Chapter 1 from Environmental law and policy in the United States and the European Union. Praeger Publishers, West Hartford. © Randall Baker 1996.
THE RATIONALE BEHIND THIS STUDY
This book arose from a long-standing association between the School of Public and Environmental Affairs at Indiana University and the Public Administration departments of both Erasmus University, Rotterdam, and Leiden University in the Netherlands. More specifically, it developed from a summer program on the theme Environmental law and policy in the European Union and the United States taught in Rotterdam. Conducting this course illustrated to the instructors the gap in the literature comparing these, the two most economically developed areas on earth, and how they go about tackling the whole range of environmental consequences of their rapid development and considerable prosperity. Both are developed democracies sharing many of the same values, and to some extent, similar political and administrative structures and demographic trends. However, study reveals that there are many differences at all levels of actors, institutions and instruments. The opportunity was seized, therefore, to invite some of the most well-informed authorities in Europe and the United States specializing in environmental law and policy to consider the ways in which the two leading economic regions are dealing with, or not dealing with, the by-products of prosperity, regional variations in wealth, resource use and preservation, compliance, and other policy and law-related matters.
Why Comparative Study?
The value of comparative study is not always perceived, and all too rarely makes its mark on the preparation of our public servants and policy makers (Baker 1995). But it has real value, and though this book is not about comparative study per se, it is worthwhile to consider for a moment the intellectual and applied value of such an approach. This may be summarized as follows:
The comparative method provides a laboratory for evaluating alternative policy options to similar problems, especially where the overall political framework is, at least, based on shared principles (democracy, private enterprise, the market economy, etc.). Without this comparative view, then there is a tendency to consider that everything in the domestic policy arena is either "generic," as many of our text books suggest, or that everything is utterly specific to one set of national ethic, historical evolution, and cultural mores, therefore having no heuristic value. In the United States, for instance, the system evolved largely out of the bitter experience of the colonies with unrepresentative, oppressive government, the overthrow of which required the codification of a set of new defining principles by which to live as citizens, and which still define a uniquely "American way." Immigrants came to this country, often from Europe, to escape the injustices that prevented them realizing their full human potential "back home." In parts of Europe there was often no such defining moment until much later, and perhaps, instead, change came as a result a residual acceptance of a much more interventionist role for the state, albeit as a "welfare state," though this personal view is arguable. Still, the populace in both areas has expressed, particularly since the 1960s, an abiding concern with the environmental consequences of unregulated growth and expansion.
In a recent (1989) Harris poll, conducted for the United Nations Environment Program (UNEP), it was stated that:
Very large majorities—between 75 and 100 per cent of both the public and the leaders surveyed in all 14 countries—agreed on the need for stronger action by their governments, stronger action by international organizations such as the UN, and stronger laws to contain industrial pollution. . . . Furthermore, they were willing to see an increase in taxation to deal with the problem. (UNEP 1989, p. 14).
In terms of practical implications, one writer has noted the following reasons why people in the US need to understand how the EU makes environmental policy:
1. The EC’s role in setting and implementing an international environmental agenda: The EC is a party to an increasing number of international agreements, and will play a major role in setting the world agenda.
2. Rapid growth and range of EC environmental policy: While Europeans often looked to the US for environmental management models in the 1970s, the exchange is becoming more balanced in the 1990s
3. EC Single-Market impact on trade and environment issues: as the EC [expands] trade and environment issues are becoming increasingly contentious for the EC and the US. Understanding how the EC operates will be essential to finding ways to achieve both environmental and trade goals.
4. EC influence on other countries: A familiarity with EC policy is essential to understanding the domestic policies of its member states, the EC’s influence is not confined to its present members (Keys 1991: VII/VIII).
While the aim of comparative study should not, for obvious cultural reasons, be to "copy" other nation’s apparent success stories, by considering other approaches policy makers and administrators gain a new perspective on the way that they themselves evolve policy, legislation, management approaches, and parameters of success. The comparative approach allows us to hold up a mirror to ourselves—providing the basic institutional parameters of the two or more parties are roughly comparable. Otherwise, we tend to internalize too much of the process so it never becomes truly explicit, or we never consider sufficiently the provenance of our institutional actions.
It may be valuable, at this point, to stress what comparative study is not. It is not a study of one country, followed by a study of another country. That is to say, it is not essentially descriptive. Instead it focuses on process so that we may better understand the way things happen: not what happens. I have tried to remain faithful to that precept throughout this book, and the various contributors have kept both regions in mind while preparing their articles. In other words, we want to understand why law and policy in the two players is the way it is. Then, and only then, can we reflect on what we may learn from this analysis. We are not engaged in a study just of legal or administrative method, but of process. Of course, this has to allow for the fact that process, even when understood, is almost never static. It is instructive, for instance, to consider why, in the times of the great social novelists Dickens and Zola, there were no green parties or environmental lobbies to tackle questions indescribably worse than anything we can find today, when, by contrast both these groups are extraordinarily active. The explanation of the difference over time has to do with the evolution of the social order, the rise of the middle class, the power of unions and many other facets that are changing still. Even now it is hard to write about the European Union when there is little agreement about what it really is and where it is headed. In the United States the recent Republican congressional victory has given us the prospect of another shift in emphasis, both in terms of devolution to the state level of many federal competencies, and maybe toward diminishing the high level of regulation, legislation and institution building established after the passing of the National Environment Policy Act.
General Considerations of the two Entities
Our starting point in this book has to be a broad consideration of the nature of the two players: the European Union (EU), and the United States. Of course, one can state right away that the EU is not a country, and national sovereignty has been the touchstone of most of our analyses of law and public policy.
If, however, the EU is not a "country," it most avowedly possesses many of those attributes that have come to be characteristic of a political entity, including a parliament, binding legislation, sanctions, and even "ambassadors" (usually called Delegates) in nations around the world. It imposes taxes, mainly through the VAT system, and it turns up at international meetings, such as the Ozone Treaty negotiations, ready to cast votes.
The murkiness of the EU comes out in the international arena, when it is not clear whether negotiators are dealing with the collectivity or with the member states, on the basis of some arcane formula of "competencies." Consider the Montreal Protocol: In the London amendments to the MP on Substances that Deplete the Ozone Layer, member states accepted that the EC Commission had competence to negotiate percentage reductions in the production of ozone-depleting substances, since the EC had already passed a regulation covering such substances. It was also accepted that the EC had no competence over the question of a fund for the developing countries, since it had not adopted any legislation in this area (Keys 1991: 12).
But still the argument rages within the EU about the nature of relationship between the member states and "Brussels," much in the way the same argument ran in the Confederation of the United States directly after independence. The discussion, for instance, about a common currency is very recognizable in terms of progress to an "ever-closer union." Again, it is worthwhile to summarize some of the differences and convergences:
The US is bound by a constitution; the EU by treaties (the only time that happened in the US was with the Indian nations). In the past state sovereignty meant that a state recognizes no authority higher than itself. Today, independence continues to be the cornerstone of the contemporary state system, but may no longer be a legal absolute. Among the European Union states, it is still the treaty mechanism (e.g. the Maastricht Treaty formally known as the Treaty on European Union, 2/7/92), but these treaties contain material that is now usurping the competencies of statehood. That is why it is so difficult to say what the EU is. But it is still all done by treaties—though treaties that create legislative powers and parliaments. Treaties, as Bismarck reminded us, are harder to enforce than sovereign laws. The member nations of the EU exert far more influence over Brussels, than do the US states over Washington. Governors do not appoint US senators and congresspeople for their states; yet, in contrast the governments of EU member states do appoint their own commissioners. Member states of the EU can also challenge the center in a way not possible here: the British refusal to sign the social charter, or Spain’s attempt to block legislation if there were not more provision for expenditure on poorer member states, provide examples. The US exemplifies federalism in most areas of governance. While Europe is building supranational institutions and organizations, a great deal of the work is still accomplished through less centrally structured, intergovernmental bargaining and positioning (posturing too!). In a sense, the EU’s approach is more succinctly relying on the practice of confederalism. The key question is whether the EU is an international or supranational organization, and this view varies between, for instance, France and Germany, and that held by the United Kingdom.
Too much of what goes on in modern life transcends the nation-state and its government. Yet systems of government that attempt to follow by transcending national administration have not yet achieved loyalty and legitimacy. . . . Ross Perot and "the great sucking sound of free trade with Mexico, Europe’s post-Maastricht tension—all these are partly traceable to these two problems—that supranational government is inevitable but still not acceptable, and that even well-established nation-states can no longer confer an adequate sense of identity upon their peoples. It is interesting to note that the much vaunted "new world order" is floundering in matters of politics and morality but is taking root in the economic sphere, which is. . .where the need for it is hardest to deny. (Nicholas Colchester, New York Times, July 17, 1994.)
The parallels between NAFTA and the EU bringing disparate countries into some sort of common system of standards relating to the environment. We live in times of unprecedented geopolitical reconfiguration as huge trading blocs emerge, providing the impetus to further union later. This phenomenon may be seen in NAFTA, the EU, APEC in Asia, and Eastern and Southern Africa. In both cases considered in this book the process uniting old territorial competitors (France and Germany, The United States and Mexico), and is really charting new territory, and in both cases the environment had nothing to do with the purpose of the institutional innovation, but has come to play a central role in relation to public emphasis on this policy area. The original intent of both structures (and, indeed the original proposal for NAFTA) was essentially economic, though the fathers of the EU (Monet and Schuman) had a broader vision; the instruments were those of trade and capital-movement liberalization. However, from the beginning, the EU included the element of labor mobility, which NAFTA definitely does not. The economics of trade harmonization, however, creates the need for many of the other changes (standards, labor rights, social charters, recognition of qualifications, etc.).
The apparent convergence of power with subsidiarity (Subsidiarity is defined by the European Union in terms of the environment in the following manner: "Environmental policy will only be executed at the Community level if the objectives of the proposed action cannot be achieved by the member states individually, and can, by reason of the scale or effects of the action, be better achieved by the Community.") in Europe, versus the resurgence of "New Federalism" in the USA. But, is this divergence or convergence? The caricature used to be interventionist statism in Europe versus rugged (market) individualism in the USA; but the former is too expensive and unwieldy, and the latter allows people to drop out of the bottom of the system, and allows for irreversible environmental decisions of a short-term nature in pursuit of reckless gain. In effect we may not be looking at a growing centralization tendency around Brussels versus a devolution of funds and power from Washington: instead it may be a move toward a workable common ground, and away from the traditional differences that have typified the United States and many parts of Europe.
The trade/environment, or economics/environment dichotomy. In the US we see this in the conflicts over trash hauling and the Interstate Commerce clause of the Constitution, as well as the implications of NAFTA for compromising existing US gains in policy and standard-setting. In Europe we have seen the rush toward standardization and free trade running into problems with national domestic agendas for standard-setting, e.g. the Danish law on recyclable cans and refillable bottles being construed as a disguised restraint on trade. Free trade is seen by some, in both areas, as undermining the "national" attempts to conserve and protect. The European Court of Justice found in favor of Denmark on the basis that while Danish law does disadvantage the foreign bottlers, the environmental benefits of most aspects of the law outweighed the constraints on trade. The US Marine Mammal Protection Act was inconsistent with GATT when it forced an embargo on Mexico (a NAFTA partner) because of the way that Mexican tuna were caught (snagging dolphins in the nets too). The US felt that they had to act on this to prevent the reflagging of the US fleet to avoid US protection laws. The Netherlands proposed a law on unsustainably-logged timber that had serious implications for trade.
Information: Though the EC puts a premium on "timely information," such information is usually not forthcoming. Americans are accustomed to relatively accessible legislative records and committee reports. Such a tradition of public disclosure does not exist in the European Union’s bureaucracy, where policy making is generally characterized by closed doors, secret diplomacy, and meeting minutes that are generally not accessible. The effect, as one observer commented, is that "important aspects of EC legislation become incorporated into the Commission’s proposals during negotiations without it being possible for outsiders subsequently to know who is responsible for the changes and why" (Wilkinson 1992: 233). Obtaining information from the European Union’s constituent member states is often no easier. While the US has the Freedom of Information Act, the equivalent in the United Kingdom is the Official Secrets Act, which places strong controls on the flow of information. Similarly France is very secretive, whereas Greece probably doesn’t have the information. There is a Freedom of Access to Information on the Environment directive (1990) making a wide range of environmental information available to the public, upon request. But officials have broad discretion in refusing this on the grounds of business confidentiality. However, this applies to member-state information, not to that held by the Community.
The Evolution of Environmental Policy
The main initiatives, in both areas, date from the heady times of the late 1960s and early 1970s; the time of considerable public unrest, distrust and demonstration against unfettered authority. At the global level this resulted in the Stockholm conference of 1972 and a sudden growth of institutions around the world with an environmental remit.
Neither region was founded on any sort of environmental consideration, and both arose from a need for economic cooperation and broad political considerations. The environment came relatively late in the game. The first environmental considerations appeared in Europe in 1972, though the record in individual member states was much more variable. However, the early rulings were only loosely enforced and took very much of a back seat compared to economic and social issues. EU directives are all too often ignored, or simply seen as "guidelines" by member states (de Meana 1990. 12). Both regions also have to deal with the fact that there are great disparities in regional wealth, and poorer communities are often compromised over the apparent conflict between economic development and environmental regulation. In the Union this has led to pressures between the poorer south, and the richer north. However, the EU contains mechanisms for the redistribution of wealth to poorer regions in the belief that richer areas are proportionately less polluting than poorer ones, and that with increases in GDP decreases occur in pollutants such as sulfur oxides, particulates and lead. In the USA there is no such regional redirection of funds, and the argument is more along the lines that poorer regions have lower labor, land and capital costs, which are attractive for business to relocate spontaneously. The corollary of this has been that "dirty" and dangerous industries naturally migrate to poorer and politically less prominent areas, sometimes the consequences taking on ethnic overtones with discussions of "environmental racism."
In both cases the broad aim might be stated as an attempt to set uniform standards across an area that contained units with the existing rights to regulate many of the parameters of the environment. This took the form of an interplay between a central body setting the "floor standards" and sovereign, and semi-sovereign entities with their own actors, instruments and institutions. In Europe the question of subsidiarity with the DGXI (The EU directorate with competence over the environment) setting floor standards (like the EPA), and then discussions occurring over subsidiarity questions and the tussle between central "authority" and the traditional rights of member states who, sometimes, felt imposed upon, and in other cases felt that their existing achievements with regard to the environment were compromised
The EC has placed great emphasis on the harmonization of standards, and this is one of the concerns because it can pull some states down from gains they have already achieved. One Danish environmentalist noted that the goal of the "majority" of EC environmental measures is: "not to achieve better protection of the environment and the public health but to prevent a single country from setting more rigorous environmental demands" [that might hinder free trade] Keys 1991. p.9.).
In the United States the same sort of resentment occurred, especially in light of the considerable powers of the EPA, and the issue of unfunded mandates which imposed costs and responsibilities on the states without an associated increase in funding. This led in Indiana to the suggestion that responsibility for the Clean Water Act be handed back to Washington. Both entities, in essence attempt to establish floor standards (harmonization) to prevent environmental quality being traded off in an interstate competition for economic development. The EU, however, has no equivalent of the EPA which has the power to implement policy through regulations and to pursue enforcement against those not in compliance (an inspectorate and sanction function). In its earlier phases, EC environmental policy was largely driven by the imperatives of trade liberalization. In the last decade, the scope ... has broadened dramatically, and it now represents an integrative force within the EC in its own right, influencing other EC policy areas such as agriculture and regional development.
It was the Single European Act in Europe in 1987 that put the environment formally on the agenda of the European Community by stipulating that all new Community laws with a bearing on the environment, including those contained in the move toward a seamless market in 1992, contain environmental safeguards. That Act contained four principles: polluter pays, prevention rather than just control, rectify environmental degradation at source, and the integration of environmental protection into other Community policies.
The environmental gains of the Single European Act were consolidated in the Maastricht Treaty of 1992/3 which, in Article 2, calls for the promotion of a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment. The Treaty goes on to call for a "policy" rather than specific actions in the sphere of the environment. The policy shall be based on the precautionary principle, aiming at a high level of environmental protection, and the integration of env protection requirements into the definition and implementation of all other Community policies. (Article 130r, §2). All these elements had been outlined earlier in 1987, but became more strictly codified at
The approach [of the Community up to 1992] was corrective rather than preventive. The Community made a significant change of policy in December 1992 with the adoption of an action program entitled "Towards sustainability.’ Rather than being merely focused on env protection, the program addresses the form of our future growth management. The Community will set minimum requirements. Individual EC countries are free to fix national standards which are higher (as are US states). . .In future, all EC policymaking will have an environmental dimension. Draft laws on agriculture or transportation policy, as in other sectors, will each be assessed for their environmental impact before being submitted for adoption to the member governments. The Community. . .recognizes the special need of its poorest members. . .The Cohesion Fund (the regional program) set up under the Maastricht Treaty on European Union will provide them with cash for environmental projects as a matter or priority. . . . (Commission of the EU Communities. 1993, p.1).
In general, the European Union has moved away from the old control mentality to full integration of the environmental component in its policy-making system. In the United States the regulatory program emphasized "command and control," specifying what steps had to be taken in compliance.
Compliance, Lobbying and Citizen’s Recourse
There is no doubt that the system prevailing in the US has more authority than that in Europe, though in the US there is a problem over enactment as so many of the cases end up in the courts where judges become arbiters of standards. Superfund, for instance, dissipates something close to 80 per cent of its resources on legal and administrative costs leaving little for its original intent. Furthermore, cases (and it is estimated that four-fifths of EPA regulations end up in court) can drag on interminably, and the EPA is often reluctant to be drawn into direct action that would make it responsible for the solution to any specific problem.
The US provides for action to enforce the law in court, including the imposition of severe penalties. Consequently, regulators and the regulated community have to be serious as there are many citizen action groups watching, and waiting to act. Europe, up to now, has been mainly a "toothless bulldog" and so there is less of a legal framework to ensure compliance by the subsidiary players. Article 171 of the Maastricht Treaty adds a considerable fine at the end of the citizen complaint procedure that previously ended only in a written judgment from the ECJ (a tedious, and largely ineffectual procedure). It is too soon to say whether Maastricht will really add teeth.
The practical significance of the environmental policy of the Union is often questioned, since there are no "environmental police’ to monitor the enforcement of EU environmental law. . . .A common environmental policy is vital for the EU because environmental problems are often of a transboundary nature and also because the internal market requires homogenous env standards. Eur-Op News. Brussels. Vol 3. 2. 1994.
So a major difference in environmental law between the EU and the USA can be seen in the area of compliance. The US has mandatory compliance that is strictly enforced by the EPA and the court system. The EU has only voluntary compliance because, until now, of a lack of a binding enforcement mechanism. The EPA has been given the authority by Congress to monitor and enforce the compliance with environmental laws in the US. The EPA, which can request injunctions, and the courts have the authority to issue fines and grant injunctions against firms found out-of-compliance with environmental statutes. Similarly, individual citizens have the right to file lawsuits using both tort law and federal statutes to bring polluting activities into compliance. The nearest equivalent in the EU to the EPA is the DGXI. The adoption of EU directives by member states does not guarantee practical compliance. The idea of subsidiarity presents another obstacle that can make compliance difficult. Only the states have formal relations and dialogue with the EU in Brussels. Philippe Sands of the Foundation for International Environmental Law and Development, writing in the European, August 4, 1994, stated:
I now advise in virtually all cases of environmental law that it is not worth the applicant’s effort making a complaint against the Commission. The process is subject to a political rather than legislative process, and any complaint is likely to disappear into a big black hole. Brussels has lost its ability to enforce its own laws.
One of the consequences of extending qualified majority voting in the Council of Ministers [after Maastricht] is that individual Member States will from time to time be obliged to adopt and implement policies to which they are opposed. This makes it likely that the non-implementation of EC environmental legislation will become a problem even more serious than it already is. Support from the new Cohesion Fund may help to sugar the pill. (Wilkinson 1992: 233).
In terms of lobbying Karen van Bergen has said
The focus of decision-making around 1985 was in Brussels. More recently lack of credibility (lack of enforcement and communication) has led to a shift back to member state level arising from frustration. Industry does not like this at all because it is a step backwards and undermines the credibility of the EU’s harmonizing function. One thing that industry misses is the measure of the cost of environmental legislation. EPA does this, but it is not done in Europe. ... By the time something is on paper it’s too late for lobbying. There is no formal comment, notice or rule-making procedure as in the USA. The EU is not seen as acting as an environment leader—more of a follower. NGOs are, in general, weaker and poorer in Europe than they are in the USA, partly as a result of the tax system. Access to courts is much more limited so citizens cannot really force governments to take action against polluters or—especially—themselves. The NGOs, however, did a lot of work on "greening" the Maastricht Treaty van Bergen 1994).
Part of the problem for the environmental lobby in Europe is the fact that the environment was never there in the original remit of the Community, which was an economic association looking at the benefits accruing from increased growth. To many inside the EU, environment came as an unwelcome afterthought to the competencies of the Community. Many of the European NGOs regard a lot of the Directives as substandard, with standards set at the "lowest common denominator" level representing the unanimous decision-making structure. The European Parliament is the most environmentally friendly body, and also the weakest. In other words, the essentially bureaucratic nature of the Union makes it difficult to target for lobby groups, who instead still tend to focus on the legislative mechanisms of the individual member states. Those member states, however, often drag their feet over compliance, and some take ten years or more to implement Directives.
A discussion of lobbies cannot fail to note the presence of Green Parties in many European states. Sometimes these hold swing votes, and can be extremely influential. They are represented, too, in the European Parliament. This is necessary because it is one of the only ways of putting the environment on the agenda, since parties tend to be more ideological than in the United States, and because the EU is, relatively, unresponsive to common lobbying practices. The power of the lobbies and PACs in the United States, as well as the citizen’s right to legal recourse, render such parties unnecessary, and they have never featured in the political spectrum.
In broad terms it might be possible to say that while the EU is moving, after Maastricht, to more integration of the environment in the policy process, the United States, with a Republican majority in Congress is, once more, speaking the language of deregulation. Here again, however, it may well be the case that both entities are moving toward a recognizable common ground rather than diverging. In this regard it is interesting to consider the interplay of economics and the environment. On the one hand, environment and natural resources are being "over-used," while on the other, labor, in qualitative and quantitative terms, is "under-used."
The remedy? Fiscal reform, says the an EU White Paper on Competitiveness and the Environment. Labor costs have been on the increase, a trend that needs to be reversed. To reap a double dividend, why not tax the consumption of natural resources and energy, and use these receipts to reduce labor costs? This, in turn, would boost employment prospects [remember the high rate of unemployment in the EU compared to the USA], especially for low-skilled workers. To attain the necessary critical mass rendering the double dividend option effective, tax reform of at least 1 percent of GDP is required. This roughly corresponds to the revenue raised by the proposed EU energy/CO2 tax. Both President Clinton and (former) President Delors favored this idea and it has been suggested that the US and Europe should take parallel action. (DGXVII (Energy) and DGXI proposed a $3 energy tax, rising to $10 by the year 2000—a 50 percent price increase on a bbl of oil). The price of energy was claimed to be too cheap. The proposal still on the table and it was said that this would be done only if the US and Japan followed suit.
At this point it may be interesting to consider the involvement of the US with NAFTA, though as stated earlier, NAFTA is a far more modest relationship than that which binds the European Union. Many of the problems within the EU are, by definition, still of a transboundary or Transnational form, and NAFTA ran into this problem with the environmental lobby prior to the fast-track vote in Congress. Keys has described the situation as follows
Environmentalists, accustomed to unified struggles against common enemies like air pollution and Ronald Reagan, have fallen to fighting among themselves over the NAFTA. Grass-roots organizations like Friends of the Earth say it will create a polluters’ paradise in Mexico and degrade America. Mainstream groups like the National Wildlife Federation say it all but guarantees a cleaner hemisphere. ... No previous trade agreement tackles as many pollution issues as NAFTA does. The General Agreement on Tariffs and Trade—the basic document governing international commerce—doesn’t even mention the word "environment." . . .NAFTA also protects the right of each country to set any standards it wants as long as the seek a "legitimate" environmental objective, are based on scientific data and apply to foreign and domestic products alike. . . .NAFTA explicitly binds all three parties to the agreement from creating "pollution havens" by ignoring environmental laws for the purpose of attracting investment. The trick is to insure that this pledge is honored. To that end, the side agreement sets up a three-nation mechanism, the Commission on Environmental Cooperation. Any country (or private group like the Sierra Club) believing that a nation is not enforcing its laws, can complain. If the commission finds a pattern of violations, it can impose fines of up to $20m on the offending country, and if that does not work, invoke trade sanctions (Keys 1991: p.4.).
The Structure and Approach of the Book
Following this general review of underlying themes comes a detailed consideration of the two systems: that of the United States and that of the European Union to ensure that we have a better conception of the contexts within which policy and law function. To set the scene, Willem van Hasselt, of the Dutch Ministry of Foreign Affairs takes a broad sweep at decision making in the two entities. Then follows a detailed look at the way in which the European Union has evolved since it is a far less familiar geopolitical unit than the United States in terms of governance. Its members are, after all, still sovereign nations, and that relationship needs to be explored and understood.
The third section focuses on the changing nature and adequacy of international law and treaties in the context of environmental management. In the first contribution Dr. Kaminga looks at the relationship between international law and sovereign states: an issue of considerable importance since the EU is a negotiator at Treaty discussions. In recent times, both entities have signed on to an increasingly comprehensive slate of international agreements that then get read into national law, whether at the Rio Conference, the Law of the Sea discussions, or the Ozone Treaty deliberations. The issues raised by the issue of compliance in relation to national accountability are tackled by Dr. O’Connell in relation to the supposedly "more open" US system.
The fourth section considers environmental law and policy in more detail in both cases. Ernst Klatte, formerly of Directorate General XI in Brussels considers the question of the evolution, operation and future of environmental management in the European Union. He has long expressed a concern that the overall situation is worsening, despite initiatives, and he considers this in the light of recent changes following Maastricht and the various environmental action plans. Lynton Caldwell, who had a hand in drafting the US National Environmental Policy Act writes, with Prof. O’Leary and Mr. Weiland, on the evolutionary picture regarding environmental management in the US.
In the fifth section the focus shifts to a more detailed, case-study basis and examines, first, the issue of air quality management, and then to water quality management. The case studies conclude with a further shift in focus down to the "member state" level with a contribution on how the process of water-pollution control has worked in both Maryland and Indiana, and in Europe, the case is based on the Netherlands where water pollution, especially from farming in such a densely-packed nation is an issue of considerable moment.
The sixth section looks at the way in which both entities handle transboundary issues. Naturally these arise frequently in the EU which is still a collection of sovereign states with elements of shared sovereignty. In the north American context the focus is on the Great Lakes, shared between Canada and the United States. In Europe the issue is that of the Rhine that traverses so many of the member states of the EU.
The final case study considers the issues of waste and packaging; natural by-products of the two richest areas on earth.
It is the hope of all the contributors that these original thoughts and cases will provide much material for comparative reflection. Indeed, a formal agreement is in place for the two entities to meet annually and to discuss matters of common concern. Better understanding this framework will allow those charged with environmental law and policy to comprehend the nuances and convergences in their respective parts. The challenge remains roughly the same on both areas; the resolve is there to engender improvement, and the challenge is considerable.
Baker, R. (1995). Comparative Public Management. Praeger.
Colchester, N. (1994). New York Times. July 17.
Commission of the European Communities. 1992. Protecting Our Environment. Brussels.
de Meana, R. 1990. Environmental Commissioner, quoted in Europe. October 1992. p.12.
Keys, C. (1991). The European Community and Environmental Policy: An Introduction for Americans. World Wildlife Fund. Baltimore.
van Bergen, K. 1994. Personal statement from the Environmental Committee of the US Chamber of Commerce, Brussels.
Wilkinson, D. (1992) "Maastricht and the Environment: The Implications for the EC’s Environmental Policy of the Treaty on European Union." Journal of Environmental Law. Vol. 4. No. 2.
United Nations Environment Program (1989). Our Planet. Nairobi. 1 (2/3).