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III. Law and Environmental Governance in the EU

Published online by Cambridge University Press:  17 January 2008

Joe McMahon  and
Joanne Scott
Joanne Scott
Affiliation:
University of Cambridge
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Extract

In December 1999, in Helsinki, the European Council requested the Commission ‘to prepare a proposal for a long-term strategy dovetailing policies for economically, socially and ecologically sustainable development’. The Commission presented this proposal to the Gothenburg European Council in June 2001,1 resulting in the launch of the European Union's strategy for sustainable development.2 In keeping with the resolution that the annual spring European Council take on board responsibility for reviewing progress in developing and implementing the sustainable development strategy, and for offering further policy guidance to promote sustainable development, the Barcelona Presidency conclusions place emphasis upon the internal and external aspects of sustainable development, including the environmental dimension thereof.3 Looking at these documents,4 it is readily apparent that the political profile of sustainable development has been raised over the last year, with the European Council coming to play an important leadership function. Looking more closely at these, and other core documents, it is clear that the theme of environmental governance is very much to the fore, and that a number of strands emerge as crucial to European Union thinking in this respect. This short survey note will highlight a number of these strands, examining them within the framework of more general developments concerning ‘governance’ in the EU, and in particular in the light of the Commission's White Paper on governance issued in the summer of 2001.5 Four broad, and often overlapping, dimensions will be discussed in turn: integration, monitoring/evaluation, participation, and instruments for environmental protection.

Type
Current Developments European Community Law
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 996 - 1005
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 COM(2001) 264 final A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development.

2 Presidency Conclusions, Gothenburg European Council, 15 and 16 June 2001, esp 4–8.

3 Presidency Conclusions, Barcelona European Council, 15 and 16 Mar 2002, esp 27–39. See also the Commission's ‘synthesis report’ submitted to the meeting: COM (2002) 14/final, The Lisbon Strategy— Making Change Happen, esp 12–13 and 15–16. The global dimension currently enjoys a high profile in view of preparations for the World Summit on Sustainable Development, to be held in Johannesburg from 26 Aug to 4 Sept 2002.

4 See, eg, COM (2001) 31/final, On the sixth environment action programme of the European Community: Environment 2010: Our future, our Choice.

5 See, in particular, European Governance: A White Paper. For a discussion of the White Paper from an environmental perspective, see ‘Environmental Governance: What's in it for the Environment?’ at <http://europa.eu.int/comm/environment/governance/index_en.htm>.

6 Above n 3, para 22.

7 Above n 5, at 10.

8 See A Lenschow, ‘New Regulatory Approaches in “Greening” EU Policies’ (2002) ELJ (forthcoming)

9 COM (1998) 333 final.

10 Above n 8.

11 Above n 4, at 14.

12 Above n 2, at 5.

13 Above n 3, at 15.

14 Council Directive 2001/42/EC OJ 2001 L197/30.

15 Above n. 4, at 64.

16 Above n 3, at 34–5.

17 See generally Council and European Parliament Regulation 1049/2001 regarding public access to Council, Commission and European Parliament Documents OJ (2001) L145/43.

18 According to some ‘better’ involvement is long overdue. See, eg, the comments in an open letter from the ‘Green G8’ regarding ‘the lack of consultation between the Commission and civil society regarding the preparations for the sustainable development strategy’. The organisations concerned note that they asked for a firm timetable of consultations leading up to the World Summit on Sustainable Development in Johannesburg in September 2002. Yet at the time of writing (28 Nov 2001) ‘the lack of consultation continues. There has been no formal involvement of civil society so far on the Communication that will be presented by the Commission in January on the global dimension of the EU's sustainable development strategy….’

19 Above n 5, at 17.

20 See <http://www.jeanmonnetprogram.org/papers/01/010601.html> and especially the contributions by Armstrong and Walker.

21 Above n 14, Art 7.

22 See <http://europa.eu.int/coirun/environment/funding/ngo/2001/list01en.htm> for a list of organizations having received Community funding for environmental purposes in 200. Apart from the European Environmental Bureau, WWF European Policy Office in Brussels is by far the biggest beneficiary, receiving funding to the tune of almost half a million Euros.

23 See OJ 2002 C35/7. This is subject to a Decision of the European Parliament and of the Council, approving the action programme in question.

24 See n. 4 above.

25 Commission Proposal of 29 June 2000 for a European Parliament and Council Directive on public access to environmental information OJ 2000 C337/156.

26 Council Directive 90/313 on freedom of access to environmental information OJ 1990 L158/56.

27 For further details, see <http://europa.eu.int/comm/environment/impel/access_to_justice.htm>. See also Commission working document, ‘Access to Justice and Environmental Matters’ available at <http://europa.eu.int/comm/environment/aarhus/working_document.pdf>.

28 See the section on integration above.

29 Case 50/00 P, Unión de Pequeños Agricultores v. Council, paras 59–60, and Case T–177/01 Jégo- Quéré.

30 Above n 3, at 38.

31 Above n 1, at 40.

32 Ibid, 44.

33 COM (2001) 581 final.

34 Above n 26.

35 As things stand the proposal does not foresee the inclusion of credits from national or international project-based mechanisms such as Joint Implementation under Art 6 of the Kyoto Protocol, or the Clean Development Mechanism under Art 12 thereof. The Explanatory Memorandum (p 17) accompanying the Commission's proposal observes that ‘the Commission believes that the eventual inclusion of such credits is desirable, subject to the satisfactory resolution of outstanding issues regarding their environmental integrity. The Commission intends to subsequently make such a proposal in the form of a separate instrument on the implementation of project-based mechanisms in the EU.’ These project based mechanisms are deeply controversial as they allow for extra allowances to accrue on the basis of projects elsewhere which lead to emissions reductions, or to an increase in absorption capacity through greenhouse gas ‘sinks’. The Clean Development Mechanism is particularly controversial in that parties to the Kyoto Protocol may acquire additional allowances in meeting their reduction targets from non-state parties (ie non- OECD ‘developing’ countries). A plethora of issues remain to be resolved concerning these mechanisms at the international level, not least relating to issues of ‘additionality’ (the projects giving rise to the allowances must be additional to those that would otherwise have been undertaken) and ‘supplementarity’ (the idea that allowances accruing on this basis must be ‘supplemental’ to autonomous emissions reduction efforts on the part of the state concerned).

36 See <http://europa.eu.int/comm/environment/climat/record_of%20_stakeholder_consultation_meeting.pdf>.

37 Ibid, 2.

38 See the recent 2002(1) special issue of the European Law Journal devoted to law and new approaches to governance in the EU.

39 For another example of ‘proceduralisation’ in relation to environmental law, see the judgment of the European Court of Human Rights in Hatton v United Kingdom available at <http://www.echr.coe.int/Eng/Judgments.htm>. Critical to a finding of a violation of Art 8 in this case was the Court's conclusion that the UK had not seriously attempted to evaluate the extent or impact of aircraft noise on the applicants’ sleep patterns, or concluded a prior, specific and complete study, with the aim of finding the least onerous solution regarding human rights. See para 106.