Учебный год 22-23 / The Public Law-Private Law Divide

the “new” approach6. Moreover, throughout the bulk of this chapter the terms “public” and “private” are used quite loosely and in particular no distinction is made between those private actors pursuing their own self-interest and those pursuing the “public interest”7. The reason for this lax terminology is that these terms are used with very little precision in the “new” approach to EC environmental law. This is because the “new” approach de-shackles questions of environmental law from the concept of the state, and as such, the public/private distinction is viewed as largely irrelevant. As this chapter will show however, that is far from being the case.

I. – THE ROLE OF PRIVATE AND PUBLIC ACTORS

IN EC ENVIRONMENTAL LAW

Environmental protection has been a matter for Community legislative action since at least the late 1960s8. There are now over two hundred directives and regulations concerned with a range of issues including waste9, air pollution10, water pollution11, nature conservation12, environmental impact assessment13, and a range of other issues14, Legislative provisions regulate product standards15, industrial processes16, administrative decision-making processes17, and ambient environmental quality18. Moreover, many of these legislative provisions date from before the Community was given explicit competence in regards to the environment by the Single European Act (SEA) in 198719. The dominant legislative instrument is the directive and most regulation takes places at the national and sub-national level. With that said, environmental law directives have tended to be highly

6Implicit in the term private actor is that in certain cases private law and private norms will to a limited degree govern behaviour.

7For some thoughtful views on the public/private divide see C Sampford, “Law, Institutions, and the Public/Private Divide”, (1992) 20 Federal Law Review 185 and P. Cane, “Public Law and Private Law: A Study of the Analysis and Use of a Legal Concept”, in J Eekelaar & J Bell (eds), Oxford

Essays in Jurisprudence 3rd Series , Clarendon Press, Oxford, 1987.

8 On the history of EC environmental law and policy see J McCormick, Environmental Policy in the European Union, Palgrave, London, 2001, at Chapter 2; and A Weale et al., Environmental Governance in Europe, Oxford University Press, Oxford, 2000, at Chapters 1 and 2. For a discussion of legal developments see J Jans, European Environmental Law, 2nd revised edition, Europa, 2000, at 3-10.

9E.g. Directive 94/62 on packaging and packaging waste [1994] OJ L365/10.

10E.g. Directive 84/360 on air emissions from industrial installations [1984] OJ L188/20.

11E.g. Directive 91/271 on urban waste water treatment [1991] OJ L135/40

12E.g. Directive 79/409 on the conservation of wild birds [1979] OJ L33/36.

13Directive 85/337 on the environmental impact assessment of certain public and private projects [1985] OJ L175/40

14For a general overview of substantive areas see Jans, supra at Chapter Eight and L. Kramer, EC Environmental Law, 5th ed., Sweet & Maxwell, 2003, at Chapters 4-10.

15E.g. Directive 85/210 on the lead content in petrol [1985] OJ L96/25

16E.g. Directive 78/319 on waste from titanium dioxide production [1978] OJ L54/19.

17E.g. Directive 90/313 on freedom of access to environmental information [1990] OJ L158/56.

18E.g. Directive 76/160 on bathing water quality [1976] OJ L31/1.

19Arts 130s (now Art 175).

prescriptive and set out precise minimum standards20 and thus the discretion given to Member State administrations is often only in deciding what exactly a directive applies to21.

Furthermore, EC environmental law cannot be considered without regard to policy and as Weale et al have noted there has been an explicit attempt to develop a detailed “policy paradigm” in regards to environmental protection22. Article 174 of the Treaty Establishing the European Community (EC) sets out a number of policy principles that guide environmental action23 and since 1973 the Community has published six environmental action programmes that set the agenda for regulatory reform24. These programmes flesh out particular principles, identify areas for regulatory action, and develop an overall framework for the development of EC environmental law. They are also supplemented by a series of communications on particular topics25.

Putting to one side the range of new regulatory strategies that have been implemented in the last decade, a startling feature of EC environmental law is the wide array of public and private actors involved in all its aspects26. This includes developing policy agendas, legislating, standard setting (including risk appraisal), implementation, enforcement, and dispute resolution. The involvement of a variety of actors is due to the multi-level nature of Community governance27 and the socio-political character of environmental problems28. In regards to the former, public actors are involved from the Community, national and subnational levels and come from all divisions of government. Thus for example, at the Community level the Commission, Parliament, the Council and European Court of Justice (ECJ) have all, through their decision-making procedures, had a significant influence29 and similar patterns can be seen at the national level. Likewise, there is a considerable amount of interaction of actors between each

20On implementation generally see C. Demmke & M. Unfried, European Environmental Policy: The Administrative Challenge for the Member States, European Institute of Public Administration, Maastricht, 2001.

21E.g. C-56/90 Commission v. UK [1993] ECR I-4109 (what are “bathing waters”) and R v. SS for

the Environment, ex parte Kingston Upon Hull City Council [1996] Env LR 248 (what is an “estuary”).

22Weale et al, supra at 53. These policy principles were first included in 1987 but were amended by the Maastricht Treaty in 1992.

23These include the polluter pays principle, the principle of prevention, that environmental damage should be rectified at source, and the precautionary principle. For a discussion see Weale, et al.,

supra at Chapter 2.

24 For a discussion of these see Weale et al., supra at 56-62. Due to Treaty reform in Maastricht the Sixth Action programme has the force of a legally binding decision: Art 175(3). Kramer, supra at 7 arguing they will become a source of law in the future.

25E.g. CEC, Communication from the Commission on the Precautionary Principle, COM (2000) 1 final.

26This is not say they do not play a role in other jurisdictions. For the US see the discussion in J. Freeman, ‘The Private Role in Public Governance’ (2000) 75 New York University Law Review 543 talking generally about the role of private actors in administrative law.

27Recognising Community governance as being multilevel distinguishes it from more state centric models. See L. Hooghe & G. Marks, Multi-Level Governance and European Integration Rowman & Littlefield Publishers, Lanham, 2001 at Chapter One.

28For further discussion of this see Section IV.

29For a discussion see Weale et al, supra at Chapter Three.

level due to the need for harmonised law and policy as well as resources such as expertise and information. These forms of multi-level cooperation include

preliminary references30, administrative co-operation31, and high-level policy making32.

Such relationships break down traditional hierarchical public arrangements, particularly in the administrative context where EC environmental law both expands the role for public administration and transforms it. It expands it because environmental issues tend to be matters that require an on-going decision-making process for specific problems in which considerable information needs to be amassed and for which wider deliberation needs to be carried out33. Public administration is the obvious site for such an activity because the legislature is unable to mobilise expertise or engage in detailed deliberation and the courts cannot take the initiative, are too post hoc, and are unable to deal easily with polycentric issues34. Likewise, EC environmental law also transforms public administration because of the need for harmonisation and co-operation between the administrative systems of the twenty five Member States and the Community on complex and evolving issues. Implicit in that process is the “interference with the norm structures” of each administrative system35. Indeed, the development of EC environmental law has often been driven by different Member States putting forward proposals based on their own national regulatory systems and thus their own “norm structures”36.

As such, EC environmental law has resulted in the evolution of administrative institutions at all levels of government through the need to adapt Member State administrations to a “common” environmental law37. It has also given rise to a new range of administrative bodies at the Community level that include the

30E.g. See the Lappel Bank litigation R v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1997] Env LR 431 and C-44/95 R v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805

31E.g. the committees for drafting new directives and comitology committees involved in implementation. See G Schäfer, “Linking Member State and European Administrations – The Role of Committees and Comitology”, in M Andenas & A Türk, Delegated Legislation and the Role of

Committees in the EC, Kluwer Law International, The Hague, 2000.

32 E.g. The role of the European Council (as opposed to the Council) in directing policy: D Chalmers, “Inhabitants in the Field of EC Environmental Law”, (1998) 5 Columbia Journal of European Law 39 at 60.

33 See C Sunstein, The Partial Constitution, Harvard University Press, Cambridge, 1993, at 334-8 and E Fisher, Risk Regulation and Administrative Constitutionalism, Hart Publishing, Oxford, forthcoming. Note that the historical rise of EC environmental law is often equated with the creation of Environmental Ministries and environmental agencies. E.g. Chalmers, supra at 43.

34A Chayes, “The Role of the Judge in Public Law Litigation”, (1976) 89 Harvard Law Review 1281.

35Salzwedel & Reinhardt as quoted in C Demmke, “Towards Effective Environmental Regulation”, supra at 12.

36E.g. Integrated Pollution Prevention and Control is based on the UK’s integrated pollution control

system. See N Haigh, “Integrated Pollution Prevention and Control: UK and EC Approaches and Next Possible Steps”, (1996) 8 Journal of Environmental Law 301.

37 A Jordan, “The Impact on UK Environmental Administration”, in P Lowe & S Ward (eds), British Environmental Policy and Europe, Routledge, London, 1998.

European Environment Agency38, the Network for the Implementation and Enforcement of Environmental Law (IMPEL)39, regulatory committees concerned with drafting legislation, and comitology committees to whom specific implementation tasks are delegated40. While the latter three of these are at the Community level they primarily consist of representatives from national administrations.

Indeed, a considerable bulk of EC environmental law, as with any body of environmental law41, is concerned directly with the role and nature of public administration whether it is through constituting administrative bodies42 or placing limits on their discretion by legislation43, policy44 or court cases45. Much of that law is concerned with negotiating the inherent legitimacy problems of public administration – the “awkward family heirloom” of any governance system46. This problem is made more acute in the EC environmental context because of the need for expert advice47, scientific uncertainty48, and the general “democratic deficit” of Community institutions49. There is thus at the heart of EC environmental law a fundamental public law problem – the legitimacy of public institutions. Moreover, it is a problem that is only just beginning to be formally recognised by Community institutions50.

38Regulation 1210/90 on the establishment of the European Environment Agency and the European environment information and observation network [1990] OJ L120/1. Note the Agency did not begin functioning until 1993

39http://www.europa.eu.int/comm/environment/impel/index.htm. IMPEL is an informal network set

up by the Fifth Action Programme. See Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development [1993] OJ C138/1 at Chapter Nine. See McCormick, supra at 149-150.

40 For a discussion of these different committees see B Flynn, “Postcards From the Edge of Integration?: The Role of Committees in EU Environmental Policy-making”, in T Christiansen & E Kirchner (eds) Committee Governance in the European Union, University of Manchester Press, Manchester, 2000; E Vos, Institutional Frameworks of Community Health and Safety Legislation, Hart Publishing, Oxford, 1999; and C Demmke, ‘Comitology in the Environmental Sector’ In Andenas & Turk supra.

41 E.g. T Jewell, “Public Law and the Environment: Prospects for Decision Making”, in T Jewell & J Steele (eds) Law in Environmental Decision-Making, Clarendon Press, Oxford, 1998 and JB Ruhl, “The CoEvolution of Administrative Law with Everything Else”, (2000) 28 Florida State University Law Review 1.

42E.g. the European Environment Agency and comitology committees. See Schäfer, supra.

43E.g. Directive 90/313 on freedom of access to environmental information [1990] OJ L158/56.

44E.g. CEC, The Precautionary Principle, supra.

45For Community institutions see C-341/95 Bettani v. Safety Hi Tech Srl [1998] ECR I-4435 and T-

105/95 WWF (UK) v. Commission [1997] ECR-II-313. For national institutions see C-44/95 R v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805 and C-203/96 Dusseldorp, [1998] ECR I-4075.

46C Farina, “The Consent of the Governed: Against Simple Rules for a Complex World”,(1997) 72

Chicago Kent Law Review 987 at 987.

47C Joerges, “Law, Science, and the Management of Risks To Health at the National, European and

International Level – Stories on Baby Dummies, Mad Cows, and Hormones in Beef”, (2001) 7

Columbia Journal of European Law 1 at 15.

48B Wynne, “Uncertainty and Environmental Learning”, (1992) 2 Global Environmental Change 111.

49J Weiler, The Constitution of Europe CUP, Cambridge, 1999 at Chapter Eight.

50E.g. CEC, European Governance: A White Paper, COM(2001) 428 final.

Alongside these public bodies are a range of private actors involved in environmental regulation and again these operate at all levels of governance and at all stages of the policy and law making process. These include regulated industries, industry associations, public interest groups, consumers and concerned citizens51. Again, the interaction between public and private actors will take place largely in the administrative context and will depend on existing administrative, regulatory and legal frameworks. The presence of private actors is due to both the intentions of those actors to influence the decision-making process52 and/or because they are, through institutional design, accommodated into it53. However, different public and private actors will often have diverse and contradictory views over the adequacy and legitimacy of the legal framework54. Likewise there are numerous and contradictory reasons for public/private interaction and it may be justified on many grounds including those of pragmatic resource need, crude ideology, or deeper understandings of democratic legitimacy55.

The role of private actors may take a variety of forms and vary in terms of formality, frequency and passivity. In some cases the role of private actors will be legally mandated, ongoing and requiring public bodies to actively seek their input56. In other cases, that role may be far more ad hoc and on the private actor’s own initiative57. It may take the form of “mass” participation58 or it may be highly selective59. The influence of private actors on the decision-making

51 There is a large literature on the role of interest groups. See J Richardson, “Policy-making in the EU: Interests, Ideas and Garbage Cans of Primeval Soup”, in J Richardson (ed), European Union: Power and Policy-Making, 2nd ed., Routledge, London, 2001. Also see R Webster, “What Drives Interest Group Collaboration at the EU Level? Evidence From the European Environmental Interest Groups”, (2000) 4 European Integration Online Paper 17; Kramer, supra at 46-9; and McCormick, supra at 60-1.

52E.g. judicial review, protest and lobbying.

53E.g. The public participation requirements in Art 6 of the Directive 85/337 on the environmental impact assessment of certain public and private projects [1985] OJ L175/40

54E.g. C Hey, Towards Balancing Participation: A Report on Devolution, Technical Committees and

the New Approach in EU Environmental Policies, 2000/4, European Environmental Bureau, Brussels, 2000.

55On different perspectives on this see B Williams & A Matheny, Democracy, Dialogue and Environmental Disputes: The Contested Languages of Social Regulation, Yale University Press, New Haven, 1995.

56E.g. The use of private standard bodies although this is more in the product regulation field. See M

Egan, Constructing the European Market, Oxford University Press, Oxford, 2001, at Chapter Seven. For an example of the role of private actors in policy formulation see the European Consultative Forum on the Environment and Sustainable Development. This was also set up by the Fifth Action Programme. See CEC, Towards Sustainability, supra at Chapter Nine. See Kramer, supra at 41, McCormick, supra at 60.

57 E.g. the bringing of judicial review actions before national courts e.g. R v. SS for Trade and Industry, ex parte Greenpeace [2000] 2 CMLR 94. There is also a very limited ability to bring actions before the ECJ. See Art 230(4) and T585/93 Stichting Greenpeace Council (Greenpeace International) & ors v. European Commission [1998] ECR I-1651. Also see Decision 93/731/EC Code of Conduct on Access to public documents.

58J Rossi, “Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decision-making”, (1997) 92 North Western University Law Review 173.

59E.g. hand picked representatives on advisory committees.

process will also vary. Public consultation may be largely tokenism60 or it may directly influence the final result61. Moreover the way they interact with other public and private actors may vary. In some cases it may be largely a form of

information dispersal62 and in others it may take the form of dialogue or a form of bargaining63.

The diverse range of public and private actors involved in EC environmental law means that any description of the subject that focuses solely upon what is contained in directives and regulations is considerably deficient. Rather its “successes” and “failures” must be understood as part of these broader interactions”64. The role of public and private actors must be taken seriously. This point is of course not limited to either the EC or to environmental decisionmaking and has spurred a great deal of academic writing in the political science65, legal66, and regulation spheres67. Thus, from a descriptive perspective there is no doubt, as Freeman has noted in regards to administrative law more generally, that there is a need for administrative lawyers “to reckon with private power, or risk irrelevance as a discipline”68.

II. – FILLING THE TOOLBOX:

THE “NEW”APPROACH TO EC ENVIRONMENTAL LAW

In the last decade that reckoning has occurred in relation to EC environmental law. The end result has been what has been commonly described as the “new” approach to EC environmental law and policy69. In 1992 the Community

60A criticism levelled at Art 6 of Directive 85/337 on the environmental impact assessment of certain public and private projects [1985] OJ L175/40. But see, Directive 2003/35/EC significantly amending Art 6.

61E.g. Directive 96/61 on integrated pollution prevention and control [1996] OJ L257/26.

62E.g. Directive 90/313 on freedom of access to environmental information [1990] OJ L158/56.

63For a discussion of this see Richardson, supra.

64Which is in a sense the lesson of exploring “legal culture”. See D Nelken, “Disclosing/Invoking

Legal Culture”, (1995) 4 Social and Legal Studies 435; P Legrand, Fragments on Law as Culture, WEJ Tjennk Willink, Deventer, 1999; and E Fisher “Precaution, Precaution, Everywhere: The Precautionary Principle, Comparative Legal Analysis, and a EU Research Agenda”, (2002) 9

Maastricht Journal of European and Comparative Law,7.

65 E.g. the literature on issue networks, policy communities and epistemic communities. See Richardson, supra, K Dowding, “There Must Be End to Confusion: Policy Networks, Intellectual Fatigue, and the Need for Political Science Methods in British Universities”, (2001) 49 Political Studies 89; J Richardson, “Government, Interest Groups and Policy Change”, (2000) Political Studies 1006; and D Marsh (ed.), Comparing Policy Networks, Open University Press, Buckingham, 1998.

66E.g. J Freeman, “The Private Role in Public Governance”, (2000) 75 New York University Law Review 543 and M Aronson, “A Public Lawyer’s Response to Privatisation and Outsourcing”, in M Taggart (ed.), The Province of Administrative Law, Hart Publishing, Oxford, 1997.

67E.g. I Ayres & J Braithwaite, Responsive Regulation – Transcending the Deregulation Debate, New York: Oxford University Press, 1992 and N Gunningham & P Grabosky, Smart Regulation Clarendon Press, Oxford, 1998. Also see the literature on regulatory space: C Scott, “Analysing

Regulatory Space: Fragmented Resources and Institutional Design”, [2001] Public Law 329 and L Hancher & M Moran, “Organising Regulatory Space”, in L Hancher & M Moran (eds), Capitalism, Culture and Economic Regulation, Clarendon Press, Oxford, 1989.

68Freeman, supra at 545.

69Golub, supra.

published the Fifth Action Programme on the Environment – Towards Sustainability70. The main thrust of that programme was that a “broader mix” of regulatory “instruments” should be developed and applied71. The reason for this was it was recognised that there was a need for “shared responsibility”. This concept was described in the following terms:

“The concept of shared responsibility requires a much more broadly based and active involvement of all economic players including public authorities, public and private enterprise in all its forms, and, above all, the general public, both as citizens and consumers.”72

“Shared responsibility” was not the only theme of the new approach. Alongside it there was a greater emphasis on regulatory flexibility73, effectiveness74 and the need to integrate environmental concerns into all forms of decision-making75. Moreover it was stressed that any regulatory strategy would operate at the level of governance most appropriate to it76. The new emphasis was thus on finding the “best” solution to any particular problem and the result was a diversification of regulatory instruments and techniques.

The Fifth Action programme was not the only statement of the new approach but it captured and stated the new philosophy like no other document did in the EC context. It contained numerous recommendations for action based on this “new approach”77. It identified, however, market based mechanisms, financial support mechanisms and ‘horizontal supporting instruments’ as areas for specific development78. While there has much discussion concerning market mechanisms there has been little regulatory development in this area79. However, a range of mechanisms were created to provide funding support for environmental projects80 and a system of environmental monitoring and reporting was set up and overseen by the European Environmental Agency81.

70Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development, [1993] OJ C138/1.

71CEC, Towards Sustainability, supra at Chapter Seven.

72CEC, Towards Sustainability, supra at Chapter Three.

73J Scott, “Flexibility in the Implementation of EC Environmental Law”, (2000) 1 Yearbook of

European Environmental Law 37.

74 The impact of the OECD is particularly interesting in this regard. See M Bothe, “Economic Instruments for Environmental Protection: Introduction to the European Experience”, in K Bosselmann & B Richardson (eds), Environmental Justice and Market Mechanisms, Kluwer Law International, London, 1999, at 251.

75Art 6 of the TEC that was included with the Amsterdam Treaty.

76CEC, Towards Sustainability, supra at Chapter Three

77CEC, Towards Sustainability, supra at Chapter Three

78CEC, Towards Sustainability, supra at Chapter Seven.

79E.g. European Commission, Environmental Taxes and Charges in the Single Market, COM(97) 9 [1997] OJ C224/6 and see the discussion in Kramer, supra at 121-2. One reason for the lack of development in this area is that environmental measures of a fiscal nature require unanimous voting

under Art 175(2).

80E.g. L’instrument financier pour l’environnement, (LIFE) set up in 1992. See McCormick, supra at 59-60 for a discussion.

81See http://www.eea.eu.int/.

Yet regulatory innovation did not stop there. In the last decade, there have been a number of different regulatory schemes created. These include a cooperative system of integrated pollution prevention and control82, a voluntary environmental management and audit scheme (EMAS)83, an eco-labelling scheme84, and a framework for environmental agreements85. There have also been a number of experiments in negotiated policymaking such as the Auto Oil programme86 and these innovative forms of regulation have been encouraged at both the Community and Member State level87. There have been proposals for greater public participation88 and a strict liability regime for environmental damage89. As well there has been a greater emphasis on access to environmental information90. At present there is also a proposal for an integrated product policy designed to create “green” consumer demand and thus market pressure for ecofriendly product innovation91. Moreover, policy documents since then have reinforced the principles of the Fifth Programme, in particular the Commission’s proposals in relation to the Sixth Action Programme92 and the EU’s Sustainable Development Strategy93.

As Demmke and Unfried note the new approach is a “conscious effort by regulators to enlarge their toolbox”94. The expansion of the “toolbox” is viewed as part of the growing sophistication of EC environmental law and the diversification of regulatory strategies as resulting in more innovative,

82Directive 96/61 on integrated pollution prevention and control [1996] OJ L257/26. For a discussion see A Gouldson & J Murphy, Regulatory Realities: The Implementation and Impact of Industrial Environmental Regulation, Earthscan, London, 1998, at Chapter 3.

83Regulation 1836/93 allowing voluntary participation in the industrial sector in a Community ecomanagement and audit system [1993] OJ L168/1. For a discussion see Gouldson & Murphy, supra at Chapter 4.

84Regulation 880/92 on a Community ecolabel scheme [1992] OJ L99/1. For a discussion see C Hilson, Regulating Pollution: A UK and EC Perspective, Hart Publishing, Oxford, 2000, at 108-110.

85Commission of the European Communities, Communication from the Commission to the Council

and European Parliament on Environmental Agreements, COM(96) 561 final. For a discussion of environmental agreements see J Verschuuren, “EC Environmental Law and Self Regulation in the Member States: In Search of a Legislative Framework”, (2000) 1, Yearbook of European Environmental Law, 103 and R Khalastchi & H Ward, “New Instruments for Sustainability: An Assessment of Environmental Agreements Under Community Law”, (1998) 10 Journal of Environmental Law 257.

86A Friedrich et al., “A New Approach to EU Environmental Policy-making? The Auto Oil I Programme” (2000) 7 Journal of European Public Policy 593.

87A Mol et al, The Voluntary Approach to Environmental Policy Oxford University Press, Oxford, 2000.

88These have largely been pursuant to the international Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters 1998.

89CEC, “White Paper” on Environmental Liability, COM(2000) 66 final. For a discussion see M Wilde, “The EC Commission’s White Paper on Environmental Liability: Issues and Implications”, (2001) 13 Journal of Environmental Law 21.

90Directive 90/313 on the freedom of access to environmental information [1990] OJ L158/56. For a discussion see C Kimber, “Understanding Access to Environmental Information: The European Experience”, in Jewell & Steele, supra.

91CEC, Green Paper on Integrated Product Policy, COM(2001) 68 final at 3.

92CEC, Environment 2010, supra.

93CEC, A Sustainable Europe for a Better World: A European Union Strategy for Sustainable

Development, COM (2001) 264 final. 94 Demmke & Unfried, supra at 88.

imaginative and flexible approaches to regulation. Indeed the imagery of instrumentality and choice has come to pervade the new policy and academic literature95. Environmental regulation is concerned with choosing from an “arsenal”96 so as to design of the most optimal regulatory instrument97. Moreover, such regulation is “smart” because it recognises and takes seriously the role of private actors and is not hemmed in by entrenched and “outdated” conceptions of the administrative state98.

The greater attention given to the role of private actors has been accompanied by a certain depiction of the environmental law and policy landscape and this image is important in justifying and legitimising private power, and as such validating the concept of “shared responsibility” as it is set out in official policy. Environmental issues and environmental regulation are understood as matters for neutral and objective inquiry. Environmental protection is a non-controversial goal over which there is universal consensus99. Environmental problems have lost their “ideological character”100 and any conflict is due to actors acting irrationally so that win-win solutions cannot be found101. Likewise, there is no suggestion that there may be conflict over questions of “shared ownership”102 of environmental problems or that the worldviews of different actors may be incommensurable.

Following on from this, the purpose of EC environmental law is primarily a functional one concerned with achieving this non-controversial goal. EC environmental law exists as a mechanism for addressing market failure or, because of the trans-boundary nature of environmental problems, the Community is the most efficient site for governance103. Environmental problems are recognised to be physically complex and scientific uncertainty is acknowledged but neither of these translates into socio-political complexity or conflict. The interrelationship between environmental media is one of the reasons why public and private actors should be involved104 and scientific

uncertainty can be addressed by science and management of the decision-making process105.

95 E.g. CEC, Environment 2010, supra at 61; Golub, supra; and C Knill & A Lenschow (eds),

Implementing EU Environmental Policy: New Directions, Old Problems, Manchester University Press, Manchester, 2000.

96Golub, supra at 4 and Gunningham & Grabosky, supra at 14.

97CEC, A Sustainable Europe, supra.

98Gunningham & Grabosky, supra at Chapter One.

99The Commission cite the fact that 70 % of those surveyed in a Eurobarometer survey saw it as important. See CEC, Global Assessment: Europe’s Environment: What Directions for the Future?,

Office for Official Publications of the European Communities, Luxembourg, 2000, at 9.

100Demmke & Unfried, supra at 91 and E Rehbinder & R Stewart, Environmental Protection Policy, Walter de Gruyter, Berlin, 1985, at 323.

101CEC, A Sustainable Europe, supra at 5.

102CEC, A Sustainable Europe, supra at 8.

103M Faure , “Regulatory Competition vs. Harmonisation in EU Environmental Law”, in D Esty & D

Geradin (eds), Regulatory Competition and Economic Integration: Comparative Perspectives,

Oxford University Press, Oxford, 2001 and Rehbinder & Stewart, supra at 3-5.

104CEC, Implementing Community Environmental Law, supra at para 7.

105CEC, Precautionary Principle, supra.

As the function of environmental law is primarily concerned with achieving that pre-ordained goal then “good” environmental law will be that which achieves it. Criteria such as those of effectiveness and efficiency must be used to objectively assess the merits of any regulatory option106. Such an assessment must be comprehensive and take into account knock-on effects107. The consequence of this is that collection of information concerning the impact of policies becomes an important feature of environmental regulation and the Fifth Action Programme placed a great emphasis on this108. There is thus now a comprehensive system for State of the Environment reporting as well as the use of environmental indicators to measure progress109. As the European Environment Agency (EEA), who was set up to carry out that task note, “indicators are important because we can manage only what we can measure”110. Moreover, such information is an accountability mechanism and an important one where regulatory innovation has led to the decentralisation of decision-making111. Thus for example in their communication on environmental agreements the Commission stressed the importance of objective monitoring and access to information concerning the performance of environmental agreements112.

Issues of democratic governance are viewed as important but because of the neutrality of environmental law few questions of democratic legitimacy need to be raised. Indeed the greater role given to private actors is viewed as offsetting any problems of democratic deficit particularly when the processes are transparent. Democracy, as such, is a hazy backdrop. Voting and public participation are mentioned but rarely elaborated upon beyond discussion of access to environmental information113. Rather, ‘good governance’ is largely an operational goal114 and one directly concerned with policy design to achieve preordained targets rather than more difficult questions of the role of democratic institutions. Thus a reason to inform citizens is that they are a “powerful new force in achieving environmental results”115. As such public participation is

106CEC, Environment 2010, supra at 63-4. It is interesting to note that in this regard OECD discussion on environmental policy has had an impact. See Bothe, supra at 251. Also see Gunningham & Grabosky, supra at 25.

107Thus the Commission note “careful assessment of the full effects of a policy proposal must include estimates of its economic, environmental and social impacts inside and outside the EU”: CEC, A Sustainable Europe, supra at 6.

108CEC, Towards Sustainability, supra at Executive Summary and 7.5. See V Heyvaert, “Access to Information in a De-regulated Environment”, U Collier (ed), Deregulation in the EU: Environmental Perspectives, Routledge, London, 1998.

109European Environment Agency, Environmental Signals, 2001 EEA, Copenhagen, 2001.

110European Environmental Agency, supra at 5.

111D Jiménez-Beltrán, “Making Sustainability Accountable: The Role and Feasibility of Indicators:

From Gothenburg to Barcelona”, Speech by Executive Director, European Environment Agency, 9 July 2001.

112CEC, Environmental Agreements, supra at 12-3.

113CEC, Environment 2010, supra at 21.

114European Consultative Forum on the Environment and Sustainable Development, EU Sustainable Development Strategy: A Test Case for Good Governance, Office for Official Publications of the

European Communities, Luxembourg, 2001, at 8. 115 CEC, Environment 2010, supra at 20.