1  European Union (EU) environmental law has developed rapidly since the 1970s. EU environmental law is shaped through the numerous directives and regulations that have been adopted based on the EU’s shared environmental competence (see also Article 4(2)(e) Treaty on the Functioning of the European Union (‘TFEU’)). Today, the EU is the primarily legislator in most areas of environmental policy, particularly with respect to transboundary issues such as climate change, biodiversity, air and water pollution, industrial pollution, waste, and chemicals. The EU’s environmental policy objectives can be found in Title XX ‘Environment’ TFEU (specifically Arts 191–93).

2  In light of the ecological, environmental, and socio-economic diversity between Member States, most EU environmental law is adopted through directives. In addition, Articles 36, 114(4)–(5), and 193 TFEU all stress the possibility for potentially stricter environmental regulation at the Member State level, if supported by national circumstances and/or new scientific insights. The ability to take progressive action at the Member State level is however limited by the requirement to prevent obstacles to the internal market. That said, environmental goals often go hand in hand with economic goals in the EU, as evidenced by the 2019 European Green Deal, as the EU strives to be a global leader on issues such as the circular and green economy while maintaining a competitive social market economy.

3  The large number of directives, the scientifically complex nature of environmental legislation, and the limited capacity of the European Commission (‘Commission’) to oversee all implementation efforts by Member States and their subnational authorities present challenges for the enforcement and implementation of the EU’s environmental acquis. Steps have been taken to increase private party enforcement of EU law through enhanced access to information and justice in this area and to ensure public participation in environmental decision-making. Citizen support for EU action on environmental matters has historically been strong, which facilitates Union action in this area.

4  Environmental law regulates the relationship between human beings and their natural environment. The ‘environment’—composed of flora, fauna, inanimate objects, and a set of complex dynamic processes that link these components—is impacted by many factors, including non-human behaviour and processes. However, as law can only regulate human behaviour, the primary way in which environmental law regulates the relationship between humans and their environment is by shaping human actions that lead to environmental impacts and/or human ownership over its environment. Moreover, environmental law can play a role in addressing ‘natural’, or non-human, causes of environmental degradation by stipulating human intervention in these processes or alleviate their consequences.

5  Most environmental impacts—specifically those that are diffuse over time and space, causally complex and non-human, such as biodiversity loss—are difficult to regulate effectively through environmental law (van Zeben and Rowell). Law tends to be better at regulating impacts that are immediate, spatially uniform, causally clear, and human, such as a broken leg caused by a collision between a cyclist and a car. Environmental impacts, such as the effects of climate change, may take decades to materialize and can affect a range of ecosystems, species, and people in different places across the globe. Moreover, while some environmental impacts can be accurately traced back to specific actors, it can be extremely difficult to determine who was the cause of the impact; an environmental impact may be caused by tens, hundreds, or even millions of actors and actions.

6  In order to be effective, environmental law must therefore answer a wide range of questions, such as: Which human beings, activities, and relationships can, and should be, regulated? Which part of the environment is impacted? What should be the aim of environmental regulation? Who, or what, should be protected, and to what level? What tools should be used for implementation and enforcement? Who should answer these questions and who should be in charge of implementing the answers? Some of these questions are highly technical, and many of them are deeply normative; often there is a range of possible answers and a political choice will have to be made between these answers.

7  Over time, EU environmental law has presented interesting, and often novel, answers to these questions. This can be traced back to the institutional setting in which EU environmental law has developed over time: the actors that have been involved in its creation, the competence they had to act (or not), and the methods of implementation and enforcement available to them. EU environmental law has developed in this institutional setting—the ‘supply side’ of EU environmental law—in response to the environmental realities that necessitate regulation—the ‘demand side’ of EU environmental law.

8  The resulting body of EU environmental law, which has grown exponentially over the last decades, is vast and technically complex. As environmental law interacts with many other areas of EU and Member State law, its boundaries are fluid and often hard to draw. In order to have a full picture of the EU’s environmental competence, we must often also consider EU internal market law, energy law, health law, transportation policy, and many other areas. The 2019 European Green Deal reaffirmed the impact that EU environmental policy will have on many other areas of EU law and policy in the coming thirty years and beyond.

9  This entry creates a framework for the environmental chapter of this encyclopaedia by providing several analytical tools that can help the reader—expert or learner—to navigate the wide range of laws and policies developed under the EU’s environmental competence. It first provides an overview of the development, role, and mechanisms of EU environmental law within the EU, discussing the scope of the EU’s competence, its environmental aims, key actors involved, and use of specific regulatory tools. (See Section C below.) The second part of this entry discusses the position of EU environmental law vis-à-vis Member State environmental law, and international environmental law, as a broader contextualization of the information provided in the environmental entries of this encyclopaedia. (See Section D below.)

10  The creation of the EU has long referred to, and depended on, the creation of an internal market—ensuring profound economic integration between the Member States—with a view of pre-empting the possibility of violent conflict between the Member States. This aim is explicated in Article 3(3) Treaty on European Union (‘TEU’)—‘[t]he Union shall establish an internal market’, which in turn is inspired by similar provisions dating back to Article 2—‘[t]he Community is tasked with, by creating an internal market and bringing the Member States’ economic policies closer together, improving the harmonious development of the entire Community’—of the founding Treaty of Rome (‘EEC Treaty’). This begs the question as to how, and when, environmental protection started to play a role in the EU’s mandate.

11  Already in the EEC Treaty, it was made explicit that economic integration was a means to achieve ‘continuous improvement of the standard of living and closer relations between the Member States’ (Art. 2 EEC Treaty), rather than an aim onto itself. The role of environmental quality in the EU’s ‘standard of life’ has been made increasingly explicit in the EU’s treaties; Article 3(3) TEU states that ‘[the internal market] shall work for the sustainable development of Europe … and a high level of protection and improvement of the quality of the environment.’

12  It may be tempting to view the adoption of the Single European Act (‘SEA’) as the starting point of EU environmental law, as there was no EU environmental competence before the SEA’s adoption in 1986. However, this would ignore 20 years of environmental action that preceded the SEA and the important steps that had already been taken. Most importantly, it misrepresents the goals of the EU as being exclusively economic at its creation: the aspirations of the European project were always broader than this, and quite heavily focused on improving the quality of life of EU citizens, even if initially this was primarily through improving people’s socio-economic circumstance.

13  In the 1960s, long before the SEA, the European Economic Community (EEC) adopted a number of directives regarding the harmonization of national product rules that related directly to environmental quality, such as the Directive 67/548 on the classification, packaging and labelling of dangerous substances. During the 1970s, international efforts on environmental protection significantly increased and the 1972 UN Conference on the Human Environment (‘Stockholm Conference’) which created the UN Environmental Programme (UNEP) was a watershed moment in international environmental law. This also created additional momentum for action within the EEC, and the 1972 Paris Summit led to the definition of new fields of Community Action, including environment.

14  In line with these political expressions of intent, the Commission issued a communication (First Communication of the Commission about the Community’s Policy on the Environment) and the first Environmental Action Programme was adopted in 1973 (running from 1973–1976). In the same year, an Environmental Directorate General (then DG XI) was created in the European Commission. These steps, together with a second and third Environmental Action Programme (‘EAP’) (1977–1981 and 1982–1986, respectively), laid the groundwork for the EU’s environmental competence introduced by the Single European Act via the new Article 130r–t (now Arts 191–93 TFEU). This Article established an EU competence to ‘preserve, protect and improve the quality of the environment; contribute towards protecting human health; to ensure a prudent and rational utilization of natural resources’ (Art. 130r(1) SEA). Alongside the EAPs, legislative action related to environmental issues was taken during this period on the basis of the internal market competence and Article 235 EEC Treaty, which allowed the Council of the European Union (‘Council’) to act unanimously to achieve any ‘objectives of the Community’ if the Treaty did not provide ‘the necessary powers’.

15  The creation of the environmental competence was a catalyst for the broad environmental agenda that the EU has since developed. The interpretation of this competence by the Court of Justice of the European Union (CJEU or ‘Court’), as well as its jurisprudential development of environmental principles and justifications, were essential in the development of the EU’s environmental acquis. As will be described in more detail below, other policy instruments such as the EAPs, Commission Communications, Strategies, and White Papers also play an important role, regardless of their “soft law” (or, non-legally binding) nature.

16  The categorization of competences as exclusive, shared, and supporting in the Lisbon Treaty has provided more defined parameters for shared competences such as the EU’s environmental competence. The provisions of Article 5 TEU with respect to subsidiarity and proportionality are particularly important in this regard.

17  Subsidiarity stipulates that outside the areas of its exclusive competence, the EU should only act if, and insofar as, the objectives of the proposed action cannot be sufficiently achieved by the Member States, or can be better achieved at Union level. The transboundary nature, or geographic diffusion, of many environmental impacts easily fulfils these criteria: as soon as an environmental impact can be felt in more than one Member State—or is caused by one Member State but materializes in another—the effective regulation of this environmental impact is considered impossible at Member State level, and better achieved at the EU level. Apart from the effectiveness of the regulation, another consideration is that EU regulation of environmental impacts can address potential problems of externalities. Because the EU can regulate the environment in the entire EU territory and has a vested interest in protecting the environment in its entire jurisdiction, it cannot externalize environmental effects on others—or, at least, not on others within the EU—in the way that Member States could.

18  In situations where the EU has competence to act on environmental matters, the principle of proportionality must also be respected. The proportionality principle provides that ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ (Art. 5(4) TEU). This principle finds expression primarily through the type of secondary EU law that the EU can adopt to regulate the issue in question: regulations and directives. Regulations are binding in their entirety and do not require any transposition or implementation by the Member States. Directives are equally binding but only as to the result that must be achieved; it is left to the Member States to decide on the method of implementation. By far the majority of EU Environmental law is adopted through directives, partly since minimum harmonization as expressed through upper emission limits or minimum safety standards are often sufficient to ensure the environmental objectives, and partly because the range of environmental and socioeconomic circumstances in the Member States requires flexibility in goal achievement, which directives provide.

19  The application and enforcement of the subsidiarity principle and, to a lesser extent, the proportionality principle, continues to be controversial insofar that legal and political checks remain relatively ineffective (Craig). As an additional check, Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality—which replaced the 1999 Protocol adopted as part of the Amsterdam Treaty as part of the Lisbon reforms—gives national parliaments the power to raise subsidiarity concerns through the so-called yellow/orange card process but the effects of this safeguard have been limited (Cooper). As mentioned, the EU has also taken considerable environmental action on the basis of its internal market competence (now Art. 114 TFEU), for example the adoption of the EU’s chemicals regime ‘REACH’ (Regulation 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals), which further complicates the subsidiarity, and to some extent the proportionality, question.

20  Another important development has been the inclusion of the ‘external’ dimension to the EU’s competence beyond the boundaries of the EU and the added emphasis on climate change (see below). Though the EU already had limited competence to engage in multilateral agreements with third countries before the Lisbon treaty, as confirmed by the CJEU’s case law (Cremona, 2008), the current treaties confirm this complex jurisprudence in Articles 2(2), 3(2), and 21 TFEU. That said, as environment is a shared competence, the division of power between the EU and the Member States in this area remains complex (Cremona, 2012).

21  As mentioned previously, some early EU environmental law was adopted on the basis of the market harmonization competence (now Art. 114 TFEU). Countries, including EU Member States, are known to change their environmental laws as a means of improving the competitive position of their industries vis-à-vis those of other countries. Consider a country imposing requirements on wood related to the characteristics of the forest it is harvested from, the method through which is it harvested, and the ways in which the wood can be treated before reaching the final consumer. On the face of it, such requirements are not discriminatory when applying to both domestic and imported wood. However, it is equally possible that domestic products were traditionally harvested and produced through these practices, in which case such requirements will primarily affect imported products.

22  As a result, product requirements related to environmental standards can restrict free movement, which in the EU context would have a negative effect on the integration of the EU’s internal market. In this type of situation, the harmonization of national environmental laws through European legislation is common. For example, regulations on vehicle emissions set a uniform standard for vehicles produced in all Member States and create a level playing field while protecting environmental goals; these regulations serve an environmental as well as economic purpose.

23  The harmonization of environmentally related product requirements reduces regulatory diversity within the EU. Because the EU’s environmental protection standards tend to be high, this is often a net positive for the environment. However, a long-standing and controversial question is how much space Member States (should) have to adopt more protective environmental regulation once the EU has regulated on a specific topic by means of a directive. In principle, a Member State can maintain or adopt more stringent protection measures (see Arts 193 and 114(4) TFEU), but for new measures it would have to provide new scientific evidence or show conditions specific to its national environment that necessitate this deviation from EU standards (Art. 114(5) TFEU). Article 36 TFEU plays an important role here as it allows for prohibitions or restrictions on imports and exports on the basis of inter alia the protection of human, animal, or plant health. Similarly, environmental protection has been accepted as a justification for breaches to Article 34 and 35 TFEU within the Court’s jurisprudence on the ‘rule of reason’ (see Cassis de Dijon, generally, and the Danish Bottles case on environmental protection).

24  In most jurisdictions, environmental law developed to regulate three types of situations: situations involving pollution, including climate change mitigation; situations involving non-living natural resource management; and situations involving biodiversity or species management, including climate change adaptation. In practice, the management of these situations is in many ways closely linked, as a problem of pollution or excessive resource extraction will likely implicate biodiversity or species management. Similarly, an invasive species could negatively affect the availability or use of a natural resource, such as a water way or agricultural land.

25  However, the legal rules that govern these interrelated areas of environmental law tend to diverge in terms of their legal foundations, tools, and aims, particularly when it comes to natural resources of (great) economic value, such as fossil fuels, minerals, coal, etc. In many countries, and within international law, these resources are intrinsically linked to the concept of state sovereignty and therefore subject to legal regimes separate from environmental law (United Nations General Assembly Resolution 1803 (XVII) on Permanent sovereignty over natural resources of 14 December 1962). In certain jurisdictions—such as the United States—natural resource law continues to be viewed as a distinct and separate area of law from environmental law.

26  Moreover, many of the effects related to these situations, for example nuisance caused by pollutive activities, were long regulated through tort or property law, based on the potential damage to private property caused by the environmental impact, rather than through environmental law in light of the environmental damage itself. The private law roots of some areas of environmental law and the natural resource aspects of some environmental issues are important in the EU context as they affect the interaction between EU environmental law and Member State law on these topics, and add to the difficulty of capturing the true scope of EU environmental law.

27  A central question for environmental law is why these three situations may be problematic and what priorities should be set in regulating them. For example, pollution control takes place in situations where there is an excessive or unsustainable concentration of unwanted materials in the air, water, or soil. From an anthropocentric perspective, the reason why we consider these concentrations excessive or pollutive is because their presence has a negative effect on human health, or on the health of non-human organisms or the relevant ecosystems, that in turn often have negative economic or social effects, for example when areas become unfit for agricultural activity or habitation. If one were to adapt an ecocentric perspective, the pollution of the environment would be troubling at potentially lower, or higher, levels depending on the ecological consequences of the pollution, not the human effects. Though technically possible, it is uncommon for a single piece of regulation to consider and balance both perspectives.

28  Article 191(1) TFEU lists the following EU environmental policy objectives: ‘preserving, protecting and improving the quality of the environment; protecting human health; prudent and rational utilisation of natural resources; promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’ In terms of objectives, the substance of the EU’s environmental competence has remained much the same since its initial iteration in Article 130r SEA.

29  In the EU’s environmental objectives, we find explicit reference to human health, and only an implicit mention of biodiversity and species management as part of the quality of the environment. This speaks to the question of whether the EU’s environmental policy is primarily anthropocentric or ecocentric. As most areas of law, EU environmental law is mostly anthropocentric. However, this does not prevent the adoption of ambitious environmental quality or protection goals. In fact, the EU is often seen as setting particularly high environmental quality standards in comparison to other developed and developing economies. Similarly, the EU’s Green Deal, while ambitious in terms of environmental and climate goals, still contextualizes these goals through reference to economic and social standards and goals (Ossewaarde and Ossewaarde-Lowtoo).

30  Apart from the objectives listed within the environmental chapter (Chapter XX TFEU), we find reference to the environment throughout the Treaties. As already mentioned, Article 3(3) TEU links the development of the internal market to a ‘high level of protection and improvement of the quality of the environment’. The centrality of environment in EU policy more broadly is emphasized in Article 11 TFEU which provides that ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development’. This so-called ‘integration principle’ is an example of a horizontal provision that aims to insert environmental considerations into all EU policies. The integration principle is also echoed in Article 37 of the Charter of Fundamental Rights. The effectiveness of these provisions has been difficult to monitor or enforce. Finally, environmental considerations are explicitly referenced within Article 114(3) TFEU on the internal market, which provides a basis for the high level of protection—one of the principles of Article 191(2) TFEU—to act as grounds for Commission proposals.

31  The normative core of EU environmental law is heavily influenced by the principles listed in Article 191(2) TFEU which provides that ‘[Union policy] shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter pays’. Each of these principles are expanded upon in separate entries of this encyclopaedia. In brief, the precautionary principle seeks to minimize harm from unknown environmental risks; the principle of preventative action seeks to minimize harm from known environmental risks; the ‘rectification at source’ principle tries to prevent further ham by addressing the source of the environmental problem; and the polluter pays principle aims to ensure that costs are internalized by those engaged in a polluting activity.

32  In preparing legislation, the Commission has to show how a legislative proposal respects the principles in Article 191(2) TFEU. In addition, the EU should take account of ‘available scientific and technical data, environmental conditions in the various regions of the Union, the potential benefits and costs of action or lack of action, the economic and social development of the Union as a whole and the balanced development of its regions’ (Art. 191(3) TFEU). The procedural requirements of Article 191(3) do not amount to substantive principles but nevertheless provide guidance to its regulatory approach (see also Kingston, Heyvaert, and Cavoski, 93). Every proposed directive or regulation is accompanied by an Impact Assessment, which provides details on compliance with these principles, as well as with general EU principles such as subsidiarity, proportionality, and non-discrimination. If a legal act is found to violate any of these principles, it should not be adopted; the violation of a general principle of EU law can be grounds for invalidating the legal act (see Art. 263 TFEU). The actual enforcement of this by the Court of Justice is complicated by the fact that the EU legislator enjoys considerable discretion in its interpretation of these principles.

33  Once EU environmental law has been adopted, the legal principles of Article 191(2) TFEU also play an important role in guiding its interpretation by the Court of Justice. The jurisprudence of the CJEU has been formative for the development of each of the environmental principles and is discussed in detail in their specific entries. It is worth noting that apart from guiding interpretation of EU law, the Court has also used these principles to justify actions by the EU and Member States with respect to the environment more generally (see eg Case C-219/07, and C-405/92).

34  The core EU institutions involved in EU environmental law and policy are the European Commission, the Council of the European Union, the European Parliament, the CJEU, and the European Council. Each of these plays a key role in the development and formulation of EU environmental policy but only the first three are involved in the EU’s (ordinary) legislative process. Most legislation related to the policy objectives of Article 191(1) TFEU is adopted through the ordinary legislative procedure. In line with the sensitive nature of some environmental situations—such as the regulation of natural resources—Article 192(2) TFEU further details that a special legislative procedure must be used—requiring unanimity voting in the Council combined with consultation of the European Parliament—with respect to measures that affect, inter alia, quantitative management of water resources, land use, or energy supply.

35  In addition, the European Council shapes the EU environmental policy through agenda setting and provides important political support for developments. The CJEU, on the other hand, plays a crucial role in interpretation and application of EU environmental law, for example through preliminary rulings. Both the Commission and the Court are central to the public enforcement of EU environmental law.

36  All EU institutions involved in the legislative process have dedicated staff that work on environmental issues. Within the Council, environmental decisions are primarily taken by the Environmental Council—the configuration made up of Member States’ ministers responsible for environmental matters. The Environmental Council was established in 1973 and meets roughly four times a year. Within the European Parliament, the work of the elected Members of the European Parliament (MEPs) is facilitated by the Environment, Public Health and Food Safety Committee (‘Environment Committee’), also established in 1973. Apart from scrutinizing legislative proposals, the Environment Committee also oversees the work of several EU agencies, specifically the European Environment Agency, the European Centre for Disease Prevention and Control, the European Chemicals Agency, the European Food Safety Authority, and the European Medicines Agency.

37  The European Commission’s role with respect to EU environmental law cannot be overstated. The Commission’s environmental activities are not, as may be expected, the work of one Directorate General (‘DG’), eg DG for Environment. There are several DGs that affect EU environmental law and policy – such as DG Climate Action and DG Energy – and the coordination between them is at best complex, and at worst lacking. One of the most important powers of the Commission is its exclusive power to create legislative proposals, also in the environmental field. The highly technical proposals of the Commission rely heavily on the input from external experts, such as those from the Scientific Advice Mechanism.

38  Since 2019, one of the Vice-Presidents of the Commission, Frans Timmermans, is in charge of executing the EU’s flagship Green Deal initiative and oversees the DG on Climate Action (CLIMA). There are six other Commissioners, each in charge of one or more DGs, who are part of the ‘European Green Deal’ group, under which most environmental policy is created: health and food safety (DG SANTE); transport (DG MOVE); energy (DG ENER); environment, oceans, and fisheries (DG ENV and DG MARE); agriculture (DG AGRI); cohesion and reforms (DG REGIO and DG REFORM). Some of these Commissioners are also part of other Groups, such as ‘Promoting our European Way of Life’ in the case of Ms Kyriakides, the Commissioner of Health and Food Safety (2019 – present). Each of these DGs varies in size, budget, and staff.

39  Apart from these core institutions, there are also several agencies and bodies that influence EU environmental law, which include the agencies under the auspices of the Parliament’s Environment Committee, including the European Environment Agency (EEA), but also the European Investment Bank, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), the European Economic and Social Committee (EESC), and the Committee of the Regions (CoR). The workings of these agencies and bodies are set out in detail in other entries of this encyclopaedia.

40  In terms of the general structure of EU environmental law, it is important to note that the position of these agencies and committees—though each very different—is secondary and supportive to the other EU institutions involved in EU environmental law. They do not have legislative or enforcement powers, and play at most an advisory role in the legislative process. This coordinating function is nevertheless important since, as in other areas of EU law, there is a multitude of national actors that are involved in EU environmental law. As specified in Article 192(4) TFEU, the Member States ‘shall finance and implement the environment policy’, which makes these national bodies, and their actions, a central part of EU environmental law. While significant variations in domestic implementation can be corrected through the Commission, and if needed the CJEU, agencies such as the IMPEL help facilitate coordination and the sharing of best practices between national bodies. In light of the broad scope of the environmental acquis and the variety of national circumstances, this supportive coordination and information exchange function—alongside that of the Commission—is very important in maintaining a shared understanding of EU environmental law.

41  The sui generis nature of EU law—not quite national law but also not quite international law—is often pointed at as explanation for the creation of new legal concepts and tools within EU law. These concept and tools also affect EU environmental law, both in terms of its substance and in terms of its implementation and enforcement. At the same time, EU environmental law has created its own tools and principles, some of which have spread to other areas of EU law. Some of these developments are discussed in more detail in specific entries, for example with respect to the precautionary principle. Others will already briefly be mentioned here.

42  In the environmental acquis, directives are more common than regulations, though there are also important examples of the latter. Many of these directives take the form of so-called ‘framework directives’, such as the Water Framework Directive (2000/60/EC), the Waste Framework Directive (2008/98/EC), and the Marine Strategy Framework Directive (2008/56/EC). Some environmental directives are not called ‘framework directives’ but have a similar function, such as the Industrial Emissions Directive (2010/75/EU) which brings together seven directives related to industrial emissions within a single framework.

43  Legally speaking, framework directives and ‘normal’ directives are the same in their effects; their use in EU environmental law demonstrates the complexity of legislating certain types of environmental impacts—such as water or waste—and underline the Commission’s ambition to bring together legislation in these areas that historically developed in different directions and at different times. Notwithstanding the challenge of policy coordination within this vast area, these framework directives set out the overarching policy principles and objectives regarding certain environmental problems and allow for more streamlined approaches. For example, the Waste Framework Directive sets out the so called ‘waste management hierarchy’ which sets out general principles related to waste affecting inter alia water, air, soil, plants, or animals. The specific regulation of plastic waste needs to be in line with these principles but is tailored in additional legislation, such as the Single-Use Plastics Directive (2019/904/EU).

44  Despite these efforts to streamline and consolidate environmental regulation, the cost of the environmental acquis amounts to roughly €1.18 billion per year (Regulatory Fitness and Performance Programme (REFIT): Initial Results of the Mapping of the Acquis (‘REFIT Initial Results’, 58). At the same time, the estimated benefits for business in terms of improved resource efficiency have been estimated between €245 and 604 billion per year (REFIT Initial Results, 58). Nevertheless, the perception of the EU as a burdensome and overinvolved regulator has been pervasive in some industries and Member States, and has led to clashes between the Commission and Member States.

45  The EU’s ‘Better Regulation’ programme aims to ensure that ‘rules … deliver clear benefits to society while minimizing the regulatory costs necessary to achieve the desired policy goal’ (Overview of the Union’s Efforts to Simplify and Reduce Regulatory Burdens, 3). For 2018, simplification of reporting requirements in the area of environment was Priority 1 within the related REFIT, which assesses what can be done to reduce regulatory unnecessary costs and burdens. Apart from reducing burdens, the Better Regulation agenda also aims to increase transparency and ensure stakeholder engagement (Completing the Better Regulation Agenda: Better solutions for better results, 2–3).

46  The Better Regulation agenda provides a lot of information about the EU’s regulatory culture. A detailed discussion goes beyond the scope of this entry but it is worth emphasizing its effect on EU environmental law and particularly the types of regulatory tools used. The Better Regulation programme affects EU environmental law both in the preparation of legislation and in its implementation and execution. In deciding whether environmental regulation should be adopted, an impact assessment (‘IA’) is required. We already mentioned IAs as the point at which subsidiarity and proportionality concerns must be addressed (see above) but their role is broader than this: they must also include a discussion on the most efficient way to achieve policy goals without unnecessary burdens. Often this will include some form of cost-benefit analysis, even though its use is controversial regarding environmental issues due to the difficulty (moral and practical) of monetizing environmental harms and benefits. It is difficult to value an ecosystem, a species, or human health, especially across Member States that may attach different social, historical, or cultural values to certain environmental elements.

47  The Green Deal also explicitly engaged with the Commission’s Better Regulation tools through its green oath of ‘do no harm’ (Green Deal, 19). Specifically, the communication references an explanatory memorandum to accompany all legislative proposals and delegated act on the ‘do no harm’ principle, aimed at ensuring that all Green Deal initiatives achieve their objectives in the most effective and least burdensome way. This oath appears to extend to all other EU initiatives but it is unclear how this differs from the existing goals of the Better Regulation agenda.

48  An important factor in regulatory costs is the choice of regulatory instruments, which influences both the total cost of regulation as well as the distribution of costs between public and private stakeholders. For example, if there is already a functioning tax system, the regulatory costs associated to an additional tax are relatively low, both for the regulator and the regulatee. The creation of an entirely new instrument, such as an emissions trading scheme, can result in (initially) high regulatory costs for the regulator as new institutions to monitor and enforce need to be created, as well as for the regulatee who has to create new compliance mechanisms. In addition to these regulatory costs, there are the true costs of compliance, for example the technological changes that a company has to implement in order to comply with the emission reduction (policy goal). Decisions as to who bears which costs and when—initial investments in new systems as compared to long term and recurring compliance costs—are politically sensitive and often influence the choice and form of the regulatory tool.

49  Over time, many regulatory instruments developed within EU environmental law have been adopted also outside of the EU. For example, the EU’s chemicals regime REACH, which includes many complex processes related to the substitution of hazardous chemicals with better alternatives and information sharing, has served as the blueprint for many other national regimes, particularly for countries that have to access the EU market for related goods. The EU has also experimented with so-called ‘economic (or market) instruments’, most notably its Emissions Trading Scheme (‘ETS’) aimed at greenhouse gas reductions. Though its effectiveness has been questioned, the EU ETS remains the largest of its kind and is often taken as the starting point for future developments in emissions trading.

50  EU environmental law has also strongly influenced national administrative processes related to projects with environmental impacts. The Environmental Impact Assessment Directive (85/337/EEC, now 2014/52/EU) and the Strategic Environmental Assessment Directive (2001/42/EC) set out the impact assessments that need to be undertaken with respect to individual projects and ‘plans and programmes’, respectively. Both the Environmental Impact Assessment and the Strategic Environmental Assessment directives set out procedures for public consultation, information gathering, scoping of presumed impacts, and monitoring of actual impacts. Failure to fulfil the (procedural) requirements of these directives provides grounds to overruling administrative decisions regarding the permits given for related projects, which can have far ranging effects.

51  Another important influence on public participation in environmental matters is the so-called Aarhus Convention (Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998)). The EU (then European Community) has been a member of the Aarhus Convention since 2005. The Convention is implemented by the EU through several directives and regulations, including Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. In October 2020, the Commission adopted a proposal to amend this Regulation to improve public scrutiny of EU acts affecting the environment. Though the EU has an extensive legislative agenda related to the Aarhus Convention, the standing of non-governmental organizations (and individuals) with respect to environmental matters before the European Courts remains extremely limited, raising questions of non-compliance with the Aarhus Convention (see also van Wolferen and Eliantonio). Also at the national level, standing remains a contentious issue as Member States diverge in how they interpret their obligations under the Regulation (Lohse, Poto, and Parola).

52  There are few areas of environmental law where Member States continue to be the only or primary legislator. Even in areas where the EU has not legislated comprehensively or exhaustively—such as soil protection—the EU, for example through the EEA, plays an important coordinating and information gathering role. There are however a number of national processes that heavily influence the success and shape of EU environmental law and the reader needs to be aware of in order to fully picture the EU environmental law landscape.

53  First, Member States are responsible for the implementation of EU environmental law. As so much of EU environmental law is adopted in the shape of directives, they are left with significant discretion as to how to achieve the policy goals of EU environmental law. While there are clear environmental, economic, and social benefits to this approach, the challenge of ensuring proper Member State implementation is considerable (see eg Wennerås). Naturally this is true for all areas of EU law that are regulated through directives—and to some extent also for those regulated through regulations—but the Commission viewed the problem with respect to EU environmental law sufficiently severe to lead to the creation of the biannual ‘environmental implementation review’ (‘EIR’) process in 2016 (Delivering the Benefits of EU Environmental Policies Through a Regular Environmental Implementation Review, 5).

54  In the Communication, the Commission highlighted two effects of the implementation gaps that were particularly worrisome: first, the environmental, economic, and social costs of faulty implementation; and second, the loss of credibility of national and EU authorities in the eyes of EU citizens (Delivering the Benefits of EU Environmental Policies Through a Regular Environmental Implementation Review, 3–4). The creation of EIR has not (yet) resolved the implementation gaps in EU environmental law—particularly in waste management, nature and biodiversity, air quality, noise, and water quality and management—but it has helped to give a more accurate view of where implementation is lacking; without EIR, only legal enforcement procedures against Member States for breaches were visible. This number is underinclusive as not all breaches are followed up on by the Commission through an infringement procedure.

55  The enforcement of EU environmental law also takes place at the Member State level. Most public enforcement takes place through national authorities, either triggered by complaints from private parties or through discretion of said authorities. Most directives have been in place for a long time, meaning that they have been transposed into national law, which can be relied on directly by private actors in enforcing ‘EU’ environmental law. Nevertheless, actions can also be brought before national courts using the doctrine of direct effect. With respect to the latter, the use of directives in EU environmental law precludes horizontal direct effect, ie complicates the enforcement between private parties (see eg Traen, paras 23–26), even if the CJEU has been friendly towards reading the fulfilment of the requirements of direct effect into environmental directives more generally (Janecek v Freistaat Bayern). There are some ways in which national procedures can facilitate (or obstruct) the enforcement of EU environmental law, but even if those procedures fall within the Member State’s national procedural autonomy, this is restricted by the doctrines of effectiveness and equivalence to ensure the working of EU (environmental) law within the Member State.

56  Second, the ability of Member States to continue to adopt environmental laws or set standards unilaterally in view of the EU’s broad environmental mandate is often debated. For Member States to act when the EU has already legislated, Article 193 TFEU allows Member States to adopt ‘more stringent protective measures’, which must be notified to the Commission and in line with the Treaties. In addition, Member States can use Article 114(4)–(5) TFEU for measures that impact the environment but have been adopted as an internal market matter. In this case, ‘major needs’ must be demonstrated (Art. 114(4)–(5) TFEU) and/or new scientific evidence must be presented to the Commission (Art. 114(8) TFEU). In areas where the EU has not legislated, Member States are free to adopt legislation, as long as this is in line with general EU law, including state aid provisions, and public procurement law.

57  Environmental processes can affect, and be affected by, actions beyond national borders. The majority of EU environmental laws deal with exactly this type of environmental impact, as these are the areas in which EU competence is most easily claimed. In addition to these ‘European’ environmental issues, there are many environmental problems that extend beyond the territory of the EU. The EU’s environmental competence clearly incorporates this ‘external’ component: ‘Union policy on the environment shall contribute to … promoting measures on the international level to deal with regional or worldwide environmental problems, and in particular combating climate change’ (Art. 191(1) TFEU). The EU strives to be an international ‘green leader’, and invests heavily in multilateral solutions to environmental problems, relying on its market power to export its normative position on issues such as democracy, environment, and human rights.

58  EU external action on the environment is aided by the fact that the EU enjoys legal personality since the Treaty of Lisbon (Art. 47 TEU and Art. 335 TFEU). Moreover, Article 21(2)(d) and (f) TEU provide that ‘[t]he Union’s action on the international scene shall work to a high degree of cooperation … in order to: (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; … (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources’.

59  Notwithstanding these strong statements on the EU’s role in international environmental action, environmental policy continues to be an area of shared competence, which means that the powers to act ‘internationally’ remain shared between the Member States and the EU (see also Art. 191(4) TFEU). In these situations, the EU establishes a joint negotiation position and takes the lead in negotiations; Member States continue to be involved in determining negotiation strategy, in the negotiations themselves and, at times, in the signing and ratification of resulting treaties. At times, this situation can create questions, within the EU and outside of it, regarding who ‘speaks’ for the EU on environmental issues and who is primarily responsible for its international obligations.

60  Importantly, Article 3(2) TFEU sets out that the Union shall have exclusive competence over international agreements that are either provided for in EU law, or are necessary to enable to EU to exercise its internal competence, for example when such a treaty may affect EU internal policy. There are many examples of this related to EU environmental law, particularly with respect to climate change. In circumstances where international negotiations and agreements may affect the environmental acquis, the EU effectively acquires ‘exclusive’ external competence.

61  While the EU attempts to use its economic and political power to influence international environmental decision making, its internal policies are also heavily influenced by (lack of) international developments. A well-known example of this is the development of the EU’s climate change goals in the run up to the Paris Agreement, which were made explicitly contingent on the agreement of a legally binding international agreement. Though the EU is a powerful negotiator, it cannot always force international agreement or action. In these situations, the EU has also acted unilaterally.

62  For example, the EU decided to include aviation in its emissions trading scheme and extended this to include non-EU companies due to lack of progress on the mitigation of aviation emissions through the International Civil Aviation Organization (ICAO). The political (and legal) backlash to the EU’s plans was immediate—see Air Transport Association of America v Secretary of State for Energy and Climate Change, which confirmed the validity of Directive 2008/101/EC amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community. In the end, the EU decided to postpone the inclusion of foreign carriers and continue to negotiate within the ICAO. This has led to the creation of the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) under the auspices of the ICAO in 2016, which will come into force in 2021. More recently, the Commission has indicated that it plans to adopt carbon border adjustments as part of the Green Deal, designed to be in line with World Trade Organization rules (Green Deal, 5).

63  The EU is one of the most prolific environmental legislators in the world. It regulates an incredibly complex environmental reality, spanning 27 Member States which are home to a wide variety of habitats and species. The technocratic nature of the EU legislative process is often seen as an advantage for the regulation of environmental impacts that have long time horizons, and the EU has done much to improve public participation on environmental decision making. Nonetheless, implementation gaps continue to undermine the ambition of EU environmental directives and regulations. The 2019 Green Deal shows a renewed ambition to successfully combine the EU’s economic and environmental ambitions so as to ensure a sustainable and competitive European economy and society. Towards the wider world, the EU leverages its economic position to export and impose its standards on third countries. Its emphasis on multilateralism means that the EU’s internal environmental goals are similarly influenced by international negotiations and developments.