Experiences with evaluation of environmental legislation:

lessons for implementation?

Icos conference 2010Marjan PeetersMaastricht University

Experiences with evaluation of environmental legislation: STEM Project 2005-2010

• Assessment of environmental legislation • Conducted for the Dutch ministry of the

environment

• Research partners: University of Amsterdam, Free University of Amsterdam, Maastricht University, and Arcadis (secretariat)

What did we do in the “STEM” project?What did we learn?

Substantive perspective• STEM focused at providing insight into the functioning of

Dutch environmental legislation• 28 reports, 3 yet to be concluded• Many topics have been covered, a broad patchwork of

research results

Methodological perspective• Constraints? • Did we really get a proper understanding into environmental

law? • How to move forward?

The incomprehensability of environmental law

• Agonizing legislation “Harcélement textuelle” “Teisterende wetgeving”, (Guillot, Leroy) “Vechten tegen wetgeving” (Schueler)

• Many different topics to be regulated• Technical / science dimension• Many different regulatory instruments• Highly dynamic• Different levels of regulation

STEM: Implementation of EU directivesRandomly researched:

• Quality of the European directive

• Quality of the national implementation approach (legislation, execution, enforcement)

CLOSER LOOK

1. IPPC (IED)

2. ENVIRONMENTAL LIABILITY DIRECTIVE

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3. ENVIRONMENTAL MANAGEMENT ACT

a. Dynamic referral

b. Overall assessment

(1) IPPC

Two reports:

- Integrated decision-making: overall approach, BREFs (2007)

- Integrated decision-making: Dutch permit practice (2010)

(1) IPPC: findings

- Wrong translation of the IPPC-directive (Dutch version)- Wrong implementation of the IPPC-directive into the Dutch law

(“take account of”)

- (Intended?) further going implementation of the IPPC-directive into Dutch law (BBT)

- Wrong perception of the IPPC-directive into the Dutch legal discourse? Too much emphasis on “integration” ànd on (the value of) BBT?

- Still learning how to interpret and implement: - integrative assessments with regard to energy use and greenhouse gas emissions - additional measures with regard to greenhouse gas emissions in view of art. 193 TFEU?

(1) IPPC Points of interest in view of better implementation:

• Technical quality – proper language (translation) of the directive itself

• Substantive quality of the directive it self: - “is integration really doable?” - “is prescribing “bat” (though BREFs) the right approach”?

• National perception of the intention of the directive

• Exploring the real content: new insights emerge

(1) IPCCMethodological observation

• Time, knowledge constraints for doing an empirical study: how to get proper insight into the need of integration, the usefulness of integration, and the current practice?

• There is not yet any full ex post assessment study on the way how integration functions in the IPPC practice

(2) Environmental liability directive (ELD)

• First STEM project• Short time basis, small budget, limited focus:

• How to implement the ELD, in which act?• Who should be the competent authority?

(2) Environmental liability directivefindings

• No fit between environmental liability structure and Dutch legislative structure

• No time / willingness on the national level for fundamental legislative reform to do a proper implementation

• No time / willingness to consider a fundamental approach towards improvement of environmental liability provisions

• Simple introduction into Dutch law: an extra layer in addition to existing provisions

• Leading to “complification”

(2) Environmental liability directive Points of interest in view of better implementation:

• Environmental directive was meant as an horizontal approach, adding teeth to existing directives like the IPPC directive

• Difficult implementation given existing national (horizontal) enforcement and liability approaches

• If a directive introduces general provisions, it requires a fundamental consideration on the national level :consideration of existing national provisions in order to see how they should be further elaborated in view of the ELD?

• A simple approach through adding an additional chapter / layers complicates the national legal framework: no integration, no coherence, further “complification”, and frustration at the side of competent authorities?

Cross-cutting project:

The Environmental Management Act as framework instrument to implement European environmental law

(3a) Dynamic referral

• Dutch national legislator uses it a lotin the EMA (Environmental Mamagement Act)

• But European legislator uses it as well

• Technique is bad for transparency of law

• And (possibly) frustrates legal certainty

Methodological observation

• Lack of an open debate with the Ministry: sensitive point, no critical debate

• Very short, first overview, not much literature yet

• Moreover, how to solve the problem of “integration” of new directives into your national legislation?

(4b) The EMA as core implementation instrument: framework

Recommendation:

hard to uphold the national approach (integrated structure of environmental legislation)

national legislation should follow the different, more fragmented structure of EU law

scope of EMA should be broadened, EMA should offer more differentiation with regard to plans and

quality standards EMA should follow the terms and definitions of EU law

(4b) The EMA as core implementation instrument

• Conclusion is very pragmatic from a national perspective

• Need for a coherent approach at EU level

Methodological observation

• Study provides “best reasoning”, pragmatic approch

• Fundamental question about division of competence, structure of the whole body of environmental legislation and choice of regulatory instruments not discussed:

- is the EU regulating too less or too much?- quality of EU legislation, structure of EU legislation, choice of instruments

How to assess environmental law?

Piecemeal approaches(a certain case, a certain directive)

Cross-cutting themes (implementation requirements, procedural rights, enforcement competences, legal certainty)

Overall assessment on the quality of environmental law

Assessment of EU environmental law

Lack of overall policy about the development of the structure of EU environmental law

Lack of common opinion in literature about the structure of EU environmental law

The Commission intends to complement evaluation of individual pieces of legislation with more comprehensive policy evaluations:

to identify “overlaps, gaps, inconsistencies and obsolete measures”

Quote from:

Integrated Industrial Policy 2010

1. Piecemeal approaches (important and valuable, most easy to conduct)

2. Cross-cutting approaches

3. Overall assessment towards better regulation? The unmanageability of environmental law is an often raised and pressing problemNeed for better regulation, but how to research that? Is the full body of environmental law anyway comprehensible?

Are we serving the need with our research?