(Mis-)Matching declarations
and actions?
Commission proposals in the
light of the Fifth Environmental Action Programme
Berthold Rittberger[1] and Jeremy Richardson[2]
Paper presented to the Seventh Biennial International Conference of the European Community Studies Association (ECSA), May 31-June 2, 2001, Madison, Wisconsin.
Please
note that this is still work in progress
1. Introduction
This paper addresses two main questions. Its primary goal is to analyse the alleged shift in the European Union’s environmental ‘policy style’ – from a traditional regulatory style involving classic instruments of legal regulation, towards a new style based more on new kinds of policy instruments which are less impositional (Richardson 1982), more market-based, and more reliant on co-operative decision-making. A second goal, however, is to present some general observations, by way of conclusion, concerning the factors which might make any shift in the European policy style rather problematic (see, e.g., Collier 1998; Golub 1998; Wissenburg, Orhan and Collier 1999; Jordan, Wurzel and Zito 2000). By focusing on the level of Community policy- making, our paper seeks to present some tentative answers to the specific but as yet untested claim that ‘old style’ regulatory or ‘command and control’ instruments are being gradually replaced by ‘new style’ regulation in proposed EU environmental policy legislation. The paper analyses both the 4th and 5th Environmental Action Programmes (EAP) by employing a simple computer-based content analysis programme (the Harvard developed General Inquirer) in order to decipher whether a change in emphasis towards ‘new style’ regulation has actually taken place on a declaratory level. Concerning the operational level, however, EAPs may not be instructive as to what the Commission actually proposes (see Lenschow 1997 for this distinction). By categorising Commission proposals in the field of water, waste, and atmospheric pollution since the adoption of the 5th Environmental Action Programme (EAP) according to the types of instruments they propose, the paper seeks to illustrate to what degree a change in ‘style’ has actually taken place. Furthermore, the paper addresses the question of why the Commission proposes particular policy instruments. We conclude that there is partial mismatch between declaratory and operational claims and bring forward potential explanations that help us account for this mismatch. It will be shown that both a rational choice institutionalist and a ‘policy style’ explanation provide insights as to why the Commission has not been able to deliver on its ambitious declarations laid down in the 5th EAP.
2. From ‘old style’ to ‘new style’ regulation
Following the EC’s Heads of State and Government meeting in Paris in 1972, the first EAP was issued which made explicit, for the first time, the mission and objectives of the Community’s environmental policy. The Commission was supposed to play a crucial role in proposing the introduction of legislative measures to reduce pollution and nuisances, improve the natural and urban environments, deal with the environmental problems caused by the depletion of natural resources and promote awareness of environmental problems and education (Institute for European Environmental Policy 2000: 2.1-1). In fact, EC environmental policy appears to be a good example of policy entrepreneurship by some kind of pro-environmental advocacy coalition (Sabatier 1998) in that a considerable amount of policy was made without a specific Treaty base, as such. Until the entry into force of the SEA some fifteen years later, which gave EC environmental policy its ‘own’ legal basis in the Treaty, environmental legislation had been agreed under either Article 100 (now Article 94) relating to the approximation laws affecting the functioning of the Common Market or the ‘catch-all’ Article 235 (now Article 308). By 1987 about 200 pieces of legislation had been adopted under these legal measures. A mixture of high political salience for environmental issues in the 1970s, policy entrepreneurship by the Commission (aided and abetted by the European Parliament on occasions) and clever use of what Héritier terms a policy style of ‘subterfuge’ (Héritier, 1999) seem the most likely explanations of this policy dynamic. Since then, subsequent Treaty changes have embedded and further enhanced the EC’s environmental policy competences and the number of pieces of secondary legislation has continued ‘growing’ (Hildebrand 1993; Mazey and Richardson 1998). The SEA and the 4th EAP, however, foresaw that promoting the EC’s environmental policy based on Article 95 (previously Article 100a dealing with the functioning of the internal market) and Articles 174 and 175 (previously Articles 130r and s providing for a ‘Community Policy on the Environment’) could only constitute one pillar of the Community’s strategy to environmental protection. Following the SEA, it was the 4th EAP (adopted in October 1987) that called for the integration of environmental, social, industrial, agricultural, and economic policies. In a sense, DGXI and its supporters recognised the need to escape the ‘sectoral ghetto’ and to expand their policy space into other policy areas. According to the 5th EAP, entitled ‘Towards Sustainability’, sustainable policies should provide for “continued economic and social development without detriment to the environment and the natural resources on the quality of which continued human activity and further development depend.” (OJ No C138, 1993: 12) Escaping the environmental ghetto was facilitated by the introduction of the new policy frame (Schön and Rein 1994) of sustainability. The concept of sustainable development also seemed consistent with the demands of a newly emergent and competing policy frame (Mazey and Richardson 1998) which emphasised the need to reduce burdens on industry and to generally lighten the regulatory load as a means of increasing the Union’s international competitiveness. Thus, there was a new climate of opinion (backed by a rival advocacy coalition of industrial interests) which expressed unease with the dominant ‘command and control’ approach, to environmental policy making. Thus, the ‘sustainability approach’ was intended to reflect a ‘new’ approach in EC environmental policy by addressing environmental policy concerns in certain target sectors (e.g., agriculture, energy, industry, tourism, transport), promoting the participation of a broad range of social actors (e.g., central and regional governments, industry and the public) in the formulation and implementation of environmental policies and by striving for a ‘better’ application of the ‘polluter pays principle’ through the internalisation of external costs (Collier 1997: 5). In order to translate these programmatic proposals into operational proposals, a move away from the dominant ‘command and control’ approach towards ‘shared responsibility’ was advocated (Maier 2000: 5). In fact, what had begun to develop in the environmental sector was not unique to that sector or to the EU level. This general shift was a policy fashion which cut across sectors and levels of government. Thus, the idea of ‘shared responsibility’ did not only go hand in hand with the involvement of relevant actors at different levels of responsibility, but also with a general call for more ‘self regulation’ and the extension of the range of environmental policy instruments including ‘soft’ instruments such as voluntary agreements or incentive-based instruments so as to improve compliance with adopted legislation. According to Ute Collier, ‘new’ policy instruments were considered very “attractive as they involve no (or very small) administrative costs for public bodies and should be ‘self-enforcing’.” (Collier 1998: 13) Hence, the departure from the ‘top down’ approach of ‘command and control’ to more ‘bottom up’ approach that involves more actors and new instruments in order to achieve a higher degree of compliance and effectiveness was considered to have marked a watershed in Community environmental policy (Collier 1998: 13). We will reflect, in our conclusion, on whether this shift (claimed or actual) was really based on efficiency arguments or whether it merely reflected a changed political environment in which rival actors had become more effective in presenting counter-arguments – in other words, it is at least possible that DG Environment was forced to make a virtue out of necessity. Whatever was desired or intended, the political reality was that a certain kind of (new) rhetoric and discourse was absolutely necessary if environmental policy was to move forward.
2.1 The alleged failure of ‘old style’ regulation
The main characteristic of the traditional ‘command and control’ approach is its emphasis on direct regulation: the relevant public authorities “prescribe[…] uniform environmental standards across large regions, mandate[…] the abatement methods required to meet such standards, licences production sites which adopt the required methods, and assures compliance through monitoring and sanctions.” (Golub 1998: 2) This approach has also been presented as the most efficient way to regulate (see Majone 1996). It was virtually costless to the Commission and had the virtue of being based on a lot of experience at the national level in many if not most of the member states and can be considered a good example of policy transfer from member states to the European level. However, as we have suggested, since the early 1990s the ‘command and control’ approach has been increasingly subject to criticism. The more general dissatisfaction with regulatory politics and government intervention has contributed, according to Ute Collier, to a climate hostile to the traditional ‘command and control approach’. Most importantly, the effectiveness of state intervention and economic efficiency of ‘old style’ regulation was strongly questioned by proponents of ‘deregulatory’ policies. In the light of the prevalent deregulation and market-doctrine in many EU countries, ‘command and control’ policies were viewed with increased scepticism (Collier 1997, 1998) reflecting the almost hegemonic power of the ‘competitiveness’ frame (Mazey and Richardson 1998). According to proponents of economic efficiency in the environmental field, ‘command and control’ policies “tend towards economic inefficiency by imposing uniform reduction targets and technologies which ignore the variable pollution abatement costs facing individual firms. In practice, marginal costs of pollution reduction vary widely among industries … From an efficiency perspective, the result is that some firms regulate too much, others not enough” (Golub 1998: 3) and thereby, some firms have an unfair competitive advantage which would distort the common market. Furthermore, it is argued that imposed emission standards contribute to inefficiency because the suppress incentives to trim down emissions beyond mandated levels and develop innovative pollution control technology. Golub argues that “the prescription, licence and monitor approach generates a static situation where, having installed a designated technology or achieved a certain level of emissions, polluters would only incur unilateral costs and competitive disadvantages from further reductions.” (Golub 1998: 4). Furthermore, the implementation and enforcement problems, which continue to be a major problem in Community environmental policy, are difficult to solve given the costs of monitoring and enforcing targets set by regulatory measures (Collier 1997, 1998). In consequence, deregulatory and self-regulatory policies were considered increasingly attractive as a means of tackling the alleged inefficiency, ineffectiveness and costliness of monitoring and enforcement inherent in the ‘old’ ‘command and control’ approach. Although this paper will not go into detail as to why and how ‘new policy frames’ emerged and managed to influence the policy process (see, for example, Jordan, Wurzel, Zito 2000), it will be argued that the ‘deregulation drive’ (Collier) or ‘competitiveness frame’ (Mazey and Richardson 1998), backed by influential actors such as some EU member states and transnational business lobbies, gained prominence with the Single Market programme (Collier 1997: 11). Furthermore, the Commission-sponsored ‘Molitor Report’ based on an assessment of the impact of Community and national legislation on employment and competitiveness, advocated inter alia a new approach to environmental policy-making, i.e. preventing market-failure by introducing market-based instruments and offering positive incentives to polluters so as to effectively and efficiently limit environmental damage and reduce the implementation gap. In practice, all policy actors had to accommodate their actions (including discourse) to the new frame. As King notes, polities sometimes exhibit a ‘mood change’ which can sweep all stakeholders along in a new direction (King 1973). This mood change (or new frame or policy fashion) is a very important context against which we need to analyse subsequent events and might, indeed, in part explain our key finding – that there turned out to be a mis-match between declarations and actions.
2.2 The rise of ‘new’ policy instruments
The failures associated with the ‘command and control’ approach have led to a search for new policy instruments at both national and EU levels promising greater flexibility, efficiency and effectiveness. There appeared to be much cross-learning via supranational sites, such as the OECD, in a similar fashion to the processes by which new public management (NPM) appears to have spread ‘virus’-like across national boundaries (Richardson 2000). Since the 1990s, states have employed a wide range of ‘new’ instruments which the OECD classifies economic and suasive instruments. Economic instruments include different types of environmental taxes and charges (e.g., user charges for emissions, taxes on products that impact the environment), the use of marketable (and hence tradeable) pollution permit schemes, subsidies (e.g., fiscal deductions to encourage certain types environmentally-friendly investment) and tax incentive mechanisms (e.g., regarding the purchase of specific goods) as well as deposit and refund schemes. One of the major arguments brought forward to support economic instruments is that they ‘get the prices right’ and therefore, address directly the behaviour of the individual consumer or corporate producer by affecting the costs and benefits of alternative actions in such ways as to promote the use of processes and products which are less damaging to the environment and also to promote the reduced use of existing products and processes considered damaging for the environment (The EU Committee 2000: 25). Suasive instruments are intended to promote the incorporation of environmental awareness and responsibility into individual decision-making. These instruments include, for example, voluntary information instruments such as eco-labelling and eco-audits, and self-commitments or voluntary agreements between various interest groups concerning a particular product group. Apart from enhancing economic efficiency by ‘getting the prices’ right and hence providing incentive structures to individual consumers and corporate producers to alter their behaviour, proponents of new instruments also emphasise that economic and suasive instruments require less expenditure on implementation and monitoring thereby reducing expenditure by public authorities (Golub 1998: 6). The new instruments, therefore, appear to have some especially attractive features for both regulator and regulated alike and offer gains all round – a rather unlikely policy mix.
The deployment of these new environmental instruments varies widely across states. This is, however, not the focus of this paper. Recent research focuses, for example, on the reasons why new instruments spread to different degrees in various EU member states (see Golub 1998). Also, an ESRC-funded research project seeks an answer to the question of the factors that determine the “overall pattern of instrument within and across different states” (Jordan, Wurzel and Zito 2000: 2). Suffice it to say that various factors are at work in pushing the issue of new environmental policy instruments on to the agenda of policy-makers: industry groups have pushed for enhanced use of economic instruments against ‘competitiveness-inhibiting’ ‘command and control’ regulation; environmental and academic organisations have also called for instrument innovation and supported the ascendance of new economic paradigms; political parties have emphasised the efficiency gains of ‘new style’ regulation and the reduced financial burden for implementation (Golub 1998: 6-7). Thus, as we suggest, the ‘mood change’ has been rather ubiquitous.
At the European level, the Commission is one of the key actors in environmental policy and, having the right to initiate Community legislation, has considerable influence on the development of EC environmental policy through its comprehensive gate-keeping and somewhat more variable and limited and agenda-setting competences (see, for example, Tsebelis and Garrett 2000, Tsebelis and Garrett 2001). It is also a classic ‘Downsian’ bureaucracy in that it seeks ways to expand and defend its policy space (Downs 1967). It has generally been adept in legislating in hard times. In its 5th EAP ‘Towards Sustainability’, the Commission set out the basic principles upon which environmental policy was to be founded, i.e. the precautionary approach, the concept of ‘shared responsibility’ and the ‘polluter pays principle’. To achieve higher levels of environmental protection and awareness it advocated a broad mix of environmental policy instruments among which economic instruments (‘market-based instruments’) were supposed to play a prominent role. This was a rather clever policy mix, in fact. It defended a fundamental principle – a core value of the environmental coalition – namely, the ‘polluter pays’ principle, it extended environmental influence beyond the traditional environmental sector, via the sustainability frame, and it conceded something to the new fashion, as demanded by the shift in the political climate. Specifically, it retained traditional regulatory instruments, albeit alongside others. Some of the old bathwater was, apparently, being discarded, but the baby was not being thrown out too.
“In order to bring about substantial changes in current trends and practices and to involve all sectors of society, in a spirit of shared responsibility, a broader mix of ‘instruments’ needs to be developed and applied. Environmental policy will rest on four main sets of instruments: regulatory instruments, market-based instruments (including economic and fiscal instruments and voluntary agreements), horizontal supporting instruments (research, information, education etc.) and financial support mechanisms.” (OJ No C138, 1993: 68)
Hence, the 5th EAP does not engage in the ‘either-or’ debate on policy instruments. For example, “business is offered voluntary agreements as alternative to detailed control, while regulations are retained to set basic minimum standards and to deter free riding.” (Neale 1997: 11) Thus, we should not be too seduced by the alleged newness and innovatory policy style. ‘Old style’ regulators will be familiar with the strategy of offering voluntaristic approaches whilst hinting that state regulation can be introduced if voluntary systems fail to deliver the expected improvements. The following section will scrutinise the degree to which the Commission’s 5th EAP marks a new approach to environmental policy compared with the 4th EAP by investigating variation in the programmes’ emphasis on basic environmental policy making principles (e.g., ‘top down’ versus ‘bottom up’ approach, ‘old’ versus ‘new’ instruments).
3. The declaratory level: What does the Commission announce?
EAPs have two main functions. On the on hand they suggest proposals for secondary legislation that the Commission intends to put forward within the period of the EAP. On the other hand, EPAs also provide an opportunity to lay down broad ideas on environmental policy and suggest new direction for the future. EAPs are hence ‘framework’ programmes, yet they are not legally binding (Institute for European Environmental Policy 2000: 2.1-4).[3] The content of 5th EAP covering the period from 1993 to 2000 was said to have been strongly influenced by the adoption of sustainable development as a “guiding principle” (Collier 1997: 1) but also, as hinted at above, by the increasingly popular notion of deregulation and the notion of subsidiarity which was introduced in the Maastricht Treaty through the pressure of some member states, especially Denmark and Britain as well as the German and Spanish regional governments. According to Ute Collier, the 5th EAP aims at linking both subsidiarity concerns (e.g., by increasing participation of relevant actors) as well as the deregulatory measures (e.g., advocating economic instruments) with the overarching sustainability conception. Competing policy frames were embedded in the EAP, despite the potentially irreconcilable nature of them. In the 4th EAP the major emphasis, however, still lay on the adoption of “strict standards for environmental protection” which have become “essential” to solve problems of environmental deterioration (OJ No C328, 1987: 6). However, the 4th EAP also foresaw the integration of environmental concerns in the solutions affecting economic and social issues. To improve implementation and efficiency of environmental policies the 4th EAP also considered and advocated the enhanced use of economic instruments much softer policy instruments such as information and education campaigns (OJ No C328, 1987: 15). Although the Commission touched on most of the issues that have been so central for the elaboration of the 5th EAP, it was still sticking strongly to ‘command and control’. Much of what was to become the ‘new’ approach was still beyond reach: “The Commission will … take the necessary steps to set in hand a general review of the value and efficacy of the approaches to standard-setting adopted to date, coupled with consideration of possible of future developments (including the role of economic instruments.” (OJ No C328, 1987: 21) In a process of policy succession, in the 5th EAP, the Commission sought to ‘operationalise’ some of the elements already mentioned in the 4th EAP. Following the 1992 Rio summit and the notion of sustainable development the Commission aimed to integrate economic, environmental and social policy objectives, promote the participation of relevant actors (including non-governmental organisations, businesses, citizens, regional and local authorities) and to better internalise external costs so as to reduce market-failure (OJ No C138, 1993: 13; Collier 1997: 5; Institute for European Environmental Policy 2000: 2.1-4).
In order to compare the Commission’s approach to environmental policy in the 4th and 5th EAP, three core issues addressed in the two EAPs have been identified in our analysis: The first issue category addresses the concern for integrating environmental concerns with other social and economic policies of the Community so as to seek a ‘coordinated’ and ‘encompassing’ approach to environmental policy. In essence, the objective was to ‘mainstream’ the environment. The second category encompasses issues of participation in the environmental policy process: Who participates, when and how? Where should decisions be taken? Finally, the third category refers to the policy instruments that shall be deployed to solve environmental problems. For each category, key words are assigned whose occurrence in each EAP is then counted (words as units of analysis). The key words are taken from the General Inquirer, a computer-assisted content analysis of textual data. In essence, the General Inquirer is a mapping tool: Each text file analysed with this programme is mapped with counts on 182 content-analysis categories and each category is comprised of a list of words and word senses. In order achieve an accurate mapping of categories, the General Inquirer goes through considerable processing to identify commonly used word senses called disambiguation.
Table 1 shows the results for words and word senses that have been attributed to each of the three categories, integration of environmental policy concerns, participation of relevant actors, use of policy instruments. Although for the first of the three categories only three words were considered to be instructive, it seems that in terms of emphasis of the two EAPs, the integration of environmental policy concerns in different policy sectors has featured strongly in both programmes. The 5th EAP devotes an entire chapter to this issue (OJ No C138, 1993: 28-41) and the 4th EAP at least one subsection (OJ No C328, 1987: 9-13). With regard to the second category, participation of relevant actors in the policy process, words characterising different forms of actors or actor properties (e.g., business, citizen, consumer, public, society, etc.) as well as different forms of actor relationships (e.g., network) and the nature/type of their interaction (e.g., dialogue, responsibility) as well as their spatial location (e.g., local, region. The numbers indicate quite clearly that the 5th EAP puts stronger emphasis on the inclusion and involvement of a broad range of actors in the environmental policy-making process than was the case in the 4th EAP. Both, the notion of subsidiarity as well as the notion of sustainability has left their marks on the 5th EAP (again reflecting a process of policy succession) – devolving certain competences in the policy-making process to ‘lower level’ units (subsidiarity) and involving actors affected by these policy decisions so as to increase acceptance and understanding of as well as compliance with proposed and enacted policies (sustainability). As to the third category, the deployment of policy instruments, it is interesting to note that words indicating a ‘top down’, authoritative approach to policy-making (e.g., control, limit, legislation, regulation, standard) common to what has been called a ‘command and control’ approach feature more strongly in the 4th EAP whereas words indicating the use of ‘new’ instruments (e.g., ‘tax’ and ‘fiscal’ denoting fiscal mechanisms such as taxes or ‘liability’ denoting actor responsibility for environmental damages) feature more strongly in the 5th EAP. However, one must not overlook that words indicative for a ‘command and control’ approach to policy-making are still prominent in the 5th EAP, hence underlining the claim that a ‘mixed’ approach to address environmental policy problems is encouraged. As we suggested earlier, the Commission was not prepared to throw out the baby with the bathwater. (Cynics might even suggest that much of the reference to new instruments was merely ‘cheap talk’, designed to give the appearance of compliance with the new policy frames being advocated.) Furthermore, issues of compliance and implementation continue to pose a serious challenge to the effectiveness of the Community’s environmental policy and hence call for the development and application of instruments enhancing enforcement.[4] From the Commission’s perspective, the ‘inexorable march of problems’ (Kingdon 1984) regarding actual implementation could be relied upon to generate countervailing demands for tougher regulation. Table 2 underlines the point made about the advocacy of certain policy instruments. Those General Inquirer categories relating to the exercise of authoritative power feature more strongly in the 4th EAP thereby mirroring the greater importance of ‘command and control’ in the 4th EAP relative to the 5th EAP in which words related to the economy and exchange relationships have a stronger position relative to the 4th EAP. Interestingly, and congruent with the notion of subsidiarity and sustainability, the category of so called ‘power ordinary participants’, takes on a more prominent position in the 5th than in the 4th EAP hence indicating the greater emphasis on ‘bottom up’ approach to policy-making, including a wide range of private as well as public actors on different levels government.
|
Table
1:
Absolute and relative occurrence of key words in the 4th and 5th
EAP |
|||
|
EAP core issues |
Words
from the ‘General Inquirer Dictionary’ |
4th EAP |
5th EAP |
|
%, [N] (total: 27308
words) |
%, [N] (total: 47497
words) |
||
|
Integration
of environmental policy objectives in other sectoral policies |
Coordination |
.0005 [14] |
.0003 [14] |
|
Integrate |
.0004 [10] |
.0011 [50] |
|
|
Integration |
.0007 [20] |
.0005 [23] |
|
|
Participation
of relevant actors in environmental policy |
Business |
0 [0] |
.0002 [11] |
|
Citizen |
.0001 [3] |
.0004 [21] |
|
|
Consumer |
.0003
[9] |
.0007
[35] |
|
|
Dialogue |
0 [1] |
.0003
[15] |
|
|
Education |
.0004
[10] |
.0008
[40] |
|
|
Forum |
0 [1] |
.0001 [6] |
|
|
Involve |
.0007 [18] |
.0006 [29] |
|
|
Involvement |
.0001 [2] |
.0003 [16] |
|
|
Local |
.0004 [9] |
.0009 [43] |
|
|
Market |
.009 [22] |
.0013 [60] |
|
|
Network |
.0001 [4] |
.0005 [25] |
|
|
Partner |
0 [1] |
.0003 [15] |
|
|
Partnership |
0 [0] |
.0002 [10] |
|
|
Public |
.001 [31] |
.0024 [113] |
|
|
Region |
.0005 [13] |
.0015 [69] |
|
|
Regional |
.0009 [25] |
.0019 [89] |
|
|
Responsibility |
.0001 [3] |
.0013 [63] |
|
|
Society |
.0001 [4] |
.0005 [22] |
|
|
Deployment
of different policy instruments |
Compliance |
.0002 [5] |
.0002 [9] |
|
Control |
.0022 [61] |
.0011 [53] |
|
|
Data |
.0003 [7] |
.0007 [31] |
|
|
Economic |
.0031 [86] |
.0036 [171] |
|
|
Efficiency |
0 [0] |
.0007 [35] |
|
|
Evaluation |
.0002 [7] |
.0003 [13] |
|
|
Financial |
.0003 [8] |
.0011 [50] |
|
|
Fiscal |
0 [1] |
.0006 [29] |
|
|
Harmonize |
.0003 [8] |
0 [0] |
|
|
Implementation |
.0022 [59] |
.0018 [87] |
|
|
Information |
.0014 [38] |
.0019 [91] |
|
|
Legislation |
.0014 [37] |
.001 [46] |
|
|
Liability |
.0001 [2] |
.0003 [16] |
|
|
Limit
(noun) |
.001 [28] |
.0004 [18] |
|
|
Limit
(verb) |
.0007 [18] |
.0001 [7] |
|
|
Regulation |
.0012 [34] |
.0004 [21] |
|
|
Research |
.0013 [35] |
.0006 [28] |
|
|
Standard |
.003 [82] |
.0013 [63] |
|
|
Tax |
.0001 [2] |
.0002 [9] |
|
|
Voluntary |
0 [1] |
.0001 [6] |
|
|
Note:
Numbers in [ ] reflect the counts in each text item (EAP); percentages refer
to the occurrence of each word and word sense in relation to each text item.
Words in italic indicate a higher relative occurrence of these words
in the 4th compared to the 5th EAP. |
|||
|
Table 2: Absolute and relative occurrence of certain General Inquirer Categories in the 4th and 5th EAP |
|||
|
GI Categories |
Category
description |
4th
EAP |
5th
EAP |
|
%, [N] (total: 27308 words) |
%, [N] (total: 47497 words) |
||
|
Strong |
1902 words implying strength |
17.03 [4650] |
15.7 [7448] |
|
Power |
A subset of ‘strong’ (689 words) indicating a concern with power, control or authority |
4.77 [1303] |
3.97 [1885] |
|
Econ@ |
510 words of an economic, commercial, industrial, or business orientation, including roles, collectivities, acts, abstract ideas, and symbols |
2.97 [811] |
4.16 [1978] |
|
PowCoop |
Power cooperation, 118 words for ways of cooperating |
.81 [221] |
.82 [390] |
|
PowAuPt |
Power authoritative participants, 134 words for individual and collective actors in power process |
1.46 [400] |
.74 [350] |
|
PowPt |
Power ordinary participants, 81 words for non-authoritative actors in the power process |
.10 [28] |
.28 [132] |
|
PowAuth |
Authoritative power, 79 words concerned with tools or forms of invoking formal power |
.63 [173] |
.50 [241] |
|
Note:
Numbers in [ ] reflect the counts in each text item (EAP); percentages refer
to the occurrence of each word and word sense in relation to each text item.
Categories and numbers in italic indicate a higher relative
occurrence of these words in the 4th compared to the 5th
EAP. |
|||
Having established a measure
of the Commission’s programmatic orientation in its 4th and 5th
EAPs, how does the Commission actually translate declarations into
substantive policy proposals? Before attempting to answer this question,
some methodological caveats are at order:
First, for the purpose of this paper, we have used the CELEX-database to obtain digital versions of Commission proposals. However, CELEX only provides digital versions of ‘COM-Docs’ falling in the period of the 5th EAP (1994 onwards). In this paper we hence cannot compare Commission proposals falling in the period of the 4th EAP with proposals under 5th EAP to see whether, on the operational level, there has been a change in policy style (i.e. instrument emphasis). Therefore, we are restricted to arguing that – based on a change in ‘rhetoric’ – we would equally expect that – on the operational level – a strong emphasis would be on deployment of ‘new style’ instruments. However, to enable diachronic comparison, we will analyse ‘COM-Docs’ falling into the period of the 4th EAP in the course of the research project to better quantify the relative change of instrument emphasis.
Second, the environmental policy areas covered in this paper only represent exploratory case studies. In the course of this research project, all areas of environmental policy-making will be covered in order to produce unbiased results. The choice of certain environmental policy areas over others invokes a problem of bias because certain areas may be more prone to the adoption of ‘old style’ regulatory measures. For example, environmental policy areas or issues that are perceived to invoke high risk (e.g., severe health or environmental damage) such as the transport of nuclear waste, pollution of drinking water, etc., are – by the very nature of the policy problem – much more likely to be governed by ‘command and control’ instruments. Extending this research to all areas of environmental policy will thus provide information on issues such as the relation between risk perception and degree of regulation/self-regulation in different areas of environmental policy and will hence allow for both, synchronic and diachronic comparison.
Commission proposals in the
three designated areas of environmental policy will be analysed with a view to
answer the question whether and to what degree the Commission has translated
its 5th EAP declarations into ‘action’. Water, waste and atmospheric
pollution have been among the first aspects to be covered by Community
legislation when the 1st EAP was adopted in 1973. In these three
areas, a wide range of proposals on the application and introduction of new
policy instruments have been made in different domestic arenas[5],
and hence, it is conceivable that proposals in these areas on the
Community-level will equally display the ‘new fashion’ in environmental
politics. With respect to water and air pollution, the 5th EAP
mentions that economic instruments such as charges and levies set at the
Community level “may be necessary to ensure that charging systems are designed
in a transparent and comparable way, and to ensure that distortions to
competition within the Community are avoided …” (OJ No C138, 1993: 71)
Furthermore, fiscal incentives are considered a useful instrument to influence
“patterns of consumption and behaviour” with regard to a potential Community
energy/carbon tax or taxes on harmful substances in fuels (OJ No C138, 1993:
71). Other suggestions in the 5th EAP include the adoption of environmental
liability schemes which shall provide an economic incentive for management of
risk as well as management and prevention of pollution and waste. Hence, the 5th
EAP mentions the possibility of employing ‘new’ instruments in the three areas
under scrutiny.
4. The operational level: What does the Commission propose?
It has been argued above
that in the early 1990s, the notions of sustainable development and
subsidiarity have forcefully entered the debate about environmental
policy-making in Europe (Collier 1997, 1998; Flynn 1999; Maier 2000; Wilkinson
1997). Furthermore, with the growing dissatisfaction with ‘top down’ regulation
and the concomitant pressure for deregulation and a market-based approach to
environmental policy (Collier 1998; Golub 1998), it has been shown that the
Commission reflected these ‘policy frames’ in its 4th but, in
particular, in its 5th EAP. Hence, the following expectation can be
derived with regard to the proposals the Commission will initiate in the period
following the 5th EAP: In the period following the publication of
the ‘Fifth EAP’, we expect that the Commission’s legislative proposals will
reflect more strongly the principles of subsidiarity, sustainability and
deregulation. In order to make this expectation subject to exploratory
testing, these principles have to translated into operational principles so
that more precise expectations ensue: In the period following the publication
of the ‘Fifth EAP’, we expect that ‘old style’ (regulatory) environmental
policy instruments will feature less in Commission legislative proposals
whereas we expect that ‘new style’ environmental policy instruments will
feature more strongly.[6]
In order to categorise
Commission proposals, environmental policy instruments have been classified to
reflect the application of the subsidiarity, sustainability and deregulation
principles. For example, the Commission’s advocacy of suasive policy
instruments would be in line with the notion of sustainability. Suasive
instruments, for instance, stress the importance of ‘shared responsibility’
between public authorities and industry. Furthermore, regarding the
implementation of environmental legislation, the use of consultative mechanisms
including all concerned parties can also be squared with the sustainability
doctrine. The application of the subsidiarity principle is reflected,
e.g., in the employment of environmental planning measures aiming at
integrating social, economic and environmental concerns and providing for
solutions at the ‘most appropriate’ decision-making level. Furthermore,
subsidiarity is also mirrored in the increasing use of framework directives,
derogations and exemptions regarding the implementation of environmental policy
objectives. The use of economic policy instruments, such as the application of
user or product charges or the setting of financial incentives will be
considered a proxy for the presence of the deregulation doctrine.
Table 3 displays a categorisation of
policy instruments corresponding to two general ‘policy styles’ which denote
particular rationales for policy-making and –implementation (see Richardson
1982). The first is the ‘command and control’ or ‘impositional’ approach which
seeks solutions to environmental problems by setting and imposing standards
which authorities in the member states have to implement (‘top down’ regulatory
style). The second is the ‘market-based’ approach that advocates the deployment
of economic instruments to solve environmental problems by making use of the
‘market-mechanism’ to directly affect actors’ choices (be they consumers or
producers). Therefore, implementation issues are thought to be less problematic
because actor behaviour is directly influenced by economic incentives. The
‘market-based’ approach is hence more ‘bottom up’ than ‘top down’ as it
directly addresses producer and consumer behaviour and thus places a premium on
enhanced education and information about environmental issues and effects.
|
Table 3:
Categorisation of EU environmental policy instruments |
|||
|
Policy Style |
Instrument
category |
Key Objectives |
Examples for
Actions |
|
‘Command and Control’ (direct regulation) |
Performance-and technology
based standards |
‘Bans, restrictions and
prescriptions’; establishment of fundamental levels of environmental
protection; common standards and/or controls which may deemed necessary or
expedient to preserve internal market integrity; ensure community commitments
to wider international agreements[7] |
E.g., specification of
process and/or equipment, specification of allowable discharge quantities,
performance standards, direct liability, specification of administrative
procedures (these include registration procedures for certain substances and
products, as well as product standards; take-back/recycling obligations;
production standards and emission ceilings [ELV – Emission Limit Values];
operational requirements for hazardous waste incineration facilities through
application of BATs [Best Available Technology]) |
|
Compulsory information
instruments (e.g., ‘right to know’ legislation) |
Informing the public about
environmentally relevant facts regarding the consumption of goods or the
state of the environment with respect to certain environmentally relevant
criteria (pollution levels) |
E.g., classification,
packaging and labelling of dangerous substances (e.g. chemical or ‘dangerous
preparations’[8]),
directions for proper use and disposal, information on pollution or emission
levels of, e.g., car engines. |
|
|
Other |
Financial support
mechanisms |
Financial assistance
programmes covering a range of environmental actions |
E.g., LIFE, SAVE, ALTENER,
PHARE, TACIS[9] |
|
Planning instruments |
Integrated socio-economic
development plans to improve sound use of resources at the ‘most appropriate’
level (subsidiarity)[10] |
E.g., regional development
plans, coastal management plans, environmental impact assessment at planning
and project level |
|
Table 3 (continued)
|
‘New’ and ‘market-based’ instruments |
Economic instruments[11]
(‘getting the prices right’) |
Taxes and charges (‘price
to be paid for pollution’) |
E.g., user charges (emission
and effluent charges for water and air or aircraft noise; charges for use of
natural areas and amenities); product charges (taxes on products that could
have a harmful effect, e.g. use of petroleum or carbon content in petroleum);
other charges, e.g. administrative charges |
|
Property rights and market
creation |
E.g., tradeable permits
(trading scheme of pollution rights); environmental liability schemes (making
polluters legally liable for damages caused)[12] |
||
|
Subsidies and tax
incentives |
E.g. direct and indirect
subvention systems, such as fiscal deductions to encourage investments in
environmental equipment and clean production processes (e.g., subsidies for
the generation of energy from renewable sources); tax incentives regarding,
e.g., the purchase of environmentally friendly products |
||
|
Deposit and refund systems |
E.g., surcharge on
environmentally damaging goods which is refunded when the product or its
residual is returned to a collection system (these schemes either enhance
reuse or providing incentives for recycling) |
||
|
Suasive instruments[13] |
Audits, public information
and education |
E.g., self-reporting and
public information initiatives: voluntary agreements (‘shared responsibility’
between industry and public authorities), eco-management and audit schemes
(EMAS), eco-labelling to improve consumer information[14],
training programmes for environmentally related professions etc. |
5. Preliminary
Results: Which instruments for air, waste and water policy?
5.1 Water
policy
Water pollution policy was the earliest area of environmental policy to be developed at the European level. The priorities set out in the 1st EAP of 1973 sought to establish environmental quality standards for particular uses of water. By the 1980s, quality standards had been put in place for drinking water, bathing water, waters for shellfish and freshwater fish. The Commission’s approach to limiting pollution by the most dangerous substances consisted in proposing strict emission limit values (‘command and control’) whereby some other member states, most notably the United Kingdom, advocated an approach based on the attainment of quality objectives which would permit the application of varying emission standards. Community water policy legislation has mostly followed a combined approach, by setting certain emission limit values based on what can be technically achieved and, where data on environmental quality standards are available, emission limit values set at levels to ensure that environmental quality standards (which may vary across regions) are not violated. From the late 1980s onwards, a ‘second wave’ of water legislation reviewing existing legislation was under way. However, in 1995, the call for a fundamental review of water policy legislation resulted in the Commission drawing up a proposal for a water framework directive which sought to integrate and rationalize surface and groundwater using common principles, terminology and basic measures and incorporating the ‘combined approach’ as widely as possible (The EU Committee 2000: 49). Concerning the application of policy instruments, the issue in water policy has always been, according to the Commission: “do we have to establish quality standards for water or do we have to impose emission standards for water pollutants?” (European Commission 1996: xxvii)
The data
assembled cover thirteen Commission proposals in the field of water legislation
between 1994 and 2000 and include proposals ranging from setting quality
measures for bathing water to pollution from ships. Table 4 shows that
with regard to the policy instruments proposed by the Commission, most of the
proposals strongly reflect the dominance of ‘command and control’ instruments,
i.e. the laying down of emission limit values and environmental quality
standards. In nine out of thirteen proposals, ‘command and control’ instruments
(‘old’ style regulation) are advocated to deal with the problem at stake: For
example, in the proposals for bathing and drinking water directives (COM/94/036
and COM94/612 respectively), emission limit values as well as environmental
quality standards are advocated by the Commission. Proposals for the
incorporation of international agreements into Community policy also include
exclusively ‘command and control’ measures. Interestingly, the proposals for
directives on groundwater (COM/96/315) and marine pollution (COM/98/769) are
left very vague with regard to the policy instruments that should be employed.
Similarly, the proposal for a water framework directive (COM/97/049), despite
displaying many elements of ‘old’ style regulation, is also left relatively
vague leaving space for both the application of ‘old’ style regulation
(emission limits and quality standards) and economic instruments (the proposal,
for example, suggests the selective introduction of taxes and charges for some
aspects of the directive). In sum, since the introduction of the 5th
EAP, the Commission has continued to advocate a ‘combined approach’ to water
policy, proposing emission limits as well as environmental quality standards.
‘New’ instruments have only been proposed very selectively and only in the case
of the proposal for the water framework directive have economic instruments
been mentioned explicitly. We reflect on possible explanations of this in our
conclusion.
[INSERT TABLE 4 ABOUT HERE]
5.2 Waste policy
Since the adoption of the 1st EAP objectives for Community-wide measures on waste management have been set up and resulted in a set of pieces of legislation covering toxic and dangerous waste and other specific types of waste (e.g., oil), the transfer of dangerous waste, waste management strategies, the incineration of waste etc. The 5th EAP buttressed the Community’s strategy for waste management by placing emphasis on waste prevention and solving waste problems at source. It therefore calls for the promotion of recycling and re-use of waste, the development of networks of disposal facilities to reduce the volume of waste requiring final treatment etc. One key element identified in the 5th EAP and a subsequent Commission Communication (COM/96/399) is the notion of ‘producer responsibility’ which stipulates that product manufacturers play a crucial role in the waste management potential of a product at the ‘end of its life’ (recent examples include the Commission proposal for a directive on end of life vehicles and a directive on waste from electrical and electronic equipment).
The data assembled cover ten Commission proposals in the field of waste legislation between 1995 and 2000 and include, for example, proposals on the shipment of waste, end of life vehicles, incineration of waste and waste from electric and electronic equipment. Table 5 shows that with regard to the policy instruments proposed by the Commission, ‘command and control’ instruments feature prominently in the Commission proposals on waste policy and management. However, in order to implement the principle of producer responsibility, the Commission has actively attempted to supplement classical ‘command and control’ measures (such as take back obligations of certain types of waste) with ‘new’ policy instruments such as measures for the improvement of consumer information (labelling) in order to improve the collection, treatment on recovery of waste. The proposal for a directive on end of life vehicles (COM/97/358) and the proposal for a directive on waste from electrical and electronic equipments (COM/00/347(01)) propagate, in line with the idea of ‘producer responsibility’, the take back idea. (In practice one can see these new obligations as part of a move to new instruments are part of old style regulation!). Furthermore, the proposals for directives on ship-generated waste as well as on electrical and electronic equipment advise the member states to consider the inclusion of financial measures such as taxes and charges. However, the proposal does not itself propose uniform Community tax measures (as this would require unanimity in the Council).
[INSERT TABLE 5 ABOUT HERE]
5.3
Atmospheric Pollution
Analogous to water and waste policy, Community legislation on air quality has a history reaching back to the early 1970s. Over the last thirty years, legislative initiatives have included proposals for setting of air quality objectives, concentration on emission sources, fuel qualities etc. In the early 1980s, the Commission was very active in proposing air quality limits for certain pollutants such as sulphur dioxide, nitrogen dioxide, ‘black smoke’ and lead. However, in addition to setting air quality objectives, action has been taken at the Community level to reduce the emission of pollutants by e.g. setting fuel quality standards, emission standards for vehicles and combustion plants as well as for the prevention of ozone depletion.
The data assembled cover thirty-seven Commission proposals in the field of air quality legislation between 1994 and 2000. The data include financial support mechanisms such as ALTENER aimed at the promotion of renewable energy resources and the reduction of CO2 emissions and SAVE II, a Community-wide programme (which is also open to the associated countries of Central and Eastern Europe) aimed at improving energy-efficiency and thereby playing and important part in the Community’s strategy to achieve the targets set in the Kyoto protocol.
Table 6 shows that with regard to the policy instruments proposed by the Commission, ‘command and control’ instruments feature in roughly half of the pieces of proposed legislation. Most of the proposals advocating the use of ‘old’ style regulation, e.g. the setting of air quality standards and emission limits, apply to legislation on special pollutants or sources of emission. Almost a third of the proposed legislation employs financial support mechanisms such as SAVE II and the ALTENER programme. However, only two pieces of proposed legislation combine ‘old’ with ‘new’ style regulation, the proposed directive on vehicle emissions (so called Auto-Oil I Programme) (COM/96/248(2)) and the proposal for a directive on the approximation of member state laws relating to emission pollutants from diesel engines in vehicles (COM/97/627). For example, in its proposals for the Auto-Oil I Programme and the directive on emission of pollutants from diesel engines, the Commission calls upon the member states to institute tax incentives, e.g. for the sale of vehicles on the market, when these vehicles comply with certain criteria (e.g. emission limit values). Hence, deducting financial support measures from the number of proposals put forward by the Commission in the period 1994-2000, in nineteen out twenty-three proposals did the Commission advocate the setting of emission limits, quality standards etc. Only in the two above mentioned proposals were economic instruments considered a supplement to ‘command and control’ instruments.
[INSERT TABLE 6 ABOUT HERE]
As the above data suggest, only limited innovation has taken place: the promotion of ‘new’ policy instruments and the application of the principle of ‘shared responsibility’ (e.g., ‘producer responsibility’ in waste management) has been applied rarely and mostly alongside ‘command and control’ instruments. At a preliminary level, the above analysis suggests that ‘declaratory’ and ‘operational’ level seem to diverge and that the ‘cheap talk’ label has something to commend it. ‘Command and control’ instruments still seem to be the predominant means to address environmental problems on the Community level, at least in the sectors covered by our analyses. How can the continuing dominance of the ‘command and control’ approach in these three crucial areas of Community environmental policy be accounted for?
6. Tentative explanations for the use of environmental instruments by the Commission
In this section, two sets of tentative explanations will be given with regard to the policies the Commission actually proposes and why it is that the Commission’s declarations may not always square with what it actually proposes. The first is a rational choice institutionalist explanation based on the assumption that the Commission is acting strategically and hence takes into account the rules governing the decision-making game as well as the preferences of the other policy relevant participants. Thus, the existence of a powerful new policy frame – in this case the ‘competitiveness’ frame prescribing deregulation and a much lighter approach to new regulations – will be taken into account by any rational actor. A rational choice institutionalist hence figures that Commission proposals therefore rarely reflect its ‘ideal policy’ but rather a policy that is ‘best’ for the Commission given the ‘rules of the game’ (legislative procedures) and the preferences (often expressed in policy frames) of other actors, i.e. the ‘median member’ of the European Parliament and, most often, a qualified majority among member states. The second set of explanations will focus on broader political dynamics, such as the nature of the policy problem at stake, ‘bureaucratic politics’ and other constraints.
6.1 Strategic
foresight: rules as constraints
A rational choice institutionalist answer to the question of why the Commission has been unable to better promote the ‘new approach’ to environmental policy (based on the application of new policy instruments and the notion of shared responsibility) will be presented in the following paragraphs. This, of course, goes along with the assumption that the Commission was, indeed, serious in its desire to shift to a new policy style. However, as we suggested earlier, this might not be a fair assumption. An alternative explanation might be that its preference was to retain the key elements of the old regulatory style, but recognised the political necessity of appearing to embrace the new policy style which emphasised different types of regulatory tools and instruments. Whatever the motivations of the Commission, procedural rules are considered to have an impact on how well actors can realise their ‘revealed’ preferences. Since the adoption of the Maastricht Treaty, both the cooperation and the codecision procedure governed decision-making in the environmental policy area and hence applied to legislation under the 5th EAP. Following the Maastricht Treaty, Article 130s TEU stipulates that general environmental policy measures laid down in Article 130r shall be taken according to the cooperation procedure. Only the adoption of future EAPs was to be undertaken according to the codecision procedure. Since the adoption of the Amsterdam Treaty, codecision applies for all aspects of environmental policy except for fiscal measures, development plans and measures affecting a member state’s choice of energy resources where unanimity is the decision rule. The choice of a legal basis for environmental policy, i.e. whether the consultation (unanimity), cooperation or codecision procedure is applied, has considerable effects on the final policy outcome. Different legislative procedures produce different opportunity structures for political actors to influence the outcome of a piece of legislation. The ample literature on EU legislative politics has demonstrated under what conditions the different actors in EU policy-making, i.e. the member states in the Council, the European Parliament and the Commission can exercise which degree of influence over legislative outcomes (see, inter alia, Crombez, 1996, 1997; Garrett and Tsebelis 1996; Steunenberg 1994, 1997; Tsebelis, 1994; Tsebelis and Garrett 2000, Tsebelis and Garrett 2001). Hence, given that the Commission has the right to initiate legislation, the question of which policy a strategic actor would propose is of crucial importance: Would the Commission, given knowledge about the other actors’ preferences, propose legislation which would be fundamentally amended by the member states and the European Parliament anyway? Why then should it not propose a more ‘modest’ or vague proposal that will ‘get through’, i.e. that member states and the European Parliament will accept or lead them to adopt fewer amendments? Without going into all the details of spatial models of EU legislative politics, the following provides a brief sketch of the logic of strategic action and an illumination of the role of the Commission in the legislative process. This may provide a potential explanation of why the Commission may not have lived up to its ‘high spirits’ as expressed in the 5th EAP.
We assume that actors have Euclidean preferences over a one-dimensional policy space which means that they have one most-preferred policy outcome (ideal point) and that their utility declines consistently in distance from that ideal point in either direction. Furthermore, we assume a status quo (SQ) (which precedes legislative action or indicates existing policies) and we assume that actors possess complete and perfect information about the ‘rules of the game’, the location of their own and other actors’ ideal points and of the SQ. The Commission’s ideal point (its ‘median member’) will be denoted C, the European Parliament’s ideal point (representing its median member) will be denoted EP. For reasons of simplicity, the Council will be disaggregated into five member states each possessing equal voting weights (the Council cannot be represented as a unitary actor because it uses QMV or unanimity rule to take decisions). A qualified majority of member states in the Council comprises four out of five members.
Figure 1 shows
a hypothetical preference distribution among Council members, the European
Parliament and the Commission. Preferences are distributed along a ‘more
regulation’ less ‘regulation dimension’, the dimension found by Simon Hix
(2000) to divide the party groups within the European Parliament on
environmental issues (the position for the European Parliament hence indicates
the median voter in a centre-right dominated Parliament after the 1999
elections). Furthermore, it is often argued that a north-south divide exists in
EU environmental politics pitting states with a stronger sense for
“postmaterialist environmentalist sensitivity” against those “still struggling
with developmental problems and motivated by the urge for economic
modernization and higher productivity” (Weale et al. 2000: 468) which place a
much lower concern on environmental concerns. Although this distinction is
often criticised as being to crude and an oversimplification of reality, it
nevertheless raises a crucial question: To what degree can the ambitious goals
in its 5th EAP be met when preferences of the key players and the
structure of the decision-making processes are taken into account? As Weale et
al. argue “[c]onflicting policy preferences of member states at the European
level are one of the principal sources of political disagreements in the
legislative process. And the privileged position of member states within the
decision-making process means that these differences are often the ones that
dominate the policy process taken as a whole.” (Weale et al. 2000: 473) Consider the measures
laid down in Article 175(2) [old Article 130s, second intent] which stipulates
that the introduction of fiscal measures in Community legislation have to be
adopted by unanimity in the Council. Under a hypothetical preference distribution
as the one in Figure 1 it is quite obvious that the SQ will prevail as
has happened with the proposed CO2/energy tax which has been opposed
most severely by Spain and the business community. Re-iterating concerns of
business, Energy and Transport Commissioner Loyola de Palacio conveyed a very
cautious message about the potential introduction of a Community-wide energy
tax (hence clashing with Environment Commissioner Margot Wallström) and told
the European Parliament that economic instruments such as the energy tax had to
be assessed with great care to ensure that they are balanced and provide a
benefit to the Community as a whole (The EU Committee 2000: 27). But also
without the unanimity ‘stumbling block’, the QMV-procedures may also force a strategic
Commission to propose much less ambitious proposals then it would probably like
to. The rules governing the cooperation and codecision procedures are well
known so that they will not be repeated here (see, for example, Corbett et al.
1995; Hix 1999). Suffice to say that in the codecision ‘endgame’, Council and
Parliament bargain ‘in camera’ (conciliation committee) to bash out legsilation
with the Commission only playing the role as ‘broker’ but with no voting
rights.[15]
Environmental legislation covered by the cooperation procedure (which is
covered by the codecision procedure post Amsterdam), allows Parliament
in the second reading to accept the Council’s Common Position, reject it
(Council can override this rejection unanimously) or amend it. In the latter
case, the Commission decides whether or not to accept Parliament’s amendments.
Those accepted can be adopted by QMV in the Council or rejected by unanimity.
Those amendments not accepted by the Commission can be taken up by the Council
under unanimity and be included in the final legislation. What impact do these
two procedures have on the capacity of the Commission to propose legislation
that is located as close to its ideal point as possible? If we accept the
analysis by Christope Crombez (1996, 1997) the codecision procedure reduces the
Commission’s power compared to its power under the cooperation procedure
because the European Parliament and a qualified majority in the Council can
agree on a Joint Text in conciliation (note that this argument crucially
depends on the location of the SQ and Parliament’s ideal point). According to
Crombez, the “loss in the Commission’s power is thus due to the Conciliation
Committee’s right to agree on a joint text.” (Crombez 1997: 113).
Figure 1 reflects these theoretical
assumptions and illustrates that under the cooperation procedure the Commission
can propose a policy that is to the left of the ideal point of member state
‘3’. Under codecision, the Commission acting strategically (under complete and
perfect information) will be able to propose a policy in the range between the
ideal points of member states ‘2’ and ‘3’ which both a qualified majority in
the Council and a majority in Parliament would accept.
Figure
1
A rational choice institutionalist
explanation of legislative politics can thus provide a potential answer of why
the Commission might have shun away from proposing what it had declared in the
5th EAP. Furthermore, it is interesting to note that the application
of the codecision procedure, while strengthening the Parliament, has reduced
the formal power of the Commission in the legislative process: Therefore, the
content of the proposals the Commission brings forward is not only dependent on
what a qualified majority in the Council could approve but also on what a more
or less ‘environmentally-friendly’ Parliament wants. Thus, if the ‘weakened
Commission’ assumption is correct, then this could help explain the mis-match
between declaration and action.
6.2 An embedded policy style?
An alternative explanation is that
the Commission does not have a single set of consistent preferences and that
the actor constellation in the environmental sector is more complex than a
single Commission/EP/Council nexus. Moreover, we might need to take account of
the nature of the policy problems themselves. Thus, in terms of regulatory
tools, different problems might require different tools. In addition, political
salience and perception of risk can play a role in constraining the choice of
tools and instruments, irrespective of preferences and institutional roles.
Let us take the Commission
preferences as our starting point. Certainly, the Commission expressed a clear
preference for the shift in policy style. At a declaratory level, we feel that
it is possible to demonstrate that the ‘style’ changed. Yet, even at the
declaratory level, the Commission never totally abandoned a stated preference
for ‘old style’ regulation. The new instruments were an addition to the policy
mix. European level environmental policy has always been a mix of different
regulatory approaches (Héritier 1996) and it would be surprising, indeed, if it
had shifted entirely to a new approach based on completely new policy
instruments. It is difficult to know, but we suspect that the Commission (and
in particular DG Environment) was a multi-organisation, as most bureaucracies
are. Thus, some Commission actors were certainly wedded to old style regulation
and were deeply suspicious of the efficacy of the new instruments.
Secondly, although some
environmental interests had begun to see the possible efficacy of some new
economic instruments as a means of protecting the environment, they could also
see the need for old-style regulation of many types of environmental risk.
Moreover, at certain times, this was also true of key actors in the EP. There
was a strong advocacy coalition in favour of new instruments but there was also
a counteracting coalition fairly determined to retain a lot of ‘old style’
regulation and to generate more of it for the regulation of certain types of
risk. As a ‘purposeful opportunist’ (Klein and O’Higgins 1985), the Commission
was prepared to push hard for new instruments in those areas where it could see
efficiency gains such as energy taxes, but to continue to push for ‘old style’
regulatory instruments where necessary.
Thirdly, we must never forget what
is being regulated. It may thus be perfectly possible to introduce certain
types of new regulatory instruments for the regulation of, say, competition
between electricity utilities, but it is another matter when the quality of
water which we drink, or the air which we breathe is being regulated. In the
electricity case, if the instruments turn out to be less than optimal, the
consumer might be exploited in terms of price. In the water and air cases, the
consequences may be health damaging or even fatal. Hence, the costs of getting
the instruments wrong (e.g. relying on voluntary agreements) are potentially
catastrophic in some cases.
Fourthly, we must not forget the
potential role of political salience. Much has been written about the
democratic deficit in the EU – the popular implication being that European
level elites are out of touch with their peoples. That may often be true but
these elites are drawn from (generally) established democracies and they are
used to ‘reading’ public opinion. However rational it might seem to use new
kinds of regulatory instruments, there is a marketing problem when the
regulation of serious risk is concerned. The public is rightly sceptical about
a lighter regulatory burden when they can see the consequences of poor
regulation in such cases as BSE in cattle. Thus, voluntary agreements, for
example, are possibly likely to engender suspicion within the broader
electorate.
Finally, we need to remember that
the category of new instruments which has the greatest potential in terms of
regulatory efficiency – fiscal instruments – poses the greatest challenge to
the member states themselves. Stepping on the Euro fiscal regulatory escalatory
is not a step which is likely to appeal to member states in the current
cautious climate. Thus, when the Commission actions have matched the
declaratory intent – as in the energy and carbon tax case – the Commission has
come up against the taxation sovereignty issue with the member states.
If we combine these different
factors, the mis-match which is the focus of our paper is not so difficult to
understand. What turns out to be a system more akin to policy succession than a
change of policy style was, perhaps, quite predictable. Policy styles, once
established, are generally ‘sticky’ and may become embedded. It takes a major
shock and special political and institutional circumstances to change them
radically. These conditions appear absent, at present, within the EU. The EU
regulatory style, in the environmental sector at least, might, therefore,
exhibit something of a ‘gyroscopic effect’ – thus, the Commission’s draft of
the 6th EAP shows some (declaratory) signs that the ‘old style’ is
still alive and well despite the enduring dominance of the deregulatory policy
fashion. Table 7 shows the relative occurrence of key words in the 4th,
5th and 6th (draft) EAP. Words indicating ‘old style’
regulation (indicate in bold) feature prominently in the Commission’s draft
proposal (and probably even more prominently than in the preceding 5th
EAP). Similarly, instruments indicating ‘new style’ regulation (e.g. economic
instruments) have not lost much appeal with regard to the 5th EAP.
One potential explanation for putting more emphasis on the ‘instrument-mix’
might be the increasing concern with compliance with and implementation
of environmental policy provisions. Furthermore, the draft puts more
emphasis on the role of scientific evaluations and research and hence underpins
proposals and decisions with scientific advice of the highest quality
available in order to win acceptance by stakeholders (see COM/2001/31). Just as the Commission rode out the
subsidiarity storm, so it may have withstood the pressure to abandon ‘old
style’ regulation.
|
Table
7:
Absolute and relative occurrence of key words in the 4th, 5th
and 6th (COM draft) EAP |
||||
|
|
Words
from the ‘General Inquirer Dictionary’ |
4th EAP |
5th EAP |
6th EAP (COM
proposal) |
|
%, [N] (total: 27308
words) |
%, [N] (total: 47497
words) |
% [N] (total 23624 words) |
||
|
Deployment
of different policy instruments |
Compliance |
.0002 [5] |
.0002 [9] |
.0004 [9] |
|
Control |
.0022 [61] |
.0011 [53] |
.0006 [13] |
|
|
Data |
.0003 [7] |
.0007 [31] |
.0014 [32] |
|
|
Economic |
.0031 [86] |
.0036 [171] |
.0023 [55] |
|
|
Efficiency |
0 [0] |
.0007 [35] |
.0011 [26] |
|
|
Evaluation |
.0002 [7] |
.0003 [13] |
.0006 [13] |
|
|
Financial |
.0003 [8] |
.0011 [50] |
.0006 [13] |
|
|
Fiscal |
0 [1] |
.0006 [29] |
.0001 [2] |
|
|
Harmonize |
.0003 [8] |
0 [0] |
0 [0] |
|
|
Implementation |
.0022 [59] |
.0018 [87] |
.0029 [68] |
|
|
Information |
.0014 [38] |
.0019 [91] |
.0024 [56] |
|
|
Legislation |
.0014 [37] |
.001 [46] |
.0029 [68] |
|
|
Liability |
.0001 [2] |
.0003 [16] |
.0002 [5] |
|
|
Limit
(noun) |
.001 [28] |
.0004 [18] |
.0005 [12] |
|
|
Limit
(verb) |
.0007 [18] |
.0001 [7] |
.0002 [5] |
|
|
Regulation |
.0012 [34] |
.0004 [21] |
.0005 [12] |
|
|
Research |
.0013 [35] |
.0006 [28] |
.0015 [36] |
|
|
Standard |
.003 [82] |
.0013 [63] |
.0013 [30] |
|
|
Voluntary |
0 [1] |
.0001 [6] |
.0004 [9] |
|
|
Tax |
.0001 [2] |
.0002 [9] |
.0007 [16] |
|
Bibliography
Collier, U. (1997) ‘Sustainability, Subsidiarity and Deregulation: New Directions in EU Environemntal Policy’, Environmental Politics 6, 2: 1-23.
Collier, U. (1998) ‘The Environmental Dimension of Deregulation’, in Ute Collier (Ed.) Deregulation in the European Union. Environmental Perspectives, London: Routledge.
Corbett,
R., F. Jacobs and M. Shackleton (1995) The
European Parliament, London: Catermill.
Crombez, C. (1996) ‘Legislative Procedures in the European Community’, British Journal of Political Science 26: 199-218.
Crombez, C. (1997) ‘The Co-Decision Procedure in the European Union’, Legislative Studies Quarterly 22: 97-119.
Downs, A. (1967) Inside Bureaucracy, Boston: Little Browns.
Flynn, B. (1999) ‘Does Subsidiarity Make a Difference to the EU ENvironmental Institutions?’, in M. Wissenburg, G. Orhan and U. Collier (Eds.) European Discourses on Environmental Policy, Aldershot: Ashgate.
Garrett,
G. and Tsebelis, G. (1996) ‘An Institutional Critique of Intergovernmentalism’,
International Organization 50:
269-299.
Golub,
J. (1998) ‘The new instruments for environmental policy in the EU: introduction
and overview’, in J. Golub (Ed.) New Policy Instruments for Environmental
Policy in Europe, London: Routledge.
Héritier, A. (1996) ‘The Accommodation of Diversity in European Policy-making and its Outcomes: Regulatory Policy as a Patchwork’, Journal of European Public Policy 3, 2, 149-167.
Hildebrand,
P. M. (1993) ‘The European Community’s environmental policy, 1957 to 1992’, Environmental
Politics 1, 4: 13-44.
Hix,
S. (1999) The Political System of the
European Union, London: MacMillan.
Hix, S. (2000) ‘ Legislative Behaviour and Party Competition in the EU: An Application of NOMINATE to the Post-1999 European Parliament’, Paper prepared for the 2000 Annual Meeting of the APSA, Washington, D.C., August 31 – September 3, 2000.
Institute for European Environmental Policy (2000) Manual of Environmental Policy: The EU and Britain, Oxford: Elsevier.
Jordan, A., R. Wurzel and A. Zito (2000) ‘Innovating with ‘New’ Environmental Policy Instruments: Convergence or Divergence in the European Union?’, Paper prepared for the 2000 Annual Meeting of the APSA, Washington, D.C., August 31 – September 3, 2000.
King, A. (1973) ‘Ideas, Institutions and the Policies of Governments: A Comparative Analysis: Part 3’, British Journal of Political Science, 3, 409-423.
Kingdon, J. (1984) Agendas, Alternatives and Public Policies, New York: HarperCollins.
Klein, R. and O’Higgins, M. (1985),
‘Social Policy After Incrementalism’ in Klein and O’Higgins (eds), The Future of Welfare. Oxford: Basil
Blackwell.
Krämer, L. (2000) ‘Differentiation in EU Environmental Policy’, European Environmental Law Review: 133-140 (May).
Lenschow, A. (1997) ‘Greening the EC Regional and Cohesion Funds: Explaining Variation Across Similar Policy Areas’, EUI Working Papers, RSC No 97/13.
Maier, M. L. (2000) ‘“Sustainability” in the European Union: Idea, Interpretation and Institutionalization’, Paper prepared for the workshop on ‘Analyses of discourses and ideas in European and international affairs’, European University Institute, Florence, May 12 – May 13, 2000.
Majone, G. (Ed.) (1996) Regulating Europe, London: Routledge.
Mazey, S. and J. Richardson (1998) ‘Framing and Re-Framing Public Policy in the EU: Ideas, Interests and Institutions in Sex Equality and Environmental Policies’, Paper presented at the workshop on ‘The Role of Ideas in Policy-making’, Joint Session Workshops, ECPR, Warwick University, March 23 – March 28, 1998.
Neale, A. (1997) ‘Organising Environmental Self-regulation: Liberal Governmentality and the Pursuit of Ecological Modernisation’, Environmental Politics 6, 4: 1-24.
Richardson, J. (Ed.) (1982) Policy Styles in Western Europe, London: George Allen & Unwin.
Richardson, J., G. Gustafsson and G. Jordan (1982) ‘The Concept of Policy Style’, in J. Richardson (Ed.) Policy Styles in Western Europe, London: George Allen & Unwin.
Richardson, J. (2000) ‘Government, Interest Groups and Policy Change’, Political Studies, 48, 5: 1006-25.
Sabatier, P. (1998) ‘The Advocacy Coalition Framework: revisions and relevance for Europe’, Journal of European Public Policy, 5 1: 98-130.
Schön, D. A. and Rein, M (1994), Frame Reflection. Toward the Resolution of Intractable Policy Controversies. New York: Basic Books.
Steunenberg, B. (1994) ‘Decision-Making under Different Institutional Arrangements: Legislation by the European Community’, Journal of Institutional and Theoretical Economics 150: 642-69.
Steunenberg, B. (1997) ‘Codecision and its Reform: A Comparative Analysis of Decision-Making Rules in the European Union’, in B. Steunenberg and F. van Vught (Eds.), Political Institutions and Public Policy, Amsterdam: Kluwer.
The
EU Committee (2000) EU Environment Guide, The EU Committee of the
American Chamber of Commerce.
Tsebelis,
G. (1994) ‘The Power of the European Parliament as a Conditional Agenda
Setter’, American Political Science
Review 88: 128-142.
Tsebelis, G. and Garrett, G. (2000) ‘Legislative Politics in the European Union’, European Union Politics 1, 1: 9-36.
Tsebelis, G. and Garrett, G. (2001) ‘The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union’, International Organisation 55, 2: 357-390.
Weale, A. et al. (2000) Environmental Goverance in Europe. An Ever Closer Ecological Union?, Oxford: Oxford University Press.
Wilkinson, D. (1997) ‘Towards sustainability in the European Union? Steps within the European Commission towards integration of the environment and other European Union policy sectors’, Environmental Politics 6, 1: 153-173.
Wissenburg, M., G. Orhan and U. Collier (Eds.) (1999) European Discourses on Environmental Policy, Aldershot: Ashgate.