DESIGNING ENFORCEABLE ENVIRONMENTAL REQUIREMENTS - EEC 

TURNER T. SMITH, JR., Hunton & Williams, 106 Ave. Louise, 1050 Brussels, Belgium

SUMMARY

This paper distinguishes two issues -- first, the problem of designing EEC requirements that member states can properly implement, and ensuring that they do so (i.e., the question of enforceability against member states), and second, the problem of designing provisions directly applicable to the regulated community (i.e., the question of enforceability against the regulated community). It notes the commonly held view that an implementation and enforcement deficit exists with EC environmental regulation in each case.

After a brief discussion of European regulatory style and the European debate over binding legal requirements in a field regarded as involving scientific and technical policy, the paper turns to the two issues noted above. In discussing the first, it sets out the institutional reasons for difficulty in achieving full implementation by member states, as well as some solutions being considered. It then illustrates the principles and elements of enforceable regulation as set out in the main speaker's paper in the context of each question.

1 INTRODUCTION

Over the last 20 years, the EEC has developed a considerable body of environmental regulation. Yet that corpus has been widely criticized -- by the EC Commission, by former members of the Commission, by the EC Parliament, and by commentators -- because it has not been, and in some cases cannot be, effectively implemented and enforced.

It is important at the outset to distinguish two separate, but interrelated, questions. The first is the enforceability of EC law vis-a-vis EC member states. The second is its enforceability vis-a-vis the regulated community.

Much of EC environmental law is promulgated as "directives" -- a form of Community legislation that in general must be implemented at the member state level before it can apply directly to the regulated community. Without adequate implementing provisions in member state law to fill out the regulatory framework, and to translate it into detailed rules, standards, permits and other requirements directly applicable to the regulated community, effective enforcement against that community cannot normally be ensured. Of course, some member states themselves face analogous issues due to their own governmental structure, and in these cases the directly applicable provisions must be promulgated, in turn, by Länder, provinces, or other regional entities, or by local governments such as municipalities.

In short, designing enforceable environmental requirements in a hierarchical system like the EC, requires (a) designing clear and unambiguous primary requirements (here EC requirements) the proper implementation of which can be assured at lower governmental levels, and (b) designing enforceable secondary requirements directly applicable to the regulated community, whatever level they emanate from. These issues are related, since each involves the art of drafting binding legal requirements addressed to third parties, involving emotionally laden matters and public risk decisions, resting on complex scientific and technical premises, and costing many millions to carry out. Yet they are fundamentally different as well. The first involves chiefly issues of institutional design and structure at the governmental level that go to the heart of the political system involved. The second, at least as to EC environment law that is mainly applied directly to the regulated community by member state enforcement agencies (the design and practices of which are beyond the scope of this paper), chiefly involves regulatory draftsmanship.

2 SOME IMPORTANT CONTEXTUAL MATTERS

Environmental requirements are always set in a particular cultural, political and legal context. Before proceeding further, and especially because the principle speaker's paper proceeds from the American regulatory context, it may be useful to take note of the EC regulatory context, and how it differs from the American.

2.1 Regulatory Style in the EC

Regulation in Europe is generally regarded as a "technical" or "political," and not a "legal" issue, though this attitude appears to be changing slowly. European government and industry, on the whole, have not in the past looked to legal counsel to assist in handling environmental matters. They have relied, instead, primarily on technical staff.

The Community regulatory process, furthermore, is largely nonadversarial and is the result of a slow, non-public, complex law-making structure designed to achieve political consensus among the member states. There is a close industry-government relationship. Industry, in the form of its national and European-wide trade associations, operates through contacts with national authorities, through "expert" advisory committees at the Commission, and through lobbying of the Commission, Parliament and COREPER. Proposed directives are made publicly available and are commented on by Parliamentary committees, but there is no free-wheeling, open political process similar to that found in the U.S. Congress. Nor is there a structured, open administrative process for promulgating directives or implementing regulations, such as the American notice and comment rulemaking process.

The rise of the "green" movement in Europe and the manner in which it affects environmental regulation is also of importance. The European "green" movement has had success in organizing political parties, but it otherwise remains largely a local, grass-roots effort. Neither it nor environmental groups generally in Europe have, on the whole, organized effectively yet at the EC or, in many cases, at national levels. To date, environmental groups do not have as sophisticated a grasp of the technical, scientific, and economic factors that play a crucial role in the details of environmental regulation as do their U.S. counterparts, and they have not lobbied nor litigated nearly as broadly or effectively.

By way of contrast, one can note that in the United States, law and lawyers have been central to the development of environmental policy, and coordinated efforts at the national, federal level have led the way. American regulation relies heavily on generic, federal administrative "notice and comment" rulemaking to achieve specificity and uniformity, and to gather the technical, scientific and economic data that form the premises for continental-scope public decision making. Those administrative rulemaking proceedings provide public, formal, and structured opportunities for citizens and industry to participate in the development of regulation through comments, public hearings and sometimes judicial challenges to rules. Federal judicial review has played an important role, at the behest of both citizens and industry, in forcing the executive branch to implement federal environmental statutes promptly and properly, and to justify its discretionary policy choices.

The "political" aspects of the American environmental regulatory process take the form of lobbying directed at the Congress, as well as less formal efforts to lobby the administrative agencies that establish, implement and enforce regulations. In the U.S., there are no "green" political parties as such; the struggle goes on within the confines of the existing party structures, but both parties endorse environmental goals. Strong, sophisticated, and well-funded environmental groups at the national level have prodded both industry and government, and have lobbied and litigated with great effect.

In short, in the United States, contending interests use legal processes in the judicial arena and before administrative agencies to influence the formulation and execution of policy. This is particularly true of citizen environmental groups who, with some frequency, use citizen suit provisions in federal environmental legislation as a means of influencing environmental policy and ensuring its implementation and enforcement.

2.2 The Question of Binding Legal Requirements

The premise for this panel seems to be that binding legal requirements should exist -- the main issue examined is how to draft and implement those requirements so that they can be easily obeyed and effectively enforced.

In Europe, however, the premise itself is likely to be challenged. First, as to enforcement against member states, the discussion below will show that the present system of EC governance is in many regards structured to enable member states to limit the scope and depth of EC legal requirements that are enacted, and thus that become legally binding on them.

Second, and perhaps more fundamentally, much of industry and some government officials (e.g., in the U.K. and the Netherlands) remain wedded to "voluntary" action and consensual "contract" or "covenant" approaches. Any form of legislation is stronger if it solicits input from and the support of the public and the regulated community, and these techniques accomplish both in the case of industry. The stakes in the environmental area (and the incentives to avoid control costs or to engage in "free riding" while others bear those costs) are now high enough, however, that if environmental regulation is to do the job that needs doing, voluntary efforts or covenants alone are unlikely to suffice. Further, the private sector needs, and generally prefers, legal certainty in the rules applicable to it and to its investments.

Finally, there is a tradition in some quarters in Europe that environmental regulation is a matter of policy, and as noted above, scientific and technical policy to boot. Lawyers and law are thought not to be required, or at best are to be suffered only at the point where matters must go to court, a point to be avoided at all costs if possible. On this view, it is the expert government administrators -- sometimes given great discretion by the European legislation -- who should apply policy case-by-case, frequently guided by informal administrative "rules of thumb" or "guidelines" as opposed to formal, detailed, legally binding rules. It is interesting to note that this same tradition held strong sway at the state level in the United States in the 1960's and is still alive in many states today. But for the same reasons that voluntary efforts and covenants alone will not suffice, "policy" alone is inadequate. Written, legally binding, and enforceable requirements are essential. And if enforceable legal requirements are to be had, lawyers, and an efficient legal enforcement process manned by knowledgeable judges, are essential.

3 PROPER IMPLEMENTATION OF EC LEGISLATION AT THE MEMBER STATE LEVEL -- THE INSTITUTIONAL ISSUES

3.1 The Problem

Much EC legislation, as noted above, takes the form of directives and must be implemented at the member state level. Even EC regulations, which are directly applicable to the regulated community, frequently depend on further implementation by the member states. In either case, where such "secondary" level implementation is required, its proper adoption and implementation is a prerequisite to effective enforcement against the regulated community.

By the Commission's own account, there are deficiencies in even the simplest aspects of formal compliance by member states. The deficiencies multiply when the more subtle aspects of compliance (e.g., involving the effectiveness of implementation) are considered.

The most fundamental reason for the implementation deficit is obvious, and cuts to the institutional heart of the Community. The Community has not developed the institutional powers in the Community institutions to ensure vigorous implementation of what is enacted, nor has their been the political will by member states, acting in the Council, to enact sufficiently precise legislation that member states can be easily held accountable for its effective implementation. The current debate over Maastricht and subsidiarity, and the cloud created by the Danish vote and the French vote, indicate that this situation may well not soon change. This section discusses the institutional problems; the next section discusses the precision of the drafting of the EC legislation itself.

The structural deficiencies in EC institutional arrangements are legion. First, the EC's legislative body -- the Council -- as presently structured in the Treaty of Rome is not sufficiently independent of the member states that it has the political will to draft legislation that will insure full member state implementation. Indeed, the legislative process in the Council frequently tends toward the "lowest common denominator," and has in the past resulted in subtle loopholes such as that described below pertaining to the Fresh Water Fish Directive. The problem seems mainly to be a lack of will, not a lack of power.

Second, there is no formal, rigorous or systematic process for gathering public input on the scientific, technical and economic information necessary to underpin sound and enforceable environmental regulation, nor any requirement that the legal and factual basis for the legislation as finally adopted be formally set out and justified, so that these bases can be easily tested and challenged. Thus, while public awareness, concern and indignation over environmental degradation and inadequate implementation and enforcement of environmental laws is growing, public participation in the law-making, law-applying and law-enforcing effort is weak in Europe. There is, in general, a lack of formal procedural rights that enable the public to participate in these processes and that enable it to hold member state executive and legislative branches accountable before the courts for adequate implementation and enforcement of the laws.

Third, the EC's judiciary -- the European Court of Justice -- is not presently structured so as to facilitate implementation of EC law by member states. The Treaty does not grant broad public access to initiate litigation to force member state compliance, and the Court does not have adequate remedial powers to compel full and faithful compliance once its jurisdiction is invoked. Further, "standing" rules in the member state courts do not, on the whole, allow a broad spectrum of interested persons to initiate litigation to challenge member state legislative or executive branch inaction or inadequate implementation or enforcement.

Fourth, the EC lacks an adequate Executive Branch. The Commission itself is small compared to the size of the implementation and enforcement task, has no offices or resident officers in all the member states, and has inadequate investigative and enforcement powers. Directorate General XI does not have the staff, the funding, or the powers to investigate member state implementation and enforcement systematically and comprehensively. It must rely largely on a complaint process in which it reacts to issues brought before it by others, and then can enforce only through the lengthy and cumbersome Article 169 process. The Commission has the power to propose legislation directly applicable in member states by using a regulation rather than a directive, but in the past it has seldom proposed legislation in this manner. The Commission itself also has no power to directly enforce member state legislative requirements on the regulated community when the member state fails to do so. The Council can delegate to it the power to promulgate regulations without further Council action (as it has done in the food area), but has not generally done so (except in the case of provisions for "adaptation to technical and scientific progress" in existing directives) in the environmental area.

Beyond these structural governmental issues, other institutional factors contribute. The Parliament is of the view that member states actively seek to use Community laws to favor national producers and to prefer economic or social development over environmental consideration.

Public interest environmental groups, which seldom litigate for the reasons noted earlier, tend not even to make good use of the publicity tools that are available to them, because those groups are politically (and frequently locally) oriented, and are usually technically and legally unsophisticated. Further, they frequently lack key information, since in most European countries executive branches and industry make a cult of secrecy and there are few effective legal rights of public access to government or industry information.

Many industries and government entities are not yet imbued with a compliance ethic in the area of environmental protection, and this lack can be particularly pronounced in certain countries and in the case of government-owned businesses or governmental facilities (which remain, of course, prevalent in Europe).

Finally, there is a significant problem involved in ensuring adequate implementation where the member state itself is a federation, or for other reasons has inadequate control or power to ensure that its constituent parts live up to its EC treaty obligations.

3.2 Solutions

The problems outlined above (that is, the problems of a higher level of government instructing a lower, and making it stick) are endemic to any hierarchical system of government, although they are most pronounced in a confederate or federal system. Their resolution is central to the development of effective and enforceable environmental regulation. Before turning to how best to ensure that legislation by a higher level of government is in fact properly implemented and enforced by a lower, it is useful to reflect on which sorts of things are best done at the higher level and which at the lower. To the extent that this question can be answered, the conclusions may offer guidance in the current "subsidiarity" debate within the EC.

3.2.1 Who Should Do What -- The American Federal Experience

There is experience to be brought to bear on this question in the specific context of environmental regulation. Americans have struggled since the days of the founding fathers with the relationship between levels of government. As Woodrow Wilson once said: "The question of the relation of the states to the Federal Government cannot indeed be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question."

Further, federal/state issues have been central to American environmental law since its inception. And environmental law has been an important proving ground for new ideas in the field of federal/state relations. When the U.S. Clean Air and Water Acts were first enacted, for example, they contained a complex balancing of functions between state and federal governments, a cooperative relationship that was then referred to as a "new federalism."

Over the years a consensus has developed in the U.S. on certain aspects of federalism in environmental regulation. First, if situations can be found where both the costs and benefits of an issue are national (i.e., federal) in scope, there is little question that federal decision-making is in order. Likewise, if situations exist where the costs and the benefits are both local or statewide in scope and fall within the same geographic area, again, there is little question. It is where the costs are all borne, or are largely borne, by a small group of people in one area while the benefits are nationwide or accrue to people in another area, or vice versa, that the real problems lie. In such cases -- which are the majority of cases -- the problem is to determine which level of government should decide, why, and using what principles. Beyond the question of matching costs and benefits with the proper decisional body, there are also considerations of decisional or implementation efficiency, market-place efficiency, avoidance of forum shopping, and assuring a level economic playing field.

It is generally thought in the U.S. that the federal government should handle (a) interstate pollution (where, for example, it is argued that the benefits of "acid rain" control accrue to people in the Northeast while the costs are borne by people in the Mid-West), (b) areas with economies of scale, such as training and research and development, and (c) cases where national uniformity or preemption is needed for various reasons, as in the following cases: first, so as to avoid burdens on commerce (for example, in regulating widely distributed products such as chemicals or automobiles); second, so as to strive for uniform health standards (to ensure that a citizen breathing air in Omaha will be protected to the same extent as one breathing air in Boston or Seattle, (with states retaining the right to profit from the natural assimilative capacities of their individual geographic position for discharge levels below these levels and relating to environmental (e.g., aquatic life) rather than public health matters); third, so as to avoid competition for new industry among states by lowered environmental standards (normally attained through use of uniform, minimum technology-based requirements); and finally, so as to preempt parochial vetoes of projects where important national (i.e., federal) interests are involved but the costs are locally borne, as with hazardous waste disposal and nuclear power facilities.

There is also consensus about many aspects of the proper state role. First, obviously, that it is a residual role under the U.S. Constitution (the states technically remain sovereign except to the extent of powers surrendered in the U.S. Constitution), that occupies whatever ground the federal government does not. Second, that for efficiency reasons and because they are closer to the messy details of the real world, the states should be the primary implementers and enforcers in most of the regulatory schemes (such as the Clean Air and Water Acts, although not in areas of product regulation like the regulatory scheme for production and marketing of chemicals in TSCA). Third, that the states are important laboratories for experimentation. Fourth, that decision-making should, in general, be decentralized in the interests of efficiency and increased political accountability. Finally, that the states should -- and in fact do under most of the environmental statutes -- always have the right to regulate more stringently, except where preempted by an overriding federal interest of the sort noted above.

It may be useful to compare the American consensus with the developing EC debate on subsidiarity. The EC began by attempting to "harmonize" member state provisions. It then shifted, with the advent of the single internal market, to reliance on "essential EC requirements" coupled with mutual recognition of member state actions. The Danish vote has now prompted a much more direct debate on the justification for EC level action, as part of the debate on the role of "subsidiarity." The Single European Act, of course, is quite explicit on the question of subsidiarity, providing the following language in Article 130r, para. 4. of the Treaty:

The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 can be attained better at Community level than at the level of the individual Member States.

It added in Article 130t:

The protection measures adopted in common pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty.

Other relevant provisions are Article 100(a), para. 3, which calls for a "high level of protection" for Article 100a measures "concerning health, safety, environmental protection and consumer protection," and Article 100a, para. 4, which allows for more stringent member state environmental measures, after notice to the Commission, if these measures do not constitute "a means of arbitrary discrimination or a disguised restriction on trade."

The current D.G. XI Commissioner, Van Miert, recently identified three key justifications for EC level environmental regulation -- first, the transfrontier and even global character of most environmental phenomena; second, the need to avoid barriers to trade and distortions of competition; and third, that the Treaty of Rome calls for the improvement in the quality of life of EC citizens, which "implies a minimum level of environmental protection throughout the Community and applies, in [his] opinion, to drinking water, to bathing water and also to the conservation of nature."

Van Miert's three principles are found in the American consensus, but the latter includes other areas as well. Further, the U.S. principle on a minimum level of protection is strongest as applied to public health driven standards and to the scientific premises behind other environmental standards (e.g., the water quality criteria necessary to protect aquatic life are federally set, at least initially), but the value judgements as to resource use and levels of protection (e.g., the uses to which water bodies are to be put and the aquatic species to be protected) are to a large extent left to the states (which, e.g., set water quality standards based on their choice of water body uses and federal water quality criteria for those uses).

Dealing with these matters requires struggling with generic structural and functional problems. The particular constitutional, historical and cultural context is, of course, crucial. But many of the analytical insights involving the proper division of authority and responsibility between higher and lower levels of government derived from one context -- for example, the American or the EC -- may be useful to those who are debating these or similar choices in other political and legal systems.

3.2.2 Ensuring Implementation and Enforcement -- The American Experience

Moving beyond the basic policy issues of who should be doing what, one can also look to the American example for insights into mechanisms for assuring implementation by the lower level of government. Many of these mechanisms are of statutory, not Constitutional, origin, but the Constitutional power of the U.S. federal government and its de facto ascendancy has enabled their adoption.

In the United States, the implementation of federal legislation at the state level is encouraged through a series of institutional and legislative devices lacking in Community legislation. First, there is a well staffed, trained and funded environmental agency at the federal level in the United States (the Environmental Protection Agency or "EPA"). There is also a great deal of publicly available monitoring data and other information, as well as effective freedom of information legislation at the federal and state levels.

Second, EPA must normally approve a state's implementing program in detail before the state can qualify to implement the applicable federal legislation. It reviews not just the state agency's formal powers and implementing rules, but also the adequacy of its organization, staffing and funding, and such matters as the adequacy of the enforcement process and penalty and fine levels provided under state law. EPA may withdraw a state's right to implement many of the federal regulatory programs if it judges the actual implementation to be inadequate. EPA normally has direct prior approval authority over specific state implementing actions, such as issuance of state-implemented regulations, standards and individual permits, before those measures can go into effect under federal law (although they sometimes can and do go into effect under state law without regard to EPA approval at the federal level). In the absence of an EPA-approved state implementing program, or of EPA-approved state regulations, standards or permits, EPA is normally required itself to promulgate directly applicable federal provisions. Should EPA fail to act in supervising (or superseding) state implementation where it has a duty to do so, it may be sued in federal court by citizens and environmental groups and forced to act. Lastly, EPA frequently threatens to withhold federal funding (on which many state environmental programs depend) if state implementation is deemed inadequate.

Enforcement in America is vigorous, and takes a number of forms. Nearly all of the major American environmental regulatory statutes require some form of publicly available self-monitoring and reporting. This system automatically highlights lapses in compliance and the need for enforcement. EPA has broad powers to inspect, sample and investigate, which it can use against both the states and their subordinate entities and against the regulated community. These can be invoked anywhere within the territorial limits of the United States, by federal officials, and can be enforced in independent federal courts throughout the country.

When EPA deems state enforcement to be inadequate, it normally has the authority to override the state's failure to enforce. In so doing, it has the power to itself issue an administrative order against the violator or, in some cases, to assess civil penalties on an administrative basis and to enforce its action in either case in federal court. Alternatively, it may take a violation directly into federal court for injunctive relief, and civil and criminal penalties. Should EPA fail to enforce (or to do so diligently), citizens and environmental groups can themselves normally prosecute the regulated party in a civil action in federal court to correct the violations or have civil penalties assessed.

3.2.3 Ensuring Implementation and Enforcement -- Community Solutions

The Community institutions have at their disposal virtually none of the mechanisms noted above. As noted earlier, DG XI has inadequate resources and investigative powers for enforcement of EC legislative duties against member states, and its enforcement remedies against member states are cumbersome and, in the end, toothless. At the level of enforcement of specific standards, requirements or permit conditions against an individual regulated facility, the Community can play virtually no role. Such enforcement is left up to the member states.

The Commission has used a number of techniques to enhance member state implementation and enforcement, many of which have been mentioned above. It has begun to propose more specific and precise legislation, to propose more implementing "daughter" directives, to use directly applicable regulations more often, and to consider use of rules for "industry categories" and specific "priority wastestreams." It has encouraged complaints and increased its filing of Article 169 proceedings. It has developed the Freedom of Information Directive to put more information in the hands of citizens. It has nurtured the development of the "direct effect" doctrine to provide better judicial remedies. It has begun to include interest group "standing" provisions in draft legislation (e.g., the draft Directive on Civil Liability for Damage Caused By Waste). It has attempted to enter into a dialogue with member state bureaucracies on implementation, and to promote new legislation requiring more effective member state reporting on implementation and establishing a decentralized member-state level public "complaints" mechanism, with the Commission intervening only if proper or timely resolution is not achieved by the member state. It has seen the creation of the European Environment Agency, although that body has no enforcement powers and as yet has neither home nor head. One recent Commissioner has even proposed the creation of a "Green" police force. Finally, the Commission has seen the development of the Maastricht provisions set out in note (15) that, if adopted as Treaty amendments, may help the situation.

Recently, the Commission has begun to speak out bluntly. Its Eight Annual Report to the Parliament on implementation of EC law is a clear departure from prior practice in this regard. That Report's new Annex C details the Commission's efforts and frustrations, and has led to the commentary in the two Parliamentary Reports previously mentioned. Thus, the issue is now very much on the public agenda.

Having encountered such great difficulties in trying to develop an effective "command and control" regulatory system in the directives issued to date, however, the Commission is now also engaged in a series of moves to bypass these problems (and the national legislation and bureaucracies causing them). It is considering the use of fiscal and economic measures in lieu of administratively driven control requirements. It is designing an Eco-Audit Regulation to provide, in effect, a comprehensive, universal substitute for the self-monitoring and reporting provisions that are lacking in many existing directives (as well, perhaps, as de facto new standards of environmental performance beyond current legal requirements). These eco-audits would have to be verified by independent outside auditors and there would be public disclosure of certain information. It is also drafting a highly significant directive on Integrated Pollution Control that, in addition to providing a uniform and comprehensive EC-level permit requirement and process, will require public notice and input during that process, new standards of environmental control (beyond those adopted in existing directives) to be imposed case-by-case, and compliance monitoring with the results being publicly available.

The Parliament has been active in analysis of the reasons for the implementation deficit in EC environmental law, and the two Parliamentary Reports noted earlier (note (4)) contain extensive views on this subject and suggestions for a multitude of actions in response.

For all the reasons noted above, however, the problems with implementation and enforcement of EC environmental law at the member state level are deep seated. They are not likely to be solved with a magic wand that creates an "EPA" of Europe or a "Green" police force. Their existence, like the existence of U.S. federal/state problems, teaches many lessons for others striving for effective implementation and enforcement of environmental laws.

4 PROPER IMPLEMENTATION OF EC LEGISLATION AT THE MEMBER STATE LEVEL -- DESIGNING ENFORCEABLE REQUIREMENTS

In addition to the institutional difficulties noted above, and to a considerable extent as a result of them, the way in which EC environmental legislation itself is drafted frequently contributes to inadequate member state implementation. These drafting difficulties illustrate many of the points made in the main speaker's paper.

The comprehensibility of EC environmental regulation (ignoring the special translation difficulties frequently introduced by, e.g., the "Euro-English" used in translations) is one of its strong points. Perhaps because it is drafted by the technical staff at the Commission and deals in "statutory" generality as to many issues, it tends to be simpler and less confusing then the complex, detailed and frequently overlapping and contradictory U.S. legislation drafted by U.S. Congressional staff. Where political compromises introduce ambiguity or confusion, as they inevitably do, the result is normally less disastrous than with U.S. legislation. This being said, however, there are many problems.

Many directives, particularly earlier ones, use only vague, general language to impose duties on member states, and lack the clear and specific criteria necessary for judging adequacy of implementation. The Parliament's Report on Implementation contains a good discussion of this point at 8-9, and supplies many examples.

Important examples exist that go to the heart of the Community's water and air regulatory programs. In the water program, the Dangerous Substances Directive required member states to "establish programs" to regulate List II (Grey List) substances, required "prior authorization" provisions and "quality objectives for water," with "emission standards ... based on the quality objectives." The quality objectives in turn were "to be laid down in accordance with Council Directives, where they exist." The programs "shall set deadlines for their implementation," "[s]ummaries ... and the results of their implementation" were to be submitted to the Commission, and the Commission, together with the Member States, was to "arrange for regular comparisons of the programs in order to ensure sufficient coordination in their implementation."

This language could have been usefully supplemented by details on the major policy issues that must inevitably be dealt with in designing the complex water quality regulatory program called for (e.g., what basis to use to set quality objectives where they had not been set in Community legislation; what mathematical modeling techniques to use to determine total allowable loads for each pollutant, to allocate those loads to individual dischargers, and to set the resulting permit limits; whether and on what conceptual basis mixing zones were to be used; and how the available assimilative capacity was to be allocated as between (i) existing users, and (ii) existing and future users). Nonetheless, the basic objective was quite clear, has been since 1976, and could have been implemented. Had it been, it would have constituted the bedrock of the EC water quality program, since it would have covered virtually all discharges and would have required some form of permit program with water quality based permit limits. It was especially important that it be implemented, since all List I (Black List) substances remain List II substances until the EC has gotten around to establishing specific "best technical means available" (BTMA) limit values and quality objectives for them, which it has been exceedingly slow in doing.

It was not, however, properly implemented. Indeed, the Commission has now moved against all 12 member states under Article 169 for failing to implement it. Further, there has been a general failure to develop the implementing plans and the necessary water quality objectives required by various of the other water quality directives and by the daughter directives.

While implementation has failed for a number of reasons (among them probably being the early split, as to the preferred basis for regulation, between U.K. preference for quality standards and Continental preference for technology-based limits), several things can be said about the drafting of the provisions themselves, beyond their general vagueness which has already been noted. There are no deadlines for member state development of quality standards or implementing plans, for the issuance of "prior authorization" permits, and for the prohibition of discharges not in compliance with such authorizations (this being only implicit in any case), or for submission of the required plan summaries and results of implementation. Further, there was no review and approval required by the Commission of the adequacy of the quality standards, the implementing plans or the individual "prior authorizations."

In short, the "guts" of the program, and the "guts" of the tools necessary for the EC to check on and control it, were omitted from the legislation. The result was a foregone conclusion.

The same general story exists for the necessary implementing programs for nonattainment areas under the air quality legislation. Similar problems have persisted, to a large extent brought on by the Commission's own slowness in following up with daughter directives, with limit value and quality objective regulation of List I (Black List) water pollutants, with BATNEEC regulation of industrial plants, and with detailed technical regulation of specific on-site or off-site waste treatment, storage and disposal facilities.

Turning now to the specific prerequisites for enforceable environmental regulation set out in the main speaker's paper, there are a number of examples where Community environmental legislation is so unclear that it would be difficult for a member state to know how to implement it when it tried to do so. For example, the Dangerous Substances Directive, the backbone of the EC water pollution legislation, provides for "limit values" for the most dangerous List I ("Black List") polluting substances. The basis on which the standards are to be set, however, lists both ambient quality and technology based criteria, with no intelligible indication as to relative weight to be given to each, or how to resolve the conceptual incompatibility between the two. It says that the limit values are to be set "mainly" on the basis of the ambient types of factors, "taking into account" the technology-based standard of "best technical means available" (BTMA). Another example of clarity difficulties is the "non-deterioration" provision of that same Directive, which says:

The application of the measures taken pursuant to this Directive may on no account lead, either directly or indirectly, to increased pollution of the waters referred to in Article 1.

But the Directive's definition of "pollution" is quite subjective, and the Directive clearly provides for authorization of discharges from new sources. Similar problems exist with the analogous "standstill principle" in the air quality directives.

In other cases, the EC Directives have failed in implementation because they did not precisely define their scope of application. The best example may be the Fresh Water Fish Directive, which "applies to those waters designated by the Member States as needing protection or improvement in order to support fish life." This Directive, as well as the Shellfish Directive, appear to provide Member States great latitude in determining which water bodies to designate and thus which water bodies and polluting sources must be regulated. The Bathing Water and Abstraction of Drinking Water Directives, while somewhat more specific, also allow great latitude. The result has been significant under-designation by Member States, and it is only in 1988 that the European Court of Justice has stepped in to condemn Italy for failing to designate a sufficient number of waters under the French Water Fish Directive.

Other issues of scope arise, for example, in the Dangerous Substances Directive, where nothing is said as to whether the "discharges" to be covered by the "prior authorization" requirement are limited to point sources only, or include rainfall runoff or non-point sources, nor whether "owners," "operators," or some other category of discharger is to be regulated.

Examples of failure to state the required standard of conduct also exist. The contradictory instructions in the Dangerous Substances Directive for the substantive test for setting List I limit values was mentioned earlier. Another example that goes to the heart of the EC air pollution control program is the provision, in the Framework Directive on Air Pollution From Industrial Plants, that new and modified Annex I facilities are to be issued the required authorization only where, inter alia, "the use of the plant will not cause significant air pollution." The term "significant" is not defined. The remainder of the substantive tests spelled out in article 4 are equally non-specific and arguably overlapping.

Many EC environmental directives, particularly those on air and water pollution, specify such technical aspects for monitoring compliance as analytical methodology and averaging times (although, as is generally true with U.S. environmental law, they give inadequate attention to the legal effect of the precision and bias of the methods in setting numerical standards or permit conditions and in enforcement of such numerical limits). Failure to specify other necessary aspects, however, such as the number of required air quality monitoring stations and how geographic representativeness of air quality modeling is to be assured, has lead to difficulties in ensuring adequate member state implementation. Further, in some cases (e.g., under the Framework Directive on Air Pollution from Industrial Plants), compliance monitoring methodologies have been left up to the member states altogether. Finally, the 1975 Framework Directive on Waste, applicable until the recent amendments take effect in 1993, contains no monitoring requirements.

Implementation problems caused by the lack of deadlines for member state compliance with the List II water quality objectives implementation program requirements have been discussed above. It is interesting to note, however, that there has also been non-compliance with the analogous implementation plan requirements for air emission sources in defined non-attainment areas, despite the existence there of explicit member state deadlines and reporting requirements.

To date, the EC has had no comprehensive permitting requirement through which self-monitoring and reporting requirements were required to be placed in all permits. The spotty permit and prior authorization requirements that have been adopted have generally not contained specific requirements that permits contain such self-monitoring and reporting requirements. Member state legislation and practice, while imposing such requirements in some cases, does not do so in all member states and the level of self-monitoring and reporting in Europe in general is not high. The Commission has had no legal tools available to it to force member states to include such provisions in permits.

The criteria of adoption in accord with correct procedure is much less important in the context of EC environmental regulation than it is in the U.S., since few if any formal procedural requirements exist (other than those determining who can act, in what order, and on what basis in promulgating EC legislation), and there are highly restrictive standing requirements that limit judicial challenges by the public in any case. Notwithstanding, however, there is one clear illustration of this point in EC regulation, and that pertains to the choice of legislative basis for promulgation of a directive, with the resulting consequences in terms of legislative path and voting basis in the Council. Here, there has been recent litigation by the Commission as to both the Titanium Dioxide Directive and the 1991 Amendments to the Framework Directive for Waste, where in each case the Council changed the legal basis chosen by the Commission from Article 100a of the Treaty to Article 130s. The European Court of Justice annulled the Titanium Dioxide Directive and the challenge to the Waste Framework Directive Amendments is still pending.

Standing behind these specific deficiencies in the way EC legislation is drafted may lurk a more fundamental and systemic problem. The European penchant for regarding environmental regulation as a matter of scientific and technical policy, rather than a legal matter, has been noted earlier. EC environmental legislation appears in the past to have been developed chiefly by the programmatic offices at DG XI, and it is not clear that they have always obtained the kind of early, continuous, and "hands-on" drafting assistance from their legal staff that yields sharply chiseled, easily enforceable legislation. Technical folk write legislation designed mainly to communicate with other technical folk of good will. Thus, they tend to see little need for careful and precise definitions of scope; clear and precise standards and criteria; specific "approval", permit, or other implementing mechanisms; or detailed self-monitoring and remedial provisions.

Lawyers, on the other hand, are trained to consider all the problems and "worst cases" that may arise in a situation, and to write documents, whether they be contracts or legislation, to anticipate and clearly resolve them. Further, enforcement lawyers will always assume that the person to whom the legislation is addressed will do everything in his power to avoid compliance if it suits him. They will thus attempt to phrase the legislation so that there is no alternative but to comply, and to comply exactly as the drafter desires.

Sadly, human nature proves the lawyer right more often than not. While unnecessary legalisms should be avoided in drafting legislation, there is no substitute for a close working relationship between lawyer and technical person at every stage of the drafting process if enforceable legislation is to result.

5 ENFORCEMENT OF EC LEGISLATION AGAINST THE REGULATED COMMUNITY

Turning now to enforcement against the regulated community, the first thing to note is the gaps in the Community's environmental legislative scheme. Where there is no law, there obviously can be no enforcement.

There are important substantive gaps in the basic EC legislation. There is, for example, no legislation dealing directly with wetlands, volatile organic compounds (efforts are now underway here), underground storage tanks, and until recently, municipal sewage. Further, as noted above, where the EC has enacted framework legislation, it has frequently not promulgated many of the subsequent implementing ("daughter") directives contemplated by the framework directive and essential to its adequate implementation. Thus, limit values for List I (Black List) water pollutants, BATNEEC air emission standards for industrial plants, and technical requirements for waste storage and treatment facilities like landfills, incinerators, surface impoundments, and waste piles have either been slowly and sparsely enacted (e.g., List I limit values), are only now being developed (e.g., landfill and hazardous waste incinerator requirements and BATNEEC limits), or have not yet been addressed at all (e.g., surface impoundment requirements).

Turning now again to the specific elements of enforceable regulation outlined by the main speaker, examples illustrating the operation of each can be found. Many of the examples cited above in the context of member state implementation apply equally in the case of compliance by and enforcement against the regulated community. Likewise, some of the examples cited below hinder enforceability against member states as well.

Lack of clarity can cause real difficulties for regulated community compliance, and thus for the enforceability of the provisions. For example, the Framework Directive on Waste, as amended, excludes from the scope of the directive "waste waters, with the exception of waste in liquid form." The meaning is not obvious. Further, in a number of ways noted below, the core concepts of "waste" and "hazardous waste" in the European Community waste directives, while more straight-forward than those employed in U.S. regulation, create severe compliance difficulties.

The precise definition of the scope of EC environmental legislation is one area in which considerable improvement could be made. For example, EC legislation typically relies on lists of substances and facilities for determining its applicability. It is commonly thought that the use of lists provides the regulated community with certainty, but this is by no means always true. For example, in the "Sevaso" directive, the regulatory scheme is applicable to facilities listed in Annex I. But Annex II extends coverage, notwithstanding the Annex I list, to installations other than those in Annex I. The language used is confusing, both in the title and the text. The title says "Storage Other Than of Substances Listed in Annex III Associated With an Installation Referred To in Annex I." It is not clear on the face of this language whether all Annex III substances stored at non-Annex I facilities are covered (i.e., because they are Annex III substances not associated with an installation referred to in Annex I), or whether the scope is the storage of all substances except Annex III substances at Annex I facilities. The language in the text is equally opaque, although an analysis of the logic of the relationship between Annex I and Annex II indicates that the first meaning rather than the second must have been intended. Thus, while application of the Sevaso directive appears to turn on the use of a rather small list of types of major industrial facilities, in fact it reaches the storage, in the relevant quantities, of Annex III substances "at any place, installation, premises, building or area of land, isolated or within an establishment, being a site used for the purpose of storage."

A major area of difficulty for the regulated community in determining the scope of sources covered by EC environmental legislation concerns the still developing definitions of "waste" and "hazardous waste" in EC waste legislation. These core concepts lie at the threshold of compliance with all of the various pieces of EC Waste legislation. Quick, easy classification under them is thus crucial, but does not look likely as things now stand.

First, the definition of "waste" turns essentially on the term "discard", which is itself undefined. Second, while the Commission is to base the regulatory definition of both terms on lists that it is now developing (the European Waste Catalogue), the precision of this approach may be more apparent than real. Some of the categories being considered in current drafts of the European Waste Catalogue are clearly not self-defining -- virtually every specific industry category has residual categories such as "manufacturing not otherwise specified." Further, some of the categories themselves are quite open-ended -- e.g., draft Category 16.10.1 ("small amounts of hazardous waste (separate collected fractions) from trade, commercial, manufacturing and institutions"), which is a subcategory of 16.10 ("mixed bulky wastes from trade, commercial, manufacturing and installations"), itself a subcategory of 16 (Municipal wastes and similar commercial, industrial and institutional wastes).

Third, the tests to be used to determine when a waste is "hazardous" have been borrowed from the directives for the classification, packaging and labeling of dangerous substances and preparations. The elaborate testing procedures used for determining the hazardousness of new chemicals before they are put on the market, however, are ill suited at best for the repetitive use and rapid resolution necessary when testing the multitude of various mixtures that constitute commercial and industrial wastes. Further, it is not at all clear that the Commission will in fact use (or has the time to use under the schedule set out in the relevant directives) these tests to determine which of the listed wastes should be classified as "hazardous wastes" in its European Waste Catalogue. Nor is it clear whether the regulated community will itself have to use these tests to classify its own wastes if the lists are not sufficiently clear and precise to govern all cases, as they almost certainly will not be. If the regulated community must use these tests, they will have to be greatly simplified and specific rules for their application in the waste context carefully elaborated.

Fourth, when the Commission publishes its list, it will in any case have to clarify whether thresholds for contaminants apply to the waste categories, and what those thresholds are for the various relevant contaminants, how mixtures are to be treated, and a number of other very practical, but absolutely essential, details.

Other areas of definitional difficulty in the waste program include the scope of such key terms in Annex II A of the Framework Directive on Waste as discharge to a "water body" and "temporary storage, pending collection"; the difference in Annexes II A and B between disposal category D-10, "Incineration on land," and recovery category R-9, "Use principally as a fuel or other means to generate energy"; and the technical distinction between the concepts of "liquid" and "solid" in the draft Landfill Directive.

There are a number of cases where the failure of EC environmental legislation causes the regulated community to lack a clear standard of conduct. The term "BTMA" in the water legislation has never been defined adequately in practice and few daughter directives have been adopted for specific List I pollutants setting BTMA. The same is true for BATNEEC under the air legislation. Thus, there have been few, if any, effective guidelines at the EC level as to which types of technologies qualify as BTMA or BATNEEC for various industry categories (at least, as to BATNEEC, until recently), why they do so, how relevant technical and economic feasibility is to be considered, how these concepts are defined, what specific pollutant emissions can be achieved by the relevant technology, and thus what permit limits are appropriate. Further, such details as how startup/shutdown and malfunctions are to be dealt with are nowhere stated.

The same sort of difficulty has existed with the Framework Directive on Waste, which established some limited procedural requirements, but which did not spell out any substantive standards at all for various methods of waste treatment, storage or disposal. Only now is the Commission drafting landfill and hazardous waste incineration directives that set substantive standards.

Finally, the Commission's draft Eco-Auditing Regulation, in Annex I.B, requires many areas to be audited, such as "energy management, savings and choice," "raw materials management, savings, choice and transportation; water management and savings," "selection of production processes," and "product planning (design, packaging, transportation, use and disposal)," for which no substantive legal standards now exist or are set out in the proposed directive, and for most of which (e.g., "selection of production processes") no commonly agreed environmental standards of any sort, legal or otherwise, exist. And such techniques as product life cycle analysis, that might be thought relevant to categories like "product planning," are highly developmental, subjective, value-laden, and thus problematic.

Questions regarding measuring compliance, deadlines for compliance, and self-monitoring and reporting are sometimes covered in permits issued under member state law. Because EC environmental legislation frequently ignores them (except as to analytical methods and averaging times), the enforceability of EC law in these regards turns on the happenstance of member state implementation.

The impact of incorrect procedural adoption on the enforceability of EC environmental requirements on the regulated community may be most apparent, other than in the cases of the Titanium Dioxide judgement and the shadow it casts over the crucial Waste Amendments, where a member state has incorrectly implemented EC law and the "direct effect" doctrine or the principle of the Frankovitch judgement can be successfully invoked by a regulated entity or a member of the public. For a discussion of these matters and references to other sources on them, see Deskbook at 7-8.

6 CONCLUSION

EC environmental legislation offers ample illustrations of the propositions in the main speaker's paper. It also illustrates the critical role played by institutional capability in design of enforceable regulation. Solutions, especially on the institutional front, are likely to prove difficult, but lessons can be learned, in any case, by all.

REFERENCES