How can we design our environmental governance laws to maximise environmental compliance?
Non-compliance with the EU’s environmental rules is one of the key weaknesses of the EU’s environmental policy. This research investigates the influence that environmental governance laws have on compliance decisions, and how we might best design our laws to maximise compliance. One of the most important trends in European environmental regulatory techniques over the past decade has been the shift from hierarchical, state-led government via command-and-control techniques, to decentralised, society-led governance by local private actors, including environmental NGOs but also private individuals and companies.
The EU has strongly supported efforts to empower social environmental governance and enforcement through the legal principles of access to environmental information, public participation in environmental decision -making and access to justice in environmental matters, as embodied in the UNECE Aarhus Convention and the considerable body of EU and national law enacted to implement this Convention. Yet surprisingly little is known about the extent to which this major change in environmental governance laws has actually influenced compliance levels in practice, and why.
Can the design of environmental governance rules influence us not only to comply with the letter of the law, but also to go further? This research seeks to fill that gap by means of an interdisciplinary, bottom-up study of the relationships between the legal architecture of environmental governance on the one hand, and compliance decisions on the other, within a selected field of EU environmental policy (biodiversity), and within three selected States of the EU – Ireland, France and the Netherlands.
It tests new hypotheses about the effects environmental governance rules have on compliance. It is novel in terms of methodology, because in testing these hypotheses, it uses techniques that have not up to now been applied to measure the effect of law. It sits at the intersection between the law and economics, socio-legal and governance/regulatory literatures, and brings together multiple methods from these fields to test its hypotheses.
The breadth of the EU’s environmental rules is now considerable, and EU law affects virtually every facet of environmental regulation. However poor compliance levels continue to plague the effectiveness of the EU’s environmental policy and, in many cases, important environmental rules are ignored in practice. This may be unsurprising: policing the enforcement of environmental rules, applicable throughout the entire territory of the EU, poses severe and particular resource challenges for traditional State-led enforcement.
At EU level, this problem is compounded by the difficulties in securing political agreement on stronger supranational enforcement measures, such as an EU environmental enforcement agency or binding generally applicable EU rules on inspections and enforcement. Since the 1990s, the EU has recognised these challenges by strongly promoting non-hierarchical methods of environmental governance, including decentralised, non-State-led enforcement of environmental law. More broadly, the movement towards non-hierarchical enforcement ties in with the ongoing debate about the need for a greater emphasis on environmental democracy, environmental justice and human rights.
In Europe, the legal move towards decentralised enforcement is epitomised by the ground-breaking 1998 Aarhus Convention on access to information, public participation and access to justice in environmental matters and ensuing multiple legal instruments enacted at EU and national levels to implement this Convention. The far-reaching effects of these new environmental governance laws are currently being played out before EU and national courts.
What do we mean by environmental governance rules?
Environmental governance rules are, broadly, the legal rules or the ‘architectures’ used by Member States in order to promote compliance by non-State actors with environmental rules. These might be laws imposing a criminal penalty, laws imposing a fine for the breach of a rule, laws or other rules that create economic incentives to engage in compliance and laws promoting the principles of transparency, participation and/or access to justice in environmental matters.
EU biodiversity law will be the area of focus for the project. EU biodiversity law is concerned with the conservation of nature – flora and fauna – and the natural habitats these species occupy. Two Directives make up the substantive part of EU biodiversity law – the Birds Directive 1979 (Council Directive 79/409/EEC; codified in 2009 in Directive 2009/147/EC and the Habitats Directive 1992 (Council Directive 92/43/EEC).
In both Directives there are obligations on Member States to select and designate sites as Special Protection Areas (SPAs) and Special Areas of Conservation (SAC). Together, these make up an EU-wide ecological network of protected sites named Natura 2000. The Directives also impose reporting obligations on the Member States.
EU biodiversity law has caused controversy due to what is perceived by some Member States as an imposition of onerous and costly obligations, and a limitation on the Member States’ own planning laws. Historically, there has been a large disparity between Member States’ attitudes and levels of compliance in the area of biodiversity law.
Does the design of national environmental governance laws make a difference to biodiversity compliance levels?
The aim of this five year project is to discover how environmental governance rules affect stakeholder compliance decisions in the field of EU environmental policy in relation to biodiversity. It will also investigate the voluntary decisions of stakeholders to go further than the minimum compliance levels as set down in law. Ultimately we seek to identify ways in which we can design our environmental governance laws to maximise environmental compliance, including compliance that results from third party enforcement of EU environmental law.
The project’s second aim is to push forward scholarship by applying empirical methods to law in a way that has not been done before. The project will use comparative empirical analysis in order to investigate relationships between the type of environmental governance rules used, on the one hand, and the levels of environmental compliance, on the other in EU biodiversity law. A multiple methods approach will be adopted, combining quantitative and qualitative methods, to provide a richer, more subtle analysis of these relationships and, ultimately, better to capture the detail of how differences in environmental governance laws may influence environmental compliance decisions.
