–7, 108, 116–17, 126, 129, 130, 191 infrastructure 108, 126, 127, 128, 131

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238 Index Ireland, problem in 107–12 licensing regulations 117 municipal waste 59, 60, 106, 107, 108, 120 policy in Ireland 111–12 public protests 110, 127 regional planning 118–21, 125, 126–7, 131 regulation agencies 120 Resource Opportunity, A 111, 112, 122, 123, 131 thermal treatment 110, 122, 131 top–down implementation 116–24 waste prevention 59, 60, 109, 112, 127, 191 waste recovery 107, 108, 131 see also incineration; recycling; Waste Framework Directives; Waste Management Act Liefferink, D. and Jordan, A. 43 LIFE programmes 57, 66, 178 Lipsky, M. 26 Local Agenda 21 93, 110 Local Authority Water and Communities Office (LAWCO) 154–5, 157 local government 74–6, 91–4 autonomy of 104, 105, 199–200 City and County Development Boards 76, 92 code of practice and training 127 competition law breach 121–2 enforcement network 122–3, 127, 145 Environment Fund and 116, 126, 131 environmental legislation and 11, 15, 46, 73, 75, 77 environmental responsibilities 75, 113, 124 EPA and 77, 90, 124, 127 EU Directives and 91–2, 111, 200–1 EU environmental policy and 99–100, 194 failures 77, 114

financial constraints 75–6, 124–5, 126, 199–200 group water schemes, monitoring of 134 Irish Water and 147–8 landfills and 114, 118, 196 nature conservation role 164 Planning and Development Acts 75, 165, 166, 198, 200 private sector operators and 121–2, 124, 128–9, 198, 200 public affairs remit 75 public consultation and 127 reform 120, 155 regional waste planning 118–21, 125, 126–7 river basin management plans 152 service provision decrease 101, 122 Strategic Policy Committees 76, 92, 93 structural weakness of 104 waiver debacle 129 waste management and 18, 75, 77, 110, 111, 117, 118, 120 water charges and 137 water services and 139, 140, 143, 144, 152–3, 155, 156 Local Government Acts 74, 76, 92, 96, 137, 138, 165, 166 Marks, G. 40 Mastenbrock, E. 35 Monnet method 53 Motherway, B. 95 multi-level governance (MLG) 1, 17, 21, 24, 40–2, 188, 193 Murray, M. 110 National Assets Management Agency (NAMA) 81 National Biodegradable Waste Strategy 60, 117 National Biodiversity Action Plan 162, 163, 181

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National Biodiversity Data Centre (NBDC) 164 National Biodiversity Forum 164 National Economic and Social Council (NESC) 10, 78 National Heritage Areas (NHAs) 166, 174, 175, 177, 180, 182, 197 National Parks and Wildlife Service (NPWS) 74, 138, 144, 161, 164, 166, 171, 178, 183 National Trans Frontier Shipments Office (NTESO) 120 National Waste Collection Permit Office (NWCPO) 120, 131 National Waste Management Coordination Committee 120 National Waste Prevention Programme (NWPP) 109 Natura 2000 18, 66, 159, 169, 171, 184, 192, 201 peatlands 14, 15, 168, 178, 202, 204 see also Special Areas of Conservation; Special Protected Areas Network for Ireland’s Environmental Compliance and Enforcement (NIECE) 90, 201 network theory 28–9 New Public Management (NPM) 22, 23, 29, 45–6 Nitrates Action Programme 12 Nitrates Directive 61, 83, 101 Northern Ireland 113, 137, 144, 183 Brexit and 13, 205 EU environmental policy and 13, 129, 204 Office of Environmental Enforcement (OEE) 77, 90, 113, 115, 118, 120, 122, 123 Organisation for Economic Co-operation and Development (OECD) 11, 78–9, 87, 99, 161, 200 O’Toole Jr, L. 28

239

Paris Agreement 12, 53, 68 Parsons, W. 21 peatlands carbon storage and 160 cutting of 15, 79, 101, 160, 161, 165, 168, 175–6 derogation on turf cutting 173, 175, 182–3 EPA ‘Bogland’ report 174–5, 182 extraction, mechanised 177, 178–9, 192 National Peatlands Strategy 163, 165, 166 National Raised Bog SAC Management Plan 165, 166, 180 protection of 14, 18, 161, 163, 168 restoration projects 180, 192 TCCA and 162, 174, 176, 178–81 turbary rights 173, 176–7, 179 see also Natura 2000 Peatlands Council 176, 179 Peters, B.G. 23 Planning and Development Acts 75, 109, 165, 166, 198, 200 Pressman, J.L. and Wildavsky, A. 24–5, 26, 29, 41, 130, 186 Pridham, G. 30 private sector operators 46, 130 waste and 18, 107, 108, 110, 112, 118, 121–2, 124, 126, 128 Protection of the Environment Act 120, 125 Protection of the Environment through Criminal Law 54 Public Service Management Act 79 Quirke, John, Quirke Report 179–80 Radaelli, C. 33, 35, 38 recycling 59, 60–1, 107–8, 109, 128, 199 Chinese plastics embargo 191 contamination 110, 201 infrastructural deficits 131, 191

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240 Index Right2Water 136, 157n.1, 192 Rio+20 Earth Summit 52, 92 Risse, T. et al. 36, 37 river basins 134, 154, 155, 156 EPA and 138, 144, 145 European 62–3 management agencies 138, 144, 145 RBDs 63, 144–5, 146, 152 RBMPs 63, 70n.7, 141, 145, 146, 152, 153, 154 Sabatier, P. 44 and Jenkins-Smith, H. 28 and Mazmanian, D. 25 Saurugger, S. 37 Schmidt, V. 39 Scott, S. 137 Single European Act 51, 76, 86, 192 Special Areas of Conservation (SACs) 66, 79, 113, 159, 161, 168, 175–6 designation of 173, 174, 175, 176, 177, 182, 183 overgrazing and 172 ownership of 162, 174, 183 turf cutting and 174, 178, 182, 197 Special Protected Areas (SPAs) 65–6, 159, 161, 167, 168, 201 Spence, D. 143 Strategic Environmental Assessment (SEA) 81, 83 Supreme Court 87, 170, 185n.5 sustainable development 51, 52, 188 Comhar 76, 78, 92 policy documents 11, 75, 78, 82, 92–3 UN conferences and 52 Sustainable Water Network (SWAN) 152–3, 154, 158n.3 Taisce, An 15, 77–8, 162, 176, 197 Taylor, G. 82 Thomann, E. and Zhelyazkova, A. 39–40

tourism 12, 135, 163, 203 Treaty of Amsterdam 51 Treaty on European Union (TEU) 8, 51 Treaty on the Functioning of the European Union (TFEU) 6, 51 Article 258 4, 16, 55 Article 260 16, 56, 68, 115, 189 infringements 16, 55–6, 56 Treaty of Lisbon 4, 5, 51, 52, 88 Treaty of Nice 86 Treaty of Rome 50 Treib, O. 32, 44 et al. 41–2 Troika 146, 149, 150, 156, 176, 196 Turf Cutters and Contractors Association (TCCA) 162, 174, 176, 178–81 Turf Development Acts 178, 184n.1 United Kingdom (UK) 13, 14, 60, 67–8, 88, 98, 184 see also Brexit United Nations (UN) conferences 50, 52, 94 Convention on Biological Diversity 64, 65, 161, 163, 165, 204 Economic Commission for Europe 69n.3 Environment Programme 50 EU and 52, 64–5 Framework Convention on Climate Change 204 Intergovernmental Panel for Biodiversity and Ecosystems Services 65 Strategic Plan for Biodiversity 65 see also Aarhus Convention Urban Waste Water Treatment Directive 14, 61, 134, 141, 142 urbanisation, environment and 11–12 Versluis, E. 32

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Index

Wallstrom, Margot 197 Waste Electrical and Electronic Equipment (WEEE) 97, 98, 107–8, 123 Waste Enforcement Regional Lead Authorities (WERLAs) 120, 127, 132n.4 Waste Framework Directives (75/442/EEC) 16, 17, 59, 77 (2008/98/EC) 60, 77, 109, 112, 113, 116 waste management 11, 59–61, 106–32 life-cycle approach 59–60 OECD report 11, 78–9 pay-by-weight 79, 108, 112 permit system 59 polluter pays principle 18, 51, 60, 70n.6, 111 proximity principle 69n.5 reforms, Ireland and 15, 191 septic tanks 15, 16, 95, 141, 202 types of waste 59 vehicles, end of life 89, 108, 123 see also incineration; Landfill Directive; private sector operators; recycling; Waste Framework Directives Waste Management Act 13, 97, 111, 114, 117, 118, 119, 130, 131 Waste Management (Amendment) Act 125 Waste Management (Licensing) Regulations 117 Waste Strategy Communication 59–60 water 18, 58–9, 61–4, 133–58 EU Citizens’ Initiative 61, 64, 136, 192 human right to 64, 135–6 legislation 62, 96, 191–2 see also Drinking Water Directive; Irish Water; Urban Waste Water Treatment Directive; water charges; Water Framework Directive

241

Water Advisory Board 140 water charges 79, 136–7, 140, 149–51 benefits of 63–4 Europe and 141, 157 metering and 137, 141, 146, 148, 149, 156 non-domestic users 135, 142, 145 opposition to 18, 95, 136, 149, 157, 196, 199 Water Forum (An Fóram Uisce) 151, 154 Water Framework Directive 61, 68, 130, 133–4, 187, 190 bottom–up implementation 151–7 challenges for water policy 134–6 Common Implementation Strategy 62–3, 143, 151 cost of compliance 141, 145 costs, recovery of 136–8, 191 deficits 141 domestic water services 139, 150–1 drinking water 90, 134, 135, 138, 142, 143, 147 group water schemes 137, 141 implementation 18, 133–58, 191–2 implementation difficulties 152–3, 155–6, 191, 196 implementing officials 143–6 infrastructure 14, 121, 135, 137, 151, 155 infringements 141–2, 144–5 ‘Irish exemption’ 142, 151 legislation 138–40, 139, 140, 142–3, 144, 149, 150–1 local capacity 152–3 NTIG and 143, 145 participatory measures for water 153–5 policy guidance 138–40, 139 polluter pays principle 18, 51, 70n.6, 134, 136 pollution 63, 133, 134–5, 138, 153, 155, 192 privatisation, prohibition of 143

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242 Index septic tank regulation 141 stakeholder engagement 153–5, 157 statutory instruments and 138 support of interest groups and sovereigns 146–51 Sustainable Water Network 152–3, 154, 158n.3 top–down implementation: adequate causal theory 142–51 Water Policy Advisory Committee 143–4, 145 water quality in Ireland 134–42, 192 see also Drinking Water Directive; Irish Water; river basins; Urban

Waste Water Treatment Directive; water charges Water Pollution Acts 138 Water Services Acts 139, 140, 143, 147, 149, 150–1 Water Services Investment Programme 139, 145, 146 Waterways Ireland 138, 144, 164 Wildlife Acts 161, 165–6, 165, 177, 181 Wilson, W. 25 Winter, S. 28