"Two steps forward, one step back" is how a report by the Institute for European Environmental Policy (IEEP) characterised the implications of the Maastricht Treaty for the EC's environmental policy.1 While changes to the Community's law-making procedures could cause confusion and delay, the report concluded that the strengthened references to environmental protection in the Treaty objectives, the likelihood that legislation will be adopted faster and result in higher environmental standards due to the extension of qualified majority voting, and the additional incentives and penalties created for Member States to implement EC rules (ENDS Report 203, pp 22-3) should give a new push to the Community's role in protecting the environment.
That was three months ago, before the Danes voted against the ratification of the Treaty. The political fall-out from the Danish referendum has thrown the future of the EC's environmental policy back in the melting pot - and on a pessimistic reading has placed it in unprecedented jeopardy.
The efforts of the Community's leaders to find a way of bringing the Danes back into the fold have been concentrated on producing a living definition of the concept of "subsidiarity". Ambiguously defined in the Maastricht Treaty itself, subsidiarity means in broad terms that action should be taken at Community level only where it would be more appropriate than action at national or local level.
Interpreting the referendum result as a popular revolt against the EC's centralising tendencies, the Community's leaders agreed at their summit in Lisbon on 26-27 June that all future legislative proposals from Brussels will have to be justified against the principle of subsidiarity. And, in a move for which the UK's Foreign Secretary Douglas Hurd later claimed credit, they also agreed to re-examine "certain" existing EC rules "in order to adapt them to" the same principle. The review is to be completed by December 1993.
Interpretations of what those decisions may hold for environmental policy need to begin a few months back. It was then that Jacques Delors, the European Commission's President, and Competition Commissioner Leon Brittan began publicly to call in question the need for some existing Community environmental rules.
It just so happened that the examples they came up with were major political preoccupations in their countries of origin. Mr Delors' main concern was the 1979 Directive on the conservation of wild birds and their habitats, which has got France into trouble with Brussels due to the national pastime of blasting birds indiscriminately out of the sky.
Meanwhile, Mr Brittan convinced himself shortly after the UK was taken to the European Court of Justice for alleged breaches of the 1980 Directive on drinking water quality that the legislation has served its purpose and should be repealed. He also expressed a lack of enthusiasm for EC intervention in land use decisions. This can be taken to mean that Environment Commissioner Carlo Ripa di Meana was ill-advised to go public with last autumn's celebrated legal exchange with the UK about its apparent non-compliance with the 1985 Directive on environmental assessment in connection with several controversial road schemes (ENDS Report 201, pp 14-17).
Both men have since been reminded by their legal services that it is the Commission's duty under the EC Treaty to pursue Member States which do not meet their obligations. But the significance of their remarks is that the most senior figures in the Commission now regard environmental policy and its enforcement as issues to be kept quiet in the bid to rescue the Maastricht Treaty and plot a path to the EC's enlargement.
Much of the blame for this attaches to Mr di Meana, who left the Commission at the end of June to become Italy's Environment Minister. British environmentalists, who enjoyed the publicity he gave to their campaigns by pursuing the Government on drinking and bathing water and environmental assessment, are sorry to see him go. But the anti-EC backlash which those actions stirred up among Conservative MPs turned the EC's environmental policy into a troublesome factor for Mr Delors and Mr Major both before and after the Maastricht Treaty was signed. For different reasons both are enemies which it could do without.
Support for Mr di Meana among his fellow Commissioners was already waning before he made public the Commission's case against the UK on environmental assessment. Several proposals prepared by the Environment Directorate, DGXI, were being blocked by internal disputes. They included a plan to extend environmental assessment requirements from projects to sectoral policies and plans, which now stands little chance of making further progress, early drafts of the EC's fifth Environment Action Programme, and the proposed Regulation on eco-auditing, which came through the Commission greatly slimmed down.
The row with the UK over environmental assessment, coming as it did at a time when Mr Delors would have preferred everything to be subordinated to his grand design for Europe, left the Commission President alienated against the environment. One result is that environmental policy will be among the top items on the subsidiarity hit-list. Another is that many of DGXI's pet legislative projects may be killed off within the Commission before they ever come close to the statute book.
Transboundary rules safe
But wiping out chunks of the environmental legislation adopted by the Community since 1975 will not be so easy, whatever the politicians may think. The Directive on birds, for example, could hardly be repealed on the grounds of subsidiarity. Birds, like products and many pollutants, cross national boundaries, and legislation on issues with transboundary aspects is least exposed to a post-Maastricht cull.
Another group of Directives which regulate the environmental aspects of projects or sites is more vulnerable, but not much more so. Most of them were adopted on the basis that they would harmonise standards or practices and hence help to create a level playing-field for business. This applies, for example, to the Directive on environmental assessment, in that it obliges developers to bear the costs of assessing environmental impacts via a common procedure.
Making the case for retaining the Directives on drinking and bathing water is less easy, at least if the sole criterion is subsidiarity. Neither has any significant transboundary implications, and the level playing-field argument applies at best indirectly in that water consumers could bear widely divergent clean-up costs in the absence of Community rules.
On the other hand, the political difficulties of repealing these Directives would not be trivial. Consumers in Denmark, the Netherlands and Germany would not take kindly to suggestions that their drinking water standards may be reduced, and the opposition could be powerful enough to form a blocking minority in the Council of Ministers.
Member States have also proved adept at inventing reasons for blocking proposals to amend existing Directives. One such proposal, made in January 1989, would have established EC committees of national officials with the power to push through amendments to several Directives on water quality (ENDS Report 168, pp 26-7). When it was last heard of the proposal was being blocked by Spain, which disliked the idea of devolving power from ministers to officials.
Attempts to repeal existing Community rules, and indeed to amend them, could also fall foul of formidable procedural hurdles. An existing Directive would presumably require a new Directive to repeal or amend it. However, any such proposal could be stalled if the European Parliament or its Environment Committee adopted the simple device of refusing to deliver an opinion on it, as both have done in the past. No doubt the issue could eventually be taken to the European Court of Justice, delaying matters by a further year or two. The prospect that the Environment Committee at least would adopt this tactic is so strong that the water industry should not hold its breath in the hope that much of its investment in cleaner drinking and bathing water may not need to go ahead.
Repeals may, in any event, not be on the cards, since nobody knows at present where subsidiarity will take them. Nobody knows either what the other current buzz-word, "repatriation", really means, although politicians are using it to express the view that Member States should be given more responsibility for enforcing Community laws.
Mr Delors, for one, has been saying that the Community has reached the stage where Member States can trust each other to implement EC rules. That suggestion has been greeted with a hollow laugh in the UK Department of the Environment, which has no apparent intention of letting the subsidiarity debate get in the way of its campaign for stricter enforcement of EC rules in other Member States, or of backing off from its proposal for a Community inspectorate to audit national environmental inspectorates (ENDS Report 202, p 3).
The situation is not without irony. Mr Delors, so heavily criticised for interfering in national affairs, is now seemingly content to let Member States off the hook. Meanwhile, the UK, a persistent critic of the Commission's centralising tendencies, finds itself arguing for deeper Community scrutiny of national environmental affairs.
The contradictions will not be easy to reconcile because there is little political will among the Member States to get to grips with the problems of implementation and enforcement of EC law. One of the positive effects of the debate on subsidiarity and repatriation may be to focus thinking on ways of securing implementation which do not rely so heavily on Brussels itself.
New enforcement options
It would be consistent with both concepts, for example, for the Commission to proceed with its idea of a Directive to facilitate public access to national courts in environmental cases (ENDS Report 200, pp 22-3). This could not immediately become a means to secure compliance with EC rules because they have not in general created rights which are enforceable by the public, although a recent decision by the European Court of Justice has opened up the possibility that individuals may be able to claim compensation where a government fails to implement an EC Directive (ENDS Report 205, p 37 ).
Other mechanisms which would effectively act as a filter for complaints to Brussels about non-compliance with Directives have been mooted in the UK. The Council for the Protection of Rural England, for example, has been urging the Government to create an official unit to assure the quality of environmental statements. This might also discourage the public from swamping Brussels with complaints alleging that a statement was defective on some point of detail.
Effective national mechanisms of this kind need not diminish either the Commission's or the European Court's status as the ultimate guardians of the EC Treaty, but they would help to ease the pressure on the Commission to intervene unnecessarily in disputes over technical infractions of EC law.
Another dimension of the subsidiarity debate, again mooted by Mr Delors, is that EC legislation should in future be much more of a framework character, leaving more discretion to the Member States as to how they go about implementing it. The principle may be sound, but experience with framework legislation suggests that the fewer the rights and obligations it creates the less likely that it will be implemented or enforceable. That view is shared by the DoE, as a House of Lords inquiry was told in June, but the threat is nevertheless there.
A key question for the future is how much and what kind of legislation will be justifiable against whatever criteria are eventually set for the subsidiarity test. The proposal for a Directive on integrated pollution prevention and control which is currently in preparation (ENDS Report 207, pp 29-31 ) may, for example, get through on the grounds that it would harmonise industry's environmental protection costs. Much less easy to justify is the draft Regulation on eco-auditing (ENDS Report 206, pp 18-20 ), since harmonisation is not an issue and many of the requirements which firms may volunteer to take on will be covered in due course by international standards on environmental management systems.
On the other hand, a radically diminished role for the EC is unlikely to be welcomed by industry. Businesses have never regarded the Commission as their best friend, but they do regard it selectively as an ally in discouraging the erection of national trade barriers and eliminating some disparities in national environmental standards. Thus the packaging industry, many recycling businesses and exporters to Germany would be overjoyed if the forthcoming draft Directive on packaging helped to dismantle Germany's new packaging regulations.
The subsidiarity debate has a long way to run, and it may be that if the Maastricht Treaty is ratified by all twelve Member States by early next year the heat will go out of the issue. But the outcome of that debate is not the only factor to be borne in mind. Mr Delors needs only to appoint a tame successor to Mr Ripa di Meana and stick to whatever private deals he has made with Mr Major and other Community leaders to inflict some serious damage to the EC's environmental policy.