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Evader’s choice: Why tighter environmental implementation rules drive legislative fatigue and policy dismantling

EU environmental action programmes set the priorities for EU environmental policy. After the 5th programme (1992-2000), which focused on sustainability,[1] the 6th programme (2002-2012) stressed the need for better implementation and the better environmental policy integration in other policy areas.[2] Adopted in November 2013, the new 7th action programme (2013-2020) focuses once again on implementation.[3] This focus is problematic because being tough on implementation will likely drive unwelcome policy dismantling and legislative stalemates.

Conceptualising political challenges to EU environmental policies

We can fruitfully conceptualize political challenges to EU environmental rules in a two-dimensional matrix. The first dimension is their locus, namely whether challenges originate from centralized actors in Brussels or from decentralised actors at national or sub-national levels. The second dimension addresses whether these political challenges focus on existing or future policy. This matrix generates four challenges, three of which matter for EU environmental policy:

  1. Non-implementation takes place after a rule has been decided; as such it targets existing policies. Whereas other policy areas such as competition law use mostly regulations (which have direct effect throughout the EU), EU environmental rules are predominantly directives: this means that EU member states have to adjust their laws or make new ones to comply with EU rules. But of course, how well states do this varies.[4] Non-implementation is thus overwhelmingly a decentralised challenge, located in the different Member States.
  2. Legislative fatigue hampers the production of new rules at EU level, by for example reducing the number of legislative proposals and a longer decision-making process. In 2013, signs of expansion challenges included top Commission officials asking the Environment Commissioner to delay proposals[5] in order to focus on the economy, or the never-ending negotiations on the EU soil directive, which started back in 2006.[6]
  3. Policy dismantling refers to cuts of EU-level policies or their components.[7] It is a centralised challenge, as it typically happens through the EU decision-making process in Brussels. For example, the Commission’s Top 10 consultation[8] uncovered that European Small and Medium Enterprises (SMEs) perceive the EU’s chemicals and waste directives among the most burdensome. In a similar way, the UK government has recently reviewed its ‘balance of competence’ with a view to how much decision-making power has moved to Brussels.[9]
  4. Decentralised challenges to proposed rules include campaigns such as the strong opposition in France to the “Bolkenstein directive” on services at the time of the EU Constitution referendum. But this type of challenge matters less for EU environmental policy.

Why should we look beyond implementation?

Member States which resort to non-implementation breach their obligations under the EU Treaties – but they do not break EU rules when arguing for policy dismantling or deliberately slowing down the legislative process. Hence as implementation pressures increase under the 7th Environmental Action Programme, Member States may simply resort to challenging environmental policy in other ways. We argue that they have plenty of alternative ‘evasion strategies’ to choose from– strategies which may prove even more difficult to address than non-implementation.  While the Commission as the Guardian of the Treaties has legal means to tackle non-implementation, it has no such formal means to prevent dismantling or a legislative stalemate. In these cases it can, at best, try to steer discussions in a certain direction. But as policy dismantling picks up steam even within the Commission given its programme for reduction of administrative burdens[10], this leaves the protection of the European “Green State”[11] to Member States and the Parliament – with a key watchdog role for NGOs, think tanks and academia.


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