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ABSTRACT
Some recent scholarship has focused on concerns that implementation and compliance difficulties are undermining the legitimacy of European Union environmental policies and even the EU itself. Other officials and analysts, however, contend that environmental policy is one of the EU’s most successful policy areas. While most discuss ‘legitimacy’ in unspecified or dichotomous terms, it is instead a more nuanced and contested concept. This study investigates several evolving and interacting bases of legitimacies associated with ’permissive acceptance’ (based upon functional need, scientific and technical authority, and policy effectiveness), ‘appropriateness’ (based upon normative consensus, legalization, and adjudication), democracy (based upon representation, participation, and deliberation), and identity (based upon global leadership and ‘othering’). These legitimacies vary in terms of their strength, stability, and durability among the multiple European actors and institutions.
Notes
1. Council Directive 85/337/EEC of 27 June 1985. Official Journal L 175/40.
2. Directive 2001/42/EC of the European Parliament and of the Council of June 2001 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, Official Journal L 197/30.
3. Directive 2003/35/EC, Official Journal L 156/17.
4. Eckersley (Citation2004, 135–136) considers constitutionally embedding the precautionary principle a parsimonious and effective way to require a systematic consideration of all potential environmental impacts, including on nonhuman species and future generations. Constitutionalization of the precautionary principle is justifiable on grounds of fairness and its helpfulness to managing risk and avoiding displacement of environmental problems across time and space. She concludes: ‘No single decision rule is likely to do more to protect environmental victims’.
5. Wynne (Citation1992) identifies four categories of scientific ‘unknowns’: risk, when the odds of danger are known; uncertainty, when the odds of danger are currently unknown but the data necessary for assessment may eventually be available; ignorance, when scientists are unaware of what they do not know; and indeterminacy, when the phenomenon is unpredictable and outcomes open-ended or when the validity of present knowledge is contingent.
6. Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the Directive on Strategic Environmental Assessment (Directive 2001/42/EC) /* COM/2009/0469 final */
7. In 2012, the Commission estimated that the cost of non-implementing current legislation was approximately E50 billion a year in health costs and direct costs to the environment (http://ec.europa.eu/environment/legal/law/com_improving.htm).
8. In May 2016, examples of directives two years or more overdue in terms of their transposition included Directive 2009/31/EC Geological storage of carbon dioxide, Directive 201031/UE Energy performance of buildings, and Directive 2010/75/UE Industrial emissions (integrated pollution prevention and control). http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/transposition/index_en.htm
9. The Commission warns that only the European Court of Justice can definitively determine whether a directive has been correctly transposed, and advises that this be kept in mind when interpreting compliance deficit data. http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/transposition/index_en.htm
10. Some specifics regarding environmental infringements 2007–2014 are provided here:
Source: http://ec.europa.eu/atwork/applying-eu-law/index_en.htm
11. A 2011 Eurobarometer poll of EU citizens’ attitudes toward the environment reveals that 95% of citizens feel that protecting the environment is important to them personally, 64% believe that action to protect the environment should be undertaken at the European level, and 89% think that more funding should be allocated to protect the environment (http://ec.europa.eu/environment/pdf/ebs_365_en.pdf).
12. While these concepts overlap somewhat and are contested, this study discusses ‘values’ as salient and stable beliefs regarding what is important and what is good or bad. ‘Norms’ are standards of acceptable and preferred behavior regarded as customary and expected. Norms prescribe and proscribe actions serving to guide and regulate behavior (see Legro Citation1997; Finnemore and Sikkink Citation1998). ‘Principles’ are fundamental assumptions that serve as a basis for rules, codes of conduct, laws, regulations, and measuring policy compliance.
13. McCormick (Citation2001, 48–85) provides a summary of the principles that have evolved to guide EU environmental policies (in no particular order): the precautionary principle, the polluter pays, prevention over remediation, subsidiarity, the safeguard principle (which allows MSs to adopt more stringent environmental standards than those in EU law), environmental impacts should be considered at the earliest possible stage of decision making, sustainable development, the proximity principle (i.e. environmental damage should be addressed at the source), the integration principle, scientific and technical data are to be taken into account, the international principle, market-oriented solutions, and the proportionality principle.
14. In this case, the ECJ held that environmental protection (along with protection of public health, the fairness of commercial transactions, and the protection of the consumer) constitutes one of the acceptable ‘mandatory requirements’ under which MSs could restrict goods from other MSs. It should be noted however, that the Court ruled that the portion of the Danish legislative prescribing the types of containers to be used was disproportionate (Case 302/86 Commission v. Denmark discussed in Jacobs Citation2006, 188).
15. This is Case C-300/89, Commission v. Council.
16. In June 1993, the European Council reaffirmed membership requirements that became known as the Copenhagen Criteria:
Membership requires that candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union (Council of the European Union Citation1993).
17. The EP has been referred to as a ‘champion of the environment’ (Burns Citation2005: 89).
18. The European Green Party (EGP) first contested European Parliament elections in 1979 achieving representation in 1984 as part of the Rainbow Alliance. Following the 1989 elections, the Green Party formed a separate group in the EP. Reduced in numbers in the 1994 elections, the Greens formed part of the European Radical Alliance, but a successful outcome in 1999 allowed them to combine with the European Free Alliance. In the 2004, 2009, and 2014 elections, 35 (4.8% of EP members), 48 (6.2% of EP members), and 50 (6.7% of EP members) Green Party members, respectively, were elected to the EP. The EGP ran the first election campaign featuring common motifs and slogans in all EU countries (Bomberg Citation1998, http://europeangreens.eu/front).
19. A minority of scholars argue that the democratic deficit is a myth based on assertions that the EU remains an intergovernmental body that takes its decisions via democratically-elected governments and/or that EU policies are predominantly regulatory and are best developed by technical experts (Majone Citation1996; Saurugger Citation2010, 474).
20. The subsidiarity principle requires that:
In areas which do not fall within its exclusive competence, the Community shall take action … only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community (Article 5, formerly Article 3b, of the TEC, CEC Citation1992).
The subsidiarity principle may increase the number of participants in environmental decision-making, bring in additional and alternative sources of knowledge, make environmental policy more context specific, and increase opportunities for deliberation and normative and policy consensus building, however, at the same time it introduced more ambiguity and uncertainty in policymaking and implementation, undermining another basis of legitimacy – policy effectiveness.
21. Forum membership included four representatives from regional and local authorities, five representatives from consumer and environmental groups, two representatives from trade unions, nine industrial representatives, two representatives from agricultural and agri-food organizations, and nine individuals acting in a personal capacity (Lenschow Citation1999, 46). Between 1998 and 2010, the EU created 37 social dialogue committees who generated more than 300 documents such as guidelines and codes of conduct (Pop Citation2010).
22. These transitions in governance are not without problems. No MS completely made the transition to new modes of governance, and the EP generally failed to join the networks. In 2003, the European Environment Agency (p. 277) wrote with regard to the Cardiff Process, ‘the process … lacked urgency and has yet to have a significant impact on sectoral policy making, let alone on improvements on the ground’. And, the following year, the Commission conceded that ‘the [Cardiff] process has failed to deliver fully on expectations’. A reviewer to this article succinctly concludes that the Cardiff Process ‘has been buried quietly without an official funeral’.
23. Two salient examples: The ‘Mad Cow Crisis’, which began in Britain in 1986 and persisted for more than a decade, was compared to the 1965–1966 ‘Empty Chair Crisis’ in its undermining confidence in European integration, and MSs often blatantly refused to comply with EU decisions regarding genetically modified organisms.
24. There have been some efforts to add direct democracy to the EU democratic repertoire. Major treaty changes are subject to referenda in several MSs. There have been multiple efforts to increase citizen access to information. And, web-based technologies have been applied to perceived legitimacy concerns.
25. This is Case 22/70, Commission v. Council.