Environmental Protection in Multi-Layered Systems : Comparative Lessons from the Water Sector [1 ed.] 9789004235250, 9789004235243

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Environmental Protection in Multi-Layered Systems

Studies in Territorial and Cultural Diversity Governance Edited by

Francesco Palermo and Joseph Marko

VOLUME 1

The titles published in this series are listed at brill.com/tcdg

Environmental Protection in Multi-Layered Systems Comparative Lessons from the Water Sector

Edited by

Mariachiara Alberton and Francesco Palermo

LEIDEN • BOSTON 2012

Library of Congress Cataloging-in-Publication Data Environmental protection in multi-layered systems : comparative lessons from the water sector / Edited by Mariachiara Alberton and Francesco Palermo.   p. cm. -- (Studies in territorial and cultural diversity governance, 1)  Includes index.  ISBN 978-90-04-23524-3 (hardback : alk. paper) -- ISBN 978-90-04-23525-0 (e-book) 1. Water conservation--Law and legislation--European Union countries. 2. Water conservation--Law and legislation. 3. Water-supply--Law and legislation--European Union countries. 4. Environmental law--European Union countries. 5. Environmental protection--European Union countries. 6. Environmental law. I. Alberton, Mariachiara. II. Palermo, Francesco.  KJE6202.D75E58 2012  346.2404’69116--dc23 2012028906

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 2213-2570 ISBN 978-90-04-23524-3 (hardback) ISBN 978-90-04-23525-0 (e-book) Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

CONTENTS Forward  Marco Onida����������������������������������������������������������������������������������������������������������ix Introduction  Mariachiara Alberton and Francesco Palermo�����������������������������������������������1 PART I

FORMS OF STATES AND ENVIRONMENTAL PROTECTION PART I A:

A Supranational (Quasi-Federal?) Organization: The EU  1. Environmental Governance in the EU�������������������������������������������������������� 11    Ludwig Krämer  PART I B:

Classic Federal Models 2. Environmental Governance in the United States������������������������������������� 33   LeRoy Paddock and Jennifer Bowmar 3. Environmental Governance in Germany���������������������������������������������������� 55   Gerd Winter 4. Environmental Governance in Switzerland���������������������������������������������� 83   Nicolas Schmitt PART I C:

Regional Models 5. Environmental Governance in Spain��������������������������������������������������������113   Agustín García-Ureta and Iñaki Lasagabaster 6. Environmental Governance in Italy����������������������������������������������������������135   Emanuela Orlando

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7. Environmental Governance in the United Kingdom����������������������������161   Colin T. Reid and Andrea Ross PART I D:

(Really) Unitary Models?   8. Environmental Governance in France����������������������������������������������������189      Alexandre Boiret   9. Environmental Governance in Poland����������������������������������������������������209     Barbara Iwanska, Paweł Czepiel and Marcin Stoczkiewcz 10. Environmental Governance in the Western Balkans���������������������������235          Olivera Kujundzic PART II

CASE STUDIES: THE MANAGEMENT AND PROTECTION OF WATER RESOURCES PART II A:

A Supranational (Quasi-Federal?) Organization: The EU  11. Water Management and Protection in the EU��������������������������������������265     Elisa Morgera PART II B:

Classic Federal Models 12. Water Management and Protection in the USA������������������������������������291     LeRoy Paddock and Lea Colasuonno  13. Water Management and Protection in Germany���������������������������������315      Wolfgang Köck 14. Water Management and Protection in Switzerland�����������������������������339      David Furger PART II C:

Regional Models 15. Water Management and Protection in Spain�����������������������������������������365    Jorge Agudo González

contentsvii 16. Water Management and Protection in Italy�������������������������������������������389    Mariachiara Alberton and Ekaterina Domorenok 17. Water Management and Protection in the UK��������������������������������������409   Sarah Hendry PART II D:

(Really) Unitary Models? 18. Water Management and Protection in France�������������������������������������433    Armelle Gouritin 19. Water Management and Protection in Poland�������������������������������������463    Barbara Iwanska, Paweł Czepiel and Marcin Stoczkiewcz 20. Water Management and Protection in the Western Balkans�����������483    Olivera Kujundzic Concluding Remarks��������������������������������������������������������������������������������������������503  Mariachiara Alberton and Francesco Palermo List of Contributors����������������������������������������������������������������������������������������������529 Annex One: Questionnaire���������������������������������������������������������������������������������533 Index�������������������������������������������������������������������������������������������������������������������������537

FORWARD Marco Onida1 This well argued volume offers in part I a comparative description and analysis of the way environmental protection is organised and enforced in Europe (by direct reference both to several European States and the EU) as well as in the USA. This overview of constitutional settings in relation to environmental protection is per se very useful reading for anyone who has interest in environmental protection – a matter which can hardly be looked at within the boundaries of a single Nation or, a fortiori, Region – at international level. Furthermore, the “constitutional” approach followed by the editors in order to discuss the effectiveness of environmental protection systems, particularly as regards water, is also innovative and valuable and I am convinced will hold the interest of readers. Environmental law, at least in quantitative terms, is not as “popular” as other disciplines, such as trade or competition law: the environment has no voice and both academics and practitioners – with few exceptions – can hardly make career based on environmental law. Any attempt to diffuse practice and information on environmental protection systems though other angles – in this case the comparative assessment of constitutional State structures – must therefore be warmly welcomed. In part II the authors, besides providing an equally useful comparative description of the legal systems for water protection in the selected States, touch directly on what it is probably one of the outstanding characteristics of environmental law, that is, its dependence on a wide range of governance levels for the successful implementation of rules and guidelines. Transposing an EU Directive into national legislation is no guarantee of its correct application. This must be ensured daily at national, regional and local level; at the level of the public administration as well as of the civil society. The success or the failure of a piece of environmental law or policy is often dependent on interaction between various levels of governance, including the availability and accessibility of means of legal redress. This interaction has gained importance since, as Mariachiara Alberton and 1 Secretary general of the Alpine Convention.

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Francesco Palermo correctly highlight in their introduction, after the (unfortunate) decline of political support for command and control legislation (which, it should not be forgotten, is what enabled environmental protection measures to emerge between the 1970s and mid-90s) and the recent unsuccessful attempt to replace it with market-based instruments, a new wave of decentralised and governance-oriented environmental policy has emerged in the last 10 years. The effectiveness of this new multi-level approach is still to be demonstrated, for the issue is more complex than it may seem at first sight: while direct ownership and accountability, by territorial entities, of environmental policies and rules may undoubtedly prove positive for the successful implementation of environmental requirements, this approach also carries the risk that specific local interests prevail over the general interest of a healthy environment. The authorisation of high impact energy installations, such as huge wind-parks in high mountain areas, in the name of “provincial or local energy autarchy”, has been revealing in this regard. It is, in my opinion, no surprise that the book concludes that in spite of the growing complexity and involvement of environmental governance systems, the case for centralised and harmonised rules is still quite strong. Be that as it may, the responsibility for ensuring a clean and healthy environment to future generations will probably remain a shared task of all governance levels. In this sense, the increasing involvement of decentralised levels, be it for regional and local legislation or for the implementation of centralised legislation, enhances the awareness of the respon­sibility that regional and local authorities have towards future generations. There is another reason, I believe, which makes this book very interesting reading. The interaction between central and decentralised governmental and non-governmental bodies is crucial in the Alpine Region, an area shared by eight States (five EU and three non-EU States) to which an international environmental treaty applies (the 1991 Alpine Convention). The Alpine Convention is a “territorial” treaty, since it only applies to part of the territory of the contracting parties (except for two micro-States, falling entirely within the Convention boundaries). For this reason, it establishes a complex system of shared responsibilities, whereby the role of decentralised governance levels is explicitly recognised both for the production of policies and measures and for their implementation. The Alpine region, therefore, is a particularly interesting case both for the environmental challenges which have to be addressed and for the “constitutional” structure of an area on a wide range of legal orders insisted upon

forwardxi by very different States (federal, regional and unitary), including some non-EU States. Moreover, the Alps having been inhabited for thousands of years, an environmental policy for the Alps must necessarily be closely coordinated with other policies, such as land planning, transport, tourism, energy and agriculture. Thus the Alpine Convention has a very wide thematic scope of application and the principle of integration – a pillar of the EU Treaty since 1993, today Article 11 TFUE – must be accorded particular importance. It is no coincidence that all thematic protocols of the Alpine Convention insist on this principle. Within this framework, besides its own-produced rules and guidelines, the Alpine Convention helps apply environmental requirements deriving from both the EU and national level. It is therefore not an isolated, but rather a coordinated instrument. Water exemplifies this aspect very well: the Alps are water towers for Europe and water, in all its forms, serves not only the alpine population (drinking water, recreational uses) but also large proportions of population in the lowlands (drinking, energy, agriculture). Water shows very well the role of the Alpine Convention as an instrument for the integration of environmental protection requirements in other policies and as a coordination/harmonisation tool for all the governance levels of the contracting parties. Finally, by improving knowledge and raising awareness of environmental policy at international level, with particular regard to water protection and the related needs for integration and coordination (and not for autarchic parochialism!), this book contributes to environmental protection in a very positive way.

INTRODUCTION Mariachiara Alberton and Francesco Palermo1 The environmental challenges that policy-makers and legislators are con­ fronted with worldwide have changed considerably during the last decades. New and dramatic environmental problems have arisen, the growing public favour accorded to the ecosystem has resulted in the subsequent request to broaden protection schemes and instruments, different governance architectures have emerged and roles and capacities of institutional actors have been reconfigured, also as a result of shifting ideologies and the increasing influence of opposing global and local instances. Modern environmental policy and law dates back to the beginning of 1970, when major policy guidelines were elaborated and legislation was enacted on both sides of the Atlantic Ocean. These developments were preceded by a series of environmental disasters and by the considerable environmental activism of the late 1960s, all of which played a role in pushing the international community and legislators to act. In the USA, the National Environmental Policy Act2 was approved in 1969, which required the government to consider the impact of its actions or policies on the environment; the Clean Air Act3 was adopted in 1970 and the US Environmental Protection Agency (EPA) was established the same year, while the Clean Water Act4 followed some years later. The first significant EU political statement on environmental issues was the Commission’s communication on a Community environmental policy,5 adopted in 1971, on the basis of which the Member States reached a political agreement on the guiding principles of a “Community

1 Mariachiara Alberton is Senior Researcher in Environmental Law, EURAC, Bolzano, Italy. Francesco Palermo is Director of the Institute for Studies on Federalism and Regionalism, EURAC, Bolzano, and Professor of Public Comparative Law, University of Verona (Università di Verona), Italy. 2 National Environmental Policy Act 1969. 3 Clean Air Act 1970. 4 Clean Water Act 1972. 5 European Commission, First communication of the Commission about the Commu­ nity’s policy on the environment, SEC(71) 2616, 22 July 1971.

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environmental policy” in 1972.6 The first legally binding instruments were adopted in 1975 and concerned water and waste law.7 Among the Member States, Germany has been widely considered, especially during the 1970s and 1980s, a leader in environmental policy, pushing the EU legislator to adopt harmonized environmental measures. During that period, the dominant approach followed by Western countries, called “command and control”, consisted of legislation designed to prohibit or restrict environmentally harmful activities by identifying an environmental target, such as a limit on emissions of a pollutant into the water or the air, and imposing penalties if this target was not met. Permits and licences were the favoured instruments to tackle environmental pollution, and this approach succeeded in achieving some significant results in halting some forms of environmental degradation. Nevertheless, by the 1980s, this approach started to be widely criticised in the USA and in the EU for being inflexible and excessively costly for business, centralised, bureaucratic and cumbersome. Direct regulation was also fall­ ing into disfavour as a consequence of broader shifts in the political and ideological perspective.8 In Western countries, an overall turn toward neoliberalism took place and the governments experienced considerable pressure from industry to reduce the economic burden of complying with environmental legislation. Against this changing political scenario, environmental problems had not stopped. To the contrary, they became more serious and were increas­ ingly perceived as such by the public (and the voters). Policy-makers thus started to introduce a set of less intrusive regulatory interventions, shifting toward economic instruments. Fiscal instruments including environmen­ tal taxes, charges and subsidies, and quantity instruments such as tradable permit schemes were employed in sectors such as waste and water management, air pollution control and energy. A variety of voluntary initiatives became increasingly popular, such as self-regulation, voluntary codes, environmental charters, co-regulation and negotiated environmen­ tal agreements. These new tools were perceived to be far more efficient 6 On the genesis and development of Community environmental law see L. Krämer, EU Environmental Law (7th ed.) (London, Sweet & Maxwell, 2011). 7 Among others, Council Directive 75/442/EEC of 15 July 1975 on waste (1975) OJ L194/23; Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (1975) OJ L194/26. 8 See in this sense, N. Gunningham, “Environment Law, Regulation and Governance: Shifting Architectures” (2009) 21 Journal of Environmental Law 179–212.

introduction3 than command and control regulation and were capable of providing the industry with the flexibility and autonomy needed to cope with an open and competitive market. However, by the late 1990s, it was clear that the adoption of marketbased instruments had resulted in higher administrative costs and had been, in any case, employed only to a limited extent, whereas the various voluntary initiatives were in reality confined to “soft” issues (i.e. spreading information and consciousness-raising).9 Therefore, partly due to the failings of many of the alternatives to direct regulation and partly due to a new political change, a further shift in the environmental policy and legislation took place in Western countries.10 Although government regulators have been seen as not completely effective in addressing environmental issues, others actors, including local communities and NGOs, have begun to play a complementary role for traditional direct regulation, fostering public environmental awareness through information gathering and successful campaigns. The result was a much stronger influence on public opinion, more intense lobbying of governments (pushing them to enact stricter environmental laws) and considerable influence on consumers and markets by using strategies such as favouring green products. A more recent environmental policy and law shift involving the State, business and civil society has been referred to as the “new environmental governance”.11 This formula involves collaboration between a diversity of private, public and non-government stakeholders and consists of increased flexibility in the setting of norms accompanied by a “proceduralisation” of   9 See A. Breton et al. (eds.), Environmental Governance and Decentralisation (Chelten­ ham, Edward Elgar, 2007); OECD, Voluntary Approaches for Environmental Policy: Effective­ ness, Efficiency and Usage in Policy Mixes (Paris, OECD, 2003). 10 See A. Lenschow, Transformation in European Environmental Governance (EUI Working Papers, Robert Schuman Centre, 1997); A. Weale et al., Environmental Governance in Europe: An Ever Closer Ecological Union? (Oxford, Oxford University Press OUP, 2000); I. Bailey, New Environmental Policy Instruments in the EU (Aldershot, Ashgate, 2003); B. Rittberger and J. Richardson, “Old Wine in New Bottles: The Commission and the Use of Environmental Policy Instruments” (2003) 81 Public administration 575–606; A. Jordan et al., “European Governance and the Transfer of New Environmental Policy Instruments” (2003) 81 Public Administration 555–574. 11 See S. Borras and K. Jacobsson, “The Open Method of Coordination and the New Governance Patterns in the EU” (2004) 11 Journal of European Public Policy 185–208; R. Dehousse, The Open Method of Coordination: A New Policy Paradigm? (2003), available at www.sciencespo.fr/recherche/forum_europeen/seminaires/Pdf/texte_R_Dehousse.pdf; K. Holzinger et al., “Rethoric or Reality? New Governance in EU Environmental Policy” (2006) 13 European Law Journal 403–420; M. J. Rodriguez, “The Open Method of Coordi­ nation as a New Governance Tool” (2001) X Europa Europe.

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environmental norms, increasingly open-ended environmental standards and most of all, the increased role of a wider range of stakeholders in decision-making processes.12 Thus, after command and control regulation and the parenthesis of market-based instruments and voluntarism, a new phase evolved in Western countries, its most important features being regulatory flexibility and meta-regulation, pluralistic regulation and collaborative and multi-level governance. Against the emergence of different sets of environmental regulation instruments and approaches, the roles played by various levels of govern­ ment in protecting and managing environmental resources have been reconfigured through the years as well. However, although the previously mentioned environmental policy and law shifts may share a common basis in terms of their rise, develop­ ment and fall in the Western countries, the analysis of governments as forms of constitutional division of power, institutional configurations and variances in intra-institutional relations may reveal noticeable insights affecting environmental protection effectiveness in the systems. Accordingly, leaving the shifts from command and control approaches to new collaborative-inclusive environmental governance in the back­ ground, the main aim of this book is to understand the current de jure and de facto distribution and use of powers over the environment among various layers of government (and the respective bodies) and their conse­ quences on environmental protection, comparing both federal/regional and (apparently) unitary State models. In fact, the management and protection of environmental resources pose a challenge to both federal and unitary States, due to the impossibil­ ity to identify one level of government to be responsible for the whole environmental policy. In unitary States, especially those that are or aim at becoming members of the EU, sub-regional, regional (where existing), national and supranational authorities interact with each other, commu­ nicate and cooperate irrespective of the domestic constitutional distribu­ tion of political power, due to the intrinsically multi-level and multi-actor 12 See M. A. Delmas and O. R. Young, Governance for the Environment (Cambridge, Cambridge University Press, 2009). The authors provide a definition of environmental gov­ ernance, a few reflections on its historical roots and some fruitful ways in which to explore environmental governance. In their opinion “Environmental governance is the use of insti­ tutionalized power to shape environmental processes and outcomes. […] We suggest that three major sources of pressures are preparing the ground for the hybridization of environmental governance strategies: globalization, decentralization and marketization”. (At 71–3).

introduction5 elaboration and implementation of environmental policies. A pluralistic governance of environmental issues is even more mandated when the EU comes into play. In this case, multi-level cooperation takes place in two ways: across different levels of government (vertical dimension), and with other relevant actors within the same level (horizontal dimension). This implies that Member States either contribute to the formulation and implementation of EU environmental policy and legislation toward their own national priorities or are affected both at the institutional/ administrative structure level and domestic policy/law level by the EU.13 Thus, Member States (MS) are not merely recipients of EU directives, but active and co-equal participants in an interactive reform process which raises challenges for constitutionalism. Among the many questions this complex topic may open, we examine the problem of how environmental protection in the EU MS is reshaped by this form of experimental and multi-level federalism and affected by the institutional architectures of MS. Where federal/regional countries are concerned, in which also the political power is divided among at least two orders of government, the challenge is even more evident. In this regard, some authors have observed that, in particular, countries with federal Constitutions face special challenges in managing and protecting environmental resources.14 The line demarcating federal from sub-national authority may be a grey line especially with regard to environmental protection which is intrinsi­ cally interwoven with other sectoral policies, such as spatial planning, agri­culture, energy, water, and transport, entailing a differing division of competences. Due to this unavoidable interdependency, environmental protection in many ways tests the viability of the core federal models. The multi-layered system creates possibilities for conflict between the national and the sub-national governments, but it also provides opportunities for their cooperation, potentially leading to the achievement of far more effective results in protecting the environment. Thus, a careful examina­ tion of those problems is especially timely considering the resurgence of 13 See, for a full discussion, C. Paraskevopoulos et al., Adapting to EU Multi-Level Gover­ nance. Regional and Environmental Policies in Cohesion and CEE Countries (Aldershot, Ashgate, 2006), the authors infer that although multi-level governance might merely reflect the multiplicity of the governance structures among the EU Member States in any sphere of public policy, the multi-level system of governance is considered as an outcome of the Europeanization of public policy. 14 See K. Holland et al., Federalism and the Environment. Environmental Policymaking in Australia, Canada and the United States (Westport, Greenwood Press, 1996).

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federalism worldwide. To this extent, even the EU has been defined more recently as a remarkable and innovative experiment in federalism.15 The EU has increasingly opened up the structures of the traditional nation State to the supranational level and hence to their adaptation to the EU multi-level system of governance.16 To verify these challenges in theory and in practice, this volume analy­ ses the distribution of powers in environmental issues (part I) and the more specific field of the management and protection of water resources (part II) in a number of legal systems, including the EU (we consider the EU as a separate model, because it is a supra-national organisation resem­ bling nonetheless federal and regional models in many ways), classified according to the overall constitutional approach to the vertical division of powers. Thus, we have identified “classic” federal models (USA, Germany and Switzerland), regional models (Spain, Italy, the UK) and (supposedly) “unitary” models (France, Poland and, in a regional perspective, the Balkan countries, although the structural differences in the territorial setting vary considerably between federal Bosnia, lightly regionalized Croatia and def­ initely unitary Montenegro). In all these countries, despite the profound constitutional differences in the distribution of powers – both in general and in the environmental issue and even more specifically in the water sector – the concurrence of different actors, levels of government and sources of law is to be witnessed. This seems to indicate that, although the constitutional distribution of powers significantly affects the way environmental issues are tackled in the different countries, environmental issues can only be tackled by a plurality of actors, levels of government and sources of law. Thus, the research hypothesis of the book (i.e. the “federal potential” of environ­ mental law as a pushing factor for multi-level cooperative governance, especially but not exclusively within the EU) will be verified by means of a comparative analysis. The first part of the book focuses on how the selected systems formally allocate responsibility for environmental regulation and implemen­ tation  between the constituent units (States or Regions or Provinces and the centre). However, because these formal divisions may not com­ pletely resemble the actual scenario due to the presence of other players, 15 See among others, G. De Burca and J. Scott (eds.), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006). 16 For a review of multi-level governance theories see among others, E. Gualini, MultiLevel Governance and Institutional Change (Aldershot, Ashgate, 2004).

introduction7 mechanisms and practices, a broader investigation is conducted. For example, interest groups and the public may affect the shaping of environmental policy and legislation, and mechanisms for settling con­ flicts between competing governmental levels may result in favouring a centralised or a decentralised environmental protection. To this extent, Constitutional/Supreme Courts may act as policy/lawmaker or merely as interpretative body with different impacts on the environment: from extending to reducing environmental protection, from re-assigning envi­ ronmental powers to different levels of government to fulfilling regulatory gaps. The research aims at identifying current solutions to the problems of institutional setup over the environment; potential conflicts among national, regional and local levels; modes and procedures of cooperation/ coordination; shortcomings in implementing and enforcing environmen­ tal legislation, and the role of institutional and non-institutional actors to highlight the real impact of the territorial setting of each country on environmental protection. Therefore, the chapters shed some light on current trends with regard to environmental governance as well and mechanisms and modes throughout these tendencies taking place in different countries. After devoting the first part of the book to the aforementioned analysis, the second part of the book contains a case study selected to test and examine features, limits and advantages as well as trends and challenges of types of governance and institutional models. The management and protection of water resources in particular poses a challenge to federal, regional and unitary States: it is a very “fluid” sector, open-ended and prone to changes, in which public and private interests and actors come into play, adding more elements to the already complex problem of com­ petence allocation. To establish a common comparative framework, a set of questions (published in Annex 1 of this volume) was preliminary identified by the editors and submitted to authors to guide them in writing the national chapters, thus providing a harmonised approach in investigating environ­ mental and water management and protection frameworks of differing legal systems. In each chapter, the principles the EU White Book on Governance17 proposed as principles of good governance (i.e. openness, participation, 17 European Commission, European Governance – A White Paper, COM(2001) 428 final, 25 July 2001.

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accountability, effectiveness and coherence) are recalled to evaluate current national situation with regard to environmental and in particular water protection, stressing present limits and challenges of the institu­ tional setting. In light of these EU good governance principles, authors of different legal systems try to infer whether the national (multi-level/ unitary) institutional settings analysed enhance or prevent an open, inclu­ sive, accountable, effective and coherent environmental/water policy/law formulation and implementation.

PART I

FORMS OF STATES AND ENVIRONMENTAL PROTECTION

PART I A: A SUPRANATIONAL (QUASI-FEDERAL?) ORGANIZATION: THE EU

ENVIRONMENTAL GOVERNANCE IN THE EU Ludwig Krämer1 Introduction The European Union (EU) is not a State. It is a regional international organisation with, at present, 27 Member States. Therefore, its institu­ tions, actors and activities, its successes and failures cannot be compared to those of a Nation-State. The EU may only act within the limits which the Treaty on the European Union (TEU) determined.2 1. The Evolution of EU Environmental Policy and Law The original EEC Treaty of 1957 did not contain any provision on the environment, environmental policy or environmental protection. It was at the end of the 1960s, in the aftermath of Rachel Carson’s book “The Silent Spring”, the students’ revolt of 1968, and several requests from the European Parliament that the European Commission first set up an administrative unit to deal with environmental matters. In 1971, the Parliament sent a first communication on an EU environmental policy to the Council3 which was followed, in 1972, by a proposal for an EU environmental action pro­ gramme.4 Both documents raised intensive discussions at the European level. At the first EU summit of the Heads of States and Governments in Paris in October 1972, the EU institutions were invited to launch an EU environ­ mental policy and action programme. The Commission took the matter up and established, in the beginning of 1973, an “Environment and Consumer Protection Service”, which it placed under the responsibility of 1 Former Official of the European Commission, and Visiting Professor, University College London, London, UK. 2 See Art. 5 of Consolidated versions of the Treaty on European Union (TEU) 2010/C 83/01. 3 European Commission, First Communication of the Commission about the Commu­ nity’s Policy on the Environment, SEC (71) 2616 final, 22 July 1971. 4 European Commission, Communications on the Environmental Policy Programme, 1972.

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a Commission vice-President to underline its horizontal character and the relevance of environmental and consumer protection issues for all policies pursued by the EEC. Internal differences of view prevented this plan from becoming operational; the Service quickly developed into a “normal” Directorate General of the Commission. The first environmental action programme was adopted in 1973.5 It established objectives, principles and priorities for action at the EU level. At the time, most of the then nine Member States did not have an autono­ mous national environmental policy; the programme solidi­fied the frame­ work for the elaboration of common rules for the EU territory. Measures in the area of water protection and waste management were tackled first because the other Commission departments – for agriculture, the internal market, or competition – did not see any reason to become active in these areas. The provisions on the establishment and function­ ing of the internal market (now Article 115 TFEU), as well as the present Article 352 TFEU,6 were used as a legal basis for environmental measures because the EEC Treaty did not provide for a legal basis for environmental legislation. The Environment Service grew continuously. In 1982, it became a fullfledged Directorate General. In 1990, a European Environmental Agency was created, assigned with the task of collecting, processing and distribut­ ing information on the environment.7 The European Parliament also requested that the Agency have monitoring and enforcement functions, but its request was rejected. In 1987, a chapter on an EU environmental policy was inserted into the EC Treaty; the actual Articles were 191 to 193 TFEU. It contained a number of original features, such as a quality objective (“a high level of protec­ tion”), the obligation to integrate environmental requirements into the other EU policies, and the possibility for Member States to maintain or introduce stricter environmental measures than those that were agreed on at the EU level. Environmental legislation had to be adopted unani­ mously. Majority voting only became the normal rule in 1999 (Amsterdam Treaty), although in some particularly sensitive areas unanimous deci­ sions continue to be required. 5 European Commission, First Environmental Action Programme 1973–1976 (1973). 6 Consolidated versions of the Treaty on the Functioning of the European Union (TFEU) 2010/C 83/01. 7 Council Regulation (EEC) No. 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Obser­ vation Network (1990) OJ L120/1.



environmental governance in the eu13

In 2009, the fight against climate change was inserted into Article 191 TFEU as one of the tasks of the European Union. At the same time, a new Directorate General for climate change was created within the Commis­ sion. Moreover, energy policy became a (shared) EU competence, which is particularly important for climate change related energy questions, such as renewable energy, energy efficiency and energy saving. In 1973, the European Parliament had already set up an environmental committee which continues to function at present. It soon became very influential in the law-making procedure, and continuously urged the EU legislature to strengthen environmental protection legislation. The Coun­ cil set up six regular meetings on environmental matters per year, two of which were informal. Media support and growing public awareness of environmental problems contributed to making environmental policy a mainstream policy at the EU level. Environmental legislation progressively extended to all areas of environmental policy: besides the traditional areas of water protection, air pollution, waste management, nature conservation, noise and prod­ ucts, this legislation also covers, at least in part, biotechnology, criminal environmental law, soil protection, and access to courts in environ­ mental  matters. Overall, some 300 directives, regulations and interna­ tional environmental conventions were adopted by the EU. The European courts issued some 750 judgments in environmental matters, frequently strengthen­ing the environmental concerns against polluters or passive administrations. 2. Environmental Actors and the Legislative Process The EU actors reflect the status of a mixture between citizens’ union and an international organisation: the European Council, comprised of the Heads of Government of the Member States and the Commission President, defines the general political direction and the priorities of EU policy. The European Parliament (EP), directly elected, represents the citizens, the Council and the 27 Member States. The Commission, com­ prised of 27 members and a staff of some 25,000 officials, is charged with identifying and acting in the interest of the Union as a whole. Furthermore, a European Economic and Social Committee (EECOSOC) exists with advi­ sory functions which represents civil society, employers and employees,8 8 One of the 350 EECOSOC members indicated his origin in an environmental organisa­ tion (2011).

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in addition to a Committee of the Regions (CoR), also with advisory functions, which represents regional and local authorities. The EU Court of Justice shall ensure that EU law is observed. Apart from the aforementioned European Environment Agency, no specific advisory scientific, technical or other bodies exist that have explicit functions in the environmental sector, be it on global environmental issues, long-term effects, sustainability or other issues. As a rule, environmental legislation is proposed by the European Commission which has the monopoly for making proposals. The European Parliament and the Member States may suggest EU legislation, but cannot normally9 oblige the Commission to submit a proposal. EECOSOC and CoR can give their opinions on any proposal, without having any signifi­ cant impact on its final outcome. The legislative proposal is adopted by a joint decision of the European Parliament and the Council, which both decide by majority; in certain areas of environmental policy which are expressly enumerated in the Treaty on the Functioning of the European Union (TFEU), the Council decides alone and at unanimity.10 Objectives and priorities for the EU environmental policy are laid down in environmental action programmes, which are again proposed by the Commission and adopted by co-decision of the EP and the Council. At present, the sixth environmental action programme applies (2002 to 2012).11 It is legally binding, although its drafting leaves considerable discretion to the EU institutions. Legislative and other measures which are foreseen in the programme are sometimes not taken; however, occasion­ ally, EU legislation is adopted without having previously been announced in an action programme. The Commission regularly consults with Member States, in Council meetings or otherwise, on what legislation to propose. The EP tries to influence the Commission with regard to new proposals, although with limited success.

  9 See, however, Art. 225 and 241 TFEU supra, in which the European Parliament, with the majority of its component members, and the Council, by majority of its members, may ask the Commission to submit a proposal for legislation. In environmental matters, such requests hardly ever occurred. 10 These areas concern measures primarily of a fiscal nature, or affecting town and country planning, land use (except waste management), the quantitative management of water sources and the availability of those resources, and measures significantly affecting the choice between different energy sources and the general structure of energy supply of a Member State (Art. 192(2) TFEU supra). 11 Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (2002) OJ L242/1.



environmental governance in the eu15

Normally, the EP tries to adopt resolutions on legislative proposals or other communications from the Commission with a large majority to increase its institutional influence; this means that the different political groups, conservatives, socialists, liberals and greens, try to compromise on solutions that are acceptable to them all. In Council, Member States normally pursue their own national inter­ ests. The preservation and protection of the environment does not rank high in the great majority of Member States, a tendency which is strength­ ened in times of economic or financial difficulties.12 Commission propos­ als which are, in recent years, not very progressive in protecting the environment, are normally watered down in Council until they satisfy the last specific wishes of Member States – or rather the national adminis­ trations in Member States.13 It also occurs that legislative proposals by the Commission are not discussed and thus become obsolete in time. For example, a minority of five Member States opposed the adoption of a directive on the protection of soil.14 Also, the proposal for a directive on access to justice did not obtain sufficient support by the Member States in Council and was never adopted.15 3. Environmental Policies and Other Policies Article 11 TFEU provides that environmental requirements must be integrated into the other policies and activities of the EU. This takes into consideration the fact that the environment may also be affected adversely by measures that are elaborated and adopted under other EU policies. In the Commission, in addition to the environmental departments, other departments are also charged with the preparation of environmental 12 It may fairly be submitted that national environmental legislation is practically at 100 per cent based on previous EU environmental legislation in Greece, Spain, Portugal, Ireland, and in the twelve Member States which joined the EU since 2004. 13 Recent examples are Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1, Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (2006) OJ L190/1, and Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emis­ sions (integrated pollution prevention and control) (Recast) (2010) OJ L334/17. 14 European Commission, Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC, COM (2006)232, 22 September 2006. 15 European Commission, Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters, COM (2003) 624, 24 October 2003.

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measures and legislation, particularly the departments on climate change issues (greenhouse gas emission trading, mitigating measures), energy (renewable energies, energy efficiency, energy infrastructure), industry (car emissions, eco-design of products), internal market (product stan­ dards, chemicals), transport (infrastructure, modal shift), regional policy (financial support), oceans and fisheries (marine pollution, fisheries) and agriculture (pesticides, land use, biofuels). These departments often dis­ agree regarding the kind and intensity of legislative or financial measures which the Commission should propose. Such conflicts are mainly solved by four mechanisms: first, the Commission pursues a strategic staff policy which ensures that the envi­ ronmental department does not promote too environmentally friendly proposals; this is paired with a considerable self-restraint by the Commi­ ssion which neither tries to fully implement the environmental action programmes agreed upon at the EU level, nor seriously tries to address the most relevant EU environmental problems16 – with the exception of climate change issues. Second, the Commission elaborates an impact assessment on any legis­ lative proposal and strategic policy paper before it decides on a proposal; this impact assessment is organised and steered by the Commission’s General Secretariat, which thus gains considerable influence on the drafts and their content, which is then submitted to the college of Commissioners for adoption. Third, the Commission decides as a college and tries to avoid majority decisions; this leads to the accommodation and polishing of doc­ uments before they are submitted to the 27 members of the Commission for final adoption. And fourth, the Commission did not establish any administrative or political structure to make Article 11 TFEU operational. The different departments largely work according to their own strategies and priorities and do not seriously consider presenting integrated draft proposals to the Commission which also include legitimate environmental concerns. The sheer number of growth and economy-oriented departments makes it normally impossible for the relatively small environmental department17 to actively and constructively participate in discussions of environmen­ tally relevant policies and legislation of the other departments. 16 In this author’s opinion, these are, next to climate change issues, the loss of biodiver­ sity, the omnipresence of chemicals and their impact, resource management and the EU’s responsibility for actively contributing to poverty eradication. 17 The staff of the Directorate General for the Environment of the Commission includes some 400 officials (2011).



environmental governance in the eu17 4. Distribution of Competence Between The EU and its Member States

The competence for environmental policy is shared between the EU and the Member States. Competences which are not conferred on the Union in the Treaties shall remain with the Member States.18 Thus, the general responsibility for the protection of the environment lies with the Member States. The EU may take action “only in so far as the objectives of the pro­ posed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or the effect of the proposed action, be better achieved at Union level.”19 What exactly “better” indicates is not clear: consequently, this subsidiarity principle is interpreted politically. It allows Member States to block measures at the EU level in which they do not wish to see, for reasons specific to their national policy or administration, a change in the status quo. It is normally observed that the alternative to an EU provision is not a measure taken within each of the 27 Member States; rather, experi­ ence shows that only a minority of Member States would adopt such environmental measures.20 Open conflicts on competences in environmental matters between the EU and the Member States are rare because there are sufficient mecha­ nisms to agree politically on EU activities: such as informal discussions between the Commission and Member States’ administrations within the “Policy Review Group”;21 the fixing of objectives and priority actions in environmental action programmes; and the possibility for some Member States to block undesirable Commission proposals in Council, without having to give reasons.22 In the last instance, the Court of Justice decides on competence conflicts, although the Court cannot decide when the Council does not adopt a Commission proposal. An example of dispute settlement by the Court is in the area of criminal law, in which the Court decided, against the Council, that the EU was competent to regulate the

18 Art. 4(1) TEU supra. 19 Art. 5(3) TEU supra. 20 See the examples in footnotes No. 14 and 15. 21 The Environmental Policy Review Group is comprised of high officials from central environmental administration of Member States and the Environmental Directorate General of the Commission. Its agenda, its minutes and its findings are not published. 22 For example, the proposal for a directive on the protection of soils (supra footnote No. 14) was blocked by five Member States in Council, whereas twenty-two favoured EU legislation on soils.

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protection of the environment by criminal law,23 but decided in a subse­ quent judgment that the EU had no competence regarding the kind and the level of criminal sanctions.24 5. The Court of Justice The EU Court of Justice has to ensure that EU environmental law is observed. In environmental matters, between 1976 and 2011, it has issued about 750 judgments mainly on the application of the Commission and against a Member State which had not transposed EU environmental law into its national legal order or had not applied it correctly. In more than 100 cases, a national court had asked the Court of Justice for an interpreta­ tion of EU environmental law. Individual citizens and environmental organisations only have very limited possibilities to apply to the Court regarding an EU decision; it must be directed at them or affect them directly and individually25 to be capable of being attacked in court. In addition, the provision of “direct and individual concern” is interpreted very restrictively by the Court of Justice. Environmental litigation between two Member States on EU environmental matters, although theoretically possible, has not yet taken place. The EU Court of Justice may, overall, be qualified as “integrationfriendly” and “environment-friendly”. Indeed, in the past, the Court of Justice overall favoured an EU-friendly interpretation of environmental law, against the interests of Member States. This manifested itself in the jurisdiction on the repartition of competences,26 the rights of individual citizens in environmental matters,27 in obligations for Member States which flow from specific legislative acts of the EU,28 or in an EU-friendly interpretation of environmental directives.29 Some examples are given hereafter.

23 ECJ Case C-176/03, Commission v. Council. 24 ECJ Case C-440/05 Commission v. European Parliament and Council. 25 See Art. 263 TFEU supra. 26 ECJ Cases C-92/79 Commission v. Italy; C-240/83 Défense des Brûleurs; C-278/85 Commission v. Denmark; C-155/91 Commission v. Council. 27 ECJ Cases C-131/88, Commission v. Germany; C-361/88, Commission v. Germany; C-237/07, Janecek. 28 ECJ Cases C-186/91, Commission v. Belgium; C-263/08, Djurgaarden; C-205/08, Kärnten. 29 ECJ Cases C-302/86, Commission v. Denmark; C-57/89, Commission v. Germany; C-494/01, Commission v. Ireland.



environmental governance in the eu19

Even before a specific environmental chapter was inserted into the EU Treaty, the Court held that the protection of the environment was an important objective of EU policy.30 When Member States were of the opinion that the EU had no competence to protect the environment by means of criminal law, the Court decided in favour of an EU competence.31 However, the Court was not blind in favouring EU measures: in the waste sector, it resisted attempts by the EU institutions to base the legislation on trade-related provisions and decided that Article 192 TFEU was the appro­ priate legal basis;32 this jurisdiction allowed Member States, through the application of Article 193 TFEU, to maintain or introduce more stringent requirements at the national level. On numerous occasions, the Court assumed a role which went far beyond that of an interpreter of EU environmental law and took de facto political decisions.33 This function was not limited to the environmental sector but covered all areas of EU law and was probably motivated by the imperfection of EU (environmental) law, on the one hand, and by the need to promote European integration in general, on the other hand. It is true that the environmental sector profited from this approach at numerous occasions, in almost all sectors of environmental law (water, air, waste, nature protection). Only one aspect remained excluded: the question of standing in environmental matters. The Court interpreted the provision of Article 263 TFEU, according to which standing was possible when a person or an environmental organisation was “directly and individually con­ cerned”, very restrictively and refused to accept that the environment was an issue of general interest; the result was that persons would only very occasionally have standing to promote or defend environmental interests. The Court maintained this interpretation against abundant criticism and argued that only a change of the EU Treaty itself could bring about a change in its understanding of Article 263 TFEU.34 There has been a recent finding by the Aarhus Convention Compliance Committee that the Court practice is not in compliance with the EU’s obligation under the Aarhus

30 ECJ Case C-240/83 supra.  31 ECJ Case C-176/03 supra. 32 ECJ Cases C-155/91, Commission v. Council; C-187/93, European Parliament v. Council; C-411/06, Commission v. European Parliament and Council. 33 ECJ Cases T-183/07, Poland v. Commission; C-246/07, Commission v. Sweden; T-362/08, IFAW v. Commission. 34 ECJ Cases C-50/00P, Union de Pequenos Agricultores, at Para. 45; C-263/02P, Commi­ ssion v. Jégo-Quéré, at Paras 31 et seq.

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Convention.35 It remains to be seen to what extent this finding will lead to changes in legislation or in the Court’s practice. 6. Enforcement According to the EU Treaty, the Member States shall, as a rule, implement the environmental measures which were taken at the EU level; the Commi­ ssion “shall ensure the application of the Treaties and of measures adopted by the institutions pursuant to them” and shall oversee the application of Union law (Article 17 TEU). The EU did not build up any administrative structures for making these provisions operational. Considerations to involve the European Environment Agency in the enforcement procedure failed in the early 1990s.36 Environmental inspectors or auditors were not established.37 The official reason given was the subsidiarity principle, although EU inspectors are present in the areas of competition, fisheries policy, regional policy, veterinary policy and marine policy. In addition, an attempt to bring together national environment enforcement bodies in an informal EU gathering (IMPEL) failed because a considerable number of Member States did not have environmental enforcement bodies. IMPEL, therefore, recently turned into a private EU association with no link to the EU institutions. The European Parliament could, in theory, examine petitions which it obtains from citizens to check enforcement and compliance by the Commission and by Member States. In practice, however, it sends the peti­ tions which it receives to the Commission and asks it to deal with them. This practice is particularly annoying in cases in which the Commission had not taken action to enforce EU environmental legislation. 35 Aarhus Convention Compliance Committee ACCC/C/2008/32 (Part I) (2011), available at http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-32/DRF/ C32Findings27April2011.pdf. See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) 2161 UNTS 447. 36 See, on the one hand, Regulation 1210/90 on the establishment of the European Environment Agency and the European Environment Information and Observation Network supra, Art. 20; on the other hand, Council Regulation (EC) No 933/1999 of 29 April 1999 amending Regulation (EEC) No. 1210/90 on the establishment of the European Environment Agency and the European environment information and observation net­ work (1999) OJ L117/1, which no longer refers to Art. 20. 37 The EU only adopted European Parliament and Council Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (2001) OJ L118/41, which recommended Member States provide environmental inspectors.



environmental governance in the eu21

The European Ombudsman examines cases of maladministration which include, in particular, bad enforcement of EU environmental law by the Commission. However, his activities cover all aspects of EU law; its proce­ dures take quite a long time and its conclusions are not binding thus, the Commission or the Council might easily ignore them. Within the EU Commission, there is no organisational separation between enforcement and other administrative structures. This leads to frequent interferences from the policy level in the enforcement activities. The whole process of environmental enforcement became, in recent years, subject to policy considerations which were based on the concept that the Commission should not look in too much detail at the practical appli­ cation of EU environmental legislation. The only instrument which is at the disposal of the Commission with regard to enforcement is the infringement procedure of Article 258 TFEU; if a first judgment by the Court is not complied with, the Commission may start a second procedure in which it then may ask the Court to condemn the infringing Member State to the payment of a lump sum or a penalty (Article 260 TFEU). The procedure is long: in environmental matters, it takes an average of 47 months between the formal start of the procedure and the judgment of the Court according to Article 258 TFEU. The proce­ dure under Article 260 TFEU takes, on average, more than five years in environmental matters.38 Both procedures require at least three formal Commission decisions – which leave ample room for Member States to bargain with the Commission to stop the procedure. Moreover, the Commission is obliged, under Articles 258 and 260 TFEU, to prove noncompliance by a Member State; however, it has no means to present witnesses, seize documents, or inspect sites or plants. Rather, it is limited to an exchange of letters with the Member State in question – which is time-consuming and binds human resources. These and other reasons led the Commission to concen­ trate more fully on the formal transposition of EU environmental law into the national legal order of Member States, but it does not examine whether the provisions are actually applied. For this reason, and because the legal culture in the 27 Member States is quite different, the largely uniform EU environmental provisions lead in practice to a very different practical application in Member States. This is tolerated because the environment

38 See L. Krämer, “Environmental Judgments by the Court of Justice and Their Duration” (2008) 5 Journal for European Environmental and Planning Law 263–280.

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has no voice and because economic considerations and interests prevail in most Member States and in the Commission. Overall, the Member States transpose EU directives into their national legal order, although normally with a delay that can sometimes turn into decades. The correct and complete transposition of EU environmental law is monitored by the Commission. Differences exist with regard to the dif­ ferent Member States and the intensity of the monitoring, due to staff availability, translation needs (all correspondence with Member States takes place in the Member State’s language), knowledge of the national law and other circumstances. Until now, the whole monitoring procedure, including the procedure under Articles 258 and 260 TFEU, was highly confidential. With regard to practical application, in the past, the Commission learned about bad application mainly through complaints from citizens and environmental organisations, which it then took up and examined. Beginning about ten years ago, the Commission has continually reduced complaint handling and preferred to discuss issues with Member States bilaterally, without involvement of the public. This practice has led to a situation in which bad application of existing provisions is continually less frequently sanctioned or controlled because the Commission has little or no factual information concerning the specific case of bad application. Enforcement of EU environmental law by Member States could out­ weigh these difficulties. However, Member States are frequently not inter­ ested in effectively ensuring the application of (EU) environmental law provisions because local, regional and national administrations regularly let economic interests prevail over environmental concerns. More gener­ ally, environmental enforcement authorities in the Member States are badly equipped, lacking human and financial resources, and have difficul­ ties imposing themselves on agricultural, transport, industry and other administrations. The result is that the effective and complete application of (EU) envi­ ronmental legislation remains the greatest challenge for lawyers and policymakers in the European Union, at all levels of administration. No serious intention or initiative exists to change the present unsatisfactory situation. 7. The Citizens and the EU Public involvement in environmental decision-making at the EU level is not considerable. This is due to a number of reasons. First, no EU public



environmental governance in the eu23

opinion exists. Media, radio and TV are nationally structured and journal­ ists report from Brussels what is interesting for the national audience, not what is of general EU interest. Second, the definition of what constitutes a “general EU interest” is difficult and all too often influenced by economic or financial considerations. Therefore, negotiations on environmental issues frequently have a touch of horse-trading. Third, the language problem: although 23 official languages are on record, English dominates as the language being used in about three quarters of all discussions and documents, the remaining part being in French. This eliminates large parts of the 500 million EU citizens from getting involved in environmen­ tal decision-making. And fourth, the often highly technical content of environmental decisions requires a continuous participation in the nego­ tiation process at the EU level, which often goes beyond the capacity of citizens or environmental organisations. The Commission regularly organises internet consultations on legisla­ tive and other proposals. Again, English is almost the only language which may be used in these consultations. Hearings are quite rare and hardly assemble a representative participation. The Commission does not pro­ vide a detailed account on the question of why it did or did not follow specific suggestions made during the consultation procedure. In addition, no case is known in which public consultation led to significant amend­ ments of an environmental draft proposal. The European Parliament has no right of legislative initiative, but must react to specific Commission proposals. Occasionally, it organises public hearings. However, these mostly take place within a Parliamentary Committee and are again not representative. Also, it is rather the rule that a member of Parliament learns about a specific environmental problem when he or she is confronted with a specific Commission proposal. This constellation of issues facilitates involvement of environmental NGOs as well as vested interest groups in the Parliamentary discussions. Their over­ all involvement, however, is not significant due to NGOs’ weaknesses in regard to resources and because the European Parliament’s influence on EU environmental decision-making is limited. The Council does not let the public get involved in its decisions. Mem­ ber States’ positions in legislative matters are elaborated in the capitals of the 27 Member States; it is there that public involvement may take place – provided the discussions at the EU level are followed closely enough to allow for constructive contributions. Generally, involvement in the environmental decision-making pro­ cess  at the EU level is easier for large, vested-interest groups and their

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representatives than it is for the general public and environmental organizations.39 Environmental organisations – with the exception of Greenpeace – receive financial support from the Commission which also influences their positions. Their financial and human resources are grossly insuffi­ cient to cover all aspects of EU environmental policy. In consultations, hearings or public discussions, their numeric inferiority to vested interest groups is appalling, although it remains remarkable how much they are capable of contributing, with their limited resources, to the day-to-day work of the institutions. Their most remarkable achievement appears to be that they manage to stop the institutions from completely following business (e.g., industry, traders, farmers) suggestions and interests. In that regard, the participation of environmental organisations in the elaboration and implementation of EU environmental policy – in particu­ lar, the numerous executive and implementing decisions – is effective. EU environmental policy would look different without the participation of environmental organisations. To this contributes the fact that journalists from a good number of Member States – in particular, the United Kingdom, Germany, Netherlands, the Scandinavian countries, and Belgium – are ready to listen to NGOs and to spread their arguments. NGOs are less effective in persuading the EU institutions to take new action: their involvement is more reactive than proactive. As was mentioned previously, individual persons and environmental organisations have practically no standing before EU courts. Until mid2011, all applications to the Court by an environmental NGO were held inadmissible, with the argument that citizens or NGOs were not directly and individually concerned by environmental measures which concerned the general interest. It is too early to assess whether the Aarhus Convention will lead to some changes in the Court’s case law. 8. Good Governance Principles In 2001, the Commission declared that the principles of openness, partici­ pation, accountability, coherence and efficiency should be the principles 39 In this sense, already E. Rehbinder, “Integration of Community Environmental Policy” in E. Rehbinder and R. Stewart, Environmental Protection Policy (Berlin, Walter de Gruyter & Co, 1985), at 335.



environmental governance in the eu25

of European governance.40 Ten years later, an assessment has led to the conclusion that although some modest progress has been made regarding openness, regarding participation, accountability and coherence, no sig­ nificant changes are visible and that efficiency in environmental matters needs strong improvements. The Lisbon Treaties declared openness and transparency as leading principles of EU administration. Despite legislation which was adopted to increase access to information,41 much remains to be done. The most obvious examples in the environmental sector are the lack of systematic publication of studies on the environment, in particular, implementation and conformity studies,42 the confidentiality surrounding the whole process of monitoring the application of EU environmental law, and infor­ mation on contacts of the institutions with vested interest groups. The legislative process in Council, in particular in the Council working groups, in which the essential legislative work is performed, remains non-public; minutes are not made available. Access to the institutions is easier for large, vested interest groups than for ordinary citizens or NGOs. An excep­ tion to this is the European Parliament which acts in an almost complete open and transparent manner; however, it has to be borne in mind that the weight of the Commission and the Council in legislative procedures is overwhelming. Public participation in decision-making during the Council negotia­ tions does not take place. The Commission considers participation equiv­ alent to consultation – which it is not. It mainly proceeds to internet consultations which take place in English and limit citizens’ access and often, NGOs access as well. The absence of transparency and of effective participation structures lead to the result that accountability is not well-developed. It is still

40 European Commission, European Governance – A White Paper, COM (2001) 428 final, 25 July 2001. 41 Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (2011) OJ L145/43; Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (2003) OJ L41/26; Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institu­ tions and bodies (2006) OJ L264/13. 42 See on this ECJ Case T-111/11, ClientEarth v. Commission (pending).

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relatively easy for a Member State to argue at home that this or that decision was taken at the EU level, without citizens knowing what the Member State had suggested or defended as a solution. The Council’s explanatory memorandum, which accompanies a Council position adopted during a legislative process, is much too succinct to account for the attitudes of the different Member States. The Commission does not have to account for its actions either, for example, by explaining why it does not follow a request which had been formulated in environ­ mental action programmes. EU agencies and offices do not systemati­ cally  explain and justify the reasons which led them to adopt a given position. Coherence – in the sense of integrating environmental requirements into other EU policies – is not taken serious by the EU institutions: For more than fifteen years, EU publications have regularly stated that EU transport policy is not sustainable43 – yet the orientation of this policy has not really changed. Coal and nuclear industry continue to receive more financial support from the EU than do renewable ener­ gies.  No serious steps have been taken to promote sustainable produc­ tion  and consumption, sustainable development policy or sustainable tourism. In regard to efficiency, the EU has not successfully tackled the most relevant environmental problems, such as the loss of biodiversity, the omnipresence of chemicals in the environment, and the fight against poverty. In climate change issues, it appears to assume its responsibility within the EU, but completely fails to assume a leading role in the global discussion on structures and measures. Other environmental refugees’ problems, such as air pollution in urban agglomerations, soil erosion – including, in some Member States, desertification – noise, waste and resource management did not significantly improve over the last thirty years. It is therefore not possible to call the EU environmental policy a success story. The conclusion is that the principles of good governance at the European level still need to be made operational in environmental matters.

43 See, for example, European Commission, Progress Report from the Commission on the Implementation of the European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development “Towards Sustainability” (1996), at 32; A Sustainable Future for Transport: Towards an Integrated, Technology-Led and User Friendly System (2009), at 3.



environmental governance in the eu27 9. Trends for Centralisation or Decentralisation

No clear indication exists regarding whether centralisation or decentrali­ sation of environmental issues will prevail in the future. Conversely, eco­ nomic operators need rules for the larger EU market: it is not possible to establish an internal market for goods and services and capital and labour, but leave the protection of the environment to the Member States. Therefore, in the future, all legislation that is product related will be continually more centralised. Examples include: energy consumption of goods, water-consumption, noise level and content of dangerous sub­ stances such as heavy metals. This tendency for centralisation will also apply to industrial installa­ tions. It is true that these installations are not mobile; however, the goods which they produce are mobile and the production costs and methods will have an increasing influence on the composition and price of prod­ ucts. Recent examples include provisions for the emission of greenhouse gases or best practices for installations.44 Energy, transport, agriculture and fisheries are other examples in which the trend toward centralised environmental rules is likely to increase, mainly due to increased competition among economic operators and the need to create a level playing field among them. Conversely, more traditional areas of environmental policy are likely to be more decentralised in the future because the integration capacity and the political will of the EU institutions decreased during the last decade. Among the reasons for this decrease are the deliberate placing of weak politicians and high officials at the tops of the institutions, including the environmental sector; the enlargement of the European Union which brought new persons to the institutions who are more committed to promote economic growth than environmental (or social or consumer) protection; the reflection that intergovernmental cooperation is, after all, preferable and easier to achieve than policy and legislative integration; and the consideration that it is sufficient for the EU to set a general legisla­ tive framework for environmental legislation while leaving the task of filling this framework out to the local, regional or national level in Member States. This trend toward decentralisation concerns water and waste manage­ ment, air pollution, noise and nature protection (biodiversity). In cases in 44 See Directive 2010/75 on industrial emissions supra.

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which the EU institutions consider the difficulties to reach integrated solutions to be too great, they may even decentralise issues such as nuclear safety or biotechnology. EU environmental policy and law mirrors the present uncertainties of the evolution of the European Union as such: whether the Union will further develop and better integrate national policies in economic, finan­ cial, monetary, social and structural questions or whether it will move toward an intergovernmental organisation will depend on the political will and determination of European policy makers. The environment will follow this general trend. 10. Concluding Remarks Overall, the framework for the preservation, protection and improvement of the quality of the environment in the European Union, established by the EU Treaties, is adequate: the objective of protecting the environment is placed among the core objectives of the EU. The EU has made a commit­ ment to strive for a sustainable development and, at the same time, for economic growth. The protection of the environment is to be achieved at a high level. Policies and legislation to fill this framework exist and can be further developed and completed at any time. Environmental require­ ments must be integrated into the elaboration and implementation of all other EU policies. A possibility exists to enforce environmental legislation and appeal to the EU Court of Justice when Member States fail to comply with their environmental obligations. The European Court of Justice is independent, neutral and, overall, cautiously favourable to making the environmental objectives and principles of the EU Treaties operational in day-to-day practice. The strength of the elaboration and implementation of environmental policy at the EU level therefore depends more on the political will of the EU institutions and on Member States ability to put the environmental objectives and principles into practice, rather than on major deficiencies in the institutional and legal set-up. Despite these general observations, the institutional setting for envi­ ronmental policy at the EU level is capable of being improved in the fol­ lowing areas: – A need for a public advisory body to inform and advise the Commi­ssion on long-term environmental trends, tendencies and problems exists. The environmental Commissioner in the Commission has almost never, in the thirty years before joining the Commission, dealt with environ­



environmental governance in the eu29

mental issues. Yet, he is to make decisions which may have long-terms effects on 500 million people, such as on the future of (cars and bicycles in) agglomerations, soil protection, agriculture, or energy issues. Advice on strategic questions could only be of use. – The present close link between general administrative work and the monitoring of the application of environmental law is unhealthy. In competition matters, a strict separation of tasks exists in the Com­ mission. The absence of such separation in the environmental sector leads all too often to policy interference – to the detriment of the environment. – The monopoly of the European Commission to monitor application of EU environmental law is unjustified. Citizens and environmental groups should have broader access to the EU courts to challenge the infringement of EU environmental provisions by polluters and to take action before national or EU courts against administrations which do not comply with their legal obligations to preserve, protect and improve environmental quality. The Commission is a political institution. In its daily work, it is heavily influenced by national Governments and admin­ istrations, on the one hand, and by vested interest groups, on the other hand. This dichotomy frequently leads to it subordinating concerns for the protection of the environment through legislation or through proper enforcement of existing provisions for appeasement, arrange­ ments and passivity. – Openness and transparency are the environment’s only allies. They need another ally at the EU level. The present structures favour lobby­ ing by vested interest groups. – One might think of allowing the European Ombudsman to sit as the representative of the environment and of future generations in all Commission, Council and Parliament meetings – including working groups – and intervene in the name of the environment because the environment has no voice in EU society. In this author’s opinion, however, it is clear that these proposals do not stand a chance of being accepted in the foreseeable future because the environment is too weak an interest at the EU and Member State levels. Bibliography G. Bandi et al., The Environmental Jurisprudence of the European Court of Justice (Budapest, Szent István Társ., 2008). B. A. Beijen, De kwaliteit van milieurichtlijnen. Europese wetgeving als oorzaak van implementatieproblemen (diss.) (The Hague, Boom Juridische uitgevers, 2010).

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M. Boye and C. Ege, EU Environmental Policy. Can Free Trade and Environment Go Together? (Copenhagen, EEB Publications, 1999). L. Cashman, “Compliance Promotion and Enforcement in the Field of the Environment” (2006) 3 Journal for European Environmental and Planning Law 385. N. de Sadeleer, Environnement et marché intérieur: commentaire Mégret (Brussels, Editions de l’ULB, 2010). C. Demmke, Europäische Umweltpolitik und nationale Verwaltungen: Rolle und Aufgaben nationaler Verwaltungen in Entscheidungsprozess (Maastricht, EIPA Publications, 1998). N. Dhondt, Integration of Environmental Protection into Other EC Policies (Groningen, Hardback, 2003). A. Epiney, Umweltrecht in der Europäischen Union. Primärrechtliche Grundlagen – Gemeinschaftliches Sekundärrecht (2nd ed.) (Cologne, Carl Heymanns Verlag, 2005). European Commission, First Environmental Action Programme 1973–1976 (1973). European Commission, Progress Report from the Commission on the Implementation of the European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development “Towards Sustainability” (1996). European Commission, European Governance. Preparatory Work for the White Paper (Luxemburg, European Communities, 2002). European Commission, A Sustainable Future for Transport: Towards an Integrated, Technology-Led and User Friendly System (2009). A. García Ureta, Derecho europeo de la biodiversidad: aves silvestres, habitats y especies de flora y fauna (Madrid, Iustel/Gómez Acebo&Pombo, 2010). M. Hedemann-Robinson, Enforcement of European Environmental Law. Legal Issues and Challenges (Oxon, Routledge-Cavendish, 2007). J. Jans and H. Vedder, European Environmental Law (4th ed.) (Groningen, Europa Law Publishing, 2012). L. Krämer, “Thirty Years of EC Environmental Law: Perspectives and Prospectives” (2002) 2 Yearbook of European Environmental Law 155. L. Krämer, “Environmental Judgments by the Court of Justice and Their Duration” (2008) 5 Journal for European Environmental and Planning Law 263–280. L. Krämer, EU Environmental Law (7th ed.) (London, Sweet & Maxwell, 2011). M. Lee, EU Environmental Law: Challenges, Change and Decision-Making (Modern Studies in European Law) (Oxford and Portland, Oregon, Hart Publishing, 2005). R. Macrory (ed.), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2005). R. Macrory, Regulation, Enforcement and Governance in Environmental Law (London, Cameron May, 2008). S. Mahmoudi, EU:s miljörätt (2nd ed.) (Stockholm, Norstedts Juridik, 2003). K. Messerschmidt, Europäisches Umweltrecht (Munich, Beck Juristischer Verlag, 2010). M. Moreno Molina, Derecho comunitario del medio ambiente Marco institucional, regulación sectorial y aplicación en España (Madrid, Marcial Pons, 2006). M. Onida (ed.), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004). M. Pallemaerts, Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism (Oxford, Hart Publishing, 2003). E. Rehbinder and R. Stewart, Environmental Protection Policy (Berlin, Walter de Gruyter & Co, 1985). P. Thieffry, Droit de l’environnement de l’Union européenne: Eléments de droit comparé américain, chinois et indien (Collection Droit de l’Union européenne) (Brussels, Bruylant, 2008). A. Weale et al., Environmental Governance in Europe. An Ever Closer Ecological Union? (Oxford, Oxford University Press – OUP, 2002). P. Wenneraas, The Enforcement of EC Environmental Law (Oxford Studies in European Law) (Oxford, Oxford University Press – OUP, 2007).

PART I B: CLASSIC FEDERAL MODELS

ENVIRONMENTAL GOVERNANCE IN THE UNITED STATES LeRoy Paddock and Jennifer Bowmar1 Introduction Upon winning their independence, representatives from the fledgling union of former British colonies that would become the United States of America set out to establish a new form of government. Out of extensive debate and compromise arose the multi-layered system that is still in place today—a system that distributes governing authority between the individual States’ and the federal Governments. The balance of power that was struck, as set out in the U.S. Constitution, grants responsibility for regulating those activities generally affecting the Nation as a whole to the federal Government, and reserves to the individual State Governments all authority not expressly granted to the federal Government nor expressly withheld from the States. In this system, the States maintain considerable discretion on matters within their borders while the country is united on matters of national concern. This delicate balance between State autonomy and national consistency is particularly important in the context of environmental protection in the United States. The line demarcating federal from State authority is not a bright line in any context, and environmental protection in particular often presents a conundrum. Pollution, whether it be in air, water, or ground, does not respect political boundaries, creating interstate and international pollution issues that would seem to be of national concern; yet at least some of the key issues that arise in controlling pollution, such as property rights and land use regulation, are areas traditionally considered to be within the purview of the States. Because of this dichotomy, environmental protection in many ways tests the viability of the core federalism model that was established in the U.S. Constitution. In U.S environmental protection, the multi-layered system creates possibilities for conflict between the State and the federal Government, 1 LeRoy C. (Lee) Paddock is Associate Dean for Environmental Legal Studies, George Washington University Law School, Washington, D.C., USA. Jennifer Bowmar is Environmental Law Fellow and Visiting Associate Professor of Law, George Washington University Law School, Washington, D.C., USA.

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but it also provides meaningful opportunities for their cooperation. Environmental protection programs that successfully leverage the reso­ urces, authority, and expertise available at each level of government have the potential to achieve far more effective results than any level of government could achieve acting alone. This chapter will explore the theory and practice of environmental protection in the U.S.’s multi-layered federal system. A brief general overview of the federal system of government will set the stage for a more detailed discussion of the role federalism plays in environmental protection in the U.S. This chapter will focus on examples taken primarily from the statutory programs controlling water pollution, but as appropriate will also describe the programs for controlling pollution in other media. Issues to be explored include the uncertain scope of federal jurisdiction over environmental resources, the joint role State and federal actors play in developing pollution limitations and in implementing environmental statutes, and the role of the public engagement in environmental programs. 1. The Federalism Model in the United States Federalism may be thought of as the method for “allocating authority to the level of government best suited to address the problem at hand.”2 Because the U.S. is a single sovereign Nation that comprises individual and in many regards separately sovereign States, federalism permeates the U.S. governmental structure, including in the area of environmental protection. The modern American multi-layered model of government emerged in the 18th century through the U.S. Constitution, but the roots of this federal system can be traced to the governmental structures that had existed in the British colonies in North America before the Revolution. Residents of the colonies had long been subject to their own particular multi-layered structure of authority that included colonial assemblies, colonial royal governors, the British Parliament, and the King’s Privy Council.3 Discord regarding the aggressive exercise of power by the distant British Parliament and King over daily colonial life, especially in taxation, erupted into 2 D. T. Kendal (ed.), Redefining Federalism: Listening to the States in Shaping “Our Federalism”, (Washington, D.C., Environmental Law Institute, 2004), at 27–28. 3 A. L. LaCroix, The Ideological Origins of American Federalism, (Cambridge, Massa­ chusetts, Harvard University Press, 2010), at 12.



environmental governance in the united states35

the hostilities of the American Revolutionary War. Following the war, extensive debate occurred over how power should be allocated between the individual States and the new national Government. From this background grew the American notion that local governance over local issues must be a part of any new governing system in the United States, and that a loosely bound “league of friendship” among the independent States was preferable to a single, powerful centralized government.4 The fledgling government soon floundered under this model of federalism. Chief among the shortcomings of the weakly-joined Confe­ deration was its inability to regulate commerce and assure free movement of goods between the States.5 A new constitutional convention was convened to re-envision the necessary federalist balance of power, which produced the governance structure that has now endured in the U.S. for over 200 years.6 The Constitution that emerged draws on and retains the basic premise of State sovereignty over matters of local concern, but provided a more cohesive union through a centralized, federal government that is empowered with exclusive or pre-emptive control over limited areas that are necessary to provide for the general welfare and common defence of the entire Nation. State sovereignty is a hallmark of federalism in the U.S. As explained by one of the primary architects of the Constitution during its drafting, “[t]he powers delegated by the proposed Constitution to the Federal Govern­ ment, are few and defined. Those which are to remain in the State Governments, are numerous and indefinite.”7 Solidify this intention, the 10th Amendment to the Constitution announces in no uncertain terms that “[t]he powers not delegated to the United States by the Constitution, 4 C. Berkin, A Brilliant Solution: Inventing the American Constitution (Orlando, Harcourt Inc., 2002), at 17. The first attempt to establish a multi-layered form of government was spelled out in a document called the Articles of Confederation. Under the Articles, the States formed a union that was tenuous, giving overwhelming authority to the individual States with a largely impotent national government. 5 See generally ibidem at 11–29. 6 Ibidem at 31. The need for unified rules over channels of commerce led a group of Virginians to initiate negotiations with representatives from Maryland to develop an agreement that would govern both States’ use of their shared rivers and bays. These negotiations expanded in scope to take on larger issues of interstate commerce, with representatives from additional States joining in the discussions. Recognizing that the drastically Statefavouring balance of power under the Articles was untenable, representatives from five States called for a Convention to address matters involving interstate commerce, which they noted might require “correspondent adjustment of other parts of the Federal System.” 7 J. Madison, The Federalist No. 45 (1788), available at http://constitution.org/fed/ federa45.htm, at 258.

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nor prohibited by it to the States, are reserved to the States respectively, or to the people.”8 Each State exercises general police powers, protecting the general health, safety, and welfare of the people within the State. To the federal Government falls the duty to oversee those areas of life that impact, or require consistent application within, the Nation as a whole such as directing the military, entering into treaties with foreign Nations, and assuring free commerce among the States.9 In those grey areas were State and federal powers overlap, State laws must give way to federal laws when the two are incompatible. The Supremacy Clause set out in Article VI, Clause 2 of the Constitution establishes expressly that the Constitution and constitutionally-valid federal laws are the “supreme law of the land”.10 Federal laws supersede, or pre-empt, conflicting State laws that purport to regulate in any area that falls within Congress’s authority to regulate. “The laws of the United States, then, made in pursuance of the Constitution, are to be the supreme law of the land, anything in the laws of any State to the contrary notwithstanding.”11 Because its powers are limited, for the federal Government to act it must found its action on some express grant of power in the Constitution. The primary source of authority for federal control over the environment is through the Commerce Clause, set out in Article I, Section 8, Clause 3.12 Under the Commerce Clause, Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”13 In the era since World War II, the Commerce Clause has been broadly construed to grant to Congress broad power to regulate not only interstate   8 U.S. Constitution (U.S. Const.), Amend. X. States’ exercise of their police powers include such activities as developing and enforcing comprehensive criminal codes, establishing and administering zoning regulations, and creating and implementing building code standards. Regulation over much of the routine aspects of daily life falls exclusively within the control and jurisdiction of the individual States.   9 See U.S. Const., Art. I, Para. 8. 10 U.S. Const., Art. VI, cl. 2.  11 McColloch v. Maryland, (1819) 17 U.S. 316, at 327. 12 An additional source of power of significant relevance in the context of environmental protection in general, but not in regard to the State/federal balance in environmental protection, is the Property Clause. The Property Clause, set out in Art. IV, s. 3, cl. 2, grants to Congress the power to make use of public property. This power in particular serves as a basis for federal regulation and control of natural resources in national parks and forests, and other publicly owned lands. Among the manifestations of this authority is the ability of the federal Government to require that States maintain at least a minimum flow of water in rivers to support fish populations even though the States have general authority to allocate water use. 13 U.S. Const., Art. I, Para. 8, cl. 3.



environmental governance in the united states37

trade but also the “means and methods” for interstate trade and in some circumstances wholly intrastate activity when it has the potential to affect interstate commerce.14 The U.S. Supreme Court characterized the scope of Congress’s power through the Commerce Clause as the authority to regulate “the use of the channels of interstate commerce,” “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and “those activities having a substantial relation to interstate commerce.”15 Even where Congress is without power to act, it may find means to wield significant influence indirectly through its exercise of the Spending Clause, found in Article 1, Section 8, Clause 1 of the Constitution. The Spending Clause grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” The Spending Clause has been held capable of providing Congress with a means to encourage or compel States to regulate over matters beyond those areas that the federal Government may directly regulate, by placing conditions on a State’s receipt of federal money.16 The “power of the purse” can be a potent tool for the federal Government to exert authority indirectly in environmental protection, because States are loath to render themselves ineligible for federal funds and will often begrudgingly but voluntarily take actions that fall within their exclusive control in order to meet conditions on federal money. 2. Evolution of the Multi-Layered System in Environmental Protection Until the middle of the 20th century the federal Government played a relatively small role in environmental protection. Each State oversaw 14 See, for example, Wickard v. Filburn, (1942) 317 U.S. 111, (finding a law that limit how many acres of wheat could be grown could be constitutionally applied to wholly intrastate activities where such individual intrastate activities taken together could substantially impact interstate commerce). 15 U.S. v. Lopez, (1995) 514 U.S. 549, at 558–9. A corollary doctrine to the Commerce Clause that has been inferred by the U.S. Supreme Court is known as the Dormant Commerce Clause. This doctrine holds that since Congress was granted the express power to regulate commerce between and among the States, then by implication States’ powers in such areas are limited, rendering State laws that restrict interstate commerce constitutionally invalid. 16 The seminal case considering Congress’s use of the Spending Clause to indirectly regulate is South Dakota v. Dole, (1987) 438 U.S. 203. In that case, Congress had established

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protection of resources within its own State. As pollution problems became more evident and the impact of pollution on interstate commerce became more obvious, however, the federal role in environmental protection quickly grew. Early environmental protection laws largely evolved from common law concepts that had passed to the American colonies from England. Wildlife protection, for example, evolved from the property rights-focused “rule of capture”. Regulation of wildlife resources occurred exclusively at the State level in the form of hunting and gaming restrictions, and was thought to fall outside the authority of the federal Government to regulate all together. Federal control over water resources focused on preventing obstructions that would limit navigability, not on water quality protection. The Rivers and Harbors Act of 1899,17 a federal statute that survives today, demonstrates that navigability drove early federal water pollution control in its Paragraph 13 prohibiting unpermitted discharge of “any refuse matter of any kind or description whatever other than flowing from streets and sewers and passing therefrom in a liquid State.” It was only as the United States transitioned from a principally agrarian to an industrialize society that awareness of the potential impacts of resource depletion by over-consumption and pollution on interstate commerce provided motivation for the federal Government to intervene in the realm of environmental protection. But even then, the laws left to the States the primary roles. The evolution of early water pollution control laws demonstrates the secondary role of the federal Government as a mere supporter of State control over environmental protection in the early 20th century. The first federal legislation to focus on water quality degradation caused by pollution was enacted in 1948. It assigned the governors that for certain federal highway funding, the amount of funds a State could receive would be reduced unless the State established a minimum age limit to purchase alcohol of 21 years. The most prominent example of this arose in regard to a condition in a federal highway funding provision that would reduce the amount of funds a State could receive unless the State enacted a minimum age limit to purchase alcohol at 21 years old. The State of South Dakota, which allowed legal purchase of alcohol by anyone aged 19 or older, challenged the constitutionality of this condition on highway funding, arguing that the 21st Amendment to the Constitution granted to the States the exclusive authority to regulate the sale of alcohol. Upholding the provision, the U.S. Supreme Court held that even if Congress could not directly set a national minimum drinking age, this was a valid exercise under the Spending Clause because reducing interstate drinking-and-driving was of national importance, the loss of federal funds that would result in a State’s failure to enact a 21 year old limit was unambiguous, and no other constitutional provision would be violated if South Dakota were to raise its drinking age to 21. 17 Rivers and Harbors Act 1899.



environmental governance in the united states39

of the State authority to control water pollution, with the federal role limited to research and technical assistance.18 The federal role grew over time with a grant program that provided funding for States to develop water pollution control plans.19 By 1965, each State was required to develop water quality standards for navigable, interstate waters, which were submitted to the federal Government for approval.20 The modern age of environmental protection began with the passage of the National Environmental Policy Act of 196921 that established the environment as a matter of concern for every federal agency and presaged the flurry of environmental regulation that was to come. The 1970s saw an explosion in major federal regulation with the passage of the Clean Air Act in 1970,22 the Federal Water Pollution Control Act in 1972 (later renamed the Clean Water Act),23 the Endangered Species Act in 1973,24 and the Resource Conservation and Recovery Act in 1976.25 These modern laws largely place the federal Government in the primary role of regulator and thereby raise issues of federalism. Of particular relevance in terms of federalism, and the focus of further discussion here, are those statutory schemes where a federal agency is directed to establish nationally-applicable pollution control standards. These federal standards pre-empt inconsistent State laws, although many of the laws leave to the States the power to enact standards that are more environmentally protective than the federal “floor”. Underlying the need for national minimum standards is security against the so called “race to the bottom” predicted to occur in the absence of minimum standards. The race to the bottom argument posits that without minimum national standards, at least some States will lower its own environmental standards to a sub-optimal level in order to entice industries to site their facilities within their borders.26 In addition to the race to the

18 Detailed information about the programs under this early water act are available in the Senate Report issued in regard to Federal Water Pollution Control Act of 1972. Committee on Public Works, The Federal Water Pollution Control Act Amendments of 1971, Report of the Committee on Public Works (1971).  19 Ibidem. 20 Ibidem at 2. 21 National Environmental Policy Act 1969. 22 Clean Air Act 1963. 23 Clean Water Act (CWA) 1972. 24 Endangered Species Act 1973. 25 Resource Conservation and Recovery Act 1976. 26 See H. N. Butler and J. R. Macey, Using Federalism to Improve Environmental Policy, (Washington, D.C., AEI Press, 1996), at 21.

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bottom concerns, allowing each State to set its own environmental controls could, and before the advent of national standards often did, result in significant variations among environmental regulations in various States leading to inefficiency and confusion for businesses operating in interstate commerce.27 This desire for certainty and national consistency was at least one of the factors that led some industries to call for more uniform national environmental regulations. The automotive industry has, for example, consistently supported national, uniform emissions standards rather than face what would be a very difficult task of building automobiles to meet environmental standards that vary by State.28 Transboundary impacts from pollution—both interstate and international—additionally support enactment of consistent national minimum standards that ensure downstream States are not victims of excessive pollution inflicted on them by upstream States. Further, the economic and social welfare of America as a whole depends on the conservation of resources shared by the individual States, including air and water and natural resources. Although sound in theory, these justifications for centralized environmental protection are not without their critics.29 The “one-size-fits-all” approach that national environmental standards impose fails to account for the tremendous differences across the Nation—geographical, ecological, social, and political—and consequently also fails to optimize the unique opportunities for environmental protection that those differences might provide. Supreme Court Justice Louis Brandeis famously explained that the U.S. federal system allows each State to “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”30 California, for example, in many ways rebuts the race to the bottom theory underlying the purported need for centralized envi­ ronmental protection standards. California has consistently sought to impose standards more stringent than national levels. California pushed to impose stronger mobile source air emissions standards for new vehicles than those proposed by the federal Government, ultimately prompting Congress to enact a special provision in section 209 of the Clean Air Act 27 Ibidem at 33. 28 See H. M. Osofsky, “Diagonal Federalism and Climate Change Implications for the Obama Administration” (2011) 62 Alabama Law Review 237, at 272–3. 29 For detailed arguments against the race-to-the-bottom theory for centralized environmental protection, see R. L. Revesz, “The Race to the Bottom and Federal Environmental Regulation: A Response to Critics” (1997) 82 Minnesota Law Review 535. 30 New State Ice Co. v. Liebmann (J. Brandeis dissenting), (1932) 285 U.S. 262, at 311.



environmental governance in the united states41

that allows California (but no other State) to impose regulations that are more stringent than federal regulation.31 California has also enacted the most stringent State-level environmental review law with its California Environmental Quality Act.32 States have also regulated in a number of areas where Congress has yet to act. For example, a number of States have adopted wetlands regulations that are well beyond the scope of the regulations found in the Clean Water Act.33 In addition, while climate change legislation has stalled at the federal level, California enacted Assembly Bill 32: Global Warming Solutions Act (AB 32) in 200634 to establish its own greenhouse gas cap-and-trade program to operate on an intrastate level.35 Similarly, two regional coalitions of States have formed to develop regional greenhouse gas emis­ sions  cap-and-trade initiatives: the Western Climate Initiative;36 and the Regional Greenhouse Gas Initiative.37 These examples demonstrate that while the federal Government now leads most environmental protection efforts in the U.S, States still have authority to act where the federal Government has not occupied the field and many States are doing so. While some environmental statutes place nearly all control at the federal level, many pollution control laws utilize a system of “cooperative federalism”, where authority to set and enforce pollution controls is shared to varying degrees between federal and State Government agencies. Under cooperative federalism, States may assume key roles in pollution control, with federal guidance and oversight. Cooperative federalism leverages the manpower and resources that are more abundant at the State level, as well as legal mechanisms that constitutionally fall within the States’ exclusive authority, to achieve national environmental standards in a way that can 31 Clean Air Act 2010, supra, Para. 7543. All other States have the option of either adopting the national standard set out in the CAA or adopting California’s stricter standard, but no third variation is permissible. 32 California Environmental Quality Act 1970, in Californian Public Resources Code, Paras 21000 et seq. 33 In the forty-eight States that have not received delegated authority to regulate the deposit of dredge or fill materials into wetlands pursuant to Para. 404 of the CWA, supra, Para. 401 requires those States to certify federally-issued permits will not violate their water-quality based standards. Through this certification process, States may compel conditions be included in the federally-issued permit, including conditions that provide greater pollution protections than are required under the CWA. 34 Global Warming Solutions Act (AB 32) 2006. 35 The California Environmental Protection Agency’s Air Resource Board maintains information on their website about AB 32, available at http://www.arb.ca.gov/cc/ab32/ ab32.htm. 36 See Western Climate Initiative website at http://www.westernclimateinitiative.org. 37 See http://www.rggi.org/.

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also allow for some degree of State-level flexibility. These cooperative federalism programs, which have met with varying success, are the focus of the remainder of this chapter. 3. The Multi-Layered System in Context: Examples from Water and Air Pollution controls programs established in two environmental statutes, the Clean Water Act and the Clean Air Act, provide quintessential examples of cooperative federalism, demonstrating how responsibilities are currently allocated between federal and State actors in the U.S.’s multilayered system. 3.1. Water Pollution Control The Clean Water Act evolved from a series of attempts to regulate pollution into the Nation’s waters. Predecessor statutes to the modern Clean Water Act placed the States in the primary role of controlling water pollution. A significant paradigm shift in water pollution control occurred when Congress dramatically expanded the federal role in water pollution control by enacting the 1972 amendments to the Federal Water Pollution Control Act (often referred to as the Clean Water Act or CWA). Rather than focusing first and foremost on ambient water quality-based standards established by each State for its waterbodies as had been the principle but often ineffective control mechanism since 1965, the 1972 Act mandated that wastewater effluent discharged from point source meet specific, federally-developed pollution limits that apply nationwide and are established based on best control technologies available on an industryby-industry basis as determined through federal rulemaking.38 Ambient water quality requirements, as established by the individual States, became a secondary means of pollution control and, as the Senate Report on the CWA observed, under the new law “[w]ater quality [became] a measure of program effectiveness and performance, not a means of elimination and enforcement.”39 Interestingly, the Senate Report noted that the 1972 Amendments were drafted with the “intent to restore the balance of Federal-State effort in the program.”40 (emphasis added) 38 Senate Report 92–414/1971, at 1, issued in regard to Public Law 92–500 Federal Water Pollution Control Act of 1972, at 7. 39 Ibidem. 40 Ibidem.



environmental governance in the united states43

Under CWA Paragraph 301, the U.S. Environmental Protection Agency (U.S. EPA), a federal-level agency, sets effluent pollutant limits for point source dischargers based on their particular industrial category. The limits are established on a pollutant-by-pollutant basis, and apply nationwide without regard to the discharger’s geographical location or the quality of the particular receiving water into which the discharge occurs. The limits are established by determining what level of pollution control is achievable using the highest levels of pollution control technology, which has given rise to the moniker “technology-based standards”. These standards create a floor of pollution control.41 The federal Government’s lead role in establishing technology-based standards reflects the need for nationwide consistency in pollution controls and the desire of many firms to have a level playing field throughout the country. Section 303 of the CWA creates a parallel, secondary pollution control system based on ambient water quality standards, and it is in this system that the States have a much larger leadership role as compared to the technology-based standards program. Each State has the responsibility to assign each of its waterbodies a “designated use” based on the needs and priorities of that State. Based on that designated use, the State determines the maximum ambient pollutant levels that can be present in the waterbody and still allow for its use for the designated purpose and from that the total maximum daily load (TMDL) of pollutants that can be discharged from all sources that will ensure the ambient water quality is within the allowable range is determined. The State then develops an implementation plan to allocate the TMDL of pollutants to each contributor, both point or non-point sources, discharging pollutants to each waterbody. States, wielding their plenary policy powers, have the ability to regulate pollutant contributions from non-point sources such as farms and construction sites, through means such as land use restrictions, zoning requirements, and building ordinances, which are largely unregulated under the primary technologybased effluent control program. 41 States are free to impose higher standards and some States have done so. See CWA, Para. 510 (establishing a federal floor for water pollution standards by allowing States to adopt their own standards or limitations while prohibiting States from adopting standards “less stringent” than those set out in the CWA). Other States have adopted legislation that prohibits their environmental agencies from imposing effluent regulations more stringent than required by federal law. See J. M. Organ, “Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems” (1995) 54 Maryland Law Review 1373.

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All pollution discharges from point sources into waters of the United States are illegal unless permitted through a National Pollution Discharge Elimination System (NPDES) permit. Federalism impacts NPDES permit issuance in multiple ways. The effluent pollutant limits imposed through the permit will be based on the technology-based limits as well as State-developed TMDLs based on water-quality standards. Also, as will be discussed further below, the U.S. EPA is by default the administrator of the NPDES permit program but States have the ability to assume delegated administration of the program. Additionally, before any federally-issued NPDES permit may be granted by U.S. EPA, the State in which the discharge originates must first certify that the discharge will not violate the water quality standards; a State’s refusal to make this certification unconditionally blocks U.S. EPA from issuing the permit. 3.2. Air Pollution Control Control of air pollution emissions through the Clean Air Act provides another example of how State and federal levels coordinate to implement pollution control strategies in the United States. The earliest control over air pollution in the United States arose under the common law concept of nuisance. As industrialization became more widespread in the late 19th century, cities began enacting smoke ordinances. In the 20th century, concern began to grown about the adverse health effects from air pollution. Like early water pollution statutes, the earliest federal legislation over air pollution put the States in the principal regulator role with technical and financial assistance from the federal Government. The 1955 Air Pollution Control Act established a federal program to provide research and technical assistance to establish the causes and effects of air pollution.42 The federal role in air pollution control grew in the 1960s with the first version of the Clean Air Act. This statute called for the federal Depart­ ment of Health, Education, and Welfare (HEW) to provide to the States scientific information about the effects of certain air pollutants, and allowed federal enforcement actions to be taken to abate pollution that endangered human health or welfare. In 1967 came the Air Quality Act, which authorized the HEW to designate air quality control Regions, for which the States were to adopt ambient air quality standards along with

42 Air Pollution Control Act 1955, Ch. 360.



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implementation plans that were subject to HEW approval, to achieve the standards. The modern Clean Air Act (CAA) was passed in 1970,43 with was amended substantially in 1977 and again in 1990. In its current form, the CAA relies heavily on the multi-layered system to achieve air quality goals, particularly in regard to achieving National Ambient Air Quality Standards (NAAQS).44 With goals of both improving “dirty” air areas and also maintaining areas where “clean” air exists, the CAA employs a system of federally-developed national standards implemented through detailed State-developed implementation plans that are driven by federallyestablished deadlines for overall compliance. State Implementation Plans (SIPs) must be approved by the U.S. EPA; should a State fail to develop an acceptable SIP, the U.S. EPA can step in to develop a Federal Implement Plan (FIP). 4. Enforcement and Delegation Few environmental statutes place an outright ban on polluting; environmental statutes generally allow some degree of pollution while placing controls on the quantities allowed or the methods of handling polluting materials and impose requirements aimed to conserve natural resources.45 Some statutes, like the Resource Conservation and Recovery Act that applies to the disposal of solid and hazardous wastes, create detailed protocols for handling and disposal of potentially polluting materials along with strict reporting requirements that minimize potential dangers to public health and the environment. Most environmental statutes use permit programs that in effect grant to the permittee a license to pollute up to the permitted quantities and in the permitted manner. 43 The current version of the Clean Air Act, supra, is codified as amended at 42 U.S.C. Paras 7401–7671q. Specific changes in each of the major amendments can be found in the Clean Air Act Amendments of 1970; Clean Air Act Amendments of 1977; and Clean Air Act Amendments of 1990. 44 NAAQS are established for “criteria pollutants.” Two standards are set for a criteria pollutant: a “primary” limit that protects human health with an adequate margin of safety, and a “secondary” limit that protects welfare (plant and animal life, aesthetics, property). The six criteria pollutants for which EPA has set NAAQS are Carbon Mon­ oxide (CO), Nitrogen Dioxide (NO2), Ozone (O3), Lead (Pb), Particulate Matter, and Sulfur Dioxide (SO2). 45 As an example of one of the few outright bans in environmental law in the U.S., Congress banned domestic production of polychlorinated biphenyls (PCBs) as of 1979 under the Toxic Substances Control Act (TSCA) 1976, Para. 2605e(3)Ai.

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Environmental permit requirements apply to tens of thousands of facilities across the country making it all but impossible for the U.S. EPA to directly administer the permitting process in every State. To address this issue and to allow for a significant State role in environmental protection, Congress authorized the U.S. EPA to “delegate” its authority under some programs to issue permits, conduct inspections, and enforce environmental requirements to the States if prescribed conditions are met. Under such programs, a State may choose to pursue delegation to stand in the shoes of the federal agency in applying federal law so long as the State demonstrates that it has adequate authority and resources to manage the program, or to apply State law in lieu of federal law by demonstrating its program is substantially equivalent to the federal program.46 Under some statutes, such as NPDES permit program, the EPA lacks discretion to refuse delegation to a State upon the State’s showing its version of pollution control law meets certain minimum criteria.47 This shared responsibility is the heart of cooperative federalism in the US. Delegation allows the federal Government to rely on the States’ manpower and local expertise to implement nationally-set standards; delegation allows States to tailor their permitting and enforcement programs in the most efficient and effective way to achieve their own environmental and economic agendas.48 Once a State takes primary responsibility for implementing an environmental law, the U.S. EPA typically suspends most of its own enforcement activities in that State and instead takes on an advisory role.49 State authorization is popular in the area of water pollution control—forty-six States have received authority to administer their own State version of the CWA’s NPDES permit program. Once a State assumed primary responsibility to administer an environmental permit program, the U.S. EPA takes on an oversight role, providing guiding and generally overseeing the adequacy of the State’s permitting, inspection, and enforcement activities.50 46 C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship (Washington, D.C., Environmental Law Institute, 2003), at 93. 47 Ibidem at 94–5. See CWA, Para. 402b. 48 The Emergency Planning and Community Right-to-Know Act (EPCRA) 1986, Paras 11001 et seq., provides an example of State delegation of a federal law. EPCRA sets out requirements for covered facilities to report to the State the presence at the facility of certain hazardous substances, and places in the hands of the individual States the authority and responsibility to carry out the requirements set out in the statute. 49 C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship supra, at 98. 50 Ibidem.



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U.S. EPA’s Revised Policy Framework for State/EPA Enforcement Agree­ ments51 sets out the framework under which the U.S. EPA and a State establish a relationship for State assumption of an environmental program with U.S. EPA oversight thereof. State assumption of environmental law implementation and enforcement does not, however, relieve the U.S. EPA of ultimate responsibility for ensuring the requirements of those laws are met, and under this multilayered cooperative system of environmental program delegation, a State’s failure to adequately and timely enforce its delegated authority can trigger competing or overlapping federal enforcement. In the absence of any State enforcement action, the U.S. EPA may initiate its own enforcement action. More controversially, the U.S. EPA may file its own enforce­ ment  action against a violator should EPA determine that the State enforcement action is inadequate notwithstanding concurrent enforcement action being taken by a State in a process known as “overfiling”.52 Overfiling is extremely rare, accounting for only 0.1 to 0.3 per cent of all federal enforcement actions.53 Not only is overfiling politically controversial, the potential for overlap of enforcement actions by separate sovereigns in an overfiling situation raises complicated legal questions such as the application of res judicata and the propriety of judicial stays.54 Additionally, if delegated States fail to carry out their responsibility, the U.S. EPA may withdraw a State’s authorization to implement the pollution control program altogether.55 Withdrawal, although technically an option, is rarely done as it is not only procedurally difficult but is extremely controversial politically. One of the very few examples of program with­ drawal occurred recently when EPA eliminated the Texas Commission on

51 Available at http://www.epa.gov/compliance/resources/policies/state/enforce-agree -mem.pdf. 52 C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship supra, at 107. For an overview of federalism issues implicated with overfiling, see E. R. Zahren, “Overfiling under Federalism: Federal Nipping at State Heels to Protect the Environment” (2000) 49 Emory Law Journal 373. 53 J. A. Mintz et al., Environmental Enforcement: Cases and Materials (Durham, N.C., Carolina Academic Press, 2007), at 21. 54 Ibidem. For more detailed discussion of unsettled legal questions raised by overfiling, see C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship supra, at 108–115; see also L. Dittman, “Overfiling: Policy Arguments in Support of the Gorilla in the Closet” (2000) 48 UCLA Law Review 375. 55 C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship supra, at 106–7.

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Environmental Quality’s delegated power under its “flexible air permits” program for failing to meet the requirements of the Clean Air Act.56 5. Role of the Public An additional layer not yet mentioned exists in the multi-layered federalism model in the U.S.—that is the role of the public. Empowering public participation in environmental governance has been described by one scholar as “essential to our democratic experiment”.57 The public plays three crucial roles in the implementation and enforcement of environmental laws: as voters by electing political representatives whose envi­ ronmental priorities reflect their own; by participating in the promulgation of environmental regulations and the issuance of individual permits through the notice and comment rulemaking procedure and public hearing process established under the federal Administrative Procedure Act58 or equivalent State laws; and by directly initiating enforcement actions under citizen suit provisions in environmental laws. At each of these levels, “encouraging public participation has proven difficult.”59 In practice, environmental laws tend to be very complex and technical, which hinders widespread participation by lay persons who cannot afford to enlist assistance from attorneys and subject matter experts, placing individual members of the public in a position of lesser power as compared to well-financed industry groups. Additionally, public involvement opportunities may come too late in the process for public groups to substantively contribute. In the context of rulemaking, by the time a proposed rule is published for comment, regulators have devoted significant time and effort to studying the underlying problems and drafting a regulatory solution. According to one author, officials “rarely

56 See N. S. Malik, “EPA Rejects Texas Flexible Air-Quality Permit Authority” (30 June 2010) Wall Street Journal; See also, “EPA’s War on Texas” (3 January 2011) Wall Street Journal, at A16. 57 M. B. Mihaly, “Citizen Participation in the Making of Environmental Decisions: Evolving Obstacles and Potential Solutions through Partnership with Experts and Agents” (2009–2010) 27 PACE Environmental Law Review 151. 58 Administrative Procedure Act 1946. 59 D. L. Markell and T. R. Tyler, “Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens’ Roles in Environmental Compliance and Enforcement” (2008) 57 Kansas Law Review 1.



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hear or read testimony from lay participants that changes their mind or adds substance to their determinations.”60 For wastewater discharge permits, for example, regulations typically only require public involvement at the draft permit stage when the regulator and the permit applicant often have already reached agreement on how to proceed. The U.S. EPA suggests, but does not require involving the public early in the permitting process.61 “Citizen suits are probably the best known vehicle for citizens to participate in environmental enforcement and compliance work. Each of the major environmental regulatory statutes creates a cause of action for citizens, allowing citizens with standing to bring suit in federal district court and claim a regulated party is operating in violation of one or more federal environmental laws.”62

Lawsuits initiated under these so-called citizen suit provisions can fill in the gaps of enforcement that result from Government agencies that have too few resources to pursue actions against violators other than the most egregious. There are procedural barriers to citizen suits. Typically, citizen suit provisions in environmental statutes require that the permitting authority (State or federal) be given 60 days advance notice of the “intent to file” a lawsuit. If the permitting authority initiates an enforcement proceeding prior to the expiration of the 60 day time frame, the citizen suit is preempted. The cost of bringing litigation can hinder citizen suits due to the “American system” where each party traditionally pays its own costs and attorneys’ fees. To counteract this impediment, many environmental statutes provide that a “substantially prevailing” citizen plaintiff can recover costs and fees from the defendant. Because of the time and resources necessary to effectively engage, the grassroots citizen campaigns that epitomized the early environmental movement in the U.S. have generally been replaced by large national or

60 M. B. Mihaly, “Citizen Participation in the Making of Environmental Decisions: Evolving Obstacles and Potential Solutions through Partnership with Experts and Agents” supra, at 151–2. 61 See US Environmental Protection Agency, Public Involvement Policy (2003), available at http://www.epa.gov/ publicinvolvement/policy2003/index.htm. 62 D. L. Markell and T. R. Tyler, “Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens’ Roles in Environmental Compliance and Enforcement” supra, at 8.

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regional non-profit organizations who serve as the “voice” for individual citizens, especially in legislative and judicial venues.63 6. Effectiveness and Accountability, Limits, Challenges, Steps forward The system of government in the United States is a complex multi-layered system that attempts to balance the need for autonomy of each individual State against the need for consistency across the Nation as a whole. Developing effective environmental protection and pollution control in particular has challenged this balance. In regard to water and air pollution, federal legislation and federal regulations establish the governing framework for pollution control, while States have important roles in backing up the national programs through secondary programs and through delegated program of administration and enforcement. In this way, each State retains authority to address the issues of environmental protection in the ways most effective for it, subject to limited federal oversight. This complex system has resulted in significant, some might say dramatic, improvements in environmental quality over the past 40 years. Yet the system is being tested by a number of factors. First, as diffuse sources of pollution have emerged as a primary source of impairment, the very intricate State-federal relationship is coming under increased scrutiny. Can the U.S. form of cooperative federalism bring together State and federal regulators to solve very difficult problems or will the system prove too complex to succeed in the context of non-point water pollution and the control of greenhouse gases? In controlling non-point source water pollution, in particular, the same concerns at the federal about the willingness of States to regulate pollution sources that drove the initial enactment of the modern CWA have re-emerged. Meanwhile States resist what they perceive as federal intrusion into water TMDL development and implementation planning through backstop measures as attempted usurpation of the State role in water quality protection. These issues are highlighted in the Chesapeake Bay case study presented in chapter 12.64 Second, as State budgets become increasingly constrained because of the economic downturn in the United States, the ability of States to meet 63 M. B. Mihaly, “Citizen Participation in the Making of Environmental Decisions: Evolving Obstacles and Potential Solutions through Partnership with Experts and Agents” supra, at 170–1. 64 See chapter 12 by L. Paddock and L. Colasuonno in this volume.



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their requirements under delegated programs is coming into question. A key requirement for States to receive program delegation is that the State has adequate resources to implement the programs. Many States are now finding themselves short on the resources necessary to fulfil these commitments as their budgets for environmental agencies are cut. Similarly, political changes with corresponding changes in priorities in some States have led concerned groups to call into question the willingness of those States to maintain high environmental standards. If States begin to “backslide” on regulations, the question arises of whether State delegation is still appropriate or whether the State’s administration can still be deemed “equivalent” to the federal program. Several environmental NGOs have urged EPA to withdraw programs in nearly a dozen States.65 Of course, EPA resources are also quite limited and may be more limited in the future making delegation withdrawal problematic. Third, recent Supreme Court cases have limited the reach of the Commerce Clause in ways that impact environmental protection. The most notable example of this is the recent decision restricting the ability of the U.S. EPA and the U.S. Army Corps of Engineers to regulate some types of wetlands because of their tenuous connection to navigable waters.66 Federal jurisdiction over wetlands is a particularly contro­versial 65 See Alabama Environmental Council, Environmental Groups Call for EPA to Take Away State’s Authority over Water Permitting Program, available at http://www.aeconline.org/ water/withdraw-npdes-permit, for information on the petition to withdraw Alabama’s Clean Water Act authority; Environmental Integrity Project, Press Release: Small Farmers, Other Concerned Iowans Petition EPA To Revoke Iowa DNR Authority over Factory Farm Pollution, available at http://www.environmentalintegrity.org/law _library/ Press_Release _SmallFarmers.php, for information on the petition to withdraw Iowa’s Clean Water Act authority; and Petition for Withdrawal of the National Pollution Discharge Elimination System Program Delegation from the State of Kentucky, available at http://www.kftc.org/ blog/linked-documents/KY%20NPDES%20PETITION.pdf, for information on the petition for withdrawal of Kentucky’s Clean Water Act authority. 66 Rapanos v. U.S., (2006) 547 U.S. 715. Although five justices of the U.S. Supreme Court agreed that the U.S. Army Corps of Engineers had exceeded its jurisdiction to regulate isolated wetlands under the Clean Water Act, there was no consensus amongst these justices on what the proper test for determining whether the limits of federal jurisdiction over navigable waters should be. Four justices supported the position that jurisdiction over nonnavigable waters should be limited to waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream, and in regard to wetlands, jurisdiction only exists when there is a continuous surface water connection between the wetland and a relatively permanent waterbody, so that it is difficult to determine where the waterbody ends and the wetland begins. A single justice suggested an alternate standard, wherein jurisdiction would apply only to non-navigable waters and wetlands that have a “significant nexus” to a traditionally navigable waterbody, such that it affects the physical, chemical, and biological integrity of the waterbody. The four dissenting justices would find federal jurisdiction to exist under either of these tests.

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and politically sensitive issue, because it allows federal involvement (or intrusion) into the realm of private land-use regulation, an area traditionally considered within the sole power of the States to regulate. Limiting federal jurisdiction over remote wetlands places the States in the exclusive position of weighing their wetlands’ environmental benefits against the tax revenues that the drained and developed lands could generate. The controversy over the scope of federal authority in environmental protection under the Commerce Clause is likely to remain over the next several years. Finally, public engagement in environmental protection is likely to remain an important issue as citizens push for earlier and more responsive approaches to engaging them in both the regulatory development and the permitting processes. While the U.S. EPA policy suggests that citizens should be provided with these opportunities, the policy is not binding on either the U.S. EPA or the States. All of these issues raise questions about the continued viability of the “cooperative federalism” approach. No clear alternative to the multilayered system has emerged, however. And the multi-layered approach provides noteworthy benefits and opportunities for collaboration despite its shortcomings. Further, because federalism is the cornerstone of government structure in the United States generally, a multi-layered system of environmental governance will continue to be the basis for protecting water, air, and other environmental assets in the U.S., with the struggle for power ensuring the pendulum of authority will be continuously swinging between State and federally levels of government. Bibliography C. Berkin, A Brilliant Solution: Inventing the American Constitution (Orlando, Harcourt Inc., 2002). H. N. Butler and J. R. Macey, Using Federalism to Improve Environmental Policy (Washington, D.C., AEI Press, 1996). Committee on Public Works, The Federal Water Pollution Control Act Amendments of 1971, Report of the Committee on Public Works (1971). L. Dittman, “Overfiling: Policy Arguments in Support of the Gorilla in the Closet” (2000) 48 UCLA Law Review 375. D. T. Kendal (ed.), Redefining Federalism: Listening to the States in Shaping “Our Federalism” (Washington, D.C., Environmental Law Institute, 2004). A. L. LaCroix, The Ideological Origins of American Federalism (Cambridge, Massachusetts, Harvard University Press, 2010). J. Madison, The Federalist No. 45 (1788), available at http://constitution.org/fed/federa45 .htm. D. L. Markell and T. R. Tyler, “Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens’ Roles in Environmental Compliance and Enforcement” (2008) 57 Kansas Law Review 1.



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M. B. Mihaly, “Citizen Participation in the Making of Environmental Decisions: Evolving Obstacles and Potential Solutions through Partnership with Experts and Agents” (2009– 2010) 27 PACE Environmental Law Review 151. J. A. Mintz et al., Environmental Enforcement: Cases and Materials (Durham, N.C., Carolina Academic Press, 2007). J. M. Organ, “Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems” (1995) 54 Maryland Law Review 1373. H. M. Osofsky, “Diagonal Federalism and Climate Change Implications for the Obama Administration” (2011) 62 Alabama Law Review 237. C. Rechtschaffen and D. L. Markell, Reinventing Environmental Enforcement and the State/ Federal Relationship (Washington, D.C., Environmental Law Institute, 2003). R. L. Revesz, “The Race to the Bottom and Federal Environmental Regulation: A Response to Critics” (1997) 82 Minnesota Law Review 535. U.S. Environmental Protection Agency, Revised Policy Framework for State/EPA Enforce­ ment  Agreements, available at http://www.epa.gov/compliance/resources/policies/state/ enforce-agree-mem.pdf. U.S. Environmental Protection Agency, Public Involvement Policy (2003), available at http://www.epa.gov/publicinvolvement/policy2003/index.htm. E. R. Zahren, “Overfiling under Federalism: Federal Nipping at State Heels to Protect the Environment” (2000) 49 Emory Law Journal 373.

ENVIRONMENTAL GOVERNANCE IN GERMANY Gerd Winter1 Introduction In this chapter, the author is concerned with federalism as a factor of environmental protection in Germany: is environmental protection a requirement of federal and Land Constitutions? How are legislatory and adjudicatory competences in environmental matters allocated between the Bund and the Länder? Have they solved conflicts between the Bund and the Länder in a reasonable way? Apart from the federal issue, the author also addresses questions of participation in environmental proceedings, as well as the issue of enforcement of environmental laws in Germany. 1. Environmental Protection as a Constitutional Requirement 1.1. Constitution of the Bund The German Constitution, called Grundgesetz (GG) to indicate its provisional character at its time of enaction (1949), introduced environmental protection as a constitutional requirement only in 1994. Article 20a GG lays down: “Mindful also of its responsibility toward future generations, the State shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” By pointing to the natural basis of life (in other words, the basis that sustains human life) as well as to the responsibility of future generations, the article resounds the concept of sustainability. The determination of the precise standard of protection is explicitly left to the three branches of government and, in addition, limited by other constitutional provisions

1 Professor of Public Law and the Sociology of Law, Co-Director of the Research Unit for European Environmental Law, Department of Law, University of Bremen (Universität Bremen), Bremen, Germany.

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(such as the basic rights). Therefore, a binding material content can hardly be derived from this article other than the obligation to prevent worst cases. Concerning court practice, two kinds of contexts of invocation of Article 20a GG must be distinguished: cases of enabling and cases of mandating State action. In the first cases, State measures have already been enacted and the question is posed whether they are legitimated by the constitutional duty to protect the environment. In the second case, the State has failed to act and the question posed is whether its inaction is justifiable. Starting from a concept of judicial self-restraint courts normally accept a broad understanding of environmental protection principles if Government has decided to adopt such broad meaning but they normally prefer a more narrow understanding if Government has not yet decided itself but must be compelled to act.2 Concerning the principle laid down in Article 20a GG there have, as yet, only been cases of the enabling kind. For instance, the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) recently ruled that Article 20a GG justifies encroachments on economic freedom and private property entailed in the precautionary legislation controlling the release of genetically modified seeds.3 No case has as yet been filed asking for mandating State measures based on Article 20a GG. Article 20a GG is framed as an objective duty of the State. It does not provide subjective rights of individuals against the Government to protect the environment. In consequence, the general constitutional remedy (Verfassungsbeschwerde) allowing individuals to defend their basis rights by filing a complaint against State action or inaction at the constitutional court cannot be used. A breach of the constitutional duty to protect the environment could only be submitted to the BVerfG in a so-called objective proceeding in which the Bund government, a quarter of the members of the Bundestag, or a Land government may ask the BVerfG to declare a law or governmental inaction unconstitutional.4 Subjective rights asking for State environmental measures may however be based on some of the basic rights guaranteed by the Grundgesetz. 2 See further G. Winter, “The Legal Nature of Environmental Principles” in R. Macrory (ed.), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004), at 11–30 (23–26). 3 BVerfG Judgment 1 BvF 2/05 of 24 November 2010, BVerfGE 128, 1 (37). 4 Art. 93 (1), No. 2 GG.



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Most important in this respect is the right to health and life (Article 2(2) GG). This right was originally meant to protect individuals from intrusions by the State (vertical dimension) but not from intrusions by other private persons (horizontal dimension). The BVerfG has however given it a further  meaning which is that the individual has a right against the State to be protected in the horizontal dimension. For instance, a person living in the vicinity of Düsseldorf airport, a company under civil law, asked the Bundesverfassungsgericht to command the Land Northrhine-Westfalia to take measures protecting her from the airport noise. The Court in principle acknowledged the possibility of such a right but posited that the Land enjoys discretion of what measures are appropriate and found that the discretionary margin was not overstepped.5 In addition, the right to health can serve to enable State action to prevent environmental damage caused by third parties. For instance, an industry may ask for authorisation for a polluting factory basing this request on the freedom of enterprise or private property. In this case, the economic right collides with the neighbour’s right to health. Depending on the significance of the damage, the right to health can legitimate or even demand the denial of the authorisation. 1.2. Constitutions of the Länder To the extent the Länder have competences in environmental law (see below), their Constitutions may also establish rights and duties concerning the environment. Most progressive in that respect is the Constitution of the Land Brandenburg which lays down in Article 38(5): “The Land, local authorities, associations of local authorities and other corporations of public law are obliged to prevent environmental damage and dete­ rioration and to ensure that environmental damage is remediated or compensated.” This objective duty is, in Article 38(2), even framed as a subjective right: “Everyone has a right to protection from damage and intolerable danger that result from a change in the natural basis of life.” However, this does not mean that a person has a right to a general healthy state of the environment. Rather, as the text of the provision shows, he or she must prove that the environmental change has had negative effects on him or her as an individual. 5 BVerfG Judgment 1 BvR 612/72 of 14 January 1981, BVerfGE 56, 54 (80).

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Insofar as the Bund and the Länder are responsible to implement EU law they are bound to respect the environment-related provisions of the Charter of Fundamental Rights (ChFR).6 The most important provision in this context is Article 37 which states: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” According to Article 51(1) ChFR Member States (MS) are bound apart from EU institutions when they are implementing Union law. Thus, for instance, if an EU directive protecting the environment leaves discretion for MS transposition measures, Articles 37 together with 51(1) can be interpreted to demand a higher level of protection than the rather modest standard of Article 20a GG. According to common interpretation, Article 37 ChFR does not, however, provide a subjective right of individuals to a high level of environmental protection.7 This can be doubted. The fact that the article does not use the term right or freedom should not be a hindrance because other provisions of primary EU law exist that are framed in objective language but interpreted as subjective right. The prominent examples in the Treaty on the Functioning of the European Union (TFEU) are its Articles 34 and 35 TFEU (rights to free importation and exportation of products). In the ChFR, the following provisions are also formulated “objectively”, but can be interpreted “subjectively”: Articles 1 (human dignity), 13 (arts and sciences), 19 (extradition), 21 (discrimination), 22 (cultu­ ral diversity), 23 (equality), 34 (social security) and 38 (consumer protection). The major question to be posed as to the subjective character of a provision should be whether the relevant provision is aimed at also protecting individuals. There should be no doubt that each individual life is indeed depending on a decent state of the environment. This means that insofar as the state of natural resources is such that the living conditions of individuals are impaired, they have a right to claim that the conditions are improved. Of course, the competent authorities would be granted a discretionary margin of the measures to be taken.

6 EU Charter of Fundamental Rights 2000. See Art. 51(1): “The provisions of this Charter are addressed to […] and to the Member States only when they are implementing Union law.” 7 H. D. Jarass, “Der neue Grundsatz des Umweltschutzes im primären EU-Recht” (2011) 12 Zeitschrift für Umweltrecht 563–571.



environmental governance in germany59 2. Distribution of Legislatory Competences

In principle, legislatory powers rest with the Länder. The Bund has them only insofar as they are explicitly conferred to it by the Grundgesetz (Article 70). This division results in three categories of legislatory powers: exclusive powers of the Bund, concurrent powers of the Bund and the Länder, and exclusive powers of the Länder. Formerly, framework powers of the Bund for Land legislation existed as a fourth category, but this category was abandoned with the reform of German federalism in 2006. Instead, and as a compensation for the strengthening of Bund competences, the Länder was granted the possibility of introducing legislation deviating from Bund legislation in certain areas.8 Powers exclusive of the Bund mean that the Länder can step in “only when and to the extent that they are expressly authorised to do so by a federal law” (Article 71). Matters relating to environmental issues entail air transport, the operation of railways if owned by the Bund, the construction of railroad lines for the Bund railways, intellectual property rights, the construction and operation of nuclear power plants, disposal of radioactive substances and defence and protection of the civilian population. Concurrent powers provide the Bund with priority but leave the Länder space to legislate “so long as and to the extent that the Federation has not exercised its legislative power by enacting a law” (Article 73). In the absence of clear determination, it is a matter of interpretation whether the Bund law is exhaustive or not. According to the jurisprudence of the BVerfG exhaustion can even be given if the Bund legislator intentionally abstains from regulating a question.9 Concerning environmental issues, concurrent powers include the following areas:10 – economic matters (mining, industry, energy, crafts, trades, commerce, banking) – organisation of enterprises, occupational health – promotion of agricultural production and forestry, importation and exportation of agricultural and forestry products, deep-sea and coastal fishing, preservation of the coasts – land law   8 On the history of this deal, see H. Meyer, Die Föderalismusreform 2006. Konzeption, Kommentar, Kritik (Berlin, Duncker & Humblot, 2008).   9 BVerfG Judgment 1 BvR 2306 etc./96 of 23 June 1998, BVerfGE 98, 265 (300). 10 Art. 74 GG.

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– food products and feedstuffs, protection of plants and animals – maritime and coastal shipping – road traffic, construction of highways – waste disposal, air pollution control, noise abatement – hunting – protection of nature and landscape – land distribution – regional planning – management of water resources The preponderance of Bund legislation in the realm of concurrent competences is somewhat relativized by two clauses, the necessity test and the aforementioned deviation clause. The necessity test requires that in several areas the Bund can only legislate if “the establishment of equivalent living conditions throughout the federal territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest” (Article 73(2) ).11 However, the necessity test is in actual practice not a serious hurdle for the Bund. The deviation clause, conversely, allows the Länder legislation in certain areas to deviate from Bund legislation. It can be used both in the direction of lowering or improving the level of protection. The areas falling under the clause include, inter alia, nature protection (here the Land must however, respect the basic principles established by the relevant Bund law) as well as water management (except for regulations related to materials or facilities). The reason for allowing deviation by the Länder is that nature and water have traditionally been considered as regional, not national assets. This was reflected in the fact that they used to be framework competences of the Bund, allowing the Länder to fill in. With the rising consciousness about the interrelated character of nature and water the Länder were prepared to accept the upgrading to concurrent status but some – especially Bavaria – successfully argued in favour of retaining a fallback position. In actual practice, the escape clause does make a difference: The Bund is motivated to accommodate all Länder views to avoid fragmentation,12 11 The areas requiring the additional test comprise, i. a., public welfare, economic matters, highway construction, and State liability. It is hard to say what general idea lies behind this list. 12 H. Meyer, Die Föderalismusreform 2006. Konzeption, Kommentar, Kritik supra, at 165; H. Schulze-Fielitz, “Umweltschutz im Föderalismus – Europa, Bund und Länder” (2007) 26 Neue Zeitschrift für Verwaltungsrecht 249–259, at 254.



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but in a few cases, Länder have nevertheless made use of the clause, sometimes to the better and sometimes to the worse of environmental protection. As for the exclusive powers of the Länder, not much is left for them of the sectoral environmental issues. Land legislation is responsible for such scattered areas as mountain railways, the construction of normal roads and non-long distance highways, shop closing hours, trade fairs and markets. Much more important, however, is the power of the Länder to legislate on administrative procedures and organisation. This is a corollary of the constitutional decision that all laws, including the Bund laws, are in principle enforced by Land administration (see section 4). 3. Distribution of Competences for Executive Rule Making Sublegal rule making is an important instrument of policy, including environmental protection policy, because it sets the specific standards that guide the behaviour of societal actors as well as the supervisory activities of administrative bodies. German law distinguishes between Rechtsverordnung (regulation) and Verwaltungsvorschrift (administrative guideline). Rechtsverordnungen are sublegal rules that are addressed to civil society establishing rights and duties of individual actors, whereas Verwaltungsvorschriften are addressed to administrative agencies binding their activities in the internal administrative sphere. Still, such internally binding rules can have an indirect effect on citizens if they are aimed at administrative action impacting on the external sphere. The making of Verwaltungsvorschriften is regarded as an implied power of any administrative body and follows the rules on the distribution of competences (see section 4). By contrast, the Rechtsverordnungen are regarded as legislation delegated to administrative bodies. Unlike other Constitutions,13 the Grundgesetz does not conceive Rechtsverordnungen as a general implied power of the executive branch but requires that the power of making Rechtsverordnungen must be delegated to the executive branch by parliamentary law. This shall ensure a democratic basis of

13 See Art. 37 French Constitution 1958. For the delegation model see Art. 290(1) and 291(2) of the Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) 2010/C 83/01.

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executive rule making. The Grundgesetz even requires that “the content, purpose and scope of the authority conferred shall be specified in the law.”14 The delegatus can be the Bund government, a Bund minister, or the Land government.15 In practice, the delegatus will be chosen according to the importance and the regional or national nature of a given issue area. Although the requirement of a legal empowerment is a democratic safeguard, it does not dispense from ensuring further democratic input through participation of the public in the rule-making procedure. Such procedural openness is, however, according to the ruling jurisprudence and doctrine, not a constitutional requirement of the German Constitution. It is nevertheless a democratic surplus that can be introduced by specific legislation. Indeed, many environmental laws do provide for public participation in rule making. For instance, it is provided that when Verwaltungsvorschriften on air polluting installations and activities are made, stakeholders must be heard.16 4. Distribution of Administrative Competences Executive administration can act in different forms, such as decision making in individual cases, the setting of inner administrative guidelines, the supervision of activities, the monitoring of states of affairs, the rendering of services and the provision of subsidies. As was stated previously (see end of section 2), the Grundgesetz departs from the principle that federal as well as Land laws are executed by Land administrative bodies (Article 83). This is also true for those administrative activities which do not execute laws but originate from the administrative body’s own initiative.17 If the Bund shall be responsible, it needs special empowerment by the Grundgesetz or by legislation based on the Grundgesetz (Article 86).

14 Art. 80(1), second sentence GG supra. This provision has influenced the wording of Art. 290 (1), second sentence TFEU for the delegation of non-legislative acts to the Commission. 15 Art. 80(1), first sentence GG supra. 16 Para. 48 of the Bundesimmissionsschutzgesetz – BImSchG 1974 (Federal Emissions Protection Act), as amended. 17 C. Degenhart, Staatsrecht I. Staatsorganisationsrecht (22nd ed.) (Heidelberg, C.F. Müller Verlag, 2006), at 175.



environmental governance in germany63 This leads to four kinds of administrative execution of laws:

– Bund competence to execute Bund laws (genuine Bund admini­stration – bundeseigene Verwaltung)  – Land competence to execute Land laws – Land competence to execute Bund laws. This competence is split into two subcategories:   • Execution as a genuine right of the Land (genuine Land administration - landeseigene Verwaltung)   • Execution as a mandate of the Bund (mandated Land administration – Bundesauftragsverwaltung) In the environmental field, genuine Bund administration has become increasingly important. Originally, Bund administration was concentrated on the national transportation networks (waterways, navigation, railways, air transportation). This was even laid down in the Grundgesetz.18 Later, based on specific legislation, the placing on the market of hazardous products as well as the generation and collection of environmentally relevant data became two more realms of Bund administration. Normally, the Bund discharges itself of these functions by setting up agencies which are organisationally separate from but supervised by the pertinent ministries. Thus, Bund agencies have been established that are responsible for the authorisation and supervision of the placing on the market of products such as food and feedstuff, genetically modified products, seeds, fertilizers, plant protection products and toxic chemicals. Genuine Bund administration has also been established for issues related to fields which, because of their local character, have traditionally been reserved for regional administration but have national dimensions justifying more centralised administration. For instance, in the realm of nature protection, the Federal Agency for Nature Protection (Bundesamt für Naturschutz - BfN) is responsible for the monitoring of developments of nature and landscape, the licensing of the release of alien species, the licensing of trade in endangered species under the Washington Agreement, and the planning and managing of nature protection in the German marine exclusive economic zone (EEZ). The bulk of environmental law execution is, however, still in the competence of the Länder. Depending on their size and tradition, they have 18 Art. 87, 87d, 87e, 89 GG supra. The administration of highways however belongs to the mandated administration, see Art. 90 GG.

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a two or three-tiered administrative organisation. Larger Länder have a lower level of local authorities, an intermediate level of decentralised State administration and a high level of the ministries. Smaller Länder do without the intermediate level. Concerning the level of local authorities, the Grundgesetz demands that local self-government must be preserved.19 This means that neither the Länder nor the Bund are free to reduce the tasks of the local level to a minimum. Those tasks which are local in character must be left to the local level. This is true, for instance, for various public services (such as schools, theatre, water and energy supply) and – in the regulatory realm – for land-use planning. In these areas the Land retains the power of supervising local authorities, but this is confined to questions of law, not of policy. In addition to the self-governed tasks, the local level is also endowed with tasks that belong to the Land. In this area of delegated competences, the Land has full supervisory powers, including questions of policy. This results in a double function of the local level; one as the holder of selfgovernment and the other as the functionary of the Land.20 For instance, in the realm of land use, the master planning and the more specific building planning is a self-governed task of any Commune whereas the issuance of construction permits is a mandated task. Both tasks belong to the same Commune if the Commune is independent of a Land District (Landkreis) but they are split between the Commune and the Land District if the Commune belongs to a Land District. Insofar as Land authorities execute Bund laws the Bund can issue administrative guidance. The Bund is also competent to supervise administrative activities of the Land authorities, but only in relation to possible infringements of the relevant laws. In the realm of mandated execution of Bund laws, however, the Bund supervises not only the lawfulness of the execution by Land authorities, but also the appropriateness within discretionary margins (Article 85(4) GG). The Bund can also ask the Land authorities to follow instructions in individual cases (Article 85(3) GG). Should a Land not abide by Bund legislation or instructions, the Bund government and the Land can apply to the Bundesrat to make a decision on the issue. Against this decision, the Bund government and the Land can  19 Art. 28 GG supra. Local self-government has, in itself, a double structure: the individual Communes (Gemeinden) and the Land District (Landkreis) which both have elected councils. Larger Communes are self-standing; they do not belong to a Land District. 20 On the origin and principles of this system, see O. Gönnenwein, Gemeinderecht (Tübingen, J.C.B. Mohr, 1963), at 165 et seq. The system has the advantage that the Land does not need to set up its own agencies at the local level.



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seek recourse to the BVerfG.21 Both parties can also submit the case directly to the BVerfG without prior decision of the Bundesrat and can ask the Court to determine whether Bund law was infringed on by the Land.22 5. Conflicts between Levels of Administration If a lower administrative agency differs in its law interpretation or discretionary policy from the views of a higher level, rules and procedures of conflict resolution are needed. Different situations must be distinguished in this respect. If the conflict arises within an administrative hierarchy (for instance, between a Land ministry and the intermediate level of Land administration), the solution is simple: the higher level has the power of command; the lower level has not even a right of complaint at a court. If the conflict arises between the Bund and a Land in the area of mandated administration, the Bund also has in principle, as was already stated, the power of instruction. However, the legal framework is somewhat more complicated because it must be taken into account that the Land, although standing under mandate nevertheless acts as a member of a Federation having its own rights. The doctrinal particularities of this mandatory relationship have been elaborated by the BVerfG in cases of nuclear energy. The leading case concerned the construction of a fast breeder installation in Kalkar, Northrhine Westfalia. The Land Minister of Economy, who was the mandated authority responsible for the authorisation of the installation belonged to a Social Democratic Government which politically opposed the project; he took the occasion of the Chernobyl catastrophe of 1986 to demand the developer to conduct an additional check of the safety of the planned installation on the basis of information learned from the Chernobyl disaster. Reacting to this, the Bund Minister for the Environment, Nature Protection and Nuclear Safety who belonged to the nuclear friendly federal Christian Democratic Government issued an instruction to the Land forbidding it to ask for the additional checking. The Land filed a complaint against this instruction at the BVerfG arguing that the instruction infringed the precautionary principle which – uncontroversially – was established by the German Nuclear Power Act (Atomgesetz – AtomG)23 as a substantive standard for  21 Art. 84(4), sentence 2 GG supra. 22 Art. 93(1), No. 3 GG supra. 23 Atomgesetz 1959, as amended.

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any nuclear power plant. The BVerfG dismissed the complaint, introducing the distinction between two dimensions of mandated administrations: the competence of performance (“Wahrnehmungskompetenz”) and the competence of substance (“Sachkompetence”). It argued that although the Land did have a right to execute the AtomG and was responsible for this in relation to third persons (Wahrnehmungskompentenz), it had no exclusive right to determine the content of its decision (Sachkompetenz) but was subjected to any instruction of the Bund, be it on questions of legal interpretation, policy or factual proof. Even in cases of misinterpretation of the law, it was in the power of the Bund to impose its opinion on the Land. Only in cases of bluntly irresponsible instruction or complete procedural disregard for the views of the Land could the Wahrnehmungskompetenz be touched upon and lead to a quashing of an instruction.24 In contrast, concerning genuine Land execution of Bund laws, the powers of the Bund to decide are somewhat more limited. As was already stated, if the law provides for administrative discretion, the Bund must leave this to be filled in by the Länder. It cannot impose its own policy on a Land. If the Bund does this nevertheless by fettering the discretionary margin of the Land, the Land can take recourse to the BVerfG. With regard to differences in legal interpretation, however, the Bund has the final word. It can express its views by administrative guidelines. If it finds that some administrative practice of the Land has infringed Bund law, the Bund has the power to declare that an infringement has been committed. It is expected that the Land will then change its attitude. If it refuses to do so, the Bundesrat can make a decision against which the Land can appeal at the BVerfG.25 A further kind of vertical conflict can arise between Land and local self-government. As was already stated, the local authority can act in a double function: as communal self-administration and, by delegation of functions, as the lowest level of Land administration. In the former realm, the Land can only check the legality of communal action; should it intrude into discretionary margins the local authority can take recourse to the administrative court. Contrastingly, in the latter realm, higher Land authorities can issue administrative guidelines and individual instructions both concerning the interpretation of the law and questions of policy within discretionary margins. Because the local authority is acting

24 BVerfG Judgment 2 BvG 1/88 of 22 May 1990, BVerfGE 81, 310–347 (332 et seq.). 25 See footnote No. 21 above.



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as part of the hierarchical organisation of the Land in this respect, it is denied a right of appeal against supervisory orders. Local self-government is according to German constitutional doctrine constructed as a specific mode of organising an administrative function, i.e. “bottom up” as opposed to the “top down” of Land administration. This has two implications which are crucial whenever the Land (or Bund) administration wants to implement projects for which it is competent to provide authorisation. For instance, the Commune of Sasbach opposed the construction of the nuclear power plant at Wyhl in the upper Rhine valley arguing (1) that the radioactive emissions would cause health risks to the local population the collective interest of which the Commune claimed to be able to represent, and (2) that the humid fumes from the cooling tower would disturb the ripening of grapes on the vineyards owned by the Commune. The BVerfG which was finally invoked in the case ruled that the Commune had no right of standing in the alleged two respects.26 Concerning (1) it was not entitled to represent the collective interest of its inhabitants outside its specific administrative task. Such tasks included for instance land use planning but not health protection. Concerning (2) the Commune could not base its complaint on the constitutional protection of (land) property because basic rights are rights of citizens against the State but not of the Commune which being an administrative body is part of the State. While this is ruling interpretation there are also opposing views who construct the local self-government as a democratic bottom up organisation that is perfectly capable of forming a local political will and rely on basic rights.27 6. Conflicts between Sectoral Administrations Many conflicts can arise between sectoral administrations. This is most evident with regard to bodies representing economic development and others representing environmental protection. In addition, conflicts between bodies defending different environmental concerns have recently also emerged. This is most visible in conflicts between climate policy and biodiversity protection; see for instance, the impact of biomass

26 BVerfG Decision 2 BvR 1187/80 of 8.7.1982 (Sasbach), BVerfGE 61, 82 (101 et seq.). 27 For a historical background of this doctrine see D. Schefold, Bewahrung der Demokratie. Ausgewählte Aufsätze (Berlin, BWV – Berliner Wissenschaftsverlag, 2012), at 431–456.

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production on nature and landscapes, which is hardly controlled by the sustainability conditions required by EU law.28 Conflict resolution in these cases is based on rules of competence and participation. In most cases, one administrative body is given the final word after having heard others in the decision-making process. Hearing means that the third body has the right of comment and that the competent body must take this into account without however being bound to it. Sometimes the law only generally prescribes that the competent agency shall invite comments from all those agencies whose areas of competence are affected by the case at stake.29 Other laws precisely identify the agencies that are to be heard. For instance, in the decision-making process regarding the release of genetically modified organisms, the primarily responsible Federal Agency for Food Safety and Consumer Protection (Bundesamt für Lebensmittelsicherheit und Verbraucherschutz) must hear the Federal Agency for Nature Protection (Bundesamt für Naturschutz) in relation to environmental effects as well as the Robert Koch Institute and the Institute for Risk Assessment in relation to health effects.30 If the role of the third body shall be stronger than simply to be heard, the law may provide that the decision requires its consent. In the environmental field, hardly a case exists in which such consent requirement has been introduced. Earlier examples have been abandoned in the course of the policy of removal of investment obstacles and acceleration of procedures. For instance, the nature protection laws of some of the Länder required the consent of the nature protection agencies in cases in which another agency was competent to decide about projects encroaching on natural sites.31 This gave nature protection a strong stance in the daily conflicts with development-minded agencies. The most important remaining case of consent requirement is on the rights of communal 28 See Art. 17 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (2009) OJ L140/16. 29 See, for industrial installations, Para. 10(5) of the BImSchG supra, and for infrastructure projects Para. 73(2) Verwaltungsverfahrensgesetz – VwVfG 1976 as amended (Administrative Procedure Act). 30 Art. 16(4) Gentechnikgesetz – GenTG 1990 as amended (Act on Genetic Engineering). The right of comment of the other agencies is named “Benehmen” which indicates more significance than the simple hearing. In actual practice, this hardly makes a difference because, in any case, the comment is not binding for the final decision. 31 Para. 7(1) Hessisches Ausführungsgesetz zum Bundesnaturschutzgesetz (Nature Protection Law of Land Hessen) of 1980, as amended; this requirement was dropped when the Bund promulgated its comprehensive Nature Protection Law based on its new concurrent competence in this field (see above).



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self-administration in land-use planning. If a zoning plan was established by a Commune, the administrative agency in charge of construction authorisation – this is a body belonging to the sphere of mandated local administration – must respect any provision contained in the zoning plan. However, if the Commune did not establish a zoning plan for a given area and a project shall nevertheless be realised at this place, the administrative agency may only provide the authorisation after consent of the Commune.32 Thereby the Commune has the opportunity to bring in any planning concerns it had lacked to express by formal planning. However, in the normal case, the Commune’s primary concern will anyway be economic development, not necessarily environmental protection. Thus, in reality not many conflicts emerge between the Commune and the licensing authority. If two administrative agencies are competent to decide on one case, a method of overcoming conflicts of decisions is the integration of procedures as, for instance, required by the IPPC Directive.33 Article 7 of this Directive states: Member States shall take the measures necessary to ensure that the conditions of, and procedure for the grant of, the permit are fully coordinated where more than one competent authority is involved, in order to guarantee an effective integrated approach by all authorities competent for this procedure.

For instance, in Germany authorisations must be obtained for the construction of industrial installations both concerning possible air and water pollution. Depending on the provisions of the Länder on the distribution of competences, these authorisations may be issued by two different administrative agencies. Integration of procedures then means that they have to coordinate their procedures to prevent contradictory decisions.34 The two competences may however, also reside in one overarching administrative agency. In this case, the integration is only a matter of coordinating the work of the responsible departments within the agency. It should be added that the author is sceptical about overly strong integration: the organisational separation of functions appears to better guarantee that 32 Para. 36 Baugesetzbuch – BauGB (Construction Code) 1960, as amended. 33 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (2008) OJ L24/8. 34 See for example Para. 12(3) of the niedersaechsisches Wassergesetz (Lower Saxony Water Law) which states: “The agency for water coordinates the water related authorisation procedure and authorisation with the procedure and content of [air, G.W.] emission authorisation.”

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the different concerns – especially the weaker ones – can, in this way, be better represented and defended. 7. Participation of the Public in Environmental Policy Formation and Law Application Since the early 1970s public participation has gained much ground in German administrative law. Traditionally, administrative procedures were open for participation only to those individuals whose individual rights were negatively affected by the prospective outcome of the proceedings. The citoyen, i.e. the individual acting as a member of general public rather than the bourgeois, i.e. the person affected as an individual was rarely invited to participate.35 The turn toward involving the public has had different causes, including the student’s movement, the overturning of the conservative post-war coalition of the Christian and Free Democratic Parties by the social democrats in 1969,36 and the impact of the European Communities which activated the citizens as a means of enforcement of European environmental law.37 Over the time, the participation of the public in rule-making and authorisation procedures was introduced by an increasing number of sectoral environmental laws. A constitutional basis for this was laid by the BVerfG, which ruled that the fundamental rights (such as the right to health), while guaranteeing a certain substantial level of protection, additionally had a procedural dimension guaranteeing the right holder to be heard in the procedures affecting his or her right.38 Other than in proceedings concerning industrial processes and land use, public participation has hardly been introduced in proceedings concerning the design and marketing of products. For instance, the German regulation of procedures concerning the authorisation of placing pesticides and genetically modified organisms on the market does not involve the public.39 According to the predominant German legal doctrine, the 35 See for an elaboration of these two role constructs of the citizen R. Smend, “Bürger und Bourgeois im deutschen Staatsrecht” in R. Smend, Staatsrechtliche Abhandlungen (Berlin, Duncker & Humblot, 1955), at 309–325. 36 The phrase proclaimed in 1968 by the SPD chancellor Willy Brandt became famous: “Mehr Demokratie wagen” (dare more democracy). 37 J. Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts: europäische Impulse für eine Revision der Lehre vom subjektiv-öffentlichen Recht (Berlin, Duncker & Humblot, 1997). 38 BVerfG Judgment 1 BvR 385/77 of 20 December 1979, BVerfGE 53, 30–99 (59 et seq.). 39 Cf. Para.14 Pflanzenschutzgesetz – PflSchG 1986 (Plant Protection Act), as amended in 2012, and Para. 18 Genetic Engineering Act supra.



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reason for this has always been that the placing of products on the market does not directly and individually affect individuals, because it cannot be predicted who will consume what product. Contra­ stingly, European Community law did provide for public participation in various productrelated legal acts, including the acts on the registration of chemicals and the authorisation of pesticides, biocides and GMOs.40 The specific forms of participation, to the extent they are foreseen by German laws, differ in many respects. In some cases, only those persons affected by a decision are allowed to participate;41 in other cases, it is everybody’s right.42 Some laws only invite written comments, whereas others make an oral hearing obligatory or give the responsible body discretion on whether to call a hearing. More recently, in an overzealous attempt to remove investment obstacles, participation has been cut back in various ways. For instance, the public hearing was excluded for procedures on the release of GMOs.43 In relation to the construction of industrial installations, a public hearing was changed from an obligation to a discretionary option of the responsible agency.44 8. Enforcement of Environmental Law Enforcement of environmental law may deal with unlawful and lawful behaviour of addressees.

40 Normally, the publication of a short version of the dossier submitted by the applicant as well as the draft risk assessment report must be published, and the public must be given a possibility to comment. For example, regarding chemicals see art. 64(6) and 119 Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (2006) OJ L396/1; for pesticides, see art. 10 and 12(2) Regulation (EC) No. 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market (2009) OJ L309/1. 41 For plan approval procedures, see Para. 73(4) VwVfG supra. 42 For authorisation procedures for industrial installations, see Para. 10(3) sentence 4 BImSchG supra. 43 S. 18(3), sentence 2 GenTG supra. 44 S. 10(6) BImSchG supra. Unfortunately, the IPPC Directive (Annex V No. 5) leaves it to the discretion of the Member States whether or not to provide a public hearing. See Directive 2008/1/EC supra. The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 1998 does not prescribe a public hearing either (see Art. 6(7) ). See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Envi­ ronmental Matters (Aarhus, 25 June 1998) 2161 UNTS 447.

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Concerning unlawful activities or omissions of private actors, three kinds of powers may be distinguished that are at the disposal of administrative authorities. First, the administrative authority may order a party to desist from an activity or to undertake an activity; such orders specify a legal obligation of the party established by law or a condition attached to an administrative act (e.g., if an operator discharges noxious substances exceeding the thresholds established by law or conditions attached to an authorisation). If there are no sectoral provisions explicitly providing these powers, they can be based on the general police power laid down in the Land police laws. In cases of environmental damage and absent sectoral law, the environmental damages law (Umweltschadensgesetz; which transposes the Environmental Liability Directive)45 is applicable, empowering authorities to order preventive or remedial action. Second, if the operator does not follow an order of an administrative body, the administrative agency may take measures of administrative execution (Verwaltungsvollstreckung). Such measures are either a so-called compulsion payment (Zwangsgeld), which shall induce the operator to act, or the mandating of a third person to realise the order at the cost of the operator (Ersatzvornahme), or the use of direct force (unmittelbarer Zwang). In the normal case, the application of a measure must be announced beforehand, giving the operator a last delay for compliance. In practice, administrative agencies will negotiate with the operator about remedial steps, thus, as legal sociologists term it, bargaining in the shadow of the law. Third, the administrative body may impose a fine under the Admin­ istrative Infringement Act (Ordnungswidrigkeitengesetz – OWiG). The fine is conceived as a punishment for law violations. Mens rea is required for this. Such a fine can be imposed together with measures of administrative execution but stands as a mutually exclusive alternative with criminal prosecution. An appeal against such a fine will be decided by the criminal courts. This meets criticism because most cases involve scientific and technical questions which to decide administrative courts appear to be more experienced. Although the prosecution under the Administrative Infringement Law must identify a responsible individual, the fine may 45 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (2004) OJ L143/56.



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nevertheless be addressed to the corporation if the perpetrator acted on its behalf. Fourth, if the unlawful behaviour is a crime, the administrative agency may inform the public prosecutor who will then initiate criminal prosecution. Criminal law normally presupposes that damage was caused while administrative infringement sanctions react to the simple violation of legal duties. Until now, criminal prosecution has only been possible against natural persons so that a company as such could not be sued. Sanctions against legal persons will however, have to be established according to Directive 2008/99/EC.46 Finally, if the activity to be suppressed is based on an unlawful administrative authorisation, the administrative agency must first revoke the administrative act and then forbid the activity. However, in cases of legitimate trust by the operator in the lawfulness of the authorisation, the authority must provide compensation.47 It should be noted that all these sanctions (except criminal ones) can be imposed by the competent administrative body without going to court and asking for a judgment. This marks a fundamental difference between civil and common law systems.48 8.2. Lawful Activities Concerning behaviour based on a lawful authorisation, this can only be suppressed if certain preconditions are met. The most important case is that new conditions (such as new knowledge about environmental risks, better available technology or a more restrictive legal policy) have emerged. In that case, the administrative body may withdraw the authorisation. In principle, compensation is due in such cases.49 However, according to sectoral legislation, particularly dangerous activities are subject to subsequent alterations of conditions without compensation even though they have once been authorised. This is, for instance, the case with highly dangerous installations, large infrastructure projects, and installations discharging waste water into public waters. Such power of subsequent

46 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (2008) OJ L328/28. 47 Para. 48(3) VwVfG supra. 48 See further R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford, Hart Publishing, 2010), at 79 et seq. 49 Para. 49(2)(3)–(5) and (6) VwVfG supra.

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imposing new requirements is an important tool to keep environmental protection up to date with technological and scientific progress.50 9. Evaluation 9.1. The Federal System and the Effectiveness of Environmental Protection One of the questions of the present book is whether federal systems adequately respond to the needs of environmental protection. The answer is, at least for Germany, not easy to give. Overall, one can say that German federalism, although very complicated in detail, provides a rather simple solution: the essential decisions are taken at the federal level while execution is the realm of the Länder. Essential decisions include the setting of material standards and the structuring of administrative procedures. As a matter of fact, the most important innovative steps in the post-war development of German environmental law were all taken by federal legislation. These include: – the introduction of the precautionary principle – the environmental impact assessment – requirements of best available technology – free access to environmental information – public participation in authorisation procedures – tools of enforcement of environmental standards – enlarged conception of legal standing, including the association action – economic instruments such as the waste water charge and the climate gas emissions cap and trade – environmental liability – new sectoral risk control such as that of genetically modified organisms, nanotechnology and nonionising radiation – new concepts for further sectoral risk control such as the water basin approach in water law and the Natura 2000 nature protection regime – structural changes of policies like that of redirecting energy production from fossil fuel and nuclear fission to renewables Many of these strategic decisions were triggered by EU legislation and EU Court jurisprudence, such as the environmental impact assessment, freedom of information, a broader concept of legal standing, climate gas 50 Para. 17 BImSchG supra; Para. 13(2)(1) Wasserhaushaltsgesetz – WHG 2009 (Water Management Act); Para. 75(2) sentence 2 VwVfG supra.



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emissions capping and trading, environmental liability, the water basin approach, and the network Natura 2000. In some respects, Germany has also been able to feed its national concepts into EU legislation, such as the precautionary principle and the standard of best available technology. Over the years, however, Germany has given up its earlier role as an environmental pioneer and sometimes acted as a brake on EU environmental law making. For instance, it opposed the development of freedom of information legislation, the widening of locus standi and the introduction of the association action. It also supported the move toward deregulation, such as, for instance, when the protection standards concerning genetically modified organisms were lowered.51 Concerning the role of the German Länder, although their main function is enforcement, they also play an important role as players in federal law making. Their forum in this regard is the Bundesrat. However, concerning strategic environmental issues, the Länder are normally guided by party policies rather than by genuine Land interests. For instance, when the Bund coalition of the Social Democratic Party and the Greens introduced rules on coexistence of GMO and non-GMO farming, the draft, which in some aspects disfavoured GMO-farming, was opposed by the Länder ruled by the Christian Democratic Party and the Free Democratic Party. One Land – Sachsen-Anhalt – even went to the BVerfG asking for annulment of the law.52 This role of the Bundesrat sometimes leads to a standstill of Bund legislation when the coalition majorities in the Bundestag and the Bundesrat differ from each other. Whether this acts in favour of or against environmental protection depends on whether the envisaged Bund legislation shall improve or water down environmental protection:53 improvement will not be granted because of the veto position of the anti-environment

51 Although Art. 4 Directive 2001/18/EC establishes the precautionary principle for the release and placing on the market of all GMOs, this is lacking in Art. 4 Regulation (EC) 1829/03 for the sector of GMOs for food, feed and cultivation. Compare also Art. 23(1) Directive 2001/18/EC with Art. 34 Regulation (EC) 1829/03; the former allows safeguard measures if there is any risk to human health or the environment, the latter only allows such measures only if there is “evidence” of “serious risk”. See Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (2001) OJ L106/1; Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (2003) OJ L268/1. 52 See footnote No. 3. 53 Political scientists tend to criticize this stalemate of what they call policy inter­ lacing   (Politikverflechtung); see F. Scharpf, Föderalismusreform – kein Ausweg aus der

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coalition, but neither will standards worsen because the pro-environment coalition can then place its veto. A possibility at the disposal of the ruling coalition is then to draft the law in a way which dispenses with the requirement of consent of the Bundesrat. This is the case if a law does not involve questions of administrative procedure and organisation, that is, the realm reserved to Bundesrat codetermination.54 For instance, in 2009, when the coalition of Christian and Free Democrats decided to prolong the allowable running time of nuclear power plants, it was opposed by the Bundesrat majority led by the Social Democrat and Green Party ruled Länder. The law was drafted carefully, avoiding additional administrative burdens. Although it was finally adopted by the Bundestag majority, some opposing Länder filed a complaint at the BVerfG arguing that the law did in fact involve procedural questions. The fact that the space for genuine Land legislation is small could be critically seen because it may hinder the Länder in developing standards that are stricter than those of the Bund. This suspicion is made even worse by the fact that the category of framework competence was given up and replaced by that of concurrent competence. However, in political practice, the Länder have only seldomly used their discretionary margins. For instance, when nature protection was still a framework competence of the Bund, leaving the Länder space to fill in the Land Hessen, as noted earlier, required consent of the nature protection agency for any encroachment on natural sites. When the competence was made a concurrent one, the Bund did not introduce this requirement in its new nature protection law of 2009 but only required that the nature protection agency must be consulted.55 The Land could have established the consent requirement by relying on its constitutional right to deviate from Bund standards.56 However, the Land did not make use of this right. It did not reintroduce its earlier solution but adopted the Bund standard.57

Politikverflechtungsfalle (Frankfurt/M, Campus, 2009). However, the stalemate can sometimes be beneficial. 54 Art. 84(1), sentence 5 GG. 55 Para. 17(1) Bundesnaturschutzgesetz - BNatSchG (Federal Nature Protection Act) 2009. 56 Art. 72(3), first sentence(2) GG. In this case, the relevant provision of the Bund law (Para. 17 BNatSchG) even made it explicit that the Länder can go further. 57 Para. 7(4) Hessisches Asuführungsgesetz zum Bundesnaturschutzgesetz (Act of Land Hessen) of 2010 implementing the BNatSchG supra.



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The primary responsibility of the Länder to enforce rather than to make environmental legislation should not be regarded as a purely technical issue. It is of utmost importance that laws are effectively enforced. Effective enforcement depends on a number of factors including the organisation of administrative bodies, the distribution of competences, the quantity and quality of personnel employed, and the technical equipment at the disposal of the supervisory authorities. In addition, the general political orientation of a given Land government concerning the balancing of environmental and economic interest is an important factor of environmental enforcement. On the whole, it seems fair to say that the enforcement responsibility of the Länder has proven to be effective. The situation would hardly be better if this responsibility was shifted to Bund agencies. To the extent admi­ nistrative activities have consequences for the entire State – such as in relation to placing products on the market and concerning the collection of comprehensive environmental data – competences have understandably been entrusted to the Bund level. In conclusion, therefore, applying a standard of bounded rationality, the German federal system of environmental protection has proven to be a viable concept. Many things could of course be improved, but they are hardly related to the question of federalism. 9.2. EU Legal Acts and German Federalism According to established EU practice and ECJ jurisprudence, EU law is uncommitted regarding the internal organisational structures of the MS. If legal acts are required to be transposed into law (such as directives, regulations leaving space open for MS legislation, and certain decisions), they are addressed to the entire State. The responsibility for the ensuing legislation is a matter of competence distribution under domestic law. The same is true in relation to the many obligations the EU legal acts lay upon administrative bodies. Their addressee is once more the entire State, while the final responsibility results from internal law. In the same line, if a Land is responsible to legislate or enforce a law and does not abide by EU legal acts, EU sanctions will be aimed at the Bund. The internal organisational structure must, however, ensure that EU law is effectively transposed and administered. One would expect that the Bund is given powers to assume this task. However, the Grundgesetz is tacit in that regard. Although the EU Commission is mandated and entitled to supervise the transposition of EU law into national legislation and

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administrative practice,58 no such task and powers have explicitly been entrusted to the Bund in relation to the implementation of EU law by the Länder. However, the general supervisory powers the Bund possesses when a Land breaches the Constitution or Bund laws are commonly interpreted to also cover the implementation of EU law. If a Land does not transpose an EU directive or fails to apply EU law in administrative practice this is regarded as a violation of the constitutional principle of faithful respect of the Land for the Bund (Bundestreue) thus empowering the Bund government to take “the necessary steps to compel the Land to comply with its duties”, including also “the right to issue instructions to all Länder and their authorities.”59 The Land may appeal against such measures at the BVerfG.60 In actual fact, however, these oversight powers of the Bund have never been used in relation to the non-implementation of EU law. The Bund rather prefers informal means to make the Länder comply with EU law, and if it does not succeed, it usually waits for the EU Commission initiating a treaty infringement procedure. If, in such case, the treaty infringement procedure leads to a fine, the offending Land must pay.61 Of course, the threat of such sanctions will motivate the Länder to abide by their obligations.62 Thus, in overall effect, EU supervisory instruments lead to a cooperation among national actors rather than increasing conflicts between them. 9.3. EU Good Governance Principles and German Environmental Law 9.3.1. Participation As was previously outlined (section 7), EU law has had a decisive impact on German administrative procedures. The tradition of confining participation in proceedings to those persons whose individual rights are affected by the outcome has been converted into a broader concept involving the public at large or, in more restricted cases, stakeholders who are de facto, 58 Art. 17(1), first and second sentence TEU; Art. 258 TFEU supra. 59 Art. 37 GG. See C. Baier, Bundesstaat und Europäische Integration. Die „ Europatauglichkeit“ des deutschen Föderalismus (Berlin, Duncker & Humblot, 2006), at 214 et seq. 60 Art. 90, No. 3 GG. 61 Art. 104a(6), first sentence GG. 62 K. Gerstenberg, Zu den Gesetzgebungs- und Verwaltungskompetenzen nach der Föderalismusreform (Berlin, Duncker & Humblot, 2009), at 307.



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but not necessarily also de iure affected. More recently, however, there has been a trend toward reducing participation because it is regarded as an obstacle to investment and economic growth. 9.3.2. Accountability German law is rather precise in identifying that institution which is accountable for a decision. Legislatory competences are clearly distributed between Bund and Länder. The level which is competent is also accountable for any legislatory failure. For instance, if an EU directive was not transposed and this causes damage to a beneficiary of the directive, the Bund or Land is liable to pay compensation depending on which is competent to transpose the directive. The same is true for failure in the administrative realm. That level is accountable which is competent to make a decision or other action. Which level that is depends on whether the task belongs to the genuine Bund administration, mandated Land administration or genuine Land administration. 9.3.3. Effectiveness As was shown previously (section 8), German law has developed a rather differentiated system of enforcement tools. In practice, however, the command and control approach which is reflected in these tools is seldomly being applied if business can be induced to respect its obligations under environmental law. In cases of infringement, administrative agencies rather tend to use ways of persuasion and education. However, this does not make the farer reaching powers superfluous. They serve as a fallback position which allows administrative agencies to negotiate in what legal sociologists call the “shadow of the law”. 9.4. Centralisation or Decentralisation? A general trend of centralising both legislatory and administrative competences certainly exists in the environmental field. One major element in this regard was the replacement of the category of a framework competence by the category of concurrent competence which reduced the legislatory space of the Länder in relation to nature protection and water management. It is true that this loss was somewhat compensated by the right of the Länder to initiate deviating legislation but in actual practice, they do not often make use of this right.

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A trend toward centralisation is also noticeable concerning administrative competences. As was outlined previously (section 4), within the category of mandated Land administration, the BVerfG almost completely emptied the rights of the Land to determine the content of a decision. In controversial cases, the Länder were degraded to mere receivers of Bund instructions. Concerning genuine Land enforcement of Bund laws, the Bund has attracted increasingly more administrative functions by establishing semi-independent Bund agencies, especially concerning the collection of environmental data as well as concerning the placing of products on the market. Whether this centralisation is to the better or worse of environmental protection, however, is not easy to determine. Reasonable ground certainly exists for centralising legislation and administration on the placing of products on the market. The same is true for the collection of environmentally relevant data. In contrast, doubt surrounds whether the construction of large transportation networks should be decided by national authorities. Of course, the trans-regional economic importance of such projects speaks in favour of centralisation. However, the environmental effects – air pollution, noise, damage to nature – are primarily local and regional. This should at least lead to a requirement of local or Land authorities to consent to a project; however, this is not foreseen.63 Bibliography C. Baier, Bundesstaat und Europäische Integration. Die „Europatauglichkeit“ des deutschen Föderalismus (Berlin, Duncker & Humblot, 2006). C. Degenhart, Staatsrecht I. Staatsorganisationsrecht (22nd ed.) (Heidelberg, C.F. Müller Verlag, 2006). K. Gerstenberg, Zu den Gesetzgebungs- und Verwaltungskompetenzen nach der Föderalismusreform (Berlin, Duncker & Humblot, 2009). O. Gönnenwein, Gemeinderecht (Tübingen, J.C.B. Mohr, 1963). H. D. Jarass, “Der neue Grundsatz des Umweltschutzes im primären EU-Recht” (2011) 12 Zeitschrift für Umweltrecht 563–571. R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford, Hart Publishing, 2010). J. Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts: europäische Impulse für eine Revision der Lehre vom subjektiv-öffentlichen Recht (Berlin, Duncker & Humblot, 1997).

63 See Para. 38 Construction Code supra; the requirement that construction projects must be consented with local authorities is removed for projects subject to plan approval procedures (Planfeststellungsverfahren). These are mainly infrastructure projects such as transportation networks.



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H. Meyer, Die Föderalismusreform 2006. Konzeption, Kommentar, Kritik (Berlin, Duncker & Humblot, 2008). D. Schefold, Bewahrung der Demokratie. Ausgewählte Aufsätze (Berlin, BWV – Berliner Wissenschaftsverlag, 2012). F. Scharpf, Föderalismusreform – kein Ausweg aus der Politikverflechtungsfalle (Frankfurt/M, Campus, 2009). H. Schulze-Fielitz, “Umweltschutz im Föderalismus – Europa, Bund und Länder” (2007) 26 Neue Zeitschrift für Verwaltungsrecht 249–259. R. Smend, “Bürger und Bourgeois im deutschen Staatsrecht” in R. Smend, Staatsrechtliche Abhandlungen (Berlin, Duncker & Humblot, 1955), at 309–325. G. Winter, “The Legal Nature of Environmental Principles” in R. Macrory (ed.), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004), at 11–30.

ENVIRONMENTAL GOVERNANCE IN SWITZERLAND Nicolas Schmitt1 Introduction In Switzerland, the protection of the environment is quite a recent topic. From a constitutional point of view, it is clearly a federal task which is implemented by Cantons. In addition, in Switzerland, the protection of the environment is affected by two historically rooted visions of the environment and supported by different actors (political parties, organizations of defence, industry, citizens): those who are in favour of measures aiming at a strict respect of the environment (increase of public transportation, reduction of traffic, taxes on energy, no nuclear plants, support of sustainable development) and those who consider these measures as expensive, counterproductive, endangering the Swiss economy and working places. The protection of the environment is perceived as a huge task, encompassing a vast array of topics and actors, not only from a legal point of view (legislator, executive, civil servants, courts), but also from a material point of view. Government levels, associations, public and industries, among others, are all involved. Therefore, it requires a huge coordination effort, which is done – in a typically Swiss fashion – very pragmatically. 1. The Protection of the Environment in the Swiss Constitution 1.1. History The protection of the environment in the Swiss constitution is quite recent. Even if the word “environment” is older, its current meaning2 (globality of elements which constitute, in the complexity of their relations, natural and cultural life conditions of the human being and of

1 Senior Fellow Researcher, Institute of Federalism, University of Fribourg (Université de Fribourg – Universität Freiburg), Fribourg, Switzerland. 2 Dictionnaire historique de la Suisse: Environnement, available at http://www.hls-dhs -dss.ch/textes/f/F24598.php.

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society) does not go back earlier than the 1970s with the introduction of a constitutional provision in 1971 and the creation of a Federal Office for Environment, Forests and Landscape, what is today the Federal Office for Environment (hereafter FOEN). This was not only a reaction against the deterioration of the natural environment and an increase in ecological awareness, but also a result of greater wealth of the Swiss population. Not surprisingly, the constitutional provision on the protection of the environment was adopted in 1971. Article 24septies was introduced by popular referendum on 6 June 1971; its main idea was to extend widely the implementation field of the federal power concerning environmental protection. At that time, this idea was largely supported by the citizens (more than 90%).3 The topic “protection of environment” has been then totally transferred to the Confederation, which left implementation mostly to the Cantons. At that time, the emphasis was on the fight against air pollution and noise. The adoption of the implementation law (EPA, see the following) proved to be quite difficult for two reasons. An economic recession beginning in 1975 removed ecological questions from citizens’ primary concerns; economic circles could fight successfully against ecologic initiatives by insisting on their cost to the economy. Moreover, it proved difficult to implement the protection of the environment in the existing legal and administrative framework: almost all fields of this protection required horizontal and vertical cooperation between many offices of the administration, as well as the adaptation of many laws. As a consequence, despite the pressure of ecological organizations, it was necessary to wait until the fall 1983 (a long 12 years) for the adoption by the Parliament of the first Environment Protection Act (hereafter EPA).4 In September 1983, a large media discussion about the “death of forests”5 – just before the federal election – may have accelerated the political process. The law deals with air pollution, noise, vibrations and radiations, waste management, environmental impact assessment and environmentally hazardous substances. It is a broad regulation relying on the many principles of Swiss policy in this matter (see section 2). 3 http://www.admin.ch/ch/f/pore/va/19710606/index.html. 4 Loi sur la protection de l’environnement, LPE 814.01/1983, available in English at http://www.admin.ch/ch/e/rs/c814_01.html. 5 In November 1981, Spiegel titled “The forest dies” in Eastern European countries. These alarmist comments have been taken back in Switzerland. Beginning in 1984, urgent measures have been taken: the introduction of unleaded gasoline and the catalytic exhaust pipe, the speed limit and sulphur reduction in the fuel. Today, in the Swiss forest, positive changes have done well. Experts have been a little quick with their diagnosis: http://blogs .rsr.ch/passe-present/il-y-a-25-ans-la-mort-des-forets/.



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Based on the 1971 constitutional provision, about sixty other laws and federal ordinances have been adopted, which show the size of this topic. Among the most important are: – Federal Act of 7 October 1983 on the Protection of the Environment (Environmental Protection Act, EPA) (RS 814.01); – Ordinance of 27 February 1991 on Protection against Major Accidents (Major Accidents Ordinance, MAO) (RS 814.012); – Ordinance of 15 December 2006 on the Register relating to Pollutant Release and the Transfer of Waste and of Pollutants in Waste Water (PRTR-V) (RS 814.017); – Ordinance of 12 November 1997 on the Incentive Tax on Volatile Organic Compounds (OVOC) (RS 814.018); – Federal Act of 24 January 1991 on the Protection of Waters (Waters Protection Act, WPA) (RS 814.20); – Radiological Protection Act of 22 March 1991 (RPA) (RS 814.50); – Radiological Protection Ordinance of 22 June 1994 (RPO) (RS 814.501); – Ordinance of 5 July 2000 on Beverage Containers (Beverage Container Ordinance, BCO) (RS 814.621); – Ordinance of 18 May 2005 on Risk Reduction related to the Use of certain particularly dangerous Substances, Preparations and Articles (Ordinance on Chemical Risk Reduction, ORRChem) (RS 814.81); – Ordinance of 10 November 2004 on the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Chemicals in Interna­ tional Trade6 (PIC Ordinance, ChemPICO) (RS 814.82); – Ordinance of 10 September 2008 on the Handling of Organisms in the Environment (Release Ordinance, RO) (RS 814.911); – Ordinance of 3 November 2004 on the Transboundary Movements of Genetically Modified Organisms (Cartagena Ordinance, CartO) (RS 814.912.21). 1.2. Current Framework A new Constitution entered into force on 1 January 2000 (hereafter CF).7 It was only supposed to be an update of the former 1874 one, the text of which was barely readable after more than 120 amendments.

6 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Chemicals in International Trade (Rotterdam, 10 September 1998) 2244 UNTS 337. 7 Constitution fédérale de la Confédération suisse 101/1999.

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Therefore, Article 74 of the Constitution draws on, with a slight change, Article 24septies of the former 1874 Constitution (hereafter as CF).8 Article 74 “Protection of the environment” states:  1) The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance.  2) It shall ensure that such damage or nuisance is avoided. The costs of avoiding or eliminating such damage or nuisance shall be borne by those responsible for causing it.  3) The Cantons shall be responsible for the implementation of the relevant federal regulations, except where the law reserves this duty for the Confederation.

The goal of the new constitutional provision was to give the Confederation, which already enjoyed some partial and sectorial powers (on forests, water protection, nature and landscape protection), a global and comprehensive legislative power in the field of environmental protection and simultaneously a mandate to act. The constitutional mandate has been translated into legal terms with the adoption of the EPA. The title of the provision is “Protection of the environment”; this is now the most current term for this topic as well as the name of the 1983 Act, but Article 24septies of the former 1874 Constitution used old-fashioned wording “protection of the natural milieu”. Article 74 is based on a broad understanding of the concept: “environment” includes everything linked to the natural surroundings of the human being, such as animals and plants (including their natural milieu; their biotopes and biocoenosis), as well as all natural elements essential for life (including soil, water, air and even extensively climate and vital spaces, as well as interactions between these systems). According to this extensive conception, the protection of the environment enshrined in Article 74 includes several special and/or sectorial protections, also enshrined in chapter 2 section 4 CF: protection of water (Article 76), of forests (Article 77), of natural and cultural heritage (Article 78) and of animals (Articles 79 and 80). These provisions could have been integrated into the fundamental norm, but the Swiss Parliament refused to erase provisions which had been recently introduced. Therefore, some “crossing over” exists.9 However, because every domain has its own 8 See J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 (Zurich/Bâle/Genève, Schulthess, 2003), Art. 74, at 587–597; H. Keller, Kommentar zur Umweltschutzgesetz (Zurich, Schulthess, 1985). 9 The draft (called “message”) written by the Federal Council on 6 May 1990, already mentioned these problems (FeuilleFédérale1970 I 773, 786).



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specificities, it could also be justifiable to keep all these provisions. Article 76–80 CF represent therefore special rules in comparison with the general rule of Article 74. They usually complete the general rule, but on some occasions, they can also limit the federal power. In this sense, Article 78(1) (“The protection of natural and cultural heritage shall be the responsibility of the Cantons”) clearly represents a limitation of the federal power.10 The first Paragraph of Article 74 (“The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance”) is a shorter version of the first Paragraph of former Article 24septies CF, which also evoked the fight against air pollution and noise. However, because the new power is global, it is useless to mention any special case. This first paragraph gives to the Confederation a global and concurrent legal power concerning protection of the environment, but first it mandates the confederation to legislate.11 The object of protection of the provisions is twofold: the human being and its natural environment, as is exemplified by the EPA’s first provision, which is as follows: “This Act is intended to protect people, animals and plants, their biological communities and habitats against harmful effects or nuisances and to preserve the natural foundations of life sustainably, in particular biological diversity and the fertility of the soil.” On the contrary, natural or artificial elements which are protected for reasons linked to the protection of natural and cultural heritage, or for aesthetic reasons, are in principle not submitted to the provision concerning the protection of the environment.12 The constitutional protection concerns “damage or nuisances”. This notion encompasses all types of pollutions: air, noise, water and soil. But the notion of damage goes far beyond. Article 7(1) of the EPA, which gives some definitions of these concepts, contains more details: [Harmful] ‘Effects’ are air pollution, noise, vibrations, radiation, water pollution or other interference in water, soil pollution, modifications of 10 It also reminds us that one of the major tasks of the Swiss Constitution is to allocate – in a very subtle and complicated way – the powers between the Confederation and the Cantons. 11 This can be clearly deduced from the message of the Federal Council supra: “By this constitutional provision, the Confederation is generally obliged to adopt implementation laws […] in the current situation of the legal and technical fields, such as a solution imposes itself: a simple power to legislate would not be enough” (FeuilleFédérale1970 I 788)(author’s translation). 12 As with any principle, a small exception exists: Art. 14(1)c EPA supra provides that immissions limit values are fixed in such a way that immissions should not damage buildings.

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nicolas schmitt the genetic material of organisms or modifications of biological diversity caused by the construction and operation of installations, by the handling of substances, organisms or waste, or by the cultivation of the soil.

The federal act, therefore, regulates diverse aspects of environmental protection. It is also concerned with the protection against industrial catastrophes. As a result, the power the federal legislator draws from the notion of harmful effects to the human being and its environment is extremely broad. It can be slightly limited in only three ways as laid out in the following. First, Article 74 concerns in principle only nuisances which are produced by man and his activities, not by nature (earthquakes, floods). Second, concerning nuisances to humans, Article 74 is, in principle, limited to indirect ones. Other provisions are concerned with direct effects (intoxication brought on by dangerous chemicals or irradiation by nuclear radiation), especially Article 118 CF devoted to health protection. Third, the federal power is limited to harmful effects or nuisances. Harmful effects mean infringement able to endanger the life or health of the human being or to damage its natural environment, animals or plants. Nuisances mean infringements which do not directly affect health but endanger people’s well-being. To achieve its goal, that is protection of the human being and the environment, the EPA foresees maximum immissions values (Article 13). Conversely, according to the prevention principle (see section 2 within this chapter), the EPA also foresees maximum emission values (Article 12(1)a). However, Article 74 of the Constitution has to be concretized by the federal legislator (the Parliament) or by the implementation authorities. By itself, it does not give any right directly justiciable against nuisances in the name of the protection of the environment. The constitutional provision does not detail the means the legislator can use to fulfil the constitutional mandate. The legislator, therefore, has wide room to manoeuvre: orders, interdictions, authorizations, or even subventions or taxes. In this sense, the 1995 amendment has substantially extended the scope of the law, providing the possibility to introduce incentive taxes.13

13 N. Schmitt, “La fiscalité environnementale en Suisse (La tassazione ambientale in Svizzera)” in L. Antonini (ed.), L’imposizione ambientale nel quadro del nuovo federalismo fiscale, Studi sul federalismo fiscale (Naples, Jovene editore, 2010), at 237.



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Contrary to the first Paragraph of Article 74, the second one is new, at least formally: “It shall ensure that such damage or nuisance is avoided. The costs of avoiding or eliminating such damage or nuisance shall be borne by those responsible for causing it.” It enshrines expressis verbis two general principles of the law of environment, which appeared previously only in the law: prevention principle and causality principle (“polluter pays”). The third Paragraph of this provision, “The Cantons shall be responsible for the implementation of the relevant federal regulations, except where the law reserves this duty for the Confederation,” is almost useless. In fact, it derives from the constitutional draft presented by the Federal Council, and at that time it was necessary to detail in this case that only the law (and of course the Constitution) could reserve the implementation to the Confederation because it represents an exception to the principle according to which Cantons are always responsible to implement federal law. However, contrary to what the draft had planned, Article 46(1) CF introduced this principle in a general way: “The Cantons shall implement federal law in accordance with the Federal Constitution and federal legislation.” So the third paragraph is nothing but a statement of the obvious. 2. Environmental Law and Principles Swiss environmental law is based on a certain number of principles, which derive directly from the Constitution or which have been drawn by jurisprudence and doctrine. a) Sustainability principle.14 This principle means that the Confed­ eration and Cantons shall endeavour to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population. It has been enshrined in a specific constitutional provision (Article 73 CF). To underline the importance of this notion, it is also enshrined very generally in Article 2 CF devoted to the aims of the Swiss Confederation, which shall promote the common welfare, sustainable development, internal cohesion and cultural diversity

14 B. Wagner Pfeifer, Umweltrecht I (3rd ed.) (Zürich, Schulthess, 2009), at 41 et seq.; J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 supra, Art. 73, at 581 et seq.

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of the country; as well as in Article 10415 for its agricultural dimension. The notion of sustainable development was used early in Switzerland with regard to forests,16 but later was improved according to international documents.17 In Switzerland, the indicator system MONET was created for the monitoring of sustainable development. It is carried out jointly by the Federal Statistical Office (FSO), the Federal Office for the Environment (FOEN), the Swiss Federal Office for Spatial Development (ARE) and the Swiss Agency for Development and Cooperation (SDC). The system aims to provide information about the current situation and trends in social, economic and environmental aspects of sustainable development and to demonstrate Switzerland’s position as compared with other countries. It is designed as an information source for the public, politicians and the Swiss federal Government.18 Nevertheless, the notion of sustainable development remains quite vague19 and despite its constitutional anchorage, this principle is not justiciable.20 b) Prevention principle. It is a basic principle of Swiss environment law, as it is enshrined in Article 74 of the Federal Constitution and Article 1(2) and 11 of the EPA. According to the principle, laws and authorities should “try to prevent” as much as possible potential harmful effects to the environment; in other words, emissions have to be limited preventively, independently of existing nuisance, as far as technique and exploitation conditions allow for it and as far as it is economically sustainable.21 This principle imposes on the Cantons to coordinate planning measures with the necessities of environment. Authorities dealing with planning must choose solutions which reduce to the maximum the nuisance to the environment.22 c) Causality principle. Also called the “polluter pays” principle; it is enshrined in Article 74 CF, Article 2 of the EPA and Article 3a of the Waters 15 “The Confederation shall ensure that the agricultural sector, by means of a sustainable and market oriented production policy […].” 16 Loi sur les forêts 1902. 17 World Commission on Environment and Development, Our Common Future (1987) available at http://www.un-documents.net/wced-ocf.htm.Further developments followed the implementation of Agenda 21 (1992 UN Conference in Rio) by Commission on sustainable development. 18 See, http://www.bfs.admin.ch/bfs/portal/en/index/infothek/erhebungen__quellen/ blank/blank/monet/00.html. 19 It is hardly mentioned in Art. 29a EPA supra, but not at the law level in water, nature and landscape protection. 20 Tribunal Fédéral suisse ATF 132 II 30, considérant 4.3. 21 Tribunal Fédéral suisse ATF 116 Ib 265 of 1 November 1990. 22 Ibidem.



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Protection Act.23 Article 2 of the EPA notes that: “Anyone who causes measures to be taken under this Act must bear the costs.” The causality principle implies that the costs linked to the protection of the environment, be they for protection or cure, must to be supported by those who cause them and not by the collectivity as a whole.24 The idea behind this principle consists of correcting the competition distortions (“externalization of internal costs”)25 because it should make more expensive the production of cheap products made without respect for the environment in comparison with products which are more expensive but made with respect for the environment.26 This principle is the basis of the so-called “ecological taxation” with incentive taxes among others.27 Based on this principle, the Federal Court jurisprudence has defined the two notions of “behaviour troublemaker” and “situation troublemaker”. The first one is a person whose acts or omissions have provoked the nuisance. The second one is a person who has to replace an “object” in a State which is conforming with the public order, because of its links with this object, generally because he or she is the owner or holder.28 d) Proportionality principle. This principle means that any measure taken must be likely to reach its goal while respecting the freedom of the citizen, and that a reasonable relation must exist between the result, the limitation of freedom, the feasibility and the cost to reach the goal (Article 17(1) of the EPA). The principle implies several elements: adequacy, necessity and subsidiarity. e) Information principle. This principle is enshrined in Article 6 of the EPA: (1) The authorities provide the public with objective information on environmental protection and the level of environmental pollution; (2) the environmental protection agencies advise authorities” and “(3) private individuals and recommend measures for the reduction of environmental pollution. 23 Loi fédérale sur la protection des eaux, LEaux, 814.20./1991. 24 This principle is expressed in Art. 2 of the EPA supra: “Who originates a measure foreseen by this law shall support the costs.” 25 B. Wagner Pfeifer, Umweltrecht I supra, at 47 et seq. 26 Message relative à une nouvelle Constitution fédérale, Feuille fédérale 1997 I 7 (251). This principle has first been used for Municipalities to tax garbage cans. 27 The Swiss Government has prepared an Ecologic Tax Reform which should have been presented to the Parliament before the end of 2011: http://www.noe21.org/site/index. php/fr/section-blog/43-campagnes/52-rfe: more taxes on energy, less taxes on income; right wing parties do not agree. 28 Tribunal Fédéral suisse ATF 118 Ib 407 of 18 November 1992.

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This principle has several consequences, such as the making public of information (taking into account data protection) required by Article 47 of the EPA. In many fields, the authority is obliged to create registers accessible to the public, such as a cadastre of contaminated sites. Another consequence is the obligation of the authority to ask for information and the obligation of the citizen to give information to the authority (Article 46 of the EPA). f) Precaution principle. This principle – which has to be distinguished from the prevention principle – is not formally enshrined in Swiss environmental law but represents the source of the planning principle, urging authorities to establish measures plans if they presume that limits values are about to be exceeded. g) Cooperation principle. Cooperation is not requested as such, but it is often called for in the EPA at the internal but also international levels (trans-border cooperation). For instance, Article 41a EPA29 says that the Confederation and, within the scope of their responsibilities, the Cantons shall cooperate with private sector organizations in enforcing this Act. Generally, this principle implies a permanent cooperation between the authorities, the private sector and the population for everything concerning measures as well as for the implementation of those which are in force and the preparation of those which are necessary for the future. The cooperation principle is especially well-realized in the field of waste management. A good example of this is the cooperation between Confederation, Cantons and industry for the treatment of hazardous waste or the conventions signed between the authorities and the private sector for the management of beverage containers.30 h) Cleaning-up principle. This principle is not clearly enshrined in the law but it calls for the eradication the harmful effects caused by nuisances. For example, Article 16 of the ordinance on contaminated sites31 foresees a combination of measures (cleaning up, confining, restriction of use) in case of contamination. The principle of restoration derives from this principle, which means that a system which has been affected has to be restored to its original state.

29 In force since 1 July 1997. 30 See Ordonnance sur les emballages pour boissons OEB 814.621/2000. 31 Ordonnance sur les sites contaminés OSites 814.680/1998 (not even a non-official English version of this Act exists).



environmental governance in switzerland93 3. Institutional Structure: The Distribution of Competences among Different Government Levels and Actors Concerning the Environment

According to the principle of executive federalism32 which applies to the majority of the Confederation’s public policies, the federal administration is in charge of formulating and elaborating the programs, and Cantons limit themselves to determining the details of the implementation in their territories of the rules adopted at the central level. However, they are responsible for implementing the legal and regulation norms. They can delegate a part of this task to the Municipalities, providing that the latter have a certain size and enjoy sufficient resources. Note that the Confederation has taken on some implementation tasks in the fields in which a national harmonization seems appropriate. Therefore, the allocation of powers in this field is very clear and not disputed. However, in Switzerland, powers concerning the environment are not simply allocated between the Confederation and the Cantons (even Municipalities). Citizens and their associations are also involved because direct democracy plays an important role in the country. In addition, because the country is an industrial one, industry plays its role, too. Hereafter, they are the main actors on the environmental chessboard. 3.1. Confederation As a consequence of the allocation of tasks, the State administrative capacities concerning the environment are also allocated between the three levels. According to IDHEAP estimations,33 about 500 posts deal with environmental questions at the central administration, between FOEN34 and half a dozen of other Offices also dealing with this topic, such as the Office for energy. Around 1,500 posts are devoted to envi­ronmental 32 Two broadly different approaches to distributing powers within federations exist: dualist and integrated (or executive) models. The dualist model typically assigns different jurisdictions to each order of government, which then delivers and administers its own programs. The integrated model provides for many shared competences and the constituent-unit governments often administer centrally legislated programs or laws; this explains the name executive federalism. See G. Anderson, Federalism: An Introduction (Toronto, Oxford University Press OUP, 2008). 33 P. Knoepfel et al., “Analyse des politiques de l’environnement” (2008), available at http://www.idheap.ch/idheap.nsf/go/41D5D2D66E0E4BC5C12574C7002B051B?Open Document&lng=en, at 50. 34 In 2011, the FOEN employs ca. 450 civil servants and its budget of 1.4 billion CHF represents almost 3% of the federal budget.

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question in the Cantons and as many as 6,000 in the Municipalities. This amount is impressive because it represents more than one civil servant working on environment per 1,000 inhabitants in Switzerland. Moreover, a large part of this administrative force has been put in place in the last 20 years, at a time marked by budget restrictions and a tendency to reduce the size of public administrations. Public expenses devoted to the protection of the environment and town and country planning amount to around CHF 6.34 billion, or 3.1% of public expenses in Switzerland.35 The FOEN organization mirrors the complexity of the task. Its annual budget amounts around CHF 630 million. Its organization chart is quite complicated because no less than 14 divisions and about 50 sections exist which must be coordinated (e.g., nature and landscape, species management, water, substances, soils or biochemistry), plus the direction and support sections (e.g., international affairs, communications or linguistic questions). Moreover, since the 1990s, resources have been devoted to environmental protection in several federal offices whose public policies have an impact on the topic; for example, health, energy, transportation, agriculture, statistics, land planning or aviation. Moreover, the Confederation has reserved for itself (contrary to the general rule) several enforcement powers. Article 41(1) of the EPA is as follows: The Confederation enforces Art. 12(1)e (Regulations on combustibles and fuels), 26 (Self-regulation), 27 (Information for customers), 29 (Regulations on substances), 29a–29h (Environmentally hazardous organisms), 30b(3) (Deposit compensation fund), 30f and 30g (Import and export of waste), 31a(2) and 31c(3) (Federal waste disposal measures), 32abis (Pre-paid disposal fee), 32e(1–4) (Charge to finance remediation), 35a–35c (Incentive taxes), 39 (Implementing provisions and international law agreements), 40 (Putting of series-produced installations into circulation) and 46(3) (Information on substances and organisms); it may require the Cantons to carry out certain duties.

3.2. Cantons The federal power enshrined in Article 74 CF is a concurrent one.36 This means that Cantons remain competent as long as the Confederation 35 Annuaire statistique de la Suisse 2011 (Verlag Neue Zürcher Zeitung), at 403, 416–7; see   also:   http://www.bfs.admin.ch/bfs/portal/fr/index/themen/02/06/ind13.indicator .130206.1386.html. 36 P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht (Bern, Stämpfli, 2002), at 344, footnote No. 10, with other quotations.



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has not made use of its legal and regulation power, under Article 65(1) of the EPA, “Unless and until the Federal Council expressly exercises its power to enact ordinances, the Cantons may enact their own regulations in terms of this Act, after consulting the Federal Department of the Environment, Transport, Energy and Communications.” Article 65(2) foresees many exceptions: The Cantons may not stipulate any new maximum immission values, alarm levels or planning values nor enact any new regulations governing conformity assessments for series-produced installations or for the handling of substances or organisms. Existing cantonal regulations apply until related Federal Council regulations come into force.

Thus, the Confederation has “exhausted” its legislative power. What remains to the Cantons represents almost nothing and is rather to be considered as a kind of police power. Two examples: the Federal Court has considered in the case “Grünes Bündnis” that temporary measures aimed at fighting against pollution in the case of a severe smog situation (peak emissions) represented an environmental police power of the Cantons within the frame of this concurrent power. It has also considered as acceptable asking the owner of a hazardous waste treatment plant to make a deposit in case he should have some financial problems.37 According to Article 36 of the EPA, and taking into account the special fields reserved to the Confederation, Cantons are in charge of imple­ menting the law. However, in this case, the Confederation enjoys a global supervision and coordination of power (Article 38). In 1995, the first large revision of the act enshrined new instruments for implementation: sectorial agreements with private sector organizations (Article 41a), the possibility to delegate enforcement duties (Article 43), the introduction of a system for an environmental label (“eco-label”) or for the evaluation and improvement of environmental protection in establishments (environmental management and auditing; Article 43a). As a matter of fact, besides the administrative implementation of the law, Cantons consider the constitutional provision as a kind of political program. Therefore, most of the cantonal Constitutions evoke the

37 Tribunal Fédéral suisse ATF 121 I 334 of 18 December 1992; Tribunal Fédéral suisse ATF 121 II 92 et seq.(Amstutz Altöl AG); see P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrechtsupra supra, at 344.

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environment and its protection.38 Ticino enshrines expressly the protection of the environment among the “social objectives”, which clearly symbolizes the cantonal position in this field. Considering federalism allows Cantons to play the role of “laboratories” for democracy, Basel-Landschaft and Geneva have enshrined a refusal of nuclear energy in their cantonal Constitutions in 1984 and 1988. In both cases, this created some problems with the approval of the cantonal Constitutions and their amendments by the Federal Assembly because nuclear energy is also a power reserved to the Confederation (Article 24 of the former 1874 and Article 90 of the current Constitution). Article 115(2), second sentence of the new Constitution of Basel-Landschaft, dated 4 November 1984, provided that the Canton pledged to avoid any nuclear plant being built on the cantonal territory. First, the Council of States refused the guarantee because of the violation of federal law concerning nuclear energy and the principle of federal faithfulness. Then, the National Council accepted the guarantee in March 1986 and the Council of States supported this approval in June. They admitted that the federal law concerning nuclear energy left a certain room for manoeuvre to the Cantons, and therefore, the new cantonal Constitution did not prevent a federal task from being implemented simply because the building of nuclear plants was not really a federal task. Moreover, to “pledge itself to avoid” does not mean “prevent”. Therefore, enough room was left for an interpretation in accordance with federal law.39 From an administrative point of view, the development of capacities concerning the environment is also impressive at the cantonal level. As a matter of fact, the federal legislation has successively imposed on the Cantons the creation of no less than (at least) eight specialized services devoted to water, air, waste, hazardous substances, risk of major accidents, soil, noise and the protection of nature and landscape. For historical reasons (it does not rely on the same constitutional base), protection of 38 AG, Preamble, Art. 42; AR, Art. 29; BE, Art. 31; BL, Art. 112, 121 II (economy); BS, Art. 33; FR, Preamble, Art. 3(I)g, 71; GE, 160D; GL, Art. 22; GR, Art. 81; JU, Preamble, Art. 44a (sustainable development), 45; LU, Art. 11h; NE, Preamble, Art. 5j; SG, Art. 16; SH, Art. 81; SO, Art. 114, 121; TG, Art. 76; TI, Art. 14(I)I; UR, Art. 49; VD, Art. 52, 56 II, 59 I; ZH, Art. 102 (including incentives for sustainable development). Only six Cantons (AI, NW, OW, SZ, ZG and VS) do not enshrine environment in their Constitutions; paradoxically, five are small Germanspeaking Central Swiss Cantons in which environment is supposed to be taken very seriously, and Valais has suffered from aluminium industry. 39 Arrêté fédéral concernant la garantie de la constitution du canton de Bâle-Campagne, Feuille Fédérale 1986 II 699; Arrêté fédéral accordant la garantie fédérale à la constitution révisée du canton de Genève, Feuille Fédérale 1988 II 1127.



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nature and landscape is often treated apart of protection of the environment. Another difference is that Cantons’ administrations have not always united all sections specialized with environmental questions in one department. As usual, great differences exist among Cantons: some have created one unique section (JU, GL, two small Cantons), and others have many sections (seven in GE). The majority encompasses between 2 and 4 sections. 3.3. Public Participation Switzerland is the country of direct democracy. This means that citizens not only choose their MPs every four years, but also express themselves on constitutional and legal matters. The Swiss political system foresees as a general institutional rule at the three levels (federal, cantonal and local) the participation of the people in the decision-making process. Therefore, the people are often called “the sovereign”. This implication takes the form of initiatives and referendums (compulsory or optional) which take place quite regularly (Swiss vote almost four times a year on several issues). A look at the list of popular initiatives40 shows very clearly that a strong pressure exists in favour of the environment. On 29 September 2011, an initiative of the socialist party was presented at the federal Chancellery: “New jobs because of sustainable energies: Clean tech initiative.”41 And on 11 October 2011, the people began collecting the required signatures for an initiative called “Wolf, bear and lynx” aiming at a strict protection of the three species. However, this trend is quite recent. In 1893 (introduction of the popular initiative), the first one dealing with the environment was an initiative called “Against the pollution of waters” which was withdrawn on 24 April 1972 because of a counter-draft presented by the Government.42 Taking into account all initiatives presented since then, about one fifth are devoted to the environment. Formally, topics on which citizens are allowed to vote are defined by the Constitutions (federal and cantonal). Most of the time (always at the federal level), votes concern norms (general and abstract) but not administrative decisions (concrete).43 In environmental terms, this rule 40 http://www.admin.ch/ch/f/pore/vi/vis_2_2_5_1.html. 41 Feuille Fédérale 2011 6935. 42 Feuille fédérale 1972 I 1140. 43 It is easy to understand that administrative documents such as driving licenses or building permits should not be submitted to a popular vote. Concerning naturalizations, the question has drawn a serious legal and political debate crowned by the Federal Court in ATF 129 I 217 “Gemeinde Emmen”.

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has been circumvented. As a matter of fact, some normative popular initiatives were in reality referendums against concrete administrative decisions. Two famous examples are: the popular initiative “40 fortresses, it’s enough!” was in reality opposed to the building of the fortress of Neuchlen-Anschwilen.44 Another popular initiative “For the protection of swamps” (which has been accepted) was in reality directed against the building of a fortress on the Rothenturm Swamp.45 Another expression of the “misuse” of the popular rights in the field of environment is the fact that, at the cantonal or local level, popular votes can challenge the implementation of a constraining federal policy. This happens, for instance, if citizens in a Municipality refuse in a vote to finance a water treatment plant or a household waste incineration plant which are compulsory according to federal law. This creates a so-called implementation deficit (Vollzugsdefizit) that the federal authority can hardly manage. Of course, it could threaten these citizens or this collectivity to reduce subsidies in other fields, but an informal rule exists according to which the will of the sovereign people has always to be respected. Seemingly, the cantonal sovereign can vote against infrastructures belonging to a national policy in the field of environment. This is the case for the storage of nuclear waste. The Cantons in which a place has been considered as geologically suitable for this storage have strongly opposed its implementation. The Canton of Nidwalden has voted four times against the storage of nuclear waste on its territory,46 and this topic has even driven the eradication of the centuries-old Landsgemeinde because it was argued that opponents to nuclear waste storage were not wholly free to express themselves in the frame of this traditional popular assembly. 3.4. Environmental Organizations “Barristers” should support nature and the environment because they are not able to defend themselves and their interests. This is the reason a “right to appeal” has been enshrined in Article 55 of the EPA.47 Since the 44 The initiative “40 fortress, it’s enough – The army should also be submitted to the protection of the environment” was rejected by popular vote on 6 June 1993 by 55.3% of voters: http://www.admin.ch/ch/f/pore/vi/vis209.html. 45 It was accepted on 6 December 1987 by 57.8% of voters: http://www.admin.ch/ch/f/ pore/vi/vis159.html. 46 The last time on 13 February 2011. 47 This right is also enshrined in Art. 12(1)b of the Loi fédérale sur la protection de la nature et du paysage (451/1966) and Art. 28 ofLoi fédérale du 21 mars 2003 sur l’application du génie génétique au domaine non humain814.91/2003 (Genetic Genius Act).



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mid-1980s, a constant proportion of about 20 to 30% of the population is ready to participate to the protection of the environment by donations or activities in organizations of environmental protection.48 According to Article 55 of the EPA, environmental protection organi­ zations have the right of appeal against rulings of cantonal or federal authorities on the planning, construction or modification of installations for which an environmental impact assessment in terms of Article 10a is required. Organizations enjoying that right have to be active in Switzerland on a national basis, but pursue non-profit objects; any commercial activities must serve to achieve the non-profit goal. Currently, about 30 organizations enjoy this right.49 The main associations for the protection of the environment have more than 900,000 members (WWF 225,000, Greenpeace 150,000, ATE [Association Transport et Environnement] 135,000, Swiss Alpine Club 110,000 and Pro Natura 100,000). Although some double memberships are counted, the number of members is nonetheless quite high, representing about 10% of the Swiss population. This number is higher than members of trade unions (ca. 700,000 members) and political parties (ca. 400,000 members). This right of appeal for organizations is supposed to facilitate consensus, ease the integration of organizations into the decision-making process and encourage dialogue with investors. A study realized by the Centre d’étude, de technique et d’évaluation législative (CETEL) of the University of Geneva mandated by the FOEN showed that environmental organizations make a prudent use of this right.50 Nevertheless, this right has always been contested.51 In recent years, it has been challenged in the federal Parliament, in which several motions have asked – unsuccessfully – for its abolition. A popular initiative was even launched: “Right to appeal for organizations: enough with obstructions – more economic growth for Switzerland!” (07.046). On 30 November 2008, it was rejected by all Cantons and by voters: 66% No and

48 This percentage is slightly higher in German-speaking than French-speaking Switzerland. 49 See http://www.uvek.admin.ch/themen/umwelt/00640/01013/index.html?lang=fr. 50 A. Flückiger et al., “Evaluation du droit de recours des organisations de protection de l’environnement” (2000) 314 Cahiers de l’environnement. This means there is no abuse of this right. The conclusions of this study has been heavily contested by avenirsuisse (the lobbyist of the Swiss industry), what drove to a virulent “replica” of the authors in January 2005: http://www.unige.ch/droit/cetel/publications/reponseavenirsuisse.pdf. 51 See   http://www.avenir-suisse.ch/fr/3882/la-protection-de-l%E2%80%99 environnement-se-fourvoie/.

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34% Yes.52 Meanwhile, within the frame of the discussion about this “Hoffmann” Initiative, the Parliament has made some improvement proposals, which were approved on 20 December 2006 and entered into force on 1 July 2007. 3.5. Private Economy Can the environment be entrusted to the market? Theoretically no, because it represents much more than the market. Nature is source of every life, but economy is only one instrument to improve human life. In conclusion, the environment cannot be entrusted to the market, but environmental policy, to be efficient, has to work with economic instruments.53 Nevertheless, many measures foreseen by Swiss legislation are voluntary measures freely taken by the industry. In a post-industrial country like Switzerland, the question arises whether environmental protection can boost industry rather than simply imposing heavy burdens on the public collectivities.54 In fact, Switzerland, as a small, landlocked country generates a seemingly endless number of businesses, associations, academic initiatives and other enterprises focused on making use of resources in a bio-friendly manner for the benefit of the global community. Whatever the causes and influences, Switzerland has proven to be a fertile ground for the generation of endeavours that support environmental sustainability. Not surprisingly, many of these enterprises consider reducing greenhouse gas (GHG) emissions and, therefore, limiting climate change, as a major goal. Successfully helping to control climate change is, of course, a goal that can benefit more than just a small country. The FOEN makes a clear effort to foster the growth of new environmentally sustainable technologies. The agency allocates three to four millions Swiss francs annually to support the development of pilot demonstration plants and other efforts required to bring these technologies to market.

52 A detailed presentation of this initiative and its results is on Wikipedia: http://fr.wikipedia.org/wiki/Initiative_populaire_%C2%AB_Droit_de_recours_des _organisations_:_Assez_d’obstructionnisme_-_Plus_de_croissance_pour_la _Suisse_!_%C2%BB. 53 This is the conclusion drawn by experts during a seminar held at the University of Geneva on 6 October 2006, see URP/DEP Band 21 Heft 1.1. 2007, p. 154ss. 54 See WWF Education Centre, Environmental Markets in Switzerland - Prospects for Economy, Employment and Education (2005). See also D. Corbin, “Sustainable Switzerland – This Small Country Is Doing Big Things for Sustainable Energy and Efforts to Counteract Climate Change” (2004), available at http://eponline.com/articles/2004/02/01/sustainable -switzerland.aspx.



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Additional funds to support research and development projects come from the Commission for Technology and Innovation (CTI), part of the Federal Office for Professional Education and Technology. The Federal Bureau of statistics has published a study devoted to the industry’s expenses in favour of environmental protection in 2009.55 Enterprises have spent some 2.75 billion francs representing 0.5% GDP. According to Economiesuisse, the Swiss example proves that it is possible to reconcile environment and economic growth. In 2009, Swiss industry spent 10% less in favour of the environment than in 2003, not because its financial support had diminished, but because the efforts had proved successful. The support of the economy for more efficiency and cleaner technologies has contributed to the good health of the environment in Switzerland. Approximately one third of industry expenses are devoted to investments in Switzerland (one fourth in the EU). Between 2001 and 2006, expenses of the EU concerning protection of environment represented 2.5% of the total costs; two times more than in Switzerland. According to Economiesuisse, this data shows that voluntary investments produce better results than those imposed by a heavy bureaucracy. In the Swiss economy, the contribution of the “eco-business” to the GDP has already exceeded the one of agriculture (ca. 4% of GDP). According to a study by the WWF in Switzerland,56 eco-business represented CHF 20.95 billion per year (2002) with an average increase of 3.59%. This study showed that several sectors have experienced a mushrooming between 1998 and 2002: the forest economy label, biological agriculture, building with the Minergie label and trade with eco- and bio-products. The ecobusiness also proves unavoidable in such fields as waste management or protection of waters and air. The fight against noise also opens an important market. Moreover, consultancy activities also represent an important financial flux, especially in cases in which an Environmental impact assessment is required. Finally, many firms try to get ecological labels or certificates, which open new markets and potentials to them.57

55 See http://www.economiesuisse.ch/fr/themen/enu/energieallg/pages/_detail.aspx? artID=article_umweltaus gaben_20110829; see also the 2011 UNEP Report Decoupling Natural Resource Use and Environmental Impacts from Economic Growth. 56 WWF, Les marchés de l’environnement – perspectives pour l’économie, l’emploi et la formation (Berne, 2005), available at http://assets.wwf.ch/downloads/marche769sdel environnement.pdf. 57 Switzerland belongs to the top countries (after Denmark and Japan) for ISO 14001 norms; http://www.sappro.ch/environnement/norme.php.

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nicolas schmitt 3.6. Political Parties

The weight of associations is important because the weight of the Green Party (in fact, the Swiss Ecologist Party) remains quite weak. The party was founded in the mid-1980s as a federation of several movements, and it entered the federal Parliament in 1983. The party got 5% of votes in 1999, 7.4% in 2003, 10.5% in 2007, but only 8.4% in 2011. This year, the party called “liberal ecology”58 made a triumphant entrance in the federal Parliament, which shows that the Swiss like ecology but dislike dogmatism. From that point of view, the “Green” party is not the only party playing a role in defending the protection of the environment. On 5 May 2011, an alliance between several parties and organizations launched an initiative against nuclear plants,59 requiring that current plants should not be used more than 45 years. However, more officially, the Swiss Parliament voted a stop to nuclear power.60 This decision still has to be confirmed and will probably be submitted to the people, but it perfectly represents the joint roles of politicians, parties, associations and citizens on this topic, not simply the relation between the Confederation and the Cantons. 4. Cooperation and Conflict between Different Institutional Actors Most of the cantonal agencies for the environment, following the example of the FOEN, are roughly divided according to the eight major sectorial fields of the topic: the protection of water, air, the question of waste, hazardous substance, major accidents, soil, noise and the protection of nature and landscape. This basic structure (in divisions at the federal level or in offices/bureau/services at the cantonal level) proved efficient, especially because it allows for a coherent, rational and efficient conjunction of professional knowledge which is necessary for the implementation of the sectorial policies.61

58 See http://www.vertliberaux.ch/doku/medias/2011/mm20110930_rpg_fr.pdf. 59 See   http://www.verts.ch/web/gruene/fr/positions/environnement/energie/le _nucleaire/communiques/initiative _nucleaire_lancement.html. 60 See   http://www.swissinfo.ch/eng/politics/internal_affairs/Swiss_to_phase_out _nuclear_power_by_2034.html ?cid=30315730. 61 For instance, physics and engineering are required to fight against noise specialists in medicine.



environmental governance in switzerland103 4.1. Intra-Policy Cooperation

This structure is also due to the historical process driving the environmental law: protection of the waters in 1955, nature and landscape in 1966, air, noise, soils, waste and chemicals in 1983, and finally climate in 1998. The development of divisions has driven the creation of autonomous sectorial administrative entities with strong identities. Conversely, this fragmentation has been reinforced by an increasing vertical integration process of these sectorial policies among the Confederation, Cantons and Muni­ cipalities. This situation has occasionally contributed to contradictions and even conflicts between sectorial policies (intra-political conflicts).62 In the 1980s, these conflicts were sometimes exacerbated by fights between representatives of environmental “green” policies (nature and landscape, fishing and hunting, biotopes) and “grey” policies (air, water, waste). Moreover, this conflictuality can be explained by the fact that, until now, in most Cantons, the protection of nature and landscape belonged to one administrative office and the protection of environment belonged to another; often, these offices belonged to two different directorates which were managed by two cantonal “ministers” from two political parties. However, these clashes remain quite seldom. Usually, the daily life of office coordination goes well, especially because it is organized “bottom-up” rather than “top-down”. From that point of view, all those responsible know that sectorial policies are rather complementary: the intervention of one reinforces the other. 4.2. Cross-Sectoral Cooperation At the end of the 1980s, after a few years of experience in the implementation of environmental policies, cantonal administrations had drawn the same conclusion as the federal administration a few year earlier: envi­ ronmental policies are confronted with the pressure of other federal (but non-environmental) policies, which are sometimes powerful in terms of money, law, infrastructure and political support. At that time, agricultural policy was quite intensive (a number of fertilizers) and had negative effects on soils, waters and landscape. The policy of transportation and tourism favoured building a large infrastructure in 62 Some examples include: protection of landscape v. protection against major risks; protection of important water biotopes v. protection of housing zones against floods; building of walls against noise as part of protection against noise v. protection of landscape; waste management v. protection of air in the case of building of waste burning plants close to housing (good for heating but bad for air pollution).

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the mountains, which increased air pollution and spoiled the landscape. Energy policy aimed at a good electricity supply has resulted in the installation of large numbers of electrical posts, which also spoil the landscape. Town and country planning, considered a major tool against the proliferation of buildings, proved inefficient to fight an increase of buildings to the detriment of agricultural ground, resulting in the expansion of traffic and air pollution. Moreover, policies such as defence or economic promotion have also contributed to question the work done in the field of environmental protection, especially during economic crises like in the mid-1990s. Finally, a strange relation exists between fiscal and environmental policies: almost no fiscal incentives aim at more environmentally friendly behaviours. Contrary to the intra-policy cooperation, which goes well, inter-policy cooperation continues to create some problems. The only field in which relations have improved concerns the cooperation between agriculture and environment. This is because agricultural policy experienced a major change at the end of 1992. At that time, the entrance into force of the new GATT (General Agreement on Tariffs and Trade) aimed at a radical change in financing agriculture. Simultaneously, problems in public finance showed the limits of a policy which systematically drove the field to a huge agricultural surplus. Finally, it was also at that time that the consciousness of the dramatic impact of an intensive agriculture on the environment, as well as its counterpart bio-agriculture, started to emerge. Therefore, the system as a whole and its financing changed drastically. In sum, it marked the starting point of the “direct payments” (considered as compatible with GATT rules) in which farmers receive only direct payments for their contribution to a sustainable development. That is, farmers are paid to be the “gardeners of the landscape”.63 In this sense, the cooperation between agricultural policy and environmental policy can be considered a success because since the mid-1990s, agriculture needed a new reference to legitimate the funds it received. Simultaneously, environmental policy needed a success in the countryside where biodiversity was endangered. This cooperation continues at the cantonal level in which permanent conferences and commissions on “agriculture and environment” are held.

63 This new system has finally been enshrined into the new Loi sur l’agriculture 910.13/1998 and the Ordonnance du 7 décembre 1998 sur les paiements directs versés dans l’agriculture 910.13/1998 (Ordinance concerning direct payments for agriculture).



environmental governance in switzerland105 4.3. Courts

Contrary to other countries, decisions of the courts in Switzerland do not constitute a source of law per se, even if they play an important role for the interpretation of the law and as such have a quasi-normative function.64 The role of the courts is especially important when the legislator uses vague terms and notions, often the case in the field of environmental protection.65 When the judge examines vague or undefined notions, jurisprudence considers that it is a case in which the appraisal power of the judge is in principle unlimited. Nevertheless, a certain appraisal is also given to administrative authorities, especially concerning local, personal or technical circumstances.66 Generally, the Federal Court always tries to weigh all interests involved and has explained that its ruling is, in this case, an implementation of law that it can always freely revise.67 Practically, the Federal Court examines whether all interests have been taken into account and intervenes only if the weight given to one of them is clearly out of proportion. The constant increase of regulations concerning the protection of the environment has also increased the role and importance of courts. In recent years, cantonal administrative courts, federal appeal committees and the Federal Court have presented themselves as responsible for a strict implementation of federal law on the environment in the Cantons and the Municipalities.68 This is especially true for town and country planning (e.g., buildings outside building zones), for the protection of waters, nature and landscape (especially forests), or more recently, for the measures against atmospheric pollution or noise. Moreover, in their clarification work, Swiss courts have contributed to the fact that Cantons engage themselves in better coordination of their procedures. 64 Art. 1(3) Code civil 210/1907; see P. Tercier, La recherche et la rédaction juridiques (2nd ed.) (Fribourg, Editions Universitaire Fribourg, 1995). 65 Proof of this is the large number of publications which periodically enumerate recent developments of jurisprudence in this field, e.g., A. Griffel, “Entwicklungen im Raumplanungs-, Bau- und Umweltschutzrecht / Le point sur le droit de l’aménagement du territoire, de la construction et de l’environnement” (2009) 105 Schweizerische JuristenZeitung/Revue Suisse de Jurisprudence 467, or A. Ayer and B. Revaz, Droit suisse de l’environnement – Code annoté (3rd ed.) (Genève/Zurich/Bâle, Schulthess, 2006) or P. Hänni and R. Mahaim, “Die gesetzgeberischen Entwicklungen im Planungs-, Bau- und Umweltschutzrecht”(2009) Schweizerische Baurechtstagung 323, and many others. 66 See Tribunal Fédéral suisse ATF 116 Ib 203 of 9 May 1990 concerning the definition of biotope according to Art. 18(1) Nature and Landscape Protection Act of 1 July 1966. 67 See Tribunal Fédéral suisse ATF 112 Ib 543 of 17 December 1986. 68 Several cases can be found in the books mentioned in footnote No. 65.

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nicolas schmitt 5. Environmental Governance in Switzerland

As we have seen, environmental law in Switzerland is open and implies the participation of several actors, including the public. However, a long tradition of consensus exists in the country, and therefore, the protection of the environment moves forward in trying to (re)concile very different interests. 5.1. Responsibility Concerning its accountability, it remains a question of confidence. As we have seen, it could be a deficit in implementation (Vollzugsdefizite). However, considering the Confederation has very few means to impose its will, it remains a question of confederal faithfulness. But first, political accountability must be addressed. If the population is not satisfied, because Switzerland is a country with direct democracy, it has the choice to launch an initiative to oblige authorities to deal with an environmental topic they have put aside (e.g., no more nuclear plants) or on the contrary, to reduce some elements of protection (no more right to appeal for organizations). Moreover, citizens can vote for a party or for politicians who seem to be in touch with their environmental concerns, or they can rely on organizations to launch a referendum to put forgotten environmental questions on the political agenda. In 2011, federal elections showed a certain loss for the “traditional” Green party and a certain gain for the new “liberal” Green party, showing a desire of pragmatism in this field as in many others. 5.2. Effectiveness What is the outcome of such legal, political and technical engineering? At a first glance, it is very positive. A ranking released in 2008 by experts at Yale and Columbia Universities lists Switzerland in the top rank of greenest Nations, followed by the Scandinavian bloc (Sweden, Norway, Finland) and then Costa Rica.69

69 See http://www.msnbc.msn.com/id/22802081/ns/world_news-world_environment/ t/swiss-sit-atop-ranking-greenest-nations/. The United States, for its part, came in 39th among the 149 countries tracked in the 2008 Environmental Performance Index. Researchers noted that was well behind other industrialized Nations like the United Kingdom (14) and Japan (21). Twenty-two members of the European Union outranked the United States.



environmental governance in switzerland107

However, considering the hugeness of the task, a closer look gives a less balanced picture. Every 5 years, the FOEN publishes a report concerning the Swiss Policy of environment and resources. The last issue was elaborated jointly with the Swiss Federal Statistical Office and published on 1 June 2007.70 For the first time, the report drew an appraisal about the implementation of the federal policy concerning environment and resources: the latter presents a positive outcome in several fields such as water quality, waste management or some atmospheric pollutants. Unfortunately, the global state of the environment did not improve in the country. The way of life and bad habits in terms of consumption counterweigh progresses realized in this field. The most important challenges remain resources consumption and climate change. Swiss way of life and consumer society void the real progress made in the field of environmental protection and eco-efficiency. Therefore, important challenges remain. Challenges in terms of the role played by different government levels and institutional actors to protect the environment. Efforts made to smooth pressures on the environment in Switzerland have contrasting consequences. The conclusion drawn by the FOEN is that in the next few years, it will be necessary to better integrate environmental questions into other sectorial policies, such as transportation and agriculture. The main challenge will be the preservation of limited Swiss natural resources. 6. Concluding Remarks As we have seen, the multilevel institutional setting allows for quite good implementation of environmental law. However, this policy is regulated in Switzerland like many other policies, within the frame of executive federalism. The environmental power has been transferred to the central level, and Cantons are responsible for its implementation, with all the advantages attributed to federalism: an implementation closer to the public allows for a better understanding of the importance of this topic. Considering the topic was “centralized” in 1971, it is no longer possible to speak of centralization and/or decentralization. It is wrong to consider protection of the environment in Switzerland under the aspect of relation 70 See   http://www.bafu.admin.ch/dokumentation/medieninformation/00962/index .html?lang=fr&print_style =yes&msg-id=12860.

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between centre and periphery. This relation is quite “simple” and “pragmatic”: the first legislates and the second executes/implements. However, beyond the legal aspect, in a few decades, the protection of the environment changed from a modest fight against air pollution and noise to a highly complex legal and technical programme involving thousands of specialists throughout the country. No less than eight major fields of protection have been identified; twenty-one topics are even analysed by the FOEN: air, biodiversity, biotechnology, chemicals, climate change, contaminated sites, economy, EIA, electro-smog, forest and timber, hunting and fisheries, hydrology, innovation, international, landscape, law, natural hazards, noise, soil, waste and water.71 However, the more techniques become sophisticated, the more they allow for discovering new dangers, such as ultra-fine particles. Moreover, any measure taken to protect the environment can prove to endanger another aspect of the environment (e.g., building of walls against noise v. protection of landscape) or endanger the economy and working places (because of expensive regulations for waste, noise). In this sense, and taking into account the Swiss love of perfection, the protection of the environment could well become the rock of Sisyphus. However, a special relationship exists between Swiss citizens and their landscape. The natural beauty of the country, especially since its “discovery” by the first foreign tourists, has always represented an important identification element within a multicultural and fragmented society. In this sense, public, citizens and associations play an important role in this topic: everyone is concerned about the environment. In the end, environmental governance represents a huge dialectical process: it is not simply one Confederation, 26 Cantons and about 2,600 Municipalities federally dealing with the protection of the environment in Switzerland, also included are about 8 million citizens who express the “general will” as Rousseau himself would have dreamed. Bibliography J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 (Zurich/Basel/Geneva, Schulthess, 2003). G. Anderson, Federalism: An Introduction (Toronto, Oxford University Press – OUP, 2008). A. Ayer and B. Revaz, Droit suisse de l’environnement – Code annoté (3rd ed.) (Fribourg, Schulthess, 2006).

71 See http://www.bafu.admin.ch/index.html?lang=en.



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Bundesamt für Umwelt (BAFU), “Herausforderung Klimawandel” (2008) 3 Umwelt. D. Corbin, “Sustainable Switzerland - This Small Country Is Doing Big Things for Sustain­ able Energy and Efforts to Counteract Climate Change” (2004), available at http:// eponline.com/articles/2004/02/01/sustainable-switzerland.aspx. A. Epiney, “La mise en œuvre du droit de l’environnement – Lignes directrices pour un système efficace sur la base des exigences du droit de l’Union européenne et des expériences internationales” (2008) 2 Cahiers fribourgeois de droit européen 4–38. A. Favre et al., “Chronique du droit de l’environnement – Première partie: Principes généraux, taxes et assainissements” (2008) I-1 Revue de Droit Administratif et de Droit Fiscal 17. A. Favre et al., “Chronique du droit de l’environnement – Deuxième partie: La protection de la forêt, des biotopes et du paysage” (2008) I-3-4 Revue de Droit Administratif et de Droit Fiscal 307. A. Flückiger et al., “Evaluation du droit de recours des organisations de protection de l’environnement” (2000) 314 Cahiers de l’environnement. A. Flückiger and A. Petitpierre-Sauvain (eds.), “L’environnement peut-il être confié au marché? Des taxes incitatives au commerce des droits d’émission”(2007) 21–22 Umweltrecht in der Praxis 1–156. A. Griffel, “Entwicklungen im Raumplanungs-, Bau- und Umweltrecht / Le point sur le droit de l’aménagement du territoire, de la construction et de l’environnement” (2009) 20 Schweizerische Juristen-Zeitung/Revue Suisse de Jurisprudence 467. A. Griffel, Raumplanungs-, Bau- und Umweltrecht: Entwicklungen 2008 (Bern, Stämpfli, 2009). P.  Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht (Bern, Stämpfli, 2008). P. Hänni and R. Mahaim, “Die gesetzgeberischen Entwicklungen im Planungs-, Bau- und Umweltschutzrecht” (2009) Schweizerische Baurechtstagung 323. H. Keller, Kommentar zur Umweltschutzgesetz (Zurich, Schulthess, 1985). P. M. Keller, “Umwelt- und Energierecht” in M. Müller and R. Feller (eds.), Bernisches Verwaltungsrecht (Bern, Stämpfli, 2008), at 539. P. G. Kirchschläger and T. Kirchschläger (eds.), Menschenrechte und Umwelt (Bern, IHRF, 2008). P. Knoepfel et al., “Analyse des politiques de l’environnement” (2008), available at http:// www.idheap.ch/idheap.nsf/go/41D5D2D66E0E4BC5C12574C7002B051B?OpenDocumen t&lng=en. G. Lohmann, “Sollte es ein individuelles Menschenrecht auf eine angemessene Umwelt geben?” in P. G. Kirchschläger and T. Kirchschläger (eds.), Menschenrechte und Umwelt, (Bern, IHRF, 2008), at 103. Office fédéral de l’environnement (OFEV), “Le défi climatique” (2008) 3 Environnement. A. Petitpierre-Sauvain, “L’environnement a-t-il un avenir dans la concurrence?” in P. Gauch et al., Mélanges en l’honneur de Pierre Tercier, (Geneva, Schulthess, 2008), at 623. L. Ramdas, “Protection of Environment, Economic Development and Human Rights: Is Protection of Environment a Luxury?” in P. G. Kirchschläger and T. Kirchschläger (eds.), Menschenrechte und Umwelt (Bern, IHRF, 2008), at 141. H. Rausch et al., “Umweltschäden - Herausforderung für Umweltrecht und Haftungsrecht / Dommages à l’environnement - défi pour le droit de l’environnement et le droit de la responsabilité civile” (2009) 4 Umweltrecht in der Praxis. N.  Schmitt, “La fiscalité environnementale en Suisse (La tassazione ambientale in Svizzera)” in L. Antonini (ed.), L’imposizione ambientale nel quadro del nuovo federalismo fiscale, Studi sul federalismo fiscale (Naples, Jovene editore, 2010). P. Tercier, La recherche et la rédaction juridiques (2nd ed.) (Fribourg, Editions Universitaire Fribourg, 1995). UNEP, Decoupling Natural Resource Use and Environmental Impacts from Economic Growth (2011). B. Wagner Pfeifer, Umweltrecht I (3rd ed.) (Zurich, Schulthess, 2009).

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B. Wagner Pfeifer, “Wirtschaft und Umwelt” in D. Buser, Neues Handbuch des Staats– und Verwaltungsrechts des Kantons Basel-Stadt (Basel, Helb in Lichtenhahn Verlag, 2008), at 833. U. Walker, “Umweltrechtliche Beurteilung von Alltags– und Freizeitlärm” (2009) 1 Umweltrecht in der Praxis. WWF Education Centre, Environmental Markets in Switzerland – Prospects for Economy, Employment and Education (2005). WWF, Les marchés de l’environnement – perspectives pour l’économie, l’emploi et la formation (Bern, 2005), available at http://assets.wwf.ch/downloads/marche769sdel environnement.pdf. J.-B. Zufferey, “L’aménagement du territoire et la protection de l’environnement dans les secteurs de vigne - Quelques réflexions à partir d’une recherche de jurisprudence” (2008) I-2 Revue de Droit Administratif et Droit Fiscal 193.

PART I C: REGIONAL MODELS

ENVIRONMENTAL GOVERNANCE IN SPAIN Agustín García-Ureta and Iñaki Lasagabaster1 Introduction In this chapter, the authors consider the role of environmental policy and law in Spain. Broadly speaking, the environment has experienced fundamental changes, most notably after Spain’s accession to the European Union in 1986 because it lacked a coherent policy. Now, a robust legal order deals with the protection of the environment. However, it faces difficulties. Despite a prima facie clear cut distribution of powers in this field, interferences exist among the public authorities and lack of political thrust is present. Accordingly, a gap exists between legal and political commitments and existing mechanisms to provide effective protection for the environment. Other factors are taken into account in this chapter, such as the role of courts and of public participation procedures which undoubtedly affect a comprehensible development of environmental policy in Spain. 1. The Environment in the Spanish Constitution The protection of the environment is enshrined in the Spanish Consti­ tution of 1978, notably in Article 45(1) and also in the Basic Laws of the Autonomous Communities (Estatutos de Autonomía). Article 45(1) indicates: “Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it.” Despite its wording (“the right to”), the aforementioned provision is not located among fundamental rights (Title I, Chapter 1) but under so-called Principles governing Economic and Social Policy (Title I, Chapter 3). This means that, according to the Constitution,2 the recognition, respect and 1 Professors of Law, Faculty of Law, University of the Basque Country (Universidad del País Vasco – Euskal Herriko Unibertsitatea), Bilbao, Spain. The authors wish to thank Iñigo Lazcano (Department of Administrative Law, University of the Basque Country) for his useful comments on a previous version of this chapter. Research project MICINN Pirineos: DER2009-14775-C03-01. 2 Constitución Española 1978, Art. 53(3).

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protection of that principle shall guide legislation, judicial practice and actions by the public authorities. Strictly speaking, the environment may only be invoked before ordinary courts in accordance with the legal provisions implementing the corresponding protection measures. Due to the fact that the environment is not a subjective right in the Constitution but a guiding principle, it is first for the legislator to bring flesh to that bone. Although it is undeniable that environmental concerns are important in legislative and judicial practice, the still weak position (at least formally) of Article 45 in the Constitution led the Constitutional Court to declare in 1984 that general prohibitions on the carrying out of mining activities, due to environmental concerns, did not prevail over other constitutional principles, such as economic development.3 However, this particular judgment should be read with caution. It was delivered at a time in which environmental considerations were not as important as they are now. At that time, Spain had not even become a member of the European Communities (as they were then; accession date 1 January 1986). In fact, in a different judgment, the Constitutional Court acknowledged that specific prohibitions on mining activities could be adopted provided they affected particular areas, for example, nature reserves.4 Likewise, the reference to the rational use of resources in Article 45(1) justifies the designation of resources as public domain.5 Nevertheless, the combination of Article 45 with other constitutional provisions,6 in particular the case law of the European Court of Human Rights (ECHR), has strengthened the position of the environment as a right.7 The Constitution refers to the environment as a public good all public authorities must protect. Accordingly, they must guarantee the rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment.8 In addition, criminal or, when applicable, administrative sanctions must be imposed, under the terms established by the law, to guarantee that the damage caused by third parties is repaired.9

3 Tribunal Constitucional de España Judgment 62/1984. 4 Tribunal Constitucional de España Judgment 170/1989. 5 Tribunal Constitucional de España Judgment 227/1998. 6 Art. 15 (physical integrity) and 18 (privacy). 7 See López Ostra v. Spain, ECHR Judgment of 9 December 1994; Moreno Gómez v. Spain, ECHR Judgment of 16 November 2004; Martínez Martínez v. Spain, ECHR Judgment of 18 October 2011. 8 Art. 45(2) of the Constitution supra. 9 Ibidem Art. 45(3).



environmental governance in spain115 2. Distribution of Powers Concerning the Environment

The distribution of powers in environmental matters leads to an initial problem, that is, the meaning of the very notion of the environment. Fields closely related to the environment have autonomously been considered by the Spanish Constitution, for instance, water law or town and county planning.10 The expansive reach of the environment has been the subject of rulings from the Constitutional Court holding that only powers directly linked with its protection, preservation or improvement of its quality can be regarded as pertaining to the environment.11 In sum, the distribution of powers is as follows: the State is empowered to adopt basic laws that must be complied with throughout Spain. They represent the common denominator. The Autonomous Communities are entitled to develop those rules, theoretically for the setting out of their own policies and also to approve more protective measures.12 They are under no obligation to wait for State’s intervention. However, if a contradiction exists between Auto­ nomous Communities’ laws and subsequent State legislation, the latter necessarily prevails and Community legislation is to be regarded as unconstitutional. In addition, the Autonomous Communities are precluded from adopting more lenient rules (e.g., sanctions) than those approved by the State.13 In general terms, the execution of environmental law is attributed to the Autonomous Communities;14 State’s powers include the approval of laws and regulations but not of particular decisions.15 However, the Spanish Constitutional Court has accepted that the State may exceptionally adopt such decisions, for example, the granting of leases for the management of water resources,16 the designation of a national park,17 10 Ibidem Art. 148(1)(3); Tribunal Constitucional de España Judgment 61/1997. 11 Tribunal Constitucional de España Judgment 102/1995. 12 Art. 149(1)(23)of the Constitution supra; see Art. 193 of the Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) 2010/C 83/01; I. Lasagabaster et al., Derecho Ambiental. Parte General (Bilbao, Lete, 2007), at 105–120. 13 Tribunal Constitucional de España Judgments 156/1995, 196/2006, 16/1997, 166/2002. 14 Art. 148(1)(9) of the Constitution supra; Tribunal Constitucional de España Judgment 33/2005. 15 For an account of the relevant constitutional case law, see G. Valencia Martín, “Política ambiental del Tribunal Constitucional” in F. López Ramón (ed.), Observatorio de Políticas Ambientales (Madrid, Thomson, 2006), at 213-269; and “Jurispudencia constitutional: Sobre las implicaciones de las sentencias del estatut y las decisiones cautelares en los casos del cabanyal y el parany” in F. López Ramón (ed.), Observatorio de Políticas Ambientales (Madrid, Thomson, 2011), at 201-227. 16 Tribunal Constitucional de España Judgment 227/1988. 17 This power is enshrined in Ley de la Red de Parques Nacionales 5/2007.

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or the approval of a catalogue of endangered species.18 The State has also attributed itself the power to decide on geological sites for the storage of CO2 by invoking economy planning and energy powers.19 Another important instrument, that is, environmental impact assessment, is not part of the executive power of the communities. The Court has held that as long as a public authority, be it the State or an Autonomous Community, is entitled to authorise a project it also carries out the corresponding environmental impact assessment.20 As was indicated previously, other fields such as water or coasts have a different regulation in the Constitution. In the first case, the exercise of powers depends on the corresponding river basin. Accordingly, all waters flowing alongside two or more Autonomous Communities (inter-community river basins) are to be managed by the State.21 If those waters only flow in the territory of an Autonomous Community, then it is for the latter to manage those resources (intra-Community river basins). Therefore, if a river is born in an Autonomous Community adjacent to another, but only for a few hundred meters, the jurisdiction over that river belongs to the State. Regarding the coasts, the State adopts the relevant rules plus their execution. The allocation of powers should not neglect the important role of local authorities, particularly in the case of town planning matters but also concerning other fields, for example, waste. Municipalities with more than 50,000 inhabitants are entrusted with general environmental powers albeit subject to the prescriptions set out by the State and the Autonomous Communities.22 Local authorities also participate in the granting of environmental authorisations, for example, those regarding integrated pollution and prevention control that are conceded by the Autonomous Communities. However, in this particular case, the Municipalities retain full control over the compatibility of the activity with town planning rules. The State enjoys other powers affecting the environmental competences of the Autonomous Communities. Some of them are horizontal to any of the activities carried out by the communities, for example, 18 Tribunal Constitucional de España Judgment 102/1995. 19 Ley 40/2010 de almacenamiento geológico de dióxido de carbono. 20 Tribunal Constitucional de España Judgment 13/1998. This also guarantees that a large majority of activities are finally declared compatible with environmental standards. 21 Art. 149(1)(22) of the Constitution supra: “The State is empowered to adopt legislation, regulation and concession of hydraulic resources and development where the waterstreams flow through more than one Autonomous Community, and authorization for hydro-electrical power plants whenever their operation affects other communities or the lines of energy transportation are extended over other communities.” 22 Ley 7/1985 Reguladora de las Bases del Régimen Local.



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coordination of economy planning23 or the need to guarantee a single market. In addition, the Constitution entrusts the State with sectorial powers that have a real influence on the communities, for example, the regulation of forests, water resources, mining, energy,24 harbours, merchant navy,25 public works of general interest, authorisation of electricity installations, or fishing,26 among others. It is for this reason that the Constitutional Court has held that State’s fishing powers prevail over those concerning the designation of a nature protected area.27 Nevertheless, the Court has also held that the mere fact that an issue may affect the territory of two or more Autonomous Communities does not by itself mean that the State is empowered to carry out the corresponding executive powers,28 for example, the approval of a management plan for a national park affecting three Autonomous Communities.29 Likewise, the existence of resources previously declared as public domain, for example, continental waters, does not exclude the environmental powers of the Autonomous Communities. The latter may also impose restrictions on the free movement of goods to avoid invasive species provided a real need to protect certain local species (e.g., river crab) is present and the restrictive measures are proportionate.30 Likewise, the transposition of EU environmental law is subject to the distribution of powers between the State and the Autonomous Communities as set out in the Constitution.31 3. Cooperation or Competition between Public Authorities Cooperation or competition reveals politicians’ interest in environmental policy matters to be, in fact, a rather limited interest. So far, in Spain, environmental policy has not been a priority. After the general elections held in 2007, the Spanish Government decided to merge the ministry for agriculture with the ministry for the environment creating the ministry for the environment, rural affairs and the maritime environment. At the end of the day, environmental concerns are diluted in already multifaceted 23 Art. 149(1)(13) of the Constitution supra. 24 Tribunal Constitucional de España Judgments 175/2003 and 14/2004. 25 Tribunal Constitucional de España Judgment 40/1998. 26 Tribunal Constitucional de España Judgment 9/2001. 27 Tribunal Constitucional de España Judgment 38/2002. 28 Tribunal Constitucional de España Judgment 329/1993. 29 Tribunal Constitucional de España Judgment 306/2000. 30 Tribunal Constitucional de España Judgment 66/1991. 31 Tribunal Constitucional de España Judgment 236/1991.

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administrative institutions. Other Autonomous Communities have fol­ lowed suit. The limited interest in environmental matters means that cooperation or competition among different authorities tends to be narrow; the protection of coasts being a clear example. In this particular field, the State is empowered to adopt the legislation and to execute it. The Autonomous Communities are entrusted with territorial planning matters and Municipalities with town planning issues. However, no major contradictions between those three decision-making levels have arisen despite apparent problems concerning the coasts in the last decades, some of them criticised by the European Parliament32 (i.e., uncontrolled urban growth or the invasion by private individuals of areas declared as public domain). Obviously, conflicts between diverse interests emerge on certain occasions. The Autonomous Communities are custodians of their territory and therefore of the environmental factors in that territory. Therefore, they may not be willing to accept projects authorised by the State to be executed within or alongside their territorial boundaries. Infrastructures, such as jails, have unsuccessfully been questioned before the courts due to the lack of previous environmental impact assessment.33 Likewise, attempts to halt the setting up of military installations have been rejected by the Constitutional Court based on the State’s exclusive powers.34 Fishing powers prevail over the designation of nature protected areas in maritime waters provided no natural link between land-based and sea-based areas exists.35 Cooperation takes place in the legislative sphere. The existing constitutional framework contains provisions to guarantee the participation of the Autonomous Communities during the legislative stage. However, neither the Senate (territorial chamber), nor so-called Sectorial Conferences held between the State and the different Autonomous Communities play a substantial role in designing coherent environmental policies. Cooperation is scant and lacks adequate instruments. With regard to cooperation in administrative procedures, different rules foresee the submission of

32 See European Parliament, Report on the Impact of Extensive Urbanisation in Spain on Individual Rights of European Citizens, on the Environment and on the Application of EU Law(2009) (Auken Report), available at http://www.europarl.europa.eu/sides/getDoc .do?type=REPORT&language=EN&reference=A6-0082/2009. 33 Tribunal Supremo (Sala de lo Contencioso) Judgment 121/2009; see A. García-Ureta, “The Habitats Directive and Jails: Why the Spanish Supreme Court Has Got it Wrong” (2011) 2 Environmental Liability 53-62. 34 Tribunal Constitucional de España Order 428/1989. 35 Tribunal Constitucional de España Judgment 38/2002.



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compulsory and, on certain occasions, binding reports. If a certain decision may affect the powers of a different public authority, then the report will condition the decision. This may be an adequate mechanism as pollution prevention and control procedures reflect. In this particular case, the local authority has to submit a binding report on the compatibility of the installation with existing town planning rules. Likewise the State’s water authority must also deliver a binding opinion on the discharges of effluents from the plant if they may affect inter-community river basins. In recent years, the Autonomous Communities and the central government have usually created commissions dealing with the development and implementation of environmental legislation. These commissions may include different authorities. Due to the complexity of legislative or rule-making procedures, it is difficult to assess whether they have a real impact on the preparation of new legislative proposals and particularly on the day-to-day management of environmental policy. Their inner activities are rarely known save when frontal opposition is present, particularly on the part of the NGOs, to accept new proposals. Arguably, those commissions are created mainly for public relations purposes rather than for proper integration of different views with the aim of improving the activities of Parliaments and/or public authorities. Despite the aforementioned deficiencies, sectorial regulations do foresee the creation of cooperating institutions, as is the case in water law as required by Directive 2000/60/ EC,36 establishing a framework for Community action in the field of water policy. 4. The Environment as a Source of Conflict between Public Authorities Broadly speaking, the environment has not been a main source of conflict between authorities.37 There may be discrepancies regarding in partic­ ular who should do what, for example, the carrying out of environ­men­ tal  assessments,38 the management of rivers,39 or the administration of national parks,40 among others; however, in the last 30 years, institutional 36 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1. 37 Of course, NGOs or private citizens do challenge projects before the courts. 38 Tribunal Constitucional de España Judgment 13/1998. 39 Tribunal Constitucional de España Judgment 227/1988. 40 Tribunal Constitucional de España Judgment 306/2000.

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conflicts have not been widespread. Despite the important problems derived from the application of coastal legislation, this issue has received scant attention from political parties. The same could be said regarding other fields. As indicated before, conflicts among public authorities are intermittent and above all they usually have a theoretical-abstract orien­ tation. Divergent positions do not usually emerge in the case of infra­ structures with important repercussions on the environment, such as the construction of harbours, high speed railways or roads. In fact, useless or very limited exploited infrastructures have been built, for example, the Ciudad Real, Castellón, and Huesca airports, with hardly any contradictions among politicians being voiced in the media, save those submitted by NGOs. In other cases, Parliaments are approving certain projects, such as golf courses or urbanisations without strong opposition from politicians. However, it seems that this trend may come to an end particularly in the case of legislative validation of projects previously quashed by the courts. Arguably, one of the most contentious issues between politicians, Autonomous Communities and society as a whole was the adoption of the Hydrological Plan by Law 10/2001. This plan foresaw the transfer of water resources (approximately 1,050 hm3/year) mainly from the Ebro River to the Southern Autonomous Communities. The 2001 Law adopted by the conservative Government was subsequently repealed by the socialist Government as soon as it won the elections in 2004 (Royal Decree-Law 2/2004). This latter Law was challenged by two Autonomous Communities before the Constitutional Court who has not yet delivered a ruling. However, the Court rejected a challenge submitted by a Province government due to the lack of locus standi.41 More recently, it has raised the issue of the recognition of rights in relation to water in the Basic Laws of the Autonomous Communities. Thus, the reform of the Basic Law of Valencia established the right of the citizens of this Community to water, with certain conditions and requirements. The Constitutional Court considered that those provisions could call into question the rights of other communities because the water on which they wanted to guarantee that right belonged to rivers flowing from other regions.42

41 Tribunal Constitucional de España Judgment 363/2005. 42 Tribunal Constitucional de España Judgment 247/2007.



environmental governance in spain121 5. The Role of Courts

The Constitutional Court has jurisdiction on appeals against the alleged unconstitutionality of laws and regulations having the force of law and on conflicts of powers between the State and the Autonomous Communities or amongst the Autonomous Communities themselves.43 Conflicts mainly concern the question of who is responsible for the adoption of laws concerning the environment or for their execution. Therefore, the Court carries out a kind of theoretical control of a decision and the powers enjoyed by the authority who adopted it. Regarding water law matters, the examination was done by Judgment 227/1998 in which the Constitutional Court upheld State’s powers over the Autonomous Communities and confirmed that the division into river basins was correct in constitutional terms. According to the Court, from the standpoint of the logic of the management of the waters, it did not seem more reasonable to partition the water management in river flows and its tributaries taking into account the geographic confines of each Autonomous Community. Further challenges have forced the Court to examine the amendments to the Basic Laws of certain Autonomous Communities concerning in particular the discharges of effluents.44 A more recent constitutional conflict emerged between the Autonomous Communities of Extremadura and CastillaLeón in respect to a provision in the Basic Law of the latter Community that reserved legislative and executive powers in the field of hydraulic resources and the waters of the Duero river basin originating in CastillaLeón and flowing to Portugal without going through any other region. The Court concluded that by partitioning the status and management of waters within the same river basin, as in the Duero basin, the aforementioned provision violated Article 149(1)(22) of the Constitution.45 Likewise, in the case of a rule in the Basic Law of the Autonomous Community of Andalucía reserving exclusive jurisdiction over the waters of the Guadalquivir basin passing through its territory, the Court held that the provision was based on a fragmented management model of water belonging to the same inter-Community river basin.46 The role of the Constitutional Court substantially affects the distribution of environmental powers. Arguably, the main judgments delivered by 43 Art. 161(1)a and c respectively, of the Constitution supra. 44 Tribunal Constitucional de España Judgment 31/2010. 45 Tribunal Constitucional de España Judgment 32/2011. 46 Tribunal Constitucional de España Judgment 30/2011.

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the Court have dealt with four basic matters: (a) environmental impact assessment; (b) water law; (c) coasts law; and (d) nature protected areas, in particular the management of national parks. The Constitutional Court exercises a negative legislative power by declaring that a certain piece of legislation is incompatible with the Constitution. Nevertheless, a distinction should be drawn between (i) interpretative and (ii) manipulative judgments. Interpretative judgments hold that a law complies with the Constitution provided it is construed according to a particular dictum determining the precise meaning of the law. These judgments consider different meanings indicating the one that is congruent with the Constitution. By contrast, manipulative judgments attribute to a law a subject matter that it is not enshrined in its text. In other words, they add a subject to a particular provision lacking that content. Although a law may be declared unconstitutional for breaching the distribution of powers set out in the Constitution, the Court has accepted that it may remain in force until a new law is adopted.47 6. Difficulties in Implementing/Controlling Environmental Laws From a theoretical viewpoint, environmental law as such lacks legal or dogmatic autonomy. The consequence of this feature is that the most important tools for its enforcement in Spain are the regular and usual tools, instruments and techniques that may be found in other fields of administrative action: plans and programs, licensing and screening, subsidies, inspections, and administrative fines and sanctions of different natures. A further matter to note is that in the Spanish system, EU environmental law as such has no independent, distinct or autonomous regime for enforcement. EU rules (especially in the case of directives) lose any legal or institutional visibility from the moment of transposition in favour of domestic law.48 Be that as it may, an important difficulty for the control of environmental legislation is the absence of political thrust. As was previously indicated, environmental policy is not a priority for public authorities. This policy experiences similar problems like other policies, in particular 47 Tribunal Constitucional de España Judgment 195/1998 (marshes of Santoña). 48 A. Moreno Molina and A. García-Ureta, Enforcement of EC Environmental Law. Spain (2009), available at http://www.avosetta.org.



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high reliance on publicity and advertising as basic tools to attain political objectives, or the existence of a gulf between binding commitments and existing means to actually implement them. It is more important to give the impression that something is done rather than truly doing it. Environmental policy is a field in which responsibilities are diluted and key decisions are not made. Admittedly, implementing policies is subject to judicial control but delays and costly proceedings before the courts do not invite citizens to challenge decisions. Further procedural complexities hamper proper analysis of decisions affecting the environment. For instance, the Spanish Supreme Court has repeatedly declared that the environmental assessment carried out by public authorities cannot be challenged in isolation.49 That assessment is a decision in itself but because it represents a prior step in a lengthy authorisation procedure, it can only be appealed against the final decision on the plan or project. A peculiar judicial culture in Spain should also be mentioned. First, no a specialised jurisdiction dealing with environmental law matters exists, the latter being considered by administrative law judges who arguably lack deep knowledge of the applicable laws and ECJ’s case law. In fact, Spanish judges refrain from asking the ECJ any questions regarding environmental law. After Spain’s accession to the European Union (1986) only one judge has ever submitted a question.50 It has been argued in some quarters that the lack of references to the ECJ may be the result of already slow judicial procedures in Spain, a further submission to Luxembourg would exacerbate.51 However, considering some judgments that have sidestepped EU law (without proper response from the European Commission under Article 226 TFEU),52 it could be argued whether EU law is seriously being taken into account by Spanish courts, notably by the Spanish Supreme Court, when dealing with, for example, the Habitats Directive.53 Preliminary submissions to the ECJ do not per se represent additional 49 Tribunal Supremo (Sala de lo Contencioso) Judgment 7742/1997; however, the decision not to submit a project to environmental assessment can be challenged: Tribunal Supremo (Sala de lo Contencioso) Judgment 4437/2007. 50 ECJ Case C-142/07, Ecologistas en Acción-CODA v. Ayuntamiento de Madrid. 51 See Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950) 5 CETS. 52 Notably, Tribunal Supremo (Sala de lo Contencioso) 121/2009 supra, concerning the construction of a jail affecting a Natura 2000 site without environmental impact assessment. However, the Judgment l 1511/2008, quashed the authorization of an already executed road also affecting a Natura 2000 site. 53 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1992) OJ L206/7.

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obstacles for the delivery of judgments. At the end of the day, it is the environment that silently suffers from exasperating judicial tardiness, including, in particular, late decisions on interim measures frequently rejecting requests for the adjournment of controversial works, or the need to previously submit insurmountable financial assurances. In the light of the foregoing, it is not surprising that the compliance committee of the Aarhus Convention of 199854 has indicated in a case concerning town planning matters in Spain that citizens cannot actually obtain injunctive relief early or late. Although injunctive relief is theoretically available, it is not available in practice. As a result, the committee has already come to the conclusion that Spain is in noncompliance with Article 9(4), of the Convention, which requires Parties to provide adequate and effective remedies, including injunctive relief.55 In addition, administrative law courts carry out a control of “legality”, but not of the policy choice performed by public authorities. Thus, whenever the laws and regulations have been duly followed, whenever the authority states in a thorough way the reasons for reaching the decision, whenever the environmental and non-environmental factors appear to have been dully taken into consideration in a “balanced” decision, little room remains for quashing an authority’s decision granting a permit despite the environmental effects of the project. However, this state of affairs is not widespread. Courts do also quash badly motivated decisions.56 7. Public Participation Public participation in the preparation of environmental policy and law, including water matters, is duly enshrined in the applicable legislation.57 54 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) 2161 UNTS 447. 55 http://www.unece.org/env/pp/compliance/CC-26/ece_mp.pp_c.1_2009_8_add._1 _as%20re-submitted %20CLEAN.pdfCase C-24/2008. 56 Tribunal Supremo (Sala de lo Contencioso) Judgment 86/2005, concerning the National Allocation Plan of CO2 emissions rights. 57 Ley 27/2006, implementing Directives 2003/4/EC (access to information) and 2003/35/EC (participation Rights). See Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (2003) OJ L41/26; Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (2003) OJ L156/17.



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However, its actual implementation is a different story. A detailed analysis should begin with the right of access to environmental information. This right faces serious difficulty despite being enshrined in environmental laws and in the Aarhus Convention of 1998 (ratified by Spain)58 and having received the support of the courts, for example, guaranteeing access to inspection reports concerning nuclear power stations.59 However, Ley 30/1992, de Régimen Jurídico de las Administraciones Públicas y del Proce­ dimiento Administrativo Común, is still firmly based on different obstacles to hamper open Access to information.60 It is for this reason that EU law has represented a step forward in the process of safeguarding openness. However, this right does not necessarily assure robust participation policy. Information must overtly be disseminated avoiding the need to visit public authorities’ offices. Bearing in mind the existing computing support systems, information should also be widely available on the web as required by Directive 2003/4/EC.61 Without information, it is exceedingly difficult to articulate effective participation in environmental matters.62 Administrative documents are becoming intricate and vast, this being a way to obstruct precise understanding of the environmental complexities and repercussions of projects. Therefore, it should be necessary to facilitate their proper knowledge without the need to examine the whole document in search of the aspects for which a citizen would be looking. Participatory rights are still limited. Representations submitted by citizens are not properly being taken into account by the public authorities. In fact, on certain occasions, decisions have already been adopted at a political level (e.g., windmills), the right to participate signifying a disagreeable burden with which to comply. It is for these reasons that participation procedures in Spain should resemble those already existing

58 A. García-Ureta, “Algunas cuestiones sobre la regulación del derecho de participación a la luz del Convenio de Aarhus de 1998” (2005) 7 Revista Aranzadi de Derecho Ambiental 43-70. 59 Tribunal Supremo (Sala de lo Contencioso) Judgment 3457/2000. 60 Art. 37 of Ley 30/1992 de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común.The Spanish Government will submit a transparency and access to information law in 2012. 61 I. Lazcano, “El derecho de acceso a la información sobre el medio ambiente en la Directiva 2003/4/CE” in A. García-Ureta (ed.), Estudios de Derecho Ambiental Europeo (Bilbao, Lete, 2005), at 105-151. 62 See R. García Macho (ed.), Derecho administrativo de la información y administración transparente (Madrid, Marcial Pons, 2010), in particular the contributions of Sommermann, Lasagabaster and García Macho.

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in other States, such as France with enquêtes publiques.63 Although parliamentary internal rules provide for the participation of experts, this option is not frequently employed. Spanish Parliaments, either central or regional, do not frequently invite third parties to give skilled evidence on environmental matters. Piecemeal approaches tend to dominate their current workings as reflected in parliamentary debates. This can be explained by the fact that Spain lacks a coherent environmental policy, arguably, only following the initiatives adopted in Brussels. 8. Standing Matters Article 24 of the Spanish Constitution indicates that all persons have the right to obtain effective protection from judges and courts in the exercise of their rights and legitimate interests.64 In addition, Article 125 states that citizens may exercise an actio popularis in the manner prescribed by law. Apart from the Criminal Code, town and country planning laws have traditionally enshrined an actio popularis. Therefore, no need to defeat strict standing requirements to have access to the courts is present. However, no general actio popularis for the protection of the environment exists. The Spanish Parliament has adopted a piecemeal approach in this respect by inserting this action in certain laws, for example, national parks or coasts. In fact, Law 27/2006, transposing the Aarhus Convention of 1998, has been criticised because it sets out restrictions on NGOs’ access to the courts despite the generous provisions of the Convention. Now, it is mainly for the Autonomous Communities to enshrine that action in their general environmental laws, as it happens in the Basque Country.65 9. EU Environmental Law as a Source of Conflicts or Cooperation EU environmental law represents two different aspects for Spanish law. On the one hand, it definitely guides environmental policy considering 63 B. Delaunay, “El debate público” (2008) 6 Ingurugiroa eta zuzenbidea/Ambiente y derecho 23-33, available at http://www.eitelkartea.com/dokumentuak/dealu.pdf. 64 Regarding Access to justice, see L. Krämer, “El acceso a la justicia por motivos ambientales” (2004) 2 Ingurugiroa eta zuzenbidea/Ambiente y derecho 11-31, available at http:// www.eitelkartea.com/ dokumentuak/1.kapitulua12.pdf; A. García-Ureta, “Aspectos sobre el acceso a la justicia en el Convenio de Aarhus y su incidencia sobre el Derecho comunitario” (2005) 3 Ingurugiroa eta zuzenbidea/Ambiente y derecho 63-88, available at http://www .eitelkartea.com/dokumentuak/3.kapitulua4.pdf. 65 Ley 3/1998 General de Protección del Medio Ambiente del País Vasco, Art. 3(4).



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Spain has traditionally lacked a specific strategy. The accession to the EU in 1986 meant a change in attitude and the setup of comprehensive protection instruments designed in Brussels. This factor undoubtedly has forced public authorities to update their internal workings and, in a more limited fashion, to cooperate among themselves. On the other hand, Spain does not always comply with the EU law because (a) it is tardy or deficiently transposed; (b) obligations are badly executed due to the lack of willingness or because their reach is misunderstood; (c) EU requirements affect large portions of the territory, as it happens with Natura 2000;66 (d) an apparent gap exists between the repeatedly proclaimed importance of the environment and the existing infrastructure to manage it; (e) public authorities lack scientific and legal experts to deal with dayto-day matters; therefore, reliance on external advice that may also assist other parties is frequent; and (f) internal cooperation mechanisms do not avoid delays and different approaches on the part of the Autonomous Communities. In social terms, the environment is a conflicting field. Arguably, one of the most intractable problems is the execution of infrastructures affecting protected sites. As was previously indicated, roughly 25% of Spain’s territory is affected by Natura 2000. This means that despite the current economic downturn, different works are being executed with important repercussions on those areas. NGOs are active in appealing decisions taken by public authorities. Public institutions also challenge infrastructures that affect their territory such as jails, motorways or electricity lines. Although judges have quashed important projects,67 their decisions are usually delivered after those infrastructures have already been executed. Requests for the adoption of interim measures are not effective because (a) decisions are taken very late;68 or (b) judges demand the submission of considerable guarantees to avoid the economic impact derived from the suspension of the works. Another trend is the validation by Law of projects already declared incompatible with the environment by administrative law courts.69 This evident fraud to the separation of powers is also being used as a shield to avoid challenges because Laws can only be appealed before the Constitutional Court and citizens lack standing in 66 Roughly 25% of Spain is affected by Natura 2000. 67 Tribunal Supremo (Sala de lo Contencioso) Judgment 1511/2008 supra. 68 For instance, six months in the case of the construction of a jail affecting a Natura 2000 site; Tribunal Supremo (Sala de lo Contencioso) Judgment 121/2009 supra. The request was made on 19 February 2009. 69 Tribunal Constitucional de España Judgment 73/2000 (Itoiz dam).

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those cases. The Court has so far accepted this course of action (also ratified by the ECHR)70 in a landmark case concerning the construction of the Itoiz dam (Autonomous Community of Navarre), which had previously been quashed by the Spanish Supreme Court. However, just in 2010, more than five laws were approved by different Autonomous Communities to, inter alia, declassify protected habitats to ease the construction of a harbour, modify a nature protected site to allow the construction of a ski resort previously prohibited, permit the carrying out of a leisure resort, and legalise an important number of constructions affecting the maritime domain, the demolition of which had previously been ordered by courts. These cases, some of them already pending before the Constitutional Court, may force a change in the case law. In fact, the judgment of the European Court of Justice in case C-128/09, Boxus and Roua,71 concerning the reach of the Aarhus Convention and Directive 85/337/ECC,72 on environmental assessment of projects, reinforces the role of national courts for the proper control of Parliament ratification of projects.73 10. Institutional Settings and Remarks on Decentralizing/ Centralizing Policies with Regard to Environmental Protection The institutional setting could adopt different forms to become more efficient. Overlap between the three main levels of government (central, regional and local) does exist. However, this does not seem to represent a true problem for minimising environmental conflicts or for the drafting of policies. In a sense, the current institutional framework is rather neutral; the management of coasts being perhaps one of the clearest examples. Gross breaches of the law have taken place and none of the three different levels of government have manifested a true interest in putting an end to this state of affairs. They have not intervened because they did not, in effect, have any willingness to take decisive action; the construction of the Algarrobico hotel in the Province of Almería (Autonomous Community of Andalusia) being perhaps the archetype of this assertion. With 75.000 m3, the hotel was carried out in a nature protected area and at 28 metres from 70 Gorraiz Lizarraga v. Spain, ECHR Judgment of 27 April 2004. 71 ECJ Case C-128/09, Boxus and Roua. 72 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1985) OJ L175/40. 73 A. García-Ureta, Convenio de Aarhus y convalidaciones legislativas: Recurso directo contra leyes en vía contenciosa? (Diario La Ley, 2011), at 1-6.



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the seashore with the acquiescence of the regional and local authorities and with scant control from the Spanish Government until the damage was already done. The work was halted in 2005 (with 94% of the construction already concluded). The Tribunal Supremo has recently declared that 100 metres protection area set out in Ley 22/1988 de Costas, had been breached.74 At the end of the day, it is not a matter of conflict between the authorities but of willingness to enforce the law. In some cases, the existing institutional framework facilitates putting the blame on the authorities (including Brussels), or serves as an excuse to conclude that envi­ronmental policy and law is not adequate. Therefore, it may be employed as a smoke screen to hide the reasons this policy is not effective. A centralizing tendency is always present despite the distribution of powers enshrined in the Spanish Constitution. The State attempts to maximize its power to set out so-called basic rules that in constitutional terms should be restricted to the essential minimum.75 However, this is not always the case, particularly when detailed European Union legislation is involved, for example, in the case of waste or liability for damages to the environment. The corresponding laws adopted by the Spanish Parliament tend to reproduce this level of detail without leaving room for the Autonomous Communities to develop their environmental policy. As was previously indicated, it also invokes other powers with ample horizontal reach, energy and economy planning as reflected for instance in Law 40/2010 on the geological storage of CO2. A further aspect exists that may help to explain centralizing tendencies, that is, the still large bureaucracy in central government. The tug of war between decentralizing/centralizing policies is also the result of pressure groups, either technical or legal, that are being affected by the existence of different decision-making levels instead of a single, easily approachable authority in charge of the main environmental powers. Town planning matters experienced this type of centralizing leaning with Law 6/1998, which led to an increase in speculation and uncontrolled use of the land with disastrous effects on the coasts, nature protected areas and the environment at large, precisely the kind of effects the Law supposedly aimed to curb.

74 Tribunal Supremo (Sala de lo Contencioso) Judgment of 21 March 2012, appeal 2200/2008. 75 Tribunal Constitucional de España Judgment 102/1995.

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In light of the White Paper, European Governance,76 a selection of matters regarding the relationship between governance and environmental policies is considered in the ensuing paragraphs: a) Availability of updated and online information concerning the drafting of policies. This information is usually presented in a nonelaborated manner. This means that the public requires specialised knowledge to follow the relevant procedures and take part in the opportunities to participate in those procedures. It should be essential to facilitate that information in a summary format clarifying the scope and the content of the main rules. More often than not, the public at large has to face an insurmountable pile of provisions the interpretation of which is nearly impossible. This represents a way to prima facie disseminate information whilst in effect obstructing the right of access. A historical factor should also be considered. Bearing in mind the constant amendment of applicable rules, the public should have a reference of already repealed rules because there are cases in which they represent the main reference to consider despite having been derogated. Otherwise, the public may think that the applicable provisions are only those in force when disputes emerge. b) Simplification of rules. The EU Commission’s White Book refers to the need to simplify existing rules and to regroup legal texts removing redundant or obsolete provisions. This is essential. However, the simplification of rules is problematic because public authorities mainly base their powers on the adoption of rules that are not subsequently applied. Monitoring of the application of existing provisions is not important; rather, it is much more significant to give the impression that the authorities defend a robust environmental policy as reflected in the corresponding official journals albeit it is largely ignored or not properly implemented. Unlike other countries (e.g., France, US), Spain lacks an environmental code consolidating all relevant rules. c) A matter closely related to the simplification of rules is the need to correctly standardise administrative procedures to make them more comprehensive for the public. d) Governance requires all participants in the development of environmental policies obtaining and using experts’ opinions to guarantee equal 76 European Commission, European Governance – A White Paper, COM (2001) 428 final, 25 July 2001.



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opportunities. It is for this reason that reports and well-founded opinions must be made available to participants. On many occasions, the public authorities submit proposals without any alternatives. This represents an important burden for third parties (i.e., the public at large), because they are not in a position to (a) examine the proposals and, particularly (b) suggest a different approach, thus hampering an open debate on controversial matters. e) Governance is based on the respect of the rule of law, although it may be applied in a flexible format. The public must be confident that the law will be properly applied. However, this cannot be said of environmental policy and law. A great number of judicial proceedings are instigated by the public authorities because they themselves adopt decisions overtly breaching the regulations in force. This has been the case of Itoiz dam (Autonomous Community of Navarre), duly quashed for breaching environmental regulations but subsequently validated by a Law of the regional Parliament.77 The construction of the motorway M-30 in Madrid and the corresponding judicial decision quashing the project after ten years of judicial battle has no relevant effects because the project was fully executed well before the judgment. In other cases, the lack of proper monitoring has encouraged successive breaches of the law. This has been apparent in the Mediterranean coast leading to increasing lack of confidence in the public institutions theoretically in charge of the protection of the environment and the territory. These cases also ratify the negligible interest of the authorities (i.e., central, autonomous and local) in the protection of the environment. f) Civil society participation. The participation of the civil society in the adoption of decisions concerning projects with important environmental repercussions has traditionally been limited. No adequate procedures exist for effective involvement in the design and implementation of policies. Administrative procedures are extremely long, leading to the adoption of preliminary decisions that sometimes are kept apart only to be revived at a later stage. The involvement of the public requires new procedures facilitating its participation. As was previously indicated, commissions created to foster participation from different sectors of society have not achieved tangible results. The same could be said in the case of other commissions whose main role is to analyse how environmental 77 M. J. Beaumont and J. L. Beaumont, “El embalse de Itoiz. Historia y situación actual”(2003) 1 Ingurugiroa eta zuzenbidea/Ambiente y derecho47-65, available at http:// www.eitelkartea.com/dokumentuak/3.kapitulua.pdf.

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legislation and practice is being carried out, so-called observatories. Although these commissions may serve to highlight deficiencies in law and policy, their conclusions are normally based on consensus, thus they may shade off any real problems concerning the application of the law or of environmental law principles. A further matter concerns the judicial front. Despite the reference in the Constitution to the participation of citizens in the administration of justice, Spanish administrative law does not contemplate the figure of the amicus curiae allowing the submission of opinions by third parties not involved in a case and illustrating the court on the likely complexities of the subject-matter. g) Governance may have had positive effects at the EU level. However, that cannot be affirmed in the case of environmental matters in Spain. A radical change of existing procedures and approaches is required to guarantee proper participation. 12. Concluding Remarks In the preceding sections, key features concerning environmental law and policy in Spain have been considered. As was previously indicated, the environment is not a priority for the political institutions. In fact, it is diluted within other various matters such as agriculture or climate change. No vivid discrepancies among institutions have arisen in recent years, save in the case of the adoption of a Hydrological Plan by central government in 2004 leading to strong opposition from various quarters. Other matters, such as coastal protection, have received ample attention in the media and also in the European Parliament. Nevertheless, continuous destruction has taken place in the last two decades. As argued in this chapter, lack of coordination and willingness by the public authorities has exacerbated the current degradation of Spanish coasts and the irrational urban development that has taken place in the last two decades. Spanish courts do not always provide effective remedies, particularly when considering the grant of interim measures to halt development projects. Likewise, public participation procedures lack flexibility to guarantee that representations are duly taken into account by the authorities. Bibliography B. Delaunay, “El debate público” (2008) 6 Ingurugiroa eta zuzenbidea/Ambiente y derecho 23-33, available at http://www.eitelkartea.com/dokumentuak/dealu.pdf. European Parliament, Report on the Impact of Extensive Urbanisation in Spain on Individual Rights of European Citizens, on the Environment and on the Application of EU Law (2009)



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(Auken Report), available at http://www.europarl.europa.eu/sides/getDoc.do?type=RE PORT&language=EN&reference=A6-0082/2009. R. García Macho (ed.), Derecho administrativo de la información y administración transparente (Madrid, Marcial Pons, 2010). A. García-Ureta, Convenio de Aarhus y convalidaciones legislativas: ¿Recurso directo contra leyes en vía contenciosa? (Diario La Ley, 2011). A. García-Ureta, “Aspectos sobre el acceso a la justicia en el Convenio de Aarhus y su incidencia sobre el Derecho comunitario” (2005) 3 Ingurugiroa eta zuzenbidea/ Ambiente y derecho 63-88, available at http://www.eitelkartea.com/dokumentuak/ 3.kapitulua4.pdf. A. García-Ureta, “Algunas cuestiones sobre la regulación del derecho de participación a la luz del Convenio de Aarhus de 1998” (2005) 7 Revista Aranzadi de Derecho Ambiental 43-70. A. García-Ureta, “The Habitats Directive and Jails: Why the Spanish Supreme Court Has Got it Wrong” (2011) 2 Environmental Liability 53-62. J. Jordano Fraga, “La Administración en el Estado ambiental de Derecho” (2007) 173 Revista de administración pública 101-141. L. Krämer, “El acceso a la justicia por motivos ambientales” (2004) 2 Ingurugiroa eta zuzenbidea/Ambiente y derecho 11-31, available at http://www.eitelkartea.com/dokumentuak/ 1.kapitulua12.pdf. I. Lasagabaster et al., Derecho Ambiental. Parte General (Bilbao, Lete, 2007). I. Lazcano, “El derecho de acceso a la información sobre el medio ambiente en la Directiva 2003/4/CE” in A. García-Ureta (ed.), Estudios de Derecho Ambiental Europeo (Bilbao, Lete, 2005), at 105-151. A. Moreno Molina and A.García-Ureta, Enforcement of EC Environmental Law. Spain (2009), available at http://www.avosetta.org. G. Valencia Martín, “Política ambiental del Tribunal Constitucional” in F. López Ramón (ed.), Observatorio de Políticas Ambientales (Madrid, Thomson, 2006), at 213-269. G. Valencia Martín, “Jurispudencia constitutional: Sobre las implicaciones de las sentencias del estatut y las decisiones cautelares en los casos del cabanyal y el parany” in F. López Ramón (ed.), Observatorio de Políticas Ambientales (Madrid, Thomson, 2011), at 201-227. M. J. Beaumont and J. L. Beaumont, “El embalse de Itoiz. Historia y situación actual” (2003) 1 Ingurugiroa eta zuzenbidea/Ambiente y derecho 47-65, available at http://www .eitelkartea.com/dokumentuak/3.kapitulua.pdf.

ENVIRONMENTAL GOVERNANCE IN ITALY Emanuela Orlando1 Introduction In Italy, the governance and the legal protection of the environment have, for long time, suffered from the lack of a specific reference in the constitutional charter. Adopted in 1947, the Italian Constitution reflected the still limited awareness concerning environmental problems, as well as the lack of a full understanding of the notion of the environment as the object of an autonomous consideration. Yet, Article 9 explicitly mentioned the protection of landscape (which at the time formed an object of specific legislation addressing natural beauties, namely Law No. 19472 of 29 June 1939) and the safeguard of the Nation’s historical and artistic heritage, whereas Article 32 provided a constitutional guarantee to the protection of human health. In this context, environmental concerns began to be addressed in a sectoral, fragmented way. Despite courts and legal scholars numerous attempts to overcome this fragmentation and to define a unitary concept of the environment,3 the latter was not yet perceived as capable of being the subject and the primary purpose of an ad hoc legal discipline. Besides sporadic norms aimed at the safeguard of certain natural species,4 the first bulk of environmental provisions were adopted in the health sector, in which the legislation also provided standards to prevent and control industrial pollution,5 as well as in the field of urban planning, which was 1 Isaac Newton-Dorothy Emmet Research Fellow, Lucy Cavendish College, University of Cambridge, Cambridge, UK. 2 Legge 1497/1939 Protezione delle bellezze naturali. 3 Among others, see A. Postiglione, “Ambiente: suo significato giuridico unitario” (1985) 1 Rivista Trimestrale Diritto Pubblico 38; S. Patti, La tutela civile dell’ambiente (Padua, Cedam, 1979); B. Caravita, Diritto dell’ambiente (Bologna, Il Mulino, 2001), at 19–21. Contra: M. S. Giannini, “Ambiente: saggio sui suoi diversi aspetti giuridici” 1 Rivista Trimestrale Diritto Pubblico 15–53, in which the author denies autonomous and unitary relevance to the environment. 4 See Regio decreto 1604/1931 on protection of ichtyofauna (Approvazione del testo unico delle leggi sulla pesca). 5 As an example, Legge 1860/1962 and Decreto del Presidente della Repubblica (D.P.R.) 185/1964 on the protection of population from ionizing radiation; Legge 615/1966 on

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meant to cover all aspects of regulation and management concerning the safeguard and transformation of the soil and to include the protection of the environment.6 For many years, the institutional apparatus for the administration of the environment at the central level has reflected the sector-based approach of environmental governance. Until the establishment in 1986 of the Italian Ministry of Environment,7 the various tasks concerning the protection and management of the environment were divided at the central level among eight administrations in the respective fields of public works, forestry and agriculture, merchant navy, transport, industry, health and cultural heritage.8 Against this background, the scenario regarding environmental governance during the last two decades has profoundly changed.9 The envi­ ronment is now fully recognised as an autonomous discipline. Following the constitutional reform of 2001, the revised text of Article 117 on the divisions of competences between the State and the Regions contains a specific mention of the “protection of the environment and the ecosystem.” A large and ever growing number of legislative, regulatory and administrative instruments exist, each addressing distinct aspects of environmental protection. The limited competences of the environmental Ministry – currently named Ministry of Environment, Land and Sea – have gradually expanded, while specific agencies for the protection of the environment have been established at the national and regional levels. Moreover, a number of new mechanisms of environmental governance involving recourse to economic mechanisms, the involvement of private actors and a call for greater public participation have emerged. Four main factors have triggered such an enormous development of environmental legislation despite the absence of a specific legal title in the Constitution: the progressive emergence of an environmental sensitivity in Italy and at the global level; the implementation of European and atmospheric pollution; Legge 319/1976 on water pollution, and more specifically Legge 833/1978, establishing the national sanitary service, which also allocates the prevention of pollution to the different territorial and institutional entities operating in the health sector. 6 Art. 80 of D.P.R. 616/1977. 7 Legge 349/1986 Istituzione del Ministero dell’ambiente e norme in materia di danno ambientale. 8 V. Onida, “La ripartizione delle competenze per l’ambiente nella pubblica amministrazione” (1986) 1 Rivista Giuridica dell’Ambiente 9, at 9–10. 9 For an overview, J. L. Bermejo Latre, “Le politiche ambientali in Italia nella transizione del ventesimo secolo” (2008) 5 Rivista Giuridica dell’Ambiente 755–781.



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international norms; the role of the judicature, in primis the Constitutional Court;10 finally, to a certain extent, the process of decentralization that, providing for a more decisive role of the Regions, enabled the latter to intervene concretely in the regulation and management of the environmental sector.11 1. The Constitutional Framework of Environmental Governance at the Institutional Level: Between Innovation and Continuity The institutional framework of environmental governance results from a complex combination and interaction of at least three types of legal sources: constitutional provisions on the organisation of the political and administrative structure of the State; specific norms on the distribution of administrative functions at different institutional levels, as provided in national legislation aimed at implementing the regional system; national and regional legislation concerned with the protection of the environment. The Constitution sets out the main features of the Italian system as a “regional State” and therefore represents the starting point to understand the role and reciprocal relationships between the varied institutional and non-institutional actors involved in the protection of the environment. Article 5 of the Constitution provides for the recognition of local autonomies and promotes administrative decentralisation. Article 114 recognises the local authorities, which are an expression of the local communities: the Regions, the Provinces and the Municipalities. Two categories of Regions exist in Italy: 15 Regions with an ordinary statute and 5 Regions with a special statute – namely Sicily, Sardinia, Val d’Aosta, Trentino-Alto Adige, Friuli Venezia Giulia – which are granted greater autonomies and competences due to particular historical conditions or the necessity to guarantee the linguistic and cultural rights of minorities in border areas. Despite a formal recognition of institutional pluralism, the Italian system of governance was for many years characterised by a strong centralization of competences and powers.12 Only toward the end of the 1990s did a more marked development of autonomy begin with the Regions 10 S. Nespor, “Ambiente 1973-1986” (1986) 1 Rivista Giuridica dell’Ambiente 2, at 6. 11 Ibidem at 6. 12 See, more generally, P. Barile et al., Istituzioni di diritto pubblico (10th ed.) (Padua, CEDAM, 2006), Chapter III, at 311-366.

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being conferred wider and more substantive administrative and regulatory powers alongside the Provinces and municipalities.13 This process of progressive enhancement of local authorities resulted in a substantial revision of Title V of the Constitution, relating to the “Organisation of the Republic”. Articles 114–133 lay down the principles governing the allocation of powers and responsibilities at different government levels and the relations among them. Although the new approach does not realise the transformation of the Italian Republic from a regional State into a fully-fledged federal State, it does introduce a marked institutional pluralism alongside certain elements typical of federal States.14 The reform reorganised, at least formally, the allocation of normative and administrative competences across institutional levels and introduced in Article 116 the possibility of a “differentiated regionalism”.15 Article 114 qualifies the Regions as consti­tuent parts of the Italian Republic and “as autonomous levels of government”. Pursuant to Article 117, the State now has exclusive legislative power only in a number of specifically mentioned sectors. All other areas fall under the general (and, presumably, exclusive) competence of the Regions. Moreover, in the specific sectors mentioned in Article 117(3), the Regions and the State share competence, whereby the State is reserved with the determination of the fundamental principles and the Regions with the adoption of more specific legislation within the framework of general guidelines established in national law. The competence to adopt regulations (regolamenti) is distributed between the State, in the areas falling within the remit of its exclusive competence, and the Regions in all other areas. Although the regulatory powers are reserved to the State and the Regions, administrative powers are, in principle, allocated to the institutional level closest to the citizens – that is, the municipalities; however, 13 In particular, see Legge 59/1997 on administrative federalism, and Art. 68-92 of Decreto legislativo (d. lgs.) 112/1998. 14 L. Cassetti, “Il regionalismo italiano e la Multilevel Governance dopo le recenti riforme costituzionali” (2004) 1 Le Istituzioni del Federalismo 112, at 117-8. See also G. Grottanelli De’ Santi, “The Italian Variant of Federalism” in J. Fedtke and B. S. Markesinis, Patterns of Regionalism and Federalism – Lessons from the UK (Oxford, Hart Publishing, 2006), at 3-16. 15 Art. 116 envisages the possibility for all the Regions to request special conditions of autonomy in the areas of concurrent legislative powers and with regard to three subjects reserved to the exclusive competence of the State, namely organisation of the basic level of justice, guidelines on education and the protection of the environment.



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when this is necessary to ensure their uniform implementation, national or regional legislation may allocate administrative powers to the upper level (Provinces, Regions or the State) in accordance with the principles of subsidiarity, adequacy and differentiation.16 With specific regard to the protection of the environment, Article 117(2) s reserves the “protection of the environment, the ecosystem and cultural heritage” to the exclusive legislative competence of the State. In these areas, the State also has exclusive competence to adopt Regulations, although it may delegate this power to the Regions. The Regions, conver­ sely, maintain concurrent legislative and regulatory powers in a number of areas directly or indirectly related to or overlapping with the environment, such as the “enhancement of cultural and environmental properties”, territorial governance, health protection, large transport and navigation networks, national production and transport and distribution of energy. Furthermore, pursuant to Article 117(4), they are also given a general (residual) competence in other sectors whose disciplines may have environmental implications. Although this provision does not indicate these areas, they would certainly include agriculture, forestry, tourism, hunting and fisheries.17 Finally, Article 116(3) includes environmental protection among the areas in which the Regions may request and obtain further forms and conditions of autonomy. The introduction of an express mention of the protection of the environment in the constitutional text has certainly contributed to providing the environment formal recognition as an autonomous subject matter and is clearly one of the most innovative aspects of the constitutional reform. Setting aside, for the moment, the criticism concerning the decision to mention environmental protection in Article 117 rather than in the first part of the Constitution dedicated to the fundamental principles, it is nonetheless appropriate to highlight some interpretative issues left open by the current division of powers with respect to the protection of the environment. To start with, the new wording of Article 117 leaves unclear the effective scope and content of the State’s exclusive powers in the field of environmental protection vis-à-vis the concurrent competence of the Regions in areas bearing close contacts with the environment. Further interpretative 16 M. Cecchetti, “Riforma del Titolo V della Costituzione e sistema delle fonti: problemi e prospettive nella materia ‘tutela dell’ambiente e dell’ecosistema’ ” (2002), available at http://www.federalismi.it/ ApplMostraDoc.cfm?Artid=596. 17 In this sense, ibidem.

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doubts arise with regard to Article 118 concerning the allocation of administrative functions. In this respect, the application of the subsidiarity principle clearly implies a top-down allocation of the administrative functions to the level closer to the citizens (i.e., municipalities) or, when this is appropriate and justified by the nature and dimension of the issue at stake, to the corresponding governmental level: Provinces, Regions or the State. However, the norm at hand does not specify who is entitled to eventually distribute concrete tasks and functions among the institutional levels, in accordance with the aforementioned principles of “subsidiarity, adequacy, and differentiation”;18 we can presume that distribution of administrative functions in a field subject to the exclusive competence of the State should be determined by the national level. More generally, the radical shift in favour of an exclusive competence of the State for the protection of the environment has raised prima facie problems of coordination with the structure progressively consolidated under the previous constitutional text. Prior to the reform, the lack of an explicit legal basis concerning the environment in the original text of the Constitution had not prevented the Regions from legislating in the field; rather, the absence of specific indication regarding the division of powers concerning the protection of the environment has de facto allowed the development of a model of environmental governance characterised by the coexistence of regulatory powers of the State and the Regions in the field of environmental protection; this is witnessed by the existence of a considerable number of regional laws concerning the environment and the significant involvement of the Regions in the administration of the environment. Prior to the 2001 constitutional reform, the legal basis for the legislative intervention of the Regions in the environmental field was found either in national laws aimed at the implementation of the regional State, or in specific provisions contained in environmental legislation envisaging a regional competence to integrate and implement the national framework. For example, national Law No. 349 of 1991 concerning protected areas envisages the possibility of a normative intervention of the Regions;19 similarly, within the framework of national legislation, the Regions have also extensively legislated in the field of environmental impact assessment.20 18 F. Fracchia, “Governo del Territorio e Ambiente” in B. Pozzo and M. Renna (eds.), L’Ambiente nel Nuovo Titolo V della Costituzione (Milan, Giuffré, 2004), at 45-91, see 83. 19 Legge 394/1991 Legge quadro sulle aree protette. 20 The first main legislative acts implementing the Directive on Environmental Impact Assessment in Italy were Legge 349/1986 providing State competence in the field, and



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Furthermore, national legislation adopted during the 1990s and aimed at bolstering administrative decentralisation also contained provisions enabling the ever greater role of the Regions as well as the other local authorities – that is, Provinces and Municipalities – in the concrete administration of the environment. An important reference in this respect is represented by Legislative Decree No. 112 of 1998 on the conferral of administrative functions and tasks to Regions and local authorities.21 Title III of the Decree, relating to the sectors of “Environment, Territory and Infrastructures”, assigned a considerable number of administrative functions to the Regions in several important areas22 and entrusted them with the important role of coordination and supervision with respect to the Provinces and Municipalities. The 112/1998 Decree has also enhanced the role of Provinces and Municipalities in the management of environmental issues having a local dimension.23 Being an intermediary body between the Regions and the Municipalities, Provinces are provided with a number of functions and responsibilities, primarily of technical and operational nature, in accordance with the territorial dimension of the interests at stake; they are also normally conferred functions of authorization, monitoring and control. municipalities, considered the territorial entities most representative of the local and community interests, are entrusted with operative functions related to the development and use of the territory for the benefit of the local community and the provision of public environmental services, such as waste disposal, sewage, collection of data concerning noise and atmospheric pollution and soil decontamination. When comparing the aforementioned distribution of competences and tasks between the various institutional actors prior to the constitutional reform with a more careful analysis of the current governance structure,

D.P.R. 210/1996, laying down a general coordinating framework for the determination of the substantive criteria for the environmental impact assessment of projects falling within the competence of the Regions; the latter in particular has prompted the adoption of about 130 regional acts of implementation. See Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011on the assessment of the effects of certain public and private projects on the environment (2012) OJ L26/1. 21 D. lgs. 112/1998 supra. 22 Specifically, in the following sectors: “territorial governance and urban planning” (Art. 52-58), “nature and environment protection” (Art. 68-78), “environmental protection from pollution” (Art. 79-84), “waste management” (Art. 85), “water resources and soil protection” (Art. 86-92), “public works” (Art. 93-96), “transport” (Art. 102-106), “civil protection” (Art. 107-109), and in the related area of “health protection” (Art. 112-127). 23 P. Dell’Anno, Manuale di diritto ambientale (4th ed.) (Padua, CEDAM, 2003), at 76.

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the contradictions, both under the point of view of regulatory powers and with respect to concrete administrative tasks, are more apparent than real.24 Although the reservation to the State of exclusive legislative powers in the field of environmental protection apparently points to a more centralised approach, the Regions and local authorities can still play an important role. Regarding the legislative powers, the reserve of exclusive competence to the State has not in itself prevented the normative intervention of the Regions. The latter can still enact legislation in the environmental field, either on the basis of their concurrent competence, or to implement and integrate the legal framework laid down in the law.25 Thus, Legislative Decree No. 152 of 200626 authorised the Regions to regulate regionally in important fields, such as waste management and environmental impact assessment. It has been noticed in this respect that the Regions had not always taken advantage of their regulatory powers and that very often, regional legislation was limited to the mere, sometimes literal, transposition of national law, adjusting it to the local needs, but without leaving much space for originality or innovation;27 in other cases, regional laws placed more burdensome, and often not necessary, bureaucratic and administrative requirements.28 Conversely, the allocation of the respective tasks and responsibilities in the concrete administration of the environment follows a paradigm largely based on the territorial relevance of the interests at stake.29 Accordingly, the State retains primary responsibilities in the regulation and management of environmental issues of “national relevance”, and in the definition of the fundamental principles and guidelines that shall inform public action with regard to national territory and the management of natural resources. It derives from the aforementioned that in practice the question will not be whether the Regions may intervene, but rather the real extent of their legislative powers. It is therefore appropriate to look at how the 24 In this sense, F. Fracchia, “Governo del territorio e ambiente” supra, at 45-7. 25 This conclusion finds confirmation in recent decisions of the Constitutional Court. See, in particular, Corte Costituzionale Judgments 186/2010 concerning EIA, 234/2010 and 44/2011 on wastewater. 26 D. lgs. 152/2006 Norme in materia ambientale. 27 A. Ferrara, “Le politiche regionali dell’ambiente tra concorrenza e collaborazione” in A. Ferrara (ed.), La tutela dell’Ambiente nella Legislazione Regionale (Milan, Giuffré, 1999), at 12. 28 P. Dell’Anno, Manuale di diritto ambientale supra, at 95. 29 See especially Art. 68-92 of D. lgs. 112/1998 supra.



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constitutional provisions have been interpreted and in certain cases reshaped by the Constitutional Court. The analysis of the court’s case-law, as well as practical examples of conflict between the State and the Regions arising in some controversial areas of environmental management illustrated in the second part of the present chapter, will contribute a better understanding of the implications of the Constitutional provisions in the overall governance framework in the environmental field. 2. The ‘Policy Making’ Role of the Constitutional Court The Constitutional Court (hereafter the Court) has played a pivotal role in affirming the constitutional relevance of the environment as a primary value for the Italian legal order and in shaping the dialectic relationship between the State and the local authorities in line with the special need of environmental protection. Absent any reference to the environment in the original constitutional text, the Court relied on a progressive interpretation of Articles 9 and 32 of the Constitution – respectively concerning landscape protection and health protection – to formulate a comprehensive notion of “environment” both as a primary interest deserving legal protection and as a constitutional value.30 It then elaborated a theoretical framework of multilevel governance based on the coexistence of national and regional regulatory powers with a view to find the proper balance between the primary national interest in the protection of the environment, and the corresponding need to adjust the environmental protection strategy to the specificities of the various regional and local contexts. The Court relied particularly on a teleological interpretation of former Article 117 indicating the sectors falling within the concurrent competence of the Regions to postulate the existence of an implied concurring competence of the Regions to also legislate in the environmental field. According to the Court, such concurrent regulatory competence would derive functionally from the existing concurrent power in the related areas of urban planning, forestry and agriculture, fisheries and hunting. The analysis of the Court’s case law shows the emergence of an approach based on the allocation of competences according to the territorial dimension of the interests at stake and the respective functions of each institutional actor. 30 G. Cordini, “Principi costituzionali in tema di ambiente e giurisprudenza della Corte Costituzionale italiana” (2009) 5 Rivista Giuridica dell’Ambiente 611.

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In this framework, legislation adopted at the State level would be justified and prevail over the legislative competence of the Regions every time the environmental issues at stake had national dimension and the protection of national interests required the adoption of uniform standards and a unitary approach at the central level.31 The 2001 constitutional reform did not immediately lead to substantial changes in the paradigm gradually elaborated by the Constitutional Court. In the first line of cases concerning conflicts between the State and the Regions in the environmental sector, the Court initially maintained the previous approach.32 Vested with the interpretation of Article 117s in its relation with Articles 117(3) and 117(4), the Court somehow mitigated the scope of the State’s exclusive competence under Article 177s and affirmed that environmental protection is not a “subject matter” in the technical sense, but is rather a “horizontal”, “cross-subject” sector (materia trasversale); consequently, the competence of the State in the environmental field cannot be considered rigorously and strictly delimited, but it necessarily comes across with areas of concurrent or residual regional competences.33 Starting from this assumption, the Court then concludes by reaffirming the existence of a concurrent normative power of the Regions in the environmental sector when this is necessary to pursue objectives and protect interests falling within their sphere of competence. According to the Court, the State would retain a primary and exclusive competence in the determination of uniform standards of environmental protection applicable across the entire national territory; however, this would not prevent the legislative intervention of the regions to the extent necessary for the pursuit and protection of the other functionally related interests, including establishing stricter standards of environmental protection. Subsequent case law has consolidated this interpretative approach inspired by the logic of constitutional pluralism, as well as reasserted and specified the mandatory character of national legislation. Thus, in a case concerning the hunting legislation of Sardinia, despite the concurrent regional competence in the hunting sector, the Court declared the 31 Corte Costituzionale Judgments 273/1998 and 382/1999. 32 For a comprehensive analysis of the Court’s case law in the aftermath of the Constitutional revision, see A. Colavecchio, “La tutela dell’ambiente fra Stato e Regioni: l’ordine delle competenze nel prisma della giurisprudenza costituzionale” in F. Gabriele and A. M. Nico (eds.), La tutela multilivello dell’ambiente (Bari, Caucci Editore, 2005), at 1-99. 33 Corte Costituzionale Judgment 407/2002.



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constitutional illegitimacy of regional legislation laying down more permissive provisions for the hunting of certain bird species because it would undermine the primary interest in the protection of the environment and the safeguard of the ecological balance of the ecosystem.34 Conversely, in other cases, the Court clarified that the Regions are not allowed to set stricter standards of environment and health protection when the standards set by national law are based on a careful balancing between two competing interests.35 In these cases, the national relevance of the interests at stake and the necessity of uniform regulation point to national legislation as the optimal level to fix the proper balance between the protection of the environment and the competing regulatory goal. More recent case law, however, marks a decisive departure from the previous jurisprudential trend characterised by a gradual “dematerialisation” of the environment and by “regulatory and institutional pluralism”.36 In a series of decisions adopted since 2007, the Court, on the one hand, recognises the environment as a material asset and as the object of a specific legal discipline; it endorses a comprehensive and global approach to environmental protection that covers the totality of environmental components, their reciprocal interaction, as well as their quality and the safeguard of ecological equilibrium. On the other hand, the Court revises its initial interpretation of Article 117s based on the rationale of the norm, by stressing that the Constitution has entrusted the State with exclusive powers to ensure the protection of the environment in its entirety. In this new perspective, the Court refers to the inherent “cross-cutting” nature of the environment not to legitimize a wider margin of intervention of the Regions, but to assert the pre-eminence – and indeed the exclusivity – of the legislative powers of the State in relation to the protection and safeguard of the environment. Therefore, national regulation regarding the protection of the environment acts as a “limit” for regional intervention and prevails over the regulations made by the Regions even on subjects and fields of their competence. The Regions, however, may 34 Corte Costituzionale Judgment 536/2002. 35 Corte Costituzionale Judgments 307 and 331/2003. 36 For an analysis of the more recent trend of the Court, see P. Maddalena, “L’interpretazione dell’Articolo 117 e dell’Articolo 118 della Costituzione secondo la recente giurisprudenza costituzionale in tema di tutela dell’ambiente” (2010), available at http:// www.federalismi.it/ApplOpenFilePDF.cfm?artid=16122&dpath=document &dfile=04052010133259.pdf&content=L’interpretazione+dell’art.+117+e+dell’art.+118+della +Costituzione+secondo+la+recente+giurisprudenza+costituzionale+in+tema+di+tutela +e+di+fruizione+dell’ambiente+-+stato+-+dottrina+-+.

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introduce stricter standards of environmental protection, provided that their intervention finds an express legal basis in Articles 117(3) or 117(4) of the Constitution and is without prejudice of the exclusive nature of State’s legislative competences. In partial continuity with the previous approach, the Court admits the possibility for the Regions to legislate in the environmental field, but marks a clear-cut distinction between the protection of the environment, which is the exclusive competence of the State, and the regulation of concrete forms of enjoyment and fruition of the environment and natural resources on which the Regions have a concurrent competence. Through this new reading of Article 117, the Court definitively surmounted the previous idea of environmental regulation based on the intertwining of different institutional levels. The respective roles of State and Regions must now be assessed through a teleological interpretation of the legislation at hand, which focuses on the underlying rationale of national law: when the ultimate objective of the legislation is the protection of the environment, then national legislation would prevail and the State would retain exclusive competence; however, this does not exclude the possibility for regional intervention, within the limit represented by national law, to the extent necessary to the pursuit of other, functionally related, interests. This new reading of the articulation of legislative competences bears practical implications in the interpretation of the criteria defined in Article 118 with respect to the distribution and concrete exercise of administrative tasks. Regarding the former aspect, the Court affirmed that the existence of an exclusive legislative competence of the State in the environmental field would also imply the State’s competence to decide over the allocation of administrative functions at the relevant institutional level.37 Therefore, in a case concerning the protection of the environment, it is for the State to decide whether certain administrative functions shall be best exercised by the Provinces, Regions or even at the central level – rather than by the Municipalities – provided that such choice is justified on the basis of objective criteria of subsidiarity, adequacy and differentiation and that it respects the proportionality principle. Typically, it would be more appropriate to derogate from the general principle of attribution of administrative tasks to the municipalities in which the interest at stake

37 Corte Costituzionale Judgment 225/2009.



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requires a unitary administration and coordination and can therefore be better achieved at the national level.38 3. Institutional Cooperation in the Environmental Field Whether the environment is conceived as a cross-subject value or as a unitary and specific asset, the unavoidable coexistence of State competences and regional interests renders it necessary to envisage appropriate mechanisms of coordination and cooperation among the levels. The Consti­tutional text does not provide mechanisms of coordination among the various Regions and between the Regions and the State. Italian administrative practice has, thus, developed specific mechanisms to promote dialogue between the different administrations (horizontal) and the various levels of government (vertical). Coordination at the horizontal level is normally achieved through the “Conferenza dei Servizi”. This is a procedural model, typical of administrative proceedings, which requires the competent authority to ask for the opinion of other entities or administrations prior to the adoption of a decision involving a plurality of interests. A typical application of this procedural model in the environmental field is found in the strategic impact assessment procedure, whereby the competent authority may convene the competent and interested administrations through the conferenza dei servizi to consult their views on the feasibility and impact of a specific plan or programme and to collect additional information.39 Moreover, in the EIA and SEA procedure concerning projects, plans or programmes falling under the competence of the State, the final decision over the project or the reasoned opinion over the programme or plan are jointly reached by the Ministry of Environment and the Ministry of Cultural Property.40 Vertical coordination is achieved through the “Conferenza StatoRegioni”, a permanent forum established to facilitate communication, dialogue and information exchanges between the State, the Regions and the Autonomous Provinces. During the administrative decentralisation process, the Conference has been complemented and extended to also include Provinces and Municipalities. The “Conferenza Unificata StatoRegioni”, set up by Legislative Decree No. 281 of 1997,41 allows the active 38 Corte Costituzionale Judgment 165/2011. 39 Art. 9 of d. lgs. 152/2006. 40 Ibidem Art. 7(5). 41 D. lgs. 281/1997.

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participation of the various territorial entities in the definition of political strategies in areas of common interest. Although originally vested with only consultative powers, the State-Regions Conference and the Unified Conference are called to play an active role in the processes of environmental governance and its intervention is compulsory in a large number of cases.42 From a theoretical point of view, the conceptual matrix of these mechanisms is the principle of loyal cooperation. Elaborated by the Constitutional Court43 on the basis of Article 5 and 114 of the Constitution, the principle of loyal cooperation assumed a special relevance in promoting an integrated system of environmental governance at the institutional level which has been defined as “cooperative regionalism”.44 The most interesting application of this principle relates to the distribution of administrative functions in cases in which national law crosses with subjects falling into the concurrent competence of the Regions. In such cases, the Court has consistently subordinated the legitimacy of national legislation and the attribution of administrative functions at the central level on the condition that it ensures the participation of all the governmental levels concerned either through appropriate instruments of loyal cooperation or through the provision of adequate mechanisms of collaboration in the concrete exercise of administrative functions allocated at the central level.45

The Court case law has identified a range of instruments showing how such cooperation could be concretely realized – from mutual exchange of information to a formal agreement (intesa) – depending on the nature and scope of the interests at stake.46 42 Under d. lgs. 152/2006 (supra), the Conference is involved in the formulation of policies and the adoption of decisions, especially concerning the water sector, such as the release of opinions and proposals with respect to the activities of approval and coordination related to water basins (Art. 59); in the identification of sensitive areas for the implementation of specific measures of prevention or remediation from water pollution (Art. 92); in the adoption of technical rules for the implementation of national legislation in the field of water pollution (Art. 75); its role is also particularly relevant in the procedure of environmental impact assessment (Art. 34) or in the approval of strategic documents, such as the national strategy for sustainable development. 43 With respect to the environment, see Corte Costituzionale Judgments 359/1985 and 151 and 153/1986 in the field of the protection of landscape. More specifically, on the constitutional foundation of the principle of loyal cooperation, see Corte Costituzionale Judgments 19/1997 and 242/ 1997. 44 B. Caravita, Diritto dell’ambiente supra, at 142. 45 Corte Costituzionale Judgment 6/2004; and ex plurimis, 121/2010, 24/2007, 339/2005. 46 B. Caravita, Diritto dell’ambiente supra.



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In principle, the various instruments of cooperation and the various forums that have been established (Conferenza dei Servizi, Conferenza Stato-Regioni and Conferenza Unificata) can provide significant opportunities to ensure that the interests of the State, the Regions and the different administrations involved are considered and balanced against each other. Unfortunately, however, experience in recent years shows that, in the environmental field, notwithstanding the principle of loyal cooperation and the aforementioned mechanisms of coordination, conflicts continue to arise, particularly between the Regions and the central level. Cases drawn from the field of renewable energy and nature protection47 show that vertical conflicts among institutional levels and horizontal conflicts between varying interests involved are likely to occur in the environmental field, in which different needs and competing objectives are at stake. This causes one to wonder whether and to what extent the principle of integration could play a role in promoting better coordination between different policies and regulatory levels with a view to achieving effective protection of the environment. 4. Toward the Emergence of Horizontal Subsidiarity in the Environmental Field? The Role of Citizens and NGOs in the Governance of the Environment Article 118(4) of the Constitution calls on the State and the local authorities to encourage the autonomous initiative of citizens, individuals and associations in activities directed toward the pursuit of the general interest. Applied in the environmental field, the provision may be read as referring to the emerging phenomenon of greater involvement of citizens and public interest groups in environmental protection processes. So far, however, the Italian legal system does not offer a comprehensive and coherent legal framework capable of securing an effective public involvement in the governance of the environment. The public right to participation in environmental decision making finds implementation only in a few provisions concerning specific sectors of activities, such as during the environmental impact assessment procedure or in the procedure concerning integrated permit, as required by the EU Directive

47 See section 2 of this chapter.

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2003/35/EC.48 Outside these specific sectors, a general right of interested parties to intervene in administrative proceedings under Law 241/1990 and a corresponding duty of the administration to take the observations formulated by the private party into account exists.49 The law admits such a possibility also in the case of a diffuse interest, thereby, at least in principle, admitting the possibility for environmental association to intervene in the process and to formulate their observations in case there is a risk of prejudice represented as interest in the protection of the environment. Apart from this, however, no comprehensive and unitary legal text exists to provide the main principles and general rules to ensure an effective and sound participation of the public in the formulation of policies and legislation concerning the environment. Also, with respect to the enforcing mechanisms of environmental legislation, the role that citizens and environmental associations are allowed to play is rather limited. The implementation of Directive 2004/35/EC on environmental liability has led to a centralised approach to liability for environmental damage.50 In Italy, only the Ministry of Environment is competent to act against the polluter and to order restoration of the impaired environmental resources or the adoption of the necessary preventive measures. Under certain aspects, the norms implementing the Directive into Italian legislation are a step backward when compared with former Article 18 of Law 349/1986, particularly with respect to the enforcement powers of NGOs and local authorities to act before the Court and request compensation for the damage. 5. Defining Routes and Experiences One of the most interesting fields of study to explore the relationship between institutional and non-institutional actors in the implementation of environmental policies is offered by the application of renewable 48 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation with respect to the drawing up of certain plans and programmes relating to the environment (2003) OJ L156/17. 49 Legge 241/1990 Nuove norme in materia di procedimento amministrativo e di diritto di accesso ai documenti amministrati. 50 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (2004) OJ L143/56; this directive has been transposed into Italian law by D. lgs. 152/2006 supra.



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energy legislation and its competing relationship with the protection of the environment and the landscape. During the last few years, growing concerns for global climate have driven the attention at the European level and worldwide to the opportunities offered by the development and use of renewable energy sources. In Italy, a consistent line of legislation encouraging the development of renewable energy plants is gradually emerging, mainly under the impulse of EU directives. In principle, the regulation of renewable energy sources falls under the areas of concurrent competence, in accordance with Article 117(3) of the Constitution which assigns the national production, distribution and transport of energy to the shared competence of the State and the Regions. Yet, because of underlying environmental concerns, the borderline between the energy sector and environmental protection is blurred, thereby rendering the regulation of renewable energy plants prone to institutional conflicts between the Regions and the State. Growing concerns over the possible impacts of massive construction of renewable plants on natural resources and the landscape highlight the potential contradictions emerging internally in environmental policies; the climate change imperative to drastically reduce GHGs emissions, also by strongly promoting the development of renewable sources of energy, appears to clash with the countervailing interest to maintain environmental integrity and to preserve the landscape. A number of recent cases involving the State – in the person of the Council of Ministries – and the Regions before the administrative jurisdictions and the Constitutional Court show with clarity the relevance of the issue at hand and provide an interesting standpoint from which to examine the tools available in the Italian legal system to overcome potential conflicts emerging at the vertical and horizontal levels. The cases at hand concern the adoption by a number of Regions of legislation regulating the construction and development of renewable energy production plants. For the purpose of the present analysis, the most relevant allegations of constitutional illegitimacy concerned, in particular, the provisions of regional law preventing the installation of renewable energy plants in areas considered not appropriate because of their higher ecological and landscape value. In the case involving Law 15/2008 of the Molise Region relating to the installation of wind mills and photovoltaic plants on the regional territory, the Court declared the illegitimacy of regional legislation concerning the identification of areas not suitable for the implementation of the renew-

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able plants.51 According to the Court, legislation aimed at regulating the installation of wind mills and photovoltaic plants would fall under Article 117(3) of the Constitution, providing for the concurrent competence of State and Regions in the energy sector because it primarily concerns the management of energy sources with a view to secure efficient energy supply across the national territory. In areas of shared competence, regional legislation must respect the fundamental principles established by national law and cannot be adopted autonomously by the Molise Region. The Court therefore declared that the regional law is in contrast with Article 117(3) of the Constitution. In this case, the Court ultimately affirmed the prevalence of the national regulatory level in adjusting the competing interests of environmental protection and energy supply. However, it sought to preserve an appropriate role for the Regions when the balancing of different interests at stake touches on areas of concurrent competences and involves political choices that impact the governance of the regional territory. Recognizing the environment and landscape impact of renewable energy plants, the Court eventually affirmed that in a sector of shared competence, the balance between the distinct interests at stake, although codified in national legislation, shall nevertheless be achieved in accordance with the principle of loyal cooperation, typically through the recourse to instruments of coordination and cooperation between the Regions and the State. In a similar case, the Constitutional Court declared the illegitimacy of Article 2 of Law 31/2008 of the Puglia Region which denied the possi­ bility to build renewable energy plants in specific areas of the territory. The provision prohibited the implementation of photovoltaic plants in agricultural areas considered to be of special value, in special conservation zones and in Natura 2000 sites as well as in protected areas and in wetlands recognised at the international level. Recalling and further specifying the reasoning elaborated in the previous decision, the Court reaffirmed the prevalence of national legislation in determining the appropriate level of environmental protection when the interests in the safeguard of natural resources are to be balanced with the interests in promoting the development of renewable energy production. In such cases, it is for national legislation to determine the fundamental principles which constitute a limit to the competence of the Regions; therefore, any limits or prescriptions set in the regional law, however reasonable in terms 51 Corte Costituzionale Judgment 282/2009.



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of environmental protection, may not derogate from the provisions established by national law, not even to implement norms aimed at higher environmental protection. The two cases offer concrete examples that highlight the challenges and opportunities that the achievement of an effective level of environmental protection encounters in a multi-layered governance system. In many respects, national law is most suitable to pursue the primary interest in the protection of the environment, as a unitary asset of national relevance and to the regulation of environmental issues bearing a national dimension. Yet, the assumption that the upper regulatory level – that is, national or supranational – may be better placed to ensure effective environmental protection at the national or European level must be revaluated in light of the importance of coordinated and participated procedures that encourage the exchange of views among the institutional levels. Especially in situations in which the protection of the environment is in competition with other public goals, often of an economic nature, the involvement of the interested regional and local authorities in the decision-making process may allow a better consideration of all the issues at stake, thereby contributing to providing the right priority to environmental protection. In this light, the importance of enlarging the range of actors involved not only vertically, through the participation of lower governmental levels, but also horizontally, by ensuring effective forms of public participation in environmental decision making, cannot be overstated. The two cases also prompt considerations concerning the impact of EU norms on the protection of the environment. In its reasoning to assess the legitimacy of regional legislation, the Court emphasised that the promotion of renewable forms of energy is a primary objective of European legislation and that the national law at hand aimed at implementing a EU renewable energy directive, namely Directive 2001/77/EC.52 This circumstance highlights that the implementation of EU law does not always result in a higher standard of environmental protection. More frequently, legislation adopted under the umbrella of climate change reveals potential conflicts with a more integral approach to the protection of the environment. 52 Directive 2001/77/EC of the European Parliament and of the Council of 17 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (2001) OJ L283/33 (repealed by Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources (2009) OJ L140/16).

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As has emerged from the present analysis, the Italian system of governance and protection of the environment is rather complex. Although constitutional provisions and formal legislation provide the overarching framework, the real actors and the main sources that determine the articulation of powers and concretely shape the system of environmental governance are the courts and real practice. Although recurring tensions still exist between the centre and the periphery, the vertical distribution of powers and responsibilities among the institutional levels appears overall characterised by a marked prominence of the State level both in policy formulation and in enforcement mechanisms. However, such centralisation of powers and responsibilities has not necessarily led to more coherent and effective environmental policies. Conversely, the process of administrative decentralisation has not always been paralleled by a more proactive and positive role of the Regions and local authorities in the management of the environment. Also, an effective system of institutional accountability in the environmental field cannot be discerned. From the point of view of public involvement in environmental governance, the analysis also reveals several shortcomings in the system. There is a lack of a coherent and comprehensive legal framework capable of channelling participatory stances toward sound environmental policy making. At the same time, the detailed provisions concerning access to information risk remaining formal letters if they are not backed up by a real attitude of openness and transparency on behalf of the public authorities. Against this background, the transposition and implementation of European Union legislation has made a significant contribution to the development of Italian legislation in the environmental field. The most visible consequence of the influence of EU law in the Italian legal order is the rapid increase of environmental legislation during recent decades as result of the transposition of EU directives. Besides quantitative indications on the legislative output, the implementation of EU environmental law had a positive impact in the emergence of a new approach to the protection of the environment, through a global consideration of the environmental medium and a major emphasis on prevention and pollution control. On the operational level, the new approach has resulted in the development and application of new instruments and tools specifically



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tailored to the needs of the environmental medium. In particular, the environmental sector has often represented a pioneering field for the formulation of new tools, such as the adoption of limits for the emissions and concentration of substances into the environment and quality and technical standards (especially through the mandatory use of the best available technology). With specific respect to environmental governance, the constitutional reform of 2001 has significantly contributed to enhancing the positive impact of the EU integration process on the distribution of competences between the various institutional levels.53 The constitutional changes have also strengthened regional autonomy with respect to the implementation of EU law by formally recognizing the participation of the Regions in the implementation of EU law and in EU policy making as well as by making subsidiarity a fundamental principle in the relations between different levels of government. Pursuant to Article 117(5) of the Constitution, the Regions are responsible for the implementation of EU law and they “take part in the preparatory decision-making process of EU legislative acts in the areas that fall within their responsibilities.” Regional participation in European policy making is also provided by national legislation, specifically Laws 131/200354 and 11/2005.55 Pursuant to Article 5 of Law 131/2003, in the areas falling within the remit of their competence, the Regions directly participate in the formation of EU measures by taking part in Government delegation and in the working groups and committee of the Council and of the European Commission.56 Furthermore, pursuant to Article 5 of Law 11/2005, the national Government shall send to the Regions and Autonomous Provinces the legislative proposal and other acts received from the European Commission concerning areas of regional competence; the Regions may submit their opinion and can request that the Government formulate a reservation within the EU Council of Ministers. 53 On the impact of the European integration process on the role of the Regions and on the relationship between them and the national Government, see P. Bilancia et al., “The European fitness of Italian Regions” (2010) 2 Perspectives on Federalism 2. 54 Legge 131/2003 Disposizioni per l’adeguamento dell’ordinamento della Repubblica alla legge costituzionale 18 ottobre 2001, No. 3. 55 Legge 11/2005 Norme generali sulla partecipazione dell’Italia al processo normativo dell’Unione europea e sulle procedure di esecuzione degli obblighi comunitari. 56 Art. 5 of legge 131/2003 contains a further mechanism allowing the Regions to make their voice heard at the EU level; it consists of the possibility for the national Government, upon request of the Region or Autonomous Provinces, to appeal to the European Court of Justice against the implementation of EU law. The Government is obliged to do so if the Conferenza-Stato Regioni requests this by absolute majority.

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Overall, the process of EU integration had a positive effect on the relationship between the State and the Regions by promoting, especially in the revised constitutional context after the 2001 reform, a greater role of the regional and local autonomies in the policy-making process, in line with the requirements of the subsidiarity principle. However, room for improvement still exists, particularly in terms of facilitating cooperation and better coordination among the different institutional actors.57 On the one hand, the activities – or the inaction – of the Regions to undertake the required legislative and administrative measures in areas falling within their competence have sometimes resulted in infringement proceedings against Italy before the European Court of Justice. On the other hand, in the environmental field there is an overall feeling that the implementation of EU directives and the need to comply with supranational obligations has led to the attribution of a greater role of the State in the governance of the environment. The State has often tended to affirm the prominence of national legislation over regional implementation of Community directives. Although this is appropriate and justified when issues of national relevance are at stake, the transposition and implementation of EU directives has frequently given rise to conflicts between State and Regions before the Constitutional Court over their respective roles and attributions. The Italian Constitutional Court has on this point consistently affirmed that derogation to the framework of division of competences in favour of the central level shall be based and justified on the objective need deriving from the EU norms at issue.58 Thus, in a case concerning the transposition into the Italian legal order of Directive 2001/42/EC concerning the strategic impact assessment,59 the Court has admitted the constitutional legitimacy of regional legislation of the Friuli Region affirming that the achievement of the Directive’s objective of environmental protection did not necessarily require uniform transposition by means of national law.60 A more cooperative relationship and a better coordination between the State and the Regions would result in more effective environmental 57 See P. Bilancia et al., “The European fitness of Italian Regions” supra. 58 See generally G. Vesperini, “Il diritto europeo e la ripartizione delle competenze tra lo Stato e le Regioni” in G. Sciullo (ed.), Ordinamento Europeo e Pubblica Amministrazione (Quaderni della Spisa) (Bologna, Bononia University Press, 2009). 59 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (2001) OJ L197/30. 60 Corte Costituzionale Judgment 398/2006.



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protection and in more efficient implementation of EU environmental norms. 7. Concluding Remarks In the current scenario, characterized by the progressive affirmation of a multilevel system of governance, the Regions and the local autonomies are vested with greater powers as well as increased responsibilities. In the present contribution, the author has outlined the main features of multilevel governance in the environmental field in Italy. The analysis has highlighted the emergence of some positive trends related to the revised constitutional framework, but it has also identified important challenges. When assessing the Italian scenario of environmental governance in light of the parameters set out in the 2001 European Commission Paper on Good governance – openness, accountability, effectiveness and coherence – it is possible to formulate the following considerations. With respect to openness and transparency, efforts have been made to improve access to information, including attempts to devote more attention to the quality of legislation – although this varies considerably from Region to Region. Mainly under the influence of EU legislation, an increasing involvement of the public in decision-making processes is also apparent, facilitated by the institution of consultation procedures. However, a lack of a systematic set of rules to formally discipline civil society participation in governance processes at different levels is still present. Considering the environment is essentially a shared and collective responsibility, the development of specific mechanisms to promote synergies with the private sector would be beneficial because it would help to build alliances and orient economic policies toward a better protection of the environment. Effectiveness, coherence and accountability still remain the major challenges that the current system of governance faces in the environmental field. Due to the cross-cutting nature of many environmental issues, a clear distribution of competences and functions at the different government levels and among the different administrations is crucial. This analysis has shown that the constitutional reform has not contributed to a greater clarity in the division of the respective powers between the Region and the State in the field of environmental protection. As a consequence, there are a high number of conflicts between the State and the Regions in this field, with ensuing negative impact in terms of effectiveness of

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environmental policy and legislation. One way to address this problem is by improving vertical coordination and cooperation among the various governmental levels and by means of a more efficient use of the existing schemes of cooperation; cooperation between the State and the Regions is especially welcome in light of the greater role that the 2001 constitutional reform assigns to the Regions in the EU policy-making process and the implementation of EU legislation. The division of competences must take into account the principle of subsidiarity. In this perspective, national legislation should provide adequate mechanisms to ensure that a more uniform level of environmental protection is achieved across the different Regions, whereas now it is still possible to distinguish between “leaders” and “laggards”;61 the acute disparities in the level of environmental protection still existing in the different Regions should be attenuated with a view to raise the overall standard at the national level. Finally, appropriate mechanisms aimed at strengthening coordination and cooperation at the horizontal level, among the various Regions, are also important to improve the effectiveness of environmental legislation; horizontal cooperation and dialogue will allow this to combine the peculiarities of each Region with the need of a unitary and holistic approach to environmental protection. Bibliography P. Barile et al., Istituzioni di diritto pubblico (10th ed.) (Padua, CEDAM, 2006). J.L. Bermejo Latre, “Le politiche ambientali in Italia nella transizione del ventesimo secolo” (2008) 5 Rivista Giuridica dell’Ambiente 755–781. P. Bilancia et al., “The European Fitness of Italian Regions” (2010) 2 Perspectives on Federalism 1-174. T. A. Börzel, Environmental Leaders and Laggards in Europe. Why There Is (not) a ‘Southern Problem’ (London, Ashgate, 2003). B. Caravita, Diritto dell’ambiente (Bologna, Il Mulino, 2001). L. Cassetti, “Il regionalismo italiano e la Multilevel Governance dopo le recenti riforme costituzionali” (2004) 1 Le Istituzioni del Federalismo 112. M. Cecchetti, “Riforma del Titolo V della Costituzione e sistema delle fonti: problemi e prospettive nella materia ‘tutela dell’ambiente e dell’ecosistema’ ” (2002), available at http:// www.federalismi.it/ApplMostraDoc.cfm?Artid=596. A. Colavecchio, “La tutela dell’ambiente fra Stato e Regioni: l’ordine delle competenze nel prisma della giurisprudenza costituzionale” in F. Gabriele and A. M. Nico (eds.), La tutela multilivello dell’ambiente (Bari, Caucci Editore, 2005), at 1-99. 61 The expression is freely borrowed from T. A. Börzel who in her book Environmental Leaders and Laggards in Europe uses it in the broader European framework. See T. A. Börzel, Environmental Leaders and Laggards in Europe. Why There Is (not) a ‘Southern Problem’ (London, Ashgate, 2003).



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G. Cordini, “Principi costituzionali in tema di ambiente e giurisprudenza della Corte Costituzionale italiana” (2009) 5 Rivista Giuridica dell’Ambiente 611. P.  Dell’Anno, Manuale di diritto ambientale (4th ed.) (Padua, CEDAM, 2003). A. Ferrara, “Le politiche regionali dell’ambiente tra concorrenza e collaborazione” in A. Ferrara (ed.), La tutela dell’ambiente nella legislazione regionale (Milan, Giuffré, 1999), at 1-12. F. Fracchia, “Governo del territorio e ambiente” in B. Pozzo and M. Renna (eds.), L’ambiente nel nuovo Titolo V della Costituzione (Milan, Giuffré, 2004), at 45-91. M. S. Giannini, “Ambiente: saggio sui suoi diversi aspetti giuridici” (1973) 1 Rivista Trimestrale Diritto Pubblico 15-53. G. Grottanelli De’ Santi, “The Italian Variant of Federalism” in J. Fedtke and B. S. Markesinis, Patterns of Regionalism and Federalism – Lessons from the UK (Oxford, Hart Publishing, 2006), at 3-16. P. Maddalena, “L’interpretazione dell’Articolo 117 e dell’Articolo 118 della Costituzione secondo la recente giurisprudenza costituzionale in tema di tutela dell’ambiente” (2010), available   at   http://www.federalismi.it/ApplOpenFilePDF.cfm?artid=16122&dpath =document&dfile=04052010133259.pdf&content=L’interpretazione+dell’art.+117+e +dell’art.+118+della+Costituzione+secondo+la+recente+giurisprudenza+costituzionale +in+tema+di+tutela+e+di+fruizione+dell’ambiente+-+stato+-+dottrina+-+. S. Nespor, “Ambiente 1973-1986” (1986) 1 Rivista Giuridica dell’Ambiente 2. V. Onida, “La ripartizione delle competenze per l’ambiente nella pubblica amministrazione” (1986) 1 Rivista Giuridica dell’Ambiente 9. P. Patti, La Tutela Civile dell’Ambiente (Padua, Cedam, 1979). A. Postiglione, “Ambiente: suo significato giuridico unitario” (1985) 1 Rivista Trimestrale Diritto Pubblico 38. G. Vesperini, “Il diritto europeo e la ripartizione delle competenze tra lo Stato e le Regioni” in G. Sciullo (ed.), Ordinamento europeo e pubblica amministrazione (Quaderni della Spisa) (Bologna, Bononia University Press, 2009).

ENVIRONMENTAL GOVERNANCE IN THE UNITED KINGDOM Colin T. Reid and Andrea Ross1 Introduction The very end of last century saw significant constitutional change in the United Kingdom (UK)2 through the establishment of a system of devolved government. This has created new legislative and governmental bodies in Scotland, Wales and Northern Ireland enjoying significant powers. Prior to this change, the UK had been governed by a single Parliament and Government since the modern State was established (apart from 50 years of devolution in Northern Ireland in the middle of the twentieth century). Nevertheless the existence of separate legal systems in Scotland and Northern Ireland meant that the picture was not uniform, and in practice much administrative work was divided and organised on a national basis.3 What is new, therefore, is not the basic idea of government operating differently in the different constituent Nations of the UK, but the funda­ mental constitutional shift that follows from the establishment of Govern­ ments enjoying wide powers and accountable to elected legislative bodies. It is wholly in keeping with the UK’s untidy constitutional history4 that the devolution settlement reached in 1998 produced different results for each of the UK’s Nations and that the position has continued to evolve considerably since then. Environmental matters are among those where the devolved authorities have acquired most power, but the impact of EU 1 Prof. Colin T. Reid, Professor of Environmental Law, University of Dundee, Dundee, UK – Ms Andrea Ross, Senior Lecturer, Environmental Law, University of Dundee, Dundee, UK. 2 The United Kingdom of Great Britain and Northern Ireland is the official name of the current State. Great Britain is a term used for England, Scotland and Wales; the British Isles is a geographical expression including both all of Ireland and Great Britain and their asso­ ciated islands. 3 The term “Nation” is used in relation to the four constituent Nations of the United Kingdom; the term “State” is used for the UK as a whole. 4 This chapter ignores the even stranger constitutional position and Government arrangements for the Isle of Man and the Channel Islands, which are Crown dependencies and not technically part of the United Kingdom and which have a complicated status under international and EU law.

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rules and the extent to which some powers remain at the UK level mean that the position is not wholly straightforward. 1. History The constitutional history of the United Kingdom is not simple and is complicated by the absence of a written constitution that sets out coher­ ently the powers and roles of the various organs of the State. In its current State the UK dates from the 1920s, following the partition of Ireland, but the roots of the present position extend much further back. Despite the legislative unions of 1707 and 1800 separate courts and legal systems were preserved in Scotland and Ireland, thus ensuring that an element of dis­ tinct law-making continued in order to deal with the differences arising from separate systems of criminal procedure, land law, local government etc. This took the form of separate statutes or of variations within a single Act, but all made by the single UK Parliament at Westminster. A degree of separate administration, albeit firmly within the UK Government, was also recognised. However, while the Scottish Office was established in the late nineteenth century,5 it was not until 1964 that the Welsh Office was created.6 This approach continued throughout the twentieth century with many official bodies also operating on a national basis,7 and many signifi­ cant differences across the UK pre-date devolution.8 The position in Ireland was more contested and the division of Ireland in 1922 following the war of independence led to the creation of Northern Ireland as part of the United Kingdom but with a devolved Parliament and Government9 which continued to exercise power until direct rule from London was re-established in 1972 as part of the response to “the Troubles”.10

  5 Secretary for Scotland Act 1885.   6 Wales has never had a separate existence as a recognised State, nor has it had a sepa­ rate legal system in any developed form.   7 E.g. the division of the Nature Conservancy Council (operating on a Great Britain basis) to form Scottish Natural Heritage, the Countryside Council for Wales and English Nature (now Natural England); Environmental Protection Act 1990, ss. 128, 130 and Natural Heritage (Scotland) Act 1991, Part I.   8 E.g. the very different structures of the water industries; see chapter 17 by S. Hendry in this volume.   9 Government of Ireland Act 1920. 10 “The Troubles” is a label for the period of civil unrest in Northern Ireland which com­ menced in 1969 and largely ended with signing of the Good Friday (or Belfast) Agreement in 1998.



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The current devolution settlement leaves the position in England unaltered and is the result of a rise in nationalist political sentiment in Scotland and Wales11 and of the peace process in Northern Ireland that culminated in the Good Friday Agreement in 1998.12 In all cases the moves were supported by referendums and took effect in 1999, although the posi­ tion has proved to be fluid. For Wales, the Government of Wales Act 2006 introduced substantial changes, with its provisions enabling a further extension of legislative power that took effect after another referendum in 2011. For Northern Ireland, political difficulties have led at times to the suspension of the devolved arrangements and to a number of changes made following the St. Andrews Agreement in 2006.13 For Scotland, a new Scotland Bill making a number of significant adjustments to the devolu­ tion arrangements had already been introduced to the UK Parliament before the success of the Scottish National Party in the Scottish elections of May 2011 ensured that the details of this amending legislation became the focus of more heated debate. 2. Institutional Structure The arrangements for each part of the United Kingdom are distinctly different, but certain common features can be noted. Above all what has been introduced is a scheme of devolution, not the creation of a new fed­ eral State, and the United Kingdom Parliament retains its supremacy under the Constitution. This means that it retains legal control over the devolution arrangements and has the power to amend them (as it has done on several occasions) or even to repeal them altogether (at present a legal rather than a political possibility). It also means that the UK can choose to legislate for the whole of the UK on any matter, whether devolved or not, although in such circumstances, by convention, it seeks the con­ sent of the devolved administration. In each Nation there is a directly elected Parliament or Assembly, elected on the basis of proportional representation, to which the devolved government is answerable. Although the precise boundary varies in each case, some matters are devolved and others retained in the hands of the 11 Earlier and more limited attempts at devolution were never implemented following referendums in 1979; Scotland Act 1978 and Wales Act 1978. The referendum in Scotland produced a slight majority in favour but insufficient to cross the threshold set in the Act. 12 Scotland Act 1998, Government of Wales Act 1998, Northern Ireland Act 1998. 13 Northern Ireland (St Andrews Agreement) Act 2006.

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UK authorities; the boundaries have been subsequently adjusted, by primary and secondary legislation from London. In all cases, most envi­ ronmental matters have been devolved and the matters retained include things such as defence, social security and foreign affairs; this latter point is significant since it includes dealings with the EU. The devolved authori­ ties are also subject to limitations on their powers in that they cannot lawfully act in a way that is incompatible with EU law or with rights under the European Convention on Human Rights.14 The actions of the devolved authorities, including all legislation, are subject to legal chal­ lenge in the courts, with the UK Supreme Court acting as the final judge; by contrast, legislation by the UK Parliament cannot be overruled by the courts.15 The vast majority of the devolved authorities’ revenues come through the UK Treasury, rather than being a national responsibility. The prospect of one or more separate “English” legislatures has proven less popular with the English electorate.16 As such, post devolution, the UK Parliament has, in fact, a very complicated and variable jurisdiction – at times legislating for the whole of the UK, often only for England and equally often legislating for England and one or more of the other parts of the UK. Similarly, the UK Government’s competence is equally variable but always covers England. 2.1. Scotland The Scotland Act 1998 created both the Scottish Parliament and the Scottish Government17 with wide powers. Full legislative and ministerial18 powers are transferred to these new authorities except in the area of reserved matters,19 but it is expressly provided that the UK Parliament 14 European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950) 5 CETS. 15 Although certain rights under EU law must be protected even in the face of appar­ ently contrary UK legislation; R v Secretary of State for Transport, ex parte Factortame (No.2), (1991) AC 603. 16 M. Sandford and P. Hetherington, “The Regions at a Crossroads – The Future for Sub National Government in England” in A. Trench (ed.), The Dynamics of Devolution (Exeter, Imprint Academic, 2005), at 103. 17 The statutory term in the Scotland Act 2006 is “Scottish Executive”, but since 2007 (when a minority Scottish National Party Government was formed) the term “Scottish Government” has been widely adopted and is given statutory acceptance in the current Scotland Bill. 18 Where previously power lay with the Secretary of State, it now lies with “the Scottish Ministers”. 19 The reserved matters are set out in Sched. 5 to the 1998 Act, with further restrictions stated in Schedule 4.



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retains the power to legislate on any subject.20 Most environmental matters fall within the scope of devolved matters, so that responsibility for these now lies with the Scottish authorities.21 Nevertheless, some of the reservations may be significant either by preventing the use of certain mechanisms to achieve policy objectives,22 or by retaining at Westminster control of significant policy areas with an indirect impact on the environ­ ment.23 The scope of the Scottish Ministers’ powers is actually wider than that of the Scottish Parliament since by the process of executive devolu­ tion it is possible for powers reserved to the UK Government to be dele­ gated to the Scottish Ministers in relation to their exercise in Scotland.24 Thus, although most energy matters are reserved, decisions on individual applications to build power stations or transmission lines are in the hands of the Scottish Ministers,25 an area of possible conflict in view of different views on the future of nuclear energy. Special provision is made for a number of public authorities whose functions straddle the border and whose activities include both reserved and devolved matters.26 The “cross-border public authorities” designated under the Act, must report to both the UK and Scottish Parliaments, and although ministerial powers are not devolved, the relevant UK minister can act in some matters only in consultation with the Scottish Ministers. Special provision is also made for the border rivers.27 20 Scotland Act 1998 supra, s. 28(7). 21 See generally G. Little, “Scottish Devolution and Environmental Law” (2000) 12 Journal of Environmental Law 155; C. T. Reid, “Devolution and the Environment” in A. Ross (ed.), Environment and Regulation (Hume Papers on Public Policy, vol. 8 No. 2) (Edinburgh, Edinburgh University Press, 2000). 22 E.g. the reservation of tax matters prevents the creation of new taxes or tax reliefs to further policy goals; Scotland Act 1998 supra, Sched. 5 Head A. 23 E.g. most energy matters and many transport ones are reserved; Scotland Act 1998 supra, Sched. 5 Heads D and E. Indeed an amendment to the devolution legislation was needed even to give the Scottish Environment Protection Agency the competence to impose conditions in relation to energy efficiency which is a required element in authori­ sations under the Pollution Prevention and Control regime introduced by EU legislation (see footnote No. 74, below). 24 Scotland Act 1998 supra, s. 63; see e.g. the Scotland Act 1998 (Transfer of Functions to Scottish Ministers) Order 1999, SI 1999/1750. To assist this process there is provision for the division of functions not previously exercised separately in Scotland; Scotland Act 1998, s. 106; see e.g. the Scotland Act 1998 (Modification of Functions) Order 1999, SI 1999/1756. 25 Scotland Act 1998, Sched. 5, Part II Section D1; Scotland Act (Transfer of Functions to the Scottish Ministers etc.) Order 1999, SI 1999/1750, Art. 2 and Sched. 1. 26 Ibidem ss. 88-90. 27 Under the Scotland Act 1998 (Border Rivers) Order 1999, SI 1999/1746 and the Scotland Act 1998 (River Tweed) Order 2006, SI 2006/2913, detailed arrangements are made, enabling the Scottish Ministers to exercise some powers over the Tweed in England and the Environment Agency over the border Esk in Scotland.

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colin t. reid and andrea ross 2.2. Wales

The transfer of power to Wales under the Government of Wales Act 1998 was much more limited, but the arrangements have been significantly altered by the Government of Wales Act 2006. From its creation, the National Assembly for Wales has had the power to make subordinate legislation (Assembly Measures) but the power to make primary legisla­ tion (Acts of the Assembly) in limited areas was conferred only in 2011.28 In contrast to the Scottish arrangements, the areas of competence devolved to Wales are specifically listed. The lists of competence for Measures29 and Acts30 both include “the environment” with the boundaries of this being defined in detail.31 Under the 1998 Act, all of the powers transferred, min­ isterial as well as legislative, went to the Assembly, although in practice many ministerial functions were delegated to committees or to the Assembly First Secretary and his or her fellow Assembly Secretaries.32 The 2006 Act established the Welsh Assembly Government and the major­ ity of ministerial powers have been transferred from the Assembly to the Welsh Ministers.33 There is no equivalent of cross-border authorities and some bodies continue to operate on an England and Wales basis, notably the Environment Agency.34 2.3. Northern Ireland The unique political situation in Northern Ireland has produced a more complex system of devolution, but most of the complexities are internal matters, ensuring that the authorities operate on a power-sharing basis, rather than ones that affect the fundamental role of the new authorities. As in Scotland and now Wales, there is a legislative body, the Northern

28 Government of Wales Act 2006, Part 4; Government of Wales Act 2006 (Commence­ ment of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011, SI 2011/1011. 29 Government of Wales Act 2006, Sched. 5. 30 Ibidem Sched. 7. 31 For Assembly Measures, this is set out in the Government of Wales Act 2006, Sched. 5, Field 6, as amended by National Assembly for Wales (Legislative Competence) (Environment) Order 2010, SI 201/248, which takes over 130 lines of text to explain what falls within “the environment” for this purpose; for Acts of the Assembly, ibidem Sched. 7, Part 1, Para. 6 (eight lines of more densely formatted text). 32 As authorised by Government of Wales Act 1998, s. 62. 33 Ibidem s. 45, Sched. 11, Para. 30; some powers remain with the Assembly, see Para. 31. 34 Cf. the Countryside Council for Wales (footnote No. 7), although its creation pre-dates devolution.



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Ireland Assembly, and a Government, the Northern Ireland Executive.35 Their powers are divided into three, not two, legal categories: excepted matters which remain in the hands of the UK authorities, transferred matters for which responsibility was immediately passed to the devolved authorities and reserved matters, which were not initially transferred but identified as areas that could be added to devolved responsibilities by order of the Secretary of State.36 A significant feature of the recent history of Northern Ireland is that much of the day-to-day business of government was disrupted by the deeper political troubles so that the tide of environmental legislation and reform that affected the rest of the UK from the 1970s until the end of last century left Northern Ireland largely unaffected. The backlog of envi­ ronmental updating is now being tackled,37 but it has left a significant structural legacy, so that matters which elsewhere are dealt with by sepa­ rate statutory bodies – in Scotland the Scottish Environment Agency and Scottish Natural Heritage – in Northern Ireland are in the hands of an agency that remains within a Government department.38 Uniquely, Northern Ireland is the only part of the UK which shares a border with another State. The North-South Council of Ministers is a body established under the Good Friday Agreement (also known as the Belfast Agreement) to co-ordinate activity and exercise certain governmental powers across the whole island of Ireland. The Council takes the form of meetings between ministers from both the Republic of Ireland and Northern Ireland and is responsible for twelve policy areas. Six of these areas are the responsibility of corresponding North/South Implementation Bodies and include important environmental concerns such as food safety, inland waterways, and special EU programmes. The six other areas for cooperation include aspects of transport, agriculture, education, health, the environment and in the case of tourism, a joint North-South public company is to be established.39 35 Northern Ireland Acts 1998, 2000, 2006 and 2009; Northern Ireland (St Andrews Agreement) Act 2006. 36 The Northern Ireland Act 1998 allows matters to be altered from “transferred” to “reserved” by ministerial order (s. 4(2) ) and in any event the Act itself can be amended at any time by the UK Parliament. The Northern Ireland Act 2009 made further provision in relation to the sensitive areas of policing and justice. 37 S. Turner, “Transforming Environmental Governance in Northern Ireland” (2006) 18 Journal of Environmental Law 55, at 245. 38 See the webpages of the Northern Ireland Environment Agency at http://www.doeni .gov.uk/niea/. 39 See http://www.northsouthministerialcouncil.org/.

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colin t. reid and andrea ross 2.4. England

One feature of the devolution arrangements for the UK is that no provi­ sion at all has been made for England. Legislation for England continues to be made by the UK Parliament, with the full involvement of MPs from all parts of the UK, so that MPs from Scotland, Wales and Northern Ireland can vote on legislation relating to environmental matters in England even though the same issue in relation to their own parts of the UK would be dealt with not at Westminster but by the devolved legislatures.40 Similarly it is the UK Government which is responsible for all administrative mat­ ters in England, so that depending on the subject matter a UK department may be dealing with an issue across the whole UK, for Great Britain, for England and Wales or for England only. 3. Cooperation and Conflict Several mechanisms exist to ensure smooth cooperation between the UK and devolved authorities and generally the first twelve years of devolution have produced fewer problems than envisaged. In specific areas there are detailed provisions for joint functions, at ministerial, administrative and agency levels,41 for consultation before certain powers are exercised and for the devolved authorities to have a say in appointments to certain bod­ ies, but two more general points should be made. The first is to note the existence of the far-ranging Concordats which set down the working arrangements between the UK and devolved administrations.42 The gen­ eral Memorandum of Understanding and Supplementary Agreements and the accompanying agreements based on UK Government depart­ ments,43 set out how the various governmental bodies are to work together. Issues covered include consultation, information sharing and how the UK 40 This anomaly, which generates considerable debate, is known as the “West Lothian question” after the constituency of Tom Dalyell MP who raised it tenaciously during the debates on the earlier devolution legislation in the late 1970s. 41 E.g. the Joint Nature Conservancy Council which has nature conservation functions relating to matters at an international level or which affect the whole UK; Natural Environment and Rural Communities Act 2006, ss. 31-39 and Sched. 4. 42 Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, Cm. 5240/2001. The latest version (June 2011) is available at http://www .cabinetoffice.gov.uk/resource-library/devolution-memorandum-understanding -and-supplementary-agreement. 43 Available at http://www.scotland.gov.uk/About/concordats.



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authorities are to engage with their devolved partners in handling EU and international affairs. As part of this a Joint Ministerial Committee is established as a forum for UK and devolved ministers to discuss matters of common interest and resolve any disputes. After being in abeyance during a period when the fact that the same party was dominant at UK, Scottish and Welsh levels allowed many matters to be dealt with informally, this Committee has been active in recent years.44 Secondly, although the legal structures described above emphasise that the UK Parliament retains full powers to legislate for any part of the UK on any matter, it is accepted that the consent of the devolved legislature should obtained before the UK Parliament acts in an area of devolved power. In the Scottish Parliament, for example, provision for such consent is made in the Standing Orders.45 In practice legislation on devolved mat­ ters from the UK Parliament has been much more common than expected,46 usually to allow for a single statute to deal coherently with devolved and reserved aspects of a topic, but on occasions perhaps also to avoid divisive debate at devolved level.47 The generally smooth functioning of the devolution settlements has led to a very limited role for the courts. The disputes that have been litigated (none on an environmental topic) have overwhelmingly been based on arguments that the devolved authorities have exceeded their powers by acting in breach of the human rights of individuals, mostly in relation to aspects of the criminal justice system. Where demarcation disputes have arisen, the courts, while following closely the technical rules defining competence have followed the expected approach of looking where the “pith and substance”48 of the measure lies, as a devolved or reserved matter.49 44 JMC Annual Report 2010-11. 45 Standing Orders of the Scottish Parliament 4th ed. 2011, Ch. 9B. 46 A. Page and A. Batey, “Scotland’s Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution” (Autumn, 2002) Public Law 501-523; N. Burrows, “This Is Scotland’s Parliament – Let Scotland’s Parliament Legislate” 2002 Juridical Review 213-236. 47 K. MacAskill and M. Curran, “Is Holyrood Passing the Buck?” (2005) 50 Journal of the Law Society of Scotland 20. The scope of reserved matters under the devolution settlement means that even for Scotland a remarkably high proportion of the legislation that applies in Scotland is still made by the UK authorities: C. T. Reid, “Who Makes Scotland’s Laws? Delegated Legislation under the Devolution Arrangements” (2002) 6 Edinburgh Law Review 380. 48 The phrase comes from older case-law on the powers of Commonwealth legislatures and the original devolved authorities in Northern Ireland. 49 Logan v. Harrower, (2008) HCJAC 61; Martin v. HMA, (2010) UKSC 10; Imperial Tobacco Ltd., Petitioners, (2010) CSOH 134.

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colin t. reid and andrea ross 4. Approach to Environmental Issues 4.1. General

Although for centuries there has been legal attention to many matters that we would nowadays class as “environmental”,50 most of the law is of recent origins. The absence of a written constitution means that there is no place for broad statements of objectives or individual rights51 in relation to the environment (or indeed any other pervasive social objectives), and the British tradition in legislating is to avoid establishing general purposes or goals.52 Thus although there are provisions setting out the purposes and functions of the environment agencies,53 of National Parks54 and of other authorities and legal regimes,55 these are not of general application and do not provide a coherent set of environmental goals. Instead there is a

50 C. T. Reid, “Environmental Legislation of the Scottish Parliament” in H. McQueen (ed.), Miscellany VI (Stair Society, vol. 54) (Edinburgh, Stair Society, 2009). 51 The European Convention on Human Rights supra is incorporated into UK law by the Human Rights Act 1998, but this too lacks explicit environmental rights, although the rights protected can be claimed in environmental contexts; K. Morrow, “Worth the Paper that they Are Written on? Human Rights and the Environment in the Law of England and Wales” (2010) 1 Journal of Human Rights and the Environment 66; O. Pedersen, “A Bill of Rights, Environmental Rights and the British Constitution” (2011) Public Law 577. 52 For the role of legislation in pursuit of broad and pervasive objectives, see A. Ross, “Why Legislate for Sustainable Development?” (2008) 20 Journal of Environmental Law 35-68; A. Ross “It’s Time to Get Serious – Why Legislation Is Needed to Make Sustainable Development a Reality in the UK” (2010) 2 Sustainability 1101-1127 (available online at http://www.mdpi.com/2071-1050/2/4/1101/). 53 The Environment Agency has as its “principal aim” “to protect or enhance the environment, taken as a whole, as to make [a] contribution towards attaining the objective of achieving sustainable development,” while its “pollution control powers shall be exercis­ able for the purpose of preventing or minimising, or remedying or mitigating the effects of, pollution of the environment” (Environment Act 1995, ss. 4-5); the same purpose is stated for the Scottish Environment Protection Agency (s. 33). 54 National Parks and Access to the Countryside Act 1949, s. 5 (as substituted by Environment Act 1995, s. 61); National Parks (Scotland) Act 2000, s. 1. 55 These broad duties can be phrased in terms of compliance with EU law. In relation to both nature conservation and water, the relevant authorities are required “to exercise their functions under [specified] enactments so as to secure compliance with the requirements of” the specified Directive; for nature conservation, Conservation (Natural Habitats, &c.) Regulations 1994, SI 1994/2716, reg. 3 and Conservation of Habitats and Species Regulations 2010, SI 2010/490, relating to the Habitats and Species Directive 92/43/EEC; for water, Water Environment and Water Services (Scotland) Act 2003, s. 2(1), 2(2) and Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003/3242, reg. 3, relating to the Water Framework Directive 2000/60/EC. See Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1992) OJ L206/7; Directive 2000/60/EC of the European Parliament and of the Council establish­ ing a framework for the Community action in the field of water policy (2000) OJ L327/1.



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patchwork of detailed provisions relating to individual authorities and their specific powers and duties. Against this background, it is hardly surprising that environmental law across the UK is predominantly a statutory matter.56 Although some common law doctrines such as tort and delict can apply in environmental contexts, especially the law of nuisance,57 the role of the courts has pre­ dominantly been one of statutory interpretation or of determining the limits of the discretionary powers conferred by statute on a range of authorities, especially in relation to the impact of EU law.58 The decisions that do reach the higher courts59 are dominated by detailed consideration of the statutory provisions and do not reveal any consistent or distinctive judicial attitudes.60 4.2. Effect of Devolution The patchwork described above has been complicated by the advent of devolution, although separate legislative provisions and administrative arrangements were in place under the pre-devolution governmental struc­ tures. The precise boundary is different in each case, but the environment is one of the most significant areas of devolved power for Scotland, Wales and Northern Ireland. It is an area where there has been considerable leg­ islation61 but so far little by way of major policy differences. Indeed many of the most noticeable differences pre-date devolution, e.g. the existence of separate environmental bodies,62 different approaches to National 56 S. Bell and D. McGillivray, Environmental Law (7th ed.) (Oxford, Oxford University Press - OUP, 2008), at 94-95. 57 E.g. Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc (1994) 2 AC 264. In this case it was suggested that the future development of the law was best achieved by legisla­ tive rather than judicial initiative (Lord Goff, at 305). 58 E.g. the most recent environmental case to reach the Supreme Court, which con­ cerned whether a planning authority had acted lawfully in giving permission to a develop­ ment in the light of the obligations imposed by the Habitats and Species Directive (Dir. 92/43/EEC supra); R (Morge) v. Hampshire County Council (2011) UKSC 2, (2011) 1 W.L.R. 268. 59 In 2009 the Supreme Court replaced the Appellate Committee of the House of Lords (and the Privy Council in relation to its role in devolution issues) as the highest court of appeal for all three jurisdictions in the UK (it does not hear criminal appeals from Scotland unless these raise devolution or human rights issues). 60 S. Bell and D. McGillivray, Environmental Law supra, at 35-6. 61 C. T. Reid, “Environment and Sustainable Development” in E. Sutherland et al. (eds.), Law Making and the Scottish Parliament: The Early Years (Edinburgh, Edinburgh University Press, 2011). 62 For conservation, Scottish Natural Heritage, the Countryside Council for Wales and Natural England (formerly English Nature), created in the 1990s; for pollution control the Scottish Environment Protection Agency and the Environment Agency

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Parks63 and separate systems of land use planning.64 The fact that Northern Ireland saw very little environmental reform during the 1980s and 1990s, and fell a long way behind in implementing European environmental measures, has left further distinctions.65 Although “the environment” has always been identified as one of the areas within devolved competence,66 the limits of that competence can significantly hinder the devolved authorities’ freedom of action.67 Taking the example of Scotland, the geographical limits to the powers of the Scottish Parliament (“Holyrood”) have been a major issue in relation to the reform of policy and law on marine matters, resulting in a new legal framework split between the Marine and Coastal Access Act 2009 passed in the UK Parliament (and which directly confers certain responsibilities on Scottish Ministers)68 and the Marine (Scotland) Act 2010 passed in Scotland shortly thereafter. The range of reserved matters also limits Holyrood’s powers, more so than those of the Scottish Ministers since on several points decision-making power has been transferred to Scottish Ministers by executive devolution, e.g. in relation to consents for electric­ ity generation69 and the renewables obligation.70 This issue has perhaps been most clearly demonstrated in relation to climate change, where it is the UK Parliament (“Westminster”) that controls the key fiscal measures designed to lower greenhouse gas emissions.71 Similarly, taking a holistic (covering England and Wales), again created in the 1990s but building on long-standing structures that differed between Scotland and the rest of Great Britain; the structures in Northern Ireland are quite distinct with responsibility lying with an agency that remains part of the Government’s departmental structure. 63 National Parks in England and Wales were created from the early 1950s (National Parks and Access to the Countryside Act 1949) while in Scotland the first was created in 2002 (National Parks (Scotland) Act 2000 supra, passed by the Scottish Parliament but based on pre-devolution proposals); there are no National Parks in Northern Ireland. 64 This is an area where the long-standing differences in local government structure would make assimilation virtually impossible in any case. 65 See footnote No. 36, above. 66 E.g. in the White Paper before the 1997 referendum; White Paper Scotland’s Parliament Cm 3658/1997, at 6. 67 See generally C. T. Reid, “Devolution and the Environment” supra. 68 E.g. Marine and Coastal Access Act 2009, s. 116, in relation to marine conservation zones, to be called marine protected areas off Scotland to match the terminology in the Marine (Scotland) Act 2010. 69 Scotland Act 1998 (Transfer of Functions to Scottish Ministers etc.) Order 1999, SI 1999/1750 supra, Art. 2, Sched. 1. 70 This provides support for the generation of electricity from renewable sources. The complexity of the legislative arrangements is amply demonstrated by the fact that the footnote reciting the statutory basis for the Scottish Ministers making the Renewables Obligation (Scotland) Order 2007 SSI 2007/267 runs to almost 300 words. 71 Notably the Climate Change Levy under the Finance Act 2000 and the CRC Energy Efficiency Scheme being introduced under the Climate Change Act 2008.



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approach to the control of waste and the emissions it produces is precluded since one key lever, the landfill tax, is a matter for Westminster,72 while other possible measures may also trespass onto the reserved areas of competition, consumer protection or product standards. There was even a need for an amendment to the devolution legislation to enable the Scottish Environment Protection Agency to include conditions relating to energy efficiency (energy is a reserved matter)73 in permits given under the integrated pollution prevention control scheme.74 The different environmental features in the different Nations, and the different pressures on these, inevitably mean that there is not uniformity across the UK. It must be remembered, though, that even before devolu­ tion there was not uniformity, so that even though ultimately there was a single Government in charge, the separate legislation and structures for each Nations in some areas produced results that were markedly different in detail although operating towards the same very broad objec­ tives. Devolution has continued this trend rather than marked a new departure. Since devolution, though, a few more distinct differences have emerged, with a variety of motivations.75 A political desire on the part of the minor­ ity coalition party for greater transparency and wider regard to envi­ ronmental considerations led to Scotland applying the Strategic Environmental Assessment Directive to all strategies and policies, not just those in the categories specified in the Directive, as has been done in the rest of the UK.76 Implementing the Water Framework Directive provided the opportunity for a major reworking of water law in Scotland,77 which was in a very poor and fragmented State after missing out on the reform of

72 Finance Act 1996, Part III. A proposal to devolve this tax to the Scottish authorities is included in the current Scotland Bill following a recommendation from the Calman Commission; Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century (2009), recommendation 3.2. 73 Scotland Act 1998 supra, Sched. 5 Part II Head D. 74 Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2008, SI 2008/1776 supra; Pollution Prevention and Control (Scotland) Amendment Regulations 2009, SSI 2009/336. 75 See also section 5 below. 76 Directive 2001/42/EC (of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (2001) OJ L197/30), implemented more widely in Scotland under the Environmental Assessment (Scotland) Act 2005 than elsewhere: Environmental Assessment of Plans and Programmes Regulations 2004, SI 2004/1633; Environmental Assessment of Plans and Programmes (Wales) Regulations 2004, SI 2004/1656; Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004, SI 2004/280. 77 Water Environment and Water Services (Scotland) Act 2003 supra.

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the law that had taken place in England and Wales during the 1980s;78 much less radical steps were taken in implementing the Directive there.79 Other differences reflect preferences within areas of fairly finely balanced, albeit controversial, debate rather than fundamentally different approaches. Thus, Wales has legislated in detail to require retailers to charge for single use carrier bags,80 whereas elsewhere the law has not gone beyond introducing enabling powers to allow such a charge to be introduced in future.81 The Scottish and Welsh rules on environmental liability offer more limited exceptions for genetically modified organisms than those in England and Northern Ireland.82 In energy matters, Scotland is adopting a distinct path, fuelled by a desire to capitalise on the country’s outstanding potential for renewable energy and on its expertise in the energy industry as well as a political view against nuclear expansion. Energy is a reserved matter, but with considerable powers transferred to the Scottish Ministers, including responsibility for approving new generating stations,83 and this has allowed the adoption of different rules on the renewables obligation that supports generation of electricity from renewable sources84 and a policy against any new nuclear powers stations in Scotland.85 More demanding short-term greenhouse gas reduction targets have been adopted for Scotland than for the UK as a whole – at least a 42% reduction by 2020 on

78 W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (Crayford, Shaw & Sons, 2001), at 97-108. 79 Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003/3242 supra. See generally chapter 17 by S. Hendry in this volume. 80 Single Use Carrier Bags Charge (Wales) Regulations 2010, SI 2010/2880, coming into force on 1 October 2011. 81 Climate Change Act 2008 supra, Sched. 6, Part 1; Climate Change (Scotland) Act 2009, s. 88; Single Use Carrier Bags Act (Northern Ireland) 2011. An Environmental Levy on Plastic Bags (Scotland) Bill was introduced as a Private Member’s Bill in 2005 but withdrawn. 82 Environmental Liability (Scotland) Regulations 2009, SSI 2009/266, reg. 17(4); Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, SI 2009/995, reg. 19(4); Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, reg. 19; Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009, SR 2009/252, reg. 16. 83 See footnote No. 24, above. 84 Renewables Obligation (Scotland) Order 2009, SSI 2009/140, as amended by Renewables Obligation (Scotland) Amendment Orders 2010 and 2011, SSIs 2010/147 and 2011/225. 85 Scottish Government, Draft Electricity Generation Policy Statement 2010; statement to Scottish Parliament by Minister for Energy, Enterprise and Tourism of 30 June 2011 (Official Report col. 1205).



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the baseline emissions compared to 34% for the UK.86 This is the only area where differences can be attributed to the presence of different elected administrations across the UK as opposed to the sort of national prefer­ ences what were present before devolution took effect.87 As yet, even here the difference has been accommodated rather than becoming a matter of overt dispute between the Scottish and UK authorities. Over time, though, the likelihood is that the drifting apart arising from the accumulation of small incidental differences will be at least as signifi­ cant as conscious policy distinctions in creating differences between juris­ dictions. At the simplest level, the different electoral and parliamentary schedules mean that the laws implementing the same policy decisions may be made at different times.88 Even before devolution, the law on wild­ life was, although generally parallel, not uniform across the UK and this drifting apart has continued, with substantial legislation, again along broadly the same lines89 but with many differences in detail.90 Different administrative frameworks will also generate differences. The adoption in England and Wales of a unified environmental permitting regime, with the specific needs of specific regulatory tasks being met by detailed sched­ ules under the same common framework,91 provides a vehicle through which new measures can be introduced that is not available in Scotland or Northern Ireland. Thus whilst this regime provided the obvious means 86 Climate Change (Scotland) Act 2009 supra, s. 2(1); Climate Change Act 2008 supra, s. 5(1)(a), as amended by Climate Change Act 2008 (2020 Target, Credit Limit and Definitions) Order 2009, SI 2009/1258, Art. 2. See generally C. T. Reid, Climate Law: Scotland (national report to the XVIIIth International Congress of Comparative Law, 2010), available at http://www.law.ed.ac.uk/bacl/xviiithinternationalcongressofcomparativelaw.aspx. 87 E.g. over National Parks (footnote No. 63, above). 88 In the last five years licences for hunting game first introduced in 1860 have been abolished across Great Britain, but in 2007 for England and Wales (Regulatory Reform (Game) Order 2007, SI 2007/2007) and 2011 for Scotland and Northern Ireland (Wildlife and Natural Environment (Scotland) Act 2011, s. 25 and Schedule; Wildlife and Natural Environment Act (Northern Ireland) 2011, s. 35. Such differences may be exacerbated by the fact that the UK Government has significantly more resources, not least legal staff, available to it, than the devolved administrations, especially Wales. See A. Ross et al., “The Implementation of EU Environmental Law in Scotland” (2009) 13 Edinburgh Law Review 224, at 234. 89 At times required to ensure compliance with EU law; C. T. Reid, Nature Conservation Law (3rd ed) (Edinburgh, W. Green, 2009), at 8, 332-333. 90 Compare the Nature Conservation (Scotland) Act 2004, now supplemented by the Wildlife and Natural Environment (Scotland) Act 2011 supra, with the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006; C. T. Reid, Nature Conservation Law supra, at 214-215. 91 First introduced in 2007 and now in the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675.

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through which to implement the Mining Waste Directive in England and Wales, in Scotland the decision was take to incorporate its requirements into a different regulatory regime, that for town and country planning.92 Since the Environment Agency operates in both England and Wales, it seemed inevitable that Wales would follow England in enabling it to use civil penalties, whereas different approaches for other environmental bodies remained possible.93 5. Relations with the EU Given the significance of the EU in matters of environmental law, as shown by the many examples already mentioned of measures adopted to implement EU directives, the relationship between the devolved and UK authorities in relation to the EU is of vital importance. Within the range of devolved matters, the primary responsibility to ensure compliance with EU law rests on the devolved authorities, and it is beyond the compe­ tence of the Parliaments to legislate, or the Ministers to act, in a way which is incompatible with EU law.94 However, it is expressly stated that the UK Government can still exercise powers to implement EU law across the UK, even in devolved matters.95 This reflects well established EU law that it is the Member State of the EU, and therefore the United Kingdom Government, that is entitled to a seat in the Council when decisions are made but also responsible before the European Court of Justice for contraventions of EU law.96 Thus in relation to such matters as compliance with EU directives, it is expected that the devolved authorities will ensure that all of the neces­ sary measures are in place;97 in a case concerning agricultural support, 92 Directive 2006/21/EC implemented through the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sched. 20 and through the Management of Extractive Waste (Scotland) Regulations 2010, SSI 2010/60. See Directive 2006/21/EC on the management of waste from the extractive industries (2006) OJ L102/15. 93 See section 7, below. 94 Scotland Act 1998 supra, ss. 29(2), 57(2); Government of Wales Act 2006, ss. 59, 94(6); Northern Ireland Act 1998, ss. 6(2), 24. 95 Scotland Act 1998, s. 57(1); Government of Wales Act 2006, Sched. 3, Para. 5; there is no explicit statement to this effect for Northern Ireland but it is implicit in the overall structures created (e.g. Northern Ireland Act 1998, s. 95(4)). 96 It is no defence for the national government of a Member State to say that the matter is a responsibility of another tier of government; e.g. ECJ Cases C-227-230/85, Commission v. Belgium; C-33/90, Commission v. Italy. 97 If there are any financial penalties or costs imposed on the UK as a result of a failure to implement or enforce EU law, responsibility for meeting these will lie with the



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the European Court of Justice has confirmed that within its borders the UK can legitimately implement EU measures in different ways in different parts of the country.98 Nevertheless, any measures incompatible with the EU obligations can be challenged in the courts and held to be invalid, and the UK Government can intervene directly if it is thought that EU law is being breached. The Concordats between the London and devolved governments endeavour to establish arrangements for coop­ eration and consultation between the different administrations.99 The devolved authorities all have a presence in Brussels but have no formal involvement in British dealings with the EU. These remain wholly in the hands of the UK Government, although it may invite the devolved admin­ istrations to participate, e.g. Scottish ministers and officials have played a leading role in some fisheries negotiations since the industry is so much more important for Scotland than for other parts of the UK. Research on the implementation of EU law in Great Britain has shed light on the workings of the devolution settlements in the environmental context.100 Despite the overlapping competence of the UK authorities, there is a very strong presumption that if a matter is devolved, then the devolved administration should be responsible for legislating. Yet of the 32 directives studied, only 20 were dealt with separately for Scotland and five for Wales. The fact that an issue impinges on a reserved matter, the desire for a coherent regime across the UK to make life easier for industry and a the involvement of a regulator operating at Great Britain or UK level were all reasons justifying legislation from London. The lesser competences of the Welsh authorities, the sharing between England and Wales of a single regulator in the Environment Agency and of a single legal system, as well administration responsible for the failure, so that for example the Scottish budget will bear the cost of a failure in Scotland on a devolved matter (Memorandum of Understanding (footnote No. 42, above), Para. 21).   98 R (Horvath) v. Sec. of State for the Environment, Food and Rural Affairs (C-428/07) (2009) ECR I-6355. In Abna Ltd. v. Scottish Ministers 204 SLT 176, the desire to avoid differ­ ences within the UK was a factor in the court suspending the application of Scottish regu­ lations when their English equivalents were suspended pending a reference to the European Court of Justice.   99 Memorandum of Understanding (footnote No. 42, above); the main Memorandum is supported by an Agreement on the Joint Ministerial Committee and Concordats on among other topics Co-ordination of European Union Policy Issues. 100 A. Ross and H. Nash, “European Union Environmental Law and who Legislates for whom in a Devolved Great Britain” (July, 2009) Public Law 564; A. Ross et al., “The Implementation of EU Environmental Law in Scotland” supra; A. Ross et al., “MultiLevel Governance – A Study of the Implementation of Environmental Law in PostDevolution Scotland” (2008) 19 Environmental Law and Management 159.

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as the more limited governmental resources in Wales, account for its lower level of separate action. The pre-devolution tradition of dealing with matters separately in Scotland (and Northern Ireland) also has an effect. Decisions on how to proceed, both in form and content, rely heavily on informal and ad hoc liaison between officials across the administrations, with drafts being shared and some reliance on the greater scientific and other resources in London. 6. Public Involvement Public participation is a well-established part of government across the UK. Consultative drafts of legislation and guidance are regularly published with the responses and analysis of them made available on Government websites.101 Similarly, public notices and opportunities to make represen­ tations are a feature of the decision-making procedure in many environ­ mental regimes, and many regimes contain specific registers of information that are open to the public in addition to the more general rights of access to environmental information provided under EU law and implementing measures across the UK.102 The different Government structures and a few policy differences mean that the position is not identical across the UK. For example, in the Scottish Parliament, the first stage of the legislative process for a new Bill includes consideration by a parliamentary committee that will receive written and oral evidence from interested parties, not something that happens in the UK Parliament, whilst the Scottish Parliament’s Public Petitions Commi­ ttee allows any members of the public to draw matters to the Parliament’s attention.103 Other differences include the fact that in Scotland the requirement to undertake a strategic environmental assessment, with its public participation element, applies to all governmental policies and strategies, not only those covered by the relevant EU Directive,104 and wider public notification is required when land is designated for

 101 E.g. http://www.scotland.gov.uk/Consultations/Current. 102 Access to Environmental Information Directive (2003/4/EC), implemented primar­ ily by the Environmental Information Regulations 2004, SI 2004/3391 and Environmental Information (Scotland) Regulations 2004, SSI 2004/520. See Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environ­ mental information and repealing Council Directive 90/313/EEC (2003) OJ L41/26. 103 See http://www.scottish.parliament.uk/s4/committees/petitions/index.htm. 104 Environmental Assessment (Scotland) Act 2005 supra.



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biodiversity purposes.105 These differences are ones of detail rather than fundamental approach. In relation to access to justice, though, there is one more substantial difference and a shared difficulty. The difference is in relation to the rules on standing before the courts, where the Scottish rules impose more restrictive criteria on who can raise an action before the courts. In part the smaller number of cases in Scotland has created a vicious circle of uncertainty where the restrictive comments in some cases deter further attempts that might shift the law in the more open direction taken in England, Wales and Northern Ireland, but it is clear that a different approach is taken. Whereas in England, Wales and Northern Ireland standing is rarely a hurdle to non-frivolous parties, whether individuals or non-governmental organisations, seeking to challenge Government deci­ sions by judicial review,106 it can be an obstacle in Scotland.107 Relaxation of the Scottish approach for public interest cases has been suggested by a major review of the civil courts in Scotland,108 not least because of the need to meet the obligations to provide the public with access to justice under the terms of the Aarhus Convention.109 Complying with the Aarhus Convention is at the heart of the shared difficulty across the UK. Whereas the Convention requires that the public should have access to remedies that are “fair, equitable, timely and not prohibitively expensive”,110 the cost of litigation in the UK is notoriously high, exacerbated by the rule that the losing party must pay the costs of the successful opponent. The high cost of preparing one’s own case, plus the risk of being liable for the other side’s costs if one loses is a major disincentive to litigation. The courts have responded to this problems by making protective cost orders,111 which set at an early stage in proceedings a limit to the costs liability that a party may incur, but that limit will still be

105 Nature Conservation (Scotland) Act 2004 supra, ss. 3, 48. 106 E.g. R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd. (1995) 1 WLR 386; R (Edwards) v. Environment Agency (2004) 3 All ER 21. 107 E.g. Scottish Old People’s Welfare Council, Petitioners (1987) SLT 179; Forbes v. Aberdeenshire Council (2010) CSOH 01. 108 Report of the Civil Courts Review (chaired by Lord Gill) (2009) vol. 2, at 28-9, available at http://www.scotcourts.gov.uk/civilcourtsreview/index.asp. 109 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998), Art. 9. 110 Ibidem Art. 9(4). 111 R (Corner House Research) v. Secretary of State for Trade and Industry (2005) 1 WLR 2600; McGinty v. Scottish Ministers (2010) CSOH 5.

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in the tens of thousands of pounds. The Aarhus Convention Compliance Committee has already stated that the position in the UK does not meet the required standards.112 In April 2011 the European Commission announced that it is taking the UK to court over this issue so far as the relevant Aarhus rules have been incorporated into EU law,113 and given the fact that the court ruled firmly against Ireland in a similar case,114 the UK’s position seems untenable. 7. Enforcement The broad approach to the enforcement of environmental laws is the same across the UK. Different environmental law regimes prescribe different detailed mechanisms, but the general pattern across the UK is for breach of the statutory provisions or of permit conditions to be a criminal offence, prosecuted in the criminal courts in the same way as all “ordinary” crimes such as theft or assault. Commonly, though, the regulatory body will have at its disposal a number of administrative measures to respond to non-compliance. In many instances, where a breach is inadvertent or acci­ dental the preferred approach by regulators across the UK is informal, often just giving an informal warning and undertaking a site visit to secure compliance. This is effective in many cases. More formally, the legislation may allow the regulator to serve an enforcement notice, notifying opera­ tors that they are in breach of the law and requiring them to cease the breach and take specified remedial measures within a given timescale; failure to comply with such a notice is then itself a criminal offence.115 A default power is commonly available to enable the regulator to step in when remedial action has been ordered but not undertaken by the opera­ tor responsible, arranging for the necessary steps to be taken and recover­ ing the cost from the operator. Across the UK, however, a number of differences, some of which pre-date devolution, have within them the seeds for a greater disparity in future. 112 Aarhus Convention Compliance Committee ACCC/C/2008/3 (2008). 113 See http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/439&format =HTML&aged=0&language=EN&guiLanguage=en. The UK Supreme Court has already referred a case on the matter to the Court of Justice; R (Edwards and Pallikaropoulos) v. Environment Agency (2010) UKSC 57. 114 ECJ Case C-427/07, Commission v Ireland, Paras 92-5. 115 E.g. under the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, reg. 36 and Pollution Prevention and Control (Scotland) Regulations 2000, SSI 2000/323, reg. 19.



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In the first place, the position in Scotland has always been different in that criminal proceedings can be started only by the public prosecutor, the procurator fiscal.116 Thus, whereas the Environment Agency in England and Wales controls all aspects of a prosecution, from the decision to commence proceedings to the handling of the case in court, in Scotland all that the Scottish Environment Protection Agency can do is refer a case to the procurator fiscal and hope to persuade him or her that it is in the public interest to start a prosecution. A further long-standing difference is that in England and Wales a successful prosecution can lead to the recov­ ery of expenses from the offender, something not possible in Scotland. The perception has also been that the penalties imposed by the courts in Scotland have been lower than those south of the border.117 In a recent Scottish case, though, the first one where the appeal court has expressed any views on the matter, the courts have stressed the importance of taking environmental offences seriously and using substantial penalties.118 On the other hand, wildlife crime has, perhaps been treated more seriously in Scotland, with recent legislation introducing a form of vicarious liability whereby those with the right to take wild birds on land may be guilty of an offence when their employee or agent is found to have committed certain offences against birds, including laying poison for them.119 More recently there has been strong interest in moving away from criminal prosecutions to other forms of sanctions. Following a major review of regulatory enforcement,120 legislation in England and Wales allows for a range of “civil sanctions”121 to be imposed by regulatory bodies in several areas of law.122 These include fixed monetary penalties for minor offences, larger monetary penalties set in accordance with published guidelines, requirements to undertake specified remedial steps, and the acceptance of undertakings whereby the offender proposes and promises to carry out certain remedial actions. In all cases, the offender’s 116 In Northern Ireland the decision to prosecute is in the hands of the Public Prosecution Service for Northern Ireland. 117 “Low Fines Fail to Deter Breaches, Says SEPA” (2010) 422 ENDS Report 47. 118 HMA v. Doonin Plant Ltd. (2010) HJAC 80. 119 Wildlife and Countryside Act 1981, s. 18A, inserted by Wildlife and Natural Environment (Scotland) Act 2011 supra, s. 24. 120 R. Macrory, Regulatory Justice: Making Sanctions Effective (Edinburgh, Scottish Environmental Protection Agency Workshop, 2009). 121 Although described as “civil sanctions” these may still be regarded as criminal for the purposes of the fair trial requirements of Art. 6 of the European Convention on Human Rights supra. 122 Regulatory Enforcement and Sanctions Act 2008, ss. 36-71.

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acceptance of such a penalty will act as a bar to prosecution. The power to impose such sanctions has been conferred on the Environment Agency in England and Wales and on Natural England (but not the Countryside Council for Wales).123 Northern Ireland is similarly considering such mechanisms.124 There have been no equivalent general measures in Scotland, where the role of the procurator fiscal complicates the relation­ ship between the regulators’ enforcement decisions and prosecutions. On the other hand, a number of measures equivalent to these civil sanctions have been included in recent Scottish legislation on a piecemeal basis.125 The rapid development of civil sanctions south of the border appeared to mark a potentially significant divergence in enforcement mechanisms within the UK. Yet this may prove to be a false start. Recent pronounce­ ments from the UK Government suggest that this new approach does not have the support of some members of the coalition Government that took office in 2010 and that the extension of the enforcement powers of the regulatory bodies may be slowed.126 8. Conclusion The arrival of devolution has been just one of many changes to affect environmental law in the UK in recent decades and it is difficult to sepa­ rate any changes attributable to this alone.127 The introduction in the late 1980s of environmental regulators as separate agencies, distinct from the public bodies that used to be responsible for providing major infrastruc­ ture services as well as regulating their impact,128 brought about major changes in environmental governance. Transparency and public partici­ pation have been growing in significance, accelerated by European initia­ tives on issues such as environmental information and environmental 123 Environmental Civil Sanctions (England) Order 2010, SI 2010/1157; Environmental Civil Sanctions (Wales) Order 2010, SI 2010/1821. 124 DOENI, Consultation on the Environmental Better Regulation White Paper (2011), available at http://www.doeni.gov.uk/index/information/foi/recent-releases/publicationsdetails.htm?docid=8100. 125 E.g. Wildlife and Natural Environment (Scotland) Act 2011 supra, s. 40; Reservoirs (Scotland) Act 2011, ss. 78-85. The extended use of civil sanctions is also discussed in SEPA, Better Environmental Regulation: SEPA’s Change Proposals (2011). 126 “Coalition Delays Civil Sanctions” (2011) 434 ENDS Report 51; “Civil Sanction Rules Intolerable, Says Minister” (2011) 435 ENDS Report 64. More recent indications are that the introduction of civil sanctions is unlikely to be significantly disrupted. 127 S. Bell and D. McGillivray, Environmental Law supra, at 20-34. 128 A process not yet complete in Northern Ireland.



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impact assessment, whilst the arrival of the internet has transformed the way in which public consultations can be carried out and information published. Increasing pressures on the environment and public demand for environmental improvements have led to stronger and more effective controls, whilst within and between sectors greater integration has been seen as essential if progress is to be made.129 Devolution fits in with, rather than adds something wholly new to, these trends. The separate legal systems in Scotland and Northern Ireland and the long years of separate administrative handling of many matters for Scotland, Northern Ireland and to a lesser extent Wales meant that the devolution settlements at the end of last century did not mark the begin­ ning of distinct treatment for different parts of the UK. So far all the authorities have been fairly cautious and keen to ensure the smooth work­ ing of the new arrangements and despite the greater potential for national administrations to go their own way on a range of topics, there are only a few areas where one can point to differences (e.g. on nuclear powers and the climate change targets) that would definitely not have arisen had the pre-devolution position continued. What is new is the greater accountability for the exercise of power to a local, democratic legislature. This means that there is opportunity for debate on the needs and desires of each part of the UK130 and a higher likelihood of solutions being found that fit the overall context of each Nation. Previously the scrutiny in London for distinctly Scottish or Welsh matters was limited, and almost derisory in the case of Northern Ireland.131 Undoubtedly this greater accountability and responsiveness is a step forward. In little over a decade the devolution arrangements have been substantially adjusted for Wales, significantly amended for Northern Ireland and are currently under revision for Scotland, in a more challeng­ ing political context given the pressures from a Nationalist Government to maximise the further transfer of powers. The fact that in all cases what has

129 E.g. the establishment of regulators responsible for a range of environmental media, development of integrated pollution prevention and control, the use of the Water Framework Directive (supra) to bring together the strands of water law and the role of sustainable development in linking environmental concerns with other aspects of society and economy. 130 Except, of course, England.  131 In private conversation one official from Northern Ireland has spoken of the massive culture shock in having elected politicians on hand and vigorously questioning what was being done as opposed to officials simply having to make a formal report to London every so often, which generated no queries or feedback.

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been discussed is an extension of devolved powers, rather than any withdrawal, suggests that the enterprise can be viewed as a success. The greater fragmentation of the law across the UK is a price worth paying for this, even though the result is often simply the same measures appear­ ing in three or four parallel sets of rules rather than the establishment of any distinctly national responses. As in other countries, leadership for environmental protection and, more broadly, sustainable development, is crucial for successful delivery of real outcomes. As much of the UK’s environmental legislation and policy includes a high level of discretion, the status of environmental concerns on the political agenda of any given administration can have a significant impact on the effectiveness of the legislation and policy. To date, with the possible exception of the Welsh Assembly Government, the authorities within the UK have unfortunately failed to use their environmental laws to protect and support long term decision making which takes into account the limits to the Earth’s capital. Instead, in times of economic crisis, environmental concerns have been marginalised and decisions made for short term benefit.132 The environment is one of the subject areas most completely devolved in all cases, yet this has not produced any general differentiation of law or policy. The need to comply with EU legislation is a major constraint on radical divergence, as is the extent of powers reserved for the UK authori­ ties, and it is hardly surprising that broadly similar Nations starting from a broadly similar position and facing broadly similar environmental chal­ lenges are producing broadly similar responses. What we are seeing is a continuation of existing trends and the beginnings of a gradual drift apart as minor differences accumulate. This drift will undoubtedly continue and accelerate and in time more deliberate differences of policy will appear. The current governance arrangements can deliver effective, responsive and accountable environmental management, so long as there is political will to support rather than to thwart this enterprise. Bibliography S. Bell and D. McGillivray, Environmental Law (7th ed.) (Oxford, Oxford University Press – OUP, 2008). N. Burrows, “This Is Scotland’s Parliament – Let Scotland’s Parliament Legislate” 2002 Juridical Review 213–236. 132 A. Ross, “Leadership for Sustainable Development” in A. Ross, Sustainable Develop­ ment Law in the UK: From Rhetoric to Reality? (London, Earthscan, 2011) (forthcoming).



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“Civil Sanction Rules Intolerable, Says Minister” (2011) 435 ENDS Report 64. “Coalition Delays Civil Sanctions” (2011) 434 ENDS Report 51. Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century (2009). DOENI, Consultation on the Environmental Better Regulation White Paper (2011), available at http://www.doeni.gov.uk/index/information/foi/recent-releases/publications-details .htm?docid=8100. R. Hazell (ed.), Constitutional Futures – A History of the Next Ten Years (Oxford, Oxford University Press – OUP, 1999). R. Hazell (ed.), Constitutional Futures Revisited – Britain’s Constitution to 2020 (Basingstoke, Palgrave Macmillan, 2008). R. Hazell and R. Rawlings (eds.), Devolution, Law-Making and the Constitution (Exeter, Imprint Academic, 2005). C. M. G. Himsworth, “Devolution and Its Jurisdictional Asymmetries” (2007) 70 Modern Law Review 31–58. W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (Crayford, Shaw & Sons, 2001). G. Little, “Scottish Devolution and Environmental Law” (2000) 12 Journal of Environmental Law 155. “Low Fines Fail to Deter Breaches, Says SEPA” (2010) 422 ENDS Report 47. K. MacAskill and M. Curran, “Is Holyrood Passing the Buck?” (2005) 50 Journal of the Law Society of Scotland 20. R. Macrory, Regulatory Justice: Making Sanctions Effective (Edinburgh, Scottish Environmental Protection Agency Workshop, 2009). A. Page et al., A Guide to the Scotland Act 1998 (Edinburgh, Butterworths, 1999). K. Morrow, “Worth the Paper that they Are Written on? Human Rights and the Environment in the Law of England and Wales” (2010) 1 Journal of Human Rights and the Environment 66. A. Page and A. Batey, “Scotland’s Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution” (Autumn, 2002) Public Law 501–523. O. Pedersen, “A Bill of Rights, Environmental Rights and the British Constitution” (2011) Public Law 577. R. Rawlings, “Concordats of the Constitution” (2000) 116 Law Quarterly Review 257. C. T. Reid, “Devolution and the Environment” in A. Ross (ed.), Environment and Regulation (Hume Papers on Public Policy, vol. 8 No. 2) (Edinburgh, Edinburgh University Press, 2000). C. T. Reid, “Who Makes Scotland’s Laws? Delegated Legislation under the Devolution Arrangements” (2002) 6 Edinburgh Law Review 380. C. T. Reid, Nature Conservation Law (3rd ed) (Edinburgh, W. Green, 2009). C. T. Reid, “Environmental Legislation of the Scottish Parliament” in H. McQueen (ed.), Miscellany VI (Stair Society, vol.54) (Edinburgh, Stair Society, 2009). C. T. Reid, Climate Law: Scotland (2010), available at http://www.law.ed.ac.uk/bacl/ xviiithinternationalcongressofcomparativelaw.aspx. C. T. Reid, “Environment and Sustainable Development” in E. Sutherland et al. (eds.), Law Making and the Scottish Parliament: The Early Years (Edinburgh, Edinburgh University Press, 2011). C. T. Reid and G. Ruiz-Rico Ruiz, “Scotland and Spain: The Division of Environmental Competences” (2003) 52 International and Comparative Law Quarterly 209–225. Report of the Civil Courts Review (chaired by Lord Gill) (2009) vol. 2, at 28–9, available at http://www.scotcourts.gov.uk/civilcourtsreview/index.asp. A. Ross, “Why Legislate for Sustainable Development?” (2008) 20 Journal of Environmental Law 35–68. A. Ross, “Leadership for Sustainable Development” in A. Ross, Sustainable Development Law in the UK: From Rhetoric to Reality? (London, Earthscan, 2011) (forthcoming).

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A. Ross, “It’s Time to Get Serious – Why Legislation Is Needed to Make Sustainable Development a Reality in the UK” (2010) 2 Sustainability 1101–1127, available at http:// www.mdpi.com/2071-1050/2/4/1101/. A. Ross and H. Nash, “European Union Environmental Law and who Legislates for whom in a Devolved Great Britain” (July, 2009) Public Law 564. A. Ross et al., “Multi-Level Governance – A Study of the Implementation of Environmental Law in Post-Devolution Scotland” (2008) 19 Environmental Law and Management 159–169. A. Ross et al., “The Implementation of EU Environmental Law in Scotland” (2009) 13 Edinburgh Law Review 224. M. Sandford and P. Hetherington, “The Regions at a Crossroads – The Future for Sub National Government in England” in A. Trench (ed.), The Dynamics of Devolution (Exeter, Imprint Academic, 2005). A. Scott, “The Role of Concordats in the New Britain: Taking Subsidiarity Seriously” (2001) 5 Edinburgh Law Review 21. SEPA, Better Environmental Regulation: SEPA’s Change Proposals (2011). S. Tierney, “Giving with One Hand: Scottish Devolution within a Unitary State” (2007) 5 International Journal of Constitutional Law 730. A. Trench (ed.), Devolution and Power in the UK (Manchester, Manchester University Press, 2007). A. Trench (ed.), State of the Nations 2008 (Exeter, Imprint Academic, 2008). A. Trench, “Wales and the Westminster Model” (2010) 63 Parliament Affairs 117. S. Turner, “Transforming Environmental Governance in Northern Ireland” (2006) 18 Journal of Environmental Law 55–87.

PART I D: (REALLY) UNITARY MODELS?

ENVIRONMENTAL GOVERNANCE IN FRANCE Alexandre Boiret1 Introduction When discussing unitary States, France is often given as an example of a centralized political and administrative system.2 Although this is true and the imbalance between “Paris and the French desert”3 is often put forward and criticized by the rest of the territory which requests greater decentralization, this sweeping statement must be tempered when considering environmental law. Two questions come to mind: is environmental protection in France really centralized and, if yes, is that necessarily negative? We will see that the slow but undeniable decentralization process, initiated in the 1960s, is continually less impervious to the environment. Nonetheless, environmental protection remains largely under the scope of the central government and its administration which, despite its shortcomings (lack of transparency, for instance) guarantees its coherence and uniform enforcement. 1. Environmental Protection and the French Constitution The French Constitution does contain principles of environmental protection, although these were only recently included. The current Constitution of the French Fifth Republic was promulgated on 4 October 1958.4 It is therefore not surprising, considering the priorities and issues of the time that it did not initially include any provisions relating to the environment. More surprising, however, is that it was not until 2005 that this situation

1 EHS Consultant for Enhesa, Brussels, Belgium. 2 For instance, in its article on “unitary system”, the Encyclopædia Britannica refers to France as “the classic example of a centralized administrative system.” 3 From the famous eponymous book by the geographer J.-F. Gravier, “Paris et le désert Français” (1947) 1 Le Portulan 414. 4 Although it has been amended twenty-four times since its entry into force (mostly to adapt it to EU law), it should be noted that the Constitution of 4 October 1958 is the second most stable Constitution France has had (no less than fifteen since 1789 – twenty-two counting the ones that never entered into force).

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was remedied by a constitutional amendment which enshrined new environmental rights and principles and tackled the environment in the distribution of powers. These environmental rights and principles were defined in the Constitutional Charter for the Environment, while the environment was inserted in Article 34 of the Constitution which defines the law and its domain. Let us have a look at these two evolutions in the following. 1.1. The Constitutional Charter for the Environment During the 2002 presidential campaign and in the general context of the Johannesburg Earth Summit, Jacques Chirac made the election commitment that he would see to it that a “Charter for the Environment” was integrated into the French Constitution. Following his re-election, he appointed a special commission to draft the Charter and, after a public consultation was held, the Charter was adopted by the National Assembly and the Senate in June 2004. Also, the Preamble to the Constitution was subsequently amended in March 2005 to integrate that, in addition to the Declaration of the Rights of Man and of the Citizen of 1789 and the Preamble to the Constitution of 1946, “the French people solemnly proclaim their attachment to (…) the rights and duties as defined in the Charter for the Environment of 2004.” The Charter contains ten articles, enshrining a right to a healthy and balanced environment and, as a counterpart, a duty to participate in preserving and enhancing the environment. It also establishes a number of general Environmental law principles such as the preventive princi­ ple,  the polluter-pays principle or the more controversial precautionary principle. Finally, it States that public policies have to promote sustainable development by reconciling the protection and enhancement of the environment with economic development and social progress. It grants the public rights regarding access to information and public participation in decision-making. Although no provisions exist in the core of the French Constitution that provide any right to a healthy environment or any duty to protect the environment, and the Charter for the Environment is only referred to in the Preamble, the Constitutional Council (Conseil constitutionnel) considers it to be a part of the so-called “constitutional block” so that it therefore has constitutional value.5 Consequently, it has been enforced by 5 On the “constitutional block”, see Conseil constitutionnel Decision 71–44 DC/1971. The constitutional value of the Charter for the Environment has been expressly recognized in Conseil constitutionnel Decision 2008–564 DC/2008.



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the Constitutional Council, as well as by both judicial and administrative courts. A recent constitutional amendment may have the effect of significantly extending the scope and the effects of the Charter for the Environment. In 2008, a fundamental change was introduced into the Constitution that allowed persons involved in legal proceedings in progress before a court of law to challenge, by way of a plea, the validity of a legislative provision on the ground if they felt that it would infringe on their rights or freedoms guaranteed by the Constitution. The matter may then be referred by the Conseil d’État (Supreme Administrative Court) or by the Cour de Cassation (Supreme Judicial Court) to the Constitutional Council which has to rule within a determined period. Before this change was introduced, new acts could only be referred to the Constitutional Council prior to being promulgated by petition of the President of the Republic, the Prime Minister, the President of the National Assembly or the Senate or sixty members of either house; therefore, this new “application for a priority preliminary ruling on the issue of constitutionality” (Question Préjudicielle de Constitutionnalité, or “QPC”) could be a potential “game changer” by opening constitutional action to environmental NGOs on the basis of the Charter for the Environment. Nonetheless, although the Constitutional Council admitted that the Charter for the Environment could be invoked through this procedure to challenge a legislative provision, it seems so far rather wary of impinging on the power of the legislator because several provisions of the Charter refer to the “conditions provided for by law”.6

6 Conseil constitutionnel Decision 2011–116/2011. The applicant was questioning the compliance with the rights and freedoms guaranteed by the Constitutional Charter for the Environment of an article of the Code of Construction and Housing exempting the creator of a nuisance due to agricultural, industrial, craft, commercial or aviation activities carried out in accordance with the laws and regulations from any obligation to repair damages caused to persons having moved into the area after the existence of the activity causing the nuisance. Following the new QPC procedure, the Cour de cassation seized the Constitutional Council, which used the opportunity to clarify that its ex-post control laws include the Charter for the Environment. The Council held that Art. 1 to 4 of the Charter set out rights and freedoms which can be invoked in the proceedings of a QPC. Nonetheless, if, pursuing Art. 1 and 2, any person is bound by an obligation of vigilance toward environmental damage that could result from their activities, the Council held that it falls under the powers of the legislator to define the conditions under which an action may be brought against a polluter on the basis of this duty of care, as long as the law does not “excessively” restrict the right to do so. Furthermore, because Art. 3 and 4 of the Charter refer to the “conditions provided for by law”, the Council decided that it falls upon the legislator and, within the framework defined by law, administrative authorities to determine the conditions under which each person has to prevent and repair environmental damages he or she has caused. In the case in question, the Constitutional Council held that, although the

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This is a general issue which is even more obvious when dealing with the more politically sensitive matter of the distribution of competences between the central government and territorial communities. 1.2. Distribution of Powers in the Field of the Environment Article 34 of the Constitution lays down an exhaustive list of the matters determined by statute (i.e., regulated by the Parliament), whereas Article 37 provides that “matters other than those coming under the scope of statute law [are] matters for regulation,” that is, are subject to the central executive power and its administration (mostly through decrees, orders and circulars). In other words, any field of activity not expressly attributed to the competence of the legislator by the Constitution lies with the Executive branch. The Constitutional Act of 2005 that introduced the Charter for the Environment has amended Article 34 by including that “statutes shall (…) lay down the basic principles of (…) the preservation of the environment.” Therefore, in practice, environmental framework legislation is passed by the Parliament whereas its implementing provisions are enacted by the central government and administration. Although not extremely clear, this distribution of powers works well in practice because environmental law is a technical field and its detailed implementation requires scientific knowledge and precision which can be better achieved by the administration. The matter of the distribution of competences between the central government and the local governments (referred to in France as “territorial communities”) is more problematic and not merely in the environmental field. The Constitution does not provide a clear allocation of powers, Article 34 simply states that statutes lay down “the basic principles of (…) the self-government of territorial communities, their powers and revenue.” Environmental competences of the different levels of local governments are therefore attributed by the national legislator in various texts. It is necessary to stress that decentralization in France is a top-down process, that is, the substantial powers of local governments are not attributed to them by the French Constitution but by the decision-maker at the central level who, in addition, has broad discretionary powers in that respect due to the Code of Construction and Housing limits the liability of the author of anterior and “lawful” nuisances, it does not prevent fault-based liability and that, consequently, it is does not breach the Charter for the Environment.



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Constitution’s lack of precision. This is also the case in relation to envi­ ronmental protection powers. The following paragraphs detail the fragmentation of the powers of local governments in environmental matters. 2. Principles and Environmental Competences of Local Governments in France Although France is the largest EU Member State by its area (second in population after Germany), it has developed and uninterruptedly maintained since the French Revolution7 a strong tradition of centralization, largely exported into Europe by Napoleon’s First Empire and into the rest of the world by the colonial Third Republic. It is quite revealing that the first Article of the Constitution of 4 October 1958 begins with the statement that France is an “indivisible Republic”.8 Nonetheless, the last few decades have witnessed a new push toward decentralization initiated in the 1960s; however, its real starting point is considered to be the Law of 2 March 1982 on the Rights and Freedoms of Communes, Departments and Regions.9 Decentralization has been enshrined in the Constitution by the 2003 constitutional amendment which added, at the end of the aforementioned Article 1 that “[France] shall be organized on a decentralized basis.”10 With the reform of 1982, the Regions, until then public establishments, were transformed into territorial communities (like the Departments and Communes). The tutelage of the State was suppressed and replaced with the control of the legality of the acts of territorial communities by the Prefect (the central government representative in the Department and Region), whereas some State competences were transferred to the territorial communities. In practice, this was accompanied by a transfer of financial and human means to exercise these new competences, and a specific

7 And, arguably, maintained this strong tradition of centralization before the French Revolution. See, for instance, Tocqueville who, in L’Ancien Régime et la Révolution (The Old Regime and the French Revolution) presents the French Revolution as a continuation and, beyond, a completion of the process of centralization initiated by the French kings. 8 Which echoes with Art. 1, Title II (“Of the division of the kingdom and of the status of citizens”), of the first revolutionary Constitution of 3 September 1791 which already provided that the (then still) kingdom was “one and indivisible”. 9 Loi 213/1982 relative aux droits et libertés des communes, des départements et des régions. 10 Loi constitutionnelle 276/2003 relative à l’organisation décentralisée de la République.

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status was created for all the territorial communities’ staff, forming from then on the “territorial public services”. Three levels of local governments exist in France, which are (from highest to lowest): Regions, Departments and Communes. French territorial communities have their own legal personality, distinct from the State, which entails administrative autonomy (e.g., the ability to file lawsuits). They have their own specific competences and a decision-making power, exerted by elected representatives, as well as their own staff and budget. As was previously mentioned, both their competences and organization are given by the national legislative power pursuant to Article 34 of the Constitution (i.e., they can neither expend their competences nor create new organs). Territorial communities are financially and legally autonomous and no hierarchy or trusteeship exists between a Region, a Depart­ment and a Commune: each territorial institution is independent from one another with its own specific competences. The three types of territorial communities follow the same functioning rules. They are composed of a deliberative assembly, elected at the direct universal suffrage (municipal, departmental or regional council) and an executive power, elected by the deliberative assembly within itself (mayor and deputy mayors, presidents of the departmental and regional councils). In addition to these two organs, each Region has a regional economic, social and environmental council which is a consultative body whose members are members of civil society nominated by the regional prefect. According to the former French Institute for the Environment (IFEN), the share of the contribution of local governments (Communes, Depart­ ments and Regions) in environmental protection expenditure has been steadily increasing since 2000. This share went from 22% to 25% in 2005 and concerns primarily the Communes and their associations (68%; whereas it is 11% for Departments and 8% for Regions).11 An overview of the three-tier system of French local government, with a particular focus on their (limited) environmental competences is provided in the following.

11 Institut français de l’environnement (IFEN), “Les collectivités locales soutiennent l’effort de protection de l’environnement” (2007) 118 La lettre thématique mensuelle de   l’Institut   français   de   l’environnement,   available   at   http://www.statistiques .developpement-durable.gouv.fr/fileadmin/documents/Produits_editoriaux/Publications/ Le_Point_Sur/2007/de118.pdf.



environmental governance in france195 2.1. Communes

Direct successors of the towns and parishes of Middle Ages, the Communes are the smallest and oldest administrative division. Territorial communities have, since the statute of 5 April 1884, proximity competences, such as local social action urbanism, road maintenance and cleaning, and garbage collection. By their very size, Communes have a proximity role. Consequently, regarding the environment, municipal councils have competences in fields of household waste management, water (e.g., drinking supply and wastewater treatment) and fight against air pollution. Additionally, the environment plays a growing role in their competences in matters of land use and building permits. In parallel, mayors have police powers to apply the law and ensure public order, health and safety, which has environmental implications. Communes incur administrative and civil responsibility, while their mayors can be held criminally responsible, even for failure to act (e.g., failure to act to remove an illegal waste dump on a private property can entail both: the administrative responsibility of the Commune and the criminal responsibility of its mayor). Due to the increasing awareness of environmental issues and the correlative development of Environmental law, Communes are increasingly more often confronted with complex situations which require a sharp knowledge of the law and scientific expertise. This fact, together with the “transboundary” nature of pollution, has made clear the need for concerted action and increasing numbers of Communes (especially smaller ones) are pooling their resources.12 The new trend is inter-municipal action (intercommunalité) through associations of Communes, which aims at reducing the French municipal fragmentation while responding more efficiently and cost-effectively to new environmental challenges such as climate change.

12 It should be pointed out that France has an exceptionally high number of Municipalities. On 1 January 2011, there were 36,680 Communes in France (an astonishingly high number, compared to Germany’s 12,226 Gemeinden or Italy’s 8,092 comuni). In practice, this is characterized by the fact that 74.7% of Communes had less than 1,000 inhabitants whereas only 39 (0.1%) had more than 100,000 inhabitants. See more: Institut national de la statistique et des études économiques (Insee), “La population légale des communes” (2009) 1217 Insee Première, available at http://www.insee.fr/fr/themes/ document.asp?ref_id=ip1217.

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A creation of the French Revolution, the Departments became autonomous territorial communities by the statute of 10 August 1871. They have wide competences, such as social action, secondary education, the maintenance and improvement of the public road network, and local development. The central government representative in the Department is the Prefect (préfet), nominated by the Government, who is mainly in charge of running the State services, maintaining security and public order (police competences) and controlling the legality of territorial communities’ decisions. It is widely admitted that from their origins, the Departments have had real success in terms of administrative efficiency. Nonetheless, the fact that they had originally been conceived as relays for centralization at the end of the 18th century brings into question their relevance in the decentralization process. Additionally, the increasing interregional European cooperation has shown the need for larger administrative and economic territorial communities.13 Currently, 96 Metropolitan Departments exist. Apart from the drawing up of waste disposal plans for household and industrial waste, Departments do not have clear-cut competences in environmental matters, which they can mostly impact through the implementation of sustainable development principles in their “social” competences. The core of their action is based on the concept of “sensitive natural habitats” (espaces naturels sensibles) which, in a nutshell, involves their purchase by the Department of lands for environmental purposes (e.g., to ensure the protection of natural habitats, preserve landscapes or flood expansion fields). These areas have to be open to the public and their purchase can be made through the levy of a specific departmental tax for sensitive natural habitats.14 In addition, Departments generally have representatives in sectoral organs and commissions (e.g., in the fields of water, classified insta­ llations). According to some authors, these consultative powers could

13 The Commission for Freeing Up French Growth (or “Attali Commission”), appointed by the French President in 2007 and chaired by Jacques Attali stressed the complexity of the French administration and decentralized organs and pleaded for a two-tier system, going as far as to prescribe the disbandment of Departments. This proposition triggered an uproar and was quickly abandoned. 14 Art. L142(1) and following of the Code de l’urbanisme (Town Planning Code, consolidated version 2012).



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(and should) be a stepping stone toward the devolution of more competences to Departments.15 It should be noted that, through the extensive action of the Prefect, Departments are nonetheless at the heart of the action of the central government in environmental law enforcement (e.g., in matters of “classified installations for the protection of the environment”, which subjects certain industrial facilities which may affect the environment, public health or their neighbourhood to specific operating conditions). 2.3. Regions Jurisdictions for Regional Action were initially created in 1960 and institutionalized by the Decree of 14 March 1964 which appointed regional Prefects assisted by regional Economical Development Commissions (CODER). The Statute of 5 July 1972 established regional public establishments with regional councils as deliberative assemblies advised by Economical and Social Committees. The Law of 2 March 1982 on the Rights and Freedoms of Communes, Departments and Regions established Regions as full-fledged territorial communities, like Departments and Communes. Similar to Departments, although prefectoral institutions were maintained as local agents of the central government, prefectoral tutelage was suppressed. Regions are competent in fields such as territorial planning (amé­ nagement du territoire), professional education, regional economic development, high schools’ infrastructures, and transports. The central government, represented by the prefects of Regions, remains exclusively competent in the fields of defence, justice, foreign affairs and higher education. Twenty-two Metropolitan Regions exist (although it should be noted that Corsica has a derogatory status and as such enjoys more autonomy). Their geographical size and the size of their populations, together with their competences, have made Regions competitive territorial communities at the European scale. Due to the French tradition of centralization and the relative youth of the Regions as decentralized organs, the role of the Regions is still not very developed in the field of environmental action. In addition to the creation of regional natural parks, Regions mostly have financial and planning 15 See, for instance, R. Romi, “Départements et environnement” (2008) 162 JurisClasseur Environnement et Développement durable, LexisNexis.

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competences (e.g., regional air quality plans, industrial waste disposal plans). They also have consultative powers in such fields as classified installations, quarries and water management. In each Region, the regional council is assisted by a regional economic, social and environmental council,16 which is an advisory body made up of representatives from civil society. The increasing awareness and concern for Regions’ environments can also be seen in the so-called “State-Region projects contracts” (Contrats de projets État-région), which are multi-year contracts between the State and the Regions that set projects to be carried out on the regional level and co-financed by the central State and the Region involved.17 The current fifth generation of contracts (2007–2013) demonstrates the growing part played by the environment in regional policy priorities and public investments: for example, the contract with Ile-de-France (the Capital Region) is based on eight major regional cooperation projects, three of which having to do with the environment (“developing agriculture and forestry in a context of sustainable development”, “fighting climate change” and, more horizontally, “addressing environmental challenges”). The Region of Corsica and the five overseas Regions (French Guiana, Martinique, Guadeloupe, Réunion and Mayotte) enjoy more powers. For instance, Article L4433(31) of the Local Authority Code (Code général des collectivités territoriales)18 provides that overseas Regions “define the actions they intend to carry out in the field of the environment and quality of life after consultation or, where appropriate, on a proposal from local authorities and the Council of Culture, Education and the Environment” (an institution specific to overseas Regions). They can also create their own environmental agencies. In addition, they could prefigure future evolutions in ordinary Regions because they are often used to experiment with wider decentralization, although the central government is still reluctant to transfer more powers to the Regions. The fragmentation and general ambiguity of local governments’ environmental competences is one of the biggest issues that can be identified in the French system. This issue has been clarified by the Constitutional Council in one measure, presented in the following. 16 “Environmental” was added in 2010 by the law “Grenelle II”, Loi 788/2010 portant engagement national pour l’environnement (see infra footnote No. 36). 17 For an impression of the scale of these investments (which can involve the transfer of EU funds, such as structural funds, to the Regions), the current seven-year contracts represent an investment of 12.7 billion EUR for the State and 12.9 billion EUR for the Regions. 18 Code général des collectivités territoriales consolidated version 2012.



environmental governance in france199 3. Recent Developments in Self-Government and Action of the Constitutional Council

Pursuant to Article 72 of the Constitution, “in the conditions provided for by statute, [territorial] communities shall be self-governing through elected councils and shall have power to make regulations for matters coming within their jurisdiction.” Therefore, similar to what was already mentioned regarding the new environmental rights and principles set by the Charter for the Environment, if the French Constitution establishes the principle of self-government of territorial communities, this principle will be tempered by the fact that the conditions for implementing it have to be provided for by statute. Nonetheless, two recent constitutional amendments could impact the distribution of competences between the central government and territorial communities. The first one, from 2003, which introduced decentralization in Article 1 also introduced a subsidiarity principle, the effects of which remain to be seen, whereas the new aforementioned QPC from 2008 has already led to new case law. The consequences of these two constitutional amendments are discussed in the following. 3.1. Subsidiarity Principle The Constitutional amendment of 2003 introduced in Article 72 the subsidiarity principle, stating that territorial communities “may take decisions in all matters arising under powers that can best be exercised at their level.” The only issue here is that this “new” principle19 remains merely a principle; one without any additional provisions setting the conditions of its application or even hinting at the repartition of powers between the central government and territorial communities. Therefore, and rather logically, when asked to control the conformity of a law with this provision, the Constitutional Council only agreed to exercise “minimal control”, that is, to declare a law unconstitutional only in the

19 This principle is a cornerstone of Federal systems such as Germany or even the EU. See Art. 5(3) of the Treaty on the European Union: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” Consolidated Version of the Treaty on the European Union (TEU) 2010/C 83/01.

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case of a “manifest error of assessment”.20 Therefore, if the French subsidiarity principle could lead in the future to new constitutional control of the distribution of competences, it is likely that it will have more political implications than real legal consequences. The true (r)evolution lies in the new possibility given to local governments to challenge the constitutionality of acts encroaching on their powers through the QPC procedure. 3.2. The Principle of Self-Government and QPCs The constitutional value of the principle of self-government of territorial communities was first recognized by the Constitutional Council in a decision dating back to 1979.21 Soon after, the Constitutional Council held that fundamental rights are granted by the Constitution not only to natural persons, but also to legal persons,22 be they constituted under private or public law.23 Nonetheless, due to the lack of definition of the principle, it falls upon the Constitutional Council to define on a case-bycase basis its practical implications.24 Additionally, in practice, the principle of self-government of territorial communities has rarely led to laws being struck down as unconstitutional. In the handful of cases in which this has happened, it was more due to procedural matters than to the distribution of powers.25 The principle of self-government of territorial 20 “[It] results from the general nature of the wording used by the constituent power that the choice of the legislator to confer jurisdiction to the Dtate rather than a local authority could be challenged on the basis of this provision, only if it was clear that, given its characteristics and interests involved, this competence could be better exercised by a local authority” (Conseil constitutionnel Decision 2005–516 DC/2005). 21 Conseil constitutionnel Decision 79–104 DC/1979 (“The legislator has not disregarded the principle of separation of powers or the constitutional provisions that implement it or that enshrine the self-government of territorial communities”). 22 Conseil constitutionnel Decision 81–132 DC/1982 (“The principle of equality is no less applicable between legal persons than between natural persons, since legal persons are groups of natural persons, a breach of the principle of equality, the former would necessarily amount to the equivalent of a misunderstanding of equality between the latter”). 23 Conseil constitutionnel Decision 82–138 DC/1982 (fundamental right implicitly recognized for the first time by a territorial community, in this case the Region of Corsica). 24 L. Favoreu and A. Roux, “La libre administration des collectivités territoriales est-elle une liberté fondamentale?” (2002) 12 Cahiers du Conseil constitutionnel 88–92, available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/pdf/conseil -constitutionnel-52098.pdf. 25 By 2002, there had been only four infringement decisions of the Constitutional Council based on a violation of the principle of self-government of territorial communities: Decision 83–168 DC/1984 (the legislator cannot decide that the recruitment of territorial communities civil servants not meeting procedural conditions is deemed as null and void), Decision 92–316 DC/1993 (the legislator cannot impose general and absolute limits on the extension public service agreements to territorial communities), Decision 98–407



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communities appears therefore, in practice, to be more a freedom of organization and operation than a real means to steer legislative action in a direction favourable to local governments.26 It was only a matter of time before local governments used the aforementioned “application for a priority preliminary ruling on the issue of constitutionality” (QPC) introduced by the 2008 constitutional amendment. Among other cases, we can mention a recent decision on public aid for drinking water and sanitation. In this case, the Constitutional Council was seized by the Conseil d’Etat of a QPC raised by the Department of Landes. The question was whether the article of the Local Authority Code prohibiting differentiation of public aid to Communes and associations of local authorities responsible for drinking water or sanitation based on management considerations was in compliance with the rights and freedoms guaranteed by the Constitution (and primarily with the principle of self-government). The Constitutional Council ruled that the contested provision was indeed restricting the principle of self-government of territorial communities (in this case, departments) and repealed the incriminated article.27 Even if it will likely be restricted to the protection of local governments’ freedom to manage their own affairs instead of an actual protection/ extension of the scope of their competences, the QPC procedure for infringements of Article 72 could present local governments with a new way to protect themselves against legislative interference by challenging overreaching national legislation. 4. Environmental Governance in France: Overview, Limits and Challenges By way of concluding thoughts, an overview of the current state of environmental governance in France is presented, following the criteria laid down in the EU White Paper on Governance.28 DC/1999 (the legislator cannot impose hearings of regional councils’ standing committees to be public), and Decision 2000–436 DC/2000 (the legislator can require Communes to create social housing but cannot impose automatic and indiscriminate sanctions if they failed to do so). 26 H. Alcaraz, “Le principe de libre administration des collectivités territoriales dans la jurisprudence constitutionnelle après la révision constitutionnelle du 28 mars 2003” (2009) 3 Revue française de droit administratif 501. 27 Conseil constitutionnel Decision 2011–146 QPC/2011. 28 European Commission, European Governance – A White Paper, COM (2001) 428 final, 25 July 2001.

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alexandre boiret 4.1. Openness

France has a tradition of administrative secrecy. Therefore, the right to information was always understood by French authorities (be they central or decentralized) in a restrictive way and was limited to access of administrative documents under Law No. 753 of 17 July 1978 establishing various measures to improve relations between the administrative authorities, the public and various administrative, social and fiscal provisions.29 Indeed, it is interesting to note that the French Government did not initially consider it necessary to transpose Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment,30 but rather regarded the Law of 17 July 1978 sufficient. Although it eventually, and reluctantly, did so by enacting the Law of 12 April 200031 and the Ordi­ nance of 11 April 2001,32 France was condemned by the European Court of Justice for incomplete or incorrect transposition on the ground that the Law of 17 July 1978, limited to “administrative documents”, had a narrower material scope than that of Directive 90/313, which targeted more widely “information relating to the environment”.33 This “active” right to access information, which requires a person to seek specific information themselves, is now supplemented by a more “passive” right to be informed. This is due to the influence of the Aarhus Convention34 (to which France is a party) and Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information,35 which requires Member States to take the necessary measures to ensure that public authorities disseminate environmental information, particularly regarding policies, plans and

29 Loi 753/1978 portant diverses mesures d’amélioration des relations entre l’administration et le public et diverses dispositions d’ordre administratif, social et fiscal. 30 Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (1990) OJ L158/56. 31 Loi 321/2000 relative aux droits des citoyens dans leurs relations avec les administrations (on citizens’ rights in their relations with government). 32 Ordonnance 321/2001 relative à la transposition de directives communautaires et à la mise en œuvre de certaines dispositions du droit communautaire dans le domaine de l’environnement (on transposing Community directives and implementing Community provisions relating to the environment). 33 ECJ Case C-233/00, Commission v. France. 34 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) 2161 UNTS 447. 35 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (2003) OJ L41/26.



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programmes, data on activities affecting or likely to affect the environment, and environmental impact studies and risk assessments. At the same time, whereas the right to information was a procedural right of legislative value, the Charter for the Environment has enshrined it as a fundamental right of constitutional value. The Charter’s Article 7 provides that “everyone has the right, in the conditions and to the extent provided for by law, to have access to information pertaining to the environment in the possession of public bodies.” It seems nonetheless to fall short of the aforementioned right to be informed from the Aarhus Convention and Directive 2003/4/EC, which could be seen as a sign of the disinclination of the French public authorities to take upon themselves such an active obligation. Additionally, the wide room for manoeuvre left to the legislator, who is in charge of providing not only the procedure to implement this right, but also its limits, may raise concerns about the practical significance and impact of this constitutional right to information. Nonetheless, recent improvements have been made. For instance, Article 52 of the Law 2009-967 of 3 August 2009 relating to the imple­ mentation of the Grenelle Environment36 tasked the State with the development of the production, collection and updating of environmental information as well as its organization to ensure it is accessible by the public. Pursuant to Article 52, a web portal on environmental information was opened in July 2009, which aims to help the user access environmental information held by public authorities and to participate in the public decision-making affecting the environment. The web portal is supplemented by online databases developed by the Ministry of Ecology, Sustainable Development, Transport and Housing (Ministère de l’Écologie, du Développement durable, des Transports et du Logement – MEDDTL) on a sectoral basis, such as natural and technological risks, water, and impact assessments. According to the MEDDTL, the main difficulties that remain are a lack of data in some fields (or, on the contrary, its abundance in other fields) and the multiplicity of data producers. 36 In the summer of 2007, the French President, Nicolas Sarkozy initiated a nation-wide roundtable gathering stakeholders (representatives of national and local government, professional organizations, and NGOs) to define the key points of environmental public policy and sustainable development for the upcoming five years. This Environment Grenelle (Grenelle de l’environnement, from the Grenelle agreements negotiated in May 1968 at the Ministry of Labour, located on the rue de Grenelle in Paris) led to propositions, implemented in two laws: Loi 967/2009 de programmation relative à la mise en œuvre du Grenelle de l’environnement (“Grenelle I”) and Loi 788/2010 supra (“Grenelle II”).

204

alexandre boiret 4.2. Participation

Although it constitutes one of the fundamental principles of environ­ mental law, enshrined in the Constitution through the Charter for the Environment, no general framework for public participation exists in France. The very wording of Article 7 of the Charter for the Environment, which provides that “everyone has the right, in the conditions and to the extent provided for by law, (…) to participate in the public decisionmaking process likely to affect the environment,” can be seen as an indication of the cautiousness of the Members of Parliament because it leaves the legislator wide room to manoeuvre for its implementation (similarly to the aforementioned right to information; these are actually two parts of the same article). The main issue is not the lack of legal basis but, on the contrary, their multiplicity. This would not be a major issue if these procedures were not so different in their modalities (e.g., some are mandatory whereas others are only discretionary), in addition to the fact that they frequently overlap. This issue is further complicated by the fact that these texts are not always specific to the field of the environment but often involve spatial planning and urbanism aspects because these fields are heavily intertwined. This legal complexity and lack of transparency is, to say the least, unfortunate when the main purpose of the legislation is to include laymen. In this context, it is commendable that in September 2010, the President of the Republic tasked a Member of the Parliament to write a report on how to “enhance the modernization of procedures for public decision-making relating to the environment,” to improve inter alia the participation of the public in the elaboration of public decisions affecting the environment.37 Finally, participation can be considered not only with respect to the legislative process, but also with respect to the processes of implementation and enforcement. We can therefore ask ourselves if the rules of standing in France allow individuals and public interest groups to litigate on behalf of the environment.

37 In July 2011, the report was not yet finalized but the conclusions and preliminary report of MEP Bertrand Pancher are accessible at: http://gouvernanceenvironnementale .files.wordpress.com/2011/03/rapport-de-bertrand-pancher-au-prc3a9sident-de-la -rc3a9publique-1c3a8re-propositions-15-avril-20111.pdf. His propositions include but are not limited to the codification of the various texts organizing the right to information and public participation in environmental matters, the generalization of white and green papers, and the improvement and generalization of electronic consultation on regulations that have a direct and significant environmental impact.



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In environmental law, like in any other field of administrative law, a person has standing only insofar as they can demonstrate a legitimate personal interest. This right is interpreted by courts in a limitative way and in practice confined to local matters (e.g., a polluting facility in the immediate vicinity) because environmental issues are often very broad and impact a wide range of individuals. This is nonetheless corrected by the rather liberal standing granted to environmental NGOs. Indeed, NGOs which have been exercising their activities for at least three years and whose main statutory activity aims to protect the environment (including town planning) can apply for approval (agrément) from the administrative authorities (through the Prefect). They gain the status of “approved environmental protection associations” (associations agréées de protection de l’environnement) which grants them a presumption of standing before administrative courts against any administrative decision having a direct impact on its statutory activities, as well as allows them to demand damages in court for infringements of laws and regulations in fields covered by the approval. The administrative judge even went as far as granting legal standing to such associations which have not yet been registered but which challenge decisions injuring the collective interests they defend.38 4.3. Accountability As was demonstrated earlier, the distribution of environmental competences in France is extremely intricate and ultimately not very clear. In the end, average citizens are generally completely unaware of who does what. Although framework laws are enacted by the Parliament, detailed implementation measures are generally elaborated by the central administration and often undergo informal negotiations with stakeholders (more often industrial operators than environmental NGOs) in a total lack of transparency. In addition, even if Government and Parliament Members are accountable, at least politically, the same cannot be said of anonymous civil servants. Obviously, more accountability exists at the local level (with the correlative increased risk of lobbying), but the environmental competences of local governments are either too limited or too shared for this accountability to really have an impact.

38 Conseil d’Etat 61310/1969.

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alexandre boiret 4.4. Effectiveness

The issue of the effectiveness of environmental law is a tricky one. What should be understood by effectiveness and on what criteria should it be ranked? The first, most obvious question which comes to mind is: does the French repartition of powers between the levels of government allow for a satisfactory level of environmental protection? This is still highly subjective and controversial because Environmental law can always be argued to be insufficiently ambitious or insufficiently protective. Nonetheless, it is fair to say that France has not only met the general level of environmental protection found in the European Union, but has also, as was previously mentioned, demonstrated a rather proactive attitude through the Environment Grenelle. Some of the environmental protection NGOs question the effectiveness of the French environmental policy. Although Governments should always strive for more effectiveness, I believe that the relative lack of decentralization in France favours effectiveness by allowing for strong governmental policies. These policies may be too impervious to local specificities but, conversely, this imperviousness probably shields them from petty negotiations and particular interests. Most of all, centralization allows for environmental legislation which is unified. 4.5. Coherence One could say that the French system has the strengths of its weaknesses. Indeed, the upside of its strong centralization (which prevents diversity), is that French environmental law is relatively coherent. The traditional policy-making process follows a classic top-down approach (even the Environment Grenelle was initiated and supervised by the central government), and so do enforcements mechanisms. Indeed, apart from the few previously mentioned domains devolved to local governments, most of local enforcement action remains the responsibility of specific nationwide agencies or, most of the time, the prefect. The function of the prefect, created by Napoleon Bonaparte in 1800 when he was still only First Consul, is the cornerstone of French centralization. It is the reason Departments are so central in the implementation of environmental law, although their autonomous powers in this field are very limited. Prefects enforce national law at the local level, guaranteeing the unity of the system and limiting its fragmentation while operating at the local level (a good example can be provided by the legal regime of classified installations, already mentioned, which has been widely adopted in other countries and inspired Council



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Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, or “Seveso Directive”).39 5. Conclusion Overall, despite its aforementioned shortcomings, the French system is rather well-performing and effective. Its major flaw could be seen in its extreme centralization and subsequent lack of transparency and public participation, but these flaws also guarantee its coherence and effectiveness. Nonetheless, although it is a slow process, there is a clear tendency in France for decentralization under the double impulse of constitutional/ legislative devolution on one hand and the local governments’ impulse on the other hand. Although the central government is still cautious and rather reluctant at times to transfer some of its prerogatives to territorial communities, the latter are progressively increasing their action in the field of environment, mostly through cooperation processes and their funding capacities. This, however, brings about the delicate question of devolution and environmental protection. Can local governments really bring some added value to environmental protection without weakening too much the whole system? There is probably a delicate balance to be struck, but apart from local issues (e.g., waste management), it is undeniable that environmental challenges are of a global nature (e.g., climate change) and therefore can be better addressed at the central level. Indeed, whereas the general tendency is to regulate at the supranational level (both within the EU and internationally) and the French Government initiated the idea of a World Environment Organization, the push for more environmental decentralization seems to be going against the current trend. After all, the environment is impervious to the human concept of boundaries, and it is possible that regulation at the regional level could cause conflict and ultimately be counterproductive. Before advocating for stronger decentralization, one should ask whether the introduction of more local democracy and participation in environmental matters would not fall short of its main objective by raising the costs of environmental protection and bringing only more confusion.

39 Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1997) OJ L10/13.

208

alexandre boiret Bibliography

H. Alcaraz, “Le principe de libre administration des collectivités territoriales dans la jurisprudence constitutionnelle après la révision constitutionnelle du 28 mars 2003” (2009) 3 Revue française de droit administratif 501. A. de Tocqueville, L’Ancien régime et la Révolution (Paris, Les Éditions Gallimard, 1952) (original edition 1856). L. Favoreu and A. Roux, “La libre administration des collectivités territoriales est-elle une liberté fondamentale?” (2002) 12 Cahiers du Conseil constitutionnel 88–92, available at   http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/pdf/ conseil-constitutionnel-52098.pdf. J.-F. Gravier, “Paris et le désert Français” (1947) 1 Le Portulan 414. B. Pancher, La concertation au service de la démocratie environnementale : pour une définition d’un cadre general de la gouvernance environnementale, Premières pistes de réflexions, Rapport au Président de la République Française (2011), available at: http:// gouvernanceenvironnementale.files.wordpress.com/2011/03/rapport-de-bertrand -pancher-au-prc3a9sident-de-la-rc3a9publique-1c3a8re-propositions-15-avril-20111.pdf. R. Romi, “Départements et environnement” (2008) 162 JurisClasseur Environnement et Développement durable, LexisNexis. Institut français de l’environnement (IFEN), “Les collectivités locales soutiennent l’effort de protection de l’environnement” (2007) 118 La lettre thématique mensuelle de l’Institut français de l’environnement, available at http://www.statistiques.developpement -durable.gouv.fr/fileadmin/documents/Produits_editoriaux/Publications/Le_Point _Sur/2007/de118.pdf. Institut national de la statistique et des études économiques (Insee), “La population légale des communes” (2009) 1217 Insee Première, available at http://www.insee.fr/fr/themes/ document.asp?ref_id=ip1217.

ENVIRONMENTAL GOVERNANCE IN POLAND Barbara Iwanska, Paweł Czepiel and Marcin Stoczkiewcz1 Introduction In this study, the authors present the main issues involved in the legal aspects of environmental protection in Poland. Environment constitutes one of the basic values protected by the Constitution of the Republic of Poland. Pursuant to the Constitution, the environment is a common good and all public administration bodies as well as society should be involved in the obligation to protect it. These provisions and the unitary character of the Polish State determine the current model of environmental protection administration as well as the manner in which the state’s constitutional obligation to protect the environment and constituent’s obligations to care for its quality are fulfilled. 1. Legal Aspects of State Organisation and Functioning in the Constitution of the Republic of Poland The Constitution2 is the supreme legal act of the Republic of Poland and its provisions are applied directly, unless it stipulates otherwise (Article 8). Chapter I specifies the most important system rules for the State. Pursuant to these rules, the Republic of Poland is a unitary State (Article 3). The Constitution also requires that public administration is decentralised and that local government is introduced. Pursuant to Article 15 of the Constitution: “(1) The territorial system of the Republic of Poland shall ensure the decentralization of public power”; “(2) The basic territorial division of the State shall be determined by statute, allowing for the social, economic and cultural ties which ensure to the territorial units the capacity to perform their public duties.”

1 Researchers, Department of Environmental Protection Law, Jagiellonian University (Uniwersytet Jagielloński), Krakow, Poland. 2 Constitution of the Republic of Poland of 2 April 1997 (hereinafter referred to as the Constitution).

210 barbara iwanska, paweł czepiel and marcin stoczkiewcz Therefore, public power decentralisation involves “introduction, for the needs of State management, of territorial units with their own bodies in order to provide the society with better access to public authorities.”3 In addition, Article 16 of the Constitution stipulates that: “(1) The inhabitants of the units of basic territorial division shall form a selfgoverning community in accordance with law”; “(2) Local government shall participate in the exercise of public power. The substantial part of public duties which local government is empowered to discharge by statute shall be done in its own name and under its own responsibility.”

These provisions require that local governments are established and that a “substantial part of public tasks” is directed to them.4 This requirement ensues from the fact that people inhabiting respective territorial units are regarded as a “community of inhabitants” (in the legal sense). Territorial units and their bodies – regardless of how they are established, what their competences are and to what extent central authorities can interfere in their activities – “together with the central bodies will always create a unified system of bodies of the same State;”5 therefore, Poland constitutes a unitary State. 2. Constitutional Basis for Environmental Protection Pursuant to Article 5 of the Constitution, the Republic of Poland “shall ensure the protection of the natural environment pursuant to the principles of sustainable development.” This task is elaborated in further provisions of the Constitution that relate directly to the environment, namely: a) Article 68(4) “Public authorities shall (…) prevent any negative health consequences of degradation of the environment”; b) Article 74 “(1) Public authorities shall pursue policies ensuring the ecological security of current and future generations”, “(2) Protection of the environment shall be the duty of public authorities”, “(3)Everyone shall have the right to be informed on the quality of the environment and its protection”, “(4)Public authorities shall support the activities of citizens to protect and improve the quality of the environment”;

3 P. Sarnecki, “Ogólna charakterystyka państwowości w Konstytucji Rzeczypospolitej Polskiej” in P. Sarnecki (ed.), Prawo konstytucyjne Rzeczypospolitej Polskiej (Warsaw, Wydawnictwo C. H. Beck, 2008), at 78. 4 Ibidem at 78. 5 Ibidem at 78.



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c) Article 86 “Everyone shall care for the quality of the environment and shall be held responsible for causing its degradation. The principles of such responsibility shall be specified by statute”; d) Article 31(3), which allows for the limitation of constitutional freedoms and rights of people and citizens, for example, to protect the natural environment, provided that such limitation is imposed only by statute and only in accordance with the proportionality principle. These legislative solutions refer to the constitutional and system tradition that treats “the environment” as an objective asset constituting a “common good”, (collective good - res omnium communis). Its use and protection should be widely available, i.e. for everyone, provided that the sustainable development principle and the requirements of inter-generation environmental ethics this principle determines are respected.6

Pursuant to the Constitution, all types of public authority (legislative, executive and judicial) should participate in fulfilling the obligation to protect the environment. They should act in concert and within the limits defined by constitutional rules (a democratic State ruled by law, principle of legality, rule of law, power separation and balance), exercising their legally defined competences.7 3. Constitutional Responsibility for Environmental Legislation The Constitution approves the “multi-layered structure of regulations binding within the Republic of Poland” – “apart from the norms (provisions) introduced by the national legislator, there are also regulations (provisions) created outside the system of national (Polish) legislative bodies”8 (such as acts of international legislation, including acts issued by international organisations). In the Republic of Poland, statutes constitute the basic form of legislative activity and legislative power belongs to the Sejm and the Senate. Due to the principle of “status exclusivity”, most environmental protection 6 A. Wasilewski, “Dynamika zmian i kontynuacja we współczesnym prawie administracyjnym wyzwaniem dla doktryny prawa (na przykładzie prawa o ochronie środowiska)” in J. Supernat (ed.), Między tradycją a przyszłością w nauce prawa administracyjnego. Księga jubileuszowa dedykowana Profesorowi Janowi Bociowi (Wrocław, Wydawnictwo Uniwer­ sytetu Wrocławskiego, 2009), at 771. 7 Trybunał Konstytucyjny w Polsce Judgment Kp 2/2009 (the Constitutional Tribunal is hereafter referred to as TK). 8 TK Judgement K 18/04.

212 barbara iwanska, paweł czepiel and marcin stoczkiewcz provisions are included in the statutes that, to a large extent, constitute also an instrument transposing the EU legislation to the domestic legal regime. In consequence, the scope of the Parliament’s regulatory freedom has been significantly reduced.9 Provisions introduced in statutes are elaborated in universally binding regulations (executive acts), issued by the bodies defined in the Constitution, on the basis of a specific authorisation in the relevant statute and with the purpose of implementing it. In addition, environmental protection provisions are included in the “acts of local law”, which constitute commonly applicable law only in the area that falls within the jurisdiction of the bodies that issued these acts. They are created by local government bodies (Gmina councils, Powiat councils, Voivodship Parliaments)10 and territorial bodies of Government administration (such as a Voivod, who is the representative of the Council of Ministers in a Voivodship)11 solely on the basis of and within the scope of the competences defined in the statute. 4. Constitutional Allocation of Competences in the Field of the Environment Following the constitutional principle of a unitary State and decentral­ isation of public authority through participation of territorial selfgovernment in its execution, environmental protection legislation is comprised of Government administration (central and territorial) and local self-government administration. Both “function within the same State (…), belong to the executive power, (…) respect the same law, (…) are authorised to establish law, (…) hold the same attributes of power, (… and) function in separate structures, one of which is hierarchical and the other one decentralised.”12 Pursuant to Article 10(2) of the Constitution (executive power shall be vested in the President of the Republic of Poland and the Council of Ministers) and Chapter VI of the Constitution (Council of Ministers and   9 P. Czarny, “Sejm i Senat” in P. Sarnecki (ed.), Prawo konstytucyjne Rzeczypospolitej Polskiej supra, at 271. 10 Gmina (a Municipality) constitutes the basic local government unit. Powiat (a County) and samorząd województwa (self-government of Voivodship) are other units of local and regional government. 11 In principle, both Government administration (territorial) and local self-government administration function exclusively at the Voivodship level. Only local self-government administration exists at the Gmina (Municipality) level and it execute public duties as their direct responsibilities as well as those transferred to them by Government. 12 A. Błaś and J. Boć, “Ustrój administracji publicznej” in E. J. Nowacka (ed.), Ustrój administracji publicznej (Warsaw, Wydawnictwo Prawnicze PWN, 1999), at 20–1.



environmental governance in poland213

Government administration), central Government administration bodies include: the Council of Ministers, the President of the Council of Ministers and ministers managing respective areas of Government administration (so-called principal Government administration bodies). Voivods represent the Government in respective Voivodships and belong to the system of territorial government administration. Also, numerous bodies exist within Government administration (both central and territorial) which are not regulated by the Constitution. They are established by means of a statute and include: bodies of central Government administration whose territorial jurisdiction covers the whole country and bodies of territorial Government administration whose jurisdiction covers a relevant Voivodship or an area reaching beyond the areas of the Voivodship. The latter constitute Government administration that can be either combined or non-combined with the office of the Voivod. Non-combined bodies are subordinated to a relevant minister or central Government administration body. They are established due to the countrywide character of their tasks or because the scope of their activities exceeds one Voivodship. Following the constitutional principles of subsidiarity and decentral­ isation of public authority through participation of territorial selfgovernment in its execution, the legislator guarantees local governments (Gmina, Powiat and Voivodship governments) the right to participate in the execution of public administration functions, including environmental protection administration. Each local government fulfils a large part of its public tasks (defined by means of a statute) independently (“on its own behalf and for its own responsibility”) and in accordance with the following principles: presumption of a local government jurisdiction (the local government performs all public tasks that the Constitution or a statute does not designate to other public authority bodies) and presumption of Gmina competences (as the basic unit of local government a Gmina performs all the tasks of local government, unless they are restricted to other units, that is, Powiat or Voivodship government). Within these limits, local government units fulfil public tasks on a local scale.13 5. Constitutional Allocation of Competences in the Judicial Decisions of the Constitutional Tribunal When verifying the constitutionality of legislative solutions in the distribution of tasks and competences, the Constitutional Tribunal refers inter 13 TK Judgment K 23/2005.

214 barbara iwanska, paweł czepiel and marcin stoczkiewcz alia to the constitutional principle of public authority decentralisation through the participation of a local government in its execution and Article 5 of the Constitution, which stipulates that the Republic of Poland has to guarantee environmental protection pursuant to the principle of sustainable development. In this context, it is worthwhile to refer to those decisions in which the Constitutional Tribunal: – defines constitutional limits to public authority decentralisation through participation of territorial self-government in its execution that result from:14 “the principle of a unitary State; in this context decentralisation of power does not exclude such system solutions that shift certain tasks from the competence of local bodies to other public authority bodies;” “the principle stating that the Republic of Poland constitutes a common good of all its citizens, which refers to the necessity to maintain a balance between needs and interests of a local character, reflected in the competences granted to local communities, and needs and interests of a supra-local character;” “the right of citizens to good administration, which may require transferring responsibility for public matters to public authority bodies other than the bodies that are the closest to citizens.”

– rejects an absolute interpretation of the principle of a local government’s participation in the execution of power, “i.e. interpretation that allows a local government to act everywhere it thinks suitable provided that the issue refers to local matters.” The Constitutional Tribunal has explained that “if matters with a local scope are of a country-wide character (supra-local), local (territorial self-government units) and State interests have to be cautiously considered.” Therefore, the legislator may reach a conclusion that “due to the matter’s importance and its country-wide character, some problems (e.g. environmental protection) should fall within the competence of Government administration units so as to enable the implementation of a uniform State policy in this area;”15 at the same time, the Constitutional Tribunal stressed that “there is no contradiction nor competition, nor any need to choose between “satisfying the needs of local communities” (i.e., the needs of people living in a particular area of Poland) and implementing the tasks of central administration bodies in that area. The principle stating that Poland is a democratic State ruled by law and the requirement to treat the Republic of Poland as a 14 TK Judgment K 24/2002. 15 TK Judgment K 23/2005 supra.



environmental governance in poland215 common good of all its citizens mean that tasks falling within the competence of central State administration should also contribute to the satisfaction of social needs,”16

as well as local needs; – stresses that “Government administration and local governments constitute components of the State understood as a whole;” therefore, even if certain matters fall within the scope of local administration bodies, and not territorial governmental administration bodies, this does not “absolve the State from the responsibility” to protect the environment in Poland.17 6. Constitutional Basis for Cooperation in Environmental Protection The constitutional basis for cooperation between public bodies (including public administration) in the area of environmental protection is included in the Preamble to the Constitution. The legislator assumed that the Constitution is established as “the basic law for the State, based on respect for freedom and justice, cooperation between public authorities, social dialogue as well as on the principle of subsidiarity that strengthens the powers of citizens and their communities.” It can also be inferred from the “coincidence of objectives” (here environmental protection objectives), which, “reflecting the idea of cooperation between public bodies, results from the fundamental rule, expressed in Article 1 of the Constitution, that the Republic of Poland constitutes a common good of all its citizens.”18 The concept of cooperation also extends into society. In the context of the constitutional provisions, we may even speak about the constitutional concept of cooperation in the area of environmental protection between the State and society.19 If the Constitution obliges public authorities to protect the environment and if each citizen has a constitutional responsibility to care for environment, then both sides are constitutionally obliged to cooperate in this area.20 Moreover, if public authorities are obliged to 16 Ibidem. 17 TK Judgment Kp 2/2009 supra. 18 TK Judgment Kpt 2/2008. 19 B. Iwańska, “Co-operation in GMO-Matters in Polish Law” in L. Krämer (ed.), Recht und Um-Welt. Essays in Honour of Prof. Dr. Gerd Winter (Groningen, Europa Law Publishing, 2003), at 359. 20 A. Wasilewski, “Uwagi o projekcie ustawy o ochronie środowiska z dnia 17 września 1999r” (2000) 1 Przegląd Legislacyjny 116–125, at 122.

216 barbara iwanska, paweł czepiel and marcin stoczkiewcz support citizens in their environmental protection activities and if each person has a right to access information about the environment and its protection, this provides a basis for a constitutional guarantee of active public participation in environmental protection matters.21 7. Environmental Protection in Ordinary Legislation Acts of ordinary legislation concerned with environmental protection can be divided into acts of general law and acts concerned with special matters. The Act of Environmental Protection Law (EPL Act)22 constitutes the basic act in the area of environmental protection. Its provisions: – Introduce into the legislative system basic principles of environmental protection legislation (prevention, precaution, polluter pay, cooperation, comprehensiveness) and refer to the requirement of an integrated approach toward environmental protection issues and to the principle of sustainable development; – Provide legal definitions for terms connected with environmental protection, including the most important ones, for example, “the environment”, understood as all natural components which are also transformed by human activity, in particular, land surface, minerals, waters, air, landscape, climate and other elements of biological diversity as well as their mutual impact and “environmental protection”, understood as initiation or abandonment of activities to preserve or restore the natural balance, in particular: a) rational management of the environment and its resources pursuant to the principle of sustainable development, b) pollution prevention, c) restoration of natural elements to their proper condition; – Specify the competences of respective bodies in environmental protection administration; –  Define the rules for the protection of respective environmental resources; – Regulate pollution prevention issues; – Introduce regulations to be applied in serious emergencies; – Regulate issues related to financial measures; – Define legal liability in environmental protection matters.

21 B. Iwańska, “Co-operation in GMO-Matters in Polish Law” supra, at 358–9. 22 Prawo ochrony środowiska 2001 (further referred to as the EPL Act).



environmental governance in poland217

As was previously stated, the EPL Act constitutes the key act in the domestic legislative system in the area of environmental protection. This system also includes acts of a more detailed character, which refer either to the protection of respective environmental resources (e.g., Nature  Conser­ vation Act23 or Water Law Act)24 or protection against certain threats (e.g., Waste Management Act).25 8. Mechanisms for the Application and Enforcement of Environmental Protection Law Public administration tasks in the area of environmental protection can be classified into the following categories: organisation, restriction and obligation, control and supervision, execution, tasks performed on behalf of local communities, substitution and environmental management.26 They are implemented by means of various legal measures, such as: planning, control, indirect impact (including financial and economic) and legal liability measures. They define the limits to acceptable use of the environment and its respective components, either positively, that is, by specifying an acceptable manner of environmental use or negatively, that is, by prohibiting a particular environmental use or by specifying sanctions or other penalties for a particular environmental use. Due to the  Europeanization and globalization of environmental protection law and the need for effective environmental protection, new measures are introduced to the domestic environmental protection legislative system or the existing ones are modified (e.g., EMAS, environmental impact assessment).27 Planning acts refer to predicted future actions of public administration, which means that they determine and condition these actions and specify their scope and the circumstances in which they should be initiated.28 Environmental protection policy includes an obligation to develop various strategic documents which vary in their objective and subjective scope, territorial and time range as well as effects. The decisions made in 23 Ustawa o ochronie przyrody 2004. 24 Prawo wodne 2001 (further referred to as the WL Act). 25 Ustawy o odpadach 2001. 26 M. Górski (ed.), Prawo ochrony środowiska (Warsaw, Wolters Kluwer, 2009), at 82. 27 A. Wasilewski, “Dynamika zmian i kontynuacja we współczesnym prawie administracyjnym wyzwaniem dla doktryny prawa (na przykładzie prawa o ochronie środowiska)” supra, at 773–4. 28 J. Zimmermann, Prawo administracyjne (Warsaw, Oficyna, 2010), at 78.

218 barbara iwanska, paweł czepiel and marcin stoczkiewcz general plans have to be included in plans of a more detailed nature. The aim of this legal requirement is to preserve cohesion between various plans of a similar objective scope. To protect the environment and ensure transparency of public administration actions during the development of planning documents, the legislator has introduced measures of different strategic environmental impact assessment and public participation in adoption of strategic documents. The aim of the measures of preliminary control is to preventively control any intended environmental use and to restrict access to environmental values.29 They are usually implemented by means of administrative decisions and include: – emission permits, aimed first and foremost at preventing pollution and restricting the direct or indirect anthropogenic discharge of substances or energy to the air, water, soil and the ground; – decisions on environmental conditions for approval of projects that may have a considerable environmental impact, which are binding for the bodies issuing subsequent investment decisions required by law; – investment decisions, issued as, for example, location decisions, building permits or use permits for built features; – other decisions related to various uses of the environment or its resources, for example, decisions restricting waste management; – notification, that is, the obligation to inform public administration bodies about an intention to start a particular activity that is not restricted by permits. The subject that has submitted the notification can start the planned activity unless a relevant body opposes it within a period defined by law. Financial measures in environmental protection law occur in various forms (fees, increased fees, product fees, deposit fees, financial penalties, taxes and other public contributions and various forms of subsidising, for example, ordinary subsidies and tradable emission allowances). They play various roles, not only connected with stimulation or redistribution, but also with repression (increased fees punish the lack of a required decision and administrative financial penalties penalize the violation of the requirements specified in a decision). Other sanction fees and financial penalties are also imposed by public authorities for actions that violate the requirements of the environmental protection legislation, sometimes 29 J. Rotko, Instrumenty administracyjnoprawnej ochrony środowiska w RFN (Wrocław, Wydawnictwo Prawo Ochrony Środowiska, 1998), at 144.



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referred to as “administrative torts”30 (e.g., financial penalties for violation of obligations in trans-border waste shipment). In general, we speak about environmental law enforcement not only when its provisions are violated, but also when law is respected but public bodies have to intervene due to changes in relevant legislation or the state of the environment. The provisions regulating legal liability play an especially important role in the enforcement of environmental legislation. In the area of environmental protection, legal liability includes administrative,31 civil32 and criminal33 liability. Each of these types of liability fulfils a different role and uses different methods and legal measures. They do not exclude each other; on the contrary, they complement one another.34 9. Public Rights in the Environmental Sector If the State and public are to cooperate in environmental protection matters, respective participants of this dialogue must have at their disposal

30 W. Radecki, Odpowiedzialność prawna w ochronie środowiska (Warsaw, Difin, 2002), at 73–9, 236–266. 31 The main role for administrative liability, which aimed at ensuring an acceptable state of the environment, is applied when the state of the environment is actually deteriorating or when a risk of such deterioration exists: EPL and Ustawa o zapobieganiu szkodom w środowisku i ich naprawie 2007 (act on the prevention and remediation of environmental damage). Other provisions on administrative liability are included in various sectoral regulations (the GMO act, the Waste Law act). Regarding administrative liability in environmental law, see: M. Górski, Odpowiedzialność administracyjno-prawna w ochronie środowiska – zagadnienia podstawowe (Poznań, Futura, 2007); W. Radecki, Odpowiedzialność prawna w ochronie środowiska supra. 32 The general rules of Civil Code (1964), which concern traditional damage, are developed and modified in environmental regulations (e.g., EPL, GMO act, Nuclear Law act), which refer to situations in which damage occurs (not only traditional, but also environmental) due to defined environmental impacts, even legal ones. About civil liability in environmental law see: W. Radecki, Odpowiedzialność prawna w ochronie środowiska supra; A. Wasilewski, “Actio negatora jako instrument prawny ochrony środowiska (w świetle prawa polskiego)” in S. Grodziski et al. (eds.), Vetera notis augere. Studia i prace dedykowane Profesorowi Wacławowi Uruszczakowi, vol. II (Krakow, Wydawnictwo Uniwersytetu Jagiellońskiego, 2010), at 1145. 33 In the context of criminal liability in environmental legislation, one can apply the provisions of the Penal Code (1997), which defines offences against the environment, or the provisions of the EPL Act, which contains a separate chapter on criminal liability for environmental offences, as well as the provisions of other acts concerning special matters (e.g., the Water Law Act, the Natural Conservation Act or the Waste Management Act contain such provisions). 34 Naczelny Sąd Administracyjny (Supreme Administrative Court) Judgement II OSK 1357/2008.

220 barbara iwanska, paweł czepiel and marcin stoczkiewcz proper legal measures to act, adjusted to the role they are to play.35 The public has been legally guaranteed access to information, participation in proceedings and access to court. The Act on access to public information (2001), which is a general law, and other more specific regulations (especially the Act on access to information about the environment and its protection, public participation in environmental matters and environmental impact assessments)36 realize the constitutional common right of access to public information, including information on the environment and its protection. Their legal guarantees of access to information on the environment and its protection, through specification of “who and from whom can demand what and within what procedure” are further modified to enable public involvement in the formulation of environmental policy and legislation at respective territorial levels and public participation in the decision-making processes. Pursuant to Article 5 of the Act on access to information about the environment, “everyone has a right to participate, under the conditions specified in the act, in procedures requiring public participation.” Such procedures include inter alia: the development and adoption of specific strategic documents that refer to environmental matters either directly (national environmental policy, river basin management plans) or indirectly (energy policy) that are approved at the central level (national environmental policy) or at the regional level (Voivodship waste management plans). Public involvement is realised through a common right to submit comments and motions and guaranteed by the obligation on the part of the public authority to: a) inform the public about the start of work on a draft document regarding its subject and scope, the opportunity to access the relevant documents and the opportunity to submit comments and motions about the draft document and about a procedure regarding transborder environmental impact, if such a procedure has been initiated, within a specified deadline of at least 21 days to the body that is responsible for addressing these comments and motions; b) consider submitted comments and motions; c) inform the public about the adoption of the document as well as provide the opportunity to become familiar with the document and its justification (the latter should include information on 35 B. Iwańska, “Co-operation in GMO-Matters in Polish Law” supra, at 359. 36 Ustawa o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko 2008 (hereafter referred to as the Act on access to information about environment).



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how and to what extent any submitted comments and motions have been considered). To describe how public participation in the decision-making processes is implemented, it is necessary to refer to three categories of administrative procedures. The first category covers proceedings based on general public participation rules, regulated by the Code of Administrative Procedure (CAP)37 (regular administrative proceedings). Pursuant to Article 31 of the CAP, social organisations (including environmental ones) can participate in such proceedings with the rights of a party if: a) the case concerns the rights or duties of another person and not the rights or duties of a social organisation; in the latter case, it could act as a party; b) the case has a direct relationship with the statutory objectives of the social organisation; c) public interest justifies the participation of the social organisation. Admitting a social organisation to participate in proceedings requires the approval of the competent body conducting the proceedings. A negative decision is subject to appeal (administrative review procedure) and then it could be subject to a complaint to the administrative court. The two remaining categories cover proceedings for which special solutions have been applied to restrict or broaden public participation possibilities in comparison with the rules stipulated in the CAP. The second category covers administrative proceedings in which the public right to participate has been expressis verbis excluded (e.g., the issue of some building permits, the issue of some environmental permits). The third category covers administrative proceedings on environmental protection matters – qualified in legal terms as proceedings with public participation – in which the right to participate is guaranteed in the broadest scope. Anyone can participate in such a procedure. Participation is realised through the right to submit comments and motions and guaranteed by the list of obligations of the relevant body. Moreover, environmental organisations have been granted special rights within this category of proceedings (proceedings with public participation). First, if, referring to their statutory aims, they apply for participation in such a procedure; they will participate in it with the rights of a party. Second, they can file an appeal against the decision issued in this type of proceeding. They can also file a complaint to an administrative court if justified by the organisation’s statutory aims and if the organisation did not participate in the “proceedings with public participation” conducted by the body of first or 37 Kodeks postępowania administracyjnego 1960.

222 barbara iwanska, paweł czepiel and marcin stoczkiewcz second instance, respectively. These provisions provide organisations with a special procedural position with regard to administrative bodies and administrative courts. Only public interest groups can legitimately litigate on behalf of the environment and their suits should be treated as part of an enforcement mechanism serving the environment. Environmental organisations (i.e., social organisations with a statutory aim of environmental protection, including foundations) have been granted the right to initiate judicial control over administrative bodies’ actions or failures to act – they can file a complaint to an administrative court regarding individual decisions issued by these bodies in administrative procedures. The capacity of environmental organisations is not restricted with any substantial prerequisites. The procedural rights of environmental organisations depend on the type of administrative procedure in which the decision that is appealed has been issued. In regular administrative proceedings, complaints can be filed by social organisations (including environmental ones), within the scope of their statutory activities, in cases referring to the legal interests of other people provided that the organisation has participated in the relevant administrative proceedings. If the decision has been issued in special administrative proceedings, that is, proceedings with public participation, an environmental organisation can file a complaint to an administrative court as long as it is justified by its statutory aims, even if the organisation has not participated in the original proceedings. This complaint can be the organisation’s first act of legal procedure. Environmental organisations have also been granted special rights in civil courts, although their actual importance should not be overstated. Under certain circumstances specified in the legislation, environmental organisations can submit preventive or compensatory claims if, due to some environmental impact, damage to the environment (understood as a common good) or the threat of such damage occurs. Therefore, in connection with these claims, environmental organisations have been granted special rights to access information that allows them to prove the liability of polluters. 10. Organisation of the Public Administration System in Environmental Matters 10.1. Public Administration Bodies in the Area of Environmental Protection “Public administration bodies” include bodies that constitute a separate part of the public administration system, are established on the basis of



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law and in a manner provided for by law, act on the behalf and responsibility of the State and form a separate subject of public authority within the State. The organisation of environmental protection in Poland reflects, on the one hand, general rules according to which public administration is organised. On the other hand, it displays certain special features that are characteristic only of environmental protection tasks. The general organisational model of public administration is comprised of Government administration and local government administration. The  following  types  of  bodies  function  within  Government  adminis­ tration: – at the countrywide level: (a) principal bodies of Government administration and (b) central bodies of Government administration; – at the territorial level: (c) combined bodies of Government administration and (d) non-combined bodies of Government administration. Principal bodies of Government administration include bodies that are supreme to other Government administration bodies and whose territorial jurisdictions cover the whole country. They include the Council of Ministers and the bodies that are its members,38 that is, the Council of Ministers, the President of the Council of Ministers and ministers managing respective divisions of Government administration. The Minister of Environment (MoE) constitutes a principal body of Government administration and supervises it in the areas of “the environment” and “water management”. The central bodies of Government administration include bodies at the highest level of the administrative structure, whose territorial jurisdiction covers the whole country.39 In the area of environmental protection and water management, these are inter alia: the Chief Inspector of Environmental Protection (CIEP), the General Environmental Protection Director (GEPD) and the President of the National Water Management Authority (President of the NWMA). Combined bodies of Government administration include bodies acting under the supervision of the Voivod, who represents the Government at the Voivodship level, which perform tasks and possess competences 38 M. Stefaniuk, “Naczelne organy administracji rządowej” in J. Stelmasiak and J. Szreniawski (eds.), Prawo administracyjne ustrojowe. Podmioty administracji publicznej (Bydgoszcz, Oficyna Wydawnicza Branta, 2002), at 22. 39 M. Wierzbowski, “Podstawowe pojęcia teoretyczne w nauce prawa administracyjnego” in M. Wierzbowski (ed.), Prawo administracyjne (Warsaw, Lexis Nexis, 2007), at 97.

224 barbara iwanska, paweł czepiel and marcin stoczkiewcz defined in the respective statutes: directors of various services and inspections. They fulfil their duties either on behalf of the Voivod on the basis of a statutory authorisation or on their own behalf, if so provided in the relevant statutes.40 In the area of environmental protection and water management such bodies include inter alia: Voivodship Inspector of Environmental Protection, Voivodship Chief of the State Fire Service. Non-combined bodies of governmental administration include bodies that do not fall under the Voivod’s supervision. The Voivod has only limited influence on these bodies and their activities.41 In the area of environmental protection and water management, such bodies include inter alia: Regional Environmental Protection Directors (REPD) and Directors of Regional Water Management Boards (RWMBs). Local government administration includes bodies at the following levels: (a) local – Gmina administration bodies, (b) regional - Powiat administration bodies, (c) Voivodship – bodies of Voivodship self-government administration. Gmina administration is comprised of: a Gmina council (with decision-making and control functions) and a Gmina leader (e.g., a mayor, with executive functions). Powiat bodies include: Powiat councils (decision-making bodies) and Powiat boards (executive bodies). Also included are Powiat Starosts – bodies with executive competences implementing tasks, among other things, in the area of environmental protection. Local government Voivodship authorities include: Voivodship Parliaments (decision-making functions) and Voivodship boards (executive functions). Also included are Voivodship marshals who fulfil, among other things, certain environmental protection tasks. This system of public administration bodies is applicable for environmental protection in particular, which is a significant task fulfilled by public administration. Therefore, public administration bodies are established especially to address environmental protection matters. The EPL Act contains two important definitions related to this area. Pursuant to this act, “administration bodies” include: ministers, central bodies of Government administration, Voivods, other territorial bodies of Government administration acting on the Voivod’s or their own behalf, bodies of territorial self-government and other subjects established on the basis of legislation or agreements regarding the implementation of public tasks in environmental protection. The EPL Act defines “environmental protection bodies” as administration bodies established to perform public tasks in 40 J. Zimmermann, Prawo administracyjne supra, at 166. 41 Ibidem at 169.



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environmental protection. Pursuant to special provisions, “environmental protection bodies” include: executive bodies at the Gmina level (Gmina leaders, mayors), Starosts, Voivodship Parliaments, Voivodship marshals, Voivods and ministers responsible for environmental matters (currently MoE), GEPD and REPD. This is not a closed list; other bodies are also responsible for conducting public tasks in the area of environmental protection, for example, bodies of Environmental Protection Inspection (EP Inspection), the Chief Sanitary Inspector, the Minister of the Economy, Gmina councils, Powiat councils42 and non-public units that perform these tasks by operation of the law or on the basis of agreements.43 It is also worth noting that environmental protection tasks are performed by administration bodies for which environmental protection is only one of many public tasks they are responsible (e.g., Voivod, Starost, Gmina leader), as well as bodies dealing only (or mostly) with environmental protection (e.g., MoE, CIEP, GEPD, President of NWMA). 10.2. Competences of Public Administration Bodies Dealing with Environmental Protection Specification of the scope of power granted to respective public administration bodies constitutes the key issue in the analysis of the public administration system in the area of environmental protection. Detailed norms of competence are included in numerous statutes that regulate respective topics related to environmental protection. Various public administration bodies are authorised to perform organisational tasks. The EPL Act regulates the system of environmental protection planning measures. Central bodies are responsible for these tasks at the countrywide level, adopting acts that take the form of strategic action plans. A basic strategic planning document, that is, the national environmental policy, is prepared by the MoE, passed by the Council of Ministers and adopted by the Sejm in a resolution. The administration of lower levels is responsible for the Voivodship, Powiat and Gmina environmental protection programmes. Waste management plans constitute one of their main parts. Draft programmes of lower levels are prepared by Voivodship and Powiat boards and Gmina executive bodies. They are adopted as resolutions of collective bodies in territorial self-government administration 42 J. Stelmasiak (ed.), Prawo ochrony środowiska (Warsaw, Wydawnictwo LexisNexis, 2010), at 58. 43 M. Górski (ed.), Prawo ochrony środowiska supra, at 89.

226 barbara iwanska, paweł czepiel and marcin stoczkiewcz (Voivodship Parliaments, Powiat councils, Gmina councils). Spatial planning acts constitute a special type of planning documents. Tasks that impose restrictions or obligations are usually performed through administrative decisions that specify the rights and obligations of natural and legal persons and through related activities. Pursuant to the EPL Act, such tasks are, in principle, performed by “environmental protection bodies”. In general, the competence of an environmental protection body is granted to Starosts (executive bodies at the Powiat level), with certain responsibilities directed to other bodies. A Starost constitutes the relevant body in the majority of cases connected to industrial emissions. Executive bodies at the Gmina level (Gmina leaders, mayors) are responsible for matters relating to ordinary environmental use by natural persons. A Voivodship marshal (a body of self-government administration) addresses issues connected with projects and events in plants that may have significant environmental impact and with fees for environmental use. The current trend is to decentralise public environmental protection tasks. After 1 January 2008, Voivodship Parliaments and marshals (bodies of self-government administration at the Voivodship level) took over many competences of Voivods (bodies of Government administration at the Voivodship level). Conversely, certain decisions aim at centralisation. On 15 November 2008, some new Government administration bodies were established: GEPD and REPD, which are responsible inter alia for environmental impact assessment procedures. Directors of RWMB also possess power to impose obligations or restrictions (e.g., approval of water management projects). In the field of environmental protection, Voivods are responsible for projects and events that have an impact on the environment and occur within a confined space. The MoE acts as the environmental protection administration body at the central level, managing Government administration in environmental protection matters. Two groups of administration bodies are responsible for control and supervision, namely the general and special administration. In the first group, these powers are vested in Voivodship marshals, Starosts, Gmina leaders and mayors. In the second group, responsibility for control and supervision stays mainly with the EP Inspection, which performs its activities pursuant to the Act on environmental protection inspection. In general, tasks of a directly executive character (e.g., the construction of waste management or sewage treatment facilities) fall within the scope of competence of local government bodies.



environmental governance in poland227 10.3. Disputes over Competence and Jurisdiction between Public Administration Bodies in the Field of Environmental Protection

Due to the complex division of responsibilities of respective public administration units dealing with environmental protection, disputes over their competence occur between bodies of the same level (e.g., between Government and self-government administration bodies at the Voivodship level) as well as bodies of different levels (e.g., local, regional and central bodies). These disputes are settled pursuant to the provisions of the CAP and the Law on proceedings before administrative courts. The number of such disputes has increased due to the territorial reform of 1998, which introduced territorial self-government at the Powiat and Voivodship levels and delegated some of the tasks of Government administration to local government bodies. The transfer of certain tasks and powers to local government bodies (e.g., at the Voivodship level), especially connected with the imposition of obligations and restrictions, results in conflicts of interest because these bodies are responsible for, among other things, social and economic development, which frequently clashes with environmental protection objectives.44 11. Effectiveness and Accountability Although the general structure of public administration in Poland is based on a model that differentiates between Government administration (including principal, central, territorial, combined and non-combined bodies) and local administration (including bodies at the Gmina, Powiat and Voivodship levels), it is difficult to define the organisational model of environmental protection administration. This ensues from the fact that the division of tasks and powers to respective Government and local government administrative bodies dealing with environmental protection is inconsistent and is characterised by casuistry, dispersion and randomness. Centralised supervision over these dispersed competences is also lacking. As a consequence, the number of disputes over competence and jurisdiction is significant, which in turn makes the implementation of environmental protection tasks inefficient. Therefore, some experts believe that the frequent, chaotic and incautious changes in the division of power and competence between various public administration bodies responsible 44 The examples of disputes between public administrations are discussed in chapter 19 by B. Iwanska, P. Czepiel and M. Stoczkiewcz in this volume.

228 barbara iwanska, paweł czepiel and marcin stoczkiewcz for environmental protection may even be considered a violation of the norms provided for in Article 2 (the principle of the State ruled by law) and Article 5 (environmental protection seen as one of the State’s main tasks) of the Constitution.45 The proper division of environmental protection tasks, which vary widely in their character, and the related competences contribute to ensuring the coherence and effectiveness of environmental protection activities. Therefore, it sometimes becomes necessary to establish specialised administrative bodies and to delegate certain tasks and powers to them. For example, in 2008, Poland created new bodies of Government administration at the central and territorial levels that were to be responsible for selected environmental protection matters (environmental damage, environmental impact assessment, EMAS, nature conservation). It is worth noting, however, that the legislator was inconsistent and did not delegate full competences in the aforementioned matters to the newly established bodies. Control over public administration in the environmental area is conducted by various subjects and from different points of view. One of them is internal control executed, among others, by specialised inspections. In environmental matters, it is the Environmental Protection Inspection. The scope of its control is defined objectively and refers to environmental protection. Administration bodies and other subjects implementing administrative activities can also be covered with this type of control, as long as it falls within the objective scope of the EP Inspection. Another type of control is external control (e.g., by Parliament, the courts, the Supreme Audit Office or civil society; e.g., through the aforementioned rights granted to environmental organisations).46 Parlia­ mentary control in environmental protection matters is executed inter alia by the Parliamentary Standing Committee of Environmental Protection, Natural Resources and Forestry, which among others, provides opinions on draft acts, resolutions, reports and the communications of the Minister of Environment and other State administration bodies (e.g., communication of the Minister of Environment on water management, State Environmental Policy for 2009–2012 with 2016 Outlook, presented by the President of the Council of Ministers); analyses the functioning of

45 M. Górski, “W poszukiwaniu modelu administrowania sprawami ochrony środowiska w Polsce” in J. Supernat (ed.), Między tradycją a przyszłością w nauce prawa administracyjnego. Księga jubileuszowa dedykowana Profesorowi Janowi Bociowi (Wrocław, Wydawnictwo Uniwersytetu Wrocławskiego, 2009), at 180–6. 46 J. Zimmermann, Prawo administracyjne supra, at 408–426.



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environmental administration; and addresses issues related to implementation of parliamentary acts and resolutions as well as its own desiderata (e.g., desideratum on flood protection). Parliamentary control can also be exercised by MPs through parliamentary questions (e.g., regarding the management model for water and amelioration facilities resulting from the concern about their degradation or regarding construction and modernisation of retention and flood prevention reservoirs – addressed to the Minister of Environment). Courts and tribunals can also exert external control over public administration. In practical terms, administrative courts play an especially significant role here (the Supreme Administrative Court and Voivodship administrative courts) because they exercise administration of justice through controlling the performance of public administration and ruling on disputes over competence between local government bodies, local government appeal councils and Government administration bodies. Such control shall also extend to judgments on the conformity to the statute of resolutions of organs of local government and normative acts of territorial organs of Government administration (Article 184 of the Constitution). This type of control verifies whether legislation is obeyed, unless stipulated otherwise in an act, and usually takes the form of a-posteriori control.47 According to the data for 2010 on complaints with regard to the decisions and activities of public administration bodies, in environmental protection and nature conservation, 1,383 complaints were submitted and 1,361 were ruled on; in water management, 370 complaints were submitted and 330 were ruled on; whereas in spatial management, 3,474 were submitted and 3,335 ruled on.48 The Supreme Audit Office (SAO) controls public administration, verifying legality, economy, purpose and diligence of its actions. The SAO has a Department of Environment, Agriculture and Construction Infrastructure, which controls issues related to the natural environment and biological production, that is, environmental and natural resources use, forestry and agricultural production and spatial management (e.g., control of the tasks connected with collection of fees and penalties for environmental use and how these funds are further spent).

47 E. Ochendowski, Prawo administracyjne część ogólna (Toruń, Wydawnictwo TNOiK Dom Organizatora, 2009), at 452. 48 One should bear in mind that spatial management complaints refer to various issues, not only environmental matters.

230 barbara iwanska, paweł czepiel and marcin stoczkiewcz External control of administration conducted by State bodies is supplemented with public control. It is exerted, on the one hand, through legal measures that ensure openness and transparency of the activities implemented by administration bodies, including public access to information on the environment and its protection. On the other hand, through legal measures that ensure participatory rights for the public and rights to litigate on behalf of the environment for environmental organisations. The last one plays a significant role in application and enforcement of environmental protection legislation. Due to the wide scope of the rights actually granted to environmental organisations, the practical application of these rights in administrative procedures and some cases of their misuse, it is currently being considered whether these rights should not be limited through introduction of a minimum period for which the organisation should operate before it is granted these rights. 12. Concluding Remarks The constitutional and statutory aspects of environmental protection in Poland discussed in the first part of this section allow us to draw the following conclusions. Due to its provisions on environmental protection, the Constitution fulfils the role of a “stable foundation for the frequently modified Polish environmental protection legislation.”49 This is particularly important considering the frequency with which the environmental protection legislation is amended and the ensuing consequences for the practical application of these provisions. The EPL Act, that is, the basic legal act in the field of environmental protection, was adopted in 2001 and has been already amended over 70 times. A similar situation occurs with respect to other legal acts – the Water Law Act of 2001 has been amended approximately 40 times. Legal environmental protection issues are regulated through provisions introduced by the national legislator as well as those established outside the system of national legislative bodies (the EU legislation and international agreements). In consequence, due to the hierarchy of the sources of law and the relations between the national and the EU legislation, the

49 B. Rakoczy, “Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r.” in J. Ciechanowicz-McLean et al., Prawo ochrony środowiska. Komentarz (Warsaw, Wydawnictwo Prawnicze LexisNexis, 2008), at 12.



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regulative freedom of the national legislator becomes limited when it comes to the direction of changes in the national legislation. This is also one of the reasons behind the multiple amendments to environmental protection legislation mentioned in point one. Pursuant to the Constitution, all public bodies (legislative, executive and judicial) should be involved in fulfilling the obligation of environmental protection, following their scope of competence defined in law. Pursuant to the principles of a unitary State, decentralisation of public power and participation of local government in its execution; the organisational system of public administration in environmental matters comprised mainly of central and territorial Government administration and self-government administration. The Constitution does not define the model of environmental protection administration. Nevertheless, considering the character of environmental issues and the frequent necessity to balance local needs and interests with that of the supra-local scope, it is justified to delegate some power to Government administration bodies of various levels to enable implementation of a uniform State policy in this respect. At the same time, transfer of certain powers to the local level (i.e., local government administration) is inevitable considering the principle of decentralisation of public power and participation of local government in its execution. This transition, however, does not mean that the State can avoid the responsibility to protect the environment because Government as well as local government administration constitute “composing elements” of the State as a whole. To implement their constitutional obligations to protect the environment related to public administration tasks, public authorities have to conduct joint administrative activities, including legal actions (joint general and individual acts) and actual actions.50 The EU legislation also contributes to strengthening cooperation between public administration bodies in environmental protection, especially through the directives that oblige various forms of cooperation (e.g., the obligation to issue approvals and opinions within the environmental impact assessment procedure, introduced to transpose Directive 2011/92/EU).51 It is worth noting that the

50 S. Biernat, Działania wspólne w administracji państwowej (Wrocław, Wydawnictwo PAN, 1979), at 79 et seq. 51 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (2012) OJ L26/1.

232 barbara iwanska, paweł czepiel and marcin stoczkiewcz large number of new tasks imposed on environmental protection administration by means of legal acts to transpose EU environmental directives is increasing the number of disputes over competence (mainly negative ones) between respective administration bodies. The aforementioned decisions of the Supreme Administrative Court regarding the disputes over competence between a local government appeal council and the President of the NWMA and a local government appeal council and a Voivod may serve as examples here. The constitutional obligation to support citizens in their activities to protect the environment and improve its state constitutes a basis for public participation in matters concerning environmental protection. It is realised by granting procedural rights either to everyone or to environmental organisations. The current domestic environmental protection legislation is comprised of numerous legal acts, including the EPL Act, which in Polish legislation fulfils the role of a general law and is supplemented with many separate acts concerning special matters, that is, respective environmental resources and threats to the environment. At first, by adopting the EPL Act, the legislator attempted to order the existing regulatory environment by integrating into the act regulations that are crucial for environmental protection legislation in general (e.g., principles concerning environmental liability, access to information on the environment). Later, however, through numerous subsequent amendments to the act, Polish environmental law has disintegrated. The exclusion of issues connected with public participation in environmental matters from the EPL Act or the adoption of a separate act on liability for environmental damage may serve as examples of this process. Such solutions compromise the cohesion of the environmental protection legislative system and delegate the need to settle disputes over colliding provisions from legislative bodies to bodies that apply legislation. This does not contribute to effective enforcement of environmental protection legislation. Pursuant to the principles of prevention, precaution, polluter pays and cooperation, environmental protection objectives are fulfilled through various legal measures, which should enable: the planning of protection actions; the restriction of environmental use; the supervision of fulfilment of legally binding environmental protection requirements; intervention if the requirements of the environmental protection legislation are violated or if the state of the environment necessitates such intervention; an indirect impact on subjects using the environment through various financial tools. Due to the character of the regulated area and the impact of the EU



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and international legislation on the domestic legal system, the need to adapt the legal terms or solutions that have been applied so far or to introduce new legal measures in this respect arises frequently in administrative environmental protection law in Poland.52 Bibliography S. Biernat, Działania wspólne w administracji państwowej (Wrocław, Wydawnictwo PAN, 1979). J. Boć et al., Ochrona środowiska (Wrocław, Kolonia Limited, 2008). J. Ciechanowicz-McLean et al., Prawo ochrony środowiska. Komentarz (Warsaw, Wydawnictwo Prawnicze LexisNexis, 2008). M. Górski, Odpowiedzialność administracyjno-prawna w ochronie środowiska – zagadnienia podstawowe (Poznań, Futura, 2007). M. Górski, “W poszukiwaniu modelu administrowania sprawami ochrony środowiska w Polsce” in J. Supernat (ed.), Między tradycją a przyszłością w nauce prawa administracyjnego. Księga jubileuszowa dedykowana Profesorowi Janowi Bociowi (Wrocław, Wydawnictwo Uniwersytetu Wrocławskiego, 2009). M. Górski (ed.), Prawo ochrony środowiska (Warsaw, Wolters Kluwer, 2009). M. Górski et al., Prawo ochrony środowiska. Komentarz (Warsaw, Wydawnictwo C. H. Beck, 2011). K. Gruszecki, Prawo ochrony środowiska. Komentarz (Warsaw, Wolters Kluwer, 2011). B. Iwańska, “Co-operation in GMO-Matters in Polish Law” in L. Krämer (ed.), Recht und Um-Welt. Essays in Honour of Prof. Dr. Gerd Winter (Groningen, Europa Law Publishing, 2003). J. Jendrośka and M. Bar, Prawo ochrony środowiska – Podręcznik (Wrocław, Centrum Prawa Ekologicznego, 2005). A. Lipiński, Prawne podstawy ochrony środowiska (Warsaw, Wolters Kluwer, 2007). E. J. Nowacka (ed.), Ustrój administracji publicznej (Warsaw, Wydawnictwo Prawnicze PWN, 1999). E. Ochendowski, Prawo administracyjne część ogólna (Toruń, Wydawnictwo TNOiK Dom Organizatora, 2009). R. Paczuski, Ochrona Środowiska. Zarys wykładu (Bydgoszcz, Oficyna Wydawnicza Branta, 2008). W. Radecki, Odpowiedzialność prawna w ochronie środowiska (Warsaw, Difin, 2002). J. Rotko, Instrumenty administracyjnoprawnej ochrony środowiska w RFN (Wrocław, Wydawnictwo Prawo Ochrony Środowiska, 1998). P. Sarnecki (ed.), Prawo konstytucyjne Rzeczypospolitej Polskiej (Warsaw, Wydawnictwo C. H. Beck, 2008). M. Stefaniuk, “Naczelne organy administracji rządowej” in J. Stelmasiak and J. Szreniawski (eds.), Prawo administracyjne ustrojowe. Podmioty administracji publicznej (Bydgoszcz, Oficyna Wydawnicza Branta, 2002). J. Stelmasiak (ed.), Prawo ochrony środowiska (Warsaw, Wydawnictwo LexisNexis, 2010). A. Wasilewski, “Uwagi o projekcie ustawy o ochronie środowiska z dnia 17 września 1999r” (2000) 1 Przegląd Legislacyjny 116–125.

52 A. Wasilewski, “Dynamika zmian i kontynuacja we współczesnym prawie administracyjnym wyzwaniem dla doktryny prawa (na przykładzie prawa o ochronie środowiska)” supra, at 769 et seq.

234 barbara iwanska, paweł czepiel and marcin stoczkiewcz A. Wasilewski, “Dynamika zmian i kontynuacja we współczesnym prawie administracyjnym wyzwaniem dla doktryny prawa (na przykładzie prawa o ochronie środowiska)” in J. Supernat (ed.), Między tradycją a przyszłością w nauce prawa administracyjnego. Księga jubileuszowa dedykowana Profesorowi Janowi Bociowi (Wrocław, Wydawnictwo Uniwersytetu Wrocławskiego, 2009). A. Wasilewski, “Actio negatora jako instrument prawny ochrony środowiska (w świetle prawa polskiego)” in S. Grodziski et al. (eds.), Vetera notis augere. Studia i prace dedykowane Profesorowi Wacławowi Uruszczakowi, vol. II (Krakow, Wydawnictwo Uniwersytetu Jagiellońskiego, 2010). M. Wierzbowski, “Podstawowe pojęcia teoretyczne w nauce prawa administracyjnego” in M. Wierzbowski (ed.), Prawo administracyjne (Warsaw, Lexis Nexis, 2007). J. Zimmermann, Prawo administracyjne (Warsaw, Oficyna, 2010).

ENVIRONMENTAL GOVERNANCE IN THE WESTERN BALKANS Olivera Kujundzic1 Introduction: History and Steps forward The European Commission adopted the term “Western Balkans”2 to describe countries from the former Yugoslavia minus Slovenia but with the addition of Albania. Countries of the former Yugoslavia are quite interesting due to their federal heritage. The Socialist Federal Republic of Yugoslavia (SFRY) was composed of eight federal units: six republics, that is, Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, Montenegro, Serbia and two Autonomous Provinces within Serbia, that is, Kosovo and Vojvodina. The breakup occurred in several phases from 1991 to 2008, including intensive armed conflicts in some phases of the dissolution. Starting in early 1990s, the first conflict was followed by the secession of Slovenia, Croatia, FYR Macedonia and Bosnia and Herzegovina. Slovenia and Croatia declared independence on the same day: 25 June 1991. They were followed by FYR Macedonia on 25 September 1991 and Bosnia and Herzegovina on 3 March 1992. The rest of the former Yugoslavia was renamed the Federal Republic of Yugoslavia (FRY) by Serbia and Montenegro on 28 April 1992. The second conflict phase in Bosnia and Herzegovina (1992–1995) ended with the Dayton Peace Agreement in December 1995. The third conflict phase (1996–1999) in Kosovo ended with the Kumanovo Agreement which put Kosovo under the administration of the United Nations. The final dissolution phase began with renaming the Federal Republic of Yugoslavia on 4 February 2003 as the State Union of Serbia and Montenegro. The State Union was a temporary creation and broke up in 2006 with the declaration of independence of Montenegro on 3 June 2006. In Kosovo, a unilateral declaration of independence was made on 17 February 2008 but is not recognized by Serbia and still has limited recognition across the international community. 1 Legal Advisor, Italian Ministry for the Environment, Land and Sea, Rome, Italy/ Montenegrin Ministry for Spatial Planning and the Environment, Podgorica, Montenegro. 2 European Commission, Western Balkans: Enhancing the European perspective, COM (2008) 127 final, 5 March 2008; European Commission, The Western Balkans on the road to the EU: consolidating stability and raising prosperity, COM (2006) 27 final, 27 January 2006.

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After having been unified under the same administrative structure, the countries that emerged from the former Yugoslavia took separate paths of State organization that fit their political, institutional and geographical circumstances. Considering the geographical size of the countries, Slovenia, FYR Macedonia and Montenegro became unitary States with quite simple State organization divided into two layers: State and municipal. The bigger constituents (Croatia, Serbia, Bosnia and Herzegovina) had to choose more complex models. In Croatia, in addition to the central State government, a regional mid-layer and a municipal layer exist. In the former Yugoslavia, Serbia had two Autonomous Provinces (Vojvodina and Kosovo). Currently, the Republic of Serbia includes the Autonomous Province of Vojvodina, which has an unresolved relation with Kosovo and an internal model of regional/municipal administrative division similar to the Croatian one. This similarity is easy to explain because both models are part of the common heritage. The case of Bosnia and Herzegovina is the most complicated one. Post-war Federation is a political creation that left the country with many organizational and functional troubles to be resolved. Bosnia and Herzegovina is a parliamentary republic with limited central power. It consists of two autonomous entities: the Federation of Bosnia and Herzegovina and Republika Srpska, with a third Region, the Brčko District, governed under local government. The Federation of Bosnia and Herzegovina consists of federal units (Cantons), whereas in the Republika Srpska, administrative division is simple and the basic unit is Municipality. All of these countries are on the road to EU membership. Croatia, Montenegro and the Former Yugoslav Republic of Macedonia are candidate countries. Although accession negotiations with Croatia were closed on 30 June 2010, negotiations with Montenegro and the former Yugoslav Republic of Macedonia have not started yet. The other countries of the Western Balkans – Albania, Bosnia and Herzegovina, Serbia and Kosovo under UNSC Resolution 1244/99 – have all been promised the prospect of EU membership as and when they are ready. They are known as potential candidates.3

To analyse governance models and compare how varying institutional assets affect environmental protection, Montenegro, Croatia and Bosnia and Herzegovina were chosen to represent the Western Balkans countries. 3 See Countries on the road to EU membership at http://ec.europa.eu/enlargement/ the-policy/countries-on-the-road-to-membership/index_en.htm.



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The fact that those three countries are on different stages of approximation to the EU was also taken into account. Among them, Croatia is the most advanced and has already been granted EU membership; Montenegro is a candidate country waiting to start the negotiation process, whereas Bosnia and Herzegovina is still at the beginning of the road toward EU membership. The EU accession process is quite relevant in terms of legal harmonization and establishment of administrative/institutional framework for environmental management. The fact that those countries are neighbouring States was an element considered for selection because environmental protection has a strong cross-border dimension. 1. Croatia: The Next EU Member State The Republic of Croatia is a unitary and indivisible democratic welfare State.4 According to Article 4 of the Constitution, Government is organized on the principle of separation of powers into the legislative, executive and judicial branches, but also limited by the constitutionally guaranteed right to local and regional self-government. The Constitution identifies Municipalities and Towns as units of local self-government and Counties as units of regional self-government. Only the central government is granted the power to legislate, whereas administrative acts and local environmental plans may be issued by local governments but in accordance with environmental legislation and shall be approved by the Ministry in charge of environmental protection. Article 135 provides that local self-government shall administer affairs of local jurisdiction by which the needs of citizens are directly fulfilled, including, among others, the protection and improvement of the environment. Units of regional self-government shall administer affairs of regional significance, but among their competences environmental protection is not mentioned. The “conservation of nature and the environment” according to Article 3 of the Constitution is among the “highest values of the constitutional order of the Republic of Croatia.” Moreover, according to Article 52:

4 See the English version of the Constitution of the Republic of Croatia at http://www .sabor.hr/fgs.axd?id=17074. The consolidated text of the Constitution of the Republic of Croatia encompasses the Constitution of the Republic of Croatia (1990) and the Amendments to the Constitution of the Republic of Croatia (2010), in which the date of their entry into force is indicated.

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olivera kujundzic special protection for the sea, seashore, islands, waters, air space, mineral resources, and other natural assets, as well as land, forests, flora and fauna, other components of the natural environment, real estate and items of particular cultural, historical, economic or ecological significance which are specified by law to be of interest to the Republic of Croatia.

The Environmental Protection Act (EPA),5 which is the general and main legislative act concerning the environment, lists all the actors involved in environmental protection matters (Article 33): the Parliament, the Government, ministries and other State administration bodies, local and regional authorities, the Environment Agency and Environmental Protection and Energy Efficiency Fund, legal persons authorized for performing professional environmental protection activities, polluters, NGOs active in the field and citizens as individuals, their groups, associations and organizations. It further prescribes in detail the obligations of each actor. At the horizontal level, the Ministry of Environmental Protection, Physical Planning and Construction and the Environment Agency are the main environmental actors, but six other ministries and eight administrative bodies are involved in the creation and implementation of environmental policy and eight different inspection bodies are in charge of enforcement. The role of the regional authorities is not so detailed: Counties and the City of Zagreb shall within their respective scope regulate, organize, finance and promote environmental protection activities placed under their competence which are of regional significance for environmental protection, and promote improvement of the status of the environment in their territory.6

The same provision regulates the role of the local authorities. Regional authorities play an important role in waste management, maintenance of the regional pollution register, performance of Environmental Impact Assessment and Strategic Environmental Assessment procedures in their competence and authorisation of activities in protected areas within their territory. Although Counties have to prepare their environmental protection programmes, it is left to the discretion of the Municipalities to do so. Those programmes have to be in line with the national environmental

5 Zakon o zaštiti okoliša (hereafter EPA) 110/07, available in English at http://www .mzopu.hr/doc/Environmental%20Protection%20Act%20OG%20110–07%20ENG.pdf. 6 Art. 36 of the EPA.



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plan and have to be approved by the Ministry of Environmental Protection, Physical Planning and Construction. According to Article 14 of the EPA, the Government, Counties, City of Zagreb, cities and Municipalities shall, each within their scope, jointly and with solidarity participate in the implementation of environmental protection placed under their competence to ensure the implementation of efficient environmental protection measures in their area. The capacity of regional and local environmental institutions is gradually growing although it is still insufficient to meet the challenges of implementing the new legislation. Environmental regional departments and services and Municipalities employ a small number of staff and are usually underequipped. Nonetheless, recent years have been marked by good cooperation between the central and regional/local governance levels mostly due to enhanced investments in environmental infrastructure at the local level supported by the central government and accelerated by the EU accession process. Formally, the coordination role in the sector is given to the Environ­ mental  Protection and Sustainable Development Council which is established by the Government (Article 36 of EPA). The same article gives the power to the Ministry in charge of environmental protection to perform all the “expert and administrative activities” for the Council. However, the role of the Council is absorbed by the Ministry and it does not represent an independent actor with real coordination power. Regarding the actors involved in environment protection, the European Commission has recently warned Croatia that the high number of institutions could slow down the approximation process: “given the high level of fragmentation of the environment sector, across ministries and public bodies, improved coordination mechanisms and decision-making procedures are required”7 and “administrative capacity, especially at local level, needs further strengthening (…) Channels for coordination between ministries and bodies involved in environmental protection need to be improved.”8 This brief overview shows that to achieve EU standards for environmental management and protection, Croatia must overcome institutional rivalry and fragmentation in the environment sector and invest

7 European Commission, Croatia 2009 Progress Report, SEC (2009) 1333, 14 October 2009, available at http://www.eu-pregovori.hr/files/Izvijesce/Progress_report_2009.pdf. 8 European Commission, Croatia 2010 Progress Report Brussels, SEC (2010) 1326, 09 November 2010, available at: http://www.mfa.hr/custompages/static/hrv/files/101110 _Izvijesce_o_napretku _HR_za_2010.pdf.

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serious efforts in enhancing cooperation among different actors on the horizontal and vertical levels. Environmental governance in Croatia has been highly affected by the EU approximation process, especially in the last period: the legal framework has been under constant change, as well as institutional redistribution of powers and competences. At the end of the process of implementation of the EU environmental acquis, a centralisation trend was detected. During the approximation process, the central government and especially the ministry in charge of environment, carrying the main responsibility for approximation goals, has held the majority of powers for decision–making in the environmental sector. For example, the Environmental Protection Act foresees that all professional services in the environmental sector (e.g., laboratories, environmental audit, GHG verifiers) have to be authorised by the central government passing a mandatory exam organized by the Ministry of Environmental Protection, Physical Planning and Construction. It differs from the EU system of standardization/accreditation/certification and will be subject to reform in the future. This centralisation trend has led to disputes with other institutions; however, they have been handled through political mechanisms rather than judiciary instruments. In addition, enforcement of environmental law in Croatia is entrusted to the environmental inspection established at the central level. The Ministry in charge of environment holds all the power. According to the Environmental Protection Act: Administrative supervision over the implementation of this Act and regulations adopted on the basis thereof shall be performed by the Ministry. Administrative supervision over the legality of activities and general acts of the Agency and reference centres in that part of activities for which they are authorised by the decision of the Government shall be performed by the Ministry.9 […] Inspectional supervision over the implementation of this Act and regulations adopted on the basis thereof is performed by civil servants employed at the Ministry.10 […] An appeal against the decision, conclusion on the suspension of the enforcement procedure and conclusion on expenses issued by a branch unit inspector may be filed with the Ministry. […] An appeal referred to in paragraph 3 of this article shall be resolved by a special commission of the Ministry which is appointed by the Minister.11

   9 EPA supra, Art. 180. 10 Ibidem Art. 182. 11 Ibidem Art. 196.



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An environmental inspector has also the right to issue a misdemeanour order or file criminal charges to the competent court. As was previously mentioned, the number of criminal charges in environmental matters is quite low. In addition to the fact that the system of implementation and enforcement of environmental law is too centralized, some other shortcomings have been detected with reference to recent comprehensive changes in legislation and administrative set-up caused by the EU approximation process. The need for better cooperation is evident regarding the right of public participation in environmental governance. For example, during the dynamic harmonization process with the EU acquis, many laws were rushed through the Parliament which made public participation impossible or ineffective.12 The authority responsible for implementation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters in the Republic of Croatia is the Ministry of Environmental Protection, Physical Planning and Construction. In the Progress Report for Croatia (2010)13 it is stated that: “Implementation of provisions on public participation and access to justice in environmental matters remains insufficient. In this respect, cooperation with the judiciary needs to be strengthened.” The rule of standing in environmental cases is provided through Article 18 (Principle of the Right of Access to Justice) of the Environmental Protection Act: For the purpose of protecting the right to a healthy life and healthy environment, a person (citizen or other natural or legal person, their groups, associations and organisations) who proves the legitimacy of his legal interest and a person who due to the location of the project and/or due to the nature and/or impact of the project can prove in accordance with the law that his rights have been permanently violated, shall have the right to contest the procedural and substantive legality of decisions, acts or oversights of public authorities before the competent body and/or competent court, in accordance with the law.

In addition to the principle, a justifiable legal interest is granted only to natural or legal persons who can prove permanent violation of a right due to the location or nature of the certain project, and to the civil society organisation if: a) it is registered in accordance with special regulations 12 See Croatia 2009 Progress Report supra. 13 Ibidem.

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governing organisations at least two years prior to the initiation of the public authority’s procedure on the request; b) environmental protection is set out as a goal in its statute; and c) it can prove that in that period, it actively participated in activities related to environmental protection on the territory of the City or Municipality in which it has a registered seat in accordance with its statute. If all the aforementioned conditions are satisfied, natural or legal persons or organizations shall have the right to present a legal action against a certain administrative act of a public authority and may file an appeal with the Ministry or file a complaint before the competent court for the purpose of re-examining the procedural and/or material legality of acts, actions or oversights. The formulation of the law gives the authorities a high level of autonomy in deciding on the legitimacy of legal interests and provides for a number of restrictions related to challenging administrative acts. Moreover, only active local NGOs have the right of legal standing and they are just a few.14 In addition to the “rule of standing” in environmental matters, which is granted on the basis of Article 18 of the EPA, the Constitutional Act15 prescribes in Article 129 that the Constitutional Court of the Republic of Croatia shall decide on constitutional petitions against individual decisions made by governmental agencies, bodies of local and regional selfgovernment and legal persons vested with public authority in which such decisions violate human rights and fundamental freedoms, as well as the right to local and regional self-government guaranteed by the Constitution of the Republic of Croatia. Among the five Constitutional Court’s cases16 related to the constitutional right to a “healthy environment and nature protection”, two dealt respectively with constitutionality of the Patients’ Rights Protection Act and constitutional review of the Fire-fighting Act; three others were related to environmental protection. All three complaints were rejected on the basis of the following common elements: a) they were all referring to Article 70 of the Constitution; b) they were all rejected on the same basis; c) the Court did not consider the substance of the right. 14 See Ministry of Environmental Protection, Physical Planning and Construction of the Republic of Croatia, Aarhus Convention Implementation Report (2009); Ministry of Environmental Protection, Physical Planning and Construction, Croatia 2009. 15 Ustavni zakon o ustavnom sudu Republike Hrvatske (The Constitutional Act on the Constitutional Court of the Republic of Croatia) 49/2002. 16 Online archives of the Constitutional Court of the Republic of Croatia, available in English at http://www.usud.hr/default.aspx?Show=pregled_prema_pojmovnom_kazalu _%28samo_za_odluke_nakon_1._sije%C4%8Dnja_2006.%29&m1=23&m2=83&Lang=en.



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In particular, in case U-II/1009/2004,17 Mr Markovic applied for constitutional review on the basis of Article 70 of the Constitution regarding the regulation on the minimum threshold for genetically modified organisms in products below which products placed on the market do not need to be labelled as containing genetically modified organisms.18 The challenged regulation proscribes that products with approved GMO in traces of 0,9% by product content can be placed on the shelf without the label “contains GMO”. The Constitutional Court rejected the application with the following reasoning: The Constitutional Court found that the challenged Regulation has been enacted by the competent body in accordance and on the basis of the law. Finding that there are no grounds for starting the procedure of constitutional review on the basis of the Article 70, paragraph 3 of the Constitution, the application is not to be accepted.

In case U-II/4833/2005,19 civil association “Travno moj kvart”, Green Action Zagreb, UDD Association for Democratic Society and NGO “Gong” Zagreb applied for the constitutional review of the Decision to pass the master plan of the City of Zagreb,20 because the City of Zagreb had decided to give part of the public park “Travno” to the Evangelic Church of St. Luka in Zagreb for the construction of the new church. The Constitutional Court rejected the application due to lack of grounds with the following reasoning: “The Constitutional Court found that the challenged Decision has been enacted by the competent body in accordance and on the basis of the law, respecting the prescribed procedure.” Instead of considering reference to Article 70 of the Constitution, the Constitutional Court referred to Article 134, which regulates the role of local authorities in environmental matters highlighting that this competence is regulated by specific laws (not the constitution). Therefore, the application was not accepted.

17 Ustavni Sud Judgment U-II/1009/2004. See the online archives of the Constitutional Court of the Republic of Croatia at http://sljeme.usud.hr/usud/prakswen.nsf/Pojmovi/ C12570D30061CE53C 12572F800472D93?Open Document. 18 Uredba o razini genetski modificiranih organizama u proizvodima ispod koje proizvodi koji se stavljaju na tržište ne moraju biti označeni kao proizvodi koji sadrže genetski modificirane organizme 34/2004, available in English at http://www.mvep.hr/zakoni/ pdf/422.pdf. 19 Ustavni Sud Judgment U-II/4833/2005. Available at http://sljeme.usud.hr/usud/ prakswen.nsf/Pojmovi/C12570D30061CE53C125728A00339E0E?OpenDocument. 20 Generalni urbanistički plan grada Zagreba 14/2003.

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In case U-II/3343/2004,21 the Association of animal protecting NGOs of the City of Zagreb applied for the constitutional review of Section 23 Paragraph 1 and Section 28 Paragraph 2 of the Rules on Animal Shelters and Hygienic Services,22 because the challenged Rules prescribe that animals have to be kept and monitored in the asylum for six months before adoption if their health status regarding rabies is not known. Applicants highlight that after six months in the asylum, the animal is traumatized, ill-treated and not appropriate for adoption which consequently leads to their extermination. The Constitutional Court found that the challenged Rules were adopted in accordance and on the basis of the Law on wellbeing of animals23 by the competent and authorized body. Commenting on its relation to Article 70 of the Constitution, the Constitutional Court stated that: “the purpose of isolation of animals with unknown health status is protection of other animals and humans.” Therefore, the application was not accepted. The Archives contain two additional cases related to the right to the environment – both are solved with the decision to reject the constitutional complaint. Case U-III/3415/200324 is a classic example of a dispute between local and central governance layers. The Constitutional complaint by the citizens and the City of Pula against the judgement of the Administrative Court of the Republic of Croatia (Us-2397/2000) related to the building site permit for the gas pipeline Casal Borseti-Pula. Although this project was not foreseen in the detailed spatial plan of the City of Pula, because the project was considered to be a project of State interest and was foreseen in the Spatial Plan of the Republic of Croatia, the Constitutional Court concluded that the rights granted under Article 70 of the Constitution were not violated and rejected the complaint. 2. Montenegro: An Ecological State? The Parliament of Montenegro adopted the Declaration of ecological state in 1991. The document was presented at the UN Conference on Environment

21 Ustavni Sud Judgment U-II/3343/2004, available at http://sljeme.usud.hr/usud/ prakswen.nsf/Pojmovi/C12570D30061CE53C12572F800472D93?OpenDocument. 22 Pravilnik o obveznom označavanju i upisu u jedinstveni registar domaćih životinja te vođenju evidencija 110/2004. 23 Zakon o dobrobiti životinja 19/1999. 24 Ustavni Sud Judgment U-III/3415/2003, available at http://sljeme.usud.hr/usud/ praksaw.nsf/Ustav/C1256A25004A262AC1256F1900320B0C?OpenDocument.



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and Development held in Rio de Janeiro in 1992 and was included in official documents of the Conference. Accordingly, the Montenegrin Constitution approved in 2007 states in Article 1: “Montenegro is a civil, democratic, ecological and the state of social justice, based on the rule of law.”25 In addition to this declarative part, the Constitution further specifies at Article 23 that: Everyone shall have the right to a sound environment. Everyone shall have the right to receive timely and full information about the status of the environment, to influence the decision-making regarding the issues of importance for the environment, and to legal protection of these rights. Everyone, the State in particular, shall be bound to preserve and improve the environment.

Granting the right to a sound environment originates from the Constitution of 1974 of the Socialist Federal Republic of Yugoslavia and still represents a note of discord. This concept actually does not ensure the protection of the granted right because it was not further developed in the legislation. The Constitution of Montenegro does not specify any division of competences among different government levels with regard to the environment; moreover, the Constitution does not identify in particular any units of local self-government. It only provides, in Article 22, the constitutional right to the local self-government. In accordance with the Law on local self-government,26 the basic form of the local self-government in the country is Municipality, but it is also possible to establish other forms of local self-government. Twenty-one Municipalities exist in Montenegro, which is a small country (13 km2, 620,029 inhabitants).27 The Constitution prescribes that the right to local self-government shall include the right of citizens and local selfgovernment bodies to regulate and manage certain public and other affairs, in their own responsibility and in the interest of the local population, but does not specify those affairs. Montenegrin Law on environment28 is not precise in this matter either. According to Article 7: 25 The Constitution of Montenegro (2007), available at http://www.skupstina.me/cms/ site_data/16122009/USTAV%20CG-engleska%20verzija.pdf. 26 Zаᴋᴏnᴏm o lokalnoj samoupravi 42/2003, available in English at http://www.osce .org/monte negro/19731. 27 Population census data 2011, MONSTAT – the statistical office of Montenegro, available at http://www.monstat.org/cg/page.php?id=322&pageid=322. 28 Zakon o životnoj sredini 48/2008.

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olivera kujundzic Environmental protection shall be provided by State bodies, State administration bodies, local self-governments, national and foreign legal and natural persons, non-governmental organizations, citizens, and civic associations, within the scope of their rights and duties.

However, the Law on environment entrusts certain tasks to the local selfgovernments. For example, local self-governments shall prepare local environmental protection plans. These plans shall be submitted to the Environmental Protection Agency for the purpose of cooperation and coordination but are not subject to approval by central government bodies. Local self-governments shall also report on the state of the environment. Although reporting has been set as an obligation, as well as maintenance of the local Polluters’ Registers, monitoring of environmental parameters at the local level is not mandatory. According to the Law on environment, the local self-government may levy a tax on environmental protection and enhancement in accordance with its needs and specific circumstances. Although the Law on environment foresees that local authorities take proper care of the environment, in reality, lack of finances, human resources, expertise and equipment affects the role of Muni­ cipalities in environmental protection. Currently, therefore, Municipalities cannot afford environmental monitoring and reporting. According to the Law on local self-government,29 local self-government units (Municipalities) have the obligation to establish local administration bodies and provide public services in certain sectors (e.g., education, culture, social and child welfare) but not explicitly for environment protection. Hence, some Montenegrin Municipalities have local administration bodies in charge of environmental protection, whereas other muni­ cipal tasks and competences in the environmental sector are performed by bodies competent for spatial planning, communal or other services, public companies (such as the national park company) or even by a single individual employed by local authorities. In particular, local self-government units shall regulate and provide conditions for preserving and protecting natural resources; protection from natural disasters, fires, explosions, damages, and other accidental and extraordinary events; noise supervision and protection; protection of eroding areas; maintenance of data with respect to communal and sewage effluents, users and polluters of water management facilities and installations and other affairs. Local self-government bodies can adopt decisions and other 29 Zаᴋᴏnᴏm o lokalnoj samoupravi supra, Art. 34.



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regulations regarding affairs under their competence, but in general, environmental policy is managed at the central level. The main responsibility for environmental protection is entrusted to the Ministry for Sustainable Development and Tourism and Environmental Protection Agency. However, a number of other ministries (Ministry of Economy, Ministry of Health, Ministry of Agriculture) and other State administration bodies have their roles and competences in the environmental sector and those roles and competences are often overlapping, vaguely defined and delineated or in direct conflict with each other. The situation at the horizontal level is marked by institutional rivalry and conflicted interests. Frequent re-composition of the ministries inside the Government, creation of new institutions and constant reshaping of the legal framework only complicates it further. However, a competing attitude among environmental actors is rare between central and local levels because local authorities are not so keen to take over competences for which they cannot provide enough resources; nonetheless, local self-governments are facing difficulties to reconcile local and national interests when it comes to the selection of regional landfill sites, use of water power or other issues that strongly affect local communities but have national relevance. These kinds of disputes are usually resolved through open public dialogue and use of political power leverage. Among environmental protection principles listed in the Montenegrin Law on Environment,30 the principle of cooperation should serve as a basis for formal modes of coordination among different actors. It is also formally regulated by the Law on State Administration and routine procedures of cooperation. However, this principle is not implemented in reality and conflicts among institutional actors, especially among different ministries in charge of environmental issues, still remain. The State administration had to take over numerous new competences that were dealt at the federal level in the past because Montenegro is the youngest independent Balkan State (since 2006). Moreover, the EU approximation process imposed numerous new tasks and responsibilities especially in the environmental sector. The country is still somewhere in between establishing a new institutional set-up capable of responding to new challenges and dealing with the break-up of the old bureaucratic satellite system of the past. Therefore, at this stage, the system is prone to conflict but 30 Law on Environment supra.

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is also in the process of change. However, numerous investments are necessary for empowerment of the local level of governance. The EU accession process is highly demanding regarding institutional cooperation and cooperation among different governmental levels. In recent years, because of the previously described situation, the number of institutional/governance conflicts has started to increase due to the limited capacity of the administration to cope with new obligations stemming from their status as a newly independent State, the on-going public administration reform and the EU accession process. The Constitutional Court of Montenegro plays a general normative control, deciding on conformity of general acts with the Constitution, as well as the conformity of lower acts with general acts and the Constitution. The Constitutional Court of Montenegro also decides on competence conflicts among courts, other State bodies, central and local government levels and between local self-government bodies (Article 149). In 2010, several cases were presented to the Constitutional Court in the field of environment, in particular related to a dispute over competences between the Ministry for spatial planning and environment protection and the communal police or other bodies established in different Municipalities (Pljevlja, Berane, Herceg Novi), but the Constitutional Court rejected those cases with the following reasoning: conflicts on competences between administrative bodies which decide in administrative matters (ministries, State administration and State authority bodies) as well as conflict on competences between ministries and local authority bodies entrusted with certain administrative tasks by law or governmental orders shall be, in accordance with the Article 100 of the Law on State Administration, be resolved by the Government.31

The Constitutional Court of Montenegro has declared invalid the Decision of the Municipality of Pljevlja on special fees for environment improvement and protection in accordance with specificities and needs of Pljevlja Municipality,32 finding that the Decision is not compliant with the Constitution and law. The application for the constitutional review has

 31 Ustavni Sud Judgment U-V/4/10, available at http://www.ustavnisudcg.co.me/slike/ ustavnisud/praksa.htm. 32 Odluka Opštine Pljevlja o utvrđivanju posebne naknadeza zaštitu i unapređvanje životne sredine u skladu sa specifičnostima i potrebama opštine Pljevlja Službeni list (opštinski propisi) 15/2010 (Decision of the Municipality of Pljevlja on special fees for environment improvement and protection in accordance with specificities and needs of Pljevlja Municipality(municipal act) ).



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been submitted by the Government of Montenegro with the reasoning that taxes, fees and other charges can be established exclusively on the basis of the law and that the Municipality of Pljevlja exceeded its competences prescribing additional fees for polluting the environment to those introduced at the national level. Hence, the Municipality of Pljevlja did not have sufficient legal grounds to introduce this additional source of municipal funds. The Ruling of the Constitutional Court of Montenegro U-II 48/1033 states that although a legal possibility exists for local selfgovernment units to introduce certain taxes/fees/charges to secure funds for environment protection, polluters cannot be burdened by double taxation on the same grounds. Disputes related to the competences of public administration bodies (if resolved at court) are generally decided by the Administrative Court which was established in 2005.34 The Administrative Court has full jurisdiction to review administrative acts, including those approved by the central State and municipal administrations and to decide on administrative disputes, but holds no jurisdiction to review acts issued by the Government. Similarly to the situation in Croatia, the main instrument for enforcement of environmental law is environmental inspection. According to the last interim report on the work of the environmental inspection,35 the inspection started 9 misdemeanour procedures, filed 2 criminal charges from January to September 2011 and issued 12 administrative fines. The main drawback of the inspection work recognized so far through the ECENA network and cooperation with IMPEL is that inspections are understaffed and a lack of capability to perform regular inspections exists. The main obstacles related to enforcement of environmental law have been identified in the collection of evidence of environmental crimes or minor violations of law, bad communication with the public prosecutor’s office, lack of dialogue and poor cooperation between inspection and the judiciary, lack of appropriate legal framework and internal procedures, lack of knowledge on environmental law among the judiciary, lack of staff with expertise on environmental law, lack of relevant case law in environmental matters and problems with judges identifying causality

33 Ustavni Sud Judgment U-II 48/10. 34 The Administrative Court of Montenegro was established by Amendment of the Law on Courts (Zakonom o sudovima) 49/04. The Court became operational in January 2005. 35 Interim Report on the Work of Environmental Inspection of Montenegro (2011).

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connections between violations of the law and the resulting consequences (e.g., potential damage).36 The first two pillars of the Aarhus convention have been transposed directly into the Montenegrin Constitution which explicitly grants “right to receive timely and full information about the status of the environment” and the right “to influence the decision-making regarding the issues of importance for the environment” as well as protection of these rights. In 2011, an Aarhus Centre was opened inside the Environmental Protection Agency aimed at improving the implementation of the Aarhus convention in Montenegro. The first report on implementation of the convention was issued in 2011.37 Recently, a second Aarhus Centre was opened in Niksic on the initiative of the local NVO “Ozon”. So far, however, in addition to declarative provisions in the Constitution and Law on Environment, formal procedures for public participation in decision-making in environmental matters are only provided in the Law on Environmental Impact Assessment,38 the Law on Strategic Environ­ mental Impact Assessment,39 the Law on Integrated Pollution Prevention and Control40 and the Law on GMO.41 Other sectoral laws contain rules but not specific procedures on public participation (e.g., Law on Air Protection, Law on Nature Protection, Law on forests, Law on waters). In 2011, the Ministry of Sustainable Development and Tourism issued a decision42 on mandatory involvement of representatives of civil society groups in preparation of laws and secondary legislation. Still, existing institutional and other national capacities in State administration and local administration bodies should be improved to enhance public participation. Montenegrin law still does not recognize a rule of standing in environmental matters. Individuals and organizations have no right to stand on behalf of the environment.

36 Ministry of Sustainable Development and Tourism of Montenegro, Report on Implementation of Aarhus Convention in Montenegro (2011), available at: http://www .arhuscg.me/wp-content/uploads/2011/09/IZVJESTAJ-O-SPROVODJENJU-ARHUSKE -KONVENCIJE-U-CRNOJ-GORI.pdf. 37 Ibidem. 38 Zakon o procjeni uticaja na životnu sredinu 80/05, 40/10. 39 Zakon o strateškoj procjeni uticaja na životnu sredinu 80/05. 40 Zakon o integrisanom sprječavanju i kontroli zagađivanja životne sredine 80/05, 54/09. 41 Zakon o genetički modifikovanim organizmima 22/08. 42 Ministry for Sustainable Development and Tourism, Guidance on Criteria and Procedures for the Designation of NGO Representatives in Working Groups and Other Working Bodies (2011) (on the basis of the Governmental Ordinance 03–254/2).



environmental governance in the western balkans251 3. Bosnia and Herzegovina: A Post-War Structure

The Dayton Framework of Peace Agreement of December 1995 brought an end to the war in Bosnia and Herzegovina (BiH). Its Annex 4, as part of the international agreement, contained the Constitution of BiH providing for the institutional mechanisms of the legislative, executive and judicial powers of the State and a human rights catalogue. The agreement has introduced one of the most complicated and wasteful systems of government ever devised, namely a weak and meagre central government (the BiH State), two State-like ethno-nationalist entities (Republika Srpska and the Federation of Bosnia and Herzegovina), 10 Cantons within the Federation of Bosnia and Herzegovina and 142 local Municipalities.43

The Constitution of Bosnia and Herzegovina does not mention the environment and does not reserve exclusive central power of the State in relation to environmental protection. Both Entities of BIH have their own constitutions. The Federation of Bosnia and Herzegovina (FBIH) consists of 10 federal units (Cantons), which are further divided into Cities and Municipalities. The Constitution of FBIH44 mentions environment/ environmental policy at Article 2 which distributes responsibilities for environmental protection both to the Federation government and the Cantons. The Federal Law on Environment45 also prescribes distribution of responsibilities between federal and cantonal governments. In particular, Articles 42 and 43 of the Law on Environmental Protection distribute responsibilities between the Federal Ministry in charge of environmental protection and the cantonal ministries. The Federal Ministry shares with the cantonal ministries responsibility for the analysis and evaluation of the state of the environment and the state of affairs of the protection thereof, set-up and operation of the environmental information system, issuance of environmental permits and organization of the tasks aimed at the prevention or minimization of adverse environmental consequences.

43 G. Ó Tuathail et al., “Bosnia-Herzegovina Ten Years after Dayton: Constitutional Change and Public Opinion” (2006) 47 Human and Social Dynamics Initiative of the U.S. National Science Foundation/Eurasian Geography and Economics 61–75, available at http://www.colorado.edu/ibs/PEC/johno/pub/Dayton10yrsafter.pdf. 44 The Constitution of the Federation of Bosnia and Herzegovina (1994), available at http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_engl.pdf. 45 Zakon o zaštiti okoliša 33/03, available at http://mpz.ks.gov.ba/preuzimanje/ legislativa.

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Exclusive competences of the Federal Ministry include definition of the environmental classification system of substances, products and technologies and the licensing of the distribution or use thereof, participation in the development of the programmes and plans on the use of natural resources and the development and operation of a special environmental protection plan and qualification system and playing the role of the second instance authority for appeals against administrative decisions of the cantonal ministries based on federal laws and other activities concerning environmental protection, which are included in the responsibility of the Federation BiH. The exclusive competences of cantonal ministries include organization of tasks and obligations established by federal laws and other federal regulations and supervision of the enforcement of the cantonal environmental laws and regulations. Finally, in Article 3, the Federal Law on Environment refers to the right to a “healthy and ecologicaly acceptable environment” as a “fundamental constitutional right”. The Constitution of Republika Srpska46 (RS) presents the Republic as a unitary State (Article 2) vested with all State functions and powers but those explicitly allocated to BiH by the Constitution of BiH (Article 3). Local self-government is one of the basic principles of the RS constitutional arrangements (Article 5). Article 35 of the RS Constitution reads: “Everyone shall have the right to a healthy environment. Everyone shall be bound, in accordance with law and within his possibilities, to protect and improve the environment.” Responsibiblity for environment protection is assigned to the Republic (Article 68), but also to the Municipalities (Article 102). However, the Constitution is quite general on the specific duties and powers of these two governance layers: in the scope of its competences, the Republic shall “regulate and assure environment protection” while the Municipality shall, through its respective bodies and in accordance with legislation “take care about satisfaction of citizen’s needs” in various fields such as culture, education and health, including environment protection. Distribution of powers is more precisely defined by the Law on Envi­ron­mental Protection of the RS47 in Articles 42, 43 and 44. The role of local authorities is minimized and limited to the issuance of environmental permits and other tasks specifically defined by sectoral legislation. The Ministry in charge of environmental protection is entitled to perform

46 The Constitution of Republika Srpska (1992), available at http://www.uni-graz.at/ opv1www_constitution_republikasrpska.pdf. 47 Zakon o zaštiti okoliša 28/07 (Republika Srpska).



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administrative supervision over local administration in charge of environment protection. Environmental management in the Republika Srpska is much more centralized than in the FBiH. Horizontal distribution of powers in RS is quite interesting: according to the Article 42 of the Law on Environmental Protection, each ministry shall appoint an advisor for environmental issues. The work of these advisors shall be coordinated by the advisor appointed by the Ministry in charge of environmental protection. Brcko District has its own statute48 as a supreme legal act. In the statute, the District is defined as “single administrative unit of local selfgovernment existing under the sovereignty of Bosnia and Herzegovina”.49 The functions and powers of the District (Article 9) include environmental protection, thus the District enacted the Law on Environmental Protection,50 which distributes powers in environmental matters to the District assembly, the Mayor of the District, the Advisory Council for Environment, the Counsellor for Environment and the Designated Authority for Environment. This rather complex structure composed of different actors legislates, coordinates, decides and provides advice and opinions regarding environmental protection, whereas the Designated Authority for Environment plays the role of an executive body. Finally, the Law on Environmental protection of the Brcko District states: “everyone has the fundamental constitutional right to a healthy and ecologicaly acceptable environment.” The World Bank in its report Journey to a cleaner future – Investing in people and institutions that make environmental laws work51 states that Bosnia and Herzegovina’s mixed government structures present unique challenges, illustrating this with a table showing a “fragmentation index” to highlight the relationship between the efficiency and complexity of the environmental institutional set-up. In a structure like the one in Bosnia and Herzegovina, several layers of government can be identified and analysed. Cooperation between the 48 Statut Distrikta Brčko, Bosna i Hercegovina (Statute of the Brcko District of Bosnia and Herzegovina) 1999, available at http://www.ohr.int/ohr-offices/brcko/default .asp?content_id=5367. 49 Ibidem Art. 1. 50 Zakon o zaštiti okoliša 24/04 (Brčko District), available at http://www.ippc.ba/ images/stories/downloads/BD_LEGISLATION/zakon%20o%20zastiti%20zivotnog%20 okolisa%20sl.%20glasnik%20bd%2024–04.pdf. 51 World Bank, Journey to a Cleaner Future – Investing in People and Institutions that Make Environmental Laws Work (2007), available at http://siteresources.worldbank.org/ INTECAREGTOPENVIRONMENT/Resources/511168–1191448157765/CleanerFuture Roadmap.pdf.

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olivera kujundzic Ministries Environmental Other administrative Protection Agencies bodies

Bosnia and  Herzegovina Entity FBiH Entity RS Brcko district

3 3 3 5

1 1

2 5

State level and the Entities, especially in the environmental field is far from satisfactory and has to be strengthened by the more prominent role of the central State level. Conversely, the cooperation of the Entities and their respective local units is considered mainly politically driven: “It seems that in the RS as well as in the FBiH, the main rationale of the institutional arrangements and of the division of responsibilities, and in particular of decentralisation, is to secure ethnically homogeneous government units.”52 So far, the efforts invested in formal cooperation/coordination procedures are limited to the establishment of a “Competent Inter Entity Environmental Body” in charge of inter-entity cooperation on environmental matters and development of an inter-entity environmental programme and Environmental Advisory Councils established on the entity level, in which members shall represent different environmental actors and stakeholders. However, the roles and activities of these bodies do not show satisfactory results. The most recent report on the environmental performance of Bosnia and Herzegovina (2011) states: Environmental management in BiH has suffered from the absence of a Statelevel authority with a strong legal mandate, and from a very complex administrative system that is further complicated by the poor delineation of responsibilities between the State and the entities.53

The European Commission’s Progress Report for Bosnia and Herzegovina (2010)54 states that: 52 OECD, Bosnia and Herzegovina: Decentralisation Process (2008), available at http:// www.oecd.org/dataoecd/12/1/36479798.pdf. 53 UNECE, Environmental Performance Review – Bosnia and Herzegovina (2011), available   at   http://www.unece.org/fileadmin/DAM/env/epr/epr_studies/bosnia_and _herzegovina%20II.pdf. 54 European Commission, Bosnia and Herzegovina 2010 Progress Report Brussels, SEC (2010) 133, 19 November 2010, available at http://ec.europa.eu/enlargement/pdf/key _documents/2010/package/ba_rapport_2010_en.pdf.



environmental governance in the western balkans255 Coordination between the various administrations remains weak. Sustained efforts remain necessary to prevent political interference and to limit the role played by political affiliation in appointments. Progress towards the establishment of a professional, accountable, transparent and efficient civil service based on merit and competence also needs further attention. […] Bosnia and Herzegovina’s administrative capacity in the environment sector remains overall weak. […] A State-level environmental law providing for harmonised environmental protection and an adequate legal and institutional framework were not adopted. A State-level Environmental Protection Agency, which is a European Partnership priority, needs to be established. Environmental institutions do not have the capacity to implement and enforce legislation at entity, Canton and local levels. Integration of environmental concerns in other sectors remains weak.

Thus, current institutional architecture is prone to conflicts and needs to be simplified and streamlined to respond to environmental challenges. The financial aspect is also very important. The decentralization process in Bosnia and Herzegovina has not been followed by economic and fiscal arrangements yet. Being a potential candidate country, environmental management in Bosnia and Herzegovina is affected by demands stemming from the EU accession process. The main recommendation given in the Enlargement Strategy (2010–2011)55 is that Bosnia and Herzegovina needs to form a Government committed to the country’s EU future and to speed up relevant reforms. At the moment, approximation efforts in the environmental field are considered to be at an early stage. Therefore, the number of institutional conflicts remains the same despite the influence of the approximation process; nonetheless, these conflicts have become more visible and constitute an argument in the EU/BiH dialog. The role of the Constitutional Court of Bosnia and Herzegovina has exclusive jurisdiction to decide on any dispute that arises under the Constitution between the Entities or between Bosnia and Herzegovina and an entity or entities, or between institutions of Bosnia and Herzegovina. The case law of the Constitutional Court does not relate to environmental matters,56 thus the Court does not affect the allocation of legislative/ 55 European Commission, Enlargement Strategy and Main Challenges 2010–2011, COM (2010) 660, 9 November 2010, available at http://ec.europa.eu/enlargement/pdf/key _documents/2010/package/strategy_paper_2010_en.pdf. 56 F. Vehabović, Bulletin of the Constitutional Court of Bosnia and Herzegovina, No. 1 (Sarajevo, Constitutional Court of BiH, 2006), available at http://www.ccbh.ba/public/ down/Bulletin%202005_english.pdf; Z. Đuričić (ed.), Digest of the Case Law of the Constitutional Court of Bosnia and Herzegovina (Sarajevo, Constitutional Court of BiH, 2009), available at http://www.ccbh.ba/public/down/Digest_CCBH.pdf.

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administrative powers regarding environmental protection or play a significant role in solving conflicts among different institutional actors. Environmental protection in Bosnia and Herzegovina is in the hands of environmental inspection. Since 2006, all entity level inspectorates (including non-environmental ones) have been subordinated to a single entity-level administration for inspection activities. As a result of this consolidation of inspectorates, the functions dealing with permits and inspections are strictly separated. Although this separation is essential for a well-functioning compliance and enforcement mechanism, other requirements also exist. For example, an adequately clear permit system is unarguably part of a successful compliance regime. Inspectors cannot do their work if requirements are unclear and can be interpreted in different ways. All 10 Cantons in FBiH have environmental divisions, with different departments for issuing permits and undertaking inspections. In RS, the Municipalities issue environmental permits for smaller companies and carry out inspections of such permits. The inspectorates of the ministries are combined in the Administration for Inspection Activities, which is also an independent body. In the latest Report on Environmental Performance in BiH, the following were highlighted as the main shortcomings of the enforcement mechanisms: In BiH there are several thousand installations, which do not have an environmental permit and it is estimated that more than 50% of those which are obliged to request one, do not do so. The FBiH Administration of Inspection Services and the RS Administration for Inspection Activities are mandated to take action against this and this illegal situation needs to be resolved. Drawing up a comprehensive register of these installations and ensuring effective coordination within each entity between the respective environmental authorities and the inspectorates, will be a basis for further success. […] The public administration in BiH is very complex for political and institutional reasons, including the existence of up to four layers of administration that are not always well coordinated. In these circumstances, it is essential that the regulatory and control aspects are very precisely defined. Delays, gaps, overlapping, duplication, unequal application of standards, and unequal treatment of violations may occur. Adequate horizontal and vertical coordination mechanisms are of great importance.

In Bosnia and Herzegovina legislation related to public participation in environmental matters is quite similar between Entities and Brčko District, but not the same. All three laws on environment (FBiH, Republika Srpska and Brčko District) recognize the difference between “public” and “concerned public” which are very similarly defined. Differences mostly arise



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when it comes to the question of who qualifies as “concerned public”. The FBiH definition of the public concerned includes the public with an interest in environmental decision-making due to location or the nature of the project, or those affected or likely to be affected by the planned project or activity, as well as NGOs which promote environmental protection. The Law on Environment of the Federation of Bosnia and Herze­govina57 does not set-up detailed conditions for nongovernmental organizations to consider them as “public concerned”. In the respective laws of the Republika Srpska and Brčko District, these conditions are defined differently. In Republika Srpska, a nongovernmental organization which specified environmental protection in its statute as its mission and has been active in environmental protection for at least two years has the right to be put on the list of the ministry competent for environment protection. Only NGOs on the ministry’s list can exercise rights granted by the law. In District Brčko, conditions are not so strict, environmental NGOs can only be registered on the territory of the District. Despite of the aforementioned constraints related to NGOs, both environmental protection laws of Republika Srpska and of Brčko District58 have the same provision that confronts these constraints. In both of the laws Article 30 prescribes: Provisions of this law allow for public access to information, public participation in decision-making and access to justice in environmental matters, regardless of citizenship, nationality or place of residence and for legal persons regardless of the head office location.

Formal procedures involving public participation are ensured in procedures on the Environmental Impact Assessment of projects and in procedures on issuing environmental permits for installations in both of the Entities. The real impact of public participation is only visible through specific cases. UNECE’s Report on environmental performance gives the following highlights: Some 20 NGOs are regularly involved in EIA in the country. A project on the road from north to south over the period 2008–2010 is an example of a project that was amended in the light of public hearings. At present,

57 Zakon o zaštiti okoliša 33/03 (BiH), available at http://www.ippc.ba/index .php?option=com_content&view=article&id=70&Itemid=105&lang=en. 58 Zakon o zaštiti okoliša 28/07; Zakon o zaštiti okoliša 24/04, available at http://www .ippc.ba/index.php?option=com_content&view=article&id=73&Itemid=109&lang=en.

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olivera kujundzic a project on the construction of a hydropower plant on the Drina River is at the stage of extensive public consultation.

In Bosnia and Herzegovina individuals and public interest groups are legitimated to litigate on behalf of the environment under rather narrow conditions: “If they participated in the first instance procedure, the members of the public concerned have the right to appeal and to initiate a review procedure before the court to challenge the substantive and/ or procedural legality of any decision, act or omission.”59 Overall, the implementation of the Aarhus Convention in Bosnia and Herzegovina is considered as being in an early stage.60 4. Trends and Highlights Most of the Western Balkans countries are new States that emerged from the dissolution of the former Yugoslavia. This novelty applies also to environmental governance. The legacy of their common past is still reflected in the constitutional provisions of the selected countries. The political will toward environmental protection (especially in Montenegro) is linked with the lack of rules and procedures to achieve it. On their path to EU accession, these countries had to introduce new provisions and institutes and show a high degree of openness and flexibility in accepting them. However, the deep roots of common bureaucracy and a former strong federal administration are still a present and common heritage with which they must deal. Moreover, lack of capacities, especially at the local level, presents another challenge for the successful decentralization of powers. Weak delineation between roles and responsibilities is another common feature of the institutional frameworks of the analysed countries, especially in the environmental sector. It can be expected that after Croatia becomes a EU Member State, the role of regional self-government units will become stronger which will contribute to decentralization efforts. In Montenegro, to decentralize powers and responsibilities, it is necessary to seriously enforce local capacities. In Bosnia and Herzegovina which is already quite decentralized, the situation is opposite. According to the EU, to ensure harmonised countrywide environmental protection “BiH will have to

59 Zakon o zaštiti okoliša (BiH) supra. 60 European Commission, Bosnia and Herzegovina 2010 Progress Report supra.



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strengthen its environmental protection institutions, in particular at State level.”61 It seems that the approximation to the EU environmental legislation leads to additional institutional tensions for the fulfilment of new obligations, but it also triggers tailor-made strategic institutional reforms that are necessary in most of the cases and are capable of solving institutional conflicts. In the pre-accession phase, legal frameworks of candidate countries are going through a huge transformation. Absorbing an enormous corpus juris of the EU is not sufficient, it requires reforms related to judiciary rules and procedures and changes the system of legal protection in many ways. The countries of the Western Balkans are clearly in different phases of this process. The role of civil society becomes more prominent and important. Still, transformation of public administration from ruler into service provider is not an easy task. 5. EU Environmental Governance and the Western Balkan Countries Achievement of good environmental governance in accordance with EU principles poses a great challenge for Western Balkan countries, especially considering that on-going institutional reform and transformation is coupled with growing environmental legislation and necessary investments in the environment sector. Keeping in mind that environmental institutional frameworks in these countries suffer from an acute lack of capacity and that the range of their obligations is growing with each step toward approximation to the EU, it is understandable that all the requirements cannot be fulfilled at once – because it is a time-consuming process. The current fragmented systems and limited institutional capacities for coping with the EU demanding approximation process present the main obstacles to reaching a satisfactory level of coherence of environmental governance in the Western Balkans. To obtain wide participation of the general public in environmental governance, constant empowerment of the civil sector is necessary as well as public awareness activities. The role of the media is important to this end. Lack of specific knowledge is a decisive factor; strong profiles of environmental journalists, lawyers or NGOs still have to be built. 61 European Commission, Bosnia and Herzegovina 2009 Progress Report, SEC (2009) 1338,   14   October   2009,   available   at   http://ec.europa.eu/enlargement/pdf/key _documents/2009/ba_rapport_2009_en.pdf.

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A clear definition and division of legislative and administrative com­ petences is still lacking and this uncertainty poses one of the main threats to the good environmental governance in the analysed countries. Effec­ tiveness of policy and legislation in the environmental sector is currently measured in terms of compliance with EU requirements and not by their impact at the local level. However, traces of the rigid and bureaucratic administration are still present in the countries of the former Yugoslavia, weakening an effective implementation at the local level. A more efficient judicial system is another prerequisite for good governance. In this regard, although Croatia had already invested significant efforts to achieve a sufficient level of compliance with EU requirements, Montenegro is only halfway there and Bosnia and Herzegovina is still lagging behind. The countries of the Western Balkans have experienced long period of high political and social instability, conflicts and economic crisis. Over­ coming these difficulties through transition toward a market economy and European integration offers a unique opportunity to get environmental matters back on the top of the political agenda for the first time since the beginning of the 1990s. It brings hope that the countries of the region will manage to build suitable institutional frameworks capable of protecting their rich natural heritage, improving environmental protection and facilitating a shift from outdated technologies to green economies. Bibliography S. Bringezu and R. Bleischwitz, Sustainable Resource Management: Global Trends, Visions and Policies (Sheffield, Greenleaf Publishing, 2009). Z. Ðuričić (ed.), Digest of the Case Law of the Constitutional Court of Bosnia and Herzegovina (Sarajevo, Constitutional Court of BiH, 2009), available at: http://www.ccbh.ba/public/ down/Digest_CCBH.pdf. Interim Report on the Work of Environmental Inspection of Montenegro (2011). Ministry of Environmental Protection, Physical Planning and Construction of the Republic of Croatia, Aarhus Convention Implementation Report (2009). Ministry for Sustainable Development and Tourism, Guidance on Criteria and Procedures for the Designation of NGO Representatives in Working Groups and Other Working Bodies (2011). Ministry of Sustainable Development and Tourism of Montenegro, Report on Implemen­ tation of Aarhus Convention in Montenegro (2011). OECD, Bosnia and Herzegovina: Decentralisation Process (2008), available at http://www .oecd.org/dataoecd/12/1/36479798.pdf. G. Ó Tuathail et al., “Bosnia-Herzegovina Ten Years after Dayton: Constitutional Change and Public Opinion” (2006) 47 Human and Social Dynamics Initiative of the U.S. National Science Foundation/Eurasian Geography and Economics 61–75. Report on Implementation of Aarhus Convention in the Republic of Croatia (2009). UNDP Regional Bureau for Europe and the CIS Publikum, Environmental Policy in SouthEastern Europe (2007).



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UNEP and EEA, Challenges ahead for South-East Europe, the Caucasus and Central Asia (2007). UNECE, Environmental Performance Review – Bosnia and Herzegovina (2011). UNEP-MAP-Plan Bleu, State of the Environment and Development at Mediterranean (2009). F. Vehabović, Bulletin of the Constitutional Court of Bosnia and Herzegovina, No. 1 (Sarajevo, Constitutional Court of BiH, 2006), available at http://www.ccbh.ba/public/down/ Bulletin%202005_english.pdf. World Bank, Journey to a Cleaner Future – Investing in People and Institutions that Make Environmental Laws Work (2007).

PART II CASE STUDIES: THE MANAGEMENT AND PROTECTION OF WATER RESOURCES

PART II A: A SUPRANATIONAL (QUASI-FEDERAL?) ORGANIZATION: THE EU

WATER MANAGEMENT AND PROTECTION IN THE EU Elisa Morgera1 Introduction In this chapter, the author analyses the Water Framework Directive (WFD)2 as the key legal instrument regulating water management and protection at the level of the European Union (EU) from the viewpoint of involving different levels of government in water governance. In particular, this chapter will start by identifying the institutional roles and responsibilities for water management and protection deriving from the innovative regulatory approach of the WFD and from its interactions with the Floods Directive,3 as well as its public participation dimensions. The chapter will then turn to a discussion of relevant elements emerging from the practice, most notably through the implementation of the WFD at the EU level in the context of the Common Implementation Strategy, but also from incipient case law and cooperation with international river commissions. The final section of this chapter will single out lessons learnt and continuing challenges in effectively and openly involving different levels of government in water management and protection at the EU level. Before examining the details of the WFD it is worth recalling that prior to its advent, EU water law and policy had developed in a piecemeal fashion, first focusing on narrow-scope pieces of legislation on different types of water use or water pollution (e.g., surface water use, quality of drinking water, discharge of dangerous substances into the water, quality of fishing water) in the 1970s and then in the early 1990s, focusing more on implementation challenges and subsidiarity issues. These instruments had been criticised for being out of date, contradictory and “ill-equipped

1 Lecturer in European Environmental Law, School of Law, University of Edinburgh, Edinburgh, UK. 2 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (2000) OJ L327/1 (hereinafter, WFD). 3 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (2007) OJ L288/27.

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to accommodate subsequent advancements in scientific expertise.”4 Inte­ gration of these multiple instruments and approaches was thus one of the ambitious objectives pursued through the enactment of the WFD, although the overall approach of EU water policy remains mainly focused on meeting human needs and protecting the aquatic environment against human-induced pollution.5 1. The Normative Innovations and Institutional Implications of the Water Framework Directive The Copernican revolution brought about by the WFD in water management at the EU level concerns first and foremost its focus on the river basin6 as the ecological unit determining the government structure for water management. The Directive therefore centres on the role of the river basin district, the main unit for the management of river basins;7 that is, “natural units are the focus of regulation.”8 River basins, or “catchment areas” or “watersheds”,9 describe the drainage area of rainwater from mountain to sea.10 Notably, this departure point implies that water 4 D. Matthews, “The Framework Directive on Community Water Policy: A New Approach for EC Environmental Law” (1997) 17 Yearbook of European Law 191–206, at 198. On the poor record of implementation of earlier EU water law, see A. Jordan, “European Community Water Policy Standards: Locked in or Watered down?” (1999) 37 Journal of Common Market Studies 13–37, at 13. 5 WFD supra, Art. 22 on the phased repeal of earlier pieces of EU water law; but note also that the WFD allows for the successive adoption of “daughter directives” (two daughter directives have been adopted at the time of writing: Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (2006) OJ L372/19; and Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy (2008) OJ L348/84). See generally J. Jans and H. Vedder, European Environmental Law (Groningen, Europa Law Publishing, 2008), at 346–347. 6 That is, the area of land from which all surface run-off flows through a series of streams, rivers and possibly lakes into the sea at a single river mouth, estuary or delta (WFD supra, Art. 2(13) ). 7 The area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters (WFD, Art. 2(15) ). 8 E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” (2009) 6 International Organizations Law Review 191–223, at 195, 199. 9 H. Josefsson and L. Baaner, “The Water Framework Directive – A Directive for the Twenty-First Century?” (2011) 23 Journal of Environmental Law 463–486, at 463. 10 European Commission, Commission Staff Working Document: Accompanying document to the Communication from the Commission to the European Parliament and the



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management needs to be based on the integrated nature of the water cycle, its links with land use, and the needs of water-dependent organisms beyond humans, thus “framing regulation around hydrological complexities rather than administrative convenience.”11 Member States have some discretion in identifying river basins in their territories and relevant river basin districts, and on that basis, they can establish the “appropriate competent authority”, including administrative arrangements for international river basin districts where needed.12 Already in its Preamble, the Directive emphasizes the need for “close cooperation and coherent action” at EU, Member State and local levels, with a view to taking into account “diversity” in the planning and execution of water-management measures, making decisions “as close as possible to the locations where water is affected or used” and adjusting programmes of measures to “regional and local conditions”.13 The prominent integration operated by the Directive will particularly impact the way water administration works at various government levels, making the need for coordination even greater: the Directive integrates quality and quantity aspects of water management; integrates management of all freshwater resources, coupling surface and groundwater management; and combines emission and quality standards.14 The tasks of competent authorities are quite demanding: by requiring them to coordinate all programmes of measures for the whole river basin district, with a view to achieving the environmental objectives established by the Directive,15 competent authorities are to: implement measures to prevent the deterioration of the status of all bodies of surface water and progressively reduce pollution from priority substances, as well as protect, enhance and restore all bodies of surface water; protect, enhance and Council, ‘Towards Sustainable Water Management in the European Union’, First stage in the implementation of the Water Framework Directive 2000/60/EC, SEC (2007) 362, 23 March 2007, at 5. 11 M. Lee, “Law and Governance of Water Protection Policy” in J. Scott (ed.), Environmental Protection: European Law and Governance (Oxford, Oxford University Press – OUP, 2009), at 29. 12 WFD supra, Art. 3(1)–(3). 13 Ibidem Preamble, Paras 14 and 13, which reflect the relevance of the environmental conditions and balanced development of regions within the EU reflected at Art. 194 TFEU (WFD Preamble, Para. 12). See Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) 2010/C 83/01. 14 For a systematic discussion of integration in the WFD, see D. Grimeaud, “The EC Water Framework Directive – An Instrument for Integrating Water Policy” (2004) 13 Review of European Community and International Environmental Law 27–39, at 27. 15 WFD supra, Art. 3(4).

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restore all bodies of groundwater, implementing necessary measures to reverse any significant and sustained upward trend in the concentration of pollutants; and designate “protected areas” subject to placing stricter protection measures and “artificial or heavily modified waters” subject to exceptions.16 Again, significant flexibility is left to Member States’ water authorities; they are ultimately required to achieve “good water status by 2015”.17 Lee has considered this notion to be central to the Directive’s reliance on multi-level governance by allowing its definition to be worked out in the future, “in a continuum of decisions at different levels of government”.18 These overall tasks are underpinned by a variety of other procedural obligations also placed on the shoulders of water authorities. First, several information-gathering requirements are in place: water authorities are to carry out an analysis of the characteristics of each river basin district, review the environmental impacts of human activities and undertake an economic analysis of water use, in accordance with technical specifications set at the EU level and subject to review and update.19 Second, water authorities are to establish programmes for the monitoring of water status with a view to providing a coherent and comprehensive overview of water status in each river basin district.20 Third, authorities are to develop programmes of measures and management plans21 for each river basin, which are subject, once again, to regular review and update including of permits and authorizations issued in accordance with the programme of measures.22 Fourth, water authorities have specific public information and consultation duties, in particular at the stage of the elaboration and review of the management plans.23

16 Ibidem Art. 4. For a critique of the objective, see G. Kallis and D. Butler, “The EU Water Framework Directive: Measures and Implications” (2001) 3 Water Policy 125–142, at 125. 17 On the enforceability of these provisions, see D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part I)” (2001) 10 European Environmental Law Review 41–51, at 41; D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part II)” (2001) 10 European Environmental Law Review 88–97, at 88; and D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” (2001) 10 European Environmental Law Review 125–135, at 125. Grimeaud distinguishes between “baseline obligations”, “further environmental obligations” and “clear-cut obligations” arising from the Directive. 18 M. Lee, “Law and Governance of Water Protection Policy” supra, at 30. 19 WFD supra, Art. 5. 20 Ibidem Art. 8. 21 Ibidem Art. 11 and 13. 22 Ibidem Art. 11(5). 23 Ibidem Art. 14.



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These procedural obligations have been considered individually and as a whole “onerous” and “influential” in encouraging institutions “to learn, to revisit decisions and to generate and absorb new information.”24 Several procedural obligations also exist related to providing explanations and justifications (for instance, in relation to the river basin management plans and the application of exceptions) with the result that water authorities are to make reasoned public commitments in relation to their interpretation and implementation choices vis-à-vis the WFD, as well as allow public scrutiny of the approach taken for each river basin district.25 All the procedural obligations cannot, however, be considered devoid of substantive content, in that they are linked to the overall environmental objectives of the Directive and are thus to be “conducted purposively”, that is, for the purpose of “actually meeting” the environmental objectives of the WFD within the set deadlines.26 Clear-cut obligations concern: preventing further deterioration of water bodies; ensuring that protection achieved is at least as good as it was under the past EU water regime; and complying with relevant EU directives that are not integrated in the WFD, notably the Birds and Habitats Directives.27 Finally, as per usual EU practice, Member States are to put in place effective, proportionate and dissuasive penalties.28 Overall, the objectives and tasks of the Directive have been considered extremely ambitious in “expand[ing] on formal hierarchical relationships between different levels of government, and in [having] the potential to disrupt regulatory assumptions at all levels,”29 thus creating significant constraints for water authorities at all levels. In particular, the WFD introduced an unprecedented water management approach, building on the avoidance of overlaps between standards and emission controls for all water bodies, the phasing out of most hazardous discharges, a strategy for groundwater management, and the promotion of water pricing to favour sustainable water use (albeit without making full cost recovery

24 M. Lee, “Law and Governance of Water Protection Policy” supra, at 36–37. 25 Ibidem at 37. 26 W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” (2009) 21 Journal of Environmental Law 391–417, at 395. 27 D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” supra, at 135. 28 WFD supra, Art. 23. 29 M. Lee, “Law and Governance of Water Protection Policy” supra, at 27.

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compulsory).30 Ambition can also be detected in the tight timeframes for implementation envisaged in the Directive.31 In addition, the open-ended text of the Directive and its heavy reliance on the subsidiarity principle also imply that “national and local competent authorities” will face challenges in understanding their specific role in implementing the Directive.32 On the one hand, the flexibility of the WFD allows for “negotiation of implementation beyond the letter of the legislation”; on the other hand, to do so, it relies on heavy requirements of information-gathering and fast-learning.33 Its focus on adaptive management has equally forced authorities at all levels to enhance their practices, or even revolutionize them by analysing the features of river basin districts, systematically and continuously monitoring them, setting up ambitious and integrative programmes of measures, and simultaneously  laying down environmental quality standards and emission limit values.34 Notwithstanding the emphasis on subsidiarity in the WFD, the role of the European Commission remains significant: it reviews the management plans, analyses and monitoring programmes elaborated at the Member State level and reports on progress in implementing planned programmes of measures;35 it can also provide recommendations for the resolution of issues having an impact on water management reported to it by any Member States.36 In addition, the Commission is empowered to propose the establishment and maintain the updating of a list of priority substances presenting a significant risk for the aquatic environment, with a view to framing EU-wide, legislative-specific measures against water pollution, as well as preparing strategies against water pollution37 and making proposals for EU-wide legislative measures to prevent and control groundwater pollution.38 Furthermore, the Commission can make

30 D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” supra, at 134–5. WFD supra, Art. 10 concerns recovery of costs for water services.  31 W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” supra, at 395. 32 D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part II)” supra, at 91. 33 M. Lee, “Law and Governance of Water Protection Policy” supra, at 27. 34 D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” supra, at 134. 35 WFD supra, Art. 15. 36 Ibidem Art. 12. 37 Ibidem Art. 16. 38 Ibidem Art. 17.



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suggestions for the improvement of future water basin management plans in its periodic reports on the implementation of the Directive.39 Although these powers can certainly be exercised in a persuasive and pervasive manner in “steering” implementation at the Member State level, they are also coupled with certain participatory guarantees. Accordingly, the Commission is mandated to convene “as appropriate” a conference of interested parties including water authorities, European Parliament representatives, as well as NGOs, social and economic partners, consumer bodies, academics and other experts to comment on the Commi­ ssion’s  implementation reports and to share experiences.40 These multistakeholder events could reasonably be expected to contribute to the Commission’s plans for future EU-wide measures and technical adaptations of the Directive,41 and more broadly to the creation of a useful network for mutual learning and peer review of implementation practices at different levels of government across the EU. Beyond these expectations, the practice related to this provision has evolved into a complex “Implementation Strategy” (examined below). In addition, it should also be remarked that a dialogue can be initiated between the Commission and the Member State about the latter’s compliance with environmental quality objectives, with the possibility for the Member State to “point to actions that might be taken at the [EU] level”, and the Commission being bound to reply within six months.42 2. Further Layers of Institutional Cooperation under the Floods Directive The WFD implementation is linked to that of the Floods Directive, which builds on the identification of river basin districts under the WFD43 while calling for the selection of competent national authorities that are different from those under the WFD and the establishment of management units that are different from those established under the WFD.44 These authorities are mandated to carry out a preliminary flood risk assessment 39 Ibidem Art. 18(2)c. 40 Ibidem Art. 18(5). 41 Ibidem Art. 19–20. 42 Ibidem Art. 12. E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” supra, at 213. 43 Floods Directive supra, Art. 2. 44 Ibidem Art. 3(2).

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with a view to identifying areas in which potential significant flood risks exist or might be considered likely to occur, as well as to prepare flood hazards maps and flood risks maps, and develop flood risk management plans.45 The Floods Directive provides for a series of additional institutional and international coordination obligations. First, it calls for the exchange of information between competent national authorities in different Member States when undertaking preliminary flood risk assessments for international river basin districts.46 Second, Member States have to engage in “prior” information exchange in the preparation of hazard and risk maps for international river basin districts, with a view to producing one single international flood risk management plan.47 Third, Member States are requested to show solidarity by not including (or by coordinating and agreeing to a solution with other Member States on) measures in their flood risk management plans that may significantly increase flood risks upstream or downstream of other countries.48 Some administrative economy can be achieved by synergizing the implementation of the WFD and Floods Directive, as explicitly identified in the latter: Member States are required to coordinate the application of the two instruments “focusing on opportunities for improving efficiency, information exchange and for achieving common synergies and benefits.”49 Specifically, Member States must ensure consistency of information in the respective planning processes, coordinate these processes with a view to possibly integrating the first flood risk management plans and their reviews into the reviews of the river basin management plans, as well as coordinate public involvement under the two directives.50 3. Public Participation Water authorities’ public information and consultation duties under the WFD, particularly at the stage of the elaboration and review of the management plans,51 have been considered much more advanced than in previous EU environmental law. Although their language does not employ 45 Ibidem Art. 4–7. 46 Ibidem Art. 4(3). 47 Ibidem Art. 6(2) and 8(2)–(3). 48 Ibidem Art. 7(4). 49 Ibidem Art. 9. 50 Ibidem Art. 9(1)–(3). 51 WFD supra, Art. 14.



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fully mandatory terms, it “comes close to mandating […] in so far as reasonably possible” that Member States take a proactive approach to public participation, in particular to ensure active public participation in the preparation of the management plans.52 Two additional elements not enshrined in the Directive bring to light the proactive character of the participation obligations because guidance for the implementation of the WFD also points to “shared decision-making” and “self-determination” as best practices to ensure that stakeholders feel partly responsible for the outcome of decision-making and for water management itself.53 It should be noted that the intervening EU legislation on implementing the Aarhus Convention on Public Access to Environmental Information, Public Participation in Decision-making and Public Access to Justice in Envi­ ronmental Matters54 left the relevant provisions of the WFD unchanged because they were already considered to be in conformity with the Aarhus Convention.55 The link between the WFD and the Strategic Environmental Assessment (SEA)56 is also significant to further understanding the public participation dimension of EU water law. The link between these two instruments lies in the possibility for the review of the impacts of human activity on water bodies leading to the adoption of river basin management plans to fall under the SEA.57 In that case, the distinct public participation requirements of the SEA apply to the WFD: making available to the public the environmental report on the draft plan; providing an early and effective opportunity for the public likely to be affected by the proposed plan to express their opinion before its adoption; agreeing on arrangements with Member States that are likely to significantly be affected to express their opinion within a reasonable time before the adoption of a plan with potential transboundary impacts; accompanying the adoption of the plan 52 W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” supra, at 404. 53 Ibidem at 405. 54 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) 2161 UNTS 447. 55 W. Howarth, “Substance and Procedure under the Strategic Environmental Assessment Directive and the Water Framework Directive” in J. Holder and D. McGillivray (eds.), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge Cavendish, 2007), at 179. 56 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (2001) OJ L197/30. 57 W. Howarth, “Substance and Procedure under the Strategic Environmental Assessment Directive and the Water Framework Directive” supra, at 151.

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with a reasoned statement, making specific reference to the integration of environmental consideration, the consideration of public opinions and the reasons for adopting the plan in preference to reasonable alternatives; and including information on monitoring.58 These provisions are significant because the SEA Directive is stricter than the WFD in certain public participation requirements, such as: explicit provisions on transboundary consultations; clear requirement for the public opinions to be taken into account in the decision; and the obligation for authorities to inform consulted people as to how their opinions have been taken into account.59 The WFD, in turn, foresees that the final plan adopted under the WFD must provide a summary of public information and consultation measures taken, as well as their results and changes to the plan made as a consequence.60 Advocate General Kokott provided further clarification on these linkages and on the public participation dimension of the WFD. On the former, she came to the conclusion that management plans under the WFD must in principle be the object of a SEA, although that does not necessarily lead to the need to undertake multiple assessments under the various directives, but rather an obligation for the relevant authorities to carry out only one assessment that responds to the different requirements of the various relevant directives.61 As for the latter, she also stressed that the provisions on public participation in the WFD are not subject to any derogation and that legislative measures are not exempted from the public participation requirement, so that the adoption of management plans by legislative or other procedure needs to include the public consultation required by Article 14 of the Directive.62 4. An Analysis of Practice: The Common Implementation Strategy The Common Implementation Strategy (CIS) emerged from the first meeting of the water authorities held in October 2000 and was first formalized in a strategy paper issued in May 2001.63 The purposes of the CIS are to: 58 Ibidem at 179, based on SEA Directives supra, Art. 3(6), 6–9. 59 Ibidem at 181. 60 WFD supra, Annex VII, Para. A9. 61 AG Opinion in ECJ Case C-43/10, Nomarchiaki Aftodiokisi Aitoloakarnanias e.a., Paras 157 and 177–178. 62 Ibidem Para. 126–129. 63 Common Implementation Strategy for the Water Framework Directive: Strategic Document, as agreed by the Water Directors under the Swedish Presidency (2001) (hereinafter, CIS Strategic Document 2001).



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share information between Member States and the Commission; inform and involve the public; ensure coherence between the implementation of the WFD and other sectoral and structural policies, as well as between the WFD and other directives’ implementation; build the capacity of Member States; involve stakeholder and civil society in the WFD implementation; promote a common attitude toward candidate countries regarding their possible involvement for key shared river basin districts; and develop formal guiding and supporting documents on key aspects of the WFD.64 It was also gradually specified that the CIS is about avoiding duplication of efforts and limiting the risks of bad application.65 The Strategy attracted academic attention for its “real potential for administrative and regulatory innovation” by creating a venue for accountability of national authorities of different Member States to each other, to EU institutions and to other experts.66 Basically, the CIS is a network of different levels of government across Member States and at the EU level, as well as between private and public entities joining forces in the implementation of the WFD.67 The CIS is organized at three levels:  1) The Technical/Drafting Groups, in which experts from Member States prepare guidance; 2) The Strategic Coordination Group, in which the Commission and Member States, with the possible invitation of NGOs and other stakeholders, coordinate the working groups and evaluate the outcome of their activities. This is seen as a “managerial body […] that meets regularly to evaluate progress and discuss problems;”68 and 3) The Water Directors, who are the Member States’ representatives with overall responsibility for water policy and who take final responsibility for the published documents and the strategy itself.69 Stakeholder involvement is foreseen in the work of the Strategic Coordination Group as both observers and participants in the specific

64 CIS Strategic Document 2001, at 2–3. 65 Carrying forward the Common Implementation Strategy for the Water Framework Directive – Progress and Work Programme for 2003 and 2004, as Agreed by the Water Directors (2003), at 2 (hereinafter, CIS Progress Document 2003). 66 M. Lee, “Law and Governance of Water Protection Policy” supra, at 28. 67 Ibidem at 46. 68 WWF and European Environmental Bureau, Tips and Tricks for the Water Framework Directive Implementation (Brussels, WWF, 2004), at 7. 69 CIS Strategic Document 2001 supra, at 12–13; see comments by M. Lee, “Law and Governance of Water Protection Policy” supra, at 46–7.

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working groups, although the initial Strategy document notes that this is to be decided on a case-by-case basis. Stakeholder participation is expected to facilitate an exchange of “views and concerns” for discussion between all parties directly responsible for the WFD implementation and those who are interested in or will be affected by it.70 To some extent, the Implementation Strategy contributes to bringing forward regulation of water management in situations in which certain information “simply does not exist yet.”71 Its focus is creating common understanding of methodological questions related to technical and scientific implications of the WFD.72 From another angle, the Strategy may facilitate monitoring of progress in implementation by promoting an exchange of experiences in applying the open-ended provisions of the Directive and complying with the “factors to be taken into account” to that end: these factors are detailed to a significant level in the Directive Annexes to “constrain and attempt to influence decision-making” in Member States.73 The Strategy thereby allows the “testing and validation of different approaches to the Directive,” pooling good practice and information from different sources at different levels of government and from nongovernmental sources, as well as building on shared technical and human resources to the benefit of less economically advanced Member States.74 The Implementation Strategy has resulted in the production of “Guid­ ance Documents” that are non-legally binding documents of a detailed technical nature subject to testing and revision with a view to distilling “agreed positions on areas [of the WFD implementation] in which costs, risks and benefits are distributed,” thus having a significant political dimension.75 The guidance documents are expected to provide advice on operational methods for implementation on which Member States are free to rely on a voluntary basis. In addition, they can form the basis of guidelines that can then be adopted under the Committee procedure foreseen by the WFD – that is, they can be used as informal prepara­tion for the Committee procedure.76 Otherwise, they still represent a “common 70 CIS Strategic Document 2001 supra, at 14–15. 71 M. Lee, “Law and Governance of Water Protection Policy” supra, at 35. 72 CIS Strategic Document 2001 supra, at 2. See also P. Quevauviller et al., “Science-Policy Integration Needs in Support of the Implementation of the EU Water Framework Directive” (2005) 8 Environmental Science and Policy 203–211, at 203. 73 M. Lee, “Law and Governance of Water Protection Policy” supra, at 36. 74 Ibidem at 47. 75 Ibidem at 47–8. 76 Under WFD supra, Art. 21. CIS Strategic Document 2001 supra, at 2.



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working basis for implementation”.77 The Guidance Docu­ments are to be developed as practical, operational guidance that is both policy and implementation oriented, based on existing practices of Member States.78 Lee considered the Guidance Documents to be potentially enormously influential in a demanding implementation process, particularly in Member States with fewer resources to devote to environmental regulation (precisely those Member States least likely to be influential in the negotiations of the documents).79 Another key aspect of the CIS is the “inter-calibration exercise”, which is a process at the EU level (facilitated by the Commission) through which comparability of national implementation efforts (notably, biological monitoring results) are examined in relation to the environmental “good status” objectives. In other words, the exercise is a process to “compare the national ecological assessment systems and to ensure that the ambitions of the Member States are at similar levels and consistent with the WFD,” with a view to ensuring that “good ecological status”,80 the heart of the WFD, means the same in all EU Member States.”81 As a result, the setting of ecological objectives occurs with the cooperation of all Member States leading to a “harmonization” of their understanding in which the Community also participates;82 or, according to others, this process is led by the Commission.83 Through this exercise, the Strategy contributes to further defining the environmental objectives of the WDF through “negotiation, collaboration, and compromise” leading to the joint definition of “ecological status” as a numerical value. Although delays have occurred in this process, it has been considered significant for the opportunities to gather missing data and to learn, as well as to achieve a result that would 77 CIS Strategic Document 2001 supra, at 12. 78 Ibidem at 5. 79 M. Lee, “Law and Governance of Water Protection Policy” supra, at 53. 80 The concept has been critiqued from a contemporary ecological thinking perspective by H. Josefsson and L. Baaner, “The Water Framework Directive – A Directive for the Twenty-First Century?” supra, as compromising the idea of “a resilient ecosystem with a high level of adaptive capacity”. The authors, instead, advocate the need to redefine it as “high ecological status”, as a state of ecosystems that maintain themselves independently of management thanks to a shift from the flawed understanding of resilience as restoration of the pristine to the achievable and functional aim of rehabilitation of stressed ecosystems. 81 SEC (2007) 362 supra, at 8. 82 A. Keessen et al., “European River Basin Districts: Are they Swimming in the Same Implementation Pool?” (2010) 22 Journal of Environmental Law 197–221, at 202. 83 H. Josefsson and L. Baaner, “The Water Framework Directive – A Directive for the Twenty-First Century?” supra, at 466.

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have been impossible to reach simply through legislation.84 This flexible and collaborative approach, which allows inputs from different levels of government in the EU as well as from nongovernmental experts, however, should be assessed against the risk of “extra-legislative imposition of unduly high environmental standards” because the Strategy may be seen as a process of returning to centralization at the EU level and blurring the lines of accountability for choices that should rest with individual Member States.85 It should finally be noted that in parallel with the CIS, the Commission proposed to establish multi-stakeholder consultative fora, including Member State representatives, stakeholders, NGOs and outside experts, as well as representatives of the European Parliament, to provide views on the Commission’s proposals for daughter directives and additional supportive measures.86 Furthermore, the Commission has attempted to increase public participation by requesting pilot river basin leaders provide the list of names and contacts of stakeholders involved in the pilots and ensure that the next progress reports explicitly mention steps taken toward better stakeholder involvement.87 5. An Analysis of Case Law Although several infringement procedures have been initiated by the Commission in relation to the transposition and implementation of the WFD, the European courts have not had many opportunities to contribute to clarifying the interpretation of the WFD yet. In an infringement action against Luxembourg, however, the European Court of Justice discussed the legal nature of the obligations included in the Directive. For instance, the requirements concerning the protective regime of waters used for the abstraction of drinking water are considered to be obligations imposed on Member States concerning the results to be achieved, which should be formulated in a clear and unequivocal manner in national legal measures having binding force.88 In addition, the Court emphasized that WFD

84 M. Lee, “Law and Governance of Water Protection Policy” supra, at 48–50. 85 Ibidem at 51. 86 CIS Strategic Document 2001 supra, at 6. 87 WWF and European Environmental Bureau, Tips and Tricks for the Water Framework Directive Implementation supra, at 59–60. 88 ECJ Case C-32/05, Commission v. Luxembourg, Paras 74–76.



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Article 14 on public information and consultation is intended to confer on individuals and interested parties a right to be actively involved in the implementation of the Directive and, in particular, in the production, review and updating of the river basin management plans. On that understanding, the Court held that a lack of any measures of transposition in national law does not ensure compliance with the public consultation obligation of the WDF, which should be explicitly made legally binding on the competent national authorities with a view to enabling individuals to ascertain, well in advance, the full extent of their rights under the Directive.89 As highlighted earlier, further clarification on the public participation dimension of the WFD may be forthcoming in the decision of the Court on the Greek preliminary reference on which AG Kokott provided her opinion. In the meantime, the monitoring activity of the Commission has highlighted other complex aspects of the Directive implementation. For instance, the Commission has argued that several Member States (Belgium, Denmark, Finland and Sweden) incorrectly implemented the concept of water services under the WFD, leading to inappropriate water pricing in the fulfilment of the obligation to adopt a cost recovery policy for water services that includes the environmental and resource costs of water use, taking into account the polluter-pays principle. Although Belgium, Denmark, Finland, Sweden and Germany considered that cost recovery should apply only to the supply of drinking water and the disposal and treatment of wastewater, the Commission has argued for water services as a wider notion that includes water abstraction for cooling industrial installations and agricultural irrigation, the impoundment or storage of surface waters for navigation purposes, flood protection or hydro power production, and well drilling for agricultural, industrial or private consumption.90 Regarding institutional cooperation, the Commi­ ssion also cautioned against Spain’s approach to implementing the Direc­ tive provisions related to river basin management plans only with regard to rivers that flow between different regions and not to rivers that are completely within the territory of one region.91 89 Ibidem Paras 80–81. 90 Environment: Commission asks Belgium, Denmark, Finland and Sweden to recover costs of all water services, IP/11/1264 of 27 October 2011; and Umweltpolitik: EU-Kommission verlangt von Deutschland umfassende Kostendeckung bei allen Wasserdienstleistungen, IP/11/1101 of 29 September 2011. 91 Environment: Commission urges Spain to complete legislation for river basin management plans, IP/11/1105 of 29 September 2011.

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In the context of the WFD, Member States have the flexibility to use international treaty bodies such as international river commissions to coordinate their implementation activities and may also designate such bodies as competent authorities.92 The Commission has, however, noted that although Member States did not designate an international body as a competent authority for the WFD implementation in relation to international water basins, international bodies have been charged with the task of coordinating the implementation of countries sharing the international river basin and producing an internationally agreed overview report to complement the national reporting to the European Commission.93 Indeed, these international bodies have contributed at the same time to the implementation of EU water law, even without been designated as WFD competent bodies, and to the development and implementation of international law that is part of EU water law and needs to be implemented by Member States through their implementation of the WFD.94 In addition, these bodies facilitate Member States’ compliance with their bestendeavour obligation to establish appropriate coordination with relevant non-Member States through the relevant river basin district.95 Interestingly, the WFD has been having impacts on inter-institutional coordination and public participation as practiced in certain international river commissions: these commissions appear to “have developed working programmes and established working groups that reflect the steps taken to implement the WFD” and have “organized stakeholder or similar events since the entry into force of the WFD.”96 In addition, the interaction between Member States and international river commissions has also led in practice to interaction and cooperation between these international law bodies and local authorities. Hey reports of a project funded through the European Fund for Regional Development among the three Member States sharing the Scheldt river over the period 2003–2008 in which 92 WFD supra, Art. 3(4) and (6). 93 SEC (2007) 362 supra, at 17. 94 E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” supra, at 197, 200. On the latter point, see WFD supra, Art. 1e. 95 E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” supra, at 203. 96 Ibidem at 207.



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regional and local authorities were involved.97 Hey thus argues that similar projects can provide additional funding to stimulate cooperation at the transboundary level in implementing the Directive.98 The same author also points to the potential of the EU Regulation on European Groupings of Territorial Cooperation99 to open the door for the involvement of international river commissions at the sub-river basin level. According to the regulation, such groupings have legal personality bringing together Member States, local authorities and other bodies governed by public law, but do not exercise powers conferred by public law or exercise duties whose object is to safeguard general interests of the State or other public authorities.100 Hey thus sees the potential for institution­ alizing cooperation between water management institutions in differ­ ent  Member States through a form that also binds citizens and that is detached from current private law arrangements and related undue market influences, whereas at the same time, these organizations do not benefit from the immunity under the national law of the participating Member States.101 7. Effectiveness and Accountability, Limits and Challenges The EU water management legal framework is innovative in its approach, allowing for experimentation at different levels of government across the EU, in light of the subsidiarity principle. Such flexibility has been achieved by the EU legislator with a combination of open-ended concepts, procedural constraints102 and the provision of technical specifications in the Annexes to the Directive to guide Member States in the exercise of their discretion. This, coupled with the integrative approach of the Directive, has laid the groundwork for increased interaction and coordination between different levels of government in each Member State. Con­ versely, the Common Implementation Strategy has created an informal,   97 Ibidem at 219.   98 Ibidem at 221.   99 Regulation (EC) No. 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC) (2006) OJ 210/19. 100 E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” supra, at 219–220.  101 Ibidem at 220–1. 102 An approach termed “proceduralization” and discussed by M. Lee, EU Environmental Law: Challenges, Change and Decision-making (Oxford, Hart Publishing, 2005), at Ch. 6.

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but well-established network for dialogue and mutual learning between the authorities of different Member States, as well as with nongovernmental stakeholder experts. The network has facilitated the pooling together of resources and expertise from different levels of government across the EU, as well as produced guidance documents that can facilitate the day-today implementation of the WFD at different levels of government. For present purposes, it can be concluded that although the WFD per se has greatly contributed to decentralization in water protection and management at the EU level by promoting a non-hierarchical, ecology-focused administrative approach around the river basin, the CIS may have at least partly contributed to a sort of re-centralization. The latter is due to the influential “facilitative” role of the Commission in the process and the production of common guidelines that may in practice constrain flexibility and experimentation at the local level. Although it is too early to fully take stock of the successes of the WFD, certain challenges have already been identified. First, not surprisingly, if one considers the limited and weak legal requirements that can be found in the WFD in relation to cross-border administration of international river basins,103 the achievements of the Directive in relation to international river basins may be considered modest. Nonetheless, significant potential has been identified to develop innovative collaborations between local and international authorities in that context. Second, cost effectiveness has been and is likely to continue to be a critical aspect that may undermine the ecologically sound application of the Directive. The analysis, planning and reporting requirements imposed by the WFD are costly and certainly have a bearing on the extent of information gathering undertaken by individual Member States.104 The economic analysis is expected to support the internationalization of environmental costs in water use; the programme of measures refers to the need to make judgments about the most cost-effective combination of measures with respect to water uses to be included and generally the WFD can be seen as an instrument that systematically encourages the “routine consideration of economic issues in water management”.105 The possibilities of abusing the qualified language of the Directive through

103 M. Lee, “Law and Governance of Water Protection Policy” supra, at 38. 104 Ibidem at 39. 105 Ibidem. .



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national interpretations of economic considerations to the detriment of environmental protection are therefore to be watched carefully.106 Public participation in the WFD implementation also remains challenging. Lee commented that the Directive has created “two tiers of participation”: active involvement of “interested parties” including environmental and business interest groups and “mere opportunities” to provide written comments for more general public.107 Similarly, participation and peer review through the Common Implementation Strategy provide opportunities for “accountability beyond the national arena” because of the involvement of the Commission and other Member States, as well as nongovernmental experts, who do not, however, include the general public.108 Although documentation emerging from the Strategy is made publicly available, it may not be easily accessible to non-expert audiences and the proliferation of deliberative or negotiation networks through the Strategy109 can also be seen as a contributing factor to the lack of transparency of that significant process.110 Overall, the highly technical approach to water protection and management as a way to implement subsidiarity in the EU water policy “is capable of excluding broader public discussion.”111 It has also been noted that the WFD lacks any clear guidelines to include water users and other interested parties in the management of water resources or to pay specific attention to gender dimensions of water management or provide specific incentives such as microfinance opportunities that are considered essential for effective decentralization.112 Limitations in public participation (as opposed to expert participation) can have significant negative impacts on the implementation of the Direc­ tive by limiting opportunities to tap into local knowledge, gain insights into social systems and social costs of implementation, increase the acceptability of implementation alternatives, and create opportunities to

106 W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” supra, at 415. 107 M. Lee, “Law and Governance of Water Protection Policy” supra, at 45. 108 Ibidem. 109 Which were acknowledged at CIS Progress Document 2003 supra, at 8. 110 M. Lee, “Law and Governance of Water Protection Policy” supra, at 51.  111 W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” supra, at 415. 112 M. M. Rahaman et al., “EU Water Framework Directive vs Integrated Water Resource Management: The Seven Mismatches” (2004) 20 Water Resources Development 565–575, at 570–2.

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mediate different interests and goals leading to more easily implemented water management decisions.113 These should be countered, however, with the possible burdens or shortcomings of a wider participatory process in the WFD implementation, such as reduced public trust in government decision-making because of open discussions of uncertainties among experts, time and resource constraints on all actors involved, accusations about the strategic use of uncertainty to favour unpopular or delayed or ineffective implementation choices, and the creation of new uncertainties among the experts and government managers involved as a result of the need to take into account the concerns of a wider public.114 In addition, Lee pointed to the extra burden placed on national water authorities as a result of their participation in the Strategy,115 which may subtract time and resources for national implementation work itself as well as to the unequal participation opportunities in the process for larger groups of stakeholders and stakeholders with more resources (notably, industry).116 Questions of transparency and accountability in the CIS also emerged in regard to discussions that entered into legal interpretation of or political considerations related to the Directive, rather than purely focusing on technical issues; the promotion of best practices also inherently meant going beyond the legal requirements of the WDF. This appears to signal the need for increased transparency and clearer distinctions of the different aspects of the discussions.117 As has been observed in the context of the Integrated Pollution Prevention and Control Directive,118 this type of participatory imple­ mentation process may lead to a situation in which older and more resourced Member States may excessively influence the development of guidance, with the result that outcome documents are more suitable for certain Member States than for others and therefore may limit the

113 J. Newig et al., “The Role of Public Participation in Managing Uncertainty in the Implementation of the Water Framework Directive” (2005) 15 European Environment 333–343, at 333. 114 Ibidem. 115 Which were acknowledged at CIS Progress Document 2003 supra, at 6 and 12; as well as in Moving to the Next Stage in the Common Implementation Strategy for the Water Framework Directive: Progress and Work Programme for 2005 and 2006, as Agreed by the Water Directors (2004). 116 M. Lee, “Law and Governance of Water Protection Policy” supra, at 52. 117 CIS Progress Document 2003 supra, at 7. 118 Re-casted as Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (2010) OJ L334/17.



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implementation choices for central and local governments with specific circumstances or constraints.119 The lines of accountability blur in the CIS, and the roles of Member State experts, the Commission and non­ governmental stakeholders are less defined in such a “new governance” framework,120 thus creating another risk of “capture” by powerful industry representatives or larger NGOs. Finally, the flexibility put in place by the WFD will be further tested because the Directive is also used for tackling climate change, in particular, through adaptation.121 The European Commission’s White Paper on Adapting to Climate Change identified the WFD as the key legal mechanism to prepare for, and adapt to, climate change in the water sector.122 To some extent the WFD can already be considered well-equipped to address climate change-related concerns through its emphasis on adaptive management, continuous monitoring, public access to information and public participation in decision-making, as well as its degree of flexibility and expert inputs.123 Conversely, the added technical complexity of climate-proofing water law and related added uncertainties may further complicate an already difficult environmental management task and further alienate the general public. For present purposes, it should thus be stressed that the role of the WFD in climate change adaptation may, on the one hand, emphasize the need for subsidiarity in promoting local information gathering, monitoring, learning and awareness raising. On the other hand, however, it could contribute to a re-centralization because climate change adaptation requires factoring of cumulative impacts beyond the river basin.124 119 M. Lee, EU Environmental Law supra, at 169. 120 J. Scott and D. M. Trubeck, “Mind the Gap: Law and New Approaches to Governance in the European Union” (2002) 8 European Law Journal 1–18, at 1. 121 European Commission, River Basin Management in a Changing Climate – A Guid­ ance  Document (2009), available at http://circa.europa.eu/Public/irc/env/wfd/library?l=/ framework_directive/guidance_documents/ management_finalpdf/_EN_1.0_&a=d. 122 European Commission, White Paper – Adapting to Climate Change: Towards a European Framework for Action, COM (2009) 147 final, 1 April 2009, at 10–11. 123 The WFD appears to include many of the desired elements identified as essential for natural resources law to support climate change adaptation: see generally R. K. Craig, “ ‘Stationarity Is Dead’ – Long Live Transformation: Five Principles for Climate Change Adaptation Law” (2010) 34 Harvard Environmental Law Review 9–75, at 9; A. Camacho, “Adapting Governance to Climate Change: Managing Uncertainty through a Learning Infrastructure” (2009) 59 Emory Law Journal 1–77, at 1. 124 In line with a more general trend in EU Environmental law linked to the emergence of climate change-dominated governance: I. von Homeyer, “The Evolution of EU Environmental Governance” in J. Scott (ed.), Environmental Protection: European Law and Governance supra, at 26.

286

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A. Camacho, “Adapting Governance to Climate Change: Managing Uncertainty through a Learning Infrastructure” (2009) 59 Emory Law Journal 1–77. Carrying forward the Common Implementation Strategy for the Water Framework Directive – Progress and Work Programme for 2003 and 2004, as Agreed by the Water Directors (2003). Common Implementation Strategy for the Water Framework Directive: Strategic Document as Agreed by the Water Directors under the Swedish Presidency (2001). R. K. Craig, “ ‘Stationarity Is Dead’ – Long Live Transformation: Five Principles for Climate Change Adaptation Law” (2010) 34 Harvard Environmental Law Review 9–75. European Commission, River Basin Management in a Changing Climate – A Guidance Document (2009). D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part I)” (2001) 10 European Environmental Law Review 41–51. D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part II)” (2001) 10 Euro­ pean Environmental Law Review 88–97. D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” (2001) 10 European Environmental Law Review 125–135. D. Grimeaud, “The EC Water Framework Directive – An Instrument for Integrating Water Policy” (2004) 13 Review of European Community and International Environmental Law 27–39. E. Hey, “Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law” (2009) 6 International Organizations Law Review 191–223. I. von Homeyer, “The Evolution of EU Environmental Governance”, in J. Scott (ed.), Environmental Protection: European Law and Governance (Oxford, Oxford University Press – OUP, 2009). W. Howarth, “Substance and Procedure under the Strategic Environmental Assessment Directive and the Water Framework Directive” in J. Holder and D. McGillivray (eds.), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge Cavendish, 2007). W. Howarth, “Aspirations and Realities under the Water Framework Directive: Proceduralization, Participation and Practicalities” (2009) 21 Journal of Environmental Law 391–417. M. Lee, EU Environmental Law: Challenges, Change and Decision-making (Oxford, Hart Publishing, 2005). M. Lee, “Law and Governance of Water Protection Policy” in J. Scott (ed.), Enviro­ nmental  Protection: European Law and Governance (Oxford, Oxford University Press – OUP, 2009). D. Matthews, “The Framework Directive on Community Water Policy: A New Approach for EC Environmental Law” (1997) 17 Yearbook of European Law 191–206. J. Newig et al., “The Role of Public Participation in Managing Uncertainty in the Implementation of the Water Framework Directive” (2005) 15 European Environment 333–343. J. Jans and H. Vedder, European Environmental Law (Groningen, Europa Law Publishing, 2008). A. Jordan, “European Community Water Policy Standards: Locked in or Watered down?” (1999) 37 Journal of Common Market Studies 13–37. H. Josefsson and L. Baaner, “The Water Framework Directive – A Directive for the TwentyFirst Century?” (2011) 23 Journal of Environmental Law 463–486. G. Kallis and D. Butler, “The EU Water Framework Directive: Measures and Implications” (2001) 3 Water Policy 125–142.



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A. Keessen et al., “European River Basin Districts: Are they Swimming in the Same Implementation Pool?” (2010) 22 Journal of Environmental Law 197–221. Moving to the Next Stage in the Common Implementation Strategy for the Water Framework Directive: Progress and Work Programme for 2005 and 2006, as Agreed by the Water Directors (2004). P. Quevauviller et al., “Science-Policy Integration Needs in Support of the Implementation of the EU Water Framework Directive” (2005) 8 Environmental Science and Policy 203–211. M. M. Rahaman et al., “EU Water Framework Directive vs Integrated Water Resource Management: The Seven Mismatches” (2004) 20 Water Resources Development 565–575. J. Scott and D. M. Trubeck, “Mind the Gap: Law and New Approaches to Governance in the European Union” (2002) 8 European Law Journal 1–18. WWF and European Environmental Bureau, Tips and Tricks for the Water Framework Directive Implementation (Brussels, WWF, 2004).

PART II B: CLASSIC FEDERAL MODELS

WATER MANAGEMENT AND PROTECTION IN THE USA LeRoy Paddock1 and Lea Colasuonno2 Introduction: The Clean Water Act Framework as it Applies to Chesapeake Bay The Chesapeake Bay, situated along the eastern coast of the United States, is one of the largest and most biologically productive estuaries in the world.3 The watershed feeding the Bay includes six States and the District of Columbia, covers 165,760 square kilometres (64,000 square miles), is home to nearly 17 million people,4 and over 3,600 species of plants, fish, and animals.5 Partially because of this exceptionally large watershed, the Bay has experienced significant deterioration in water quality, primarily from excess nitrogen, phosphorus, and sediment, over the last several decades. Three States and the District of Columbia border the tidal Chesapeake, and parts of three other States are within the Chesapeake Bay watershed but do not border the Bay. Therefore, while the three upstream States contribute to the Bay pollution problems, they do not directly benefit from Bay restoration. The sheer size of the Chesapeake Bay and its associated watershed make the effort to restore Bay water quality an excellent case study of the complexities associated with environmental federalism in the United States. In 1972 the Clean Water Act (CWA) redefined US water policy, giving federal agencies substantial authority over interstate waterbodies like the Chesapeake Bay. Since then the Bay has been cooperatively managed under a system where States have primary responsibility in some areas, while federal authorities take the lead in others. In the Chesapeake Bay it is possible to see the benefits of State management–the value of 1 LeRoy C. (Lee) Paddock is Associate Dean for Environmental Legal Studies, George Washington University Law School, Washington, D.C., USA. The author wishes to thank Lea Colasuonno for her assistance in researching and drafting this chapter. 2 Lea Colasuonno is Law Fellow, George Washington University Law School in Washington, D.C., USA. 3 See http://oceanservice.noaa.gov/facts/chesapeake.html. 4 Ibidem. 5 Chesapeake 2000 Agreement, Preamble (hereinafter Chesapeake 2000), available at http://www.chesapeakebay.net/content/publications/cbp_12081.pdf.

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local knowledge when identifying problems, developing strategic partnerships, and implementing policy–but also the necessity of federal power to push through unpopular regulatory policies, effectuate compliance and enforcement programs, and fund research and science projects. The story of the Chesapeake Bay sheds light on this complex federalist system, and the fluidity in the balance of power that comes with shifting economic conditions, political will, and public pressure. Importantly, the case study also shows the limits of collaboration in American federalism and the need for federal supremacy on some key issues. The scale and complexity of the water quality problems in the Bay required the U.S. Environmental Protection Agency (EPA) utilize all of its authority under the Clean Water Act to address the pollution. However, citizen litigation has periodically forced the Agency to pressure States to cut pollution levels in the Bay using federally-instituted plans, leading to jurisdictional battles between State and federal actors. Currently, a new citizen law suit claiming EPA has infringed on State’s rights is poised to define the outer limits of those jurisdictional boundaries and, potentially, establish the federalist management structure for all interstate waterbodies like the Chesapeake Bay in America. Thus, the Chesapeake is important because it both tells the story of how US water policy developed and indicates how the policy needs to progress in order to succeed. 1. Jurisdiction of the Clean Water Act Congress enacted the CWA under the authority provided it by the Constitution’s Commerce Clause,6 which allows Congress to regulate interstate commerce and the channels and instrumentalities of that commerce. Because people and goods move between States on waterways, Congress has the authority to regulate activities that may interfere with interstate commerce on those waterways, including pollutant discharges.7 Thus, under the CWA Congress declared federal authorities have the power to regulate pollutant discharges into all “navigable waters”. Conse­ quently, the question of whether a particular waterbody is subject to federal jurisdiction turns on whether it is a navigable water. This ambiguous term, however, is only defined in the CWA as “waters of the United States,

6 U.S. Constitution (U.S. Const.), Art. I, s. 8, cl. 3. 7 Rivers and Harbors Act 1899.



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including the territorial seas.”8 In a seminal case interpreting the meaning of navigable waters the U.S. Supreme Court explained: The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lay shallows, marshes, mudflats, swamps, bogs – in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land.9

The Court went on to conclude “the term ‘navigable’ as used in the Act is of little import”,10 meaning federal jurisdiction under the CWA is not restricted to waters capable of actual navigation or even actively used in interstate commerce, but does not include every puddle either. Two recent Supreme Court cases have shed light on the ambiguous term “navigable waters”, and, thereby the demarcation between federal and State jurisdiction. The first case involved the joint effort by the U.S. Army Corp of Engineers and the U.S. Environmental Protection Agency (EPA) to define navigable waters–specifically wetlands–as those that could serve as habitat for birds protected by Migratory Bird Treaties.11 The Supreme Court, however, held the presence of migrating birds was an insufficient connection to interstate commerce, noting that though ‘navigable’ had little import in defining CWA jurisdiction it was not entirely without effect.12 More recently in, Rapanos v. United States, (2006) 547 U.S. 715, the Court held “ ‘the waters of the United States’ include only relatively permanent, standing or flowing bodies of water”13 and that “only those wetlands with a continuous surface connection to bodies that are waters of the United States … [are] covered by the Act.”14 Thus, while the Chesapeake Bay itself is clearly an interstate waterbody, the thousands of streams, wetlands and marshes that are part of the huge watershed have less clear jurisdictional boundaries. 2. Point and Non-Point Sources of Pollution The lofty goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”15 by eliminating   8 Clean Water Act (CWA), Para. 502(7).   9 U.S. v. Riverside Bayview Homes, Inc., (1985) 474 U.S. 121, 132. 10 Ibidem at 133. 11 SWANCC v. U.S. Army Corps of Engineers, (2001) 531 U.S. 159. 12 Ibidem at 172. 13 Rapanos v. United States, (2006) 547 U.S. 715, 732. 14 Ibidem at 742. 15 CWA supra, Para. 101a.

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the discharge of all pollutants into navigable waters and ensuring that water quality is sufficiently high to support propagation of fish and recreational use of waterbodies.16 To achieve this goal the CWA divides pollution dischargers into two principal categories: point sources and non-point sources. Point sources are defined by statute as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft ….”17 By negative inference, non-point sources are everything else. Today it is estimated that as much as half of the pollution in waterways across the US comes from these diffuse non-point sources, and the Chesapeake is no exception.18 In 2009 Maryland reported that 44% of the phosphorous and 38% of the nitrogen in Maryland Bay segments came from agricultural runoff, while urban sources (runoff from parking lots, lawns, construction projects) contributed an additional 24% of the phosphorous and 23% of the nitrogen.19 Determining whether a discharger is a point or non-point source is relevant because the CWA makes discharging a pollutant from a point source into navigable waters unlawful unless done in accordance with a permit issued by either federal authorities or by a federally-approved State program.20 In contrast, the CWA does not grant federal authorities direct control over non-point sources, requiring only that States control nonpoint sources “to the extent feasible.”21 In accordance with this directive, federal funding has been provided to States to prepare non-point source management plans, preserving the State’s traditional leadership role in land use planning associated with agriculture and land development. Congress, however, did maintain indirect federal control over non-point source pollution by requiring States to ensure water quality in lakes, rivers, and other waterbodies is sufficient to support the intended use of the waterbody. 16 Ibidem. 17 Ibidem at Para. 502(14). 18 C. Copeland, Water Quality: Implementing the Clean Water Act (Washington, D.C., Congressional Research Service, 2001) (“Yet, as industrial and municipal sources have abated pollution, uncontrolled nonpoint sources have become a relatively larger portion of remaining water quality problems – perhaps contributing as much as 50% of the nation’s water pollution”). 19 Maryland Department of the Environment, 319 Nonpoint Source Program: 2009 Annual Report (2010). Importantly, this reports also noted that just 26% of the nitrogen and just 18% of the phosphorous in Maryland Bay segments come from point sources. 20 CWA supra, Para. 301(a). 21 U.S.C.A. Ch. 33, Para. 1288b(2)F.



water management and protection in the usa295 3. Water Quality Standards and Total Maximum Daily Load Limits (TMDLs)

Indirect federal control over non-point sources is maintained through water quality standards (WQS).22 Under this requirement States establish designated uses for each waterbody within their borders – e.g. water supply, fish and wildlife habitat, recreation, industrial use.23 Concomitantly States develop water quality criteria (WQC), which detail the pollutant levels a waterbody can support while still meeting its designated uses. If a waterbody is not meeting its WQS despite the application of technologybased controls for point sources it is deemed “impaired.” The CWA requires States to identify these impaired waters and prepare a prioritized list of them using the severity of pollution and the designated uses as factors. The CWA also requires States to establish a “total maximum daily pollutant load (TMDL) for each pollutant that causes a waterbody to fail to meet its Water Quality Standard.24 Therefore, a TMDL is a quantitative limitation on the amount of pollution a waterbody may receive per day from both point and non-point sources combined. Once States develop TMDLs they must limit pollution entering the waterbody by imposing more stringent controls on either point sources or non-point sources, or both. Since point sources must comply with federal, technology-based standards it may be very difficult or very expensive for these well-controlled facilities to further reduce their discharges to help meet the TMDLs. If this is the case the only option remaining for States is for the State to develop and impose restrictions on non-point sources, primarily agriculture and development. However, while these two industries are the largest non-point source dischargers, they are also important, and politically powerful, economic resources that have traditionally not been closely regulated. Imposing restrictions through land use and zoning regulations or agricultural controls is therefore often politically unpopular. Thus while the water-quality standard scheme reflects the States’ strong interest in determining how waterbodies within their boundaries should be utilized and their historical control over land use, it also reflects the difficult position these schemes put States in and exemplifies the challenges in the Chesapeake Bay.

22 See CWA supra, Para. 303. 23 Ibidem at Para. 303c(2)A. 24 U.S.C.A. Ch. 33, Para. 1313d.

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leroy paddock and lea colasuonno 4. Chesapeake Bay 4.1. Background

The Bay region is an economic powerhouse for the United States. The region was among the first developed by early European settlers, who quickly set up massive farming and seafood operations. Today roughly 84,000 farms produce about $9.5 billion worth of crops and livestock each year from the Bay area.25 Though there are many types of farms in the watershed, increasingly this production takes place in concentrated animal feeding operations (CAFOs), evidenced by the fact that 8% of the farms accounted for 75% of the region’s total agricultural sales.26 Similarly, the seafood industry continues to drive the local economy, with Maryland and Virginia alone reporting a combined total of $2 billion in sales, $1 billion in income and 41,000 seafood industry-related jobs in 2008.27 Moreover, 90–98% of all saltwater fish caught in the mid-Atlantic region28 and 50% of the entire Blue Crab harvest in the United States comes from the Bay.29 As these industries matured over two centuries, the river systems feeding the Bay developed into arteries of commerce, and bustling ports such as Baltimore and Washington grew up on the banks of the Bay and along its major tributaries. While industrial development and the associated population boom benefited the region and country, the economic gains contributed to the declining health of the Bay. As early as 1750, deep shipping channels filled with sediment, making navigation impossible for boats without dredging.30 The oyster population began to decline as early as the turn of the 19th century,31 and continued throughout the 1900s;

25 Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region, available at http://www.nrcs.usda.gov/wps/portal/nrcs/detail/ national/technical/alphabetical/crop land/?&cid=nrcs143_014144. 26 Ibidem. 27 Chesapeake Bay Foundation, The Economic Argument for Cleaning Up the Bay and Its Rivers (2010). 28 Ibidem. 29 See Maryland Seafood Production at http://www.msa.md.gov/msa/mdmanual/ 01glance/html/seafoodp.html. For more information please see http://www.umbi.umd .edu/comb/research-programs/blue-crab/index.php   (University   of   Maryland   Bio­ technology Institute). 30 Ibidem. 31 C. J. Auckerman, “Agricultural Diffuse Pollution Controls: Lessons for Scotland from the Chesapeake Bay” (2004) 20 Journal of Land Use and Environmental Law 192–269, at 203.



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it stands today at just 2% of historic levels.32 And by 1900, 60–70% of all forests in the watershed were harvested for development or cleared for farming.33 Despite spending an estimated $15 billion on restoration, only 12% of the Bay met target oxygen levels in 2007–2009, which was a decrease from the previous measurement.34 Moreover, 2011 is currently on target to record the largest oxygen depleted area (“dead zone”) in the Bay’s history,35 leading many to wonder how well the money was spent and whether the Chesapeake will ever be the “fishable and swimmable” waterbody the Clean Water Act envisions.36 Perhaps because the Bay is such an important economic resource, it is also one of the most studied waterbodies in the world. For over forty years government, non-profit groups, and private organizations have researched everything from water quality and pollution sources to land-use patterns and soil composition.37 Largely due to this extensive and comprehensive scientific research it is well established and seldom challenged that the Bay suffers from three primary pollutants: phosphorous, nitrogen and sediment.38 All three of these elements are a natural part of Bay life that aquatic species need for survival; however, human activity in the watershed has added far more nutrients and sediment than would naturally accumulate, and substantially more than the Bay can assimilate. The primary problem with these pollutants is that each, through different mechanisms, lowers oxygen levels in the Bay and prevents sunlight from penetrating the shallow water.39 This in turn inhibits growth of

32 See Oyster Harvest at http://www.chesapeakeBay.net/oysterharvest.aspx?menuitem =14701. 33 See Chesapeake Bay History at http://www.chesapeakeBay.net/Bayhistory.aspx ?menuitem=14591. 34 National Academy of Science, Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay: An Evaluation of Program Strategies and Implementation (Washington, D.C., The National Academies Press, 2011), available at http://www.nap.edu/catalog .php?record_id=13131#toc (prepublication copy book). 35 D. Fears, “Alarming ‘Dead Zone’ Grows in the Chesapeake” (24 July 2011) Washington Post, available at http://www.washingtonpost.com/national/health-science/ (follow “Dead Zone Grows in Chesapeake” hyperlink). 36 National Academy of Science, Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay: An Evaluation of Program Strategies and Implementation supra, at 37. 37 Starting in the 1960s groups across the region pressed for action and started groups all over the region, including the Chesapeake Bay Foundation, the Chesapeake Bay Trust, the Alliance for the Chesapeake, and the Chesapeake Research Consortium. 38 See Factors Impacting Bay Health at http://www.chesapeakeBay.net/status_pollutants .aspx?menuitem =19795. 39 See Algae in the Bay at http://www.chesapeakebay.net/plankton.aspx?menuitem =1940.

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underwater Bay grasses, suffocates fish species, and reduces mollusc populations.40 Phosphorous and nitrogen contribute to this process by promoting algae blooms that blanket the Bay, while sediment simultaneously clouds the water.41 The primary sources of the excess nutrients are agricultural runoff, nitrogen oxide emissions from vehicles, municipal and commercial wastewater discharges, and runoff related to suburban development.42 Sediment on the other hand enters the Bay through erosion of stream banks, open land and shorelines, a process that is accelerated by clearing land for agriculture and development.43 4.2. Interstate and State-Federal Cooperation in the Chesapeake Bay By the 1960s and 70s Chesapeake Bay residents, Bay users, and elected officials could see the Bay was in serious trouble and began advocating for its protection. Concerned citizens formed groups in towns and cities across the region and gathered scientific data, funded grants for Bay cleanup projects, and raised awareness about the Bay’s problems.44 Similarly, the federal Government got more involved after the passage of the CWA in 1972. First federal authorities, then, once the federal program was delegated to the States, State authorities began issuing increasingly stringent pollution permits to point sources that discharged directly into the Bay and the rivers throughout the watershed.45 At the State level, Virginia and Maryland—the two States most economically dependent on the Bay—studied how interstate cooperation 40 See Dissolved Oxygen at http://www.chesapeakebay.net/dissolvedoxygen.aspx? menuitem=14654. 41 See Chesapeake Bay Program at http://www.chesapeakebay.net/aboutbay.aspx? menuitem=13953. 42 According to the Chesapeake Bay Program the primary sources of phosphorous are non-agricultural fertilizers (30%), manure left on agricultural land (27%), municipal wastewater facilities (22%) and agricultural fertilizers (18%), while nitrogen sources include vehicle, industry and agriculture emissions (33%), chemical fertilizers (both agricultural and suburban) (26%), wastewater treatment facilities (19%), manure (18%) and household septic systems (4%). See Chesapeake Bay Program at http://www.chesapeakebay.net/status_pollutants.aspx?menuitem=19795 (follow “Phosphorous” hyperlink or “Nitrogen” hyperlink). 43 See Sediments at http://www.chesapeakebay.net/sediments.aspx?menuitem=14691. 44 Between the late 1960s and 1985 the Chesapeake Bay Foundation, Alliance for the Chesapeake, Chesapeake Bay Trust and Chesapeake Bay Environmental Center all were founded. Additionally, national groups such as the Nature Conservancy, Audubon and World Wildlife Federation soon got involved in the region as well. 45 In the Chesapeake region state NPDES permit programs were approved relatively quickly after the CWA passed in 1972. Delaware and Maryland were approved in 1974, Pennsylvania in 1978, Virginia in 1975 and West Virginia in 1982. For more information please see Chesapeakebay.net.



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could improve Bay restoration efforts.46 They concluded the State legislatures needed to cooperate and implement a State-led program, which resulted in the creation of the Chesapeake Bay Commission in 1980.47 Today this is a tri-State legislative commission made up of State legislators, the governor of each partner State and citizen representatives.48 It serves as a policy centre with the primary goal of coordinating Bay restoration and protection strategies across State lines.49 Since its founding the commission successfully encouraged partner States to pass a Bay-wide ban on phosphate detergents, approve land-use laws protecting shorelines, and set up a committee to manage the Bay’s most economically valuable inhabitant—the Blue Crab.50 The commission is now a signatory to the Chesapeake Bay Agreements and operates as the State legislative arm of the Chesapeake Bay Program, advising the legislatures of Pennsylvania, Virginia, and Maryland.51 Perhaps the most important early Bay activist was United States Senator Charles Mathias, a Maryland native, who secured $27 million in funding for a five-year study of the Bay.52 The study confirmed that excess nutrients and sediment were primarily responsible for the Bay’s problems, and catalysed regional cooperation among Virginia, Pennsylvania, Maryland, the District of Columbia and the Environmental Protection Agency.53 Together these jurisdictions created the Chesapeake Bay Program (CBP) and, in 1983, signed the Chesapeake Bay Agreement (CBA) wherein they “recognize[d] … an historical decline in the living resources of the Chesapeake Bay and that a cooperative approach is needed … to fully address the extent, complexity, and sources of pollutants entering the Bay.”54 The CBP is an interstate organization led by State governors, the EPA administrator, and the mayor of DC, and it consists of numerous

46 See Chesapeake Bay Commission: at http://www.chesBay.state.va.us/history.html. 47 Ibidem. 48 See ibidem. The Commission became a tri-state organization when Pennsylvania joined in1985. 49 Ibidem. For more information please see cbf.org (Chesapeake Bay Foundation). 50 Ibidem. 51 Taking Environmental Protection to the Next Level: An Assessment of the U.S. Environmental Services Delivery System (Washington, D.C., National Academy of Public Administration, 2007), at 84. 52 Chesapeake Bay History supra. For more information please see loc.gov (Library of Congress). 53 Ibidem. 54 Chesapeake Bay Agreement 1983, available at http://www.chesapeakeBay.net/ historyofcbp.aspx?menuitem=14904.

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implementation committees that coordinate restoration work, protection programs, and Bay-wide policy.55 In 1987 the CBP—Pennsylvania, Virginia, Maryland, the District of Columbia, the EPA and the Chesapeake Bay Commission—went beyond the original one-page pledge to cooperate, and signed a second agreement committing the group to reducing Bay phosphorous and nitrogen concentrations by 40% by the year 2000. Impressively, the jurisdictions also agreed to develop Bay-wide oyster management plans, Bay-wide protections for tidal and non-tidal wetlands and a basin-wide strategy to reduce toxic pollution.56 In addition, Congress got behind this Chesapeake partnership, passing a bill creating a Chesapeake Bay Program Office in the EPA and supporting the federal-State partnership by giving this office power to “coordinat[e] with other members of the CEC [Chesapeake Executive Council], [and to] ensure that management plans are developed and implementation is begun by the signatories to the Chesapeake Bay Agreement ….”57 With this agreement, the jurisdictions and their federal and non-profit partners made the untested and politically bold move of committing themselves to reducing pollution by an exact number and by committing to slash non-point as well as point source discharges. Despite the impressive commitment to cooperation, by 1991 the partners agreed that the program needed to be expanded if they were going to achieve the 40% reduction they had promised. Amendments to the CBA were approved in 1992 that brought tributaries into the mix, allowing the partners to go beyond the bordering Bay jurisdictions and reach upstream to protect the Bay’s water quality and aquatic population.58 Moreover, the group acknowledged that while they had made significant cuts in point source discharges, little progress had been made toward controlling non-point pollution—particularly from agriculture and suburban development—even though this was a critical element of Bay restoration.59 Another assessment in 1997 confirmed that point sources were being reigned in—phosphorous discharges had been reduced by 51% from 1985 levels and nitrogen by 15%. However, this assessment also confirmed that non-point sources remained untamed, as these sources 55 See http://www.chesapeakebay.net/howwework.aspx?menuitem=14905. 56 Chesapeake Bay Agreement 1987, available at http://www.chesapeakebay.net/ bayhistory.aspx?menuitem=14591. 57 U.S.C.A. Ch. 33, Para. 1267g(1). 58 Chesapeake Bay Agreement 1992 Amendments, available at http://www .chesapeakeBay.net/historyof cbp.aspx?menuitem=14904. 59 Ibidem.



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showed just a 9% reduction in nitrogen and a 7% reduction in phosphorous from 1985 levels.60 It also showed that the 1993 tributary-specific strategies were not working fast enough and that accelerated efforts were needed to meet the 2000 goal.61 Ultimately the amendments were not enough, and the Chesapeake Bay Program shifted its target deadline for achieving its 40% goal to 2010. At the same time three additional States—West Virginia, New York, and Delaware—signed a memorandum of understanding (MOU) with the CBP partners. The MOU committed these States to work cooperatively to reduce sediment and nutrient loads within their borders to help the Bay reach its goals.62 The MOU committed the signatory States to do more than just agree to help, they also agreed that “despite efforts to date, the tidal rivers and the Bay remain on the Clean Water Act list of impaired waters thereby requiring establishment of a total maximum daily load by May 2011 unless those waters meet applicable water quality standards by 2010.”63 Acknowledging that more coordinated action was needed to reach the 2010 goal, in 2003 the seven jurisdictions agreed to cap sediment and nutrient loads and allocate the loads among the major river basins in the watershed.64 To meet the river basin caps, the jurisdictions agreed to implement specific strategies through existing regulatory structures that would address both point and non-point sources.65 Then, in 2005, the Chesapeake 2000 signatories folded EPA’s suggested water quality criteria for the Bay into their own regulations, and thus made the pollution limits uniform across the Bay.66 The States did not cede any authority to the federal agency by doing so, but they all agreed to set their own water quality standards at the same EPA suggested level. These agreements became known as the Chesapeake Bay Tributary Strategies and were designed to allow the Bay to meet water quality standards, prevent periodic and disastrous dead zones, and enable underwater

60 U.S. Environmental Protection Agency, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorous and Sediment (2010), at 1–5 (hereinafter Final Bay TMDL). 61 Ibidem. 62 Memorandum of Understanding Among New York, Delaware, District of Columbia, West Virginia (signed in 2002), Maryland, Pennsylvania and Virginia (2000), available at http://www.chesapeakeBay.net/historyofcbp.aspx?menuitem=14904. 63 Ibidem. 64 Final Bay TMDL supra, at 1–6. 65 Ibidem at 1–7. 66 Ibidem at 1–8.

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grasses to take root.67 This scheme is similar to the TMDL process discussed in section 3.1 of chapter 268 because it too sets pollution limits for both point and non-point sources and identifies voluntary local, Statewide, and federal programs to ensure success.69 But whereas the Tributary Strategies were put in place to clean up the entire Bay region and were entered into on a voluntary basis, TMDLs are generally much narrower in scope—focusing on specific pollutants in a single waterbody—and may include legally-enforceable limitations on point and non-point sources.70 The Tributary Strategies were a remarkable step forward, but they did not save the Bay. The Tributary Strategies were important because regulators used the scientific data CBP had been collecting for years to allocate nutrient reductions to individual segments in each Bay tributary, which had not been done before on such a fine scale. Even though this was a game-changer, this improvement did not achieve the target reductions. But these Tributary Strategies do form the basis for the federally-driven, Bay-wide TMDL development process now underway. Because the States had spent time inventorying resources and planning policy in order to implement the Tributary Strategies, EPA was able to set up “heightened expectations” for the 2010 TMDL process and the jurisdictions were able to develop it at an accelerated rate.71 4.3. The Role of Litigation in Chesapeake Bay Restoration The TMDL process, whereby States list the waterbodies that fail to meet water quality standards and then take steps to bring them into compliance with those standards, was part of the original 1972 Clean Water Act (CWA). But the provision lay dormant for years while EPA struggled to complete the main, and enormous task Congress assigned it in the CWA—setting technology standards for all point sources across the United States and permitting those facilities.72 Despite this focus on point source controls,

67 Ibidem at 1–7. 68 See chapter 2 by L. Paddock and J. Bowmar in this volume. 69 Taking Environmental Protection to the Next Level: An Assessment of the U.S. Environmental Services Delivery System supra, at 92. 70 Ibidem. 71 Letter from Donald S. Welsh, U.S. EPA Region III Administrator, to Hon. John Griffin, Maryland Department of Natural Resources 1 (11 September 2008) (hereinafter Letter Sept. 11, 2008), available at http://www.epa.gov/reg3wapd/tmdl/ChesapeakeBay/Resource Library.html#keydocs. 72 O. A. Houck, “The Clean Water Act Returns (Again): Part I, TMDLs and Chesapeake Bay” (2011) 41 Environmental Law Reporter News and Analysis, at10208, 10209.



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by the 1980s water in the United States was not clean, especially waterbodies like the Chesapeake Bay that suffered from both point and non-point source pollution.73 Environmental and recreational advocacy groups, seeing too little progress on clean water across the country, filed lawsuits across the U.S. asking judges to enforce the TMDL program established in the CWA. The groups initially filed lawsuits against individual polluters under the citizen suit provision of the Clean Water Act.74 Although this approach was successful for individual cases, it did not result in widespread changes to the way States implemented or enforced water quality standards. As a result, the organizations turned their attention and litigation to EPA, filing lawsuits against the Agency alleging the Agency had neglected its duty to ensure States were identifying waterbodies impaired by pollutants and its duty to establish total maximum daily pollution load limits for these impaired waters when the States failed to do so.75 In the late 1990s, recognizing that the CBP 2000 deadline would pass without much improvement in Bay water quality, regional groups filed similar TMDL lawsuits against EPA in Virginia and the District of Columbia.76 The CWA required EPA to prepare a list of pollutants for which States were to develop TMDLs should a waterbody fail to meet water quality standards despite the application of point source technology controls.77 EPA published that list in 1979, triggering each State’s duty to list waters impaired by pollution and to develop TMDLs for those waters by June 1979.78 However, as of 1999, neither DC nor Virginia had submitted this required list of impaired waters or adopted TMDLs for affected waterbodies.79 Environmental groups argued that by failing to submit any TMDLs, the States had constructively submitted a list—a list of no impaired waters and therefore no TMDLs—and that EPA was required to 73 O. A. Houck, The Clean Water Act TMDL Program: Law, Policy and Implementation (2nd ed.) (Washington, D.C., Environmental Law Institute, 2002). 74 See, e.g., Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984). 75 See, e.g., Idaho Sportsman’s Coal. v. Browner, 951 F. Supp. 962 (W. D. Wash. 1996). 76 See Am. Canoe Ass’n v. EPA, 30 F.Supp.2d 908 (E.D. Va. 1998); Kingman Park Civic Ass’n v. EPA, 84 F.Supp.2d 1 (D.D.C 1999). 77 U.S.C.A. Ch. 33, Para. 1314a(2)D. 78 U.S.C.A. Ch. 33, Para. 1313d(2). 79 Am. Canoe Ass’n v. EPA supra, at 913 (“In the nearly twenty years that have elapsed since the 1979 deadline, Virginia has never submitted a TMDL or TMDTL for any of its waters, and EPA has never established any TMDL or TMDTL for any of Virginia’s waters.”); Kingman Park Civic Ass’n v. EPA supra, at 2 (“More than eighteen years after its first TMDL submission was due, the District of Columbia had yet to forward a single TMDL calculation to the EPA”).

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approve or disapprove of this ‘list’. The argument, with which courts in Virginia and DC agreed, was that EPA, considering the state of the Bay, had to disapprove any list suggesting no TMDLs were necessary and consequently develop TMDLs for the jurisdictions. Under consent decrees settling this litigation, EPA was required to develop TMDLs for these jurisdictions — including Bay segments within their borders — should the jurisdictions fail to do so by 2011.80 During this same period Maryland and EPA entered into a Memoran­ dum of Understanding whereby Maryland agreed to develop and implement TMDLs for Bay segments on its 1996 list of impaired waters by 2008.81 However, the State realized it would be unable to complete the task and determined that developing Bay TMDLs independent of partner jurisdictions would undermine the Chesapeake Bay Program.82 Therefore, Maryland asked EPA to allow the State to develop the TMDLs for its Bay segments concurrently with neighbour-State consent decrees—that is, by 2011.83 Though this MOU does not carry the same legal weight as the consent decrees, it shows Maryland sought out and received EPA concurrence that uniform, simultaneous action was needed in the Bay, and that EPA was best positioned to provide it should the States fail to meet the 2011 deadline. In the last estuarial jurisdiction, Delaware, the American Littoral Society filed a suit seeking a court order to compel EPA to develop TMDLs for the State’s 1996 impaired waters list.84 Like its neighbour States, Delaware entered into a consent decree with EPA requiring the State to establish the TMDLs within 10 years.85 In contrast to other States though, Delaware did develop the TMDLs for the one tidal segment included on its impaired waters list. But since this TMDL was completed prior to Delaware signing on to the uniform Bay water quality standards, it had to be redone to meet those standards.86 And when Delaware asked, and EPA agreed, to redevelop that TMDL, the remaining Bay tidal segment was brought into the fold. Thus a total of 92 Bay segments, all of which were on State impaired water lists, were now, either voluntarily or by court order, subject to federal control.87 80 Final Bay TMDL supra, at 1, 17–20. 81 Final Bay TMDL supra, app. W, at 268. 82 Final Bay TMDL supra, at 1–20. 83 Ibidem. 84 Am. Littoral Society v. EPA, No. 96–330 (D. Del. 1996). 85 Am. Littoral Society v. EPA, 96cv591 (D. Del. 1997). 86 Final Bay TMDL supra, at 1, 19–20. 87 Ibidem.



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When the Bay States failed to meet the 2010 court-ordered deadline for Bay water quality restoration, the Chesapeake Bay Foundation filed suit against EPA. The group sought an order requiring EPA to impose a federal Bay-wide TMDL for the entire Bay, commensurate with the Chesapeake 2000 Agreement. However, the lawsuit was withdrawn when the Obama Administration committed to a more aggressive federal role in improving Bay water quality.88 In Executive Order 13508 issued in May of 2009 President Obama created a new Federal Leadership Committee for Bay protection and restoration, required the States and federal authorities to develop a new Bay restoration strategy, and directed EPA to bring to bear all of the authority available to it under the Clean Water Act in order to improve the Chesapeake Bay.89 Ultimately, the parties signed a settlement where EPA agreed to establish a Bay-wide TMDL signed by the Administrator, by December 31, 2010.90 According to EPA, the consent decrees, the statutory authority of the CWA, CWA case law, the Chesapeake Bay Agreement and Executive Order 13508 provide the necessary legal support for the Bay TMDL.91 The EPA argues its authority to set watershed-wide TMDLs, even in headwater States and at levels in those States that may be more stringent than State water quality standards, is supported by case law and its own CWA interpretation.92 EPA asserts that the Chesapeake Bay is an interstate waterbody that fails to meet its water quality standards and thus the agency has the authority to set upriver pollution allocations in Pennsyl­ vania, New York, and West Virginia at levels necessary to protect the downstream Bay water quality.93 EPA argues such an interpretation of the CWA is appropriate because otherwise the agency is only left with the authority to impose limits on the four tidal States, despite the fact that much of the Bay’s pollution originates in the three headwater States.94 Thus, because this is a case, where: 88 T. B. Wheeler, “States Must Meet Bay Clean Up Goals, U.S. Warns” (30 December 2009) Baltimore Sun, http://articles.baltimoresun.com/2009-12-30/features/bal-md.gr.bay 30dec30_1_bay-cleanup-cleanup-goals-epa-officials. 89 Exec. Order 13508/2009. 90 Fowler v. U.S. EPA, Case No. 1:09-CV -00005-CKK, at 9, 12. 91 Final Bay TMDL supra, app. W, at 265. 92 Arkansas v. Oklahoma, (1992) 503 U.S. 91, 105 (“Even if the Clean Water Act itself does not require the [Arkansas] discharge to comply with Oklahoma’s water quality standards, the statute clearly does not limit the EPA’s authority to mandate such compliance”). 93 See Final Bay TMDL supra, app. W, at 266; Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th Cir. 1995), Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984), Am. Canoe Ass’n v. EPA, 54 F.Supp.2d 621 (E.D. Va. 1999). 94 Final Bay TMDL supra, app. W, at 266.

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leroy paddock and lea colasuonno [T]he States in question have decided not to establish their own TMDLs for those waters, where EPA is establishing a TMDL for those waters at the direction of, and in cooperation with, the jurisdictions in question, and where those waters are part of an interrelated and interstate water system like the Chesapeake Bay that is impaired by pollutant loadings from sources in seven different jurisdictions, CWA section [1313(d)] authorizes EPA authority to establish that TMDL.95

4.4. Chesapeake Bay TMDL: Structure and Enforcement The Chesapeake Bay TMDL is the most complex of the over 40,000 TMDLs created in the US.96 The TMDL sets pollution targets for both small and large geographic regions, from a watershed-wide target all the way down to limits for individual point source dischargers. EPA first, using the 2003 nutrient allocations from the Tributary Strategies, set maximum pollution loads for the entire watershed for each of the pollutants affecting the Bay—185.9 million pounds of nitrogen, 12.5 million pounds of phosphorous and a 20% reduction in sediment.97 It subsequently assigned each of the eight major river basins that make up the watershed a fraction of each of these pollutant totals.98 Next, the jurisdictions stepped in and divided these river basin loads among the non-point source sectors (such as agriculture and development) and the individual permitted point sources (such as wastewater treatment plants, urban storm-water systems, and regulated agricultural operations) within their borders.99 And lastly, the jurisdictions determined into which of the 92 Bay segments each point source and non-point source would discharge. As the Agency monitors each Bay segment in coming years this information—exactly where the pollution in each segment comes from—gives EPA the ability to reallocate pollution loads among sources.100 Instead of repeating the pattern of past Bay improvement plans, in which States agreed to reductions but did not have federal oversight to assure the goals were achieved, this time EPA required the States and dc   95 Final Bay TMDL supra, app. W, at 265.   96 Final Bay TMDL supra, at ES-1. For more information please see http://water.epa .gov/lawsregs/lawsguidance/cwa/tmdl/ (US EPA water division website).   97 Ibidem.   98 Letter from Donald S. Welsh, U.S. EPA Region III Administrator, to Hon. L. Preston Bryant, Jr., Va. Secretary of Natural Resources (3 November 2008) (hereinafter Letter Nov. 3, 2008), available at http://www.epa.gov/reg3wapd/tmdl/ChesapeakeBay/ResourceLibrary .html#keydocs.   99 Ibidem. 100 Ibidem.



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to develop Watershed Implementation Plans (WIP). These documents “serve as roadmaps for how and when [each] jurisdiction plan[s] to meet its pollutant allocations.”101 The jurisdictions were to evaluate their current legal, regulatory, programmatic and financial tools available to implement the [load] allocations; identify and rectify potential shortfalls in attaining the allocations; describe mechanisms to track and report implementation activities; provide alternative approaches; and outline a schedule for implementation.102

By carrying out this process EPA believes WIPs will succeed where past plans have failed because they document where, when and how pollutant reductions will occur in each watershed jurisdiction. EPA asserts that WIPs provide the statutorily required “reasonable assurance” EPA must have to approve a TMDL. Reasonable assurance is rooted in the CWA mandate that TMDLs “shall be established at a level necessary to implement the applicable water quality standards.”103 This statutory directive means EPA will only approve a TMDL if the agency is able to verify that the TMDL will bring a waterbody into compliance with water quality standards.104 For point source reductions, NPDES permitting provides the assurance necessary for EPA approval.105 But for non-point source reductions—long unfettered by regulation and notably hard to track—EPA requires a variety of assurances to approve a State plan.106 In the Chesapeake Bay, where non-point sources contribute significantly to the Bay’s problems, EPA requires backstop measures in order to approve the WIPs. These backstop measures include EPA objecting to wastewater permits for new or expanding businesses or sewage treatment plants, requiring greater pollution reductions from existing point sources to offset runoff from agriculture and suburban development and conditioning or “redirecting” federal water pollution grants.107 The fact that EPA feels it must impose onerous backstop measures to assure that states provide “reasonable assurance” that non-point sources will be controlled demonstrates the challenges non-point sources present for EPA. Congress did not authorize direct federal restrictions on

101 Final Bay TMDL supra, at ES-8. 102 Ibidem at ES-9. 103 U.S.C.A. Ch. 33, Para. 1313d(1)C. 104 C.F.R. Ch. 40, 122.44d(1)(vii)B; see also Letter Nov. 4, 2008 supra, at Enclosure B. 105 Letter Sept. 11, 2008 supra, at Enclosure A. 106 Ibidem. 107 See U.S.C.A. Ch. 33, Paras 1329, 1288.

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non-point sources under the CWA.108 Instead, the statute only requires that States reign in non-point pollution “to the extent feasible”,109 often resulting in State initiatives that are essentially voluntary or industry led programs based on financial inducement.110 Without a firm Congressional directive, EPA must rely on these indirect sanctions to encourage States to regulate non-point sources. When the Bay States submitted draft WIPs in the fall of 2010 EPA determined that none provided “reasonable assurance” that water quality standards would be achieved, that only five of the seven could reduce sediment as needed and that just two of the seven could reduce nutrient levels far enough.111 In every State EPA determined that the strategies to bolster existing, but currently inadequate pollution reduction programs were deficient; that the accountability mechanisms were insufficient; and that too few hard deadlines were set for key actions. EPA then used these draft State WIPs to develop a draft TMDL for the entire watershed. The draft TMDL was a combination of the “adequate” portions of each draft WIP and EPAs supplemental backstop measures.112 This draft TMDL was then subjected to public comment while, behind the scenes, the States worked with EPA to improve the WIPs in light of proposed federal backstop measures—measures that would operate as federal mandates should the States fail to design programs that adequately reduced pollution. In December 2010, the States submitted final WIPs to EPA and while the Agency said they were improved, they were not accepted in their entirety. The agricultural sector improvements focused on the two actions. First, States committed to enhancing Best Management Practices (BMP) by increasing oversight of farms, improving manure technologies, and pledging to enact mandatory compliance regulations if progress was not made.113 Second, States agreed to increase the number of farms subject to CWA permitting by extending traditional Concentrated Animal Feeding Operation (CAFO) regulations to smaller farms.114 The NPDES sector, 108 S. Brull, “An Evaluation of Nonpoint Source Pollution Regulation in the Chesapeake Bay” (2006) 13 University of Baltimore Journal of Environmental Law 221. 109 U.S.C.A. Ch. 33, Para. 1288b(2)F. 110 Final Bay TMDL supra, at ES-8.  111 Ibidem at ES-9. 112 Ibidem. 113 See EPA, Summary Delaware WIP Evaluation (2010) (hereinafter Del. WIP Eval.); EPA, Summary Maryland WIP Evaluation (2010) (hereinafter Md. WIP Eval.); EPA, Summary Pennsylvania WIP Evaluation (2010) (hereinafter Penn. WIP Eval.). 114 See EPA, Summary Virginia WIP Evaluation (2010) (hereinafter Va. WIP Eval.); EPA, Summary New York WIP Evaluation (2010) (hereinafter NY WIP Eval.).



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wastewater treatment and urban sewer system, improvements focused on wastewater facilities releasing cleaner water, reducing the area of impervious surfaces in urban settings, and upgrading sewers to increase water retention during storm events and decrease runoff.115 Even with these changes EPA left some backstop measures in place, including shifting half of Pennsylvania’s storm water allocation not subject to NPDES rules to the point source category (thus requiring these sources be subject to permitting),116 lowering wastewater treatment facility discharge pollution limits in Delaware,117 and regulating lawn fertilizer applications in Maryland.118 In sum these changes allow federal authorities to exert more control over water pollution sources in the affected States than the WIPs originally permitted. 4.5. Moving forward: Lingering Questions and New Litigation Whether the changes to the drafts and the backstops left in place for the final WIPs went far enough to clean up the Bay or will fail like so many previous attempts is up for debate. Federal officials assert the “improvements” to the drafts and the “backstop” measures are enough to ensure success. EPA claims that the pollution limits are based on “state-of-the-art modelling tools, extensive monitoring data, peer-reviewed science and close interaction with State partners,”119 and that taken together this is different than anything before and good enough to save the Bay. But others are less confident. One environmental organization that evaluated the WIPs remarked that without specific commitments and dedicated State resources, the plans are better characterized as “tailored inventories of State pollutant management programs, rather than concrete roadmaps” and provide “little confidence that the Bay TMDL will be met.”120 115 See Del. WIP Eval. supra; Penn. WIP Eval. supra; NY WIP Eval. supra; Va. WIP Eval. supra; EPA, Summary District of Columbia WIP Evaluation (2010). 116 Penn. WIP Eval. supra, at 2. For more information please see http://pa.gov/portal/ server.pt/community/chesapeake_bay_program/10513 (Pennsylvania Department for Environmental Protection). 117 Del. WIP Eval. supra, at 2. For more information please see http://www.dnrec .delaware.gov/swc/wa/Pages/Chesapeake_WIP.aspx (Delaware Department of Natural Resources and Environmental Control). 118 Md. WIP Eval. supra, at 1. For more information please see http://www.mde.state .md.us/programs/Water/TMDL/TMDLImplementation/Pages/PhaseIIBayWIPDev.aspx (Maryland Department of the Environment). 119 Final Bay TMDL supra, at ES-1. 120 W. Andreen et al. (eds.), Missing the Mark in the Chesapeake Bay: A Report Card for the Phase I Watershed Implementation Plans (Center for Progressive Reform, 2011).

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But what is perhaps more important than whether the TMDL will be a success is whether it will last long enough to get off the ground. The American Farm Bureau has challenged the new Bay program asserting that EPA has overstepped its authority under the CWA. The Farm Bureau, joined by other national organizations, filed suit in Pennsylvania early in 2011 arguing that EPA “unlawfully circumvented the Clean Water Act procedures that give primary authority to the States to protect water quality.”121 The suit charges EPA exceeded its statutory authority and violated the State’s rights to manage their water policy by establishing a regulatory scheme, instead of just a total maximum daily load limit. The complaint points out that although TMDLs are the “sum” of pollution loads from point and non-point sources and that EPA can determine the “sum” needed for a waterbody to meets its water quality standards, it has “no authority to cross the line between identifying total pollutant levels necessary to meet water quality standards and specifying implementation measures.”122 The complaint asserts that EPA crossed this line by forcing States in the WIPs to identify regulations, policies, and contingencies each will implement to achieve the TMDL.123 Moreover, the Farm Bureau contends that EPA applied extra-statutory backstop measures such as withholding grant money from States for reasons Congress did not contemplate and objecting to State permits for reasons outside those permitted under the CWA.124 The Farm Bureau charges that taken together these actions infringe State sovereignty because Congress did not affirmatively limit state’s traditional police power, but instead left States in control of how they implement water quality regulations.125 The suit further alleges that the TMDL is linked to inappropriate water quality standards that similarly infringe on the State’s rights. A TMDL must be set at a level necessary to implement water quality standards in a particular State, but the Farm Bureau objects to EPA setting a TMDL at lower levels based on the need to protect a downstream waterbody, here the Chesapeake Bay. Pennsylvania, the headwater State where the suit was brought, may be required under its WIP to impose TMDLs on State waterbodies below those needed to attain State water quality standards in order 121 Am. Compl. at 3, American Farm Bureau Federation v. EPA, Case No. 11-cv-00067-SHR (M.D. Pa. Apr. 4, 2011). For more information please see http://law.psu.edu/academics/ research_centers/agricultural_law_center/resource_areas/chesapeake_bay. 122 Ibidem at 17. 123 Ibidem at 21. 124 Ibidem at 22. 125 Ibidem at 16–17.



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for the Bay to meet its water quality standards. While the EPA counters this is the logical interpretation of the TMDL statute, the Farm Bureau points out this means Pennsylvania farmers are subjected to decreasing pollutant loads from their properties despite the fact that the runoff flows into streams that are not tributaries of the Bay or its tidal waters and that are meeting State water quality standards.126 The suit asserts that the CWA only allows federal authorities to address upstream discharges by objecting to the upstream-State NPDES permits or water quality standards, not by requiring water quality standards to be lowered to protect downstream waterbodies.127 5. Effectiveness and Accountability, Limits, Challenges, Steps forward The Chesapeake Bay case study demonstrates that solving complex water quality problems necessitates cooperation among authorities in a multilayered system, and also demonstrates that national leadership is needed to overcome parochial considerations. Collaboration was essential to developing a scientific understanding of the Bay and the complicated pollution problems that impaired Bay water quality. It was also the lynchpin that enabled the partner jurisdictions to use that science to allocate responsibility for pollution reduction among the tributaries. This model of cooperation between States and federal authorities in the area of science, research, and factual determinations of responsibility for pollution has been adopted across the US. The Chesapeake Bay experience clearly established these issues as arenas where State and Federal authorities could cooperate. The Chesapeake Bay restoration efforts have also evidenced that collaboration is a key factor in building the political consensus needed to support the very expensive restoration process. The experience shows that 126 Ibidem at 223–4. 127 Ibidem at 24. See also Arkansas v. Oklahoma, 503 U.S. 91 (1992). In this case the Court held that where an interstate discharge is concerned an affected state cannot block a source-state NPDES permit, but must apply to the EPA to block the permit, which has “discretion to disapprove the permit if [it] concludes that the discharges will have an undue impact on interstate waters.” Ibidem at 100 (citing Int’l Paper Co. v. Ouellette, 479 U.S. 481, 490 (1987) ). Moreover, the Court held “even if the Clean Water Act itself does not require the [source-state] discharge to comply with [the affected-state] water quality standards, the statute clearly does not limit the EPA’s authority to mandate such compliance.” Ibidem at 105.

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federal authorities rely on State agencies for permitting, inspection, and enforcement, and, in short, to execute much of the point source program in the Bay. However, here the Bay process indicates that there are limits to how far cooperation can go when it comes to the hard choices involved in implementing clean-up plans. It is clear some level of cooperative federalism will be imperative to carry out the Watershed Implementation Plans because the federal Government has neither the authority nor the resources to regulate the non-point sources contributing the bulk of phosphorous, nitrogen, and sediment to the Bay. However, it is also clear State leaders face immense in-State political pressure to keep the status quo in place, including from the twin economic engines of agriculture and development. The more diffuse political pressure on federal agencies, on the other hand, enables them to push States to take what are often politically difficult steps to assure nutrient reductions. Thus, whereas States were granted the legal power under the CWA to implement the non-point source regulations, the federal authorities have the political ability – i.e. power – needed to actually make it a reality. The pending Farm Bureau suit and similar litigation challenging EPA’s use of Watershed Implementation Plans raises critical questions about whether EPA has sufficient legal authority to aggressively oversee State implementation of TMDLs and to wed the legal and political powers needed to make full restoration of the Chesapeake Bay a reality. If the courts should find that EPA has overstepped its authority, it is unlikely Congress will step in to expand federal authority given the current political climate in the US. Thus, if the challenges to the Bay TMDL succeed in restraining federal power in this case, it is possible that other non-point source polluted interstate waterbodies throughout the country will remain impaired as the political barriers facing States remain in would remain unchanged.128 A second issue that will affect all future restoration plans for interstate waterbodies like the Chesapeake is whether the sanctions EPA has proposed for States failing to meet the goals outlined in their WIPs will be imposed or will be effective if they are imposed. Although EPA has the authority to tighten effluent limitations on point sources of pollution, this may prove difficult for both technological and political reasons. Many of the wastewater treatment facilities in the region already employ advanced nutrient reduction technology and may find it too expensive to further 128 See Clean Water Legacy Act 2006.



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upgrade their facilities, even assuming technology that will produce lower nutrient discharges is available. Ecosystem restoration projects that involve dramatic levels of nutrient reduction, like those needed in the Chesapeake Bay, will always be challenging. Multi-layered systems of governance are likely essential to address problems of this scale because improving water quality requires developing pollution control measures that allow regional flexibility and national oversight to overcome local political opposition. The system must be carefully crafted to assure that the federal level of government is in a position to provide clear leadership and accountability, while the local and State levels are sufficiently invested in solving the problem so they provide the regulatory and financial resources needed to implement solutions. Bibliography W. Andreen et al. (eds.), Missing the Mark in the Chesapeake Bay: A Report Card for the Phase I Watershed Implementation Plans (Center for Progressive Reform, 2011). Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region (2011). C. J. Auckerman, “Agricultural Diffuse Pollution Controls: Lessons for Scotland from the Chesapeake Bay” (2004) 20 Journal of Land Use and Environmental Law 192–269. S. Brull, “An Evaluation of Nonpoint Source Pollution Regulation in the Chesapeake Bay” (2006) 13 University of Baltimore Journal of Environmental Law 221. Chesapeake Bay Foundation, The Economic Argument for Cleaning Up the Bay and Its Rivers (2010). C. Copeland, Water Quality: Implementing the Clean Water Act (Washington, D.C., Congressional Research Service, 2001). EPA, Summary Delaware WIP Evaluation (2010). EPA, Summary District of Columbia WIP Evaluation (2010). EPA, Summary Maryland WIP Evaluation (2010). EPA, Summary New York WIP Evaluation (2010). EPA, Summary Pennsylvania WIP Evaluation (2010). EPA, Summary Virginia WIP Evaluation (2010). O. A. Houck, “The Clean Water Act Returns (Again): Part I, TMDLs and Chesapeake Bay” (2011) 41 Environmental Law Reporter News and Analysis. O. A. Houck, The Clean Water Act TMDL Program: Law, Policy and Implementation (2nd ed.) (Washington, D.C., Environmental Law Institute, 2002). Maryland Department of the Environment, 319 Nonpoint Source Program: 2009 Annual Report (2010). National Academy of Science, Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay: An Evaluation of Program Strategies and Implementation (Washington, D.C., The National Academies Press, 2011). Pew Charitable Trusts, Big Chicken: Pollution and Industrial Poultry Production in America (2011). Taking Environmental Protection to the Next Level: An Assessment of the U.S. Environmental Services Delivery System (Washington, D.C., National Academy of Public Administration, 2007). U.S. Environmental Protection Agency, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorous and Sediment (2010). U.S. Environmental Protection Agency, Watershed Implementation Plan Evaluations, (2010).

WATER MANAGEMENT AND PROTECTION IN GERMANY Wolfgang Köck1 Introduction In this chapter, the author provides an overview of the basic structures of water resource management and protection in Germany. The main focus is on the analysis of the legal framework as well as the organization and coordination of river basin management. Special attention is paid to the challenges of coordination between the policies and legislation of water management and of agriculture. The analysis also includes the legislation on the EU level. 1. EU Influence on the Management and Protection of Water Resources in Germany Water resource management and the protection of waters in Germany are  currently influenced to a great extent by European Union legal regulations. In particular, the management objectives set out in the Water Framework Directive (WFD)2 from the year 2000 contain strict regulations for the protection of waters and are binding for EU Member States. The Water Framework Directive not only prescribes specific objectives at the level of the EU, but also legally stipulates a number of tools and procedures for achieving these objectives. These include, for example, the obligation to manage waters at the level of river basins, to coordinate (in both spatial and material terms) measures aimed at establishing good quality of waters, to draw up management plans and programmes of measures for every river basin, and to include the wider public in the planning process. However, the influence of the European Union on water resources management in Germany occurs not only by means of water-related legal 1 Prof. Dr. Wolfgang Köck is Head of the Department of Environmental and Planning Law, Helmholtz-Centre for Environmental Research – UFZ, Leipzig, and Professor of Environmental Law, Law Faculty, Leipzig University (Universität Leipzig), Leipzig, Germany. 2 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1.

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regulations, but also through policy instruments in other areas of EU policy. One important example is the financial assistance provided from the Common Agricultural Policy for measures aimed at protecting and developing water bodies. This example highlights the fact that integrating environmental and water protection concerns into other EU policy areas is a crucial condition for achieving the ambitious water resource management objectives. Although progress has been made in recent years in terms of policy integration, too little coordination between different policy areas still exists at the European level and counterproductive incentives tend to sway the actors involved. This particularly applies to the relationship between European water protection policy and European agricultural policy, an important issue in water protection. Taking note of the various EU influences on water resource management and water protection in European Member States is necessary to heighten awareness of the fact that the management and protection of water resources in Germany–just as in any other EU Member State–not only depends on domestic actors, institutions and decisions, but is also increasingly influenced to a large extent by the stipulations of European law, by European actors and by consultation processes in the water-related policy areas of the EU. Omissions at this level of policy making can be offset only with considerable effort on the part of the Member States and actors in the river basins themselves. European influences on the management and protection of water resources are significant; nonetheless, the national level of action remains key in terms of actual implementation. This is especially the case for the organisation of water resource management, but it also applies to substantial areas of strategic planning and to the instruments used. Room even exists for manoeuvre at the national and regional levels in the area of management objectives because the European regulations allow for deviations in regional objectives under certain circumstances (Article 4 V WFD). 2. Water Resource Management Water resource management refers to the qualitative and quantitative management of surface and ground water in a comprehensive sense. It is distinct from the narrower tasks of water supply and wastewater management that are the responsibility of Cities, Towns and Villages and have



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now been substantially privatised. A whole range of policy areas are closely linked to water resource management, such as the use of watercourses as transport routes (navigable waterways), protection from the risk of flooding, protection of water as a habitat as part of comprehensive biodiversity conservation, the harnessing of renewable energy through water power, fisheries, the monitoring of harmful substances released into waters (e.g., cleaning liquids and detergents, pesticides, medicines) and land use, insofar as it has an impact on the status of waters, such as agriculture. This chapter is necessarily focused on water resource management in the narrower sense – in other words, on the quantitative and qualitative management and protection of water resources. All other areas related to water resource management can be addressed only peripherally or not at all. An exception to this is the link between water resource management and agriculture, which will be given particular attention (see section 5 in the following). 2.1. Water Resources in Germany and the Most Important Uses of Water Germany is a country rich in water resources. The potential volume of water to be managed (so-called “water yield”) amounts to an annual 188 billion m3.3 Of this total volume, currently less than 20% is used.4 However, in some German Regions, namely in the Elbe, Weser and Rhine river basins, the rate of use is notably higher than 20%. This is worthy of note because the European Environment Agency (EEA) speaks of “water stress” when use rates rise above 20%.5 The EEA refers to acute water stress only when rates of use exceed 40%. No river catchment area in Germany comes anywhere close to this rate of freshwater extraction. The most significant water user in Germany is the energy sector, which extracts a total of 19.7 billion m3 of water each year to cool its power stations. Some 5 billion m3 of water are needed annually for the public water supply.6 The overall high volume of available water resources in Germany means that water quantity management – unlike the years of exponential

3 See Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals (2010), at 16. 4 Ibidem. 5 See European Environment Agency (EEA), Water Resources across Europe (2009), at 17. 6 See Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals supra, at 16, 18.

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growth during industrialisation7 – currently requires special measures in only some Regions of Germany.8 It is water quality management that poses the main challenges in the present German context. All in all, the situation regarding physicochemical water quality management is on the right track in Germany.9 By contrast, ecological water quality has so far achieved the “good status” required by European law in only a few areas.10 The overall satisfactory state with regard to physicochemical quality has essentially to do with the effective regulation of wastewater discharge by sewage works (see section 3.2 in the following). The remaining problems can be traced to diffuse sources of runoff from nutrients and pesticides used in agriculture (see section 5 in the following). Coping with the problems of ecological water quality, by contrast, poses much greater difficulties: at issue here is not only nutrient inputs from agriculture,11 but also highly varied, complex and timeconsuming changes in the water bodies’ structure, which affects the sphere of responsibility of many actors (see section 5 in the following). 2.2. Legislative Competences for Water Resource Management and Protection In Germany–as in other countries–it is the public hands that are responsible for the management of water resources, although the State is 7 Water quantity management posed a considerable problem as recently as the last 19th century, when the population of the rapidly industrialising Ruhr area, Germany’s largest industrial region, grew exponentially. Only with the erection of large dams in the elevated Regions of the Sauerland could the situation be brought under control; see H. Bode, “Flussgebietsmanagement” in Ruhrverband (ed.), 100 Jahre ganzheitliche Wasserwirtschaft an der Ruhr (Berlin, Paul Parey Verlag, 2000), at 35 et seq. 8 Further need for action may arise in the future; however, as a result of climate change, see Bundesumweltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland (2010), at 48. 9 An evaluation of the inventory analysis in the 2009 management plans revealed that 88% of all surface waters already possess good physicochemical quality. It should be borne in mind, however, that the quality values contained in the supporting guideline Environmental Quality Standards (Directive 2008/105/EC) were not taken into account in every instance in this evaluation, so that there may still be changes to come, see Bunde­ sumweltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern  – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland supra, at 28. See Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the Council (2008) OJ L348/84. 10 The evaluation of the 2009 management plans showed that only 10% surface water bodies possess or will achieve the desired good status, see ibidem, at 22. 11 Nutrient inputs in agriculture are doubly significant; they impact on both the physicochemical and ecological status of a surface water body.



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permitted to delegate certain tasks to nongovernmental institutions and has indeed done so in numerous instances. At the national, federal level this responsibility is essentially expressed in legislation and through the provision of scientific and subject-specific expertise in departmental research institutions (such as the Federal Environment Agency). Responsibility for implementing the laws, however, lies in principle with the Länder (federal States). The federal administration (Bundesverwaltung) exercises executive competences only in the  federal waterways administration (Bundeswasserstraßenverwaltung) and in some associated areas of water policy, such as assessing and evaluating environmental risks in pesticide and pharmaceutical approval procedures. As of the constitutional reform of 2006 (“federalism reform”), the federal government is permitted to regulate completely the management and protection of water resources (“concurrent legislative power” - Article 74(I) No. 32 Basic Law). Concurrent legislation means that the Länder also have the right to make laws, albeit only as long as and to the extent that the federal government has not already legislated in this area (Article 72(I) Basic Law). Federal-level regulations precede existing State (Land) level regulations. Until the federalism reform, the federal government had only limited legislative power regarding the management and protection of water resources. It was only permitted to set a framework, relying otherwise on the Länder to enact and implement their specific provisions. This complex and time-consuming legislative technique has turned into a problem as water policy has increasingly become Europeanised. This is because the implementation of European legal provisions has required legislation not only at the federal level, but also at the level of all 16 Länder. Concurrent power now gives the federal government the option of passing complete regulations. In this respect, a need for legislation at the regional State level no longer exists. However, the extension of competence of the federal level in the sphere of water resource management could only be obtained through a constitutional compromise. The compromise is this: since the federalism reform, the German Constitution (Basic Law–GG) grants the Länder limited rights of deviation (Abweic­ hungsrecht) in the management and protection of water resources (Article 72, Paragraph 3(5) Basic Law) – that is, the Länder can create regulations that are contrary to federal government regulations. These rights of deviation have been made use of to only a small extent so far. To date, no court decisions have been made regarding the limits of these rights of deviation. The right of deviation gives the Länder a strong negotiating position, one

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they make full use of during the preparatory phase of federal legislation to work toward federal legislation that takes account of their interests. The federal government, for its part, made use of its new legislative competences through its law on regulating water resources (Federal Water Act – Wasserhaushaltgesetz - WHG) of 31 July 2009. The federal government’s new WHG now contains, for the first time, comprehensive regulations which supplant the previously valid State regulations. However, the WHG does not regulate every aspect of water resource management and protection; rather, it contains references to State law as well as loopholes, so that the water resources laws of the Länder will continue to be pertinent in the future. 2.3. The Role of Government in Preparing Legislation In Germany, by far the largest number of laws are prepared by the Government and introduced to Parliament as Government bills. The ministry responsible for elaborating a draft bill for the management and protection of waters is the Federal Ministry for the Environment. Other ministries are also involved in devising such bills, such as the ministry of transport, the ministry of economics and the ministry of agriculture.12 After the Government has decided on the bill and has overcome conflicts between the various departments involved, the bill is put before the Par­ liament (Bundestag) and the regional State chamber (Bundesrat, the body of Länder government representatives) for final approval or rejection. The Federal Water Act (WHG) provides a series of important authorisations to the federal government for enacting supplementary ordinances (Paragraph 23 WHG). The creation of highly important supplementary rules comes about only on the basis of agreement within the Govern­ ment because these authorisations are not particularly addressed to the Environment Ministry. Yet the Environment Ministry occupies a strong position even here, because it is responsible for preparing the draft regulations. 3. Conceptual Fundamentals of Water Management Law in Germany The WHG regulates the management and protection of waters in a single body of law. It includes the most important strategic planning regulations 12 For further details, see Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals supra, at 28 et seq.



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of the WHG with a view to the protection of waters as well as the waterrelated provisions on licensing and planning and the provisions on stateof-the-art of waste water treatment. 3.1. Public Management Arrangement for Water Use The WHG has established a public management arrangement, which subjects every use of water in principle to the granting of permission (Paragraph 8, 68 WHG). Furthermore, the law stipulates that the individual citizen has no legal claim to the use of water (Paragraph 12(I) in conjunction with Paragraph 4(III) WHG). This legislative decision was confirmed a long time ago by the Federal Constitutional Court and has even been judged to be a constitutional requirement, considering that the safeguarding of water resources constitutes paramount public interest.13 The licencing of water use is at the management discretion of the State (Paragraph 12(II) WHG). In exercising its management discretion the relevant authority needs to heed the management objectives prescribed by European laws on the protection of water resources – in particular, the Water Framework Direction (Paragraph 12 in conjunction with Paragraph 3 No. 10 and Paragraphs 27, 44, 47 WHG). Thus, water resource management must be carried out in such a way that good status of waters can be achieved (requirement of improvement)14 and, beyond this, that certainly no considerable deterioration occurs in the existing status.15 The exercising of management discretion usually occurs by means of the management planning prescribed by European law and through the programme of measures. Each separate decision at the level of licencing permission is prepared by means of these plans. Only if a management problem has not been addressed through the management plan is management discretion exercised at the level of the specific decision to be made. 13 See BVerfG Judgment BvL 77/78 of 15 July 1981 (BVerfGE 58, 300, 332 et seq.). This decision is of great significance to environmental conservation even today, beyond the sphere of protection of water resources, because here the relationship between property rights and the scope of influence of the democratic law maker has been addressed fundamentally for the first time. 14 In the case of heavily modified water bodies, the management requirements are less stringent; here, it is sufficient to direct management efforts at achieving “good ecological potential”. 15 Now, extremely heated legal debate is taking place in Germany over the substance of the deterioration prohibition (for further detail, see W. Köck, “Die Implementation der Wasserrahmenrichtlinie” (2009) 20 Zeitschrift für Umweltrecht 227–233. So far the disputed issues have not been clarified through the courts.

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In addition to management requirements, the WHG also demands that permission to discharge waste water into water bodies (direct discharge) may only be granted if the amount and toxicity of the waste water is kept as low as is possible when using the appropriate state-of-the-art technology (Paragraph 57(I) No. 1 WHG). The law empowers the federal government to establish requirements for waste water discharge that are in accordance with the state-of-the-art technology. The federal government has done this through the so-called waste water ordinance, which has currently set emissions standards for 57 different business sectors.16 The sector-based setting of cleanliness standards and the resulting emissions standards for direct dischargers are an absolutely essential reason the physicochemical quality of waters in many areas is now good. In view of the Water Framework Directive, too, Germany has not called this policy into question, but rather requires that waters are kept clean in accordance with the state-of-the-art technology as a minimum requirement of every waste water discharger – regardless of whether or not good status has already been achieved. The European Water Framework Directive has taken account of the German concept to the extent that it has adopted the “combined approach” (quality-oriented river basin management on the one hand – emissions-based point source regulation on the other hand; see Article 10 WFD). 4. The Implementation of Water Resource Management Law 4.1. Implementation of Laws by the Länder At the level of the Länder federal legal stipulations are implemented by the Land authorities. Federal authorities are involved in executing legal provisions only to the extent that they take part in the Federal/Länder working group on water issues (Bund/Länder-Arbeitsgemeinschaft Wasser, LAWA). This working group serves to ensure that fundamental approaches to the implementation of laws are coordinated, current problems in implementation shared and guidelines for implementing laws developed. The federal government plays a supervisory role in monitoring whether federal laws have been fully implemented by the Länder (Article 84(III) 16 See Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals supra, at 84.



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Basic Law); it has no authority, however, as far as water resource management is concerned [to issue instructions]. If the Government believes that a Land is not properly implementing federal law and these shortcomings are not eliminated by the Land, then it may submit an application to the Bundesrat – that is, the representative body of the Länder in respect of federal legislation – to ascertain whether federal law has been violated (Article 84 IV Basic Law). This option – on the available evidence so far – has not been taken up in water resource management. 4.2. Management at the River Basin Level The Water Framework Directive and its implementation into German law have not lead to a rearrangement of responsibilities. Although water resource management now has to occur at the river basin level, German legislation has not created any centralised administrative units for the 10 river basins established directly by federal law in Paragraph 7(I) WHG; rather, it has left it at the very modest stipulations of the Water Framework Directive. Paragraph 7(II) WHG merely requires accordingly that the relevant Land authorities coordinate their water resource management plans and measures with one another. With regard to the administration of the country’s waterways,17 the WHG also stipulates to the relevant Land authorities that they are to seek the assent of the relevant Waterways and Shipping Directorate (Paragraph 7(IV) WHG). “Assent” means that a measure can be included in the programme of measures only if the Waterways and Shipping Directorate gives its agreement. In this way, the federal legislature ensures that the federal waterways administration is able to safeguard its interests when the programme of measures and the management plan are being set up. In addition, however, there are no mechanisms under federal law for regulating the mode of decision making, the procedure or the binding effect of the programme of measures or the management plan. In this respect, the Länder have been given a free rein (see section 7.3 below). The absence of river basin authorities can in part be explained by the fact that, at the level of federal legislation, only limited opportunities exist to exert influence on administrative organisation in the Länder (Article 84 Basic Law). Federal State borders remain de facto the boundaries of administration and implementation, and the responsibilities for 17 The Federal Waterways Act contains a list of all the inland waterways that are federal waterways. See Bundeswasserstraßengesetz (BWaStrG) 1968, Para. 1 in conjunction with Appendix 1.

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implementation established as part of the general administrative structure remain in place because the Länder themselves have seen no benefit in creating new trans-Länder administrative bodies/units.18 4.3. Programme of Measures and Management Plan as Coordination Tools The formal coordination tool made available by European law and German federal law is the programme of measures and the management plan. However, the coordination mechanisms used in devising these programmes and plans are subject to only very partial regulation in European as well as German federal law. Additional regulations are left to the legislature of each Land. German federal law merely states, with regard to cross-sector coordination, that the programme of measures must take account of spatial planning objectives (Paragraph 82(I) WHG). In other words, the measures may not contradict the goals set out in land use plans (spatial planning documents).19 This safeguards adequately the interests of spatial planning. These interests may be compelling to the benefit of water resources protection in cases when, for example, spatial plans are used to establish a type of land use that benefits water resources protection. However, the scope for action in spatial planning is very limited particularly with regard to the sound management of agriculture.20 As far as participation is concerned, federal law – in accordance with European legal stipulations – states that the public is to be included in the process of devising the plans. The public thus has an opportunity to influence the programme of measures in terms of both what they refer to and which measures are chosen before the programme is officially adopted. The procedure for including the public in the process occurs in a three-stage hearing (stage 1: schedule and work programme; stage 2: most 18 Most federal States, or Länder, have a three-tiered administrative structure. In terms of water resource management administration, this means that the Lower Water Authority is situated at the level of the Municipalities, or Districts, or administrative district offices. The Upper Water Authority is the government presidium, or State (Land) directorate, and the Environment Ministry takes on the tasks of the supreme water authority. On the administrative structure of the Länder, see Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals supra, at 29 et seq. 19 Spatial planning objectives are only those stipulations which constitute a final decision and which, at the level of land use planning, meet the demands of the requirement to weigh pros and cons. 20 See also W. Durner, “Raumplanung und Wasserwirtschaft – ein Problemaufriss” in H. D. Jarass (ed.), Wechselwirkungen zwischen Raumplanung und Wasserwirtschaft (Berlin, Lexxion, 2008), at 27–38.



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important water resource management issues in the river basin concerned; stage 3: drafting of the management plan). The participating public has an opportunity, via oral hearings, to comment on the planning at the first two stages and, via written submission, at the third stage as well (Paragraph 83(IV) WHG). “The public” includes all citizens who live within the area of demarcation of the plan, but also user groups, NGOs and interest groups. The State (Land) legislatures have made varied use of their options for issuing further regulations regarding the programme of measures and management planning. Some State laws (such as the water law in North Rhine-Westfalia) stipulate that the relevant environment ministry can decide on measures only in consultation with the other ministries affected (Paragraph 2d WassG NRW). In other federal States, the programme of measures and the management plan requires the agreement of the State (Land) Parliament (this is the case in Baden-Württemberg: Paragraph 3c WassG Bad-Württ) or of the State (Land) government (as in Lower Saxony: Paragraph 117 NdsWassG). Viewed as a whole, it can be concluded that the decision-making process for the programme of measures and management plans tends, if anything, to rather impair than promote effective coordination: each institutional actor involved has ways of effectively safeguarding its interests, thus not only making it unlikely that water pollution is managed in an integrated way based on calling polluters to account, but also rendering doubtful whether objectives will be achieved at all.21 The legal status of the programme of measures is not adjudicated by federal law (Paragraph 82 WHG).22 Most State (Land) laws contain regulations declaring the plans and programmes as “binding” in the sense that the relevant authorities are bound to adhere to them. This means that all State authorities are obligated to take account of and implement the stipulations of the programme and the plan as part of their scope of responsibility and authority. By contrast, citizens are not bound in principle by the programme of measures.23 21 With regard to the way in which agriculture is largely exempted from pollution regulation, see also W. Durner, “10 Jahre Wasserrahmenrichtlinie in Deutschland” in W. Köck and K. Faßbender (eds.), Implementation der Wasserrahmenrichtlinie in Deutschland (Baden-Baden, Nomos, 2010), at 17, 39 et seq. 22 For more detail on this, see K. Faßbender, “Maßnahmenprogramme: Bindungswirkung und Rechtsschutz” in W. Köck and K. Faßbender (eds.), Implementation der Wasserrah­ menrichtlinie in Deutschland (Baden-Baden: Nomos, 2010), at 129, 136 et seq. 23 The Baden-Württemberg water law contains a provision enabling the programme of measures to be declared binding by a subsidiary legal decree (regulation – Verordnung).

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The first generation of programmes of measures and management plans to be elaborated in Germany in time to meet the December 2009 deadline confirms the findings from the foregoing legal analysis. The programmes and plans now adopted reveal clearly that the new task of coordination still poses difficulties and that, in addition to problems of spatial coordination, unresolved problems are present, particularly regarding actual on-the-ground coordination. The larger problems are due to conflicts between the waterways administration and water resources management administration and, even more, the conflicts between water resource management and agriculture (see section 5 below). Although the programmes and plans contain a range of measures aimed at reducing pollution due to nutrient inputs from agriculture,24 these were only made possible by deploying financial resources from the European Agricultural Fund25 for compensation payments to farmers in relation to water protection measures and thereby encouraging farmers to implement measures on a voluntary basis.26 Management by means of positive financial incentives, however, is limited by financial constraints; therefore, in the future, the issue of enforcing the polluter-pays principle will need to be taken up again. The public in Germany has made considerable use of the new rights of participation which have now been incorporated into German water law for the first time by way of the European Water Framework Directive. Statements have come especially from local Town councils, interest groups and various user groups.27 4.4. Organising Coordination: Setting up River Basin Alliances The programme of measures and the management plan is the tool that brings together the outcomes of coordination efforts. The regulations at federal and at State (Land) level regarding setting up these programmes and plans, the process of decision making, and restrictions on decision See Wassergesetz für Baden-Württemberg (WassGes Bad-Württ) 2005, Paras 3 et seq. If this enabling declaration is put into effect, the stipulations contained in the law apply to private individuals/citizens too. 24 See Bundesumweltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland supra, at 54. 25 See Council Regulation (EC) No. 1698/2005 concerning financial support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (2005) OJ L 277/1; amended by Council Regulation No. 74/2009 (2009) OJ L30/100. 26 See Bundesumweltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland supra, at 55. 27 Ibidem at 9.



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making are significant stipulations which certainly have impacts on the outcome of the planning process. Germany has not limited itself to setting rules for elaborating plans and programmes in the different federal States but has also laid the organisational groundwork for river basin based coordination. Coordinating institutions have been established on the basis of State agreements (Ländervereinbarungen). These include, at the level of river basins, setting up river basin alliances (Flussgebietsgemeinschaften, FGG) in each State, such as FGG Rhine, FGG Weser and FGG Elbe. To a large extent, these alliances could be leaned against the International River Basin Commissions established through international law, such as the International Com­ mission for the Protection of the Rhine. The river basin communities set up by the Länder, including the Federal/ Länder working group on water issues, are important coordinating bodies for trans-Länder management activities; they have also formed decisionmaking committees, such as the Elbe ministerial council in the case of FGG Elbe.28 However, decisions can only be passed unanimously. In addition, the river basin communities incorporate only the relevant ministers or administrations for water resource management and no other sectors related to water, such as the department of agriculture. Thus, the FGGs are not an inter-ministerial working group tasked with managing cross-sector issues of water resource management. Neither are local councils, interest groups or private actors directly included in the work of the FGGs. In this respect, the FGGs serve in the first instance to coordinate measures between the Länder and to feed any problems identified back into the cross-sector coordination at Land level. This organisational structure is ill-suited to resolving complex management problems. A more effective structure could be provided at the level of each State (Land) if inter-ministerial working groups were to prepare the programmes of measures at Land level. Whether or not such working groups have already been set up unofficially in the Länder cannot be discerned from the literature. The fact that complex management problems render new approaches necessary – and also serve to prompt informal approaches – is demonstrated by the example of the Weser river basin. As a result of potash production over several decades, large quantities of salty waste water have been discharged into the Werra (a major tributary of the Weser) so that 28 See http://www.FGG-elbe.de.

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in the Länder lying below it, namely, Lower Saxony and, in particular, Bremen no drinking water could be extracted from the river’s bank filtration system and supplies had to be switched to dams further away. To tackle the serious problems of salination of the Weser – yet not to endanger the potash production so crucial to this structurally weak region – a so-called Round Table has been established through a resolution of the Land government in Hesse and Thuringia. Its members include the governments of Lower Saxony and Bremen, the potash company K+S, the local councils whose ground water supplies are threatened by the salination, and various environmental organisations. In a comprehensive discussion process, the  “Round Table on Werra/Weser Water Resource Protection and Potash  Production” has developed a strategic solution, albeit one that has yet to be incorporated into the management plan and programme of measures.29 4.5. Actors of Water Resource Management Alongside the federal State actors and those at the level of the Länder, a range of other actors are involved in water resource management whose interests are highly diverse. The most significant nongovernmental actors are the following: – Cities and Towns, in their capacity as the institutions responsible for maintaining the quality of certain water bodies and for ensuring water supply and waste water disposal. The Cities and Towns may legally join together in an inter-municipal association (Zweckverband), to perform the tasks of water supply and disposal. Smaller rural communities in particular have often taken advantage of this option. Cost-covering fees may be levied for the water supply and waste water disposal service provided by the Cities and Towns or the inter-municipal task forces. The Towns may legally entrust these tasks to private companies. If such a private enterprise solution is chosen, however, the State (federal government) must provide an effective form of supervision and ensure by means of regulation that supply and disposal services are being provided reliably and at a fair price by the private organisations. In terms of price control, the antitrust authorities are the relevant supervisory body.

29 See H. Brinckmann, “Runder Tisch Gewässerschutz Werra/Weser und Kaliproduktion: Arbeitsauftrag – Ergebnisse – Erfahrungen” (2010) 21 Zeitschrift für Umweltrecht 467–474.



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– Water and soil associations in their capacity as self-administrative caretakers for agricultural soil drainage and as the bodies responsible for upkeep and for hydrolic engineering in accordance with the stipulations of State (Land) and water association laws. These associations are not private collectives but public inter-municipal associations, membership of which is compulsory for all key land owners. The upkeep of water resources is the responsibility of the water and soil associations, especially drainage for agricultural purposes. The activities of these associations are financed through members’ fees. The tasks, organisation and financing of the water associations are regulated via the federal Water Association Act.30 – Private water supply and waste water disposal companies, insofar as the Cities and Towns have made use of their option to implement supply and disposal through independently constituted local municipal institutions (such as companies answerable to municipal authorities but operating in the legal form of private companies) or to delegate it to a third party (privatisation). – Other water users, insofar as their rights or interests are affected by management decisions made by the relevant bodies. The most important water users, apart from those responsible for supply and disposal, are industry, agriculture, mining, the energy sector, inland shipping and fisheries. Although no legal right to water use is enshrined in German law (beyond general use, see section 3.1), in some Regions a few so-called ancient rights still exist which may be withdrawn only in exchange for compensation. In addition, German law now recog­ nises  water law-based neighbour protection (“Requirement of due Consideration under Water Law”),31 which gives users certain legal standings.32 – The public, in the context of management planning but also of decision-making processes in the course of certain water resource management infrastructure projects (planning processes: e.g., construction of dams, dikes, canals, and river deepening in the interests of shipping). – A special actor exists in the Land of North Rhine Westfalia (NRW). There, at the beginning of the 20th century, several management associations for sub-basins were set up by law as a result of management 30 Gesetz über Wasser- und Bodenverbände (Wasserverbandsgesetz - WVG) 1991. 31 See BVerwG (Federal Administrative Court) Judgement 4 C 56.83 of 15 July 1987 (BVerwGE 78, 40). 32 For further details, see M. Reinhardt, “Drittschutz im Wasserrecht” (2011) Die Öffentliche Verwaltung 135–142.

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problems caused by industrialisation. These associations include Municipalities, water supply and management firms and water-using industry. They comprehensively manage issues of quantity and goodness for their sub-basin above and beyond the list of duties prescribed by the Water Association Act. Two examples are the Ruhr Association and the Emscher Association. 5. Problems Relating to Cross-Sector Coordination as Exemplified by Agriculture For the objectives laid down in European law to be achieved in the river basins, it is not sufficient to manage just bodies of surface and ground water and their direct use. Rather, what is needed is to incorporate land use as a whole – to the extent that it is relevant to the status of waters – in policy measures. One of the most important sectors of land use in Germany upon which influence needs to be exerted in the interests of water resource protection is agriculture. In a variety of ways, agriculture is responsible for good status of waters not being achieved.33 The main sources of water pollution from agriculture consist in nutrient and pesticide inputs into ground water and surface water as well as drainage (melioration), for which water and soil associations with agricultural interests bear responsibility. Considering that nutrient inputs from agriculture originate from diffuse sources,34 legal controls come up against the limits of what they are able to achieve. Although statutory provisions – notably in the EC nitrates Directive–35 have been set regarding the application of fertilizer per unit of productive land, monitoring them remains a problem. These problems could be addressed through better coordination between water resource

33 According to the 2010 progress report of the Federal Environment Agency concerning the status of management planning in Germany, 370 out of 1,000 ground water bodies in Germany do not achieve good status. In nearly all cases, the reason for this is nutrient inputs from agriculture; 7,400 out of 9,900 bodies of surface water are significantly polluted by nutrient inputs from agriculture. In addition, drainage due to agriculture is one of the main reasons for water bodies being identified as “heavily modified”. See Bundesum­ weltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland supra, at 53. 34 There are some 349,000 farms in Germany covering more than 2 ha. of land each; see ibidem at 53. 35 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1991) OJ L375/1.



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management and agricultural policy. Initial efforts have been made, although they have not yet delivered lasting success. – One initial and very important approach is the EU’s “cross compliance” initiative,36 that is, the method of coupling direct support for farmers to their compliance with certain environmental regulations. However, the rules set down are rather basic with regard to the protection of water resources.37 This is compounded by the fact that very few farms are monitored in terms of whether they have adhered to the environmental regulations.38 – A second important approach, previously mentioned, is the European Agricultural Fund for Rural Development (EAFRD).39 This contains, among other things, a section dedicated to “improving the environment and the countryside” and facilitates funding for improving the structure of water bodies to achieve good ecological status of waters. EAFRD resources, coupled with co-financing by Member States, also facilitate direct support schemes for farmers, provided the latter implement special agri-environmental measures beyond the usual “good professional practice” (gute fachliche Praxis). The EAFRD programme thus provides important incentives for environmentally sound farming, but is reliant on adequate financing – not always guaranteed up till now due to distribution wrangles in European agricultural policy. The payment of financial assistance to agriculture also conflicts with Water Framework Directive regulations, which require that the costs of water services are borne fairly according to the polluter-pays principle. This means including those water uses which have an impact on the costs of water services (Article 9 WFD).40 36 See Council Regulation (EC) No. 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy (2009) OJ L30/16. 37 See the more detailed proposals of the German Advisory Council on the Environment, Für eine zeitgemäße Gemeinsame Agrarpolitik (2009) Statement No. 14. 38 In accordance with Art. 30 of Commission Regulation (EC) No. 1122/2009 of 30 November 2009, at least 5% of all farmers applying for the single payment scheme must be subject to on-the-spot checks to ensure that they are fulfilling the cross compliance regulations. See Commission Regulation No. (EC) 1122/2009 of 30 November 2009 for the implementation of Council Regulation (EC) No. 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No. 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (2009) OJ L316/65. 39 See footnote No. 25 above. 40 For further detail, see E. Gawel et al., “Weiterentwicklung von Abwasserabgabe und Wasserentnahmeentgelten zu einer umfassenden Wassernutzungsabgabe” (2011) 67 UBA/

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– The German policy of paying compensation to farmers when water conservation areas are set up is evidence of the fact that the policy of financial compensation for farmers has an effective impact on the protection of waters. The Länder governments are empowered by the WHG to establish water conservation areas in which far-reaching restrictions apply to agriculture. However, federal law also stipulates that farmers must be financially compensated when efforts are demanded of them that go beyond “proper use” of agricultural land (Paragraph 52(IV) WHG). – Most federal States have now introduced so-called water abstraction fees, the income from which is used to pay compensation payments to farmers. Here too, however, the tension between this and the polluterpays principle is obvious. The Federal Constitutional Court has deemed the levying of a water abstraction fee constitutionally permissible41 and has not pronounced on the issue of whether the revenue from this fee can be paid to farmers. – Another important approach consists of the direct steering instruments of the WHG. The main federal regulation to be mentioned here concerns the protection of buffer strips around water bodies (Paragraph 38 WHG). Unfortunately, this regulation is utterly ineffective in its current form because it still permits the use of fertilizers and pesticides within these strips, which are in any case too narrow (Paragraph 38(IV) No. 3 WHG).42 This set of legal tools for water use permission is not applicable because neither agricultural manure spreading, nor crop treatment using pesticides are uses in the sense of German water laws. – In the future, mandatory charges on the use of fertilizers and pesticides could also serve to reduce inputs by agriculture outside water conservation areas. Corresponding proposals do exist for this,43 but the political will to levy environment-based agricultural charges is not particularly strong, and resistance from agricultural departments at both federal and Land levels as well as that within agricultural interest groups is Texte, at 37–50 and 225 et seq. See also W. Durner, “10 Jahre Wasserrahmenrichtlinie in Deutschland” supra, at 32 et seq. 41 See BVerfG Decision 2 BvR 413/88 of 7 November 1995 (BVerfGE 93, 319 et seq.). 42 The federal government has explicitly granted the Länder the option of creating more far-reaching regulations. In some federal States, more rigorous regulations apply, for example in Saxony; cf. Para. 50 Sächsisches Wassergesetz (Saxony Water Act) 2004. 43 See, most recently, E. Gawel et al., “Weiterentwicklung von Abwasserabgabe und Wasserentnahmeentgelten zu einer umfassenden Wassernutzungsabgabe” supra, at 209–238.



water management and protection in germany333 considerable, so that the prospects for success must be judged to be minimal.

All in all it is clear that the steering approaches deployed to date have not been sufficient to set agriculture on a track that does not run counter to the objectives of water resource management. In practice, payments compensating farmers for agricultural restrictions undertaken in the interests of water resource protection predominate. So far, it has not been possible to make farmers bear a portion of the costs of water conservation on a polluter-pays basis. This is also apparent in management planning practice (see section 4.3). Another area of water resource management in which the conflict between agriculture and water conservation has become apparent is the upkeep of water bodies. Upkeep includes the care and development of water bodies, such as the preservation of the bed of water bodies, upkeep of the water body bank, maintenance of the shipping capability of a navigable body of water, as well as the preservation and promotion of good ecological functioning of the water body (Paragraph 39(I) WHG). Federal law stipulates that the upkeep of water bodies is to be guided by management objectives and must not endanger these objectives (Paragraph 39(II) WHG). It imposes the duty of maintaining water bodies on the owners, as long as the task of upkeep has not been transferred to special institutions by State (Land) law (Paragraph 40(I) WHG). State law has transferred the upkeep of certain bodies of water to local municipal authorities and to interest groups. In rural areas, it is the water and soil associations, whose members are the land owners in the area designated for upkeep, which are responsible for upkeep. Ensuring that upkeep is guided by the new – ecologically based – water resource management objectives poses a considerable problem because the water and soil associations feel obligated to the interests of agriculture (drainage) first. In this regard, disputes also occur with regard to whether a water and soil association funded by membership fees (from farmers) can be placed under the obligation to bear costs of upkeep which benefit, in the first instance, not farmers but the wider community.44 Here, too, the only way to currently enforce ecological activities regarding water resource

44 See, for example, M. Reinhardt, “Ökologische Gewässerunterhaltung unter der Wasserrahmenrichtlinie” (2010) 27 Neue Zeitschrift für Verwaltungsrecht 1048, at 1053 et seq.; see also W. Durner, “10 Jahre Wasserrahmenrichtlinie in Deutschland” supra, at 34 et seq.

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management is by means of the aforementioned EAFRD resources, in other words, via compensation payments to farmers. 6. Evaluation and Conclusions The management and protection of water resources occurs by a variety of means. These include setting up a public system of management, basing management on the objectives prescribed by European law, deploying effective policy tools such as the system of permission for water use and strict standards of waste water discharge, ensuring the effective administration of water resource management at the Länder level and, finally, putting in place coordination mechanisms such as the Federal/Länder working group on water issues (LAWA) and the river basin communities. The Water Framework Directive in particular has ensured that the spatial coordination of management tasks now has much greater value attached to it and that corresponding organizations and procedures have been established. All this has been of tremendous benefit to water resource protection. The federal-style division of labour in Germany between national legislation and the implementation of laws at the Länder level has proven its worth. Even prior to the federalism reform, the federal government was able to impose basic requirements by law by setting a corresponding framework. The federalism reform and the new Federal Water Act made possible by it has further diminished the significance of State-level legislation in water resource management. However, State-level water laws in the future will not only regulate organisation and procedures, but also complement federal law in material ways. Whether intensive use is made of the new rights of deviation remains to be seen; all the indications are, however, that the right of deviation will remain an exception. Although German water resource management – even in comparison with other countries – can be proud of what it has achieved, many issues still exist that have not yet been satisfactorily resolved. For example, which coordination mechanisms have been established for spatial and material integration, the channels of decision making between the Länder located in a river basin community are based on consensus. What predominates is negative coordination, and this has an impact on the overall outcome: in many places the status of the waters does not achieve the “good status” (or “good ecological potential” for heavily modified water bodies) required by European law. This is essentially because the integration of water resource



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protection into other policy sectors has not yet progressed as far as is necessary. The established coordination tools and mechanisms are currently inadequate to effectively overcome sector-based egotism. Especially with regard to the agricultural sector, it is clear that integration is currently achieved essentially only via positive financial incentives and not by enforcing the polluter pays principle. Deficient policy integration is not a home-grown German problem, however: it is a multi-level problem. It begins with inadequate coordination between European water resources and agricultural policy and continues at the national level and the level of the Länder. Thus far, the political decision-making system has not succeeded in permanently removing the blockages between environmental and water resource management policy on the one hand and transport and agricultural policy on the other hand. Whether the idea of including the public in the preparatory phases of management planning is suited to removing these blockages cannot be predicted at present because such participation in this form is new for German water resource management and no proven experience exists on which to base such a judgement. Aimed at achieving the objectives set by European law, the management and protection of water resources requires adequate financing, and this is currently not the case in Germany.45 These problems are only partially home-grown. One example is the policy dispute over whether, in view of the success of German water policy, it is even necessary to levy a waste water charge or a water abstraction fee over and above the normal water charges. However, certain exists tasks for which not even the income from these two – in my view, very necessary – charges will be enough. In particular, the renaturation of stretches of water needed to improve the ecological status of waters can only be partially passed on as upkeep of waters to the water and soil associations responsible for upkeep. In addition, no third party can be expected to take on the necessary reconstruction measures in the interests of water resource protection; instead, this must essentially be done using State funding. Considering the developments observed in Germany to date, it is most likely that deviations from objectives will have to be accepted when it comes to improving the ecological status of waters. It may be possible for a committed water resource protection policy to cope with 150 years of industrialisation as far as chemical discharges are

45 See also W. Durner, “10 Jahre Wasserrahmenrichtlinie in Deutschland” supra, at 34 et seq.

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concerned. As far as structural surface water change is concerned, however, grounds for scepticism exist regarding whether it is possible to turn back the tide of history.46 A closing evaluation of the conclusions regarding whether they are in compliance with the principle of “good governance” leads to the following remarks. The principles of openness, participation, responsibility, effectiveness and coherence are being observed in German water policy and management. Some of the principles were strengthened through European legislation. This applies in particular to the principle of participation. The principle of responsibility may cause difficulties if the institutional framework and the area of action are not identical, as is the case in river basin management. Negative coordination is always a signal for the fact that the responsibility for implementation is allocated inadequately. Also, the principle of coherence implies challenges, as the example of coordination between the policies of water management and agriculture has shown. However, in this context, it also became clear that problems of coherence have already been identified on the level of European legislation. It is not possible to attribute these difficulties to German water resources management alone. Bibliography H. Bode, “Flussgebietsmanagement” in Ruhrverband (ed.), 100 Jahre ganzheitliche Wasserwirtschaft an der Ruhr (Berlin, Paul Parey Verlag, 2000). H. Brinckmann, “Runder Tisch Gewässerschutz Werra/Weser und Kaliproduktion: Arbeitsauftrag – Ergebnisse – Erfahrungen” (2010) 21 Zeitschrift für Umweltrecht 467–474. Bundesumweltministerium, Die Wasserrahmenrichtlinie. Auf dem Weg zu guten Gewässern – Ergebnisse der Bewirtschaftungsplanung 2009 in Deutschland (2010). W. Durner, “Raumplanung und Wasserwirtschaft – ein Problemaufriss” in H. D. Jarass (ed.), Wechselwirkungen zwischen Raumplanung und Wasserwirtschaft (Berlin, Lexxion, 2008). W. Durner, “10 Jahre Wasserrahmenrichtlinie in Deutschland” in W. Köck and K. Faßbender (eds.), Implementation der Wasserrahmenrichtlinie in Deutschland (Baden-Baden, Nomos, 2010), at 17 et seq. European Environment Agency (EEA), Water Resources across Europe (2009). K. Faßbender, “Maßnahmenprogramme: Bindungswirkung und Rechtsschutz” in W. Köck and K. Faßbender (eds.), Implementation der Wasserrahmenrichtlinie in Deutschland (Baden-Baden, Nomos, 2010), at 129 et seq. Federal Environment Agency (UBA), Water Resource Management in Germany – Part 1: Fundamentals (2010). E. Gawel et al., “Weiterentwicklung von Abwasserabgabe und Wasserentnahmeentgelten zu einer umfassenden Wassernutzungsabgabe” (2011) 67 UBA/Texte.

46 See also W. Köck, “Die Implementation der Wasserrahmenrichtlinie” supra, at 232.



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German Advisory Council on the Environment, Für eine zeitgemäße Gemeinsame Agrarpolitik (2009). W. Köck, “Die Implementation der Wasserrahmenrichtlinie” (2009) 20 Zeitschrift für Umweltrecht 227–233. M. Reinhardt, “Ökologische Gewässerunterhaltung unter der Wasserrahmenrichtlinie” (2010) 27 Neue Zeitschrift für Verwaltungsrecht 1048 et seq. M. Reinhardt, “Drittschutz im Wasserrecht” (2011) Die Öffentliche Verwaltung 135–142.

WATER MANAGEMENT AND PROTECTION IN SWITZERLAND David Furger1 Introduction Switzerland has been aware of the importance of its natural water resources for a long time, a fact that can be explained by its geographical situation as a land-locked State which, however, possesses a vital network of watercourses and lakes that are intensely exploited for agriculture and hydropower production. With growing recognition of the need to maintain water quality and of the fact that some problems could not be solved at the local level, competence for the protection of water – originally allocated to the States (Cantons)2 – was progressively transferred to the federal level during the course of the 20th century. However, the efforts to achieve a national regime for water protection have been and still are in a constant struggle to cope with the opposing economic interests of the Cantons, which prefer to exploit water resources without restrictions.3 Nevertheless, the 1953 constitutional provision to legislate in the area of water protection and management at the federal level was the first specific constitutional competence of the Federation in the field of environmental law avant la lettre.4 In this chapter on the management and protection of water resources in Switzerland, the author starts with a short analysis of the constitutional provisions allocating the relevant competences between the Federation and the Cantons. The author then outlines the various provisions at the 1 David Furger is Visiting Scholar, Lauterpacht Centre for International Law, University of Cambridge, UK, and writing his dissertation at the European Law Institute of the University of Fribourg (Université de Fribourg – Universität Freiburg), Fribourg, Switzerland. The author would like to thank Professor Astrid Epiney for the fruitful cooperation on an earlier publication which has inspired some of the present findings, as well as Benedikt Pirker, LL.M., and Jennifer Heuck, LL.M., for the language review and their helpful comments on a draft version of this chapter. 2 Unless authority is explicitly allocated to the Federal State, the competence lies with the Cantons. See Art. 3 and 42 of the Swiss Constitution 101/1999. 3 A. Griffel, “Gewässerschutz” in H. Rausch et al. (eds.), Umweltrecht (Zurich, Schultless, 2004), at 119. 4 J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 (Zurich/Basel/Geneva, Schulthess, 2003), at 609.

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level of general legislation which implement either directly or indirectly the management and protection of water. Building on this assessment, the main section focuses on the division of tasks between the Swiss Federation and the Cantons, as well as on the different modes of coordination between these actors. Subsequently, the actual state of protection in Switzerland is evaluated, in particular in the light of its compatibility with the Water Framework Directive of the European Union. Ultimately, the author sketches some trends and possible challenges for the future of water protection and management in Switzerland. 1. Constitutional Provisions on the Protection and Management of Water Historically, the first tasks of the Federation relating to water management and protection were allocated in the field of fisheries and the use of water power. As early as 1888, the Federal Act on Fisheries prohibited the dumping of industrial waste and other pollutants if such dumping could threaten the fish stock.5 However, the existing provisions did not succeed in preventing a continuous increase of water pollution caused by industrialisation, new methods in agriculture and enhanced use of cleaning agents with adverse effects on the environment. To meet the consequences of this growing pollution, legislative authority on the protection of water was expressly allocated to the Federation in 1953 (Article 24quater of the former Constitution). After an initial ineffective attempt at a federal water statute in 1955, the Federation finally enacted a comprehensive water protection regime with the new Water Protection Act (WPA)6 in 1971. Thereupon, federal competence on water protection, as well as general environmental competence, was progressively enlarged. Now, Article 76 of the 1999 Constitution states: 1. The Confederation shall within the scope of its powers ensure the economic use and the protection of water resources and provide protection against the harmful effects of water. 2. It shall lay down principles on the conservation and exploitation of water resources, the use of water for the production of energy and for 5 With further references A. Griffel, “Gewässerschutz” supra, at 117. 6 Loi fédérale sur la protection des eaux (WPA) 814.2/1991. For further details on the origins of the WPA, see W. Bussmann, Gewässerschutz und kooperativer Föderalismus in der Schweiz (Bern, Haupt, 1981), at 145 et seq.; J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 supra, at 607–611.



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cooling purposes, as well as on other measures affecting the water cycle. 3. It shall legislate on water protection, on ensuring appropriate residual flow, on hydraulic engineering and the safety of dams, and on measures that influence precipitation. 4. The Cantons shall manage their water resources. They may levy charges for the use of water, subject to the limits imposed by federal legislation. The Confederation has the right to use water for its transport operations subject to payment of a charge and compensation. 5. The Confederation, in consultation with the Cantons concerned, shall decide on rights to international water resources and the charges for them. If Cantons are unable to agree on rights to inter-cantonal water resources, the Confederation shall decide. 6. The Confederation shall in the fulfilment of its duties take account of the concerns of the Cantons where the water originates.7 The Article provides a comprehensive federal competence covering all variety of water bodies – both surface and ground water, natural and artificial, public and private – and functions; notably, the use of water, hydraulic engineering (harnessing of watercourses) and the protection of water. However, its broad scope should not conceal two characteristics of the Swiss water protection regime: First, as Paragraph 4 implicates in its first phrase, the Cantons continue to possess residual sovereignty on the waters. Paragraph 4 therefore clarifies that allocation of legislative authority does not imply allocation of property. Moreover, Paragraph 1 reiterates that the Federation is only entitled to legislate “within the scope of its powers”. Although cantonal competence has been reduced by every amendment of the water protection regime, these clarifications characterize the aforementioned federalist concerns which have shaped the drafting of the Constitution. Second, no uniform assignment of legislative authority exists in the area of water protection and management. Although in a number of fields covered by Paragraph 3 the Constitution justifies comprehensive federal regulation, the Federal Government is only entitled to lay down general principles in the fields contained in Paragraph 2. This restriction to enact norms of general policy primarily exists in the field of harnessing and correction of water courses, for example, the extraction of gravel, sand and 7 Please note that no legally binding English translation of Swiss law exists. Both the name and the content of the acts stem either from the official but informal compilation of Swiss law (http://www.admin.ch/ch/e/rs/rs.html) or are freely translated by the author.

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other materials and for hydraulic power generation.8 The main subject of the comprehensive federal competence lies in the qualitative and quantitative protection of the waters. The full legislative competence is also assigned to the Federation in the field of hydraulic engineering. It should be noted that the classification of a subject as falling within one of the two categories of legislative competence may prove difficult in some areas, considering that their respective scope of application is partially vaguely defined and overlapping.9 Although the distinction may be of less importance for the enactment of federal laws,10 the classification can bear particular relevance for the choice of legal remedies.11 However, federal authority on the regulation of the waters is not solely assigned by Article 76. In addition, other constitutional provisions justify federal action in the field of water protection.12 In particular, Article 74 of the Constitution, the general environmental mandate of the Federation, has to be mentioned. As a typical horizontal State clause, it must be taken into account in all State functions, whether federal or cantonal.13 Implementing this provision, the Federal Environmental Protection Act (EPA)14 provides an important protection mechanism because it subjects new installations to an environmental impact assessment, in the framework of which compliance with the requirements of water protection is an important element to be considered.15 Furthermore, water protection is also achieved in an auxiliary manner through sectoral mandates on environmental issues, such as through spatial planning (Article 75), forests   8 For more details, see A. Marti, “Art. 76 BV” in B. Ehrenzeller et al. (eds.), Die schweizerische Bundesverfassung (Zurich, Schulthess, 2008), at 1368–1371.   9 Ibidem at 1368–9. 10 This is due to the fact that the Federal Court cannot review whether federal laws violate constitutionally guaranteed cantonal powers (Art. 189, Para. 4 of the Constitution). For more on the lack of constitutional review of federal legislation, see e.g., U. Häfelin et al., Schweizerisches Bundesstaatsrecht (Zurich, Schultless, 2008), at 615. 11 Legal remedies differ depending on whether the pertinent cantonal law has a certain autonomy or only enforces federal law. See decision of Tribunal fédéral suisse (the Federal Court) 1A.252/1997, at 1b. 12 At the international level, Switzerland is bound by various multilateral treaties governing the adjacent transnational water bodies. For a compilation, see A. Epiney et al., ‘Umweltplanungsrecht’ in der EU (Zurich, Schultless, 2011), at 155. As far as they comprise self-executing provisions, the “monist approach” of Switzerland allows direct invocation of these norms in courts. See P. Cullet, “Switzerland” in M. Anderson and P. Galizzi (eds.), International Environmental Law in National Courts (London, BIICL, 2002), at 195–215. 13 For more on the horizontal effect of Art. 74, see A. Epiney et al., Berücksichtigung umweltpolitischer Belange bei der landwirtschaftlichen Produktion (Zurich, Schulthess Verlag, 2009), at 112. 14 Loi fédérale sur la protection de l’environnement 814.01/1983. 15 See Art. 3 of the Ordonnance relative à l’étude de l’impact sur l’environnement (OEIE) (Ordinance dealing with the environmental impact) 814.011/1988.



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(Article 77), the protection of nature and cultural heritage (Article 78), fisheries (Article 79), the protection of animals (Article 80) and agriculture (Article 104). Eventually, as an underlying principle, Article 73 requires the Federation and the Cantons to strive for sustainable development, considering the environmental, economic and social dimensions of their actions. In sum, although the Swiss Constitution contains a comprehensive “water article”, other constitutional legal bases providing for water protection measures are scattered in various provisions, with the consequence of federal competences at different levels. The subsequent section shows that the “law governing water” is not only based on different sectoral environmental mandates, but is also fragmented into distinct subcategories at the level of general legislation. 2. Legal Provisions Implementing the Protection and Management of Water The main federal statute dealing with the protection of waters is the Federal Water Protection Act (WPA) of 1991. The WPA is divided into three sections; one on qualitative protection (“maintaining the quality of waters”, Articles 6–28), one on quantitative protection (“maintaining appropriate residual rates of flow”, Articles 29–36) and one on the “prevention of other harmful effects on waters” (Articles 37–11). As overarching principles, the WPA contains the duty of due diligence to avoid any harmful effects on waters (Article 3) and the polluter-pays principle (Article 3a). Other important instruments of the WPA are a general prohibition of any direct or indirect pollution of waters (Article 6); the obligation to treat waste water according to the regional or municipal drainage planning (Article 7);16 requirements for liquids which may pollute water (Articles 22–26); requirements for agriculture and animal husbandry (Articles 14–16 and 27) and conditions for water withdrawals including the requirement of a cantonal authorization for any withdrawal and the setting of a minimum residual water flow (Articles 29–36). The WPA is supplemented by the Federal Water Protection Ordinance (WPO)17 of 1998; this ordinance implements the WPA in particular by formulating in its appendices ecological objectives for the various water bodies and specifying the associated requirements for water quality.18 16 In conjunction with Art. 4 and 5 WPO. 17 Ordonnance sur la protection des eaux 814.201/1998. 18 See S. Lagger, “Überblick über das neue Gewässerschutzrecht” (1999) 13 Umweltrecht in der Praxis 470.

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Among the measures dealing with water protection and management, some provisions outside the “water law”, in a narrow sense, also merit a mention: – Spatial planning: The law which deals with the distribution of people and activities in spaces plays an essential role in the Swiss water protection regime. Even before Switzerland enacted a spatial planning policy at the federal level, the WPA had already composed spatial planning mechanisms, such as the requirement of a drainage system for the issuance of planning authorizations.19 The actual WPA still provides several planning tools which make it compulsory for the cantonal authorities to divide their territory according to water pollution risks. The federal law imposes gradual obligations and protection measures depending on a classification into “water protection areas”, “groundwater protection zones” or “groundwater protection areas” (Articles 19–21 WPA). Now, the protection of the waters is also regulated by the Federal Spatial Planning Act (SPA)20 and its implementing ordinance – the framework legislation on Swiss spatial planning. According to its “object clause” the SPA’s purpose includes the protection of natural resources such as the waters.21 Unlike the allocation of powers in the field of general environmental protection, wherein the Federation has a comprehensive legislative authority, the Federation is only entitled to issue laws of general policy on the topic of spatial planning. Within the limits of these general policy principles, the Cantons have a significant margin of discretion in implementing the Spatial Planning Act. Federal law thus only sets the legal consequences of designing an area as a protection zone – a general prohibition on building – but the designation itself is left to the Cantons.22 – Fisheries: Water protection is provided for in an auxiliary manner in the Federal Act on Fisheries,23 which includes a licensing requirement for water abstraction and other protection measures for an adequate water quantity and quality.24

19 A. Griffel, “Gewässerschutz” supra, at 118. 20 Loi fédérale sur l’aménagement du territoire (SPA) 700/1979; Ordonnance du 28 juin 2000 sur l’aménagement du territoire (SPO) 700.1/2000. 21 Art. 1, Para. 2a SPA supra. 22 See Art. 17 SPA supra. 23 Loi fédérale sur la pêche 923.0/1991. 24 See A. Petitpierre-Sauvain, Environmental Law in Switzerland (The Hague, Kluwer Law International, 1999), at 149.



water management and protection in switzerland345 – Law on environmentally hazardous substances: An important contribution to the protection of water stems from the law dealing with the use of substances, particularly liquids, which may present a danger to water quality. Respective Federal provisions are fragmented into various acts, such as the EPA,25 the WPA,26 the Federal Chemicals Act (ChemA)27 and its implementing ordinances. – Hydropower and Hydraulic engineering: The federal provisions governing the exploitation of the waters are set up by the Federal Hydropower Act (FHA)28 and its associated ordinances. The FHA limits its scope to the use of water for hydropower production (mainly for electric power) and imposes a national licensing system. The regulation of other forms of water use (e.g., pumped storage, heat production, cooling, hydrogen production) is left to the Cantons in default of federal legislation.29 In addition, the Federal Hydraulic Engineering Act30 is concerned with  flood prevention; the Federal Dams Ordinance31 contains provisions covering the security of water dams. Although primarily more concerned with water management than protection, the laws on hydropower and hydraulic engineering encompass protective measures as well, for example, by making hydropower licences dependent on the compliance with the preservation of areas worth protecting.32 – Further provisions with impacts on water protection and management are found in legislative regimes on general environmental protection, nature and landscape protection, agriculture, shipping and contaminated sites.

In conclusion, at the level of general legislation, Swiss water law regime is as fragmented as at the constitutional level. Furthermore, the federal competences based on the “water article” of the Constitution are divided into three fields (water protection, hydropower, hydraulic engineering), each 25 Art. 26 EPA supra. 26 Art. 27 WPA supra. 27 Loi sur les produits chimiques 813.1/2000. 28 Loi sur l’utilisation des forces hydrauliques 721.80/1916. 29 Although the Federal State would be entitled to legislate general policy law on all water use. Notwithstanding that default, the Cantons have to comply with the minimal requirements of the WPA. See A. Marti, “Art. 76 BV” supra, at 1370. For further details on the hydropower legal system, see R. Jagmetti, Schweizerisches Bundesverwaltungsrecht VII: Energierecht (Basel, Helbing und Lichtenhahn Verlag, 2005). 30 Loi fédérale sur l’aménagement des cours d’eau 721.100/1991. 31 Ordonnance concernant la sécurité des ouvrages d’accumulation 721.102/1998. 32 Art. 22 and 23 FHA supra.

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with its own distinct federal act. This distinction is not to be explained by the different levels of competences of the Federation (limited vs. complete federal legislative authority according to Article 76, Paragraphs 2 or 3 of the Constitution), but rather by the historical step-by-step allocation of powers to the Federation because all three acts refer to Article 76 of the Constitution as a whole as their legal base. As a result, the Swiss water law regime proves to have a heterogeneous structure of legal bases with a rather complex system of interaction between the different levels of government. This interaction of competences is discussed in more detail in the following section. An illustrative example of this complex, multi-layered regime can be seen in the planning process of a hydropower plant, which includes the obtaining of the following authorisations: – A first planning permit will be required under the Federal Dams Ordinance for the construction or the transformation of a station, a second one for bringing it into service. Depending on the size and volume of the dam, the permit will be granted by the federal or the cantonal authorities.33 – An additional permit must be obtained for the use of the waters under the Federal Hydropower Act. This permit will be generally granted by the cantonal authorities, which in turn can delegate this power to the Municipalities or other subordinated bodies. However, the issuance of a permit remains to be approved by the Cantons and has to ensure that the federal requirements, such as the protection of environment, have been respected.34 The Federal Government executes supervision and issues permits in certain cases, for example, in the case of a disagreement between Cantons over inter-cantonal waters. – Furthermore, the hydropower plant’s operator needs a permit for the water abstraction under the Federal Water Protection Act, issued by the Cantons and monitored by the Federal Government.35 – In addition, the hydropower plant will require a spatial planning permit under the Federal Spatial Planning Act (SPA),36 issued by the Cantons; a permit under the Federal Act on Fisheries by the cantonal fishery

33 Art. 5 and 7 in conjunction with Art. 21 and 22 of the Federal Dams Ordinance supra. 34 Art. 2 et seq. FHA supra. 35 Art. 29 in conjunction with Art. 45 and 46 WPA supra. 36 Art. 22 SPA supra.



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authority;37 and eventually, further permits under the cantonal energy or water protection law. – For hydro-power plants larger than a certain size, the EPA imposes an obligation to conduct an environmental impact assessment in the process of a planning authorization, which involves the cantonal and the federal environmental authorities.38 3. Competences for Enacting and Implementing the Protection and Management of Water Put simply, laws on water protection and management are enacted at the federal level and enforced at the cantonal level. As was mentioned previously, the protection of the waters forms part of the global federal authority to legislate according to Article 76, Paragraph 3 of the Constitution – in contrast to the authority limited to general principles according to Paragraph 2 of the same article. With the enlargement of the WPA’s scope to quantitative protection in 1991, the Federation has comprehensively made use of its legislative authority in the field of water protection. The  water protection law thus became almost entirely federal law. The body of legislation at the cantonal level is therefore very limited in scope and mostly “translates” federal law by adapting it to local conditions.39 Remarkably, the comprehensive federal legislation in the field of environmental and water protection even influences regimes beyond the federal environmental mandate: for example, in fields in which the Cantons retain important competences such as in spatial planning or nature and landscape protection; they have to take into account the increasing restrictions emerging from the EPA and the WPA, namely by issuing planning authorizations only under the condition of compliance with EPA and WPA standards.40 A general mandate which requires Cantons to enforce federal law is set out in Article 46, Paragraph 1 of the Constitution. At the level of legislation, an equivalent can be found in Article 36 et seq. EPA for general measures of environmental protection and in Article 45 WPA for water protection measures in particular. To this end, the WPA requires the 37 Art. 8 Federal Act on Fisheries supra. 38 Art. 10a EPA supra. 39 See A. Petitpierre-Sauvain, Environmental Law in Switzerland supra, at 37–42. 40 For more on spatial planning in connection to environmental measures, ibidem at 153–164.

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Cantons to set up specialised water protection agencies, which organise the water protection police and an emergency service.41 At the federal level, the Federal Office for the Environment (FOEN) as part of the Federal Department of the Environment, Transport, Energy and Communication (DETEC) is the Federal Government’s agency for water protection. The Federation individually enforces the WPA in the fields mentioned in Article 48 WPA, namely mandates related to environmentally hazardous substances and mandates resulting from international treaties. In all other fields, the federal involvement in the enforcement of the WPA is limited to monitoring and to subsidizing water protection:42 – Monitoring: According to Article 80 WPA, both the Cantons and the Federation shall control the effect of the water protection measures as well as keep the public informed about water protection and the condition of waters. Articles 57–60 WPA thus impose the obligation to carry out investigations on the hydrological balance, the water quality, the supply of drinking water and other matters concerning the protection of waters. The Federation thereby conducts investigations relevant for Switzerland as a whole; the Cantons undertake any additional investigations which may be necessary for the enforcement of the WPA. The Federation can support the cantonal authorities by means of indemnities and financial assistance for these investigations. – Subsidizing: The mandate of the Federation for granting subsidies is included in various provisions. The WPA envisages promotional measures of the Federation in Article 61 et seq. WPA. Apart from its mandate to foster the conduct of investigations as was previously mentioned, the Federation is significantly involved in financing plants and processing waste water purification, sewage treatment, installations for special wastes and other equipment for polluted waters (Article 61–62 WPA). The Federation further subsidizes agricultural measures to prevent substances from being washed away by precipitation or soil erosion (Article 62a WPA); the revitalization of waters (Article 62b WPA); and the rehabilitation of waters in cases of flush and down surge or erosion (Art. 62c WPA). The federal instrument of direct payments to farmers is also a key element in the implementation of water protection. According to the Federal Agriculture Act (AgricA),43 direct payments are conditional 41 Art. 49, Para. 1 WPA supra. 42 See A. Petitpierre-Sauvain, Environmental Law in Switzerland supra, at 80. 43 Loi sur l’agriculture 910.1/1998.



water management and protection in switzerland349 upon proof of ecological performance (PEP), which includes water relevant parameters such as a considerate use of plant treatment agents and a balanced budget of nutrients.44

Furthermore, the implementation of water protection is mainly enhanced through (spatial) planning measures, such as general planning and the issuing of construction permits. General structure plans, which cover the whole area of the Canton, are drawn up by the Cantons and approved by the Federation (Article 6 and 11 SPA), whereas detailed planning (land use planning, Article 14 SPA) is generally delegated to the Municipalities. Many Cantons, however, provide cantonal land use plans for important projects: for example, waste water plants of regional importance. The competence to issue construction permits usually lies with the Munici­ palities; however, construction permits for buildings outside the building zones (mostly agricultural land) require at least the approval of a cantonal authority (Article 25, Paragraph 2 SPA). As Article 24, Paragraph 2 SPA clarifies, these permits are conditioned on the compliance with higher-ranking federal law, such as the EPA and the WPA.45 In drawing up the structure plans and the land use plans, the Cantons have to take into consideration the aforementioned drainage planning (under Article 7 WPA) as well as water protection areas, groundwater protection zones and areas (under Article 19–21 WPA).46 4. Modes of Coordination and Cooperation Coordination and cooperation among the actors of water protection and management is institutionalised by provisions in various statutes. From a federalist point of view, a distinction can be drawn between vertical coordination among the federal, cantonal and communal level; horizontal coordination among the actors at the same level of the federal system;47

44 Ibidem Art. 70. 45 See P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht (Bern, Stämpfli Verlag, 2008), at 452. For more on the Spatial Planning Regime in Switzerland, see R. Muggli, Spatial Planning in Switzerland: A Short Introduction, available at http://www.vlp-aspan.ch/ files/documents/landusech.pdf. 46 Art. 46 of the Water Protection Ordinance supra. 47 See the distinction between “vertical cooperative federalism” and “horizontal cooperative federalism” in A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts (Zurich, Habilitationsschrift, 2001), at 378.

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and sectoral coordination among the actors of different regimes, such as general environmental law, water protection law or spatial planning law.48 4.1. Modes of Vertical Coordination and Cooperation In the previous section, several modes of vertical coordination between federal and cantonal actors were introduced; in particular, the instrument of financial compensation and promotion of cantonal measures by the Federation and the exchange of information in both directions. A further common instrument of coordination is the approval procedure of certain legal acts, such as spatial plans and exploitation permits at a higher level.49 In particular, permits under the hydropower act are often subject to approval by the subordinate actors (e.g., Article 4, Paragraph 1 FHA). Fur­ thermore, an approval is required for many legal acts under the Spatial Planning Act: besides the aforementioned approval procedures of general structure plans by the Federation, the Municipalities must have their land use plans approved by the cantonal authorities (Article 26, Paragraph 1 SPA). In fact, this authorisation procedure constitutes an essential instrument to promote environmental considerations including water protection concerns, because on this occasion, the communal authority has to report to what extent environmental provisions as well as public concerns have been respected.50 This duty to report on environmental considerations primarily constitutes a procedural mechanism to enhance compliance of spatial planning with the provisions of environmental law; therefore, it can be seen, to a certain extent, as an equivalent to the strategic environmental assessment (SEA) imposed under European Union Law.51 4.2. Modes of Horizontal Coordination and Cooperation Horizontal cooperation or coordination aims to manage the interaction of institutional actors of the same (federal) level, which refers in particular to 48 With a broad scope, the object clauses of the SPA (Art. 1, Para. 1 and Art. 2, Para. 1 SPA supra) already make clear that the Federation, the Cantons and the Municipalities have to coordinate their activities with spatial impacts. 49 See examples in Art. 14, Para. 5 and Art. 32c WPA supra. 50 Art. 47 Federal Spatial Planning Ordinance supra. See R. Muggli, Der Umweltteil des Planungsberichts nach Art. 47 der Raumplanungsverordnung (Bern, BAFU, 2005). 51 See Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (2001) OJ L197/30. No general strategic environmental assessment exists at the Swiss federal level. For a comparative analysis of SEA elements in Swiss law, see A. Epiney et al., ‘Umweltplanungsrecht’ in der EU supra, at 70–74.



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cooperation between Cantons. As a result of the primarily cantonal responsibility to enforce water protection and management, measures are generally oriented along cantonal divisions. Federal law comprises several coordination instruments to prevent inter-cantonal disputes. In the field of water engineering, Article 5 of the Federal Hydraulic Engineering Act explicitly imposes the coordination of engineering measures related to water bodies that touch the territory of more than one Canton. If the Cantons fail to find agreement, the Federal Council is entitled to adjudicate on a dispute. A similar provision can be found in Article 6 FHA for Hydropower. Regarding the protection of inter-cantonal waters, the WPA only requires “each of the cantonal authorities concerned [to] take all necessary measures to protect such body of water in its own interests and in the interests of the other Cantons” (Article 56 WPA). Here again, the Federal Council has the competence to adjudicate in the case of a disagreement between Cantons. Hence, whereas the Cantons have a real duty to cooperate in the field of water management, regarding the protection of inter-cantonal waters, they only have to take the measures they consider necessary for themselves, although in respect of the other Cantons’ interests. Switzerland thus has no formal, general duty to coordinate protective actions along a hydraulic river basin touching several Cantons.52 However, such duties of coordination can be found in the internal administration of the Cantons, between the Municipalities. Inter-communal coordination is ensured by the domestic law of several Cantons as well as by the regional drainage plans (RDP). According to Article 4, Paragraph 1 WPO, the Cantons should ensure that a regional drainage plan (RDP) is drawn up to guarantee appropriate water protection in a circumscribed, hydraulically related area in which water protection measures of the Municipalities must be in line with each other. 4.3. Modes of Sectoral Coordination and Cooperation Sectoral coordination and cooperation should ensure a comprehensive analysis and consideration of all environmental interests at stake in a particular case because environmental law as well as water protection and management law are heavily scattered in distinct law regimes. Sectoral coordination in environmental matters is often mentioned in the context

52 See the following section 6.1.

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of integrated environmental protection. This “integrated approach”,53 which, instead of protecting single environmental sectors, endeavours to protect the environment as a whole, is primarily implemented by the coordination of the issuance of permits in terms of substance and procedure. In Swiss law, the basic provision that imposes an integrated approach in environmental law is contained in Article 8 EPA. The provision obliges to assess all environmental effects individually, collectively and regarding their interaction.54 In terms of the requirement of procedural coordination, the environmental impact assessment (EIA) laid down in Article 10a-d EPA constitutes the key instrument to implement such a holistic approach. The associated Federal Ordinance on the EIA55 therefore requires the applicant of a planning authorisation to identify and analyse the environmental impacts of the planned installation both individually and in interaction between the factors. The EIA encompasses an examination of the installation’s compliance with the requirements of water protection.56 The law also adopts an integrated approach for the competent authority by imposing on the latter a duty to clarify whether the installation requires other permits – such as a permit under the WPA or the Fisheries Act – and if this is the case, to obtain a prior opinion of the involved authorities. These authorities are bound in the subsequent procedure by the content of the opinion which they have provided, as long as circumstances have not changed in the meanwhile.57 Water protection law comprises as well – primarily substantive – duties of sectoral coordination, which consist especially of setting technological requirements for the granting of building permits regarding the treatment of waste water.58 Moreover, the Spatial Planning Act also requires comprehensive, cross-sectoral coordination. This integrated approach is already reflected in the clauses on the law’s objectives, which refer to 53 For the integrated approach, see among others A. Epiney, “Regulation and Strategies in European Environmental Law: Some Remarks Concerning the ‘Integrated Approach’ ” in P.-C. Müller-Graff and E. Selvig (eds.), Regulation Strategies in the European Economic Area (Berlin, BWV, 2008), at 59–84; and more Swiss-specific A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts supra, at 257. 54 The doctrine generally applies Art. 8 EPA analogously to water protection law; see A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts supra, at 284. 55 OEIE supra. 56 Art. 3 of the Federal Ordinance on the EIA supra. 57 Ibidem Art. 2. 58 Further references to coordination tools in the WPA, see A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts supra, at 285–290.



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environmental, social and economic interests; the Ordinance on Spatial Planning further specifies the need to consider these interests (Article 4 and 47 SPO). In addition, the duty to coordinate is expressly laid down in several cantonal coordination acts.59 5. The Role of the Federal Court in Coordinating Water Protection and Management The Swiss Court has played an active role in promoting the coordination among different actors and procedures. In particular, the aforementioned sectoral coordination was further developed by the jurisprudence of the Federal Court. In its “Chrüzlen” case of 1990, the Court highlighted the need for substantive and procedural cooperation among the involved authorities; a principle that – according to the judges – already emanates from the constitutional prohibition of arbitrariness and the unity of the legal system.60 Constant jurisprudence since this early decision continues to affirm that if distinct permits are required in a situation demonstrating a close factual connection, their procedure should be coordinated at the  earliest possible stage, run simultaneously and conciliated in substance; the applicant’s right to appeal should simultaneously be unified.61 According to the Court, a lack of coordination can justify the annulment of the decision on the permit.62 The Court has particularly emphasised the importance of procedural coordination in the authorization process of hydropower plants. According to the Court, the close relation of water protection and water management concessions requires a synchronous evaluation of the involved interests. Therefore, the Court objected to power plant authorizations given by cantonal authorities which postponed the evaluation of compliance with environmental concerns to further procedures.63 Furthermore, the Federal Court clarified on several occasions the issuing authority’s duty to ensure compliance with water protection provisions, in particular, the identification of the residual rates of flow. The

59 E.g., Koordinationsgesetz (Canton Bern) 724.1/1994. 60 Tribunal fédéral suisse Judgment BGE 116 Ib 260, 1b-d of 25 July 1990. 61 Ibidem; see also BGE 117 Ib 35; for further references, see A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts supra, at 309; P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht supra, at 459. 62 Tribunal fédéral suisse Judgment BGE 123 II 88, 2d. 63 Tribunal fédéral suisse Judgment BGE 119 Ib 254, 5a and BGE 125 II 18, 4b bb.

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Court held that the authority has to evaluate all possible impacts of the involved water abstraction and to consider as well pre-existing water abstractions in other Cantons.64 In addition, one has to mention the Court’s role in interpreting the legal nature and the requirements of the  different water protection areas, that is, by determining the conformity or nonconformity of particular constructions in the protection zone.65 However, the Federal Court is sometimes reluctant when it comes to the application of water protection provisions to concrete circumstances, often with reference to the issuing authority’s better knowledge of the local circumstances or by classifying the question as a matter of discretion.66 6. Prospective Challenges for Water Protection and Management in Switzerland In the near future, important consequences for this institutional setting could arise out of the ongoing negotiations on Bilateral Agreements between Switzerland and the European Union. Although the existing agreements show little impact on Swiss environmental law, certain topics  currently negotiated or being prepared for negotiation may treat environmental aspects and as a result, imply to some extent an adaptation of European environmental law or at least a certain harmonisation of Swiss law. The following fields in the relations between the EU and Switzerland could encompass aspects of environmental and in particular, water protection:67 – “Agriculture, food safety, product safety and public health”: Since 2008, Switzerland and the EU have been negotiating on a bilateral agreement in these four areas. In particular, in the field of agriculture, Switzerland could be pushed to adopt certain production-related measures of the European acquis, such as environmental standards.68

64 Tribunal fédéral suisse Judgment BGE 120 Ib 233, 6b ss. 65 Tribunal fédéral suisse Judgment BGE 120 Ib 287; BGE 121 II 39 and BGE 120 Ib 224. For a compilation of the jurisprudence on the WPA, see V. Huber-Wälchli and P. M. Keller, “Zehn Jahre Rechtsprechung zum neuen Gewässerschutzgesetz” (2003) 1 Umweltrecht in der Praxis 1. 66 Tribunal fédéral suisse Judgment 1A.157/2006 of 9 February 2007, at Para. 3.4.1. 67 For the current files, see http://www.europa.admin.ch. 68 For a comparison of environmental requirements related to the agriculture in Switzerland and the EU, see A. Epiney et al., ‘Umweltplanungsrecht’ in der EU supra.



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– “Negotiations on Electricity/Energy”: The Federal Council has a mandate to negotiate a comprehensive energy agreement with the EU. The intended free access to the European market could also imply the adaptation of environmental standards such as the Flora Fauna Habitat Directive69 or the introduction of assessment strategies according to the EIA Directive,70 the SEA Directive71 or the Industrial Emissions Directive.72 – “REACH”: In 2010, the Federal Council formally approved the mandate to negotiate the integration of Switzerland in the European Chemical Regime, according to the REACH Ordinance on the “Regulation, Evaluation, Authorization, and Restriction of Chemi­cals”73 produced in or imported into the EU. An effective implementation of the ordinance could urge Switzerland to harmonize some parts of its environmental law, in particular the law on water protection.74 Although at the current position of the negotiations, it is unclear whether and to what extent future Bilateral Agreements would urge Switzerland to amend its environmental policy and in particular its water policy, two main areas in which the institutional setting of Switzerland differs from European Union Law shall be highlighted in the following sections. These areas will have to be amended if parts of European secondary law – in particular, the EU Water Framework Directive75 – become binding for Switzerland. Yet, even without any compulsory environmental obligations contained in prospective Bilateral Agreements, the amendments listed 69 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1992) OJ L206/7. 70 Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1985) OJ L175/40. 71 Directive 2001/42/EC supra. 72 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast) (2010) OJ L334/17. 73 Regulation (EC) No. 1907/2006 (2006) concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/ EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC OJ L396/1. 74 For details, see A. Epiney et al., ‘Umweltplanungsrecht’ in der EU supra, at 99–188; P. Rey and E. Müller, EG-Wasserrahmenrichtlinie und Schweizer Wasser- und Gewässerschutzgesetzgebung: eine Gegenüberstellung (Bern, BAFU, 2007), available at: http://www.bafu.admin.ch/wasser/01444/01995/index.html?lang=de. 75 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1.

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below are concepts currently under discussion and could be introduced autonomously by Switzerland.76 6.1. River Basin Management The European Water Framework Directive requires EU Member States to adopt a water management system by river basin. Water management and protection measures have to be adapted to river basins – the natural geographical and hydrological units – instead of adapting them to administrative and political units. This allocation to river basins (and river basin districts) plays a pivotal role: the associated “river basin management plan”, which has to be established and regularly updated for every unit, contains a cross-sectoral management plan and sets the objectives for the river basin as well as the measures to meet these objectives. Contrary to this procedural approach of the Water Framework Directive, Swiss water management places emphasis on a problem-related, subjectorientated approach; measures are initiated in relation to the need of action and on a local basis.77 Swiss law on water management and protection thus contains less procedural provisions than the Water Framework Directive. In particular, no national allocation of waters to river basins and river basin districts exists. However, Switzerland has a few other instruments to coordinate water-related measures beyond the cantonal or communal boundaries and without a concrete need for action. Some of them have already been presented herein, such as the regional or communal (municipal) drainage planning (Article 4 and 5 WPO) and the allocation of waters to protected zones and areas (Article 19–21 WPA). Furthermore, the Cantons have the duty to draw water protection maps which indicate the protected zones and areas in their territory (Article 30 WPO). Regarding the quantitative protection of the waters, a recent amendment of the WPA has introduced new procedural elements such as the Cantons’ duty to determine systematically the adequate space for watercourses (Article 36a WPA) and a systematic and coordinated planning of revitalisation measures (Article 38a WPA). However, it is clear that all these measures constitute no equivalent to the coordination instruments required in the Water Framework Directive. First, the aforementioned instruments generally do not cover all 76 See the development studies at http://www.umwelt-schweiz.ch/wawi-schweiz. 77 P. Rey and E. Müller, EG-Wasserrahmenrichtlinie und Schweizer Wasser- und Gewässerschutzgesetzgebung: eine Gegenüberstellung supra, at 15.



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environmental impacts and only adopt a sectoral approach (e.g., exclusively waste water treatment or exclusively quantitative measures) instead of an approach of integrated protection, such as Article 11 of the Water Framework Directive requires the programme of measures to adopt for every river basin district. Second, despite the numerous tools which allow coordination of measures between the Federation, the Cantons and the Municipalities and due to the lack of a national river basin management, Switzerland remains below the standards of coordination required by the Water Framework Directive.78 6.2. Public Participation A major objective of the Water Framework Directive is to allow private individuals to participate in decisions having an impact on the waters. Article 14 of the Directive therefore requires the Member States to involve the public in the implementation process, in particular at the stages of production, review and updating of the river basin management plans. In Swiss law on water protection and management, public participation only plays a marginal role. Specific provisions that expressly contain a reference to public involvement rather state a right to open access and information than to an effective participation of the public. Thus, the Federation and the Cantons must inform the public about water protection and the condition of waters and provide advice to private individuals (Article 50 WPA). Rights of access to water protection maps and drainage planning are set out in several provisions. However, an effective participation in terms of active involvement and consultation of individuals is only available after the administrative decision has been taken; in the opposition  and appeals procedure. Moreover, the Swiss EIA imposes a public involvement only after the administrative decision (see Article 20 of the Ordinance on the EIA).79 In spatial planning, the regulation of public participation generally lies within the competence of the Cantons. However, the Federal law requires the Cantons to provide at least a legal remedy against land use plans and states that the right of appeal must not be set more restrictive than at the federal level (Article 33 SPA). An individual is therefore entitled to appeal against a land use plan if he is particularly affected by the plan and has a legitimate interest in the amendment of 78 See also O. Chaix, “Einzugsgebietsmanagement: Koordination der Bereiche und wasserwirtschaftliche Planung” (2008) 5 Umweltrecht in der Praxis 527. 79 A. Epiney et al., ‘Umweltplanungsrecht’ in der EU supra, at 44.

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the plan.80 Swiss environmental law also allows environmental organizations to appeal against planning decisions, if the installation at hand is subject to an environmental impact assessment or if the decision is based on the Federal Act on the Protection of Nature and Cultural Heritage (NCHA).81 Yet, as was emphasized previously, the aforementioned “participation rights” only allow public involvement after the competent authority has made the decision. Swiss law would thus not comply with the Water Framework Directive which by contrast, requires a prior consultation of the public. Nevertheless, it may be pointed out that in Switzerland, land use plans – which may contain significant impacts on the protection of the waters – are often subject to direct democratic participation, namely to public referendums.82 Still, also in matters of their binding character and the degree of detail, the aforementioned provisions do not achieve the requirements of the Water Framework Directive. Allowing an extended public participation in the field of water protection could not simply result from the need to adopt the Water Framework Directive. More comprehensive involvement of the public in certain planning procedures is also provided for in the Aarhus Convention.83 Switzerland signed the convention in 1998, but still has not ratified it; the Federal Council intends to ratify and implement the convention in the near future. 7. Concluding Remarks As has been shown herein, despite its unification under Article 76 of the Constitution, the present Swiss regime on water protection and 80 For more details, see P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht supra, at 541–553. 81 Loi fédérale sur la protection de la nature et du paysage SR 451/1966. See also Art. 55 EPA supra and Art. 12, Para. 1b NCHA supra. The Federal Court held that environmental organisations also have the right to appeal against land use plans, see the decision of the Federal Court in BGE 121 II 190, 192. Since 2007, these organisations are also entitled to “participate in the drafting of structure plans”. 82 See R. Muggli, Der Umweltteil des Planungsberichts nach Art. 47 der Raumplanungs­ verordnung supra, at 28. 83 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) 2121 UNTS 447; for further information, see A. Epiney and M. Scheyli, Die Aarhus-Konvention: Rechtliche Tragweite und Implikationen für das schweizerische Recht (Forum Europarecht, vol. 6) (Fribourg, Freiburg Univ.-Verl., 2000);. Sidler and J. Bally, “La ratification projetée par la Suisse: impact et enjeux de la Convention d’Aarhus pour le droit fédéral” (2009) 7 Umweltrecht in der Praxis 725.



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management remains a heterogeneous body of law, spread in distinct legal acts and shared between institutions on distinct federal levels. As we have also seen, the fragmentation of water law is basically due to historical reasons, reflecting the altering circumstances and public awareness of water protection as well as the legitimate need of the Cantons to dispose freely of their waters. The attention of the legislator moved step-by-step from protection of the people from the waters (e.g., flood protection), via the use of the waters for hydropower, to the protection of the waters themselves; first by treating the waters to meet the consequences of growing industrial pollution, then by reducing emissions at the source to prevent pollution.84 With the extension of the water protection law in the 1990s, today’s protection not only covers qualitative pollution, but also protects the water resource as such through provisions that ensure appropriate residual rates of flow.85 However, many watercourses and other water bodies are subject to intensive use, in particular through their use for hydropower production. On this note, pressure on the waters might rise in future because Switzerland intends to gradually phase out nuclear energy over the next 30 years and therefore, has to meet an increasing demand for alternative energy supplies.86 In the area of hydropower, the conflict between the use of the waters and their protection becomes particularly apparent. The conflict often takes place between the federal and the cantonal level, with the Cantons claiming the construction of further hydropower plants and the Federation simultaneously elaborating ever stricter legislation on water protection. This institutional conflict is also reflected in the constitutional provision on water protection and management, which indicates the competence in this field rather vaguely. Basically, although the article justifies a wide range of federal regulation on water protection, it permits only general policy laws at the federal level in the field of water management, such as the harnessing and correction of water courses. The Cantons generally have a wide competence in the implementation of water protection and management. On the one hand, the resulting heterogeneity of this implementation can be seen as an opportunity for the development of new 84 See A. Griffel, “Gewässerschutz” supra, at 118; also U. Bundi, “Wasserwirtschaft als Spielfeld der Interessen” (2008) 5 Umweltrecht in der Praxis 423–440. 85 See A. Petitpierre-Sauvain, Environmental Law in Switzerland supra, at 81–82; A. Griffel, “Gewässerschutz” supra, at 137; H. W. Stutz, “Herausforderungen im qualitativen Gewässerschutz” (2008) 5 Umweltrecht in der Praxis 502. 86 See the media release of the Federal Council dated 25 May 2011, http://www.bfe .admin.ch/energie/00588/ 00589/00644/index.html?lang=en&msg-id=39337.

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strategies through the experience of some Cantons. Thus, several Cantons have introduced innovative instruments of water and more general environmental protection, for example, the introduction of strategic environmental assessment (SEA) in Geneva87 or “water management plans” in Zurich. On the other hand, this chapter has shown that this heterogeneity may also entail disadvantages; in particular, a lack of appropriate cooperation and coordination of water-related measures. Water courses regulation is particularly prone to institutional conflicts because they are spread over the territory of several federal units. It is at least questionable whether the actual Swiss legal regime for water protection is well-designed to adequately prevent these conflicts. Another institutional weakness can be identified in the lack of public involvement in the implementation process of water protection. Although, without doubt, a well-developed public participation is present in the legislation process through referendums and initiatives, the Swiss public is considerably less involved in the actual implementation of the protective measures. A glance at the European Water Framework Directive and other environmental instruments such as the SEA Directive or the Industrial Emissions Directive might reveal a useful way to improve coordination and cooperation among institutional actors and to ensure a wider participation. Bibliography J.-F. Aubert and P. Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 (Zurich/Basel/Genava, Schulthess, 2003). O. Chaix, “Einzugsgebietsmanagement: Koordination der Bereiche und wasserwirtschaftliche Planung” (2008) 5 Umweltrecht in der Praxis 527. P. Cullet, “Switzerland” in M. Anderson and P. Galizzi (eds.), International Environmental Law in National Courts (London, BIICL, 2002), at 195 et seq. U. Bundi, “Wasserwirtschaft als Spielfeld der Interessen” (2008) 5 Umweltrecht in der Praxis 423. W. Bussmann, Gewässerschutz und kooperativer Föderalismus in der Schweiz (Bern, Haupt, 1981). A. Epiney and M. Scheyli, Die Aarhus-Konvention: Rechtliche Tragweite und Implikationen für das schweizerische Recht (Forum Europarecht, vol. 6) (Fribourg, Freiburg Univ.-Verl., 2000). A. Epiney, “Regulation and Strategies in European Environmental Law: Some Remarks Concerning the ‘Integrated Approach’ ” in P.-C. Müller-Graff and E. Selvig (eds.), Regulation Strategies in the European Economic Area (Berlin, BWV, 2008), at 59 et seq. A. Epiney et al., Berücksichtigung umweltpolitischer Belange bei der landwirtschaftlichen Produktion (Zurich, Schulthess, 2009). 87 A. Epiney et al., ‘Umweltplanungsrecht’ in der EU supra, at 68.



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A. Epiney et al., ‘Umweltplanungsrecht’ in der EU (Zurich, Schultless, 2011). A. Griffel, Die Grundprinzipien des schweizerischen Umweltrechts (Zurich, Habilitations­ schrift, 2001). A. Griffel, “Gewässerschutz” in H. Rausch et al. (eds.), Umweltrecht (Zurich, Schultless, 2004), at 117 et seq. U. Häfelin et al., Schweizerisches Bundesstaatsrecht (Zurich, Schultless, 2008). P. Hänni, Planungs-, Bau- und besonderes Umweltschutzrecht (Bern, Stämpfli Verlag, 2008). V. Huber-Wälchli and P. M. Keller, “Zehn Jahre Rechtsprechung zum neuen Gewässerschutzgesetz” (2003) 1 Umweltrecht in der Praxis 1. R. Jagmetti, Schweizerisches Bundesverwaltungsrecht VII: Energierecht (Basel, Helbing und Lichtenhahn Verlag, 2005). S. Lagger, “Überblick über das neue Gewässerschutzrecht” (1999) 13 Umweltrecht in der Praxis 470. A. Marti, “Art. 76 BV” in B. Ehrenzeller et al. (eds.), Die schweizerische Bundesverfassung (Zurich, Schulthess, 2008), at 1360 et seq. R. Muggli, Spatial Planning in Switzerland: A Short Introduction, available at http://www .vlp-aspan.ch/files/documents/landusech.pdf. R. Muggli, Der Umweltteil des Planungsberichts nach Art. 47 der Raumplanungsverordnung (Bern, BAFU, 2005). A. Petitpierre-Sauvain, Environmental Law in Switzerland (The Hague, Kluwer Law International, 1999). P. Rey and E. Müller, EG-Wasserrahmenrichtlinie und Schweizer Wasser- und Gewässer­ schutzgesetzgebung: eine Gegenüberstellung (Bern, BAFU, 2007), available at: http:// www.bafu.admin.ch/wasser/01444/01995/index.html?lang=de. S. Sidler and J. Bally, “La ratification projetée par la Suisse: impact et enjeux de la Convention d’Aarhus pour le droit fédéral” (2009) 7 Umweltrecht in der Praxis 725. H. W. Stutz, “Herausforderungen im qualitativen Gewässerschutz” (2008) 5 Umweltrecht in der Praxis 502.

PART II C: REGIONAL MODELS

WATER MANAGEMENT AND PROTECTION IN SPAIN Jorge Agudo González1 Introduction Water management and water quality are issues subject to a complex distribution of competences in Spain. The main problems which have arisen in this area have come about in the context of the vertical relationships between the Spanish State (national Government) and the regional governments (Autonomous Communities), although it should be noted that in recent years, conflicts have also developed on a horizontal level (between Autonomous Communities). In this regard, the work of the Constitutional Court has been decisive in resolving territorial conflicts. In the sphere of local government competence, issues are less problematic due to the more limited and concrete purview of action assigned to Municipalities and their subordinate position within the structure of territorial organization. In this chapter, the author will address both levels separately. 1. The System of Competences Governing Water Policy: Management and Quality 1.1. Water Management and Water Quality: The State versus Autonomous Communities Article 149(1)(22) of the Spanish Constitution grants the State exclusive competency in the area of “legislation, regulations and the concession of hydraulic resources and usage when waters run through more than one Autonomous Community.” The ambiguity of the constitutional provision with regard to the determination of the specific scope of the different levels of competence was later addressed via the Water Law approved in

1 Professor of Administrative Law, Autonomous University of Madrid (Universidad Autónoma of Madrid), Madrid, Spain.

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1985,2 which established the river basin as the territorial domain for the distribution of competences.3 In its Judgment 227/1988, the Constitutional Court ruled that the river basin management unit, as a competence-defining criterion, was constitutional, thereby averting the fragmenting effect which would have ensued from interpreting the terms of the constitutional provision by reference to the different “watercourses”.4 The result, in consonance with Article 149(1) (22) of the Constitution, makes necessary a distinction between river basins which “run through more than one Autonomous Community” (inter-community river basins), over which the State has jurisdiction and internal river basins which only run through the territory of one Autonomous Community (intra-community river basins), over which the respective Autonomous Communities enjoy jurisdiction.5 One of the first conflicts in this area arose with regard to the territorial purview of the still-in-force river basin management plans6 covering inter-community river basins, approved in 1998. These plans were not limited to the territorial purview of a specific river basin; rather, due to the minimal significance of the smallest river basins they incorporate one or several of these smaller ones, in addition to a major river basin. The problem arose in cases in which those other river basins, however insignificant they might be, were intra-community basins. The Supreme Court Judgment on 20 October 2004 resolved the leading case in this subject;7 specifically, the Judgment partially voided the river 2 Ley 29/1985 de Aguas. The same criterion is maintained in the still-in-force Real Decreto Legislativo 1/2001 por el que se aprueba el texto refundido de la Ley de Aguas, which approved the consolidated version of the Water Law. 3 For a complete view of this question, as well as others related to the Water Law in the Spanish legal order, the best study is in A. Gallego Anabitarte et al., El Derecho de Aguas en España (Madrid, MOPU, 1986). 4 The sentence cited based its conclusion on logical and technical criteria, as only the criterion of the river basin allows for a balanced and homogeneous administration of resources, as well as on the satisfactory experience of management by river basins in Spain, which dates back to 1926. 5 All of the major Spanish river basins are managed by the State through public entities named hydrographic confederations. The most important intra-community basin is the internal river basin of Catalonia (Ter-Llobregat Rivers), the remainder of the river basins being of less importance. 6 Under Spanish legislation, since 1985 each river basin is to feature a river basin management plan which, drafted by the hydraulic administration of each river basin (hydrographic confederations in the case of inter-community river basins, with the participation of regional administrations), is in any case to be approved by the national Government. 7 See A. Embid Irujo, “La sentencia del Tribunal Supremo de 20 de enero de 2004 en relación a las cuencas internas de las Comunidades Autónomas de Valencia y de Castilla-La



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basin management plan of the Júcar River upon confirming the exis­ tence  in the plan’s territorial jurisdiction of intra-community river basins corresponding to the Autonomous Communities of Valencia and Castile-La Mancha, whose administration lies with said regional governments. It goes without saying that the extension of this criterion spelled the disintegration of hydrologic planning due to the appearance of intracommunity “mini river basins”, generating evident complications which would render it difficult to reconcile them with the Water Framework Directive.8 The situation has generated increasing conflicts over the last decade. The origin of these new conflicts can be traced to several factors: 1) the increasing “territorialisation” of water issues, which the Autonomous Communities’ territorial organization inflamed; 2) wariness regarding the use to which the national Government may give the water in other areas across the country. One of the key questions in Spain, a country with acute water imbalances, is the possibility of redistributing the surplus resources of those river basins enjoying them. The legal framework governing transfers between river basins is covered in Article 45(1)c of the Water Law. This provision stipulates that the National Hydrological Plan, which is to be passed under State law, is to contain “coverage of the conditions governing the transfer of water resources beyond the territorial scope of different hydrologic river basin plans.”9 In compliance with this provision, President Aznar’s Government promoted the first National Hydrological Plan in the history of Spain.10 Its

Mancha desde la perspectiva de su ejecución y cumplimiento” (2006) 169 Revista de Administración Pública 429–55, A. Fanlo Loras, “Planificación hidrográfica en España: estado actual de un modelo a fortalecer” in Derecho de Aguas (Murcia, FIEA, 2006), at 567– 607, and A. Fanlo Loras, La unidad de gestión de las cuencas hidrográficas (Murcia, FIEA, 2007), at 143–167. 8 Currently, this issue is regulated by the transitory disposition of Real Decreto 125/2007 por el que se fija el ámbito territorial de las demarcaciones hidrográficas, which set the territorial scope of the river basin districts, by virtue of which each intra-community river basin whose management has not been transferred to the corresponding Autonomous Community shall be provisionally assigned to the river basin district whose territory is included in the territorial scope of the hydrographic confederation to which it belongs today. See Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1.   9 Previously in Spain, transfers between river basins had always been approved and enacted through law. The most important, still in effect, is the Tajo-Segura transfer. 10 The National Hydrological Plan was enacted through Ley 10/2001 del Plan Hidrológico Nacional.

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contents in large measure dealt with the regulation of transfers between river basins and, more specifically, with the diversion of the Ebro River to south-eastern Spain. Understandably, its passage sparked sharp debate between those who supported the transfer and those opposed to it, beginning with the leadership of the opposition parties. The controversy became so intense that, shortly after winning the elections in March 2004, the new Socialist Government, headed up by President Rodríguez Zapatero, abrogated the articles in the National Hydrological Plan regulating the “transfer of the Ebro”.11 This Law’s Preamble harshly criticized the National Hydrological Plan on the following grounds: 1) noncompliance with the principle of cost recovery set down in the Water Framework Directive; 2) the absence of a prior strategic environmental assessment of the National Hydrological Plan; part of the difficulty of complying with the environmental objectives established in the Water Framework Directive and the adverse effects on Natura 2000 Network areas; 3) the impossibility of obtaining community financing without a previous environmental assessment of the plan, as per the terms of Regulation 1260/1999/EC governing Structural Funds. The revocation of the transfer was a landmark event in the “water war”. Thus, the “winners” attempted to “shield” the waters running through their territories to keep them from being diverted to other river basins in the future. Attempts were made to undertake this “shielding” beginning in 2006 in the different reforms of the statutes of autonomy of most of the Autonomous Communities.12 The different statutes approved incorporated a series of competences whose purpose was to allow the Autonomous Communities to intervene with greater influence in the water management, specifically when the State was empowered (inter-community river basins and transfers). The mechanisms have been varied and have received a different assessment by the Constitutional Court:13 11 By Real Decreto Legislativo 2/2004 por el que se aprueba el texto refundido de la Ley Reguladora de las Haciendas Locales, and later confirmed by Ley 11/2005 por la que se modifica la Ley 10/2001 del Plan Hidrológico Nacional. 12 These statutes are the main institutional and organizational norm of each Autonomous Community. 13 See A. Embid Irujo, “Los nuevos Estatutos de Autonomía y el reparto de competencias sobre el agua y las obras hidráulicas entre el Estado y las Comunidades Autónomas” in A. Embid Irujo (ed.), Agua y territorio. Consideración especial de la reforma de los Estatutos de Autonomía (Madrid, Civitas, 2007), at 13–80; A. Fanlo Loras, La unidad de gestión de las cuencas hidrográficas supra, at 169 et seq.; Á. Garronera Morales and A. Fanlo Loras, La constitucionalidad de los nuevos Estatutos en materia de aguas. A propósito de la propuesta de Estatuto de Autonomía de Castilla-La Mancha (Murcia, FIEA, 2008), at 44–94; J. Agudo González, Urbanismo y gestión del agua (Madrid, Iustel, 2007), at 117 et seq.



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–  Measures related to the transfer of resources between river basins. i)  Measures designed to demand the transfer of water between river basins. A first class of measures was incorporated into the statute of the Valencian community.14 The Valencian community, harmed by the revocation of the transfer of the Ebro, incorporated in Article 17(1) of its Statue the “right” to the “redistribution of excess water from surplus river basins”, referring to one of the minimum conditions which has informed Spanish diversion policy.15 This “right” was completely eroded by Constitutional Court Judgment 247/2007, which stripped it of any substance, and mainly due to its efficacy, it has been rendered subject to State competences, thereby reducing it to a token right because State legislation does not actually recognize any of its possible contents. ii) Measures whose purpose is to impede new resource transfers between river basins. Article 19(3) of the statute of Aragon16 establishes that it lies with Aragon’s public authorities to “act especially to prevent any transfer of water from the river basins which form part of the Autonomous Community.”17 To fully flesh out this provision, additional disposition 5a of the statute of Aragon designates a water reserve for Aragonians’ exclusive use.18 iii)  Measures designed to govern the transfer of resources between river basins. Article 117(4) of the new statute of Catalonia,19 sought to protect “its waters” from future transfers through a technique of interadministrative collaboration, as set forth in a nonbinding manda­ tory  report.20 Constitutional Court Judgment 31/2010 confirmed the 14 Approved under Ley Orgánica 1/2006 de Reforma de la Ley Orgánica 5/1982 de Estatuto de Autonomía de la Comunidad Valenciana. 15 Also set down in Art. 16(2) of the National Hydrological Plan supra. 16 Approved under Ley Orgánica 5/2007 de reforma del Estatuto de Autonomía de Aragón. 17 It is necessary to remind that Aragon was the most affected territory by the transfer or the Ebro River. 18 The enforceability of this reserve is unresolved because the last word continues to lie with the hydrological plans approved by the State; however, the reserve is very relevant because it represents a greater volume (6,550 Hm3) than the surplus calculated for the transfer of the Ebro by the National Hhydrological Plan of 2001 (some 5,200 Hm3) and over six times the amount which annual transfer plans had called for (1,050 Hm3). 19 Approved under Ley Orgánica 6/2006 de reforma del Estatuto de Autonomía de Cataluña. 20 Art. 117(4) of the new statute of Catalonia: “The Generalitat is to issue a mandatory report for any proposed river basin transfer which involves the modification of water resources in its territorial jurisdiction.” In the same vein, Art. 75(5) of the statute of Castile and León, approved by Ley Orgánica 14/2007 de reforma del Estatuto de Autonomía de Castilla y León, as well as Article 72(3) of the statute de Aragon.

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constitutionality of the provision due to the nonbinding effectiveness of the report, considering it “a reasonable mechanism of collaboration between the Autonomous Community and the State (…) consonant with the principle of cooperation which is to inform relations between the State and Autonomous Communities.” – Measures which affect the administration of inter-community river basins. i) Measures specifically designed to oversee inter-community river basin management. One of the most important initiatives was the reform of the Andalusian statute of autonomy.21 Article 51 of the statute granted this community exclusive competence “over the waters of the Guadalquivir River basin running through its territory and which do not affect any other Autonomous Community.”22 This regulation marked a break with two traditional principles of water administration in Spain: 1) the unitary management of the river basin; that is, the community of Andalusia would only manage the part of the Guadalquivir’s river basin which flows through its territory, whereas the rest of the river basin, the lesser part, would continue to be managed by the State; 2) the administration of inter-community river basins by the State, handed over now to the Autonomous Communities, albeit not entirely, but in a decisive manner.   This provision was declared unconstitutional in Constitutional Court Judgment 30/2011, which confirmed that “any other future specification of the territorial criteria contained in Article 149(1)(22) EC – which shall never entail a fragmenting understanding of the concept of the river basin,” may only come from a sole and exclusive legislative entity, “which shall always be the State, as a legislator, as only it, via its exclusive, supra-community status, shall be able to supply criteria capable of establishing under the Law the regulatory scheme governing a physical reality which is also supra-communitarian.” In other words, if according to State legislation, river basins are to be managed in a unitary way, whether by the State or by the Autonomous Communities, this means that a statute of autonomy may not transgress the territorial criteria

21 Approved under Ley Orgánica 2/2007 de reforma del Estatuto de Autonomía para Andalucía. 22 Art. 75(1) of the statute of Castile and León supra reads in a similar fashion, attributing competences to this community over the waters of the “Duero River basin with their headwaters in Castile and León, and reaching Portugal without crossing any other Autonomous Community.”



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established by State legislation, thereby limiting the State’s competences with regard to inter-community river basins. ii) Measures related to State management competences in inter-community river basins. Various Autonomous Communities have assumed, apart from the logical inter-community river basin competences, the acquisition of competences to be exercised in river basins falling under the competence of the State. Thus, Article 117(3) of the statute of Catalonia establishes that this community “participates in hydro­ logic planning and in the State’s water resources management bodies, and in plans for the use of water resources which pertain to intercommunity river basins.”23 The aforementioned Constitutional Court Judgment 31/2010 upheld the constitutionality of this provision, insofar as it lies with the State, in its legislative capacity, to determine the scope and fashion in which those competences are to be articulated. The conclusion seems evident: that waters run through the territory of a given Autonomous Community has become a key basis upon which to proclaim the “territorialisation” of the water and to make demands for new competences at the expense of State competences and interregional solidarity. Thus, the reaction of the Constitutional Court ought to be assessed positively, as it proscribed the transference of competences to the Autonomous Communities for the partial management of intercommunity river basins, as well as established that the exercise of community-level competences with regard to inter-community river basins is subject to the decisions of the State as legislator. The reaction came in time because this new process of decentralization was clearly a contradiction in terms, clashing with both the constitutional doctrine which already proclaimed the blessings of the unitary administration of river basins in 1988 and with the Water Framework Directive. 1.2. The Implementation of the Water Framework Directive 1.2.1. Delimitation of River Basin Districts, the Naming of Competent Authorities and the Approval of River Basin Management Plans The approval of the Water Framework Directive24 has not meant an alteration to the constitutional system of competences, although it has spelled a 23 Similar terms are expressed by Art. 50(2) of the Andalusian statute supra and Art. 72(2) of the statute of Aragon supra. 24 See in relation with the current implementation process of the Water Frame­ work  Directive in Spain, J. Agudo González (ed.), El Derecho de Aguas en Clave Europea

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restructuring of the competent institutions. The changes made have to do with the following circumstances: 1) the hydraulic administration of each river basin so far has management competences only over continental waters; 2) although it is the State which enjoys the authority to oversee maritime-terrestrial public domain protection and management (including marine water bodies regulated by the Water Framework Directive), the Autonomous Communities are the territorial entities authorized to handle the issue of the quality of marine waters, notwithstanding that, with regard to continental waters, this competence lies with the river basin authorities (hydrographic confederations in the case of inter-community river basins).25 The solution to integrating marine and continental water management and quality oversight into river basin districts has been to maintain the pre-existing administrative structure (each river basin’s authorities), favour the participation of the Autonomous Communities in them and institutionalize the coordination of competences in river basin districts through the creation of Committees of Competent Authorities. Specifi­ cally, the framework of the hydrographic confederations has encouraged the participation of the Autonomous Communities in the governing board (Juntas de Gobierno) of inter-community river basin bodies26 as well as the Water Council, a deliberative, participatory and consultative planning body.27 However, the most important new development appears in the new Article 36bis of the Water Law, creating the cited Committee of

(Madrid, La Ley, 2010), in toto; B. Setuaín Mendía, “La Directiva marco sobre el agua: el fin del proceso decisorio y el inicio del aplicativo” (2001) 11 Justicia Administrativa 5–32; S. Álvarez Carreño, “Environmental Reinforcement in European Water Law: Reflections on its significance in Spain” (October 2006) European Environmental Law Review 297–303; I. Caro-Patón Carmona, “La Directiva marco de aguas y su trasposición al Derecho español: análisis jurídico general” (2006) 9 Justicia Administrativa 37–57; and F. Delgado Piqueras, “El proceso de aplicación de la Ley de Aguas de 1985 y las nuevas exigencias de protección del dominio hidráulico que plantea la Directiva marco del agua” (2006) 10 Revista Aranzadi de Derecho Ambiental 47–66. 25 With regard to public domain hydraulic discharges, Tribunal Constitucional Judgment 227/1998 employed the criterion of the river basin to specify the distribution of competencies. However, with regard to marine discharges, and addressing the assumption of competencies in this area by some statutes of autonomy, Tribunal Constitucional Judgment 149/1991 confirmed the Autonomous Communities’ competency with regard to this issue. 26 Art. 25(1) and 27d of the Water Law supra. In addition, take into account that Tribunal Constitucional Judgment 161/1996 ruled to this effect. 27 Art. 35 and 36(1)c of the Water Law supra.



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Competent Authorities28 in the river basin districts of inter-community basins, whose purpose is to “guarantee proper cooperation in the application of water protection regulations.” The creation of the Committee does not alter the pre-existing organization or distribution of competences because it was created to facilitate the coordination of relations between the different competent administrations in the execution of the Water Framework Directive. In fact, the Water Law establishes that the creation of the Committee of Competent Authorities “will not affect the holding of the competences which, with regards to water management, lie with the different public administrations, which shall continue to be exercised in accordance with that set forth in each case in the applicable regulations.”29 The nearly century-old organization of water management in Spain’s river basins, the existence of the river basin management plan since 1998, and the relatively early regulatory adaptation to the Water Framework Directive (via Law 62/2003 of 30 December, in addition to the approved regulations) made it seem that Spain would be able to quickly adapt its administrative organization to the European requirements.30 This expectation, however, was dashed by the Judgment of the European Court of Justice on 7 May 2009 (ECJ Case C-516/07, European Commission v. Spain), which declared the Spanish State to be in noncompliance due to its failure to designate all the authorities competent to apply the provisions of the Directive in the river basins managed by the Autonomous

28 For intra-community river basins, it shall be the Autonomous Communities which decide both the competent authority and the way in which to articulate that administrative cooperation. In addition, it is to be taken into consideration that s. 4 of Art. 36bis of the Water Law establishes that “in cases of intra-community river basin districts, the competent Autonomous Communities shall guarantee the principle of the unitary management of waters, and cooperation in the exercise of the competencies which the different public administrations hold in relation to their protection, with particular regard to those corresponding to the general administration of the State in the area of maritime-terrestrial, port and merchant marine public domain.” 29 Art. 36(1)(II)bis. 30 It can be compared to the relativily optimistic approach to this topic in J. Agudo González, “La Directiva marco, la nueva cultura del agua y el imperativo de evolución de la política hidráulica española hacia un modelo de gestión sostenible” in S. González-Varas Ibáñez (ed.), Nuevo Derecho de Aguas (Madrid, Thomson-Civitas, 2007), at 131–156, with the more negative assumed just three years later, due to new events, in J. Agudo González, “Demarcaciones hidrográficas, planificación hidrológica y programas de medidas” (2010) 261 Revista de Derecho Urbanístico y Medio Ambiente 13–78. 31 Via Real Decreto 126/2007 por el que se regulan la composición, funcionamiento y atribuciones de los comités de autoridades competentes de las demarcaciones hidrográficas con cuencas intercomunitarias, which established the composition, functioning and

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Communities of Galicia, the Basque Country, Andalusia, the Balearic Islands and the Canaries; only the community of Valencia and Catalonia had fulfilled their obligations on schedule. It should be stated that the Spanish State moved to meet its obligations in the Directive with respect to inter-community river basin districts,31 including the Spanish part of international Iberian river basin districts. For jurisdictional reasons, the norm approved by the Spanish Government did not set down regulations covering intra-community river basin districts. This is the reason for Spain’s noncompliance. Meanwhile, because the deadline set by the Directive for the revision of the river basin hydrological plans and their adaptation to meet the requirements stipulated in the Water Framework Directive (22 December 2009) has expired, Spain still stands among the Member States which have not approved the new river basin management plans. Spain’s nonfulfillment can be ascribed to various reasons,32 but the complex division of competences which governs water management in Spain is, without any doubt, one of the causes. In addition to the delay in the approval of the river basin management plans being inexcusable and possibly leading to another declaration of noncompliance by the European Court of Justice, perhaps even more serious is that the definitive plans which are ultimately approved many not respond adequately to the Water Framework Directive demands. This doubt looms over the plans being processed due to deficiencies detected in the reports approved based on Article 5 of the Water Framework Directive33 as well as in the documents on significant water management issues identified in the river basin district and rendered public information within the framework of the river basin management plans approval

attributions of the Committees of Competent Authorities of the river basin districts with regard to inter-community river basins. 32 For example, the traditional undersupplying of the hydraulic administration, along with the complexity of the approval procedure, as well as the late approval of both Real Decreto 907/2007 por el que se aprueba el Reglamento de la Planificación Hidrológica, which approved the Hydrologic Planning Regulation, and Orden ARM/2656/2008 por la que se aprueba la instrucción de planificación hidrológica, which approved the hydrologic planning instruction; considering the river basin management plans were supposed to be approved in late 2009, it is evident that the approval of such an important norms for the elaboration of the river basin management plans, adapted to meet the demands of the Directive, arrived too late. 33 In relation to this last aspect, the studies completed by the hydrographic confederations are limited to performing generic exercises, without even specifying when concrete measures are proposed.



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procedure as well as in the hydrological planning rules and regulations themselves. The complexity of the system of competences, often unnecessarily subject to interpretations of our legislation that are more political than strictly legal, will in all likelihood be responsible for another case of nonfulfillment. As of 18 March 2010, the European Commission reasoned opinion (2003/2009) pointed out the failure to apply the Directive in some aspects related to water quality and discharges, in addition to the delimitation of river basin districts. With regard to the last point, the origin of the problem can be traced, again, in the competence distribution scheme. These problems, related to competences today, have become especially evident in the Northern river basin district.34 Let us explain why it is considered necessary to break the traditional river basin district of the North, which embraced all the northern coast of Spain until 2007. In 2007, the first regulation approved to adapt the Spanish river basin system to the requirements of the Water Framework Directive35 dictated that the river basin district along the North coast encompassed the river basin territory of the rivers which flow into the Cantabrian Sea, from the outfall of the Eo River, including this river’s, to the border with France, along with its transitional waters, excluding the territory of the sub river basin along the west side of the Eo River, and excluding the territory and transitional waters associated with the Basque Country’s internal river basins.

Also excluded from the river basin district were the Basque Country’s coastal waters: The coastal waters are bound to the west by the 0° orientation line, which passes through the Punta de Peñas Blancas, to the west of the Eo River, while to the east they are bound by the 2° orientation line, which passes through Punta del Covarón, on the border between the Autonomous Communities of Cantabria and the Basque Country.

It goes without saying that the “artificial” division established by this river basin district flies in the face of the kind of integrated and unitary 34 Today, declared the Cantabria river basin district, instead of Northern river basin district, following the approval of Real Decreto 266/2008 por el que se modifica la Confederación Hidrográfica del Norte y se divide en la Confederación Hidrográfica del Miño-Sil y en la Confederación Hidrográfica del Cantábrico. 35 Specifically, we are referring to Art. 3(2) of Real Decreto 125/2007 supra, which set the territorial scope of the river basin districts.

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management endorsed by the Water Framework Directive. In any case, it is a good example of how a legal solution prescribed how to share water management competences between the Spanish Government – through hydrographic confederation and Autonomous Communities – and, in this case, the Basque Government. After the aforementioned announcement of the European Commission, a new regulation was approved36 – modifying the former regulation already cited – which recognized that Spain’s compliance in this regard was particularly complex in certain territorial jurisdictions in which it is necessary to satisfy community criteria in order to proceed with the river basin district in accordance with the internal competence distribution structure with regard to waters which govern relations between the State and the Autonomous Communities.

The final result was the division of the Cantabrian river basin district into a Western Cantabria river basin district and the Spanish part of the Eastern Cantabria river basin district. Although the final solution may be right, it raises the issue that there is an impression that the national Government has become accustomed to European institutions amending plans as a consequence of the political excesses of our system of competences. The incomprehensible issue is that these excesses, which are generating appalling consequences and which could have been prevented by resolute State action, remain on “stand by”, in some cases because they are expected to eventually be annulled by the Constitutional Court, and in other cases, such as the one discussed, a sentence from the European Court of Justice is awaited which may justify vigorous intervention by the State, as if it could not otherwise act previously in this regard.37

36 Real Decreto 29/2011 por el que se modifican el Real Decreto 125/2007, de 2 de febrero, por el que se fija el ámbito territorial de las demarcaciones hidrográficas, y el Real Decreto 650/1987, de 8 de mayo, por el que se definen los ámbitos territoriales de los Organismos de cuenca y de los planes hidrológicos. 37  The Constitutional Court has repeatedly maintained (since Judgment 252/1998) that the incorporation of Spain into the European Community did not alter the constitutional system and scheme of competencies. Therefore, the enforcement of Community Law lies with those who already held authority over the area to which the European regulation refers.



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1.2.2. Participation in the Implementation of the Water Framework Directive The Water Law38 and the Water Planning Regulation39 set forth the terms of the Directive with regard to information and the “public’s” participation in the river basin management plans drafting procedure. With regard to information access, the Water Law establishes that, pending a request, access to the documents and the information used to draft the river basin management plan shall be granted. To this end, the Water Planning Regula­ tion refers to Law 27/2006.40 Let us investigate this process step-by-step. As for public consultation during the different phases of the planning process referred to in the Water Framework Directive, the Water Law underscores that the procedure for the drafting and revision of the river basin management plans is to include, in any case, the preparation of calendars, work programs, elements to consider and previous drafts to make possible adequate information and public consultation from the start of the process.41 In addition, the cited regulation adds that in the elaboration and revision of the river basin management plans, public participation shall be guaranteed throughout the planning process, both during the previous consultation phases as well as during plan development, revision and approval.42 Meanwhile, the Water Law43 establishes that the competent hydraulic administration is to publish and make available to the public the following documents: a) three years prior to initiating the procedure for the approval

38 In the additional provision 12a of the Water Law supra. 39 Art. 72 to 75 of Real Decreto 907/2007 supra, through which the Water Planning Regulation is approved. 40 Ley 27/2006 por la que se regulan los derechos de acceso a la información, de participación pública y de acceso a la justicia en materia de medio ambiente (incorpora las Directivas 2003/4/CE y 2003/35/CE), which lays down regulations on information access rights, public participation, and access to justice with regard to environmental issues in such a way that the terms of this Law are wholly applicable also to this field because it incorporates EC Directives 2003/4 and 2003/35. See Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (2003) OJ L41/26, and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (2003) OJ L156/17. 41 Art. 41(2) of the Water Law supra. 42 In s. 3 of Art. 41 of the Water Law supra. 43 The aforementioned additional provision 12a of the Water Law supra.

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or revision of the corresponding river basin management plan, a calendar and a work program on the plan’s preparation, with an indication of the consultation formulas which shall be adopted in each case; b) two years prior to the procedure referred to in the preceding paragraph, a provisional outline of the significant water management issues to be addressed with regard to the river basin pertaining to water management; c) one year prior to initiating the procedure, copies of the river basin management plan. In addition to this, it must be added that both the Water Law and the Water Planning Regulation44 establish that, for the corresponding claims to be filed during the indicated phases, the river basin bodies “shall establish a minimum period of six months for the presentation of written observations.”45 Finally, with regard to the handling of active participation in all aspects of the Directive’s application, and especially in relation to the planning process, the Water Planning Regulation46 states that river basin authorities are to foment said participation, both by the parties directly involved and the general public. To this end, they should organize forums or work groups in which the interested parties and persons of recognized prestige and experience in the field participate to provide counsel during the river basin management plans preparation process. In the area of participation, an initial difficulty has been that the Water Law does not feature a definition of what is meant by “the public” or “involved parties”. However, in accord with the aforementioned Law 27/2006, the meaning of these concepts can be established in the following terms: – By “public” one is to understand “any individual or legal entity, as well as the associations, organizations and groups constituted under the regulations applying to them.” – “Involved parties” are to be understood as: A)  Any individual or legal person affected by the circumstances cited in Administrative Procedure Law,47 that is: 1) those promoting,  as the  holders of rights or legitimate individual or collective 44 Art. 74(3) of the Water Planning Regulation supra. 45 It must be noted that the environmental group “Ecologists in Action” has filed a complaint with the European Commission, pointing out the absence of effective public participation mechanisms in the elaboration of the river basin management plans, as called for by the Water Framework Directive. 46 Art. 75 of the Water Planning Regulation supra. 47 Art. 31 of Ley 30/1992 de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común.



water management and protection in spain379 interests, the corresponding administrative procedure; 2) those who, despite having initiated the procedure, hold rights which may be affected by the decision adopted in it; 3) those whose legitimate individual or collective rights may be affected by the resolution, and who officially attend the procedure prior to the issuance of a definitive resolution. B) Any non-profit legal entities which certify compliance with the following requirements: 1) that they feature, among the certified aims cited in their statutes, environmental protection in general or that of any specific environmental elements; 2) that they have been legally incorporated at least two years prior to the taking of the action and have been actively engaged in the activities necessary to achieve the ends specified in their statutes; 3) that, according to their statutes, they exercise their activity in a territorial domain which is affected by the action or administrative omission, where applicable.

It should be pointed out that, both with regard to information access and the carrying out of public consultations, the Water Planning Regulation insists48 that documentation be available in paper and digital format on the website of the Ministry of the Environment and those sites of the respective river basin districts. The problem has not been, however, access to information, but rather the quality of the documentation drafted and its placement at the disposal of the public and the interested parties. 1.2.3. The Coordination of Hydraulic Policy and Other Areas, such as Territorial Planning The Water Framework Directive demands “greater integration of protection and sustainable water management in other community political spheres”, with special reference to territorial planning. In Spain, this integration has transcended the territorial framework, but with some significant variations.49 The evolution and importance acquired by city planning in recent decades has transcended its relationship to hydrologic planning 48 Art. 73(2) and 74(2) of the Water Planning Regulation supra. 49 See J. Agudo González, Urbanismo y gestión del agua supra, at 145 et seq., and V. Escartín Escudé, Aguas y Urbanismo. Análisis de las tensiones competenciales derivadas del proceso de descentralización territorial (Saragossa, Fundación Manuel Giménez Abad, 2010), at 49–98. In relation to the coordination of water policy with other areas, See A. Pallarés Serrano, La planificación hidrológica de cuenca como instrumento de ordenación ambiental sobre el territorio (Valencia, Tirant lo Blanch, 2007).

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and management. Until just a few decades ago, water policy functioned as the main instrument of territorial planning and regional development. Today, however, city planning’s importance has made it possible to maintain, in a questionable fashion, a change in prevailing policies. Some have sought to justify the supremacy of land use over water policy through an erroneous interpretation of Article 40(2) of the Water Law, by virtue of which “water policy is to serve the sectorial strategies and plans established by public administrations for its different uses.” However, this interpretation is unacceptable because the same provision adds that said relationship is to function “without detriment to the rational and sustainable management of the resource(…) which shall shape all authorizations, concessions or future infrastructures requested.” In short, service to sectorial policies is to be subject to the objectives of a rational and sustainable management which levels the relationship between sectorial and water policies. Thus, the allusion to the instrumental character of water policy ought to be understood as an appeal for coordination between the competent administrations. This can be deduced from Article 14(3) of the Water Law, which establishes that the exercise of State functions with regard to water shall be informed by the principle of “the compatibility of public water management and territorial planning.” In the same vein, the call for inter-sectorial coordination is confirmed in Article 41(4) of the Water Law, which states that hydrologic plans shall be drafted in coordination with the different sectorial plans affecting them, addressing both water and land usage, and especially [in coordination] with that established in irrigation and other agrarian use plans.50 One of the most important specific manifestations of the coordination of hydraulic and urban policy is that set down in Article 25 of the Water Law.51 This article refers to the report which the river basin authority is to 50 This mandate is reiterated in Art. 68(2) of the Water Planning Regulation, in this case, alluding to the National Hydrological Plan, indicating that “the coordination of the different hydrologic plans shall be carried out via the National Hydrological Plan, considering the different sectorial plans of a general nature, and in particular those for agriculture, energy, territorial planning and city planning, as well as natural and environmental protection, all in the framework of the State’s general policies and its economic planning.” 51 See J. Agudo González, “Disponibilidad de agua y nuevos desarrollos urbanísticos” (2009) 45 Justicia Administrativa 23–72. About the traditional requirements in this field embedded in the urban development legislation, see I. Caro-Patón Carmona, “La disponibilidad del agua como requisito de la aprobación de los planes urbanísticos. Algunas reflexiones al hilo de la Sentencia del Tribunal Superior de Justicia de Castilla y León de 14 de febrero de 2005” (2006) 227 Revista de Derecho Urbanístico 53–71.



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issue on the availability of water resources generated by new urban projects. In other words, this report is meant to clarify the viability of new urban projects though an analysis of their compatibility with the water resources management and planning system. The problem is that this report has been presented as mandatory but not binding, although it is determinative in relation to the Environmental Report drafted as a result of the corresponding urban plan’s strategic environmental assessment procedure. The legal possibility of providing reasoned justification for noncompliance with the nonbinding report has given rise to irregular practices, as confirmed by the complaint presented before the European Commission in relation to 266 urban developments in Andalusia, Castile-La Mancha, Murcia and the Valencian community approved without their water supplies being previously guaranteed. 2. The Competences of Local Government The Spanish Constitution guarantees the autonomy of local government via Articles 137 and 140. The jurisprudence of the Constitutional Court has established this autonomy as the local governments’ right to participate in affairs of municipal interest. However, said participation and the jurisdictional levels involved are to be determined by State and regional (Autonomous Communities) legislators. Article 25 of Local Government Law52 constitutes the basic legal framework of the areas and material sectors conforming to local interests. Concretely, Article 25(2)(1) of the Law establishes that all Spanish Municipalities shall exercise competences according to the terms of State and Autonomous Community legislation with regard to “water supply(…); sewage systems and wastewater treatment”. The enumeration of the specific competences corresponding to local government shall, thus, lie with the State and the Autonomous Communities, as legislative entities, as part of their respective competences. Within this context, the Water Law is the State instrument specifying municipal policies, along with Laws in the field approved by a good number of the Autonomous Communities. Apart from the generic attribution of Article 25, Article 26 of the same Law stipulates a series of minimum obligatory services which, in any case, are to be provided by Municipalities, regardless of subsequent legal indi-

52 Ley 7/1985 Reguladora de las Bases del Régimen Local.

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cations in this regard. Pertaining to our subject, section a) in Article 26(1) establishes that all Spanish Municipalities are to provide services of “drinking water supply to homes, sewerage”.53 In the area of water supply, the main problem which has arisen in practice is the way to manage this public service. In this regard, the Local Government Law and the public sector contracts legislation indicate the possibility of direct management by the Municipality itself (different possibilities exist, such as management through a local public body or an entirely public corporation), or indirect management (for example, through the concession of the service or management by a mixed capital corporation). Spain’s experience is not homogeneous; there have been examples of effective management using all of these scenarios. Sewerage does not pose major problems either. The evacuation of waste water through sewer networks is one of the infrastructures whose execution lies with the owners/developers of new urban developments. Said infrastructures are to be delivered to municipal governments so that after their proper execution has been supervised, they may be managed by local government. This fundamental question is currently regulated in detail by the urban development legislation of each Autonomous Community.54 Another aspect of urban water cycle management which falls under the purview of local government is the oversight of discharges impacting municipal sewerage networks. This type of discharge is known as an “indirect discharge”. According to the Hydraulic Public Domain Regulation55 the term “indirect discharge” is to be understood as encompassing that related to surface water through drains, wastewater collection networks, rain water, or any other drainage system or hydraulic element in the public domain, as well as that related to underground water through ground or subsoil filtration. The most interesting question regarding this aspect was the voiding of the aforementioned provision by a Judgment of the Supreme Court on 18 October 2006 because the granting of competences to the

53 See Á. Menéndez Rexach, “El derecho al agua en la legislación española” in J. Agudo González (ed.), El Derecho de Aguas en clave europea (Madrid, La Ley, 2010), at 25–67. For further and complete information about all the issues related to these topics, see M. Álvarez Fernández, El abastecimiento de agua en España (Madrid, Civitas, 2004). 54 Aside from its basic aspects, covered by Real Decreto Legislativo 2/2008 por el que se aprueba el Texto Refundido de la Ley de Suelo, through which the Consolidated Land Use Law is approved. 55 Art. 245(2) of Real Decreto 849/1896 por el que se aprueba el Reglamento de Dominio Público Hidráulico, approving the hydraulic public domain regulation, in the drafting of Real Decreto 606/2003 por el que se modifica el Real Decreto 849/1986.



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Municipalities, which then directly carried out said provision by authorizing indirect discharges, could not be executed through a mere regulation because it lacked the superior status of a Law, as established in Articles 2(2), 7(1) and 25(3) of the Local Government Law. 3. Evaluating the Spanish Legal Order with Regard to the Principles of Governance Evaluating the current national legal situation considering the principles of good governance shows that the Spanish legal regime embeds most of the demands attributed to those principles. Problems are not inherent in the Water Law, but in how the political decisions affect the legal order as a whole and the administrative proceedings as a particular expression of those decisions. In this vein, the scholars have been quite critical regarding the way the Spanish Government has put into practice those norms related to the prin­ ciples of openness and participation. Although our Water Law  in­cludes the requirements from the Water Framework Directive, the administra­ tive proceedings have been criticized because of a lack of information or defective information having been submitted to the public. In fact, the participation process has been considered totally insufficient. This result has to do with the traditionally limited assumption of the considerations put forward by the public relating to the administrative procedures in Spain. It has not been unusual to criticize participation in such an area which can affect effective decision making. In relation to the coordination of different administrative levels, Spanish Water Law includes a wide range of measures. We could note as the most important, the aforementioned shared composition of competent authorities and the participation of regional administration in the procedure for the approval of management plans, of which the national government has final approval. However, conflicts have arisen due to norms approved in areas beyond Water Law56 whose main effects have been both break­ ing the coherence of the legal system and trying to break the integrated management of inter-community river basins. Good governance and better water management were in those cases far from the intention of

56 For example, through the new statutes of autonomy and specific Laws, using the Latin aphorisms: lex posterior derogat priori and lex speciali derogat lex generali.

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the legal reforms, although those norms paradoxically implemented new coordination measures. The question is whether there were  already enough measures in that direction and whether these new proceedings have interfered in the action of the State, while contributing to the dispersion of the legal system with obvious consequences in relation to legal certainty. With this state of the question, it is easy to understand that an increasing decentralization is not necessarily accompanied by greater effectiveness or clearer accountability, like the principles of governance claim. In fact, the aforementioned measures move in the wrong direction because they will make the decision-making difficult in the most important issues at the national level. The coherence required to ensure a common and consistent approach within a complex system such as the Spanish is being substituted with a shared political leadership (State and Autonomous Communities) which complicates the implementation of good governance in this area. Coordination can become not only a means for better water management and water protection, but also a goal itself, which it is necessary to reach, although water management and protection may be affected. In this vein, paradoxically, as we have shown, the Autonomous Communities are not always as diligent to put into practice the new competences as they would seem to be, as seen by to the intensity of the conflicts provoked to be empowered. Thus, the situation, originating after the new process of decentralization (mainly with the new statutes of autonomy), shows to what extent the new demands of power are related to different intentions of good governance: it was a need for more power rather than better management and protection. 4. Concluding Remarks: Trends and Future Problems Considering the aforementioned conclusions, the tendency detected in Spanish legislation is not encouraging: 1) the conflict was significant between 2001 and 2011, and it will probably continue until the Constitu­ tional Court rules on the constitutionality of all the new statutes of autonomy; 2) after the situation is stabilized by the Constitutional Court, the current national Government has already announced its intention to forge ahead in the search for new means to cater to the Autonomous Communities without violating the Constitutional Court’s Judgments. This means that, although the principles and criteria which determine the competence distribution scheme are clear, the exercise of competences is not always in proper accord with these principles or is carried out so



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as to evade the criteria. The reason for this is simple: the Autonomous Communities are not content to participate in the decision-making process, but now aim to make those decisions directly and definitively. If these forecasts prove true, a resurgence of conflict can be expected. The conflicts will not only be vertical conflicts (State-Autonomous Communities), but also horizontal (between Autonomous Communities). In this view, the complicity of the State with the ambitions of some Autonomous Communities (prominently revealed during the Government of President Rodríguez Zapatero) shall force (in fact, as has already done so) the affected Autonomous Communities to be the entities to file the corresponding appeals with the Constitutional Court in attempts to check initiatives which they believe may damage their interests. This situation paints an unsatisfying outlook for the future: 1) the progressive cession of decision-making powers with regard to intercommunity river basins (alternative criteria to the fragmentation of the river basins);57 this approach involves exclusively a modification of State  water legislation resulting from a previous agreement with an Autonomous Community in exchange for support provided to the national Government;58 2) tailor-made transfers.59 The only possible way to avoid this situation will be greater strength on the part of the national Government and its non-dependence on the sup57 This intention was already expressed by the Spanish Government in response to demands by the community of Andalusia, also governed by the Socialist party, following the result of the aforementioned Judgment 30/2011, declaring unconstitutional the provision of the new Andalusian statute, which granted authority to this community over the Guadalquivir River basin. 58 It would not be the first time that the State, as legislator, modifies general legislation to incorporate specific provisions applicable to a certain Autonomous Community. The best example is the modification of additional provision 10a(1)a of the National Hydrological Plan, via Ley 11/2005 supra, which legitimized the determination of the environmental scheme governing the flow of the Catalonian section of the Ebro River being carried out through an agreement between the regional government of Catalonia and the State administration, without considering other Autonomous Communities. 59 In recent years, one might underscore the normalization of the establishment of inter-river basin transfers approved by the Government via Royal Decree-Laws, rendering meaningless the terms of Art. 45(1)c of the Water Law, which states that it is to be the Law enacting the National Hydrological Plan which is to designate this kind of transfer. Real Decreto 2/2008 supra, on exceptional and urgent measures to guarantee the supplying of communities affected by the drought in the province of Barcelona, marked the collapse of the inter-river basin coordination measures called for by the National Hydrological Plan because its additional disposition 4 established this means as a general mechanism to carry out inter-river basin transfers in the event of emergencies. The paradox came about when, just as the work projects were assigned, the transfer was cancelled because it began to rain.

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port of regionalist parties. If this were to come about, a scenario involving the rigorous maintenance of the system of competence distribution would be conceivable, without bowing further to regional governments demands, a result which, at the same time, would be more coherent with the Water Framework Directive requirements. At any rate, and even in the best case scenario, the solution must also involve the adequate articulation of coordination efforts and interadministrative cooperation with regard to intra and inter-community river basin districts. We are headed, then, toward the ratification of the current model of mixed hydraulic administration, in which, according to the hypotheses offered, the clout of the Autonomous Communities will probably increase. In conclusion, a fair assessment of the Spanish system of competences and its capacity to bring about effective water policies and the speedy and proper execution of the Water Framework Directive is not favourable, at least considering the events that have occurred in recent years, because it depends on delicate political dealings which generate tensions and instability. If the worst forecasts come to pass, we will witness the logic of the river basins management system overturned by the irrationalism of competence depredation, and the ensuing fragmentation, institutional duplication and generation of redundant competences in direct violation of the principles of sound governance. These problems of responsibility assignment are, for example, already evident in the cases of those Autonomous Communities which demand more competences and, yet, when they are granted them, do not meet the corresponding obligations assigned to them. Problems of efficiency will come about as a result of the multiplication of public bodies and bureaucratic mechanisms which manage river basins of less importance; bureaucratic structures out of proportion with the river basins’ real importance. Finally, as was previously mentioned, the threat of problems of coherence exists because under these circumstances, the coordination between the different competent administrations becomes an end in itself and real needs and common and general interests take a back seat to these relationships. Bibliography J. Agudo González, “La Directiva marco, la nueva cultura del agua y el imperativo de evolución de la política hidráulica española hacia un modelo de gestión sostenible” in S. González-Varas Ibáñez (ed.), Nuevo Derecho de Aguas (Madrid, Thomson-Civitas, 2007), at 131–156.



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J. Agudo González, Urbanismo y gestión del agua (Madrid, Iustel, 2007). J. Agudo González, “Disponibilidad de agua y nuevos desarrollos urbanísticos” (2009) 45 Justicia Administrativa 23–72. J. Agudo González, “Demarcaciones hidrográficas, planificación hidrológica y programas de medidas” (2010) 261 Revista de Derecho Urbanístico y Medio Ambiente 13–78. J. Agudo González (ed.), El Derecho de Aguas en Clave Europea (Madrid, La Ley, 2010). S. Álvarez Carreño, “Environmental Reinforcement in European Water Law: Reflections on Its Significance in Spain” (October 2006) European Environmental Law Review 297–303. M. Álvarez Fernández, El abastecimiento de agua en España (Madrid, Civitas, 2004). I. Caro-Patón Carmona, “La disponibilidad del agua como requisito de la aprobación de los planes urbanísticos. Algunas reflexiones al hilo de la Sentencia del Tribunal Superior de Justicia de Castilla y León de 14 de febrero de 2005” (2006) 227 Revista de Derecho Urbanístico 53–71. I. Caro-Patón Carmona, “La Directiva marco de aguas y su trasposición al Derecho español: análisis jurídico general” (2006) 9 Justicia Administrativa 37–57. F. Delgado Piqueras, “El proceso de aplicación de la Ley de Aguas de 1985 y las nuevas exigencias de protección del dominio hidráulico que plantea la Directiva marco del agua” (2006) 10 Revista Aranzadi de Derecho Ambiental 47–66. A. Embid Irujo, “La sentencia del Tribunal Supremo de 20 de enero de 2004 en relación a las cuencas internas de las Comunidades Autónomas de Valencia y de Castilla-La Mancha desde la perspectiva de su ejecución y cumplimiento” (2006) 169 Revista de Administración Pública 429–55. A. Embid Irujo, “Los nuevos Estatutos de Autonomía y el reparto de competencias sobre el agua y las obras hidráulicas entre el Estado y las Comunidades Autónomas” in A. Embid Irujo (ed.), Agua y territorio. Consideración especial de la reforma de los Estatutos de Autonomía (Madrid, Civitas, 2007), at 13–80. V. Escartín Escudé, Aguas y Urbanismo. Análisis de las tensiones competenciales derivadas del proceso de descentralización territorial (Saragossa, Fundación Manuel Giménez Abad, 2010). A. Fanlo Loras, “Planificación hidrográfica en España: estado actual de un modelo a fortalecer” in Derecho de Aguas (Murcia, FIEA, 2006), at 567–607. A. Fanlo Loras, La unidad de gestión de las cuencas hidrográficas (Murcia, FIEA, 2007). A. Gallego Anabitarte et al., El Derecho de Aguas en España (Madrid, MOPU, 1986). Á. Garronera Morales and A. Fanlo Loras, La constitucionalidad de los nuevos Estatutos en materia de aguas. A propósito de la propuesta de Estatuto de Autonomía de Castilla-La Mancha (Murcia, FIEA, 2008). L. Mellado Ruiz, Aguas y ordenación del territorio en el contexto de la reforma estatutaria (Granada, Comares, 2010). Á. Menéndez Rexach, “El derecho al agua en la legislación española” in J. Agudo González (ed.), El Derecho de Aguas en clave europea (Madrid, La Ley, 2010), at 25–67. A. Pallarés Serrano, La planificación hidrológica de cuenca como instrumento de ordenación ambiental sobre el territorio (Valencia, Tirant lo Blanch, 2007). B. Setuaín Mendía, “La Directiva marco sobre el agua: el fin del proceso decisorio y el inicio del aplicativo” (2001) 11 Justicia Administrativa 5–32.

WATER MANAGEMENT AND PROTECTION IN ITALY Mariachiara Alberton and Ekaterina Domorenok1 Introduction In this chapter, the authors build on the analysis sketched in chapter 62 and rethink the evolution of water management and protection in Italy by focusing on the institutional setting.3 In particular, they investigate how the innovative provisions and tools contained in the Water Framework Directive (WFD) 2000/60/EC4 have affected the national legislative and institutional framework and whether the implementation phase has endorsed a more open, accountable, effective and coherent system, or in other terms, a sustainable institutional system capable of assuring a sustainable use of water.5 The implementation of the EU guidelines and measures has proven to be problematic in the Italian water management and protection context. As the study shows, this critical and still on-going reform process is partly due to the general institutional resistance to change and to the strong influence of political actors whose interests have not been aligned with the strategy envisaged by the Directive, against a fragmented and conflictual legislative background. 1 Dr. Mariachiara Alberton, Senior Researcher in Environmental Law, EURAC, Bolzano, Italy – Dr. Ekaterina Domorenok, Researcher, Department of Political Science, Law and International Studies, University of Padua (Università di Padova), Padua, Italy. 2 See chapter 6 by E. Orlando in this volume. 3 The analysis provided in the present chapter is based on M. Alberton and E. Domorenok, La sfida della sostenibilità. Il governo multilivello delle risorse idriche (Padua, Cedam, 2011). 4 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1. 5 See D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part I)” (2001) 10 European Environmental Law Review 41–51; D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part II)” (2001) 10 European Environmental Law Review 88–97; and D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” (2001) 10 European Environmental Law Review 125–135. In general, see L. Lanzalaco, “Sostenibilità istituzionale” in P. Messina (ed.), Innovazione e sostenibilità. Modelli locali di sviluppo al bivio (Padua, Cleup, 2009). See also The World Bank, Sustainable Development in a Dynamic World. Transforming Institutions, Growth, and Quality of Life (2003); NORAD, Handbook in Assessment of Institutional Sustainability (2000); M. Sedlacko and N. Gjoksi, Future Studies in the Governance for Sustainable Development: Overview of Different Tools and Their Contribution to Public Policy Making (ESDN Quarterly report, 2010); European Commission,

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1. The Italian System of Water Management and Protection before the WFD Transposition The evolution of the Italian system of water governance represents quite an interesting case that triggers a number of questions about the openness, participation, accountability, effectiveness and coherence of the national institutional and legislative framework with regard to water management and protection, while the relevance of the EU impact into this context cannot be taken for granted. Before the WFD was implemented the following phases marked water governance in Italy. During the first period, from the 1930s6 when the earliest measures in the regulation of the Italian water sector may be traced to the end of the 1970s, the nation-wide water policies were based on a rather technical, engineering-based approach, mainly focused on the energetic sector. Environmental objectives were almost entirely exogenous to that system of water management, while the responsibility for the maintenance of drinking aqueducts was assigned to Municipalities. Some changes took place in the mid-1970s. After some clamorous cases of pollution, Law 319/19767 was approved, followed by a number of recovery plans and a set of measures for sewage disposal. Water services continued to be managed at the municipal level and local aqueducts were run by a multitude of managing companies.8 It is also worth mentioning that water collection by supplier companies was neither regulated nor charged. As a consequence, the territory was split into electric (power) districts and drainage areas. Moreover, the conflict between the central Government and the newly created Regions around the division of competences and resources persisted, while an extension of regional powers in the environmental field9 produced a dangerous fragmentation of the natural river basins that did not coincide with administrative boundaries. Such division prevented the creation of a coherent and balanced system of water management and protection on a larger territorial scale because each

Communication of 15 May 2001 on a Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development, COM (2001) 264 final, 15 May 2001. 6 The first Law (No. 1775) in the water sector was approved in 1933. It established that the water was a public property and that it could be managed by private actors except for the cases explicitly regulated by law. 7 Legge 319/1976. 8 See G. Citroni et al., Chi governa l’acqua? Studio sulla governance locale (Soveria Mannelli, Rubbettino, 2008). 9 Decreto del Presidente della Repubblica (D.P.R.) (Decree) 616/1977.



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Region adopted its own legislative and administrative acts without any attempts of horizontal coordination. In the beginning of the 1980s, alongside increased public attention to environmental issues and as a consequence of extreme flood events,10 Italy adopted a number of measures for water and environmental protection. Despite the introduction of innovative measures mainly linked to the implementation of EU water directives,11 some original domestic initiatives also took place. In particular, Law 183/198912 on soil protection brought about some significant innovations in the system of water governance. More specifically, the establishment of new public administrative structures associated with hydrographical basins for water resources planning were foreseen as a tool for improvement of the critical situation of water resources. Therefore, the territory was divided into hydrographical basins of three categories (national, regional and interregional) in accordance with their spatial relevance. The related specialized agencies, called basin authorities, were expected to put into action an effective strategy for soil and fresh water protection and to trigger substantial investments into the water sector, aiming at river basins renewal. All their actions should have been transposed into basin plans, which were supposed to be a general framework for subsequent sectoral planning and which would regulate water and soil use within the related geographic area. The organisational structure of basin authorities was set up so as to enable inter-institutional coordination between central sectoral ministries, regional governments and technicians. Therefore, the highest political and administrative body of the authority, its Institutional committee, was comprised of representatives of the main ministries concerned (Environment, Infrastructure, Agriculture, Cultural Goods and the Department of Civil Defence), presidents of regional governments and the Secretary General. The Institutional Committee was assisted by the Technical Committee, whose function was to ensure the preparation of the main planning document (basin plan), and which was comprised of 10 The most dreadful floods in terms of economic impact, environmental damage and human victims occurred in Florence in 1966, in the Piedmont Region in 1968, in Genoa in 1970 and in Val di Stava in 1985. 11 In particular, the Drinking Water Directive (80/778/EEC) and the Urban Waste Water Treatment (91/271/EEC). See Council Directive 80/778/EEC relating to the quality of water intended for human consumption. (1980) OJ L229/11; Council Directive 91/271/EEC concerning urban waste-water treatment (1991) OJ L135/40. 12 Legge 183/1989.

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public servants nominated by the central Government and members of regional administrations represented in the Institutional Committee. The Secretary General of the Authority was in charge of the relations with the partner administrations, and he was also responsible for the overall functioning of the Authority. Finally, all the routine day-to-day work was carried out by the Technical Secretariat, in which various technical competencies, that is, engineering, territorial planning, environmental science, geology and hydrology were brought together. Despite the previously described innovations, the competencies of the various levels of government in the water sector were quite blurred,13 with the Ministry of Public Works holding the dominant position in the regulation of water management. The Ministry of Environment, established in 1986, was only marginally involved in the water policies and its role remained quite weak in subsequent years. A qualitatively new phase opened in 1994, when Law 36/199414 was adopted. It envisaged a comprehensive reform of the water management system through the establishment of the Integrated System of Water Management, based on Optimal Territorial Units aggregating Munici­ palities roughly within river basins. The reform was aimed at the creation of a unique system of water management for civil use, comprising regulatory (tariffs, technical standards) and institutional (organization and policy instruments) transformations. The task of defining the Optimal Territorial Units was assigned to the Regions, whereas Authorities had to be established by Provinces and Municipalities. The Assembly, the main decision-making and control body of the Optimal Territorial Unit Authority, was comprised of mayors or members of the municipal council and presidents of Provinces. It had an overall responsibility for water services management at the local level and for the definition of appropriate management tools, including the selection of managing companies. Law 36/1994 also established the National Vigilance Commission for Water Resources within the Ministry of public works with the main functions of monitoring the water services across the national territory, identifying a uniform tariff calculation method and collecting and disseminating the data related to the national water management system. Some years later, it was put under the control of the Ministry of Environment,15 but 13 See G. Citroni and A. Lippi, “La politica di riforma dei servizi idrici: istituzioni, processi e poste in gioco” (2006) 2 Le istituzioni del federalismo 239–275. 14 Legge 36/1994. 15 Decreto legislativo (d. lgs.) 284/2006.



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despite high potential of its nation-wide coordination activity, the role of this body in the definition of the Italian water governance remained weak and conditioned by the Ministry, until recently, as mentioned in the next section. The ultimate goal of the reform was to bring together all phases of water management into a comprehensive scheme that would be based, on the one hand, on the territorial integration ensured by a coherent system of water protection and use on the scale of hydrographical basins, and on the other hand, on functional integration of the water cycle, guaranteed through a balanced regime of extraction, supply, purification and disposal. Such a system took for granted a rational policy design, decentralisation of decision-making powers, financial autonomy and contract-based responsibility of public and private actors. However, the implementation output of the reforms previously described was rather modest. First, the process of institution-building, aimed at the creation of new public authorities as well as their private or semi-private counterparts, was quite cumbersome, and in some Regions, the establishment of the Optimal Territorial Units took more than ten years.16 Such a delay has been caused by a notable ambiguity of policy implementation guidelines to the Regions by the national Government and a strong local resistance to changes.17 Second, a participatory approach, inherent in EU programming and evaluation practices, was quite difficult to apply in the context of the top-down hierarchical interinstitutional relations that have consolidated in the Italian administrative system over the decades. Third, qualitative and quantitative deterioration of water infrastructure could hardly be reduced in a short time period, especially under the conditions of the water sector’s strong dependence on public financing. Although private participation in water management has been foreseen, this function was mainly upheld by municipal companies. To complete the previously described legislative framework on water management and protection, Legislative Decree 152/199918 implemented

16 In 1999, when the last regional law defining the Optimal Territorial Units was approved, only 32 out of 91 foreseen OTU were established. 17 See G. Citroni and A. Lippi, “La politica di riforma dei servizi idrici: istituzioni, processi e poste in gioco” supra. See also C. Carrozza, “La riforma italiana dei servizi idrici. Modi locali di governo fra continuità e rottura” (2008) 1 Rivista italiana di politiche pubbliche 5–36. 18 D. lgs. 152/1999.

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both EU Directives 91/271/EEC19 and 91/979/EEC20 and defined the safeguarding of water quality by identifying the minimum environmental status as well as the quality status for waters with specific uses. The Decree set emission limit values, drew up a monitoring and sanctioning system and introduced a water protection plan as part of the basin plan including actions and measures to guarantee qualitative and quantitative protection of water bodies at basin and regional levels.21 The plan was to be drafted by Regions in agreement with basin authorities and Provinces and was intended as a coordination tool of water plans formulated at river basin and local levels. However, instead of a more coherent water management and protection system, the provision of instruments and measures to be elaborated and approved at different institutional levels increased fragmentation within the territory and overlapping of functions. Thus, the scenario of path-dependence has marked the evolution of Italian water governance for several years after the entry into force of Law 36/1994. The EU sectoral legislation on pollution by nitrates from agricultural sources, urban wastewater treatment, public service contracts and public tenders, to mention a few, was not fully implemented22 and the enacted reforms were definitely insufficient to trigger rapid and substantial changes of the Italian system without a real and effective cooperation and coherent enforcement at the subnational level. Between 1999 and 2005 some progress in the implementation of the decentralised locally based system of water management took place, although its dynamics were quite irregular across the national territory. In many areas the reforms were limited to just a formal fulfilment, because of significant resistance of the existing institutional assets that were strongly sustained by regional and local political actors.23 Therefore, the extremely innovative, normative spirit of the two reforms has not found successful application on the ground. As is better explained 19 Directive 91/271/EEC supra. 20 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1991) OJ L375/1. 21 See F. Giampietro, “Obiettivi e strumenti di una nuova normativa italiana sulla qualità delle acque” (1997) 2 Giurisprudenza di Merito 471 et seq. 22 Some of the infringement procedures opened by the Commission against Italy in this regard are: Letter of formal notice No. 8/11/2000 (SG(2000)D/108243); No. 26/6/2002 (C(2002) 2329); procedures opened in front of the EU Court of Justice No. 2000/5152, No. 2002/4801, No. 2004/2034, No. 2006/2163, No. 2009/2034. 23 See A. Massarutto, “Il settore idrico in Italia” in E. Ferrarina (ed.), Acqua e sviluppo. Una politica delle risorse idriche per il futuro del Mediterraneo (Bologna, Il Mulino, 2003).



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in the following section, a sensitive political issue has emerged in this context: the division of competencies and functions among national, regional and local governments as far as the two separate but closely interrelated issues of water protection and management are concerned. 2. Implementing the New EU Water Framework Directive: Institutional Transformations and Conflicts What has been the implementation path of the Water Framework Direc­ tive in Italy against such a complex background? How has the Directive transposition affected the already existing institutional framework? Is the current institutional setting enhancing an open, effective, accountable and coherent water governance? As mentioned in chapter 11,24 the Directive aims at introducing a sustainable approach to water management, requiring the Member States to bring into a single regulatory framework water management and protection. The Directive also contains a number of direct and indirect prescriptions regarding institutional and organizational assets that could enable sustainable water governance. One of the underpinning concepts laid down by the WFD consists of identifying and assigning water bodies to river basin districts based on hydrological catchments and identifying competent authorities in charge of drafting the river basin management  plan for those river basin districts. Therefore, the river basin management plan is the major tool through which environmental objectives set by the WFD may be achieved in the Member States. Public participation further enriches this mechanism. Although the existing Italian legislative framework was substantially in line with the WFD requirements, a complete transposition which goes beyond the text of laws has not been undertaken yet, resulting in a situation which exposes Italy to the risk of a new infringement procedure following those already started by the Commission.25 The implementation of the WFD not only highlighted the difficulty of finding appropriate domestic operational tools for implementing the new European strategy for sustainable water management, but also prevented the achievement of the established political goals in due time. The lack of capacity to introduce innovations into procedures and practices existing 24 See chapter 11 by E. Morgera in this volume. 25 ECJ Case C-85/05, Commission v. Italy and C-85/07, Commission v. Italy.

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in the Italian governance structures at different territorial levels has appeared to be one of the key critical points in the process of the WFD implementation. Moreover, a clash of interests along the centre-periphery line has emerged, with a strong opposition of regional and local actors to the decisions taken by the national Government.26 For example, the idea of integrated water management in the context of hydrographical districts, which definitely constitutes the core of the new EU approach, was quite close to the logic of hydrographical basins established in Italy by Law 183/189. The task was apparently straightforward, implying further rationalisation of the existing framework and aggregation of national, regional and interregional basins into hydrographical districts on the basis of effective functional criteria. In this way, the excessive fragmentation of the previous system could be overcome. Instead, such a seemingly easy adjustment operation has resulted in a cumbersome process of structural reorganization that has generated numerous inter-institutional conflicts and created quite a dangerous situation of uncertainty in terms of competences and functions.27 A number of measures that triggered this negative trend were designed by Legislative Decree 152/2006,28 known as the “environmental code” that abrogated almost all previous Italian laws in the field of water management and protection, including Law 183/1989, Law 36/1994 and Legislative Decree 152/1999. Decree 152/2006 prescribed the creation of eight river basin districts29 replacing existing national, regional and inter-regional river basins and 26 For a more detailed overview of political and functional aspects of water governance in Italy, see E. Domorenok, Water Policies and Territorial Governance in Italy. Institutional Challenges of the WFD Implementation (London, 2011). 27 See Gruppo 183, La sfida dei distretti idrografici per il governo cooperativo delle acque e del suolo: la revisione del D.Lgs 152/2006 in materia ambientale (2006), available at http:// www.gruppo183.org; Gruppo 183 et al., Per l’attuazione della direttiva europea quadro sulle acque (2000/60) (2003), available at http://www.gruppo183.org; Gruppo 183, Note di analisi e di proposta della bozza provvisoria di revisione della parte III D.Lgs 152/2006: i distretti idrografici e i servizi idrici ad uso civile (2007), available at http://www.gruppo183.org; P. Urbani, “Il recepimento della direttiva comunitaria sulle acque (2000/60): profili istituzionali di un nuovo governo delle acque” (2004) 2 Rivista giuridica dell’ambiente 209 et seq.; M. Vita, “Il recepimento della direttiva 2000/60 CE in Italia: problematiche e proposte di attuazione” (2006) 3 AmbienteItalia 58 et seq. 28 D. lgs. 152/2006 Norme in materia ambientale. For comments, see A. Quaranta, “Il riordino disarticolato della disciplina a tutela delle acque nel T.U. ambientale” in F. Giampietro (ed.), Commento al Testo Unico Ambientale (Milan, Ipsoa, 2006); C. Scardaci, Il Testo Unico in materia ambientale e la nuova disciplina sulla gestione delle risorse idriche: prime considerazioni (2007), available at www.giuristiambientali.it. 29 The established districts are the following: Eastern Alps, Padano, Appennino settentrionale, Appennino centrale, Serchio, Appennino meridionale, Sardinia, Sicily.



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the abrogation of existing basin authorities. New district authorities with planning and programming functions had to be established by Ministerial Decree. However, because no Decree has been issued, former authorities have continued to perform their functions, on the basis of two decrees that postponed sine die their deferral.30 Currently, the establishment of these District Authorities has not been accomplished and numerous inconsistencies regarding their mandate, composition and functions still remain. Therefore, instead of a coherent, coordinated and effective water planning system, a patchwork of discontinuous implementation of WFD principles, tools and provisions is taking place within the aforementioned eight hydrographical districts.31 Basin authorities have continued to perform former functions and in particular, undertook the task of drafting the river basin management plan for river basin districts, coordinating their efforts with the respective regional governments. This process has been more intense in the Regions of Northern and Central Italy, which started to implement measures required by the Directive more quickly than their Southern counterparts. More recently, Legislative Decree 49/2010,32 implementing Directive 2007/60/EC33 on flood risks, required that basin authorities carry out a preliminary assessment by 2011 to identify the river basins and associated coastal areas at risk of flooding. For such zones they would then need to draw up flood risk maps by 2013 and establish flood risk management plans focused on prevention, protection and preparedness by 2015. Such flood risk management plans should be coordinated with river basin management plans and should include public participation procedures in their preparation. Thus, former basin authorities have increased their role in water planning and management before the completion of the institutional reform. This situation means that flood risk management activities are also to be undertaken within a provisional institutional framework and to be based on the voluntary cooperation among existing authorities

30 D. lgs. 284/2006; Decreto legge (d.l.) 208/2008. For a deeper analysis, see M. Alberton, “L’attività post-mortem delle autoritá di bacino: un cold case italiano nel settore idrico alla luce dei recenti sviluppi in tema di federalismo demaniale” (2010) 3/4 Istituzioni del Federalismo 363–384. 31 See A. Muratori, “Se il legislatore (ambientale) è … di memoria corta: le discipline “mutilate” per omessa emanazione delle norme esecutive (parte seconda)” (2009) 4 Ambiente e Sviluppo 305–314. 32 D. lgs. 49/2010. 33 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (2007) OJ L288/27.

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and bodies at national, regional and local levels. However, such a cooperation cannot be taken for granted. According to Decree 152/2006, the main policy and decision-making body of district authority – institutional conference – should be comprised of six representatives of sectoral ministries,34 a representative of the Department of Civil defence, and the presidents of the regional governments involved. In this way, as compared with the structure of former basin authorities, ministerial representation becomes dominant in all new hydrographical districts, even in cases of more regional presence.35 Such a centralistic approach, which did not support any concrete mechanisms for coordination and cooperation between central and regional levels (vertical integration), caused immediate critical reaction of regional authorities who then submitted recommendations36 to the State insofar as sub-State regulatory functions and their horizontal coordination under the central Government guidance was strengthened. The conflicts among the State, on the one hand, and the Regions and Autonomous Provinces, on the other hand, seem to have exploded with Decree 152/2006; however, they are rooted in the constitutional reform of 2001.37 According to Article 117 of the new Title V of Part II of the Constitution the “protection of the environment, the ecosystem and cultural heritage” falls within the list of sectors reserved to the exclusive State legislative powers, whereas the Regions hold concurrent legislative and regulatory powers in fields related to the environment, such as “the enhancement of cultural and environmental properties, territorial governance, health protection, transport and energy”. As was demonstrated by Constitutional Court case law38 and further underlined by

34 Ministry of Environment, Ministry of Transport and Infrastructure, Ministry of Productive Activities, Ministry of Agriculture and Forests, Ministry of Public Administration, Ministry of Culture. 35 This remark applies to the following three districts: the Padano district covering the territory of Piedmont, Lombardy, Valle d’Aosta, Liguria, Emilia Romagna, Toscana and Veneto; the Appennino Centrale district comprised of Abruzzi, Lazio, Marche, Emilia Romagna, Toscana, Molise, Umbria; the Appennino Meridionale district extending from Basilicata, Campania, Calabria, Puglia, Lazio, Abruzzi to Molise. 36 In the document sent to the Minister of Environment, Regions clearly expressed their dissatisfaction with the design of both new districts and the related authorities. The Regions asked for an open institutional consultation on these issues insofar the territorial and functional basis of the new system could be more efficiently defined (Rome, 18 April 2007). 37 See chapter 6 by E. Orlando in this volume. 38 Among others, see the following decisions of the Corte Costituzionale: 407/2002, 182/2006, 367/2007, 378/2007, 62/2008, 180/2008, 214/2008, 61/2009, 246/2009, 307/2009.



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scholars,39 the current constitutional framework has increased institutional conflicts instead of improving cooperation among government levels. Decree 152/2006 specified and detailed the new constitutional division of competences concerning the environment moving regulative power from local to central bodies and centralising many of the administrative competences previously shared with the Regions and Provinces.40 Therefore, the “environmental code” marked a new phase in the already existing institutional conflict trend. In particular, with regard to water resources, Regions did not accept a limited legislative, regulatory and administrative role and tried to challenge many of the new provisions of the Decree in front of the Constitutional Court, in particular those on river districts, basin/district authorities and river management plans, as was previously mentioned. Moreover, they enacted regional laws on water protection and management recalling their concurrent competence in sectors, that is, territorial governance, health and public local services, overlapping with environment protection. The Constitutional Court 39 For comments, see R. Bin, “I criteri di individuazione delle materie” (2006) 5 Le Regioni 889 et seq.; M. Belletti, “I criteri seguiti dalla Consulta nella definizione delle competenze di Stato e Regioni e il superamento del riparto per materie” (2006) 5 Le Regioni 903 et seq.; F. Benelli, “I criteri di allocazione delle competenze nella giurisprudenza costituzionale dopo la riforma del Titolo V della Costituzione” (2007) 1 Le Istituzioni del Federalismo 11–37; P. Caretti, “L’assetto dei rapporti tra competenza legislativa statale e regionale alla luce del nuovo Titolo V della Costituzione: aspetti problematici” (2001) 6 Le Regioni 1223– 1232; A. D’Atena, “Materie legislative e tipologia delle competenze” (2003) 1 Quaderni Costituzionali 15 et seq.; G. Falcon, “Modello e transizione nel nuovo Titolo V della parte seconda della Costituzione” (2001) 6 Le Regioni 1247 et seq.; T. Groppi, “Il Titolo V cinque anni dopo, ovvero la Costituzione di carta” (2007) 3/4 Le Regioni 421–432. 40 For comments on the division of competences between State and Regions/ Autonomous Provinces with regard to the environment and on the critical issues included therein, see M. Cecchetti, “Legislazione statale e legislazione regionale per la tutela dell’ambiente: niente di nuovo dopo la riforma del titolo V?” (2002) Giurisprudenza Costituzionale 318 et seq.; G. D’Alfonso, “La tutela dell’ambiente quale “valore costituzionale primario” prima e dopo la riforma del titolo V della Costituzione” in F. Lucarelli (ed.), Ambiente, territorio e beni culturali nella giurisprudenza costituzionale (Cinquanta anni della Corte Costituzionale della Repubblica Italiana) (Naples, Edizioni Scientifiche Italiane, 2006), at 3 et seq.; P. Dell’Anno, “La tutela dell’ambiente come “materia” e come valore costituzionale di solidarietà e di elevata protezione” (2009) 7 Ambiente e sviluppo 585 et seq.; A. Ferrara, La “materia ambiente” nel testo della riforma del Titolo V (2001), available at http:// www.federalismi.it; P. Maddalena, L’interpretazione dell’art. 117 e dell’art. 118 della Costituzione secondo la recente giurisprudenza costituzionale in tema di tutela e di fruizione dell’ambiente (2010), available at www.giustizia-amministrativa.it; B. Pozzo and M. Renna (eds.), L’ambiente nel nuovo Titolo V della Costituzione (Milan, Giuffrè, 2004); V. Vattani, La riaffermazione dell’ambiente come “valore” costituzionalmente protetto ed una precisazione sugli standard di tutela nazionale: riflessioni sulla definizione delle “materie” e sulla funzione della “leale collaborazione” (2005), available at http://www.associazionedeicostituzionalisti.it.

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eventually ruled in favour of the State, rejecting those regional instances and declaring the regional acts and provisions dealing with water protection  and broadly with environmental protection unconstitutional.41 Notwithstanding the increased role of the Court in settling the institutional disputes arisen from the constitutional reform, conflicts between State and Regions in the water sector have not decreased yet.42 The second important element of the WFD, whose implementation through Legislative Decree 152/2006 has been rather problematic in Italy, concerns horizontal integration, which is the harmonization of different policy areas and the coordination of water management and protection measures. To this end, the “environmental code” has introduced only a few concrete novelties that, however, could hardly be put into practice without corresponding District authorities or, at least, extensive coordination action of former basin authorities. Moreover, no tools for substantial involvement of regional and local authorities, stakeholders and the public have been foreseen.43 Two other relevant aspects should be highlighted. The WFD requires the Member States to set up measures for improving the quality and controlling the quantity of water resources and urges Member States to introduce economic instruments as part of the programme of measures. To this extent, it reiterates the relevance of the cost recovery principle in water management, including environmental and resource costs associated with damage or negative impact on the aquatic environment, and stresses the importance of the application of the polluter pays principle. Besides, an economic analysis of water services, based on a long-term forecast of supply and demand for water in river basin districts, is considered to be essential for sustainable water use. In contrast with the EU guidelines,44 the reform of the Italian water  governance has failed to put into a comprehensive framework the activities of water protection, planning and management, upholding the gap that caused serious deficiencies in the system in the past. The problem of cost 41 See, among others, Corte Costituzionale Judgments: 232/2009, 233/2009, 246/2009, 254/2009. 42 See, more recently, Corte Costituzionale Judgments: 1/2010, 29/2010, 142/2010, 325/2010. 43 A. Ludovici and C. Tonghini, Indagine del WWF sull’applicazione della direttiva 2000/60/CE in materia di acque. Analisi del ruolo dell’informazione ambientale e della partecipazione pubblica (2005), available at http://www.gruppo183.org. 44 Among key objectives of the WFD were the following: to prevent further deterioration, protect and enhance the status of aquatic ecosystems; to promote sustainable water use based on a long-term protection of available water resources (Art. 1, WFD).



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recovery in the water sector that is characterised by a dramatic lack of resources has not been properly dealt with so far. According to Law 36/1994, Optimal Territorial Units could each adopt a different tariff calculation, based on the so-called normalised method elaborated by the National Vigilance Commission for Water Resources. As a consequence, the final price that citizens paid for water services varied substantially even across hydrographical basins, due to different contract conditions agreed on by the Optimal Territorial Units Authorities with service providers. There was no horizontal coordination of the water costsdefinition policy at a larger territorial scale. Moreover, it has been widely recognised that the price of water resources in Italy was too low because of the high political importance of the issue: market mechanisms could not be applied to the management of a public good. Such an approach brought the extreme deterioration of water infrastructure over the years, on the one hand, and scarce investments, on the other hand. More recently, there has been an attempt to drastically change the situation. Law 166/200945 set out mandatory partial privatisation of water management, motivated (incorrectly) by the necessity to conform to EU norms concerning local public services of general economic interest.46 Such reform has been strongly contested by the civil society and eventually a referendum on the issue abrogated the controversial provisions in spring 2011, leaving the scenario more uncertain than ever for both water service companies and sub-national (regional, provincial and municipal) authorities. The aforementioned uncertain legislative framework has been further complicated by Law 42/2010,47 which imposed the abrogation of the Optimal Territorial Unit Authorities.48 Regions have been assigned the task of identifying new bodies in charge of water services management planning and control; however, no national uniform standards or criteria have been provided to this end with the risk of increasing fragmentation and instability. Moreover, the recent abrogation49 of the National Vigilance 45 Legge 166/2009. 46 Corte Costituzionale Judgment 325/2010. For comments, see the occasional paper by F. Lettera, I Referendum sull’acqua pubblica nelle sentenze della Corte Costituzionale (2011), available at http://www.eurac.edu/en/research/institutes/sfere/Projects/Documents/2011 %20Lettera%20Referendum%20acqua%5B1%5D.pdf. See also M. Alberton, “Labirinti liquidi: i servizi idrici in Italia tra riforme, controriforme, sentenze e referendum” (2011) 5 Economia dei Servizi 181–196. 47 Legge 42/2010. 48 First by December 2010; then, after d.l. 225/2010 entered into force, it was postponed to December 2011. Finally, it was postponed to December 2012 by d.l. 216/2011. 49 D.l. 106/2011.

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Commission for Water Resources in favour of the creation of a new national Authority for Water Resources, independent from the Govern­ ment, has not been seen as an improvement in the water management context.50 More recently, however, the new structure has been suppressed51 and its functions incorporated in the Ministry of Environment, blowing a new hole in the water management regulation. Thus, the few results and objectives achieved after years of discontinuous legislative implementation are seriously compromised by new acts which are not part of a coherent water governance reform and seem to be driven by political contingency. In addition to the already numerous critical points analysed so far, a number of issues have emerged with regard to monitoring activities. The responsibility for monitoring the qualitative and quantitative status of water resources has been split between different authorities without substantial coordination. More specifically, the Ministry of Environment is the principle institutional actor as far as the regulation of environmental protection and ecosystem quality is concerned. Regional governments have been assigned the task of enabling dissemination of information on water status and transmitting the updated data to the Department for water protection of the Agency for environmental protection and technical services.52 This latter body has been given an overall responsibility for data collection, analysis and further transmission of national environmental data to the European Commission and the European Environment Agency. However, no concrete measures have been formulated for the local level of water governance. The quality of water resources is monitored by local consortia operating within the OTU. The activity of these latter bodies is still controlled by the regional agencies for prevention and environmental protection, which are autonomous in legal, administrative and financial terms. Thus, the link between planning activities at district and regional levels and operational actions at local levels clearly has been repeatedly missed.

50 See letter of dismissal of 14/4/2011 written by Prof. Passino, President of the National Vigilance Commission for Water Resources, to the Ministry of Environment. 51 D.l. 201/2011. 52 The Agency was replaced by ISPRA (Institute for Research and Protection of Environment) by Legge 133/2008.



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The range of actions aimed at the establishment of a monitoring system that would enable a coherent and comprehensive water status control, as required by the Directive, has been limited. In this regard, the European Commission acknowledged53 that Italy did not provide an adequate set up of monitoring and surveillance stations and reported incomplete measures for qualitative and quantitative water observation. Moreover, the financing of the existing authorities and agencies, which had already been significantly diminished during previous years, was further reduced. As a consequence, all research, monitoring and other technical activities carried out are seriously at risk. A further important issue of the WFD, which Italian institutions failed to fulfil even with regard to formal procedural requirements, was public information and consultation. Considering that the schedule of the WFD implementation process in Italy has required more time than expected and the establishment of district authorities has not been completed yet, former basin authorities were asked by the Ministry of the Environment to prepare management plans a few months before the time period set by the WFD expired. Thus, there was no time for an appropriate organization of the public consultation. The only formally fulfilled procedure concerned a six-month period for sending written comments on the first draft documents. Other important deadlines and procedures have not been met, namely, a statement on a time table and work programme for the production of the plan, to be presented at least three years before the beginning of the period to which the plan refers; an interim overview of the significant water management issues identified in the river basin at least two years before the beginning of the period to which the plan refers; publication of a draft of the river basin management plan at least one year before the beginning of the period to which the plan refers (Article 14, WFD). Moreover, local authorities (Provinces) which are actively involved in the implementation of the management plans have been only marginally involved in their formulation.54

53 European Commission, Report from the Commission to the European Parliament and the Council in accordance with article 18.3 of the Water Framework Directive 2000/60/ EC on programmes for monitoring of water status, COM (2009) 156 final, 1 April 2009. 54 Several critical points in this sense have been raised during the Conference “Management plans of the hydrographical districts Padano and Alpi Orientali”, held at IUAV (Venice) on 19 March 2010.

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mariachiara alberton and ekaterina domorenok 3. Never-Ending Reforms and Future Challenges toward Sustainable Water Governance in Italy

The Italian experience of WFD transposition sheds light on a number of  problems  regarding  the  effectiveness  of  EU  water  legislation  imple­ mentation. As analysed in the previous sections, the reforms introduced by the Italian legislator to achieve sustainable management and protection of water resources has not only brought poor results in terms of environmental objectives, but also triggered numerous institutional conflicts. The new rules and procedures have been characterised by overlapping institutional competences, lack of coherence and lack of participation of relevant sub-national public actors and stakeholders. By adopting a highly centralised top-down approach to policy and legislation formulation and implementation, the central Government has not taken into account alternative proposals submitted by regional governments,55 think tanks and representatives of public bodies dealing with water management and protection. Therefore, the current framework has been highly contested and contrasted by those actors, causing an incremental activity of the Constitutional Court.56 Such a strong gate-keeper position has also prevented the cooperation of the interested authorities’ across territorial levels, thereby undermining the idea of sustainable water management within hydrographical districts. Surprisingly, the experience and the results of implementation of the national Law 183/1989, which adopted a similar logic and was grounded on a system of river basins, have not been rationally re-assessed and taken into consideration. The central Government institutions have been reluctant to adopt a more open and participatory approach that could enable the creation of appropriate organizational and functional structures for effective water protection and management at a larger territorial scale. At the subnational level, the implementation process of national legislative acts appears to be quite slow. As underlined in previous sections, Regions have encountered shortcomings in carrying out the water management reform required by Law 36/1994 in due time and have been reluctant to accept the limits of legislative and administrative competences 55 For an analysis, see M. Alberton, “Dall’“intreccio-incrocio” al “concorso”: verso una definizione della querelle tra Stato e Regioni in materia di tutela e fruizione dell’ambiente. Il caso delle risorse idriche” (2010) 7 Ambiente e Sviluppo 655–664. 56 See chapter 6 by E. Orlando in this volume.



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descending from Title V of the Constitution and more concretely designed by Decree 152/2006. Finally, the role of other public authorities involved in the water sector, for example, the National Vigilance Commission for Water Resources and the district/basins authority, has been limited (or null when considering more recent reforms) despite their considerable knowledge and expertise potential. Low financial, operational and legal autonomy binds their innovation capacity and makes them strongly dependent on governmental strategies. Although most of the deadlines set by the WFD have been formally met, it is obvious from previous insights that substantial measures and tools foreseen in the European acts are still to be implemented; thus, Italian water governance has not become more sustainability-oriented yet. On the contrary, more inclusive and integrated practices that, by the way, have been introduced by national laws in the past, seem to have been set aside by the current system. Therefore, an open, accountable, effective and coherent institutional, policy and legislative framework for water management and protection is still missing in Italy. Bibliography M. Alberton, “L’attività post-mortem delle autorità di bacino: un cold case italiano nel settore idrico alla luce dei recenti sviluppi in tema di federalismo demaniale” (2010) 3/4 Istituzioni del Federalismo 363–384. M. Alberton, “Dall’“intreccio-incrocio” al “concorso”: verso una definizione della querelle tra Stato e Regioni in materia di tutela e fruizione dell’ambiente. Il caso delle risorse idriche” (2010) 7 Ambiente e Sviluppo 655–664. M. Alberton, “Labirinti liquidi: i servizi idrici in Italia tra riforme, controriforme, sentenze e referendum” (2011) 5 Economia dei Servizi 181–196. M. Alberton and E. Domorenok, La sfida della sostenibilità. Il governo multilivello delle risorse idriche (Padua, Cedam, 2011). M. Belletti, “I criteri seguiti dalla Consulta nella definizione delle competenze di Stato e Regioni e il superamento del riparto per materie” (2006) 5 Le Regioni 903 et seq. F. Benelli, “I criteri di allocazione delle competenze nella giurisprudenza costituzionale dopo la riforma del Titolo V della Costituzione” (2007) 1 Le Istituzioni del Federalismo 11–37. R. Bin, “I criteri di individuazione delle materie” (2006) 5 Le Regioni 889 et seq. R. Bin, “Primo comandamento: non occuparsi delle competenze, ma delle politiche” (2009) 2 Le Istituzioni del Federalismo 203–211. P. Caretti, “L’assetto dei rapporti tra competenza legislativa statale e regionale alla luce del nuovo Titolo V della Costituzione: aspetti problematici” (2001) 6 Le Regioni 1223–1232. C. Carrozza, “La riforma italiana dei servizi idrici. Modi locali di governo fra continuità e rottura” (2008) 1 Rivista italiana di politiche pubbliche 5–36. M. Cecchetti, “Legislazione statale e legislazione regionale per la tutela dell’ambiente: niente di nuovo dopo la riforma del titolo V?” (2002) Giurisprudenza Costituzionale 318 et seq.

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G. Citroni and A. Lippi, “La politica di riforma dei servizi idrici: istituzioni, processi e poste in gioco” (2006) 2 Le istituzioni del federalismo 239–275. G. Citroni et al., Chi governa l’acqua? Studio sulla governance locale (Soveria Mannelli, Rubbettino, 2008). G. D’Alfonso, “La tutela dell’ambiente quale “valore costituzionale primario” prima e dopo la riforma del titolo V della Costituzione” in F. Lucarelli (ed.), Ambiente, territorio e beni culturali nella giurisprudenza costituzionale (Cinquanta anni della Corte Costituzionale della Repubblica Italiana) (Naples, Edizioni Scientifiche Italiane, 2006), at 3 et seq. A. D’Atena, “Materie legislative e tipologia delle competenze” (2003) 1 Quaderni Costituzionali 15 et seq. P. Dell’Anno, “La tutela dell’ambiente come “materia” e come valore costituzionale di solidarietà e di elevata protezione” (2009) 7 Ambiente e sviluppo 585 et seq. F. Di Dio, “Servizi pubblici locali e servizio idrico integrato” (2011) 5 Ambiente e Sviluppo 445–454. E. Domorenok, Water Policies and Territorial Governance in Italy. Institutional Challenges of the WFD Implementation (London, 2011). G. Falcon, “Modello e transizione nel nuovo Titolo V della parte seconda della Costituzione” (2001) 6 Le Regioni 1247 et seq. A. Ferrara, La “materia ambiente” nel testo della riforma del Titolo V (2001), available at http://www.federalismi.it. F. Giampietro, “Obiettivi e strumenti di una nuova normativa italiana sulla qualità delle acque” (1997) 2 Giurisprudenza di Merito 471 et seq. D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part I)” (2001) 10 European Environmental Law Review 41–51. D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part II)” (2001) 10 European Environmental Law Review 88–97. D. Grimeaud, “Reforming EU Water Law: Towards Sustainability? (Part III)” (2001) 10 European Environmental Law Review 125–135. T. Groppi, “Il Titolo V cinque anni dopo, ovvero la Costituzione di carta” (2007) 3/4 Le Regioni 421–432. Gruppo 183 et al., Per l’attuazione della direttiva europea quadro sulle acque (2000/60) (2003), available at http://www.gruppo183.org. Gruppo 183, La sfida dei distretti idrografici per il governo cooperativo delle acque e del suolo: la revisione del D.Lgs 152/2006 in materia ambientale (2006), available at http://www. gruppo183.org. Gruppo 183, Note di analisi e di proposta della bozza provvisoria di revisione della parte III D.Lgs 152/2006: i distretti idrografici e i servizi idrici ad uso civile (2007), available at http:// www.gruppo183.org. L. Lanzalaco, “Sostenibilità istituzionale” in P. Messina (ed.), Innovazione e sostenibilità. Modelli locali di sviluppo al bivio (Padua, Cleup, 2009). F. Lettera, I Referendum sull’acqua pubblica nelle sentenze della Corte Costituzionale (2011), available at http://www.eurac.edu/en/research/institutes/sfere/Projects/Documents/ 2011%20Lettera%20Referendum%20acqua%5B1%5D.pdf. A. Ludovici and C. Tonghini, Indagine del WWF sull’applicazione della direttiva 2000/60/CE in materia di acque. Analisi del ruolo dell’informazione ambientale e della partecipazione pubblica (2005), available at http://www.gruppo183.org. P. Maddalena, L’interpretazione dell’art. 117 e dell’art. 118 della Costituzione secondo la recente giurisprudenza costituzionale in tema di tutela e di fruizione dell’ambiente (2010), available at www.giustizia-amministrativa.it. A. Massarutto, “Il settore idrico in Italia” in E. Ferrarina (ed.), Acqua e sviluppo. Una politica delle risorse idriche per il futuro del Mediterraneo (Bologna, Il Mulino, 2003). A. Muratori, “Se il legislatore (ambientale) è … di memoria corta: le discipline “mutilate” per omessa emanazione delle norme esecutive (parte seconda)” (2009) 4 Ambiente e Sviluppo 305–314.



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NORAD, Handbook in Assessment of Institutional Sustainability (2000). B. Pozzo and M. Renna (eds.), L’ambiente nel nuovo Titolo V della Costituzione (Milan, Giuffrè, 2004). A. Quaranta, “Il riordino disarticolato della disciplina a tutela delle acque nel T.U. ambientale” in F. Giampietro (ed.), Commento al Testo Unico Ambientale (Milan, Ipsoa, 2006). F. Rampulla, “Il governo e la gestione del ciclo integrato delle acque” (2009) 2 Rivista giuridica dell’ambiente 255–296. M. A. Sandulli, “Il servizio idrico integrato” (2011) 4 federalismi.it. C. Scardaci, Il Testo Unico in materia ambientale e la nuova disciplina sulla gestione delle risorse idriche: prime considerazioni (2007), available at www.giuristiambientali.it. M. Sedlacko and N. Gjoksi, Future Studies in the Governance for Sustainable Development: Overview of Different Tools and Their Contribution to Public Policy Making (ESDN Quarterly report, 2010). M. Taina, “Tariffa per il servizio idrico integrato: principio di corrispettività” (2009) 4 Ambiente e Sviluppo 347–354. L. P. Tronconi and F. Rampulla, “Il modello di amministrazione delle acque” (2005) 5 Rivista giuridica dell’ambiente 755–774. P. Urbani, “Il recepimento della direttiva comunitaria sulle acque (2000/60): profili istituzionali di un nuovo governo delle acque” (2004) 2 Rivista giuridica dell’ambiente 209 et seq. V. Vattani, La riaffermazione dell’ambiente come “valore” costituzionalmente protetto ed una precisazione sugli standard di tutela nazionale: riflessioni sulla definizione delle “materie” e sulla funzione della “leale collaborazione” (2005), available at http://www.associazionedeicostituzionalisti.it. M. Vita, “Il recepimento della direttiva 2000/60 CE in Italia: problematiche e proposte di attuazione” (2006) 3 AmbienteItalia 58 et seq. World Bank, Sustainable Development in a Dynamic World. Transforming Institutions, Growth, and Quality of Life (2003).

WATER MANAGEMENT AND PROTECTION IN THE UK Sarah Hendry1 Introduction As discussed in chapter 7,2 the United Kingdom (UK) is described for the purpose of this work as a “regional State”. It is certainly the case that since 1998 it has over-layered a highly centralised unitary State with different degrees of devolution to (relatively) new Parliaments or Assemblies – the Assembly for Wales,3 Northern Ireland Assembly,4 and the Scottish Parliament.5 The UK is very unusual in that it has no formal written Constitution, although a number of legislative Acts have constitutional import, including those setting up the devolved Assemblies or Parliament; this makes it more difficult to ascertain where responsibility for Government functions may lie. Although the precise allocation of powers, especially executive powers, are different in each of the devolved administrations, the essence is that the constituting legislation reserves key functions to the Westminster (UK) Government. These include taxation, defence and foreign policy, and competition law. Environmental law, water law and transposition of the relevant EU directives, may be devolved. There are however some significant differences between the three devolved regimes. Scotland has the greatest degree of devolved power (and a new Scotland Bill, extending some of these powers, is currently before the Westminster Parliament)6 and this also reflects the historic differences in the settlements between the constituent countries of the British Isles; the Treaty of Union between Scotland and England preserved, inter alia, a separate legal system, private law, church and courts.7 In both

1 Lecturer in Law, IHP-HELP Centre for Water Law, Policy and Science under the auspices of UNESCO, University of Dundee, Dundee, UK. 2 See chapter 7 by C. T. Reid and A. Ross in this volume. 3 Under the Government of Wales Act 1998, c. 38, and further executive powers under the Government of Wales Act 2006, c. 32. 4 Northern Ireland Act 1998, c. 47. 5 Scotland Act 1998, c. 46. 6 Scotland Bill 2010–11, HL Bill 79. 7 Treaty and Act of Union 1707, A.P.S. XI, 406, c. 7.

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Northern Ireland and especially Wales there was much more alignment with the English legal and administrative systems. In Scotland, the separate legal system and especially private law meant that the laws of property and of obligations developed differently, with much more influence from Roman law; insofar as water law had roots in the law of property (and reparation) it also evolved differently.8 This chapter will focus on the arrangements for water management in England and in Scotland, with some reference to Northern Ireland and Wales. It will also focus on more recent developments in water management, and especially the implementation of the EU Water Framework Directive (WFD).9 1. Legislation and Policy in Water Management in the UK 1.1. Historical Development of Water Resources Management In the UK jurisdictions, the general administrative practice is to make use of non-departmental public bodies or “quangos” (quasi-autonomous nongovernmental organisations), which carry out administrative functions on behalf of Government, but are not part of a Ministry or department. These bodies are funded by Government, but have autonomy in terms of their day to day operation, whilst the relevant Minister answers to Parliament for overall policy, and can give guidance, and also Directions which are binding on the organisation. The role and development of the principal environmental agencies (the Environment Agency in England and Wales, the Scottish Environment Protection Agency in Scotland) has been discussed in chapter 7 of this work; these agencies were established in 1995 and have general responsibility for water resources management as well as the other environmental media.10 The Scottish Environment Protection Agency (SEPA) originally had narrower responsibilities specifically for water, as it did not have responsibility for catchment management; in Scotland there was no statutory system for catchment management until the implementation of the WFD. In Northern Ireland, management of the environment, including water resources, remained wholly within Government departments until the most recent round of devolution. Now,

   8 S. Hendry, “Scotland’s Water – Safe Clean Affordable Public” 43 (2003) Natural Resources Journal 491–517.    9 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy (2000) OJ L327/1. 10 Environment Act 1995, c. 25.



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the Northern Ireland Environment Agency is an executive agency within the Department of Environment.11 The principal legislation for water resources, including water quality, water abstraction and catchment planning in England, remains the Environment Act 1995; the EA is the principal regulator, and works with the Department for Environment, Food and Rural Affairs. The implementation of the WFD has taken place through secondary (delegated, Ministerial) legislation. In Scotland, the Environment Act 1995 remains in force, but there has been significant new primary legislation in the implementation of the WFD as well as other aspects of water law, and this reflects a desire to be at the forefront of implementation of the WFD and generally, to have a much more pro-active and forward looking approach to the implementation of environmental and especially water law. The next section of this chapter will examine the principal legislation for the implementation of the WFD in each of the UK jurisdictions. 1.2. Implementing Legislation for Water Management in England and Wales In England and Wales, the Water Resources Act 199112 consolidated the framework for licensing abstractions, impoundments and discharges from and to “controlled waters” as defined in the Act. The Water Resources Act has been amended since, especially by the Water Act 200313 which sought inter alia to introduce new time-limited abstraction licences in place of the “licences of right” under the 1963 Act.14 This legislation all exists independently of the implementation of the WFD. Indeed it is a very curious feature of the English provision that the Water Act 2003 was going through Parliament at the very time when the WFD should have been transposed; yet the Government did not use the legislative opportunity presented to use a primary Act for this. Instead they took the view that the WFD was a separate matter from the reform of national abstraction controls – yet the allocation of water is a fundamental element of the legal regime for the management of the resource. Doubtless this approach reflected the generally minimalist approach of the UK Government to the transposition of EU law, not just in the field of the environment. “Gold plating”, or adding additional commitments, should be avoided, as these will increase the 11 See generally http://www.doeni.gov.uk/niea/water-home.htm. 12 Water Resources Act 1991, c. 57. 13 Water Act 2003, c. 37. 14 Water Resources Act 1963, c. 38.

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regulatory burden and the cost of compliance on both the administration and the regulated sector; therefore implementation should be by secondary (Ministerial) law. Similarly, and not unique to the UK, the transposition, whilst it should be completed in time to avoid any threat of enforcement action, need only be completed by the last possible date. This was certainly the case for the principal English regulations, the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 (the WFD Regulations),15 which were only laid before Parliament on 11 December 2003 and came into force on 2 January 2004. In addition to these, two separate sets of regulations were created for the two river basin districts that cross the boundary between Scotland and England  – the Solway Tweed and Northumbria basins.16 The latter has only some small associated bodies of groundwater in the Scottish parts, but the former is mainly in Scotland for both the Tweed and the Solway catchments, necessitating a cooperative approach towards WFD implementation between the two agencies. This will be examined further below, but it is worth noting that because of the separate development of Scots water law, there have always been interesting legal questions around the management of the cross-border rivers and now, increasingly, their associated land areas. The WFD Regulations define “appropriate authorities”, which are the Secretary of State (for the Department of the Environment, Food and Rural Affairs, DEFRA), the Welsh Assembly, and the Environment Agency. The Regulations provide for the characterisation of the river basin districts (RBDs), the economic analysis required for the Directive’s Article 5 reports, the monitoring network, the protected areas, establishing the environmental objectives and the programmes of measures, and the process for preparing the river basin management plans (RBMPs) including the public participation requirements of Article 14 (for which see further below). The Regulations include a general duty on the appropriate authorities to carry out relevant functions to secure compliance with the Directive,17 and a duty on these agencies and on all public authorities to “have regard to” the plans once approved.18 This is important, but does not go so far as 15 Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003/3242 (WFD Regs). 16 Water Environment (Water Framework Directive) (Northumbria) Regulations 2003, SI 2003/3245, Water Environment (Water Framework Directive) (Solway Tweed) Regulations 2004, SI 2004/99. 17 WFD Regs supra, Reg. 3. 18 Ibidem Reg. 17.



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to give any primacy to the plans in the event of a potential conflict between the RBMPs and other plans, such as a land use or flood management plan. “Public authorities” would include local authorities (Municipalities) as well as conservation bodies and for these purposes “statutory undertakers”, the term used to include private sector providers of essential services, including water supply and sewerage. Although the purpose of this chapter is to consider water (resources) management, the provision of water services (drinking water and sanitation) is linked, and it seems desirable to mention both the legislative framework and the relationship of the service providers to resource management; in the UK public supply is a major sectoral user of water, necessitating a high degree of control of both abstractions and discharges. In England the EA undertakes this regulation as it does for all other users of the resource. In addition the water companies have duties to prepare water resources plans and drought plans.19 The economic regulation of the industry is carried out by the Water Services Regulation Authority (better known as OFWAT)20 whilst drinking water standards are maintained by a separate regulator.21 The Secretary of State (for the environment, through the Department of Environment Food and Rural Affairs) meantime sets overall policy objectives, by issuing guidance22 and binding Directions to the regulator.23 The requirements of the policy framework are then imposed on the providers through their licence conditions and the five yearly price review,24 and there are extensive powers to enforce this regime.25 We do note that in Wales, which comes within the same legislative regime for water services, the principal provider of services is not now a public limited company but a company limited by guarantee.26 This may reflect a different socio-economic and political environment. Later in this chapter there is some discussion of the most recent devolutionary changes in Wales which may in future lead to variance in terms of the delivery of water services as well as water resources. But with regard to the latter, in 19 Water Industry Act 1991, c. 56 (WIA), s. 36A-D, 39A, B. 20 Water Industry Act 1991, Water Act 2003. 21 The Drinking Water Inspectorate; WIA supra, s. 86. 22 For guidance on social and environmental objectives, WIA supra, s. 2A. 23 For Directions in the interests of customers, WIA supra, s. 27. 24 See generally http://www.ofwat.gov.uk/. 25 WIA supra, Ch. 2. 26 See  generally  http://www.dwrcymru.com/eng/company_information/index.asp. Compa­nies limited by guarantee have no shareholders and all profits are retained under the Companies Act 2006, c. 46.

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England and Wales the UK Government has taken a traditionally restrictive approach to implementation, not going beyond the requirements of the WFD in any way and not transposing earlier than the deadline for compliance. A very different approach was taken in Scotland. 1.3. Implementing Legislation for Water Management in Scotland In Scotland, the new Parliament was keen to establish itself as both proenvironment and pro-European, and the WFD was an early opportunity to take forward these twin agendas. In addition, the pre-existing water resources legislation was badly in need of reform; the shortage of time for Scottish legislation at Westminster had meant that many areas of Scots law had not received the legislative attention they required, and these included both water resources and water services law.27 Since devolution, Scotland has seen two major Parliamentary inquiries and four primary Acts dealing with water. The Water Industry (Scotland) Act 2002 established the current water and sewerage services provider.28 The Water Services (Scotland) Act 2005 then revised the system for economic regulation of the industry and enabled some limited competition in retail services in the non-domestic sector.29 In between, and most relevant to this chapter, was the passage of the Water Environment and Water Services (Scotland) Act 2003 (WEWS);30 most recently was the Flood Risk Management (Scotland Act 2009).31 Thus the Parliament has been keen to devote time to this critical natural resource. Indeed, just prior to the most recent elections in Scotland, the then minority (now majority) Nationalist administration produced a paper on building a “Hydro-Nation”, as further evidence of its interest in water management as a devolved policy area.32 Water contributes to the Scottish economy in many different ways, including forming part of the natural resources that support tourism; as a key input to fisheries, whisky and other agricultural and food produce; and within water services, as a major source of investment for the construction industry. Furthermore, in Scotland, there is a single public sector provider for almost all water and sewerage services, Scottish Water, set up in 2002 and with economic regulation through the Water Industry Commission 27 S. Hendry, “Scotland’s Water – Safe Clean Affordable Public” supra. 28 Water Industry (Scotland) Act 2002, asp. 3. 29 Water Services (Scotland) Act 2005, asp. 3. 30 Water Environment and Water Services (Scotland) Act 2003, asp. 3 (WEWS). 31 Flood Risk Management (Scotland) Act 2009, asp. 6. 32 Scottish Government, Building a Hydro-Nation: A Consultation (2010), available at http://www.scotland.gov.uk/Publications/2010/12/14111932/0.



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for Scotland.33 Scottish Water is a public corporation but regulated using a similar model to the English water and sewerage companies, and has its efficiency and effectiveness benchmarked against those providers. The experience here is that it is the regulation, not the ownership of the assets, which is important.34 The WEWS Act provides for several things, including the basic elements of WFD implementation that are also found in the English regulations, but goes beyond those regulations and indeed beyond the requirements of the WFD. Especially, WEWS introduces a new system for management of water pollution as part of an integrated licensing regime for all uses of the water environment – abstractions, impoundments, discharges and water works, collectively the “controlled activities”.35 This licensing regime was then implemented through separate regulations, the Water Environment (Controlled Activities) (Scotland) Regulations.36 The previous system for authorising discharges was under the Control of Pollution Act 1974, as much amended; but there was no comprehensive system for authorising abstractions, nor impoundments, and there was no statutory system for river basin or catchment management. Thus Scotland began the WFD process from a low base, but with great enthusiasm, although concerns were voiced in Parliament as to the desirability of going beyond the Directive requirements.37 In addition to the general revision of pollution control and water use licensing, other elements of “gold-plating” included maintaining a 3 mile coastal limit for land based pollution control rather than the 1 mile provided for by the Directive; making sub-basin plans mandatory rather than optional; and including wetlands in the definition of “water environment”, thus ensuring that all water uses in wetlands would be controlled as for any other body of water. None of these provisions were found in the English regulations; this lead to certain anomalies, for example that national control regimes in England for coastal discharges continue to use a three mile limit, whereas purely WFD requirements such as abstraction 33 Water Industry (Scotland) Act supra; Water Services (Scotland) Act supra. 34 S. Hendry, “Ownership Models for Water Services: Implications for Regulation” in A. McHarg et al. (eds.), Property Rights in Energy and Natural Resources Law (Oxford, Oxford University Press - OUP, 2010). 35 WEWS supra, s. 20. 36 These were originally made in 2005, and have recently been revised; Water Environment (Controlled Activities) (Scotland) Regulations 2011, SSI 2011/209. 37 See Transport and Environment Committee of the Scottish Parliament, Annex A Report from the Finance Committee (2002), available at http://www.scottish.parliament.uk/ business/committees/historic/x-transport/reports-02/trr02–16-02.htm#annexa2.

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of coastal water, or assessing ecological quality of coastal water apply only to the 1 mile limit. As well as these specific provisions, there are duties not found elsewhere in the UK on both SEPA and the other responsible authorities, including a duty of coordination,38 a sustainable development duty,39 and a duty to have regard to the river basin plans when exercising other functions.40 1.4. Implementing Legislation for Water Management in Northern Ireland In Northern Ireland, as noted, the legal system is essentially English law, though before the recent devolution there were very particular administrative arrangements, partly as a response to the internal “Troubles” between the protestant unionist and catholic nationalist communities. Only relatively recently have services and functions been delivered by executive agencies rather than by departments themselves, and often both legal and administrative reforms have been delayed or neglected. Recently however a separate Government Owned Company has been established, Northern Ireland Water, to deliver water and sewerage services.41 Similar regulatory models now exist to other parts of the UK, with water resources (abstraction and discharges) being controlled by the Northern Ireland Environment Agency (NIEA), a separate executive agency, and a Drinking Water Inspectorate, both within the Department of the Environment. Northern Ireland has a multi-utility regulator which sets tariffs, similarly to both OFWAT and the Water Industry Commission for Scotland, for all the regulated services;42 it is hoped that this may bring similar improvements in efficiency and effectiveness seen in Scotland. In terms of water resources there have also been changes recently, especially in terms of the WFD. Northern Ireland contains the only truly international river basins in the UK, crossing the border with the Republic of Ireland, and this has necessitated the creation of international river basin districts (IRBDs) with appropriate governance frameworks for their management and for stakeholder input. As in other parts of the UK, the Government department has responsibility for overall policy, whilst

38 WEWS supra, s. 2(4). 39 Ibidem s. 2(4). 40 Ibidem s. 16. 41 See generally http://www.niwater.com/. 42 The duties of the undertaker, and the regulatory frameworks for prices and drinking water quality, are contained in the Water and Sewerage Services (Northern Ireland) Order 2006, SI 2006/3336 (NI 21).



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monitoring and licensing is carried out through the NIEA.43 The NIEA also takes the lead on river basin planning and liaison with the Republic of Ireland. The implementing legislation for the WFD is, as in England and Wales, in secondary regulation,44 and of the four river basin districts, three are IBRDS.45 Thus the stakeholder, governance and participation arrangements are especially important in NI. 1.5. Technical Standards and Classifications Although the UK administration has devolved responsibilities for the environment, water and implementing EU legislation, nonetheless a centralised approach has been taken to the development of the detailed typologies, technical standards, conditions and limits for water quality under the WFD. The UK Technical Advisory Group (UKTAG) has developed these for use by all the regulators and all the river basin districts within the UK.46 UKTAG has also developed a system for classification of the results of the various assessments (chemical, physico-chemical, flow, morphology, biology, and groundwater) and their aggregation, to produce the overall class for each waterbody assessed for the WFD. Thus at the most detailed level of what is actually meant by “good ecological water quality”, there is relatively little flexibility or autonomy for the different jurisdictions. It is possible to have some variation, for example groundwater threshold values are set for each river basin district and there are some different typologies for lochs (lakes) in Scotland, but in general the technical standards are the same. In addition, the highly technical nature of these assessments and their aggregation means that the principle of public participation, core to a governance agenda, becomes very difficult to achieve. This may be an inevitable result of the complex science required to implement the WFD. However, what is not inevitable are the methods chosen to apply these technical standards across the UK. In both England and Wales and Scotland, the respective Governments chose to use Directions, issued by

43 Abstractions and impoundments are authorised under the Water Abstraction and Impoundment (Licensing) Regulations (Northern Ireland) 2006, SRNI 2006/482, and discharges under the Water (Northern Ireland) Order 1999, SI 1999/662 (NI 6). 44 Water Environment (Water Framework Directive) (Northern Ireland) Regulations 2003, SRNI 2003/544 (WFD NI Regs). 45 “Neagh Bann”, “North Western” and “Shannon” are IBRDs; ibidem Reg. 4. 46 See generally http://www.wfduk.org/.

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the relevant Ministers against the relevant agencies.47 In Northern Ireland alone, a regulation was used to implement the technical standards and impose the classification system.48 This is of interest as a regulation, by its nature, is publicly promulgated and easily accessible through the official Government site for legislation; directions do not have the same formal legislative process (though there is mandatory consultation on the drafts) and are only available through the departmental websites. For matters of such importance to water users, where the content of the directions will be used to modify water use consents by the agencies, regulation would seem a more appropriate format. Alternatively, if the view is taken that the rules are imposed on the agencies not the users and hence a direction is appropriate, this is not the approach taken in Northern Ireland. 2. River Basin Planning and Participation in Practice: Fulfilling a Governance Agenda The second part of this chapter will examine governance in water management in the UK through the lens of the mechanisms for river basin planning in the UK. 2.1 England and Wales In England, if less so in Wales, there is a very high population density and a widespread legacy of industrial pollution. Thus the State of the resource is less good and it is harder to engage stakeholders; this can only be exacerbated by the minimalist approach taken to implementation of the WFD. In England and Wales there are 11 RBDs; one wholly in Wales, three

47 River Basin Districts Surface Water and Groundwater Classification (Water Framework Directive) (England and Wales) Direction 2009; The River Basin Districts Typology, Standards and Groundwater Threshold Values (Water Framework Directive) (England and Wales) Directions 2009; Scotland River Basin District (Classification of Water Bodies) Directions 2009; Solway Tweed River Basin District (Classification of Water Bodies) Directions 2009; Scotland River Basin District (Surface Water Typology, Environmental Standards, Condition Limits and Groundwater Threshold Values) Directions 2009; Solway Tweed River Basin District (Surface Water Typology, Environmental Standards, Condition Limits and Groundwater Threshold Values) Directions 2009. The powers to make Directions are exercised under s. 40 of the Environment Act 1995, by the Secretary of State and the Welsh Ministers towards the Environment Agency, and by the Scottish Ministers towards SEPA. 48 The Water Framework Directive (Priority Substances and Classification) Regulations (Northern Ireland) 2011, SRNI 2011/10.



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crossing the border into Wales, and two crossing the border into Scotland.49 The boundaries have some correspondence to the regional organisation of the Environment Agency, which is responsible for leading the river basin planning process; there are eight Regions, including Wales. For public administrative purposes, although the “Environment Agency Wales” is part of the Environment Agency, the Welsh EA also has a special status under the Welsh devolution legislation as an Assembly Government Sponsored Body, receiving some funding from the Welsh Assembly.50 Under the Government of Wales Act 2006, the Welsh Assembly can now legislate through “Assembly measures” on specified devolved topics which include the environment;51 though much environmental law still applies uniformly in England and Wales, an Order enabling this area of competence has been passed, focusing on waste, nuisance and pollution, and it is possible that there will be divergence in these policy areas in the future.52 The Order includes pollution, and therefore potentially water pollution; it also amends the 2006 Act to allow for regulation of water undertakers, and licensed water suppliers, whose area of activity is wholly or mainly in Wales. However, the Order does not extend to water resource management and therefore the same regulations continue to apply for implementing the WFD in Wales. Further, as only one RBD is wholly in Wales, the other three will continue to be managed through an English led system. It is likely that as well as coordination through the EA, the Welsh Assembly Government department responsible for the environment will liaise very closely with DEFRA, as indeed is the case in Scotland. In the English and Welsh basins, as in Scotland, the Agency leads on the production of the RBMPs and other WFD documentation; the Secretary of  State and the Welsh Ministers approve the river basin management plans and may require amendments to the same. There are measures in the WFD regulations to ensure that the principal interest groups are represented, including the water and sewerage providers and regulator,  local authorities, conservation bodies, fisheries bodies, ports and harbour authorities, water users and environmental groups, as well as the

49 For a map, and links to the webpages of each of the RBDs, see http://www .environment-agency.gov.uk/research/planning/33106.aspx. 50 See http://wales.gov.uk/topics/environmentcountryside/epq/environmentagencyre mit/?lang=en. 51 Government of Wales Act 2006, s. 94 and Sch. 5. 52 National Assembly for Wales (Legislative Competence) (Environment) Order 248/2010.

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requirements for the consultation timetable on key documents.53 This reflects the rather scant provision in Article 14 of the WFD, whereby “interested parties” should have an active role in planning, whilst “the public” should be consulted on key documents with a specified timescale. In England and Wales, the Environment Agency publishes the RBMPs and supporting documents, with links to a separate site for each RBD.54 A large volume of information is generated by the planning process, and this is easily accessible, so there is transparency and information flow, but the data is not always easy to follow, making active participation, or even response to consultation, difficult for all but the best resourced water users and interest groups. In all the UK jurisdictions there is a requirement to consider all representations made on the draft RBMP and other key documents, and then a requirement to produce, along with the final Plan, a statement of how those representations were met.55 These are very useful documents and evidence of good practice in terms of transparency and also accountability, as those commenting can see how the agency responded. More use could be made of such a mechanism in other areas of environmental law where consultation is provided for. In terms of the production of the Plans, there is a National Liaison Panel for England and members of the public may attend its meetings, by request to the Chair; this has 20 members drawn from the constituencies identified in the WFD regulations.56 Each RBD then has a district-level Liaison Panel which enables inputs from the key stakeholders in the area, with a similar number of representatives. But given the scale, at least in England, with perhaps 6m people in a District, it is very difficult for these to connect to catchment or water user level. In Wales, there is a National Stakeholder Group, though it is difficult to access much information about this; there do not appear to be any specialities regarding the wholly Welsh basin. In England, the “headline” figures for the WFD do not make positive reading. Even in Wales, which has a relatively low population density and is less highly urbanised, only 38% of water bodies will be at “good” quality by 2015. In Anglia, where there are very serious resource pressures, the 53 WFD Regs supra, Reg. 12. 54 See footnote No. 49. 55 WFD Regs supra, Regs. 12, 13; and see e.g. for the Anglia RBD, Environment Agency (Anglia RBD), River Basin Management Plan Annex L: Consultation and Engagement (2009),  available at http://publications.environment-agency.gov.uk/PDF/GEAN0910BSPY -E-E.pdf; Consultation Response Document (2009), available at http://wfdconsultation .environment-agency.gov.uk/wfdcms/en/anglian/Intro.aspx. 56 See http://www.environment-agency.gov.uk/research/planning/33114.aspx.



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figure is only 22%. This has led to concerns from NGOs that the Government and the EA are not complying with the spirit of the WFD, and at one stage there was a potential judicial review against the Secretary of State, by the Angling Trust and the World Wildlife Fund.57 However this was subsequently withdrawn; apparently in return, inter alia, for DEFRA agreeing to set up 10 “pilot catchments” which will operate at lower scale, provide more detailed quality and quality analysis, and include measures to tackle breaches of legislation.58 These will feed into the second round of RBMPs, and seem to recognise the difficulties of enabling participation at such a large population scale. In addition more funding has been announced for river restoration work, and this is in addition to the existing “demonstration test catchments” where research will continue on agricultural land use impacts on water.59 2.2. Scotland In Scotland, the Scottish Ministers exercise the functions held in England by the Secretary of State, including issuing guidance and directions under WEWS and the Environment Act, and approving the RBMPs. The Ministers established a National Stakeholder Forum, which gives advice at national level,60 whilst SEPA has a National Advisory Group, principally for the Scotland RBD, but also relevant to the Solway Tweed.61 The primary legislation provides the list of “interested parties” as well as the WFD consultation timetable;62 the key stakeholders again include local authorities, water services providers, fisheries and farming interests, conservation bodies, industrial users and environmental groups. However there are other differences in the implementation in Scotland deriving from the more extensive primary legislation.

57 See Angling Trust, Government in the Dock (2010), available at http://anglingtrust.net/ news.asp? section=29&from=2010/3/01&to=2010/04/01&itemid=524. 58 See Angling Trust, Campaigners Halt Judicial Review, available at http://www .anglingtrust.net/news. asp?section=29&itemid=758; DEFRA, Statement of Position on RBPs: Updating River Basin Planning Guidance (2011), available at http://euwfd.co.uk/ SH110322_DEFRA_Statement_of_Position_on_RBP.pdf. 59 Living With Environmental Change (Part of the UK Research Funding Councils), Dem­ onstration Test Catchments, available at http://www.lwec.org.uk/activities/demonstration -test-catchments. 60 See http://www.scotland.gov.uk/Topics/Environment/Water/15561/WFD/WhoDoes What/NationalStakeholder Forum. 61 See http://www.sepa.org.uk/water/river_basin_planning/national_advisory_group.aspx. 62 WEWS supra, s. 11.

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As there is one principal Scotland District RBD for most of Scotland, and even the Solway Tweed RBD covers an extensive geographic area, the WEWS Act made it compulsory for SEPA to produce sub-basin plans.63 These sub-basin plans cover eight catchments in the Scotland RBD and two in the Solway-Tweed. For each of these sub-basins there is an Area Advisory Group (AAG), representing the main groups, and also an Area Advisory Group Forum to enable wider public and community interests to have a voice. Following the consultation on the draft RBMPs, SEPA produced a specific document showing how they had taken the responses into account in the final Plan.64 The Scottish Government itself had responded, to say that SEPA’s proposals for achieving continued improvements the second and third river basin plans, in 2021 and 2027, were lacking in ambition, and setting out the various tools and measures available to SEPA to do better. As a consequence, whereas the draft plan suggested that, from a baseline of 60% in 2007, by 2027 76% of Scottish waters would reach “good” quality or better, in the final plan it is proposed that the figure for 2027 would be 97%. Scotland has a small population, concentrated in the central belt, with a large rural hinterland and a generally good quality water environment; the main pressures are diffuse pollution and morphological changes. The situation in the much more densely populated England is perhaps more indicative of the reality for many Northern European countries. Nonetheless this is evidence of the wish of the Scottish Government to make good and continued progress and set ambitious goals for the regulators. Also important, though also affected by Scotland’s demography, is the relatively accessible nature of the WFD process. The AAGs operate at a scale which does allow some engagement by relatively local groups and interests. In a small research project examining the WFD processes in several catchments across the UK, it was only in Scotland that there was any evidence of awareness of the WFD and specifically the mechanisms for engagement developed by the agencies.65 The scale of the RBDs and the 63 WEWS supra, s. 15. 64 SEPA, The River Basin Management Plan for the Scotland River Basin District: Summary of responses to the draft plan consultation and The River Basin Management Plan for the Solway Tweed River Basin District: Summary of responses to the draft plan consulta­ tion  (2009), available at http://www.sepa.org.uk/water/river_basin_planning/early_basin _planning_work.aspx. 65 S. Hendry and M. Bonell, Developing Networks amongst UK River Basins: Interfacing Science with Emerging Law and Policy Frameworks (University of Dundee, IHP-HELP Centre for Water Law, Policy and Science, 2010).



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size of the liaison groups in England seems to have made it infeasible for even those professionally involved in catchment management to engage in that process. 2.3. The Solway Tweed In terms of the cross-border basins between Scotland and England, the Solway tweed presents special governance issues. Two different legal systems apply two different sets of rules on either side of this border, but as an internal border it is not an International RBD under the WFD. Both Governments issue guidance and directions to their respective agencies, and the different planning and participation mechanisms of each jurisdiction apply on either side of the border. At operational level, the staff in SEPA liaise regularly and informally with colleagues in the EA, as is also the case across the Government departments, but this is especially important on the Solway Tweed and here there is also some formal guidance, issued separately by the Scottish Ministers and the Secretary of State but identical in content and addressed to both agencies.66 It includes a whole section on “coordinated” vis-à-vis “integrated” working. The former involves cooperation and liaison, data exchanges etc., but taking account of the different jurisdictions’ processes; the latter is much more of a holistic approach and will require common processes and procedures. As we move into the second RBMP cycle, the guidance states that more functions will require an integrated approach than in the first iteration. However the legislative differences between the two countries in terms of abstraction controls, water licences, land use planning etc. will all remain, so this will be a fruitful area of governance research. The RBMP is jointly produced by both agencies and approved by both sets of Ministers, but published by SEPA.67 The public participation model is that used by SEPA, but we note here the role of the Tweed Forum.68 The Forum is an NGO which has led non-statutory catchment planning initiatives in the Tweed since prior to the WFD and indeed devolution. It works at a local level, 66 Scottish Government, River Basin Management Planning in the Solway Tweed River Basin District: Guidance (2007), available at http://www.scotland.gov.uk/Publications/2007/ 12/05141702/0 and DEFRA, River Basin Management Planning in the Solway Tweed River Basin District: Guidance (2007), available at http://archive.defra.gov.uk/environment/ quality/water/wfd/documents/solway-tweed-guidance.pdf. 67 See http://www.sepa.org.uk/water/river_basin_planning.aspx for the final Plan and all related documents. 68 See http://www.tweedforum.org/ for information about the Forum and its Catchment Plan for the Tweed.

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driven by the needs of its stakeholders who are water users and land managers; it is now working with SEPA to help deliver the WFD objectives and taking a leading role in the AAG for the Tweed basin. 2.4. Northern Ireland Three of the four river basin districts in Northern Ireland cross the border with the Republic of Ireland, and hence are international river basin districts for WFD purposes;69 for example, the Neagh Bann river basin district. As noted, responsibility for leading the WFD process lies with the NI Environment Agency within the Department of the Environment, but in common with other parts of the UK, other public bodies also have responsibilities under the regulations, including local authorities and the statutory undertakers (especially the water services provider), and other Government departments.70 Again there is a list of the interested parties to be considered, and the WFD consultation timetable for the key documents,71 and there is special provision for the International RBDs, including the production of a joint RBMP, and coordination with the RoI.72 Again as with the other jurisdictions, the final plans are approved by the Department; as in England and wales, there is no evidence of “gold plating” in Northern Ireland. As in Scotland, there is a National Stakeholder Forum,73 and there are nine Catchment Stakeholder Groups.74 These have representatives from Government Departments/Agencies, angling groups, NGOs, landowners, and members of the public, to provide input to local water management issues.75 The Terms of Reference suggest that it is relatively easy to engage with these groups, as long as stakeholders are aware of the process; that may not always be the case.76 In the RoI, river basin planning is the responsibility of the Environmental Protection Agency, the Department of the Environment, Heritage and Local Government, and the relevant local authorities. Regulations establish the system for planning and the responsibilities of the different 69 WFD supra, Art. 13. 70 NI WFD Regs supra, Reg. 2. 71 Ibidem Reg. 13. 72 Ibidem Reg. 14. 73 See http://www.doeni.gov.uk/niea/water-home/wfd/public_partic_3.htm. 74 See http://www.doeni.gov.uk/niea/water-home/wfd/public_partic_3/catchment _stakeholder_groups.htm. 75 NIEA, Catchment Stakeholder Groups Terms of Reference (2008), available at http:// www.doeni.gov.uk/niea/csg_terms_of_reference_rev_sept_2008.pdf. 76 S. Hendry and M. Bonell, Developing Networks amongst UK River Basins: Interfacing Science with Emerging Law and Policy Frameworks supra.



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authorities, as well as providing for RBD Advisory Councils.77 There is more detail on the latter in later regulations including the specification of the interested parties; notably in RoI these include academic, research or professional interests.78 The County councils play an important role in these groups, with less indication that individual members of the public have many opportunities for participation beyond comment. Most relevant to the evolving body politic and public administration in Northern Ireland, and hence the UK, is the provision for cross-border collaboration. There was a consultation in 2003,79 and then a management document produced by all the relevant authorities, including local authorities especially in the Republic, which concentrates on the cross-border waters.80 Thus the WFD itself can be seen as an instrument promoting change and cooperation in a traditionally very difficult political and social context in Northern Ireland, within a broader movement for reform within the devolution settlement. Yet whilst the general framework for implementation allows for differing stakeholder mechanisms, and the crossborder cooperation, the basic mechanisms are very similar to that for England and Wales, and the technical standards are applied uniformly through the work of UKTAG, albeit in a different type of legislative instrument. 3. Institutional Relationships and the Role of the Courts Chapter 781 of this book looked at the developments in environmental protection across the UK, and noted that whilst devolution has not seen significant policy divergence, this may still entail as part of a gradual process. It did identify the traditionally more restrictive approach of the Scottish courts to environmental judicial review. In terms of water management, with particular reference to the relationship between Scotland and England, devolution has not appeared to 77 Water Policy Regulations, SI 722 of 2003 (RoI). 78 Ibidem SI 413 of 2005 (RoI), Reg. 3(6). 79 Department of the Environment and Local Government (RoI), Northern Ireland Office, Managing Our Shared Waters: A Joint North/South Consultation Paper on International River Basin Districts and Administrative Arrangements for Implementation of the EC Water Framework Directive (2000/60/EC) (2003), available at http://www.wfdireland .net/Documents/Reports/Managing%20Our%20Shared%20Waters.pdf. 80 NIEA, Working Together - Managing Our Shared Waters: The Neagh Bann IBRD (2009), available at http://www.doeni.gov.uk/niea/water-home/wfd/neagh_bann_rbp.htm. 81 See chapter 7 by C. T. Reid and A. Ross in this volume.

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either increase or minimise institutional conflicts. In part this is likely to be because water law, more than other aspects of environmental law, already had a significant degree of separate management. It is possible that without devolution, the minimalist approach preferred by the UK Government to the implementation of the WFD would have caused some concerns in Scotland, but this must be speculation; it seems unlikely that it would have seen the sort of campaigning that happened in the 1990s in relation to water services reform, in the context of a Government in London with no political support in Scotland at all.82 Currently, with a Conservative – LibDem coalition in the UK and a Nationalist administration in Scotland, and a changing devolution settlement, the political climate is so radically different from past experience that it is difficult to draw any conclusions or make any predictions in any specific policy area. What can be noted is the likelihood that the Scottish administration will continue to seek to make political capital in terms of management of natural resources, adapting arguments honed in relation to North Sea oil in the 1970s to both water and renewable energy.83 Yet these debates are the sphere of politics, not the law. The institutions on either side of the border – especially the environmental regulators – continue as before to liaise over their day to day activities. It must also be remembered that although Scotland may be a mixed jurisdiction, with roots in the civil as well as the common law, in the absence of a written Constitution, no part of the UK has a constitutional  court capable of adjudicating on the allocation of powers or responsibilities of public authorities in general. In terms of the powers of the senior courts, in general, the criminal courts of Scotland (the Sheriff Court, and the High Court of Justiciary) are not subject to appeal to any UK court. From the civil courts (the Sheriff Court and the Court of Session) there may be a further appeal to the UK Supreme Court, which will then apply Scots civil law. The UK Supreme Court does have a constitutional role in certain matters under the Scotland Act, including situations where the Lord Advocate (the senior law officer) has not acted to rectify a breach of a Convention right under the European Convention on Human Rights. In this way, criminal law matters may find their way from the High Court 82 See, for the 1990s campaign against privatisation, S. Hendry, “Scotland’s Water – Safe Clean Affordable Public” supra. 83 See, e.g., Scottish Government, Building a Hydro-Nation: A Consultation supra and also proposals for transfer of renewable energy income to the Crown Estates from London to Scotland; Scottish Government, Proposals for Devolution of Scotland’s Crown Estate (2011), available at http://www.scotland.gov.uk /Publications/2011/07/01085059/0.



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to the Supreme Court and this is causing certain political difficulties. However, although it is possible that these may conflate with environmental questions, the general issues raised are to do with breaches of Articles 5 and 6, deprivation of liberty and right to a fair trial. This is a complex area of law and not one that can be explored in this chapter. Further, due to the absence of a cheap and easily accessible system of administrative review, it is relatively rare for civil environmental disputes in Scotland to reach the courts, and most case law relating to water are criminal prosecutions for pollution, and most of these will be heard in the lower courts and will not be reported. Prior to 2005, the terms of the relevant offences were broadly similar in Scotland as in England and Wales, and when a relevant appeal did find its way to the High Court as Appellate Court it was happy to follow, as persuasive, the approach taken by the then House of Lords.84 Whilst no rule of any kind was ever established or recognised, this had the benefit of ensuring consistency across the jurisdictions. Naturally, a divergent legal regime post-devolution my affect this approach, but equally, the decisions (where relevant) of the Supreme Court will continue to be persuasive in Scotland. In addition, wider arenas, such as the European Court of Justice and the European Court of Human Rights, will continue to frame the discourse of the Scottish courts as European systems have since the middle ages, regardless of the political or constitutional changes within the UK. 4. Conclusions The decade since devolution has seen many changes in the UK jurisdictions. England remains a dominant force in many ways, but the changes have been greatest elsewhere. In Northern Ireland, this period has also seen a political revolution with the end of the “Troubles” and the introduction of a cooperative coalition between parties whose supporters, previously, were in a state of violent conflict. In Wales, the most integrated and least independent of the constituent countries within the UK, under the most recent Wales Act there has been the beginnings of political and legislative autonomy, separate from a purely English model of law and administration, for the first time for many centuries. In Scotland, although the Treaty of Union had preserved a different legal system and allowed the development of different rules for water, devolution has enabled a far 84 Lockhart v. National Coal Board, (1981) SLT 161.

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greater degree of divergence, not only in the detailed content but also in the prevailing philosophy, producing law and policy beyond the requirements of the WFD. Although Scotland had a separate system, the effects of the unitary State and the lack of Parliamentary time for Scottish measures would have made it most unlikely that similar reforms could have been enacted without devolution. The delivery models and regulatory mechanisms for both water resources and water services are very similar across the UK jurisdictions, utilising non-departmental bodies and executive agencies as regulators and sometimes as providers – what might be called a British (or AngloAmerican) model of public administration. These models have remained post-devolution and indeed have been more widely used, especially in Northern Ireland. In terms of the participation required by a governance agenda, the smaller size and lower population of the non-English jurisdictions should make it easier to develop mechanisms for effective participation in water management and especially river basin planning. In Scotland especially it is the legislative requirement for sub-basin planning, and then the Area Advisory Groups within these sub-basins, that have made it possible to achieve more engagement “on the ground” with local water users. Whilst there has not been extensive case law in any of the jurisdictions, other than the threatened judicial review in England, the administrative and policy changes brought by devolution have themselves contributed to greater participation and better governance in water management in the devolved Regions, and this is a trend that is likely to continue in the future. In terms of transparency and information flow, there is a huge amount of information available, especially through the agencies; sometimes it is harder to find information from the relevant departments. Information is freely available online and there are many opportunities for the public to comment on proposals, both policy and legislation. It is less clear that there are adequate opportunities for active involvement in the decisionmaking process beyond the interest groups identified in the regulations; in England especially there are issues of scale. There is a high degree of coherence across the RBDs in England and Wales in terms of the format and content of the various documents, facilitated by the lead from the EA; in Scotland and Northern Ireland there are close working relationships at departmental and agency level with colleagues in England, but certainly in Scotland, SEPA does function separately, necessitating special arrangements for the Solway Tweed. Nonetheless there is still a degree of coherence through the “British model” for administration and regulation. In



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addition, at the most detailed and technical level there is a very high degree of coherence and central control through the technical standards developed by UKTAG. It is harder to be certain that there are adequate mechanisms for holding decision-maker s to account. Although the threatened judicial review does seem to have been effective, judicial review is expensive and uncertain in England and the other UK jurisdictions. The requirement to show how consultations responses have been considered is one useful and important mechanism here, but not a direct consequence of devolution. Overall, it is suggested that the political and legislative process of devolution itself has enabled different approaches to managing water and that water is a good example of the increased autonomy and divergence of the constituent parts of the UK. Where there are gaps or deficiencies in governance these may be a feature of the prevailing administrative models, but are most acute in England where the scale makes it important to seek ways of engaging stakeholders at a more appropriate level.

Bibliography Anglia RBD, Environment Agency, River Basin Management Plan Annex L: Consultation and Engagement (2009), available at http://publications.environment-agency.gov.uk/PDF/ GEAN0910BSPY-E-E.pdf. Anglia RBD, Environment Agency, Consultation Response Document (2009), available at http://wfdconsultation.environment-agency.gov.uk/wfdcms/en/anglian/Intro.aspx. Angling Trust, Government in the Dock (2010), available at http://anglingtrust.net/news .asp? section=29&from=2010/3/01&to=2010/04/01&itemid=524. DEFRA, River Basin Management Planning in the Solway Tweed River Basin District: Guidance (2007), available at http://archive.defra.gov.uk/environment/quality/water/ wfd/documents/solway-tweed-guidance.pdf. DEFRA, Statement of Position on RBPs: Updating River Basin Planning Guidance (2011), available at http://euwfd.co.uk/SH110322_DEFRA_Statement_of_Position_on_RBP.pdf. Department of the Environment and Local Government (RoI), Northern Ireland Office, Managing Our Shared Waters: A Joint North/South Consultation Paper on International River Basin Districts and Administrative Arrangements for Implementation of the EC Water Framework Directive (2000/60/EC) (2003), available at http://www.wfdireland.net/ Documents/Reports/Managing%20Our%20Shared%20Waters.pdf. S. Hendry and M. Bonell, Developing Networks amongst UK River Basins: Interfacing Science with Emerging Law and Policy Frameworks (University of Dundee, IHP-HELP Centre for Water Law, Policy and Science, 2010). S. Hendry, “Ownership Models for Water Services: Implications for Regulation” in A. McHarg et al. (eds.), Property Rights in Energy and Natural Resources Law (Oxford, Oxford University Press - OUP, 2010). S. Hendry, “Scotland’s Water – Safe Clean Affordable Public” (2003) 43 Natural Resources Journal 491–517. NIEA, Working Together - Managing Our Shared Waters: The Neagh Bann IBRD (2009), available at http://www.doeni.gov.uk/niea/water-home/wfd/neagh_bann_rbp.htm.

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Scottish Government, River Basin Management Planning in the Solway Tweed River Basin District: Guidance (2007), available at http://www.scotland.gov.uk/Publications/2007/ 12/05141702/0. Scottish Government, Scotland River Basin District (Classification of Water Bodies) Directions 2009 (2009). Scottish Government, Solway Tweed River Basin District (Classification of Water Bodies) Directions 2009 (2009). Scottish Government, Scotland River Basin District (Surface Water Typology, Environmental Standards, Condition Limits and Groundwater Threshold Values) Directions 2009 (2009). Scottish Government, Solway Tweed River Basin District (Surface Water Typology, Environmental Standards, Condition Limits and Groundwater Threshold Values) Directions 2009 (2009). Scottish Government, Building a Hydro-Nation: A Consultation (2010), available at http:// www.scotland.gov.uk/Publications/2010/12/14111932/0. Scottish Government, Proposals for Devolution of Scotland’s Crown Estate (2011), available at http://www.scotland.gov.uk/Publications/2011/07/01085059/0. SEPA, The River Basin Management Plan for the Scotland River Basin District: Summary of Responses to the Draft Plan Consultation (2009), available at http://www.sepa.org.uk/ water/river_basin_planning/early_basin_planning_work.aspx. SEPA, The River Basin Management Plan for the Solway Tweed River Basin District: Summary of Responses to the Draft Plan Consultation (2009), available at http://www.sepa.org.uk/ water/river_basin_planning/early_basin_planning_work.aspx. Transport and Environment Committee of the Scottish Parliament, Annex A Report from the Finance Committee (2002), available at http://www.scottish.parliament.uk/business/ committees/historic/x-transport/reports-02/trr02–16-02.htm#annexa2.

PART II D: (REALLY) UNITARY MODELS?

WATER MANAGEMENT AND PROTECTION IN FRANCE Armelle Gouritin1 Introduction Water resources’ management and protection is particularly crucial in France for several reasons. A first set of factors is shared with other countries. For example, climate change is believed to have a causal link with floods and droughts.2 A second set of factors is specific to France. To name a few, France is the second country at the EU level considering the area of coastal Regions in km 23 with around 5,500 kilometres of coasts and around 160,000 kilometres of watercourses.4 In addition, intensive agriculture and farming activities are run on substantial areas of the French territory. These activities enable France to be the first country in the EU in terms of agriculture production,5 but also cause the country to face severe pollution related to them.6 All together, these factors pose challenges in terms of water scarcity, quality and use.7 Is the French institutional setting able to address these challenges? Do the actors have the accurate tools or means to provide accurate answers 1 Researcher in Environment and Sustainable Development, Institute for European Studies, and Associate Professor (Maître de conférence), Free University of Brussels (Université Libre de Bruxelles), Brussels, Belgium. 2 See, e.g., S. Solomon et al. (eds.), Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2007), at Ch. 10: “the type, frequency and intensity of extreme events are expected to change as Earth’s climate changes, and these changes could occur even with relatively small mean climate changes. Changes in some types of extreme events have already been observed, for example, increases in the frequency and intensity of heat waves and heavy precipitation events.” 3 Eurostat, Key Figures for Coastal Regions and Sea Areas, Statistics in Focus 47/2009, June 2009 (2009), available at http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-09 -047/EN/KS-SF-09-047-EN.PDF, at 4 (figure 4). 4 A. Saout, Théorie et pratique du droit de l’eau (Paris, Editions Johanet, 2011), at 10. 5 See Ministère de L’Agriculture, De l’Alimentation, de la Pêche, de la Ruralité et de l’Aménagement du Territoire, Mémento De La Statistique Agricole 2010 (2010), available at http://agreste.agriculture.gouv.fr/IMG/file/memo10contexte.pdf. 6 As acknowledged, e.g., by I. Silva, “Conclusions: Amélioration de certaines pratiques agricoles et qualité des eaux en Bretagne, décret du 29 août 2007, Conseil d’état, 10 avril 2009” (2010) 1 Revue Juridique de l’Environnement 97–105, at 99. 7 Also, around 65,822,000 people live in the French Republic.

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upstream (i.e., to prevent water resources’ scarcity or deterioration) and downstream (i.e., after water resources’ deterioration or scarcity issues appear)? The author attempts to answer these questions using a three-step approach. First, the author provides an overview of the French decentralized framework. Second, she exposes the dynamics and trends of competence and responsibilities sharing, that is, how the decentralized frame­work is organised. Third, the author assesses the multi-layered framework in terms of effectiveness and coherence. 1. Background: Key Actors and Their Competences 1.1. Overview of Key Legal Norms Since its revision in 2003, the French Constitution provides that territo­ rial  decentralization is the organizing principle of France (Article 1).8 Law and decrees with regard to water management then articulate this overarching principle by allocating competences and responsibilities. Broadly speaking, six key laws exist: law No. 64–1245 (16 December 1964) concerning waters’ legal treatment and sharing and the fight against pollution, law 3/1992, the so-called “water law,” law 101/1995 (“loi Barnier”) concerning the reinforcement of environmental protection, law 338/2004 implementing the EC Water Framework Directive,9 law 1772/2006 on water and aquatic environments and law 788/2010, which implements the “Grenelle de l’environnement”.10 These laws provide which provisions are to

8 Article 1 of the French Constitution of 4 October 1958 reads as follows: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralized basis.” (in French: “La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances. Son organisation est décentralisée.”). Decentralization is defined as follows in R. Guillien et al. (eds.), Lexique des termes juridiques (15th ed.) (Paris, Dalloz, 2005): “system of administration that allows a human community (territorial decentralization) or service (technic decentralization) to administer themselves, under the control of the State, by giving them legal personality, their own authorities and resources” (author’s translation). 9 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (2000) OJ L327/1. 10 On the Grenelle de l’environnement, see chapter 8 by A. Boiret in this volume, section 4.1 Openness.



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be specified by Decrees adopted by the French State Council (Conseil d’Etat).11 1.2. A Plethora of Actors at Each Level A plethora of actors echo the plethora of norms. From the outset, the particularly complex French institutional organization in the field of water management and protection must be seen as an historical heritage.12 Competences and responsibilities are shared among four levels. Stated briefly, the Ministry level regulates actors’ activities, defines major orientations of national water policy, and is responsible for water police. Water policies are piloted at the regional level and implemented at the departmental and local levels. The developments laid out in the following provide an overview of the main actors’ roles and responsibilities. The table at the end of this section provides a more complete picture. At the State level, the Ministry of Ecology, Sustainable Development, Transports and Housing (hereinafter “the Ministry”) is competent and the referee with regard to water policy. The Minister elaborates, animates and coordinates water policy.13 In addition, the Ministry sometimes liaises with other ministries when they are also competent (e.g., drinking water and health, hydraulic energy). It took more than 30 years for this Ministry to gather all competences in the environment and water field.14 The Interdepartmental Water Mission (MIE – Mission Interministérielle de l’Eau) coordinates this task. The Parliament has also been granted more powers by Law 1772/2006: every six months, the Parliament has to define the priorities that are to be reflected in the multiannual intervention 11 These are the key laws. Adding to them, the Code de l’environnement 2012 is the main reference. In addition, a plethora of legal norms exist that are relevant with regard to water management, as will appear in the following. This “legal opulence” is widely criticised by scholars, such as, e.g., A. Saout, Théorie et pratique du droit de l’eau supra, at 48. The calls for a Code that would specifically codify water law have never been heard. Scholars refer to water law as “legal fragmentation”, “legal sedimentation”; a “mosaic” or “aquatic jungle” as reported on p. 49. Although this chapter directs its attention at institutional matters, one should bear in mind that water law is extremely complex and technical and raises legal security issues considering its constant modification. 12 As exposed in J.-L. Gazzaniga et al., Le droit de l’eau (3rd ed.) (Tours, Litec, 2011), at 165. At the end of the chapter the reader will find a table presenting all the institutions and bodies that have competences in the water management field. 13 “He [the Ministry of Ecology and Sustainable Development] gathers the whole actions and decisions with regards to water policy”. See J.-L. Gazzaniga et al., Le droit de l’eau (3rd ed.) (Tours, Litec, 2011), at 169 (author’s translation). 14 Ibidem at 168-9. This overall competence has been given concrete expression with Décret 443/2010.

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programs of the Water Agencies and set the ceiling of their expenses and contributions at the National Water and Aquatic Environment Office (ONEMA).15 The ONEMA provides the ministry level with appropriate technical and scientific expertise.16 Still at the central level, the General Department of planning, housing and nature elaborates and evaluates water policies.17 Within the General Department, the water and biodiversity Department is particularly (but not exclusively) concerned with water policy matters. At the regional level, the prefect of the Region in which a river basin committee is established coordinates the State actions. The prefect triggers and coordinates the State’s policy with a view to attaining unity and coherence of decentralised actions at the regional and departmental levels. The prefect is assisted by the Regional Department for the Envi­ ronment, Agriculture and Housing (DREAL – Direction Régionale de l’Envi­ ronnement, de l’Agriculture et du Logement).18 The prefect’s crucial role as a pivotal actor is described in chapter 8.19 This is also true when it comes to water management. This role will be further elaborated on in section 2. At the departmental level, the General Council (Conseil Général) has competences that are attributed to it by law. As an exception, if a problem has a specific departmental dimension and no other public authority has competence, the council can address the matter. The General Council’s competences mainly have a facultative nature: they can initiate studies, works, actions or installations with a view to managing water and aquatic environments (Environmental code, Article L. 3211(1) ). In sum, they apply the regulatory and technical aspects of water policy. At the local level, the mayors of the 36,000 municipal areas are responsible for drinking water and sanitation services. The Department can support them in fulfilling their tasks. Indeed, law 1772/2006 provides in Article 73 that Departments can technically support the local authorities if they do not have the means necessary to exert their competences.20 15 Code de l’environnement supra, Art. L. 213(9)(1), al. 2. 16 The ONEMA is defined as being the “bras armé of the State”, the latter focuing on regulation matters. J.-L. Gazzaniga et al., Le droit de l’eau supra, at 172. 17 Décret 680/2008 and ministerial order dated 9 July 2008. 18 Loi 1772/2006 has created the DREAL. The DREAL is the merging of three pre-existing regional departments: industry (DRIRE), environment (DIREN), and facilities (DRE). 19 See chapter 8 by A. Boiret in this volume, section 4.5 Coherence. 20 Code de l’environnement supra, Art. L. 3232(1)(1) reads as follows: “Pour des raisons de solidarité et d’aménagement du territoire, le département met à la disposition des communes ou des établissements publics de coopération intercommunale qui ne bénéficient pas des moyens suffisants pour l’exercice de leurs compétences dans le domaine de



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In addition, the public at large and key private persons also have a role to play (companies in the water industry, farmers, environmental protection NGOs, consumer protection NGOs, users, plant operators). These actors are to be consulted and should enjoy information sharing pro­ visions, can be bound by water law provisions, and can lobby public institutions. In addition, private persons who own waters have the duty to look after those waters.21 In the following, we will not study private owners’ obligations in depth; instead, we will focus on State, regional, departmental and local authorities. Consultation and participation of the public at large and key players will be addressed later in this chapter. The following table summarises the complex French institutional organization in the field of water management and protection. Sharing of competences and responsibilities with regards to water management in France State authorities (including deconcentrated authorities, i.e. authorities that are under the supervision of the State) Region authoritiesDepartment authoritiesLocal authorities N.B. Public at large, NGOs, Farmers, Private owners, etc do not appear in this table but their role is covered in the chapter, when analysing public bodies’ composition and consultations. State level  Authorities regulate actors activities, establish main orientations of national water policies

Regions  Authorities pilot water policies

Departments Authorities implement water policies Localities

Ministry of Ecology, Central administration Sustainable Development, General Council of the environment and sustainable development: information and advise Transport and Housing Two cross-structures: General Council (triggers the Ministry’s reform, coordinates the serv ices’ - Minister actions and evaluates them) and General Commissariat to sustainable development (promotes - Minister next to the integration of sustainable development in all policies, in charge of the national sustainable Minister, in charge of development’s national strategy) transports 5 General Departments and 1 Delegation, including (for water purposes): - State Secretary in charge · Housing and Nature: elaborates, animates and evaluates policies of water. Subof housing departments: 1. Territorialisation, water legislation, raw materials; and 2. Protection and - National Committee for management of water and mineral resources. Waters: consultative · Risks Prevention: inter-ministerial coordination with regards to the policies re. prevention functions of major risks, including rise of water levels. (Inter)regional Departments of the environment, housing and planning (DREAL)  Trigger sustainable development Water Agencies Interregional Departments of the Sea (DIRM) policy set at the State level public bodies of the Ministry

National Office of Water and Aquatic Environments (ONEMA) National Public Body. Knowledge, evaluation, surveillance of waters’ status and ecological functioning of aquatic environments, and rationalisation of means. General Department: expertise in support of public policies of water m anagement, in charge of the information system of Waters; and supports interregional and departmental services.

General Blueprint for Water Planning and Management (SDAGE) - Objectives: resources’ equilibrium, water quality, protection against floodings. - Basins (i.e. basin districts) are identified in a ministerial order. - The prefect coordinator of the basin (i.e. prefect of the region where the basin has its Committee) is the key actor (he coordinates credits and corresponding spendings, delivers an opinion regarding projects that require an interregional coordination, delimitates sensitive and vulnerable zones together with the department prefects and after consultation of the main concerned actors and opinion of the basin committee, if necessary reinforces general technical regulation for the whole basin or part of the basin, delivers an opinion on the SDAGE project, and is the competent authority to evaluate the SDAGE according to environmental requirements). - The prefect is assisted by the basin administrative commission (which the prefect presides), and the DREAL who is the basin Delegate. - Water agencies do pursue the objectives of the basin by perceiving charges and redistributing them to local authorities,industry and farmers with the view to conducting projects that 1. Fight against pollution, 2. Develop and manage water resources, and 3. Restore and maintain aquatic environments. - Basins public territorial bodies (EPTB): contracting authority re. basins. Territorial collectivities can group themselves within an EPTB with the view to attaining the objectives re. the basin. The EPTB’s scope of action is delimited by the prefect. + Blueprints for Water Planning and Management ( SAGE – “Schémas d’aménagement et de gestion des eaux”) that apply to subbasins or groups of sub -basins, and Local Commission of Water (CLE)

Interregional Delegations of the ONEMA

Departmental Departments of the Territory (DDT) Departmental Water Offices Departmental Departments of the Territories and Sea (DDTM, for Departments with coastal areas)(overseasdepartments) General Council (“Conseil Général”) PrefectInterdepartmental services of the ONEMA Mayors  drinking water and sanitation

l’assainissement, de la protection de la ressource en eau, de la restauration et de l’entretien des milieux aquatiques une assistance technique dans des conditions déterminées par convention. Le département peut déléguer ces missions d’assistance technique à un syndicat mixte constitué en application de l’art. L. 5721(2) dont il est membre. … Un décret en Conseil d’Etat précise les modalités d’application du présent article, notamment les critères de détermination des communes et des établissements visés au premier alinéa et les conditions de rémunération de cette mise à disposition”. This technical aid is operated through the departmental services of technical assistance to the operators of water sanitation services (SATESE). 21 Code de l’environnement supra, Art. L. 215(2) and 215(14); and Code de la santé publique 2012, Art. 211(7).

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2. Dynamics of Competences and Sharing of Responsibilities: Three Trends 2.1. The Centre of Gravity Is at the Regional Level In the first trend, all laws go in the same direction: the trend is toward decentralisation. In this respect, a crucial law is the organic law dated 1 August 2001 related to financial laws (LOLF).22 Nevertheless, a notable exception exists: law 1772/2006. This law reinforces the State level with, for example, the creation of the ONEMA and the reinforcement of the Parliament’s role. In addition, the law also reinforces the competences of local authorities (e.g., the law reinforces the competences of the mayor in terms of water sanitation). Thus, law 1772/2006 operates in a bidirectional dynamic: on the one hand, greater competences and responsibilities at the State level and on the other hand, decentralization. The centre of gravity of water policy is at the regional level. The regional level is the pivotal level for public policies’ implementation on the French territory.23 The Prefect of the Region has authority over the prefect of the Department (as a principle).24 This is also true regarding water management.25 The basin is the reference unit in terms of water management. The Prefect coordinator of the basin, a regional authority, has wide responsibilities and competences.26 This crucial role is exerted within the framework of the General Blueprint for Water Planning and Management (hereinafter SDAGE: Schéma Directeur d’Aménagement et de Gestion des Eaux). The SDAGE is the reference point for water management in France. Recognition of the basin as a unit for water management is dated 22 See chapter 8 by A. Boiret in this volume, section 2. Principles and Environmental Competences of Local Governments in France. The sharing of roles and responsibilities is codified in the Code général des collectivités territoriales 2012, Art. L. 1111(4). 23 J.-L. Gazzaniga et al., Le droit de l’eau supra, at 166: “Le préfet de region est institué “pierre angulaire” de toutes les politiques.” 24 The exceptions are: administrative control of local authorities, public order, population security, foreigners’ entry and stay, and asylum law. 25 On a side note, it is worth emphasising that the French terminology is somewhat confusing: the choice was made to keep the use of the word “basin” for both the physical reality and reference to the administrative reality (the basin as a district). This has been criticised by several authors, as reported in A. Saout, Théorie et pratique du droit de l’eau supra, at 135. Currently 14 basins exist in France, whereas the hydrographical reality echoes the administration organisation (i.e., a district): each “hydrographical” basin is also a “district” basin. So that reference to “basin” encompasses two realities: the hydrographical and administrative ones. 26 These were, in a first stage, set by Décret 536/2005 concerning the organisation with regard to water and the missions trusted to the prefect coordinating the basin.



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196527 and is said by French scholars to have inspired the EC Water Framework Directive.28 The basins are identified by ministerial orders. The Prefect coordinator of the basin (prefect of the Region in which the basin has a committee) is the key player with regard to the SDAGE.29 In exerting his competences in this respect, the prefect is assisted by the basin administrative commission over which he presides30and the basin Delegate of the Regional Department for the Environment, Agriculture and Housing (DREAL).31 The prefect also has a pivotal role in the establishment of the Blueprint for Water Planning and Management (SAGE – Schémas d’aménagement et de gestion des eaux) that applies to sub-basins or groups of sub-basins and the concomitant Local Commission of Water (CLE).32 This Commission elaborates, modifies and follows-up the SAGE.

27 Décret 889/1965. 28 See, e.g., J.-L. Gazzaniga et al., Le droit de l’eau supra, at 178; and A. Saout, Théorie et pratique du droit de l’eau supra, at 39. 29 The prefect’s competences and responsibilities have been gradually expanded by law, and specified by various decrees (e.g., Décret 636/2005) and circulars (e.g., the circular dated 22 March 2006). His competences and responsibilities are codified in the Code de l’environnement supra (Art. L. 212(2) to L. 212(2)(3) and R. 213(13) ). The prefect coordinates credits and corresponding spending, delivers an opinion regarding projects that require an interregional coordination, delimitates sensitive and vulnerable zones together with the Department prefects and after consultation with the main concerned actors and obtaining the opinion of the basin committee, if necessary reinforces the general technical regulation for the whole basin or part of the basin, delivers an opinion on the SDAGE project, is the competent authority to evaluate the SDAGE according to environmental requirements, and establishes and updates the multiannual program that contains the program of measures applied within the SDAGE. 30 The Administrative Commission of the basin is composed of prefects of Regions, prefects of Departments, heads of regional bodies of the State in charge of the environment, the DREAL who is the basin delegate, the Director of the water agency, and the Head of the Trésor public of the Region in which the basin committee has his headquarters. Eventually, the prefect can invite any person interested by the agenda (e.g., head of deconcentrated service, public body, or any qualified person). The administrative Commission ensures coherence between the SDAGE and the program of measures on the one hand and the action plans of State services in Departments and Regions, on the other hand. 31 Code de l’environnement, Art. R. 213(16). In sustaining the prefect, the basin delegate acts as the Secretariat of the basin administrative Commission, animates and coordinates deconcentrated services acting in the water field, and advises water agencies and basin committees. His missions have been reinforced (e.g., he also contributes to the elaboration, implementation and follow-up of the SDAGE, the program of measures, and water quality surveillance program and ensures coherence at the interregional level of water police services, aquatic environments’ protection and fisheries). 32 To the author’s knowledge, one case exists in which the establishment of a SAGE had been contested for not reflecting ecological criterion. The Conseil d’Etat (French highest administrative judicial authority) eventually confirmed the establishment of the SAGE. See Conseil d’Etat 295599/2009. On this case, see J.-L. Gazzaniga et al., Le droit de l’eau supra, at 216.

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The prefect also has a pivotal role with regard to water police and management: the prefect designates the departmental services in charge of water police and management.33 2.2. Financial Competences: Decentralised Bodies and Localities In a second trend, and with regard to charges, the Parliament must adopt laws that determine the charges’ assessment. This rule has been endorsed by law 1772/2006, codifying what the Constitutional Council had concluded in a decision dated 1982.34 The water agencies are decentralised services from the State at the regional level, under the supervision of the Ministry of Ecology, Sustainable Development, Transport and Housing that designate a Government’s Commissioner, who then attends meetings. Water Agencies perceive charges (according to pollution and water catchment)35 and redistribute them to local authorities, industries and farmers with a view to conducting works that fight pollution, develop and manage water resources (superficial waters and ground waters), or restore and maintain aquatic environments. In other words, they finance water policy.36 A multiannual program drafted by the water agencies’ administrative board, positive opinion of the basin committee and approval by the Parliament frames water agencies’ actions by identifying priority orientations and by providing a ceiling regarding spending.37 Huge sums are at stake, underlined by the 2007–2012 multiannual program which was awarded 11,6 billion euros exclusively from charges. This sum is com­ pleted by other financial sources.38 Water agencies also finance the basin

33 With the notable exceptions of marine waters, and big roads of fluvial public domain for which the competent management and police services are designated by a common order by the ministers in charge of the environment and facilities. Also, the Ministry of Ecology, Sustainable Development, Transport and Housing is in charge of the police and management services with regard to fluvial public domain for navigation purposes. 34 Court constitutionnelle Decision 124/1982. 35 More specifically, charges are grouped under seven headings. They are listed in the Code del’environnement supra, Art. R. 213(48) and R. 213(11). 36 In this respect, criticisms point out that the polluter-pays principle is not implemented by the agencies. Indeed, the industry and the farmers remain largely privileged when comparing the pollution they generate with the charges they pay and the subsidies they receive. See, e.g., A. Saout, Théorie et pratique du droit de l’eau supra, at 193-4. See also, in the following, the developments on the green algae pollution. 37 Art. 83 of the 1772/2006 law provides the following priorities for the 2007–2012 multiannual programme: preservation actions, restoration, maintenance, acquisition, and improvement of aquatic environments and wetlands management (as exposed in J.-L. Gazzaniga et al., Le droit de l’eau supra, at 182). 38 See J.-L. Gazzaniga et al., Le droit de l’eau supra, at 186.



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commit­tees and perform secretariat tasks within these committees. In overseas Departments, water offices (created by law 1772/2006) are the counterpart of water agencies and exert similar tasks.39 2.3. Avoiding Conflict through Consensus but Tensions Remain on Waters’ “Publicisation” In a third trend, conflicts between water management players are avoided through the search for consensus. Instead, tensions occur with regard to the respective scope of property and publicisation of waters. 2.3.1. The Search for Consensus Decentralisation is accompanied by an incremental effort toward consensus. It should be kept in mind that in practice, reaching a consensus does not mean reaching a good consensus. Scholars have criticised the participation mechanisms for leaving more room for industry and farmers’ lobbyists who benefit from the high technicalities of the discussions.40 The whole set of procedures and committees regarding water policy’s orientations and technical management enables the emergence of a consensus. Consequently, conflicts are not very common, that is, when it comes to conflicts that relate back to grappling competences. On the contrary, as we will see in the following, conflicts that occur due to identifying the institution responsible for coping with problems do occur. Participa­ tion of a wide range of actors in water management seems to have become the principle. For example, the water agencies’ administrative board is composed of, among others, representatives of water users, socio-professional organisations, environmental NGOs, consumer protection NGOs, fishing bodies and representatives of the local authorities, of the State, and 39 Scholars who have examined the French charges system have been very critical. See, e.g., M. Cavagnac and J. J. Gouguet, “La Directive cadre sur l’eau au défi de l’internalisation des effets externes” (2008) 3 Revue Européenne de Droit de L’Environnement 251–265. The authors have assessed the charges system against the polluter-pays principle and highlighted, together with public reports, that the system is largely insufficient in implementing the polluter-pays principle according to two series of critics. First, they criticize the charges for being too low and consequently for not having a dissuasive character. Second, they criticize the charges system for favoring two “underground users:” industry and farmers. 40 See, e.g., M. Cavagnac and J. J. Gouguet, “La Directive cadre sur l’eau au défi de l’internalisation des effets externes” supra, at 264. The authors refer to the discussions that occur within the SDAGE. See also, A. Saout, Théorie et pratique du droit de l’eau supra, at 143-8. The author reports criticisms directed against the participatory model organised in France: it would actually be more symbolic than real.

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of the agency’s agents who are nominated by ministerial order, whereas the board’s President is nominated by a Decree of the French President. Another obvious example of the wide range of actors in water management is the creation of a basin committee for each basin or sub-basin by law in 1964. The basin committees do represent water users. As emphasised previously, the basin is the pivotal district when it comes to water management in France. This committee is, consequently, all the more crucial in terms of participation and transparency. The committee’s composition has lately been modified with a view to reinforcing local actors’ presence (law 1772/2006). Indeed, each basin committee is composed of three colleges, one of which (amounting to 40% of the committee members) is composed of representatives of the general and regional council, and, in majority, of local authorities or a group of local authorities’ representatives.41 The basin committees’ role is primarily of a consultative nature.42 The basin committee also has a crucial role to play with respect to the SDAGE: the committee establishes the stocktaking of the basin (analysis of human activities that impact water quality and economic analysis of water uses). The prefect then approves this stocktaking. In addition, the committee elaborates and keeps up-to-date the registry of protected areas.43 In another example, transparency is also put forward by law 699/2003, concerning the prevention of natural and technological risks, including floods. One of the four areas of the law is to develop preventive information together with transparency with regard to risks. The participation of territorial communities, public investigations, involvement of the mayor 41 Similarly, the Local Commission of Water that has competences regarding the SAGE is composed of representatives of water users, NGOs, local authorities, and territorial authorities. The prefect approves the Composition of the Commission. Also, consultations on the project of SAGE are organised, and the SAGE is available to the public. 42 The Ministry of Ecology, Sustainable Development, Transport and Housing, the water agency’s head of the administrative board and the prefect who coordinates the basin on any issue that falls within the basin’s competence can consult the Committee. The Committees participates in financial decisions adopted by water agencies, and the multiannual programs must receive the committee’s positive opinion. 43 Also, three years before the entry into force of the SDAGE, the committee sets the work program and the working plan specifying the modalities of elaboration or updating the SDAGE. Two years before the SDAGE entry into force, the committee must deliver a provisional synthesis of important questions. The provisional synthesis then goes through a consultation process (regional and general councils, regional economic and social councils). After the consultation process and the environmental evaluation of the proposed SDAGE are achieved, the proposed SDAGE goes through a public consultation process. The President of the committee then sends the project to the consulted entities for their opinion. The President then adopts the project and submits it to the prefect for approval.



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and local council and the disclosure of information with respect to risk are aimed at having preventive behaviours adopted by the population that is most at risk. In particular, four provisions are relevant: the obligation to provide information to the population that is most at risk (Article 40), the obligation to put into place benchmarks of rises in water levels on public and private buildings (Article 42), the obligation to deliver information on risk to tenants or buyers during a transaction (rent or purchase) that concerns a building located in an at-risk zone (Article 77), and the obligation of the State to organise the surveillance, forecasting and transmission of information regarding rises in water levels (Article 41). The quest for consensus also uses the “contractualisation” technique. This technique is essentially applied by “river contracts” and “bay contracts.” On the one hand, the purpose is to encourage local practices to be more respectful of the environment and on the other hand, to move toward an integrated approach.44 These contracts do not have a legal value and are regulated by ministerial circulars.45 River and Bay committees that organise the establishment of the contracts (more specifically, the debates), follow-up and implement the contracts and organise communication and awareness-raising activities are to have a composition that represents in a balanced fashion the actors and users. Despite this quest for consensus, an instance in which a conflict existed relates back to water charges. As was mentioned previously, law determines the charges’ assessment. This codification, done by law 1772/2006, has not only clarified the legal nature of the charges, but also solved the conflicts that occurred between different bodies when the charges’ assessment was done at the ministerial level (orders), with decrees, or by each water agency’s administrative board. Huge discrepancies existed among the basins, whereas local authorities and users neither understood nor accepted the complex system.46 In addition, the charges assessment did give rise to frequent and recurrent political debates regarding the 44 This technic has also been applied regarding the green algae phenomenon, without any success and relying on a dubious legal basis, as emphasised by V. Inserguet-Brisset, “Commentaire: Prolifération d’algues vertes sur le littoral Breton, Cour administrative d’appel de Nantes, 1er décembre 2009” (2011) 2 Revue Juridique de l’Environnement 281– 306, at 302-6. 45 The latest one is dated 30 January 2004. The absence of legal value has been recalled in a recent case of the Administrative Tribunal of Bordeaux, as reported in J.-L. Gazzaniga et al., Le droit de l’eau supra, at 227. 46 There is a wealth of case law regarding these matters. See, e.g., Conseil d’Etat 41231/1986. In this case, the Conseil d’Etat dismissed a charge on the grounds that the taking of water neither deteriorated water quality nor modified waters.

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contributions expected from different users and for different uses. The 2006 law thus codified what the “Conseil d’Etat” (administrative highest judicial authority) had already ruled in 1982, defining water charges as common taxes of which assessment had to be performed by law. In other words, the conflict was solved by case law and later codified by law.47 Nevertheless, the conflicts on public aid regarding water policies did not come to an end and resurfaced with the “Département des Landes” case. In this case, the Constitutional Council eventually had to play a key role in addressing the issue of collective territory granting public money according to local communities’ water management systems. In other words, the onus was on the local communities’ choices in terms of water services’ management systems and the consequences that followed from those choices in terms of public aid, as decided on by local territories. The Constitutional Council’s decision48 put an end to a conflict whereby the legislator had clashed with judicial authorities’ findings. The conflict arose between the Department (territorial collectivity) and the local communities. The Department had opted for modulating public aid, whereas the communities were arguing that public aid should not be modulated according to the management system they choose. As a first stage, legal proceedings came to an end before the Conseil d’Etat. The highest judicial authority concluded that public aid could be modulated. Taking note of this decision, the legislator opposed the judicial authority’s conclusion in the law of 30 December 2006. This law has put forward the principle that public aid cannot be modulated according to water services’ management.49 The Constitutional Council’s decision is the outcome of a 47 Some instances of conflicts in which local authorities or NGOs contested departmental, regional or national measures appeared before the administrative judge. See, e.g., A. Saout, Théorie et pratique du droit de l’eau supra, at 126-33. 48 Court constitutionnelle Decision 146/2011. This decision has been largely commented. Among others, see: H. Pauliat, “Libre administration des collectivités territoriales ou libre administration de chaque collectivité ?” (2011) 35 La Semaine Juridique 25–28; S. Braconnier, “La liberté de gestion des services publics à l’épreuve de la QPC” (2011) 32 Actualité Juridique - Droit Administratif 1809; O. Carton, “Le principe de libre administration des collectivités territoriales et la QPC: enjeux financiers, perspectives nouvelles?” (2011) 72 Revue Lamy Collectivités territoriales 9–12; J.-B. Auby, “L’intervention départementale en faveur de la gestion d’un service public communal en régie” (2011) 11 Droit administratif 31–32; P. Terneyre, “Le législateur peut-il constitutionnellement interdire aux départements de moduler leurs aides aux communes en fonction du mode de gestion du service public aidé ?” (2011) novembre 11–13 Revue Juridique de l’Economie Publique 691; M. Verpeaux, “Quand le Conseil constitutionnel veille au respect de la libre administration des collectivités territoriales” (2011) 36 Actualité Juridique - Droit Administratif 2067– 2072. 49 Code général des collectivités territoriales supra, Art. L. 2224(11)(5): “Les aides publiques aux communes et groupements de collectivités territoriales compétents en matière



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“Ques­tion Prioritaire de Constitionnalité”50 raised by the Department during the proceedings before the Conseil d’Etat. On 8 July 2011, the Constitu­ tional Council came to the conclusion that the Department can modulate public aid according to the water services’ management system chosen by local communities. The Constitutional Council recalled that as a principle, the Department retains the freedom to administer which is granted to collective territories (and has a constitutional value). As an exception, the legislator can frame this freedom and subject territorial collectivities to obligations and prohibitions. This exception is nevertheless conditioned. Among others, the obligations and prohibitions must pursue general interest goals. The Council did not find such goals in the case at hand.51 Accordingly, the law dated 30 December 2006 is voided. All in all, the Constitutional Council has played a key role in putting an end to a conflict in which all players did participate: judicial authorities and the legislator. In substance, the ultimate effect of this decision has been to reaffirm collective territories’ “freedom” (competence) to administer. In addition, the effect of this decision has been to deprive the legislator’s initiative of any effect. 2.3.2. Property versus Publicisation of Waters Tension between the public nature of waters52 and their appropriations appeared at the early stages of water law and management in France. Eventually, this tension came to frame the scope of the resource’s public management. The tension relates back to property as a screen that would hamper public authorities to manage waters and aquatic environments.53 The legislator has constantly tried to avoid this screen. Traditionally, three

d’eau potable ou d’assainissement ne peuvent être modulées en fonction du mode de gestion du service.” 50 On this procedure, see chapter 8 by A. Boiret in this volume, section 3.2 The Principle of Self-Government and QPCs. 51 Court constitutionnelle Decision 146/2011, point 5: “Considérant que, par la disposition contestée, le législateur a entendu interdire aux collectivités territoriales, et notamment aux départements, de moduler les aides allouées aux communes et groupements de collectivités territoriales compétents en matière d’eau potable ou d’assainissement en fonction du mode de gestion du service en cause; que cette interdiction de moduler les subventions, selon le mode de gestion du service d’eau potable et d’assainissement, restreint la libre administration des départements au point de méconnaître les articles 72 et 72-2 de la Constitution.” 52 As a res communes (i.e., a common thing), water is a resource that cannot be owned and that the enjoyment of which must be guaranteed to all. 53 For an overview of waters that fall under the private property regime, see A. Saout, Théorie et pratique du droit de l’eau supra, at 18–24.

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main types of measures strive to avoid the screen.54 First, waters can be regulated so as to escape the private property legal regime: private persons cannot own some waters. Second, some waters do fall under the private property regimes, but the State has competence to limit the property rights. This is done through water police requirements (declaration and authorisation procedures, measures specific to some activities, and sanction). For example, the private owner is under the obligation to maintain the resource or under the obligation to not perform some acts (e.g., discharge of certain substances). Third, public bodies acquire property over water resources. When examining the legislator’s efforts to avoid the screen, two opposing trends appear in waters’ publicisation. On the one hand, private persons’ appropriation has been framed as described. In other words, the property logic has been fought, or at least limited in its effects. As a general principle, “Local residents may use running water which flows past or through their property only within the limits defined by law. In exercising this right they must comply with the provisions of the regulations and authorizations issued by the administration” (Environmental Code, Article L. 215(1) ). More particularly and for example, private owners are bound by maintenance obligations.55 Private owners can also be required to allow for a right of way.56 The possibility to modify their property is also framed by law.57 Similarly, some activities can be prohibited.58 Private owners are nevertheless entitled to receive compensation in some instances.59 On the other hand, public persons’ appropriation has been encouraged, supported, and legally organised. In other words, water management relies on property logics. Indeed, the possibility for territorial communities to acquire waters or water facilities has been supported and organised by law, concomitantly to and supporting decentralisation. For example, law 699/2003, related to the prevention of natural risks and technological risks, creates a fluvial public domain (Article 56) constituted of water courses when the communities have acquired the banks of the water course or when the State has transferred its own domain to the territorial 54 Ibidem at 92–102: the author relates back to doctrine which identifies other techniques with a view to publicising waters. 55 As appears, e.g., in the Code de l’environnement supra, Art. L. 215(23), and Art. L. 215(14). 56 See, e.g., ibidem Art. L. 215(19). 57 See, e.g., ibidem Art. L. 215(2). 58 See, e.g., ibidem Art. L. 211(12)(V)bis. 59 See, e.g., ibidem Art. L. 215(5), 1st indent and Art. L. 211(12)(VI) and (IX).



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communities.60 Also, the possibility for territorial communities to acquire water resources or water resources’ facilities is foreseen by the Envi­ ronmental Code, Article L. 213(8)(1),61 and the Rural and Maritime Fishing Code, Article L. 112(8).62 Some pre-emption rights are also foreseen.63 Private owners can also request local authorities to acquire water resources related lands if these lands are subjected to regulation constraints.64 Public property as public fluvial and maritime domains is organised in the General Code of Public Persons’ Property.65 The consequences of public property are extremely important: after a resource is found to pertain to the public domain or territory, private property rights can be limited or voided for environmental protection purposes. The European Court of Human Rights acknowledged and recognised this in the 2010 “Depalle” and “Brosset” cases in which the owners were contending that they were entitled to compensation for having to destroy their homes located on coastal areas (maritime territory). The Court accepted the exception to the compensation principle based on the “public territory” and environmental protection arguments put forward by France.66 60 Loi 809/2004 has extended this domain to interior ports. 61 Water agencies can support regional conservatories of natural areas, territorial communities, their groups or public bodies to acquire parts of wetlands. See also Code de l’environnement supra, Art. L. 211(13). 62 The article reads as follows: “Lorsque la mise en valeur de régions déterminées nécessite la réalisation de travaux concernant plusieurs départements ministériels et mettant en œuvre diverses sources de financement, l’étude, l’exécution et éventuellement l’exploitation ultérieure des ouvrages peuvent faire l’objet d’une mission générale définie par décret ou d’une concession unique, consentie par décret ou, lorsque la région bénéficie du transfert de compétence prévu à l’article 36 de la loi n° 2004-809 du 13 août 2004 relative aux libertés et aux responsabilités locales, par délibération du conseil régional à un établissement public doté de l’autonomie financière, à une société d’économie mixte ou à toute autre forme d’organisme groupant l’ensemble des personnes publiques et privées intéressées, à condition que la majorité des capitaux appartienne à des personnes publiques”. 63 See, e.g., Code de l’environnement supra, Art. L. 211(12)(XI). 64 See, e.g., ibidem Art. L. 211-12, X. 65 More particularly, see Art. L. 2111(4) to L. 2111(13), L. 2124(1) to L. 2124(25), L. 2131(2) to L. 2131(6), L. 2132(15) to L. 2132(17), and L. 2132(22) to L. 2132(25). 66 Depalle v. France, ECHR Judgment of 29 March 2010; and Brosset v. France, ECHR Judgment of 29 March 2010 (Grand Chamber). In these cases, the applicants submitted that the obligation imposed on them to demolish the houses located within the French maritime territory at their own expense and without compensation was not compatible with their rights under Art. 1 of Protocol No. 1 (protection of property) to the Convention and of Art. 8 (right to respect for home). This obligation was grounded on coastal areas’ protection grounds. According to the Court, the obligation was part and parcel of a consistent and rigorous application of the law given the growing need to protect coastal areas and their use by the public and also to ensure compliance with planning regulations.

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All in all, the trend is to limit private property rights with the view to enabling public authorities to have room for manoeuvre when managing water resources. With regard to decentralisation, this trend took the form of an ever-growing possibility for territorial communities to acquire water resources, related lands or facilities. 3. Assessing and Identifying Trends Regarding Effectiveness and Coherence In this section, we assess the French decentralised system against two good governance principles: effectiveness and coherence.67 We address noncompliance with EU law (3.1), the quest for effectiveness through simplification (3.2), the effectiveness of local authorities (3.3), and underline efforts toward coherence and integration through coordination (3.4). 3.1. (Non)Compliance with EU Law as Triggering Effectiveness A major and recurrent problem is the lacuna of France in implementing EU water law. Indeed, France has been found to not comply with its implementations’ obligations of no less than six directives. A seventh case is still pending. On several occasions, France was found to have failed in properly implementing European law regarding water quality impaired by nitrates.68 On 8 March 2001, the European Court of Justice condemned France for failing to take the necessary measures to ensure that the quality of surface water intended for the abstraction of drinking water conforms to the values laid down pursuant to Article 3 of Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the 67 European Commission, European Governance – A White Paper, COM (2001) 428 final, 25 July 2011, at 10: Principles of good governance. Effectiveness is referred to as follow: “Policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience. Effectiveness also depends on implementing EU policies in a proportionate manner and on taking decisions at the most appropriate level,” and coherence is referred to as follows: “Policies and action must be coherent and easily understood. The need for coherence in the Union is increasing: the range of tasks has grown; enlargement will increase diversity; challenges such as climate and demographic change cross the boundaries of the sectoral policies on which the Union has been built; regional and local authorities are increasingly involved in EU policies. Coherence requires political leadership and a strong responsibility on the part of the Institutions to ensure a consistent approach within a complex system.” 68 We will further analyse these cases in the following, when elaborating on the green algae phenomenon.



water management and protection in france449 abstraction of drinking water in the Member States, the French Republic has failed to fulfil its obligations under Article 4 of that directive.

The level of nitrates concentration was at stake in this case.69 Nitrates were also at stake in the ruling delivered by the European Court of Justice dated 28 October 2004 that condemned France for failure to implement Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption with regard to the nitrate content.70 In a third case in which nitrates were at stake, France was condemned for improper implementation of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment in the European Court of Justice’s ruling dated 23 September 2004.71 More specifically and relevant for us, France was condemned for not having identified sensitive areas, with respect to eutrophication, which needed to be subjected to more strin­ gent treatment discharges of urban waste water from some agglomerations of more than 10,000.72 In the aftermath of this case, French authorities adopted various decrees and ministerial orders (“arrêtés”).73 France was 69 ECJ Case C-266/99, European Commission v. French Republic, Conclusion, 1st indent. 70 ECJ Case C- 505/03, European Commission v. French Republic, Conclusion, 1st indent: “by failing to comply with the requirements of Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption with regard to the nitrate content of water intended for human consumption in Brittany, the French Republic has failed to fulfil its obligations under Article 7(6) and Annex I of that directive.” See also, Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption as amended by Council Directives 81/858/EEC and 91/692/EEC (further amended by Council Regulation 1882/2003/EC) (1980) OJ L229/11. 71 Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (1991) OJ L135/40. 72 ECJ Case C-280/02, European Commission v. French Republic, Conclusion, 1st indent: “Declares that, […] by having failed: to identify the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the Artois-Picardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon as sensitive areas with respect to eutrophication, and […] to subject to more stringent treatment discharges of urban waste water from the agglomerations – except for Vichy, Aix-en-Provence, Mâcon, Créhange, Saint-Avold, Bailleul, Aurillac, Montauban, Châtillon-sur-Seine and Gray – referred to in the French authorities’ letter of 12 December 2000 and from the Montpellier agglomeration, and to subject to more stringent treatment discharges of urban waste water from agglomerations with a population equivalent (p.e.) of more than 10 000 into the Seine bay, the Seine downstream of its confluence with the Andelle, the coastal waters of the ArtoisPicardy basin, Vilaine bay, the Lorient roadstead, Elorn estuary, Douarnenez bay, Concarneau bay, the Gulf of Morbihan, the Vistre downstream from Nîmes and Thau lagoon, the French Republic has failed to fulfil its obligations pursuant to Article 5(1) and (2) of, and Annex II to, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment.” 73 These decrees and arrêtés are listed and detailed in J.-L. Gazzaniga et al., Le droit de l’eau supra, at 48.

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condemned in a fourth case in which nitrates were concerned. In its ruling, dated 27 June 2002, the European Court of Justice condemned France for infringement of Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources.74 More particularly, France was condemned for not taking the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones.75 On 15 March 2011, France was found to not have properly implemented Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water.76 More particularly and of interest to us, France was condemned for failing to carry out some sampling operations.77 On 12 June 2003, the Court of Justice concluded that France had not properly implemented Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community due to failure to adopt pollution reduction programmes.78 This case came to an end with the adoption of a Decree 74 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1991) OJ L375/1. 75 ECJ Case C-258/00, European Commission v. French Republic, Conclusion, 1st indent: “Declares that, by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones, in accordance with Article 3 of and Annex I to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, the French Republic has failed to fulfil its obligations under that directive.” 76 Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water as amended by Council Directive 91/692/EEC (further amended by Council Regulation 1882/2003/EC), and Council Regulation 807/2003/EC (1975) OJ L31/1. 77 ECJ Case C-147/00 European Commission v. French Republic, Conclusion, 1st indent: “Declares that, […] by failing to take all the measures necessary to ensure that, within 10 years of the notification of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the quality of bathing water conformed to the limit values set in accordance with the directive, contrary to Article 4(1) thereof; […] by failing to carry out sampling operations in line with the minimum frequency laid down in the Annex to Directive 76/160 in respect of inland bathing waters, contrary to Article 6(1), and […]by failing to carry out sampling operations for the ‘total coliform’ parameter, […]the French Republic has failed to fulfil its obligations under Articles 3, 4, 5 and 6 of Directive 76/160.” 78 ECJ Case C-130/01 European Commission v. French Republic, Conclusion, 1st indent: France has failed “to adopt pollution reduction programmes which include quality objectives for the 99 dangerous substances listed in the annex to the application which comply with the requirements of Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the French Republic has failed to fulfil its obligations under that directive.” See also, Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (1976) OJ L129/23.



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(378/2005) and an arrêté (30 June 2005) concerning a national action plan against the pollution of the aquatic environment by certain dangerous substances. Eventually, the European Commission initiated proceedings against France with regard to Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks on 16 December 2010.79 The European Commission contends that France has failed to adopt the laws, regulations and administrative provisions necessary to comply with the Directive: The period for the transposition of Directive 2007/60/EC expired on 25 November 2009. On the date on which the present action was brought, the defendant had not yet taken all the measures necessary to transpose the directive or, in any event, it had not notified the Commission thereof.

These condemnations are relevant in the framework of this chapter for several reasons. First, although France does have the set of responsible institutions that enable “structural” compliance with EU water law, problems appear to exist in the actual functioning of these institutions. The European Commission as a watchdog (or “guardian of the Treaties”)80 has had at least three main influences on the French institutions. First, France has in some instances reacted by moving toward a simplification and acceleration of national measures and procedures (e.g., in the aftermath of the C- 505/03 28 case, Decree 503/2006, aimed at simplifying and accelerating administrative procedures was adopted). Second, the administration’s control has been reinforced (in the aftermath of the same case, Decree 743/1993 has been modified with a view to reinforcing the administration’s control). Third, institutions have been mobilized in a top-down fashion: during the judicial proceedings, in case 147/00, the Minister of Ecology (Ministre de l’Ecologie) required prefects to ensure that the Communes establish the action plan and the analysis of pollution sources at stake (with the support of State services).81 Indeed, France is responsible before EU courts, although the failure to adopt national measures ultimately lies in the hands of decentralized authorities because of national administrative organization. 79 Action brought on 16 December 2010 before the Court of Justice: ECJ Case C-597/10, European Commission v. French Republic. See also, Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (2007) OJ L288/27. 80 See chapter 1 by L. Krämer in this volume, section 6. Enforcement. 81 Similarly, see the State reactions to cope with the green algae pollution.

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All in all, EU case law has enabled the French structures to rethink their settings in terms of effectiveness (simplification, acceleration, greater control, having responsible decentralized authorities fulfilling their missions). Nevertheless and despite this positive effect, the “trend” that French competent authorities do not to implement EU law and adopt accurate measures does not seem to disappear or attenuate: the implementation challenge does not seem to be addressed. 3.2. Effectiveness through Simplification Simplification is also a tool to ensure greater effectiveness. In this respect, water police procedures and measures illustrate the trend toward simplification. Law 338/2004 (Article 50) has initiated this simplification trend and ordinance 805/2005 and two decrees dated 200682 have given flesh to the trend, mainly through the declaration, authorization and restoration requirements and sanctions.83 Put simply, the water policy in terms of declaration and authorization relates back to facilities, works and activities (IOTA)84 that meet a threshold: they have the potential to create dangers for health and public security, to harm water’s free flow, to reduce water resources, to raise flood risk, to severely harm water quality or the aquatic environment’s diversity.85 As scholars have emphasized, the simplification procedure limits the authorization procedure to the biggest facilities having an impact on aquatic environments. Less important operations have to be declared.86 In addition, the declaration/authorization procedures have been merged when they relate to close operations (e.g., IOTA and maritime fisheries).87 Also, a single operator who is willing to run several IOTA on a single site goes through a single declaration or authorization procedure. In this case, the severity threshold (previously exposed) is applied by considering the IOTA as a whole. In other words, although each IOTA may not meet the severity threshold individually, together they do, and consequently, the declaration or authorization procedure has to be initiated. The same goes when several IOTA are to be run by several operators in a sub-basin, group of

82 Décrets 880/2006 and 881/2006. 83 The restoration requirement has been provided in loi 1772/2006 and is now enshrined in the Code de l’environnement supra, Art. L. 214(3)(1). 84 IOTA stands for “Installations, Ouvrages, Travaux et Activités”. 85 As exposed in J.-L. Gazzaniga et al., Le droit de l’eau supra, at 234. 86 Ibidem. 87 Code de l’environnement supra, Art. R. 214(3).



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sub-basins, or a coherent aquifer system.88 Scholars criticize the threshold requirements that are constantly higher (the Decrees constantly raise the threshold, and accordingly the application of the procedures). Indeed, they contend that the necessity for the administration to concentrate on the most dangerous IOTA should not overshadow that this may result in a loosening of water police controls where water quality is constantly found to deteriorate.89 The same scholars nevertheless emphasise that the prefect coordinator of basin acts as a safety net. Indeed, the prefect can (within two months) oppose a declaration in the case of incompatibility with a SDAGE, a SAGE, or in case of serious impairments that are not reparable. The prefect can also, at any moment, impose new technical requirements that turn out to be necessary.90 This simplification is nevertheless not very clear, and here again the administrative judge has had to inter­ pret the notions that distinguish the declaration from the authorisation procedure.91 The competent authority is located at the Department level. Here again, the simplification movement has called for a unique competent authority to deliver or refuse authorisations and declarations. He is also responsible for modifying or withdrawing the authorisation and controlling and sanctioning infringements of water police. As an exception, the mayor is invested with water police powers in cases of imminent threat (General Code of Territorial Communities, Article L. 2212(2) ). The administrative judge restrictively interprets the notion of imminent threat.92 The Mayor is also vested of general police powers with regard to public healthiness (salubrité publique). The prevention, through appropriate precautionary measures, of pollutions of any kind or the discontinuation of these pollutions falls within the scope of public healthiness. This applies to drinkable water requirements and water sanitation, among others. If the mayor fails to make use of his competences, the prefect of the Department can substitute himself to the mayor (General Code of Territorial Communities, Article L. 2215(1) ). For example, the prefect can forbid filling swimming pools in case of droughts. This has been confirmed by the Conseil d’Etat, higher administrative judicial authority.93 88 J.-L. Gazzaniga et al., Le droit de l’eau supra, at 237-8. 89 See, e.g., ibidem at 240. 90 Ibidem. 91 For an overview of this case-law, see ibidem at 240-2. 92 Ibidem at 243. 93 Referred to ibidem at 322.

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If simplification can increase effectiveness in theory, practice can dismiss this assumption. As a counter-example, authorisations granted to farmers in Brittany were voided by administrative judicial authorities in huge proportions (in 2007, 54% of livestock farming authorisations were voided).94 3.3. Effectiveness: Assessment of Local Authorities’ Roles and Responsibilities We saw in the preceding sections that local authorities have constantly been granted greater competences. Scholars have criticized this trend on several grounds. First, some scholars fear the institution of local potentates.95 Second, the responsibilities that accompany the competences may not be exerted. The crucial issue is of a financial nature. To what extent can local authorities respond to challenges that are of an endemic nature? Third, local authorities may have to cope with diffuse pollutions upon which they do not have any influence or competence. In this case, the measures they adopt or call for may be short-circuited by other authorities (national, regional or departmental). A recurrent and ever-growing environmental and public health problem will illustrate the last two issues: the pollution of Brittany coasts by the green algae that aggregate on Brittany beaches. Green algae are extremely toxic after there is a drought.96 They are, according to the latest studies, caused by agriculture activities.97 The causal link between nitrates, agricultural activities and pollution is now established.98

94 V. Inserguet-Brisset, “Commentaire: Prolifération d’algues vertes sur le littoral Breton, Cour administrative d’appel de Nantes, 1er décembre 2009” supra, at 292. The author reports, among other things, utterly insufficient impact assessments and the biasing of some departmental authorities that clearly favours farmers. Also, the sharing of water resources’ sampling is criticised for clearly benefiting farmers: A. Saout, Théorie et pratique du droit de l’eau supra, at 12–13. The author reports that in periods of droughts, households’ samplings are severely constrained while farmers monopolise water resources’ samplings (80% of water resources’ samplings), which is largely caused by some crops not being adapted to local climate conditions (e.g., corn requires huge quantities of water). 95 As reported in J.-L. Gazzaniga et al., Le droit de l’eau supra, at 27. 96 They have, for the time being, caused the death of a horse, several dogs and 36 wild boars. Beaches are regularly closed until the algae are collected. 97 For a description (in French) of the green algae phenomenon, see the website of Eau et Rivières de Bretagne (a French environmental NGO), available at http://www.eau-et -rivieres.asso.fr/index.php?100/561. 98 As recognised, e.g., in the national annual action plan against the green algae dated 5 February 2010, available at http://agriculture.gouv.fr/IMG/pdf/plan_lutte_contre_les _algues_vertes_0.pdf, page, at 5.



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Regarding the financial aspect of this pollution, we saw previously that the Departments can support local authorities if the latter face problems they cannot address.99 Nevertheless, this is clearly insufficient. First, the Departments enjoy discretion regarding whether they will support local authorities. Second, this possibility seems rather illusory considering the scale of the problem (in financial and technical terms). In the framework of the green algae pollution, the State has also subsidized the algae’s collecting operations. Figures help to take stock of the scale of the problem: 37,500 cubic meters of green algae have been collected in 2011 (as of 29 July). Collecting green algae costs (on average) 500,000 euros per year.100 When having to cope with the pollution, the mayors sometimes adopt last resort measures, such as hiding the algae under trees.101 Also, the collection of algae is one way of dealing with the problem; however, it appears very clearly that this pollution calls for prevention policies that have not been adopted at the local level. Accordingly, an effort to direct our attention at the national level exists. In this respect, the national level clearly short circuits prevention measures and decentralizes authorities’ measures (e.g., SDAGE). Indeed, the decree and ministerial orders that are currently under preparation and going through a consultation process102 clearly do not address upstream pollution causes. Instead of mitigating the disposal of nitrates by farmers, they seem to rather amplify this phenomenon.103 On a side note and regarding the   99 Loi 1772/2006 provides in Art. 73 that Departments can technically support the local authorities if they do not have the means necessary to exert their competences, as codified in the Environmental Code, Article L. 3232(1)(1). This technical aid is operated through the departmental services of technical assistance to the operators of water sanitation services (SATESE). On French substantial law regarding nitrates, see, e.g., A. Saout, Théorie et pra­ tique du droit de l’eau supra, at 246–254. 100 In addition, 70% of farming installations in Brittany specialize in livestock farming, and 1 billion euros have been spent (from 1994) to reduce the presence of nitrates in the rivers of Brittany, Le Monde, article available at http://www.lemonde.fr/web/recherche _breve/1,13-0,37-1165620,0.html. 101 As reported by A.-K. Jouan, Dépassé, le maire planque les algues vertes sous la pinède (2011), available at http://www.rue89.com/2011/06/26/depasse-le-maire-planque-les-algues -vertes-sous-la-pinede-210566. 102 The proposed Decree concerning implementing action plans with a view to protecting waters against pollution caused by nitrates which are released by farmers activities and modifying the environmental code together with the proposed ministerial orders are available on the website of the Ministry of Ecology, Sustainable Development, Transport and Housing at http://www.developpement-durable.gouv.fr/Programmes-d-action-protection -des.html. 103 As denounced by France Nature Environment (a French environmental NGO) on their website at http://www.fne.asso.fr/fr/algues-vertes--fne-denonce-un-projet-de-reforme -qui-va-accroitre-leur-prolife ration.html?cmp_id=33&news_id=12350.

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organization of the multi-layered framework, the Decree under preparation operates a centralization movement from the Departments to the State and regional levels. With a view to addressing the European Commis­ sion’s criticisms regarding the implementation of Directive 91/676 concerning nitrates: (T)he departmental action plans are replaced by: a national action plan that defines the main measures to implement with regards to vulnerable areas, regional action programs that specify and reinforce some measures of the national action plan […] and that can comprise reinforced or complementary actions regarding some specific geographical areas.104

In addition, short circuits on the State level can take the form of political declarations105 or legal acts. Indeed, Decree 1257/2011106 has been highly criticized by Environmental NGOs for allowing greater levels of sewage resulting in a worsening of nitrates pollution.107 The State and decentralized authorities’ failure to properly address this pollution (that once again, raises public health and safety issues) has been confirmed and sanctioned by the Court of Appeal of Nantes on 1 December 2009.108 104 Ministry of Ecology, Sustainable Development, Transport and Housing, http:// www.developpement-durable.gouv.fr/Programmes-d-action-protection-des.html (author’s translation). 105 For example, President Sarkozy declared on 7 July 2011 that farmers, contending that they were not to be held responsible for the green algae pollution (which goes against the almost unanimous scientific studies), defended the farmers against “ecological fundamentalists,” as reported by Le Monde (translation mine), article available at http://www .lemonde.fr/planete/article/2011/07/08/algues-vertes-sarkozy-defend-les-agriculteurs-et -promet-de-l-aide_1546281_3244.html. 106 Décret 1257/2011 concerning implementing action plans to protect waters from nitrates pollution having an agriculture source. 107 See, e.g., the ENGO Eau et Rivières de Bretagne, Un décret absurde. Les ministères sourds aux protestations des Bretons (2011), available at http://www.eau-et-rivieres.asso.fr/ index.php?47/665. 108 On this case, see V. Inserguet-Brisset, “Commentaire: Prolifération d’algues vertes sur le littoral Breton, Cour administrative d’appel de Nantes, 1er décembre 2009” supra. The author emphasised that the Court’s condemnation of the State does not reflect the polluter-pays principle. According to the author, although the State has been faulty and inefficient in its management of the pollution, the State should not be the only one to be condemned and liable to compensate environmental NGOs. For the polluter-pays principle to be implemented, farmers, who initially cause the pollution, should be held responsible and liable. In the same sense, see A. Saout, Théorie et pratique du droit de l’eau supra, at 184-7. In addition, on 27 February 2012 the European Commission referred France to the EU Court of Justice for failing to take measures to guarantee that water pollution by nitrates is addressed effectively. See European Commission, Press Release, Environment: Commission takes France to Court for failing to combat water pollution by nitrates (2012), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/170&format =HTML&aged=0&language=EN&guiLanguage=en.



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All in all, this example illustrates the problems that can arise in the framework of decentralization. First, local authorities may not have the financial means to address the issues with which they have to cope. Second, when coping with pollutions having a diffuse character, local authorities do not have the competences to address the causes of these pollutions. The responsible authorities in this respect may not adopt a coherent approach. Instead, local authorities simply keep cleaning the pollution while the polluters keep conducting harmful activities subsidized by State authorities who deny the causal link between the pollution and the activities. In other words, local authorities have to address the pollution; however, the State or other decentralized communities do not have to adopt effective prevention measures. In sum, the decentralization trend may not, in all cases, address water management challenges. 3.4. Toward Greater Coherence and Integration through Coordination Decentralisation has called for greater efforts toward coherence and integration. Indeed, with the multiplication of players, a need to ensure that water policy’s orientations and objectives are not short circuited by other policies exists. This need is illustrated by the five examples that follow. Nevertheless, and as was already shown by directing our attention to the green algae pollutions that local authorities have to cope with, theory does not always meet practice. If coherence and integration are indeed trends illustrated in the following examples, one must bear in mind that practice may differ.109 The Basin Administrative Commission ensures coherence between, on the one hand, the SDAGE and the program of measures and on the other hand, the action plans of State services in Departments and Regions. In addition, the legal status of the SDAGE has constantly evolved toward a more legally binding value. According to the Environmental Code (Article L. 212(1) ), administrative programs and decisions with regard to water must be compatible with the SDAGE. This also applies to land planning documents (e.g., schémas de coherence territoriale – “SCOT” and plans locaux d’urbanisme “PLU”). Administrative judicial authorities play a major role in ensuring this legal value and have addressed a wide range of cases in which compatibility has

109 As a technique used to strive for a more integrated approach, the river and bay contracts have already been presented and will not be presented twice.

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been denied.110 Nevertheless, scholars point out that the assessment of the “compatibility requirement” may turn out to be hard to perform. Indeed, provisions of the SDAGE may not always be very clear or specific.111 In this respect, case law has a crucial role to play to provide unclear provisions with concrete substance.112 Scholars also underline that compatibility should not be assimilated to conformity, the latter being a more stringent requirement. They also emphasise that what is to be understood by “a decision with regards to water” is not very clear and has already been subjected to a whole series of cases before administrative courts.113 In addition, the Blueprints for Water Planning and Management (SAGE – “Schémas d’aménagement et de gestion des eaux”) adopted at the sub-basin or group of sub-basins must be compatible with the SDAGE.114 All in all, coherence is guaranteed by granting a higher legal value to the SDAGE. In cases of conflicts between, for example, land planning documents and the SDAGE, the latter must be respected. This requirement has already been applied in numerous cases before administrative courts.115 Still, regarding coherence, another type of public body is crucial regarding floods: the Basins public territorial bodies (EPTB –“Etablissements Publics Territoriaux de Bassin”).116 Laws 338/2004 and 1772/2006 have granted these bodies greater consultative functions and have charged them with more responsibilities (e.g., in terms of management and preservation of wetlands). Of interest to us, law 788/2010 (loi Grenelle II) has reinforced the role of EPTB regarding floods: they have become crucial with a view to ensuring the coordination, animation, providing of information and advisement to adopt actions that mitigate vulnerability to floods.117

110 Among others, see Cour Administrative d’Appel de Lyon req. 06LYO1866/2009. In this case, the administrative judge concluded that the mining project upstream drinking water resources was not compatible with the SDAGE that applied in this area. 111 See, e.g., A. Saout, Théorie et pratique du droit de l’eau supra, at 197-8. 112 See, e.g., Conseil d’Etat 254174/2004. In this case, the Conseil d’Etat has addressed the meaning of “a decision taken regarding water policy.” 113 See, e.g., J.-L. Gazzaniga et al., Le droit de l’eau supra, at 210-1. 114 Code de l’environnement supra, Art. L. 212(3)(2). 115 For a review of cases in which incompatibility and compatibility have been ascertained, see J.-L. Gazzaniga et al., Le droit de l’eau supra, at 212-5. As another example, consistency is also recognised as a requirement regarding wetlands in the Code de l’environne­ment supra, Art. L. 211(1)(1). 116 The prefect delimits the EPTB’s scope of action. This power is regulated by décret 115/2005 and order of the same day. 117 Loi 788/2010 has also granted the EPTB more responsibilities regarding the elaboration and implementation of the Blueprints for Water Planning and Management (SAGE – Schémas d’aménagement et de gestion des eaux).



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Another measure is meant to ensure coherence at the regional level: Article 371(3) of the Environmental Code provides that the prefect and the State, together with the “blue and green framework”118 regional committee elaborate, update and implement a “Regional blueprint of ecological coherence.”119 Last, coherence is also strived for through the merging of bodies that coexisted but sometimes had competing competences. The trend of the most recent laws is to rationalise competences. Law 1563/ 2010 reforming territorial authorities does pursue the same goal. For example, the Regional Department for the Environment, Agriculture and Housing (DREAL) has been created by law 1772/2006.120 4. Conclusion In sum, French water management is characterized by a plethora of norms and actors. Actors are dispersed among four levels of authorities: State, Region, Department, and local. Basically, the Ministry level regulates actors’ activities, defines major orientations of national water policy and regulates water police law. Water policies are piloted at the regional level and implemented at the departmental and local levels, whereas the latter is competent for drinking water and sanitation. Regional and departmental authorities are either decentralized authorities or decentralised (i.e., they remain under the supervision of State authorities). The general trend is decentralisation, whereas water management’s centre of gravity is at the regional level. This trend is organized by law (broadly speaking, i.e., the Constitution, laws, ministerial orders and decrees), whereas the tension between private property and room for public intervention triggers the scope of water policies. Conflicts among actors may not occur on a very regular basis because of the search for consensus. This search is implemented through a broad range of fora in which actors do discuss water management’s orientations and actual implementation. This search for consensus also involves private persons (both physical persons and legal persons such as environmental or consumer protection NGOs). The latter are also associated with water management policies through the use of contracts that have a 118 Trame verte et bleue. 119 SAGE, Schéma régional de cohérence écologique. 120 As seen previously, the DREAL is the fusion of three pre-existing regional Departments: industry (DRIRE), environment (DIREN) and facilities (DRE).

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limited legal value (or no legal value at all). Practice nevertheless shows that consensus may not relate back to a good consensus: lobbying can lower water policy orientations. This quest for consensus through participation and openness toward, on the one hand, decentralised bodies and on the other hand, interested persons (“civil society”) not only allows a consensus to be pursued, but also allows us to draw conclusions in terms of openness, transparency, and participation identified by the European Commission White Paper on good governance as good governance principles. From the preceding, it appears that (in theory) the French multi-layered framework largely meets openness, transparency and participation requirements. This is all the more true when taking into account that decentralised authorities at the regional level also play a crucial role in terms of awareness raising and education: water agencies do conduct actions that are meant to inform and raise the public awareness in the field of water and aquatic environments’ protection. Communities also have a role to play in informing the public regarding water quality: the prefect communicates informa­ tion  on water quality (in simple terms understandable by users) to the mayor who, in turn, advertises the information (Public Health Code, Art. D.1321(104) ). In addition, local authorities publish a yearly report on drinking and sanitations services’ prices and quality (General Code of Territorial Communities, Art. L.2224(5) ). When assessing the framework in terms of effectiveness and coherence, it appears that sanctions for noncompliance with EU water law have triggered and improved effectiveness of water management. A trend toward simplification of the sharing of competences and water policy procedures is believed to strive for more effectiveness. Nevertheless, practice partly contradicts this assumption. When our attention is directed to local authorities’ competences and responsibilities, it appears that they may have to address challenges without having the proper means to correctly fulfil these competences, and that they may have to deal with decisions made at higher levels that short circuit their actions. This is well-evidenced by the green algae pollution. Eventually, coordination is meant to ensure a better integration and coherence of water management. Coordination has been pursued by several techniques: modifying the legal status of guiding documents (providing for the compatibility of other documents with the former), creating coordination bodies or merging existing bodies that had overlapping competences. When assessing the French system, it appears that distinguishing theory from practice is crucial with a view to having the real “picture.” This is



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not specific to the French system. In turn, this calls for prospective paths that could be available in the short, medium or long term to ensure water management openness, accountability and effectiveness: citizens may have recourse to the European Court of Human Rights to have water rights’ infringements sanctioned. In this respect, the Court could have an incremental added value. Indeed, the Court acknowledges the reality of the situation and is not satisfied with a complex system of legal norms that may not properly function or be applied. In addition, the Court has a completely distinct dynamic: economic factors are not the crux. Gravity rather lies on the rights guaranteed. Furthermore, it could happen that the Court may have (in an indeterminate future) to ensure States’ compliance with water’s inherent and intrinsic value, that is, going beyond an instrumental approach that attributes value to water resources only in as much as humans make profits off these resources. Bibliography J.-B. Auby, “L’intervention départementale en faveur de la gestion d’un service public communal en régie” (2011) 11 Droit administratif 31–32. S. Braconnier, “La liberté de gestion des services publics à l’épreuve de la QPC” (2011) 32 Actualité Juridique - Droit Administratif 1809. O. Carton, “Le principe de libre administration des collectivités territoriales et la QPC: enjeux financiers, perspectives nouvelles?” (2011) 72 Revue Lamy Collectivités territoriales 9–12. M. Cavagnac and J. J. Gouguet, “La Directive cadre sur l’eau au défi de l’internalisation des effets externes” (2008) 3 Revue Européenne de Droit de L’Environnement 251–265. ENGO Eau et Rivières de Bretagne, Un décret absurde. Les ministères sourds aux protesta­ tions des Bretons (2011), available at http://www.eau-et-rivieres.asso.fr/index.php?47/665. Eurostat, Key Figures for Coastal Regions and Sea Areas, Statistics in Focus 47/2009, June 2009 (2009), available at http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-09-047/ EN/KS-SF-09-047-EN.PDF. J.-L. Gazzaniga et al., Le droit de l’eau (3rd ed.) (Tours, Litec, 2011). R. Guillien et al. (eds.), Lexique des termes juridiques (15th ed.) (Paris, Dalloz, 2005). V. Inserguet-Brisset, “Commentaire: Prolifération d’algues vertes sur le littoral Breton, Cour administrative d’appel de Nantes, 1er décembre 2009” (2011) 2 Revue Juridique de l’Environnement 281–306. Ministère de L’Agriculture, De l’Alimentation, de la Pêche, de la Ruralité et de l’Aménagement du Territoire, Mémento De La Statistique Agricole 2010 (2010), available at http://agreste.agriculture.gouv.fr/IMG/file/memo10contexte.pdf. H. Pauliat, “Libre administration des collectivités territoriales ou libre administration de chaque collectivité ?” (2011) 35 La Semaine Juridique 25–28. A. Saout, Théorie et pratique du droit de l’eau (Paris, Editions Johanet, 2011). I. Silva, “Conclusions: Amélioration de certaines pratiques agricoles et qualité des eaux en Bretagne, décret du 29 août 2007, Conseil d’état, 10 avril 2009” (2010) 1 Revue Juridique de l’Environnement 97–105. S. Solomon et al. (eds.), Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2007).

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P. Terneyre, “Le législateur peut-il constitutionnellement interdire aux départements de moduler leurs aides aux communes en fonction du mode de gestion du service public aidé ?” (2011) novembre 11–13 Revue Juridique de l’Economie Publique 691. M. Verpeaux, “Quand le Conseil constitutionnel veille au respect de la libre administration des collectivités territoriales” (2011) 36 Actualité Juridique - Droit Administratif 2067–2072.

WATER MANAGEMENT AND PROTECTION IN POLAND Barbara Iwanska, Paweł Czepiel and Marcin Stoczkiewcz1 Introduction In this chapter, the authors analyse current legal solutions in the field of water governance, focusing on the Polish water protection administration model. This water protection model differs to a certain extent from the general environmental protection administration model because it places main competences with specialised bodies of government water administration. Due to the character of the regulations in the administrative water protection law, it is not only necessary to transfer responsibilities for task implementation to specialised government bodies, but also adapt, to a certain extent, the legal solutions applied to date with relation to legal water protection measures as well as cooperation measures, including the role of the public. 1. Water Protection as the Subject of Legal Regulations The Act of Environmental Protection Law (EPL)2 constitutes a general law within the system of environmental protection legislation. As far as water management is concerned, it first and foremost provides the legal framework for water protection issues and outlines their directions (Articles 97–101). Moreover, EPL specifies the way in which environmental resources (including waters) should be protected, inter alia through: a) quality standards for the environment (also waters), supervision of their fulfilment, initiation of activities ensuring their restoration or preventing their violation; and b) emissions reduction on conditions defined in the provisions of the EPL Act concerning prevention of pollution that may originate from installations, equipment, substances or products. Furthermore, some measures included in the EPL Act may be applied for water protection

1 Researchers, Department of Environmental Protection Law, Jagiellonian University (Uniwersytet Jagielloński), Krakow, Poland. 2 Prawo ochrony środowiska 2001 (further referred to as the EPL Act).

464 barbara iwanska, paweł czepiel and marcin stoczkiewcz objectives (e.g., environmental reviews, provisions on civil, administrative and criminal liability, financial measures). In general, however, water protection issues are regulated in the Water Law Act (WL Act),3 which constitutes a general law for water protection issues and is supplemented by further legal regulations which comprise specific legal measures of water protection (e.g., the Act on inland sailing, the Act on geological and mining law, the Act on prevention and remedying of environmental damage, the Act on nature conservation, the Act on spatial planning and development). The WL Act is divided into eleven chapters that include inter alia: general rules, water usage, water protection, hydro-engineering structures, protection against floods, protection against droughts, water resources management, water associations and river embankment associations, liability for damage, and penal provisions. It transposes and integrates the Water Framework Directive (WFD) and other directives connected with water protection (e.g., Directive 2006/7/EC or Directive 2007/60/EC).4 Its objective scope covers inland surface waters, underground waters and to a certain extent, internal marine waters and territorial waters. Some issues related to selected water types (e.g., medicinal waters) or selected measures (e.g., underground water prospecting and recognition) are regulated in other acts (e.g., the Act on geological and mining law). 2. Public Administration System in Water Protection 2.1. Public Administration Subjects in Water Protection Water resource management, which includes water protection, is implemented in Poland with a division into the following river basins (dorzecze): Vistula (Wisły), Oder (Odry), Dniester (Dniestru), Danube (Dunaju), Jarft (Jarft), Elbe (Łaby), Nemunas (Niemna), Pregolya (Pregoły), Świeża (Świeżej) and Uecker (Ucker).5 These river basins are divided into water 3 Prawo wodne 2001 (further referred to as the WL Act). 4 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (2000) OJ L327/1; Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/ EEC (2006) OJ L64/37; Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (2007) OJ L288/27. 5 See the map presented in the State Water and Environment Programme, Warsaw 2010, available at http://www.kzgw.gov.pl/files/file/Programy/PWSK/Program_wodno-srodowi skowy_kraju.pdf.



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regions. The structure of water management administration is adjusted to the division into river basins and water regions. They do not coincide with the general administrative division of the country into Voivodships, Powiats and Gminas because they are delimited according to hydrographic conditions. Public administration bodies responsible for water protection can be divided into: bodies that execute over waters power resulting from the public law, and bodies that execute over waters power resulting from the private law and resulting from water ownership. Public administration bodies that execute power resulting from the public law and that are responsible for water management include: 1) the minister concerned with water management matters. Currently, the Minister of Environment (MoE) is responsible for water management and environmental protection. This is a principal body of Govern­ ment administration; it supervises the President of the NWMA and the Institute of Meteorology and Water Management; 2) the President of the National Water Management Authority (NWMA)  – as a central body of Government administration; 3) the directors of the Regional Water Management Boards (RWMBs) – as territorial bodies of non-combined Government administration; they are supervised by the President of the NWMA; 4) the  Voivods  –  as  representatives  of  the  Government  within  the Voivod­ship; 5) local government bodies. The following bodies also possess certain competences in the area of water management: 1) the Chief Inspector of Environmental Protection (CIEP) – as a central body of Government administration; 2) the General Environmental Protection Director (GEPD) – as a central body of Government administration; 3) the Voivodship Inspectors of Environmental Protection (VIEP) – as territorial bodies of combined Government administration; 4) the Voivodship Chiefs of the State Fire Service – as territorial bodies of combined Government administration; 5) the Regional Environmental Protection Directors (REPD) – as territorial bodies of non-combined Government administration. Moreover, certain special water management tasks connected with measurements as well as data collection, processing and dissemination are

466 barbara iwanska, paweł czepiel and marcin stoczkiewcz conducted by: the State Hydrological and Meteorological Service, performed by the Institute of Meteorology and Water Management; the State Hydrogeological Service, performed by the Polish Geological Institute; and the State Service for Damming Structures, also performed by the Institute of Meteorology and Water Management. Bodies that execute power resulting from the private law over public waters (owned by the State Treasury or local government units) include: 1) the Minister of Infrastructure (with respect to public marine waters owned by the State Treasury); 2) the President of the NWMA (with respect to inland waters owned by the State Treasury); 3) the directors of national parks (with respect to inland waters owned by the State Treasury and located within the boarder of a relevant park); 4) the Voivodship marshals (with respect to waters that are significant for regulation of water conditions and agriculture). Pursuant to the WL Act, owners of waters are obliged to maintain them. This obligation includes the maintenance of a good water status. The previous description of public administration bodies executing power over waters on the basis of public law shows that water management bodies include Government administration (Ministry of Environ­ ment, President of the NWMA) and local government administration (bodies of local authorities). Nevertheless, the bodies of Government administration at various levels hold the majority of competences in water management. They bear the main burden of the legally required public administration in water management. This administration is performed by bodies for which water management constitutes one of the many public tasks they are obliged to address (e.g., Ministry of Environment, Voivods, local authorities, Environmental Protection Inspection) as well as bodies for which water management is the sole or the main task (e.g., President of the NWMA). The roles of the MoE, the President of the NWMA and the directors of the RWMBs (all of which belong to Government administration) should be stressed here because each of these bodies specialises in water management administration. 2.2. Competences of Public Administration Bodies in Water Protection Planning and organisational tasks play a significant role in river basin management and are performed by bodies that specialise in water management and environmental protection. Most of the competences in this



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field stay with the President of the NWMA, the directors of the RWMBs as well as the MoE and the Council of Ministers. The State Water and Environ­ ment Programme, that is, the basic planning document, is prepared by the President of the NWMA, in consultation with the MoE. The President of the NWMA also prepares draft river basin management plans and the National Programme for Municipal Waste Water Treatment, together with a list of necessary investments, which is approved by the Council of Ministers. Directors of RWMBs prepare planning documents for respective water regions. Their competences include, among other things, preparation of: conditions for using waters of a water region, economic analyses for water use, flood risk management plans, drought impact prevention plans for river basins, running of the water cadastre, establishment of safeguard zones and areas by means of legal acts. Voivodship marshals also possess some competences, albeit quite limited, in the area of planning and organisational tasks. Tasks that obligate or restrict are performed by means of administrative decisions that specify the rights and obligations of natural and legal persons and through activities connected with the procedures relevant for these decisions. As a rule, competences in this area remain with local government bodies. A Starost is responsible for issuing water permits. To a certain extent, however, these competences may also fall within the scope of power of a Voivodship marshal, namely, in cases of a supra-Powiat character or cases with a significant environmental impact. Directors of the RWMBs issue such permits rarely. Two groups of bodies are responsible for tasks connected with control and supervision: water management administration bodies and specialised bodies of control administration. Water management control covers a whole range of obligations imposed on public and private subjects in the WL Act, including among other things: the implementation of water management plans and programmes, water use, the protection of water against pollution, the observance of conditions specified in decisions issued on the basis of the act, the maintenance of water or water facilities and the observance of conditions established for flood embankments and areas with a significant flood risk. The great majority of water management control tasks fall within the responsibility of the President of the NWMA and the directors of the RWMBs. The Sanitary Inspection and the Environmental Protection Inspection possess special control competences – the former regarding the state of water intended for human use and water at bathing beaches and the latter regarding protection of water from pollution. Local government administration performs control tasks rarely.

468 barbara iwanska, paweł czepiel and marcin stoczkiewcz Water management tasks of a directly executive character include construction of water facilities and facilities for protection against floods and droughts. These are mainly bodies of Government administration (the Council of Ministers, the MoE, the President of the NWMA) that are responsible for the specification of such tasks. The competence to implement these tasks, however, is granted mainly to local government bodies. Construction of municipal waste-water treatment plants and the related sewerage system provides a good example of how these competences are divided. Executive tasks in this area are identified in the planning document, the National Programme for Municipal Waste Water Treatment, which includes a list of necessary investments to be performed in respective agglomerations. The President of the NWMA prepares the programme and the Council of Ministers approves it. Its implementation, however, falls within the responsibility of the Voivodship marshal and local government bodies at the Gmina level. 2.3. Obligation of Cooperation between Public Administration Bodies in Water Protection Pursuant to Article 1(3) of the WL Act, “water management shall take into consideration the principle of joint interests and shall be implemented by means of cooperation between public administration, water users and representatives of local communities in order to achieve maximum social benefits.” The obligation of cooperation between public administration bodies in water management and public participation in decision-making on water management contribute to the implementation of this provision. Cooperation between public administration bodies with respect to water protection refers to all the aforementioned categories of tasks and is implemented through the obligation to seek an opinion or an approval for respective planning and regulative acts. Opinions issued by administrative bodies for other administrative bodies are not binding for the body seeking the opinion. Approvals, conversely, are binding for the bodies that submit a draft act of a decision for approval. Respective obligations of cooperation between various administrative bodies responsible for water management are imposed by means of the WL Act. They include, among others obligations, seeking: 1) the approval of a relevant director of the RWMB for such planning acts as Gmina land use plans, local area development plans and location decisions for public projects that require a water permit; 2) the opinion of Voivods and Voivodship marshals for a preliminary flood risk assessment prepared by the President of the NWMA;



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3) the approval of the MoE for the flood risk management plan prepared by the President of the NWMA; 4) the approval of the National Fund for Environmental Protection and Water Management for draft priority programme lists prepared by the President of the NWMA; 5) the approval of the MoE for the State Water and Environment Programme prepared by the President of the NWMA. Approvals and opinions for planning and regulative acts are issued in formalised administrative procedures, with specific forms of legal activity (mainly decisions) as well as deadlines that are binding for the bodies being consulted. As a consequence, the obligation of cooperation between administrative bodies responsible for water management generally does not lead to disputes and contributes to better coordination of activities. Apart from the aforementioned formalised obligations of cooperation, the Polish water management system also provides for obligations in the coordination of activities performed by various administrative bodies. Unlike cooperation, coordination does not employ formalised forms of collaboration. These obligations cover activities in flood and drought protection in water regions and are fulfilled by the directors of the RWMBs who run coordination and information centres, as well as collect, process and make public information necessary for emergency management. 2.4. Disputes between Public Administration Bodies in Water Management The structure of competences in water management is much more consistent and transparent than the structure of competences in other areas of environmental protection. In water management, the majority of planning and organisational competences lie within specialised water management administration: MoE, President of the NWMA and directors of the RWMBs. The majority of regulative competences belong to local government bodies. Such a division minimises the number of disputes over competence. Nevertheless, such disputes do also appear in this area of environ­ mental  protection, between bodies of the same level (e.g., Government and local government administration at the Voivodship level) as well as bodies of different levels (e.g., local, regional and central bodies). For an example of a positive dispute over competence, let us examine a dispute that arose between local government bodies, a Starost (Powiat authorities) and a Voivodship marshal (local Voivodship authorities), over the competence to define amelioration fees for the State that, pursuant to the WLA, should cover a part of the costs incurred by the State for hydrological

470 barbara iwanska, paweł czepiel and marcin stoczkiewcz amelioration facilities. The dispute resulted from the earlier transfer of some regulative competences of a Voivod (Government administration) in water management to a Voivodship marshal and some to a Starost. The Supreme Administrative Court ruled that these competences belong to the Voivodship marshal.6 This dispute occurred due to changes in the division of competences and unclear provisions of the legal act that defined them. Nevertheless, typical disputes over competence are of a negative type, which means that the body that interprets the provisions deems itself as incompetent to deal with a particular matter. Examples include disputes settled by the Supreme Administrative Court between local government appeal councils and: 1) the President of the NWMA, regarding the competence to try a complaint on a decision issued by a director of the RWMB providing a negative opinion to a draft outline planning permission with regard to hydrological amelioration. The Supreme Administrative Court ruled that the President of the NWMA was competent to try that complaint;7 2) a Voivod, regarding the competence to try an appeal in a case concerning the clearing of obstructions in an agricultural drainage ditch. The Supreme Administrative Court ruled that the Voivod was competent to try the appeal.8 Disputes over the competence of public administration bodies also result from the overlap of their competences in the imperium and dominium spheres; for example, the decision of the Voivodship Administrative Court in Gliwice of 27 May 20109 refusing the Director of the RWMB, acting as a body of higher level under the Code of Administrative Procedure provisions, the right to appeal against a decision to administrative courts. In general, however, a review of relevant judicial decisions shows that competence disputes are rare in the field of water management. Entrusting regulation and obligating tasks and competences (issue of water permits) to local government bodies (Starosts and Voivodship marshals) leads to a conflict of interests because these bodies are also

6 Naczelny Sąd Administracyjny (Supreme Administrative Court) Judgement OW 18/2004. 7 Naczelny Sąd Administracyjny Judgement II OW 36/2009. 8 Naczelny Sąd Administracyjny Judgement II OW 20/2008. 9 Wojewódzki Sąd Administracyjny (Voivodship Administrative Court) Judgment II SA/ Gl 1160/2009 (Gliwice).



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responsible for social and economic development, which frequently clashes with environmental protection tasks. Another group of administrative conflicts appears at the meeting of public law competences (imperium sphere) and the ownership competence of the State Treasury with regard to waters and water facilities (dominium sphere). Due to the accumulation of public law and private law competences, in the past, some bodies could rule on their own cases. Currently, Article 127(7)a of the WL Act clearly prevents such conflicts of interest, excluding directors of the RWMBs, Voivodship marshals and Starosts (acting as bodies of power administration) from deciding on matters in which these bodies act as applicants (through their ownership competences). In such cases, public law competences belong to another, relevant body. 3. The Role of the Public in WFD Implementation Legal guarantees for cooperation between the State and society in the area of water protection result from the general provisions on public participation in environmental protection matters and also from further provisions of the WL Act. The aim of the latter is to enable such water management that takes into account the principle of joint interests. It should be implemented through cooperation between public administration, water users and representatives of local communities so as to secure maximum social benefits. In this context, it is worth noting the following. First, in the area of water management, the principle of access to information on the environment and its protection is supplemented by water management information systems established on the basis of the WL Act, that is, the water cadastre and registers of some waters, hydrological land improvement structures and ameliorated land run by relevant bodies. Access to the cadastre and the registers is free of charge, whereas the general rules on access to information on the environment and its protection regulate such issues as: information search, the preparation of copies of documents or sending them to the applying parties. Second, candidates for the members of the National Council of Water Management, which is an opinion-making and advisory body to the President of the NWMA, are proposed by countrywide organisations that gather local government units, higher education institutions, research institutions and social, business and environmental organisations active in the area of water management. These subjects are also entitled to propose candidates to the Water Region Councils of Water Management,

472 barbara iwanska, paweł czepiel and marcin stoczkiewcz which constitute an opinion-making and advisory body to the directors of the RWMBs. The National Council of Water Management provides opinions on water management as well as protection against flood and drought. The Water Region Councils of Water Management provide opinions on water management in a particular water region. Third, the WL Act provides for active public participation in the preparation of the strategic documents required by the act (flood risk management plans, drought impact prevention plans for river basins, the State water and environment programme, river basin management plans, and conditions for using waters of a water region and waters of a river catchment). This participation is regulated by the rules and procedures specified in the general provisions on public participation in the development of strategic documents, that is, in the Act on access to public information. Pursuant to these provisions, everyone has a right to submit comments and motions in a procedure for the adoption of a strategic document. This right is guaranteed by the obligation imposed on the relevant body to inform the public about the initiation of the procedure, to ensure access to relevant documents and the possibility to submit comments and motions, to consider the comments and motions submitted and to inform the public about the adoption of the document, while providing public access to the document and its justification. For selected strategic water management documents, these general rules have been specified in greater detail, in particular with regard to the content of information presented to the public, the deadline for its presentation, as well as the deadline for submitting comments and motions. River basin management plans constitute an example here. Pursuant to the WL Act, to ensure the active participation of all interested parties in the fulfilment of environmental objectives and to enable submission of comments, the relevant body informs the public about: 1) a schedule and programme of activities connected with the development of the plan, including a list of activities on which they must consult at least three years prior to the period covered by the plan; 2) a review of significant water management problems identified for the river basin in question, at least two years prior to the period covered by the plan; 3) a draft river basin management plan, at least one year prior to the period covered by the plan. Within six months of providing the previously listed information to the public, interested parties can submit, to the relevant body, their



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comments (in written form) on the decisions made in the presented documents. Moreover, public participation, including participation of environmental organisations, is excluded from the proceedings in which water permits are issued (except for IPPC permits). Pursuant to the WL Act, only the subjects with a legal interest, which are enumerated in the act, can be parties to a water permit procedure. This means that neither the general Code of Administrative Procedure rules (Article 31), nor the special rules regarding proceedings with public participation specified in the Act on access to public information apply. Public participation, regarding general or special conditions, is possible only in other administrative decisions that are important for water management (e.g., a decision on environmental conditions, a building permit). Furthermore, in the circumstances provided for in legislation, environmental organisations have the right to submit preventive claims if some damage or the threat of it occurs in waters understood as a common good. The rights provided for in Article 323 of the EPL Act, discussed in greater detail below (civil liability), may serve as an example. Finally, NGOs participate, albeit to a limited extent, in water management control activities. The WL Act obliges the relevant bodies to cooperate during control activities not only with other public administration bodies, but also with social organisations. This cooperation is limited to the consideration of applications to initiate control and exchange of information about control results. 4. Mechanisms for Application and Enforcement of Water Protection Legislation Pursuant to the principle of universal water protection, all waters are protected, regardless of the subjects that own them – whether it is the State or other legal or natural persons.10 Water protection regulations are based on the water management principle, in particular: the shaping and protection of water resources, water usage and water resource management pursuant to the principle of sustainable development. Other principles of water management provided for in the legislation include: rational and comprehensive treatment of surface and underground water (taking into 10 Waters owned by the State or local government units constitute public waters and as a rule do not fall within the scope of civil law transactions.

474 barbara iwanska, paweł czepiel and marcin stoczkiewcz consideration their volume and quality), special use of underground water, planning, universality of protection, prevention, increased protection of water against pollution with substances that are particularly harmful for the aquatic environment and the legal restriction of activities that may pose a risk to waters.11 Moreover, water management takes into consideration the principle of common interests reflected in cooperation between public administration, water users and representatives of local communities to maximise social benefits. Water management should take into account public interests but at the same time, it should prevent, if possible, any decline in the environmental functions of such water and deterioration of the state of land ecosystems and wetlands that directly depend on the water. Some aspects water management is comprised of include: a) the shaping and protection of water resources; b)  water resource management, which is implemented taking into account the division into river basins (including international river basins located within the Polish territory) and water regions; river basins constitute the main spatial unit for water management,12 which determines, among other things, the legal and organisational system for water protection; c) water usage (including common, ordinary and special), that is, its use for the needs of people and the economy; it must not deteriorate the status of waters or ecosystems depending on them, lead to wastage of water or hydro-energy, or cause damage. Two main components of water resource management exist. First, the type of activities that are implemented by means of administrative; civil and penal water protection measures specified in the WL Act. Second, the objective of these activities, that is, the maintenance or improvement of the water status and the quality of biological relations in the aquatic environment and wetlands. To enable the fulfilment of the WL Act objectives, the legislator introduced a division of water resources (e.g., flowing and standing water) which, pursuant to the WFD, allows for specifica­ tion of discrete and significant elements of water, referred to as bodies of water. 11 J. Rotko, “Kluczowe problemy gospodarowania wodą w świetle prawa polskiego” in H. Lisicka, Wybrane problemy prawa ochrony środowiska. Rola sądów. Prawo wodne (Wrocław, Wydawnictwo Prawa Ochrony Środowiska, 2007), at 144–5. 12 Ibidem at 142.



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The measures provided for in the WL Act that enable public administration to effectively manage water resources include: water management planning, water permits, water management fees and dues, the water cadastre and water monitoring as well as enforcement measures, such as administrative and punitive sanctions supplemented with regulations on civil liability. Planning measures in the area of water management allow for the programming and coordination of activities aimed at achieving or maintaining at least a good status of waters and water-dependent ecosystems, improving the status of water resources, broadening the possibilities of water use, decreasing the amount of substances and energy that are discharged to water or ground that may have a negative impact on waters and improving flood protection. The WL Act stipulates that the following documents should be developed (this is a continuous activity and should be performed within the six-year-long cycle of water management planning): – the State water and environment programme, which takes into consideration the division into river basins; – river basin management plans for the ten river basins that exist in Poland (the basins of the Vistula and the Oder cover the majority of the country);13 – flood risk management plans; – drought impact prevention plans for river basins; – a list of conditions for using waters of a water region and waters of a river catchment. Water permits are a measure for quantitative and qualitative water protection; a water permit constitutes the most common method for application of the water law.14 The WL act enumerates various types of activities for which water permits are required. They can be divided into activities that fall within the scope of special water use (e.g., abstraction and discharge of surface and underground waters; sewage discharge to water or grounds; use of water for energy purposes; use of waters for navigation or floating; extraction of stone, gravel and sand from water) and those that do not constitute special water use but are restricted by water permits 13 More detailed planning documents are prepared for the needs of the state water and environment programme and the river basin management plans (e.g. registers and descriptions of water bodies, economic analyses for water use, water monitoring programmes). 14 J. Boć and E. Samborska-Boć, “Administracyjnoprawne formy działań ochronnych” in J. Boć (ed.), Ochrona Środowiska (Wrocław, Kolonia Limited, 2004), at 249.

476 barbara iwanska, paweł czepiel and marcin stoczkiewcz (e.g., water regulation and changes in the topographic features of land located next to water that will influence water flow conditions, construction of water facilities). Water permits define the purpose and scope of water usage, conditions on which this permit can be applied and requirements referring to the protection of environmental resources and interests of people and the economy. Financial measures in the area of water management can be divided into three main groups: fees for the actual and lawful use of the environment (sewage discharge to water or ground and water abstraction); economic tools defined in the WL Act, that is, fees that have a character of a public tribute (e.g., fees for using inland waterways) or of a pecuniary performance resulting from the relation of obligation (e.g., an annual fee for making a fishing district available for use);15 and an increased fee, imposed for using waters without an emission permit and an administrative financial penalty, imposed for violating water use conditions specified in a particular decision. The water cadastre is a system of information on water management and is used to collect and update information on the status and use of water resources, including but not limited to information on: the quantity and quality of water resources, sources and types of pollution, water use and its types, safeguard zones and areas as well as planning docu­ments  related to water protection. The cadastre covers the whole country but takes into consideration the division into river basins and water regions. Its effective functioning is ensured, on the one hand, by the obligation imposed on public administration bodies, research institutes, plants and owners of water facilities to submit for free all the data that are necessary for running the cadastre and, on the other hand, by the obligation to secure public access to the information entered into the cadastre.16 The water monitoring as an instrument of water management is implemented within the State environmental monitoring, that is, “a system of environmental measurements, assessments and forecasts allowing for the collection, processing and dissemination of information on the environment.” It covers information inter alia on: the status of surface and underground waters, marine internal waters, territorial marine waters as well as types and quantity of substances and energy discharged to water. 15 J. Rotko, Prawo wodne, Komentarz (Wrocław, Wydawnictwo Prawo Ochrony Środowiska, 2002), at 378–9. 16 Ibidem at 389–390.



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Information is collected regularly by means of uniform data collection and processing methods. Administrative sanctions constitute a common measure for water law enforcement. They include: repressive sanctions, enforcement sanctions (those which enforce the fulfilment of a particular obligation) and sanctions that deprive a person of or limit certain rights. They cover the following cases: a) as regulated in the WL Act: withdrawal or restriction of a water permit, changes in the water permit, an order imposed on a landowner to restore the former state or to install facilities to prevent damage, an order to remove a water facility, an order to restore a water facility to its previous function or to remove damage, (temporary) closure of a plant or its part, b) as regulated in EPL Act: an obligation to conduct preventive or remedial activities, suspend activities or the use of an installation, impose an administrative financial penalty or an increased fee, revoke or restrict an emission permit. Criminal sanctions that penalise actions violating water protection legislation occur in the Penal Code, the Code of Petty Offences as well as in the WL Act. They cover two forms of liability: for offences and for petty offences. The offences against the environment that are classified in the Penal Code also include offences connected to the negative impact on water (e.g., water pollution that may threaten the life or health of many people or lead to significant damage to flora or fauna). The objective of the penal sanctions that are provided for in the WL Act as a measure for enforcement of water law requirements is to ensure that the duties imposed by public law through this act are fulfilled regardless of their substantive impact on the quantitative and qualitative water status.17 Depending on the character of the offence, sanctions may impose a penalty of imprisonment, a penalty of restricted freedom or a penalty of a fine and additional penal measures, such as an obligation to remedy the damage or to pay compensatory damages. Civil liability in environmental protection goes beyond the provisions of the Civil Code which allow an injured party to submit restitution and preventive and indemnity claims (traditional damage). It is also regulated in the environmental protection legislation, in which provisions allow eligible subjects to submit claims not only when traditional damage, but also when environmental damage has occurred. As far as water management is concerned, it is worth looking at Article 323 of the EPL Act, in particular at 17 J. Boć and E. Samborska-Boć, “Odpowiedzialność prawna w ochronie środowiska” in J. Boć (ed.), Ochrona Środowiska (Wrocław, Kolonia Limited, 2004), at 404.

478 barbara iwanska, paweł czepiel and marcin stoczkiewcz the quasi-restitution claim. Pursuant to this provision, every person who, due to an illegal environmental impact, (also impact on water) is directly threatened by damage or to whom damage has been caused can demand that the subject responsible for the threat or the damage restores the lawful state and undertakes preventive measures. Should this be impossible or excessively problematic, such a person can demand that the activity causing the threat or the damage be suspended. If the threat or the damage refers to the environment (waters) as a common good, the State Treasury, a local government unit or an environmental organisation can submit such a claim. Moreover, each person entitled to submit such a claim can demand that the court obliges the subject covered by the claim to provide information that is necessary to define the scope of liability for the threat or damage. 5. Effectiveness and Accountability, Limits, Challenges, Steps forward The previous analysis of the Polish legal water protection system, including the water protection administration model and water management solutions, can be summarized through identifying a set of attributes that determine water management rules. They include the following. Guaranteeing and maintaining the required volume and quality of water as well as eliminating or minimising threats to the water sector is important first and foremost due to relatively limited water resources in Poland per capita (resulting from low precipitation and high population) and the high flood risk (resulting from uneven precipitation and the flow of water from the south to the north).18 The Constitution lacks a provision that would regulate expressis verbis the issue of water protection. However, because water constitutes one of the components of the environment, it falls within the scope of the constitutional provisions on the environment and its protection. This means that: the Republic of Poland is obliged to ensure water protection pursuant to the sustainable development principle; and water protection constitutes a duty of public authorities, which is fulfilled inter alia through policies guaranteeing environmental safety to the current and future generations and support for public activities for water protection and the 18 Draft State Strategy on Energy Safety and Environment, 2020 Outlook (2001), available at http://www.mg.gov.pl/files/upload/13281/BEIS_ver_4_maja.pdf.



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improvement of its status; everyone has a right of access to information about the status of water and its protection; everyone is obliged to care about the status of water and bears responsibility for any deterioration of this status (the rules of this responsibility are regulated by a statute); protection of water as an environmental component may justify restrictions on constitutional freedoms and rights of persons and citizens (they can be imposed by the legislator only by means of a statute and within the scope established by the rule of proportionality); and all public authority bodies should be involved in water protection. It is worth stressing that the WL Act contains the main part of legal regulations concerning water management. In the area of environmental protection, the WL Act constitutes an act concerning special matters with regard to the general law, that is, the EPL Act. In the field of water protection, however, the WL Act constitutes a general law and is supplemented by other legal regulations concerning special matters. The WL Act transposes and integrates the EU water management legislation into national law. The legal issues in water protection and the construction of the WL Act allow the differentiation of three main areas of water management in Poland: water use, water maintenance and water regulation.19 Water management is conducted pursuant to the WL Act and the strategic documents prepared on its basis, including the State Water and Environment Programme of 2010.20 The Programme contains an ordered group of activities aimed at the fulfilment of the adopted environmental objectives that should contribute to achieving a better water status. Depending on the assessment of the risk that the environmental objectives are not fulfilled, these activities are divided into those that result from the national and EU legislation, basic activities that are implemented in nearly all water bodies in the country and types of supplementary activities provided for in the WL Act, focused on the achievement of environmental objectives. Pursuant to Article 4 of the WFD, the programme contains the following exceptions: longer deadlines, less stringent objectives, failure to achieve the objectives due to implementation of new investments. Transparency of the activities of the water administration and pub­ lic  control over them are additionally ensured by: the publicly acces­ sible  water cadastre, provided for in the WL Act, the procedure for 19 J. Rotko, Podstawy prawne gospodarki wodnej (Wrocław, Wyższa Szkoła Informatyki i Zarządzania “Copernicus”, 2006), at 53 et seq. 20 State Water and Environment Programme (2010), available at http://www.kzgw.gov.pl/ files/file/Programy/ PWSK/Program_wodno-srodowiskowy_kraju.pdf.

480 barbara iwanska, paweł czepiel and marcin stoczkiewcz appointment of members of opinion-making and advisory bodies in water administration and the possibility of participation available for all interested parties in the adoption of strategic documents that are significant for water management. The practical significance of the last measure is exemplified by the important role that social consultations played in the choice of basic and supplementary activities in the current State Water and Environment Programme.21 As far as water protection is concerned, the legislator has not introduced any additional (to generally binding rules) guarantees in water administration control and has not granted special procedural rights for selected subjects and environmental organisations in administrative and judicial-administrative proceedings. On the contrary, the legislator has excluded public participation in the proceedings on granting a water permit (except for IPPC permits). As with environmental protection in general, the Constitution does not define a model for water protection administration. Considering, however, the character of water management, the necessity to balance local and supra-local needs and interests, both within the national and international contexts, the existing water management model may be considered justified. It is based on specialised water administration created to enable the implementation of a uniform water management policy at the national level. The transposition of the WFD has also influenced the establishment of a coherent water administration model, including creation of a two-level government administration in water management, that is, the President of the NWMA and the directors of the RWMBs, who currently possess a significant proportion of the competences in this field.22 The Directive has strengthened the position of central administration and non-combined Government administration, at the same time reducing the role of local government administration and combined Government administration (mainly Voivods). Unlike in environmental protection administration, the tasks and competences of water management administration have been divided between respective bodies rather consistently and clearly. Special­ ised bodies of water management administration (the MoE, the President of the NWMA and the directors of RWMBs) fulfil the key role in this model. They are responsible for planning, organisation and control measures. The role of general local government administration, that is, bodies that do not specialise in water management, is limited to restrictive and obligating 21 Ibidem at 17. 22 J. Rotko, Prawo wodne, Komentarz supra, at 262.



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measures (water permits) and executive measures (construction of water facilities, waste water treatment plants, sewerage systems) that have been specified earlier by the water management administration in planning documents. The WFD, which in Article 3(2) imposes on the Member States the obligation to ensure “the appropriate administrative arrangements, including the identification of the appropriate competent authority, for the application of the rules of this Directive within each river basin district lying within their territory,” has also contributed to strengthening cooperation between different public administration bodies dealing with water protection. The need to cooperate also ensues from the character of problems that occur in this area (their comprehensive and global scope) and the supra-local nature of the waters to be protected. Cooperation by means of administrative opinions and adjustments minimises the risk of disputes between respective administration bodies. It is formally reflected inter alia in Article 1(3) of the WL Act, which provides for the principle of “common interests realised by cooperation”. At the same time, Poland’s geographical location necessitates international cooperation on border waters (42% of the Polish border is on border waters). This cooperation is implemented through bilateral border waters cooperation agreements, conventions and treaties. To manage border water cooperation, working groups are established to solve day-to-day problems. International cooperation is of key significance for Poland, considering that most of the border waters flow from the neighbouring countries to Poland. As a consequence, “Poland is a consumer of the manner in which economic subjects of the neighbouring countries use these waters.”23 As far as the effectiveness of water administration is concerned, it might prove problematic that this administration is divided according to river basins and water regions, which have been defined on the basis of hydrographic criteria, and does not coincide with the general division into Voivodships, Powiats and Gminas. However, the clear distribution of power into planning competences (in general, staying with specialised water administration) and restrictive/obligating competences (in general, staying with unspecialised local government administration) to a large extent eliminates the sources of possible disputes.

23 Information on water management presented by the Minister of Environment, available at http://orka.sejm.gov.pl/Druki6ka.nsf/wgdruku/723/$file/723.pdf. See at 29–35.

482 barbara iwanska, paweł czepiel and marcin stoczkiewcz Bibliography J. Boć (ed.), Ochrona Środowiska (Wrocław, Kolonia Limited, 2004). Draft State Strategy on Energy Safety and Environment, 2020 Outlook (2001), available at http://www.mg.gov.pl/files/upload/13281/BEIS_ver_4_maja.pdf. J. Rotko, Prawo wodne, Komentarz (Wrocław, Wydawnictwo Prawo Ochrony Środowiska, 2002). J. Rotko, Podstawy prawne gospodarki wodnej (Wrocław, Wyższa Szkoła Informatyki i Zarządzania “Copernicus”, 2006). J. Rotko, “Kluczowe problemy gospodarowania wodą w świetle prawa polskiego” in H. Lisicka, Wybrane problemy prawa ochrony środowiska. Rola sądów. Prawo wodne (Wrocław, Wydawnictwo Prawa Ochrony Środowiska, 2007). State Water and Environment Programme (2010), available at http://www.kzgw.gov.pl/ files/ file/Programy/PWSK/Program_wodno-srodowiskowy_kraju.pdf. J. Szachułowicz, Prawo wodne. Komentarz (Warsaw, LexisNexis, 2010).

WATER MANAGEMENT AND PROTECTION IN THE WESTERN BALKANS Olivera Kujundzic1 Introduction Prior to 1992, only six international river basins existed in the Balkans, but after the breakup of the former Yugoslavia, the number more than doubled, strongly affecting water management in the region. Regional cooperation in the water sector is significant and has been facilitated through numerous regional and international agreements, projects and initiatives.2 River basins are mostly shared between the countries; therefore, common management patterns are enhanced and encouraged. Many bilateral and multilateral treaties concerning water resources in the Balkans were concluded in the past; some of which are still in force. For instance, the Danube Commission was established under the Belgrade Convention on the Danube Navigation Regime in 1948. All the new States in the Danube River Basin have joined the Danube River Protection Convention and concluded bilateral agreements on shared water resources. Currently, 13 internationally shared river basins and four transboundary lake basins exist in the region. To illustrate water management and protection patterns throughout the Western Balkans, three countries have been chosen to represent the region. These particular countries (Croatia, Montenegro, Bosnia and Herzegovina) were chosen due to their diversity regarding governance levels and varying stages in approximation to EU legislation.

1 Legal Advisor, Italian Ministry for the Environment, Land and Sea, Rome, Italy/ Montenegrin Ministry for Spatial Planning and the Environment, Podgorica, Montenegro. 2 Collaboration in the water sector is notable between Montenegro and Albania, as well as between Albania, Greece and Macedonia (Prespa Lakes Basin). However, the most remarkable regional achievement was undoubtedly the ratification of the Framework Agreement on the Sava River Basin (Kranjska Gora, 3 December 2002) and the Protocol Regulating the Navigation Regime on the Sava River and its Tributaries (Kranjska Gora, 3 December 2002). The treaty was signed and ratified as a river basin agreement between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and Slovenia. It consequently does not apply to the parts of the Sava River Basin furthest upstream and in Montenegro.

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Bosnia and Herzegovina has quite a complex system of governance (State level, level of State entities and Brčko District, Cantons and Municipalities in FBiH and Municipalities in Republika Srpska), whereas Croatia has three levels (State level, regional level and municipal level) and Montenegro has two governance layers (central government and Municipalities). Different phases of negotiation with the EU as well as varying levels of harmonization with water legislation affect water governance of these countries. Croatia has just made it in front the door of the EU, whereas Montenegro is well advanced but has not yet started the EU negotiation process and Bosnia and Herzegovina is still only a potential candidate country. The fact that these three countries border each other was not neglected in this context. 1. Croatia The Constitution of the Republic of Croatia treats waters as a natural resource of particular interest to the Republic and therefore grants special protection and regime of water use: The sea, seashore and islands, waters, air space, mineral wealth and other natural resources, as well as land, forests, fauna and flora, other parts of nature, real estate and things of special cultural, historical, economic or ecological significance which are specified by law to be of interest to the Republic, shall enjoy its special protection. The way in which goods of interest to the Republic may be used and exploited by holders of rights to them and by owners, and compensation for the restrictions imposed on them, shall be regulated by law.3

The Constitution does not go into detail regarding competences for water management and protection, except when it prescribes that the right of decision making on the preservation of natural and cultural wealth and its use belongs to the Croatian Parliament and the people of Croatia  (Article 2).

3 The Constitution of the Republic of Croatia 1990, available at http://www.sabor.hr/fgs .axd?id=17074. The consolidated text of the Constitution of the Republic of Croatia encompasses the Constitution of the Republic of Croatia (56/90, 135/97, 8/98 – consolidated text, 113/2000, 124/2000 – consolidated text, 28/2001, 41/2001 – consolidated text, 55/2001 – correction) and the Amendments to the Constitution of the Republic of Croatia 76/2010, in which the date of their entry into force is indicated.

water management and protection in the western balkans485 Two main legal acts govern water management and protection in Croatia – the Water Act4 and the Water Management Financing Act.5 At the beginning of 2011, an attempt was made to adopt a new Water Act that was meant to privatize “Hrvatske vode”, a non-profit public administration body, as well as water resources. Strong civil society opposition forced the Croatian Government to draw back the draft law.6 The Water Act enumerates specific activities in the water sector (e.g., water quality assessment, hydro-geological works, melioration, floods prevention and control) to be performed by public and private bodies and foresees the establishment of specific scientific institutes to provide sci­ entific support to water management and protection. The Ministry of Regional Development, Forestry and Water Management, the so-called Water keeper’s service, is to establish an additional interesting service. Under this service, Water keepers would directly supervise such issues as waters conditions, water objects and illegal use of gravel and sand. Instead of the decentralized inspection that was present in Croatia before 2009, the Water Act prescribes re-centralization of water inspection at the State level. It also clearly defines the roles of other inspection bodies (e.g., sanitary, phytosanitary, agricultural and mining inspection) in the implementation of the Law. Local and regional self-government units also have their role; however, it is limited to water protection activities, whereas management is performed at the central government level. Water management and protection is under the competence of the Ministry of Regional Development, Forestry and Water Management, whereas “Hrvatske vode”, the State water agency, is the main executive body in the water sector. This body is supervised by the Ministry of Regional Development, Forestry and Water Management and the National Water Council elected by the Parliament. The State agency “Hrvatske vode” has six regional and 32 local management units and conducts integrated management of Croatian water resources on four river basin Districts: Sava River, Drava and Danube, Istrian-Littoral and Dalmatian.

4 Zakon o Vodama 153/09, 63/11. 5 Zakon o izmjenama i dopunama Zakona o prostornom uređenju i gradnji 153/09, 90/11. 6 Konačni predlog Zakona o vodama, drugo čitanje (Final Proposal of the Law on Waters, second reading), P.Z.E. 214; on 30 June 2009 the Proponent (the Government of the Republic of Croatia) withdrew the proposal of the law from the parliamentary procedure. See the Archive of the Croatian Parliament at http://www.sabor.hr/Default.aspx?art=28245 &sec=2896.

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Recent years have been marked with high-quality and intensified cooperation at all management levels, which was initially brought about by high investments in infrastructure in the water sector.7 In general, all significant investments were managed at the central level by the State agency “Hrvatske vode”, but both Regions (Županije) and Municipalities were involved as joint debtors and final beneficiaries. The EU approximation process which invoked and accelerated these investments also caused the prevalence of powers at the central governance level. Therefore, the new legal framework favours the State government in terms of “conduct and control” taking place at the central level. Fulfilment of the EU requirements was a top priority of the Croatian Government, and therefore many infrastructure problems were solved with the strong support of the central government. When certain local authorities could not adequately respond to their loan obligation, the government partially took over their debts.8 In recent years, cooperation patterns were strengthened by joint infrastructure investment projects and were highly politically motivated because the country was trying to comply with the obligations stemming from EU accession. However, the sustainability of these patterns is still to be tested in the future, especially when the central government changes its role in terms of “supply and demand”. Keeping in mind that the “supply phase” (finance, expertise, access to pre-accession aid) has concluded and that the “demand phase” (demanding proper implementation of the new legal framework) is about to start, the nature of the problems and conflicts among governance layers is still to be identified. The Croatian legal system, as well as other systems in the region, maintains a rather rigid framework under the influence of common heritage, so that the constitutional courts have mostly an interpretative role.9 Case law does not constitute an official source of law in the Republic of Croatia. Pursuant to Article 117 of

7 European Bank, Strategy for Croatia: 2010–2013 (2010), available at http://www.ebrd .com/downloads/country/strategy/croatia.pdf. 8 Odluka Vlade Hrvatske o donošenju plana rješavanja obveza jedinica lokalne samouprave i/ili komunalnih trgovačkih društava s osnova korištenih kredita za sanaciju, obnovu i izgradnju vodnogospodarske infrastructure 64/11 (Government decision on adopting a plan to solve credit obligations of local government units and/or communal associations for sanitation, reconstruction and construction of water infrastructures, available at http:// www.monitor.hr/clanci/vlada-mijenjat-ce-se-ugovori-hrvatskih-voda-i-opcina/147767/). 9 W. Sadurski, “Postcommunist Constitutional Courts in Search of Political Legitimacy” (1999),   available   at   http://law.wustl.edu/harris/conferences/constitutionalconf/ Constitutional_Courts_Legitimacy.pdf.

water management and protection in the western balkans487 the Constitution of the Republic of Croatia, courts adjudicate cases on the basis of the Constitution, acts, international treaties and other applicable sources of law. Noting that the new legal framework in the water sector adopted in 2009 came into force only in 2010, no sufficient time elapsed for the development of case law. Conversely, the public did not always perceive necessary changes in the water management policy and legislation as positive. The Law on Environment10 of the Republic Croatia is quite detailed regarding public participation rights and the possibility of approving additional legislative acts to further regulate this matter. In this regard, current legislation defines the difference between “public” and “public concerned”. The “public” is defined as one or more natural or legal persons, their groups, associations and organizations in accordance with special regulations and practice, whereas the “public concerned” is the public which is affected or likely to be affected by environmental decision-making and which lives or works in an area in which adverse environmental effects are possible or likely to occur (Article 2 of the Environmental Protection Act). A more substantial definition introducing a “justifiable legal interest” is given in Article 144 of the Environmental Protection Act: Any natural or legal person which can, in conformity with the law, prove a permanent violation of a right, due to the location of the project and/or the nature and impact of the project, shall be considered to have a justifiable legal interest in the procedures regulated by this Act in which the participation of the public concerned is provided for.

Environmental NGOs are considered to have “a sufficient legal interest” in the procedures regulated by this Act, which provide for the participation of the public concerned, if they fulfill the following conditions: – they are registered in accordance with legal requirements and their Statute specifies environmental protection, protection of human health or rational use of natural assets among their goals; – they have been registered for at least two years prior for the initiation of the public authority’s procedure on the request in relation to which it is expressing its legal interest, and if it can prove that in that period, it actively participated in activities related to environmental protection

10 Zakon o zaštiti okoliša (Environmental Protection Act) 110/07, available in English at http://www.mzopu.hr/doc/Environmental%20Protection%20Act%20OG%20110-07%20 ENG.pdf.

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in the territory of the City or Municipality where it has a registered seat in accordance with its Statute. The Environmental Protection Act obliges public authorities to enable “timely and efficient public participation in the procedure of preparing implementing regulations and other generally applicable legally binding rules under their competence” if these regulations and other binding rules “could have a significant impact on the environment”. The term “significant impact on the environment” is not further elaborated. Although Croatian legislation related to public participation in environmental matters is the most advanced in the region, the European Commission in the Progress Report 201011 marks its implementation as insufficient and advises strengthening of cooperation with judiciary in these matters. For example, the recent case of adoption of the new river basin management plans in Croatia, following implementation of the Water Framework Directive prescriptions, caused strong opposition from environmental NGOs and the public. The World Wildlife Fund (WWF), EuroNatur and a number of Croatian environmental NGOs organized a series of protests and even addressed the European Commission. The protesters have claimed that the plan would turn the Danube and Croatia’s other rivers into “little more than regulated canals”.12 Protestors claim that some 111 kilometres of “Europe’s Amazon”, comprising parts of the natural meandering river stretches of the Danube, Drava and Mura rivers in Croatia could be channelled in a way that would destroy Europe’s largest river protected area without bringing any real economic benefit to the region.13 Public participation in the process of development of river basin management plans is supported by a grant from the Instrument of 11 European Commission, Croatia 2010 Progress Report, SEC (2010) 1326, 9 November 2010,  available   at   http://www.mfa.hr/custompages/static/hrv/files/101110_Izvijesce_o _napretku_HR_za_2010.pdf. 12 P. Stewart, “Croatian plan to turn rivers into channels results in protests to EU” (2011), available at http://mouthtosource.org/rivers/danube/2011/02/04/croatian-plan-to -turn-rivers -into-channels-results-in-protests-to-eu/. 13 “The enforcement of such outdated projects just before Croatia’s admission to the EU is a big scandal and a slap in the face to all those who take EU accession and environmental protection seriously. The Croatian Water Management board is obviously trying to quickly approve projects that would never normally comply with the stronger and more modern EU legal system,” said Arno Mohl, Project Coordinator of the “Mura-Drava-Danube” Biosphere Reserve project at WWF Austria. See A. Mohl, “Massive Destruction of “Europe’s Amazon” Planned ahead of Croatia’s Accession to the EU” (2011), available at http://wwf .panda.org/wwf_news/?200699/destruction-Europes-Amazon-Croatias-accession-EU.

water management and protection in the western balkans489 Pre-Accession (IPA) Cross-Border Programme between Croatia and Bosnia and Herzegovina. The project, named “Moving towards successful public participation in the Sava River Basin water management” is still on-going. Despite the legislative provisions on public involvement, the support of international NGOs and pre-accession funds, the practice shows that the Croatian Government is still reluctant to fully include the public in these activities. However, in the case concerning privatization of “Hrvatske vode” and Croatian water resources, the Croatian Government had to draw back the draft law because of public pressure. Moreover, in the EC Progress Report 2010 for Croatia, the Commission recommends strengthening cooperation with the judiciary in these matters. The fact is that not only in Croatia, but also throughout the region, all “winning cases” in which public opinion prevails are not the result of rule of law and court procedures but of national and international political pressures. The assumption that the level of harmonization with EU acquis makes a significant difference in policies development and implementation is true, but it does not mean that legal harmonization alone will solve all the issues. As the most advanced candidate country, Croatia, which was recently granted membership status by mid-2013, has different but not lesser problems related to water management than do the other countries in the region. In the Progress Report for 2010, it is stated that “a significant step forward was taken with the adoption of the new Water Act and the Water Management Financing Act” but investment in this sector is still insufficient, monitoring and reporting need to be improved and significant efforts are still needed regarding finalization of a river basin management plan. The last issue – finalization of a river basin management plan – obviously represents the biggest challenge for the Croatian administra­tion. To ease the coordination of all EU demands, Croatia decided to centralize all the powers in the State agency for water management. Built on the principles of the past, the “Hrvatske vode” does not have a strong environmental background or water protection role. In this sensitive political moment, local authorities who are in charge of environmental protection do not have a strong counterpart position. Therefore, the conflicting issues of water use, protection from floods and environmental protection of waters are not represented with equilibrium of powers among governance actors and layers at the moment.

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olivera kujundzic 2. Montenegro

The Montenegrin Constitution does not have specific provisions related to water management and protection. Water management and protection is regulated by Law on waters14 and Law on Financing of Water Management.15 In Montenegro, four ministries and seven public administration bodies are currently in charge of activities related to water protection and management. In addition, 21 local administration bodies and several public companies provide public services in the water sector. On top of this complex framework and with unclear definitions of competences, a State Water Council also exists, but it does not have a mandate to coordinate; rather, it plays an advisory role. Following an ex-Yugoslavian tradition in most of the former YU countries, the responsible ministry for water protection and management is not the one responsible for environmental matters, but rather the one in charge of agriculture and often of forestry as well. Therefore, in Montenegro, the protection of waters is in the competence of the Ministry of Agriculture and Rural Development which is also in charge of water use, whereas the Ministry of Sustainable Develop­ment and Tourism (generally competent for environment protection) has competence related to waste water management and overlapping competences with other public administrative bodies related to marine protection. The Ministry of Health and the Public Health Institute are concerned with drinking water quality, sharing that competence with water supply companies. The Ministry of Interior is in charge of floods management. Division of responsibilities between central and local governmental units is made in accordance with the general system of definitions of resources and objects of State or local interest.16 Accordingly, if initial permitting in the water sector has been performed at the local or State level, all other competences are implemented at that same level. Article 11 of the Law on waters enumerates 30 types of objects and activities, specifying the competence of central or local government for each of them. However, the aforementioned system is applied mostly to water use. With regard to water protection, provisions of the Law are much more unclear. For example, observed water pollution shall be reported to one of 14 Zakon o vodama 27/2007. 15 Zakon o financiranju vodnog gospodarstva 65/2008. 16 Zakon o prostornom planiranju i izgradnji objekata (Law on Spatial planning and construction of objects) 51/2008, 34/2011, 47/2011.

water management and protection in the western balkans491 the following: water inspection, port authorities, ecological inspection or the Ministry of Interior, that is, the police (Article 34). No procedure specifies further action of these bodies or prescribed obligation for these bodies to mutually exchange this kind of information. Similar incoherence can be noted throughout whole horizontal setup related to water protection. This situation of uncertainty in terms of competences and functions leads to institutional conflicts; nonetheless, Constitutional Court case law is not reported. Also, administrative and criminal case law on water management and protection is almost non-existent in Montenegro. The number of prosecutions for breaches of environmental law is extremely low and no prosecution for major breaches has been completed. A more effective system is required. Overall enforcement levels are low, due to the lack of human and financial resources, low awareness of environmental compliance requirements, scattered responsibilities and poor coordination between relevant authorities, as well as weaknesses in prosecution and the judiciary.17

The latest statistics on enforcement of environmental law (JanuarySeptember 2011)18 show that 12 fines were implemented through administrative orders and 2 criminal charges were issued. None of these issues concerned water protection. What can be identified as a main issue of institutional conflict in Montenegro is the fact that many new administrative bodies and structures (e.g., the Agency for Environment Protection, the Water Directorate, the Aarhus Centre) have emerged to fulfil obligations toward the EU and the international community in general and to enable a newly independent State to manage tasks previously performed at the federal level, while the old structures remained more or less the same but unwilling to surrender their competences. Re-composition of the ministries in the government also occurs very often. For example, since 2004, the responsibilities of the ministry in charge regarding environmental protection were recomposed four times including/excluding competences for urbanism, spatial planning, tourism and sustainable development. Currently, the Ministry of Sustainable 17 European Commission, Analytical Report Montenegro, SEC (2010) 1334, 9 November 2010, available at http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/ mn_rapport_2010_en.pdf. 18 Environment Protection Agency of Montenegro, Interim Report on Activities of the Department of Environmental Inspection (2011), available at http://www.epa.org.me/ images/dokumenti/inspection.pdf.

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Development and Tourism is in charge of harmonising the water management and protection policy to comply with EU obligations, although the main responsibility for this sector lies with the Ministry of Agriculture and Rural Development. Moreover, a rigid legal system blocks interference with competences of the Ministry of Interior and the Ministry of Health. This situation creates space for closer cooperation as well as institutional tensions and competition in the sector depending on actual priorities on their agendas. Relations between central government and local authorities are generally marked by insufficient capacities at the local level, especially in small, economically weak and rural Municipalities. Public participation in decision making on water related matters is regulated in Montenegro by the Law on Environment. The Law is rather tight-fisted regarding provisions on public participation, although it is mentioned in the first article of the law. Environmental protection principles enumerated in the Law encompass the “Access to information and public participation principle”. The principle is defined in very general terms: “Any person has the right to be informed of the state of the environment and to participate in the decision-making process whose implementation may have an impact on the environment”. The “public” is defined simply as one or more natural or legal persons, their associations, organizations or groups. Special categories of the public, for example, “public concerned” are not dealt with by the Law. The Law further mentions participation of nongovernmental organizations “in the conservation of the environment” prescribing that the State encourages the participation of the nongovernmental sector in the decision-making process and in the realization of the decisions relevant to environmental protection. The Law does not provide any procedural provisions or conditions regarding participation of NGOs in this process. The EU Commission in its Analytical Report on Montenegro highlights the essential need to “make environmental administrative and judicial procedures more effective in relation to access to justice and public participation.”19 Montenegro has been a party to the Aarhus Convention since 2009 and has recently opened the Aarhus Centre in Podgorica with the aim of implementing regional projects supported by the OSCE. Nonetheless, NGOs and the public in Montenegro are quite active in the water and environmental field. For example, in 2004 local NGOs supported by UNESCO and other international organizations managed 19 SEC (2010) 1334 supra.

water management and protection in the western balkans493 to stop the government’s approval for construction of the Buk Bijela hydro-power plant which would have flooded the Tara river canyon world natural heritage site. In December 2004, the Montenegrin Parliament adopted the Declaration on the Protection of the Tara River on the basis of the petition signed by more than 10,000 Montenegrin citizens. Currently, a similar case exists related to the use of Morača river energy potentials. Comments provided by the WWF Mediterranean Programme and local NGOs to the Strategic Environmental Impact Assessment for Detailed Spatial Plan for Hydro Power Projects at the Morača River contain notifications on noncompliance of the project with the Water Framework Directive, the Habitat and Wild Birds Directive, as well as with the Environmental Liability Directive. Moreover, they claim the existence of a risk of noncompliance with the Espoo, Ramsar and Bern Conventions.20 The public and environmental NGOs have to rely on political pressure to protect water resources and therefore try to lobby the EU Commission because the Government persistently proceeds with its energy supply strategy. The European Commission is closely monitoring developments of the project and its possible impact on the environment. “The EC will follow this issue very carefully. We are ready to provide further advice to authorities in Montenegro at any stage of their decision-making process,”21 said Nicholas Hanley, the Head of the Unit for International Relations and Enlargement in the European Commission Directorate General for Enviro­ nment after the Commission was contacted by a number of environmental NGOs from Montenegro and other countries expressing concerns about the construction of the power plants on the Morača River. Harmonization with EU legislation and policy in the water sector in Montenegro is not as advanced as it is in Croatia. Montenegro is just halfway through the process. The Analytical Report accompanying the Commission Opinion on Montenegro’s application for membership in the European Union regarding water protection and management in Montenegro states: “The existing water quality legislation provides a good basis for alignment with the acquis, although bylaws and implementing measures are often missing. Montenegro is quite advanced in alignment with the Water

20 Comments provided by Green Home and WWF for SEA and DSP for HP on Morača river. 21 Commission talks to Montenegrin environmental authorities on Morača River dams, published on 1 March 2011 on the website of the Delegation of the EU to Montenegro: http://www.delmne.ec.europa.eu/code/navigate.php?Id=1302.

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olivera kujundzic Framework Directive and its daughter directives. Further efforts are needed, however, in regard to alignment with the Drinking Water Directive, the Urban Waste Water Treatment Directive and the Marine Strategy Framework Directive. Furthermore, implementation and enforcement of the water legislation needs to substantially improve: Montenegro will have to make significant investments in the area of waste water collection and treatment as well as drinking water supply. It also needs to ensure a clear division of responsibilities and coherence between actions of all authorities involved in water management issues”.22

The process of approximation to the EU makes this incoherence more evident by setting requirements for an integrated and coherent approach toward protection of inland surface waters, transitional waters, coastal waters and groundwater by the Water Framework Directive. This Directive required the identification of individual river basins within the national territory and their respective assignment to individual river basin Districts; the appropriate administrative arrangements, in terms of identification of appropriate competent authority. Accordingly, the Montenegrin water law designates two river basin catchments on the basis of their final destination – Adriatic or Black Sea. Therefore, Adriatic and Black Sea river basin Districts were created. Apart from documents that describe the current status of waters in the territory, specific water protection plans for those basins have not yet been made. According to the law, they are due in 2016. No specific bodies or branches of the State Directorate for Waters dealing separately with these basins exist at present. Hence, it is hard to believe that the Directive objectives can be fully accomplished by the planned deadline. Further harmonization with Directive requirements and in particular development of river basin management plans and programmes of measures may highlight additional needs for strengthening and recomposing the institutional framework in this sector. 3. Bosnia and Herzegovina The Constitution of Bosnia and Herzegovina, being a part of the Deyton Peace Agreement, does not mention environment or water protection and management. In keeping with the general attitude toward the environment, water management and protection in Bosnia and Herzegovina is

22 SEC (2010) 1334 supra.

water management and protection in the western balkans495 not dealt with at the State level, but at the level of entities (Federation of Bosnia and Herzegovina and Republika Srpska) and the Brčko District as a special unit of local governance. In the last progress report (2010), the EU Commission remarked that a lack of harmonized implementation of water laws, monitoring and river basin planning exists between the entities. In both of the entities, the principal role for the water sector is played by the ministries of agriculture, water management and forestry, whereas the Water Framework Directive is implemented by means of the Entity Water Laws. In the Federation of Bosnia and Herzegovina (FBiH), the Law on Waters23 designated two water basin Districts: the river Sava and the Adriatic Sea. It further specifies that both of the Districts are of an international nature, defining the borders of sub-districts which are entirely positioned in the territory of the FBiH. In keeping with that idea, two Water Agencies (WA) were established: WA Sava and WA Adriatic Sea. Also, 6 sub-offices were established to manage individual river basin sub-districts. In Republika Srpska, the Law on Waters24 recognizes the regional river basin of the river Sava and the regional river basin of the river Trebisnjica. Water Agencies for the regional river basins of the river Sava and the river Trebisnjica are responsible for carrying out tasks of water management. In its Article 6, the Law foresees full harmonization with the FWD within nine years from the entering into force of this law (2006), which is will be in 2015. However, river basin management plans shall be developed only within six years after “full harmonization” with the FWD. The fact that both Entities have their separate water agencies to manage the Sava river basin seems to not be enough for the complex State structure of Bosnia and Herzegovina. Moreover, District Brcko, in its own Law on Water Protection25 defines three river basins (Sava, Brka and Trnja) and provides legal basis to establish separate administrative bodies for their management. All three laws prescribe mandatory mutual coordination in the process of the development of river basin management plans. The complex structure of 142 Municipalities, 10 Cantons, Brčko District and 2 entities is further weakened by the fact that one year after the general elections were held on 3 October 2010, the process of establishing

23 Zakon o vodama (Law on Waters) 70/06. 24 Zakon o vodama 50/06. 25 Zakon o vodama 25/04, 1/05, 19/07.

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executive and legislative authorities at the State level still has to be completed. Although, according to the Dayton Agreement, the State level is not in charge of environmental issues, it became obvious in the recent years that this prevents the country’s participation in international conventions, forums and initiatives and hampers its further progress toward EU membership. In the environmental protection field, it means that legal framework has to be harmonized at the State level and a State Environmental Agency has to be established. This lack will further demand strengthening of vertical and horizontal communication between institutions. With regard to forms of cooperation among different government levels, it is possible inside entities and the Brčko District, but impossible at the State level until the completion of establishment of the State government. Cooperation between Entities is highly politically affected and in most cases disappointing. Inside the Entities, the situation is different. In Republika Srpska, the balance of powers between the central and local levels prevails on the central government side, whereas in the FBiH, Cantons are more independent and have the possibility of law making and implementation. This results in a rather centralized system of Republika Srpska, whereas in FBiH, diversity in solutions and practice often leads to incoherence which is hardly handled at the Entity level. The weak position of the State government and its lack of competence regarding environmental issues only worsen the situation. The implementation of the Aarhus Convention in Bosnia and Herze­ govina is considered to be in the early stages, according to the last progress report for the country.26 Public participation in environmental policy making, including water protection, is generally regulated by framework acts on environment protection. In Bosnia and Herzegovina, these provisions are quite similar between the Entities and the Brčko District, but are not the same. This difference implies that a great extent of decentralization could result in different levels of rights granted to citizens on the basis of the international conventions or transposition of the EU directives which shall have the same effect in the whole territory of the country. All three environmental laws (FBiH, Republika Srpska and Brčko Dis­ trict) recognize the difference between “public” and “public concerned” 26 European Commission, Bosnia and Herzegovina 2010 Progress Report, SEC (2010) 1331, 9 November 2010, available at http://ec.europa.eu/enlargement/pdf/key_documents/ 2010/package/ba_rapport_2010_en.pdf.

water management and protection in the western balkans497 which are defined very similarly. Differences mostly arise around the question of who qualifies to be “concerned public”. In the FBiH, the definition of the “public concerned” includes the public which has an interest in environmental decision making due to the location or the nature of the project, or because they are affected or likely to be affected by the planned project or activity, as well as NGOs which promote environmental protection. The Law on Environmental Protection of the Federation of Bosnia and Herzegovina27 does not set up detailed conditions for nongovernmental organizations to consider them as “public concerned”. In the respective laws of the Republika Srpska28 and Brčko District,29 these conditions are defined differently. In Republika Srpska, a nongovernmental organization which specified environmental protection in its statute as its mission, and has been active in environmental protection for at least two years, has the right to be put on the list of the ministry as competent for environmental protection. Only NGOs on the ministry’s list can exercise rights granted by the law. In District Brčko, conditions are not so strict, environmental NGOs shall only be registered in the territory of the District. Despite the aforementioned constraints related to NGOs, both environmental protection laws of Republika Srpska and of Brčko District have the same provision, Article 30, that prescribes: “Provisions of this law allow for public access to information, public participation in decision-making and access to justice in environmental matters, regardless of citizenship, nationality or place of residence and for legal persons regardless of the head office location.” After the signing of the Agreement on Cooperation between the Council of Ministers of BiH and the Non-Governmental Sector in Bosnia and Herzegovina (2007), 60 municipal governments in BiH have signed agreements/protocols on cooperation with NGOs that are active in the territory of their Municipalities. This number represents 42.25% of the total number of Municipalities in BiH. Moreover, 31 Municipalities have a joint body consisting of governmental and nongovernmental representatives tasked with defining priorities to be addressed by the activities of 27 Zakon o zaštiti okoliša BiH (Law on Environmental Protection) 33/03, available at http://www.ippc.ba/index.php?option=com_content&view=article&id=70&Itemid=105 &lang=en. 28 Zakon o zaštiti okoliša Republika Srpska 28/07, available at http://www.ippc.ba/ index.php?optio=com_content&view=article&id=73&Itemid=109&lang=en. 29 Zakon o zaštiti okoliša Brčko District 24/04, available at http://www.ippc.ba/index .php?option=com_content&view=article&id=73&Itemid=109&lang=en.

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NGOs and to be supported from the local public funds. In the conclusion of the “Analysis of Institutional Cooperation between Governmental and Non-Governmental Sectors in BiH” the author stated that: “The readiness of local non-governmental organizations to lead institutional social and political dialogue is almost negligible. There are hardly any local nongovernmental organizations with serious capacities.”30 4. Highlights and Trends Although selected Western Balkan countries have a common legal and institutional (federal) heritage and share, on average, 50% of the water basins, they also have substantially different approaches to water management and protection, conditioned by their governmental models, institutional frameworks and capacities and, as was previously analysed, their level of harmonization with EU environmental objectives. In Croatia, the most notable trend is the centralisation of power related to water management and protection in a single public authority, that is, the “Hrvatske vode”. By means of the new Law on waters, the “Hrvatske vode” took over numerous competences that have been, up to 2010 (when the Law entered into force), entrusted to the local authorities. Corres­pondingly, inspection competences have at the same time been centralized at the Ministry of Regional Development, Forestry and Water Management. The public is already opposed to actions taken by “Hrvatske vode”. Proposed river basin District management plans were not wellreceived, resulting in repeated protests of citizens and NGOs related to the activities of “Hrvatske vode”. Further development of the river basin District approach required by the WFD will probably invoke strengthening of the role of regional and local authorities. In Montenegro, the situation is quite different. The major obstacle for good governance in the water sector is a high level of fragmentation in the institutional framework at the horizontal level. More precisely, a clear division of competences would be necessary for successful negotiations with the EU in the process of approximation. In addition, a comprehensive capacity building and investment in infrastructure is necessary. In Bosnia and Herzegovina, the main problems arise from the complex governmental structure and insufficient coordination and cooperation 30 G. Žeravčić, Analysis of Institutional Cooperation between Governmental and NonGovernmental Sectors in BiH (Sarajevo, Kronauer Consulting, 2008).

water management and protection in the western balkans499 between the Entities. The legal framework lacks coherence, while the institutional setup clearly wastes already scarce resources (human, technical, financial) due to political reasons. The role of the central gov­ernment should be strengthened to assure better coordination and consis­tency, but it will certainly require amendments of the Constitution which may bring additional political tensions. The country is trapped by its complicated structure and will need significant support and encouragement to overcome it. In general, water management and protection will need to be signi­ ficantly strengthened throughout the region to allow for full implementation of the EU water policy. Streamlining management responsibilities currently fragmented between different ministries and bodies and ensuring proper horizontal and vertical coordination is the main precon­ dition. Particular efforts are needed to ensure that local self-government units have the necessary competences and resources to implement them. With the recent history of the Western Balkans in mind, one may infer that transboundary cooperation between countries is of essential importance. The Report on Integrated Management of Transboundary Aquifers in South-eastern Europe highlights both “internal” and “external” issues that deserve particular attention: “Within national borders, management of groundwater as a resource involves a number of problems, which are usually independent of transboundary issues and are the result of physical and institutional characteristics of aquifers. The most important of these may be listed below:   – Lack of long-term planning;   – Inequality between needs and supply;   – Excessive water withdrawals or diversions;   – Conflicts over use between different sectors (water supply, agriculture, industry, tourism, energy, navigation);   – Fluctuations in seasonal and longer time scales;   – Climate change;   – Depression of groundwater levels;   – Excessive nutrient loads;   – Pollution of groundwater;   – Increased erosion and sedimentation;   – Disparities between national Regions;   – Institutional, legal, economic and social factors. When transboundary water resources are shared by riparian countries, a number of external issues should also be considered acting in addition and “synergistically” with the internal ones:

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  – Historical background;   – Sovereignty and other rights based on international law;   – International relations, ad hoc regulations, and conflicts over shared water resources;   – Differences in socio-economic development;   – Differences in national jurisdictions;   – Different objectives, benefits, and economic instruments;   – Lack or differences in participation of involved stakeholders”.31

5. Concluding Remarks Recalling the principles of good governance, environmental management in the Western Balkans could, in general, be marked by the following characteristics: 1) Limited Openness. Institutions work in a more open manner as compared with the past. Thanks to the legal harmonization with the EU, new mechanisms have been established to communicate policies and decisions. However, the most prominent way of sharing information is through electronic media/internet. Due to the fact that the percentage of users in the region is relatively low, the majority of the population is deprived of timely, accessible and understandable information. 2) Fruitless participation. Public participation in decision making is not always fruitless, but for it to be fruitful requires stronger political pressure. Although an adequate legal framework allowing for public participation in policy creation and the implementation process has been established in all the Western Balkan countries, its implementation is often just a formality – authorities agree to hear what the public has to say, but stick to their original decision, neglecting any arguments against it. Both governments and civil society have to work on enhancement of mutual constructive dialog. 3) Questionable accountability. Institutional setup in the Western Balkan countries is heavily burdened with the establishment of numerous new institutions. This particular practice is driven by two separate triggers. First, newly emerged independent States followed the breakup of Yugoslavia. Second, harmonization with EU legislation requires several 31 J. Ganoulis, Integrated Management of Transboundary Aquifers in South-eastern Europe  (Thessaloniki,  2007),  available at  http://www.watersee.net/files/slovenia/ Assessment%20Transboundary%20Aquifers%20V.2.0.pdf.

water management and protection in the western balkans501 new responsibilities and administrative bodies to perform them. Unfor­ tunately, these new institutions are heavily understaffed and lack the necessary expertise. 4) Premature actions/overdue results. This provocative dichotomy shall explain the effectiveness of current policies, actions and results which are common throughout the region. Lagging behind Member States in achieving high environmental objectives of the EU, Western Balkans countries have overdue results regardless of the level of efficiency applied. Conversely, rushing down the road to EU membership, Western Balkans countries’ actions are often premature because neither institutional capacities nor civil society awareness is at the appropriate level to properly implement and appreciate them. Needless to say, those actions are not based on past experience or future impact – they are simply based on the EU accession agenda. Being, at the same time, at the top of the national agenda, it is always easier to pretend that the central government actions are the most appropriate ones. The Balkans experience shows that in the short term (during the pre-accession period) centralisation of powers helps to achieve necessary results. It puts EU candidate countries that already had a difficult transition period into the reversal process of decentralisation and recentralization. 5) (In)Coherence. The previous analysis shows that the Western Balkans is moving toward an improved coherence. Although in Croatia it seems that coherence problems have been overcome; in Montenegro, institutional setup still needs to be reorganized and clear delineation of competences need to be drawn. In Bosnia and Herzegovina, the problem of incoherence is not isolated to the water sector – it is the main political/ administrative/institutional problem of a weak functioning State. It seems that the EU accession process facilitates a coherent administrative apparatus, but being quite demanding, it also creates hyper-production of incoherent sectoral policies and legislation. The present analysis shows that water management and protection in the selected countries of the Western Balkans is highly affected by common heritage, recent conflict and reconciliation, emergence of new State structures, the EU accession process and ongoing social transition. Therefore, the author’s remarks may be obsolete quickly. Western Balkans countries are in the process of substantial governance change, a process which affects all sectoral policies and legislation as well as government layers.

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S. Bringezu and R. Bleischwitz, Sustainable Resource Management: Global Trends, Visions and Policies (Sheffield, Greenleaf Publishing, 2009). European Bank, Strategy for Croatia: 2010–2013 (2010), available at http://www.ebrd.com/ downloads/country/strategy/croatia.pdf. Environment Protection Agency of Montenegro, Interim Report on Activities of the Department of Environmental Inspection (2011), available at http://www.epa.org.me/ images/dokumenti/inspection.pdf. J. Ganoulis, Transboundary Water Resources in the Balkans (Dordrecht, Kluwer Academic Publishers, 2000). J. Ganoulis, Integrated Management of Transboundary Aquifers in South-eastern Europe (Thessaloniki, 2007), available at http://www.watersee.net/files/slovenia/Assessment %20Trans boundary%20Aquifers%20V.2.0.pdf. W. Sadurski, “Postcommunist Constitutional Courts in Search of Political Legitimacy” (1999),  available  at  http://law.wustl.edu/harris/conferences/constitutionalconf/ Constitutional_Courts_Legitimacy.pdf. E. Skarbøvik et al., “Transboundary Lakes in the Balkan Area, Monitoring and Management in Accordance with the EC Water Framework Directive” (2008), available at http:// balwois.com/balwois/administration/full_paper/ffp-1249.pdf. UNDP Regional Bureau for Europe and the CIS Publikum, Environmental policy in SouthEastern Europe (Belgrade, 2007). UNEP and EEA, Challenges ahead for South-East Europe, the Caucasus and Central Asia (2007). G. Žeravčić, Analysis of Institutional Cooperation between Governmental and NonGovernmental Sectors in BiH (Sarajevo, Kronauer Consulting, 2008). UNEP, MAP and Plan Bleu, State of the Environment and Development at Mediterranean (Athens, 2009).

CONCLUDING REMARKS Mariachiara Alberton and Francesco Palermo1 1. Protection of the Environment and Its Impact on Federal Theories and Practices Environmental protection provides an extraordinary litmus test for investigating and conceptualizing the “trends of federalism in theory and practice” (echoing the title of a seminal book by Carl J. Friedrich from the late 1960s). Environment is one of the most significant areas of law that are subject to regulation and implementation by a plethora of governmental levels and actors, thus challenging the traditional approach of a vertical division of powers among layers of government. In fact, protection of the environment and its countless legal corollaries call into question the very idea of a rigid division of competences because it cannot be reduced to one single function to be assigned to one individual level. To the contrary, it epitomizes the modern trend affecting a growing number of issues that are better understood in terms of policies and multifaceted competence matters rather than in terms of clear-cut competences belonging to one or more levels of government. The analysis carried out in this book, based on a common set of research questions implemented to create a consistent grid for comparison (see Annex 1), demonstrates, on the one hand, how manifold the interactions between federal and environmental studies are and how useful it is to investigate them further – something that is unfortunately still very rarely done especially by legal scholars. On the other hand, it testifies that an in-depth analysis of an extremely complex competence field like environmental protection cross-cuts the traditional approach to the vertical divi­ sion of powers that inspires nearly all the constitutional settings of federal and regional countries. However, the intrinsically multi-level regulation and administration of environmental issues deeply influences the practical functioning of unitary States too because, by definition, environmental 1 Mariachiara Alberton is Senior Researcher in Environmental Law, EURAC, Bolzano, Italy. Francesco Palermo is Director of the Institute for Studies on Federalism and Regionalism, EURAC, Bolzano and Professor of Public Comparative Law, University of Verona, Italy.

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problems and their solutions cannot be confined to political and administrative boundaries, legal responses to environmental challenges necessarily involve (and imply the existence of) many institutional levels irre­spective of the constitutional setup of the State. While a superficial reading of regulatory trends on environment may suggest a tendency toward centralization at the national and even more at the supranational and/or international level, a more careful analysis presents a much more nuanced picture. Such a complex system of interaction among different levels of government, each with its different legitimacy, eventually forces one to call into question the most consolidated approaches to division of competences in federal and regional countries elaborated in federal studies, as well as to challenge the idea of the constitutional autonomy of the States regarding their territorial organization, because unitary countries are no longer really so when it comes to designing and implementing environmental legislation. Rather than the constitutional design as to the vertical division of powers, what really matters in effectively dealing with the environment as a key area of legal regulation are thus procedural mechanisms for the cooperation among different levels of government and institutional (and noninstitutional) actors as well as constitutional adjudication as their main functional substitute. For the effective management of complex and inextricably multi-level issues such as environment, these two elements – rules on cooperation and on litigation among several levels – seem, in fact, to be more decisive than the traditional division of powers and areas of activities laid down in the Constitutions, which still largely consider the environment as a competence field that can be allocated to one individual level of government. If this is true, as the chapters of this book suggest and these concluding remarks contend, a number of significant consequences follow. First, to more accurately describe and interpret the functioning of territorial composed polities, federal studies should increasingly look at how complex competence fields like the environment are managed rather than simply focusing on institutional settings and constitutionally established division of powers, which in many cases, are merely indicative to say the least. Second, the demarcation of deeply rooted categories such as federal, regional and unitary States fades away and has to be called into question when the functioning of complex competence matters such as the protection of the environment is examined more closely. Third, issues such as the protection of the environment or of water resources, being structurally not limitable to political and administrative borders, require forms of



concluding remarks505

coordination that go beyond such borders, forcing the provision of effective instruments of cooperation among different political and administrative authorities. Fourth, irrespective of the constitutional design of the States, some common trends can clearly be identified in respect of the division of labour in the environmental field: progressive centralization (at the national or supranational level) of the macro-regulation and strong decentralization with regard to implementation and coordination. Fifth, in terms of policy-making, it seems more important to focus on how to coordinate actions and powers by different levels and actors rather than trying to divide rigidly the spheres of competence of each level because overlaps and contradictions are simply not avoidable. Sixth, the more inter-institutional and inter-governmental coordination is lacking, the more important is the role played by the judiciary in finding rational ways to determine the division of work among the inevitably numerous players in the environmental field. 2. Division of Powers, Intergovernmental Relations and the Role of Constitutional Adjudication in the Environmental Field: Different Cases, Common Trends In particular, looking at the analysed case-studies, the prevailing model for environmental protection entrusts a framework competence to the national/central authorities, leaving the implementation to the subnational level (where provided) or even to the local one. When and to the extent to which coordination among the different actors is insufficient, the somehow natural tendency toward centralization of a cross-territorial issue such as the protection of the environment leads to some degree of centralization with regard to implementation and administrative measures too. 2.1. In Federal States All multi-layered systems are facing the challenge to effectively balance three different and sometimes conflicting goals: a) the constitutionally mandated autonomy of sub-national units, b) the need for consistency across the country as a whole as well as with regard to environmental protection and c) the effectiveness of environmental policies that can either call for centralization or for decentralization depending on the issue at stake. Each federal/regional country provides its own responses to such challenges also based on their respective constitutional structure

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regarding decision-making and cooperation and settlement of intergovernmental conflicts, while at the same time, similar trends and solutions emerge, especially when the supranational level comes (directly or indirectly) into play. In the United States, as a general rule, federal legislation and federal regulations establish the governing framework for pollution control, while States have important roles in backing up the national programs through secondary ones and through delegated programs of administration and enforcement. The primary sources of authority for federal control over the environment have been the Commerce Clause and the Spending Clause of the federal Constitution, which have also proved to be powerful tools to exert federal authority indirectly in environmental protection. In addition, the National Environmental Policy Act of 1969 established the environment as a matter of concern for every federal agency and the following laws largely placed the federal government in the primary regulatory role. However, States have also regulated a number of areas in which Congress has not intervened. Thus, while the federal government leads most environmental protection efforts in the US, States do have important authority to act where the federal government has not preempted the field and many States are doing so, including by establishing creative additional environmental programs. Moreover, many pollution control laws impose a system of cooperative federalism (alien to the original design of the US Constitution), in which authority to set and enforce pollution controls is shared to varying degrees between federal and State Government agencies: States take on a key role in pollution control, with federal guidance and oversight. Cooperative federalism leverages the manpower and resources that are more abundant at the State level, as well as legal mechanisms that constitutionally fall within the States’ exclusive authority, to achieve national environmental standards in a way that can also allow for some degree of flexibility at the State level. After a State takes primary responsibility for implementing an environmental law, the US Environmental Protection Agency (EPA) typically suspends most of its enforcement activities in that State and instead takes on an advisory role. State assumption of environmental law implementation and enforcement does not, however, relieve the EPA of ultimate responsibility for ensuring that the requirements of those laws are met and, under this multi-layered cooperative system of environmental program delegation, a State’s failure in the adequate and timely enforcement of its delegated authority can trigger competing or overlapping federal enforcement.



concluding remarks507

Although very complicated in detail, in Germany the federal system follows a rather simple rationale: the essential decisions are taken at the federal level usually in the form of federal laws, whereas execution is the realm of the Länder administrations which have participated in the adoption of federal legislation through the Bundesrat. This mechanism sometimes leads to a standstill of federal legislation when the coalition majorities in the Parliament and in the Bundesrat differ from each other (as often happens), but the cooperative attitude of the German federal system has largely made it possible to overcome political divergences. Although the Länder have recently increased their role also with regard to environmental legislation after the constitutional reform of 2006, where they really play a relevant role is in the enforcement of (largely federal) environmental legislation. The executive/administrative role of the subnational units, coupled with their effective involvement in drafting the federal laws they are tasked to implement, is actually a strategic function, because even the best environmental law is not effective if it is not properly enforced. In Switzerland, the protection of the environment was introduced in the Constitution by referendum in 1971 as federal competence to be implemented by the Cantons. The profound constitutional amendments introduced in 2000 now provide the Confederation with a comprehensive legislative power in the field of environmental protection. The federal legislative power in the environmental field is concurrent: Cantons thus remain competent to legislate as long as the Confederation has not done so. The Confederation also has relevant powers in the field of administration, as further specified by the Environmental Protection Act (EPA), according to which while the Cantons have general residual power in the implementation of environmental laws, the Confederation performs a supervision and coordination role, including the power to directly enact legislation when national coordination is required. In practice, the role of Cantons in environmental protection has been steadily decreasing over time, and their power currently mostly consists of limited administrative issues as well as policing and control over the implementation of federal laws. Some cantonal tasks can be delegated to the Municipalities, providing that the latter have a certain size and enjoy sufficient resources. Within the three “classical” federal models examined, clashes among federal and State levels occur quite seldom in the environmental field. Conversely, conflicts have arisen between administrations, especially those representing economic development and others representing environmental protection. In addition, conflicts between bodies defending different environmental concerns have also recently emerged in Germany.

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Overall, however, irrespective of the overall approach of the respective federal system (it being competitive/dual as in the US or cooperative/ executive as in Germany and to a lesser extent in Switzerland), environmental protection as a transversal matter induces the development of cooperative instruments and thus pushes all federal systems toward an increasingly cooperative attitude. 2.2. In Regional States The distribution of environmental competences in regional States seems to pose more problems, despite the (apparently more) clear-cut distribution of powers established in the Constitutions. Here, the role of the Constitutional Courts in settling inter-governmental conflicts is prominent and decisive, whereas considerable differences depend on the different legal traditions in the analysed countries. In Spain, the State is empowered to adopt framework laws that must be complied with throughout the national territory. The Autonomous Communities are entitled to further develop these rules, including by setting out their own environmental policies by, for instance, introducing more protective measures. The Autonomous Communities are under no obligation to wait for State’s intervention to adopt their legislation. However, if a contradiction exists between Autonomous Communities’ laws and subsequent national legislation, the latter necessarily prevails. In addition, the Autonomous Communities are precluded from adopting more lenient rules (e.g. sanctions) than those approved by the State. In general terms, the implementation of environmental law is the primary responsibility of the Autonomous Communities, although the State may exceptionally adopt such decisions itself, such as, for example, in the case of granting leases for the management of water resources, the designation of a national park, or the approval of a catalogue of endangered species. Furthermore, the State’s influence in the environmental field can be exerted through the backdoor of other cross-cutting State powers, such as coordination of economy planning or the need to guarantee a single market throughout the country. In addition, the Constitution entrusts the State with sectorial powers that have a remarkable influence on the Autonomous Communities such as, inter alia, the regulation of forests, water resources, mining, energy, harbours, merchant navy, public works of general interest, authorisation of electricity installations or fishing. Thus, despite a prima facie clear division of powers in this field, interferences exist among the public authorities and a gap exists between legal and



concluding remarks509

political commitments and mechanisms to provide effective protection for the environment. In general, cooperation takes place in the legislative sphere because the existing constitutional framework contains provisions to guarantee the participation of the Autonomous Communities during the whole legislative process. Moreover, in recent years, the Autonomous Communities and the central Government have usually created joint commissions dealing with the development and implementation of environmental legislation. Nonetheless, conflicts occasionally arise concerning diverging interests or the question of who is responsible for the adop­tion of environmental laws and/or for their implementation. Therefore, the role of the Constitutional Tribunal has been and continues to be decisive in determining the distribution of environmental powers in practice, especially with regard to environmental impact assessment, water law, coasts law and nature protected areas. In Italy, after the profound reform of 2001, the Constitution reserves the “protection of the environment, the ecosystem and cultural heritage” to the exclusive legislative competence of the State. In these fields, the State also has exclusive power to adopt regulations, although it may delegate such power to the Regions. The Regions, conversely, enjoy concurrent legislative and regulatory powers in a number of areas related to the environment, such as the enhancement of cultural and environmental properties, territorial governance, health protection, large transport and navigation networks, national production and transport and distribution of energy. Furthermore, Regions hold residual competence in other sectors not expressly mentioned but easily identified, including agriculture, forestry, tourism and hunting and fisheries, which indeed affect the environment. Against this background, several problems of coordination among the national and regional level have emerged and the constitutional adjudication has been decisive. Initially, the Constitutional Court tried to mitigate the scope of the State’s exclusive competence by interpreting the protection of the environment as a “horizontal, cross-subject sector” in which the competence of the State could not be considered rigorously and strictly delimited, thus often overlapping with areas of concurrent or residual regional competences. By restating the existence of a concurrent normative power of the Regions to the extent necessary for the pursuit and protection of the environmental related interests, the Court also affirmed that the State would continue to retain a primary competence in the determination of uniform standards of environmental protection applicable across the national territory. More recent case law, however, marks a radical departure from this interpretation because the Court

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affirmed that the Constitution has entrusted the State with exclusive powers in environmental protection. The existence of an exclusive legislative competence of the State in the environmental field would also imply the State’s competence to decide over the allocation of administrative functions at the relevant institutional level. As for the United Kingdom, the end of last century witnessed a significant constitutional change through the establishment of a scheme of devolved government. The devolution process created new legislative and governmental bodies in Scotland, Wales and Northern Ireland that would enjoy significant powers. In all cases, most environmental matters have been devolved so that responsibility for these now lies with the devolved authorities. Nevertheless, some peculiarities exist among them. In Scotland, some of the reservations may be significant either because they prevent the use of certain mechanisms to achieve policy objectives by the Scottish authorities or because they retain at the UK level control of significant policy areas with an indirect impact on the environment. In contrast to the Scottish arrangements, the areas of competence devolved to Wales are specifically listed and these include the “environment”. The unique political situation in Northern Ireland has produced a more complex system of devolution, so that the tide of environmental legislation and reform that affected the rest of the UK did not include Northern Ireland, although this delay is now being tackled. It is also critical to note that devolution arrangements only regarded four areas (Scotland, Wales, Northern Ireland and, to a different extent, the London metropolitan area) but did not affect England, which represents the overwhelming part of the UK in terms of population, territory and GDP but which does not have a devolved government: environmental legislation for England thus continues to be enacted by the UK Parliament and the administration is carried out by the UK Government. Despite the fact that environmental protection is one of the most significant areas of devolved power for Scotland, Wales and Northern Ireland, in practice, environmental protection measures trespass into the reserved areas of competence, thus increasingly being kept at the UK level, and the limits of that competence can significantly limit the devolved authorities’ powers to act. In any case, also thanks to the specific British legal culture and to several mechanisms ensuring co-operation between the UK and devolved authorities, the first decade of devolution has produced fewer problems than expected. Conse­ quently, the smooth functioning of the devolution settlements has led to a very limited role for the Supreme Court in the environmental field (and, more generally, in intergovernmental relations and devolutionary conflicts).



concluding remarks511

Conversely, the numerous intergovernmental conflicts that arose in Italy and Spain have forced the respective Constitutional Courts to intervene on a regular basis, practically designing the concrete functioning of the vertical division of powers, including on environmental issues. Besides, both in Italy and Spain the dilution of responsibilities in a number of administrative bodies, the limited interest of the central government in environmental matters and the absence of political trust have negatively marked the effectiveness and coherence of recent environmental policy and legislation. 2.3. In Unitary States Among unitary models, the French Constitution lays down a closed list of the matters to be regulated by parliamentary statute, whereas all other matters are subject to regulation, that is, they can be disciplined by the executive power by means of non-legislative but still quite broad acts. The constitutional act of 2005 that introduced the Charter for the Environment has amended the Constitution text by including that parliamentary statutes shall lay down the basic principles of the preservation of the environment. Therefore, in practice, environmental framework legislation is passed by the Parliament, whereas its implementing provisions are enacted by the central government and by the administration, both national and regional. However, when it comes to the distribution of the wide administrative competences between the central government and a three-tier system of sub-national governments (i.e. Regions, Departments and Communes) several problems of coordination emerge, including in the complex environmental field. The Constitution does not provide for a clear allocation of administrative powers: it simply states that statutes lay down the basic principles for the self-government of territorial communities, their powers and revenue. Environmental competences of the different levels of sub-national governments are therefore attributed by the national legislator in a number of environment-related laws and as a matter of fact, the sub-national competences and powers are quite asymmetrically distributed and exercised, depending on the size and administrative capacity of each unit. In Poland, due to the principle of “status exclusivity”, most environmental protection provisions are included in the statutes adopted at the State level by the Sejm and the Senate. Provisions introduced in statutes are further elaborated and implemented in binding regulations (executive acts). However, although the Constitution does not define the model of environmental protection administration, there is also room for sub-national

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regulation of environmental issues, issued by local government bodies (Gmina councils, Powiat councils, Voivodship Parliaments) and by territorial bodies of government administration (Voivod). Due to the complex division of responsibilities among the different public administration units dealing with environmental protection, disputes over their competence occur both between bodies of the same level (e.g., between government and self-government administration bodies at the Voivodship level) and between authorities belonging to different levels (local, regional and national). The number of such disputes increased after the territorial reform of 1998, which introduced territorial self-government at the Powiat and Voivodship levels and delegated some of the tasks of government administration to sub-national bodies. The division of tasks and powers has proven to be inconsistent and characterised by dispersion and randomness. At the same time, centralised supervision over these dispersed competences is also lacking. As for the unitary States of the Western Balkans, in Croatia only the central government is granted the power to legislate, whereas administrative acts and local environmental plans may be issued by local governments in accordance with environmental legislation and shall be approved by the Ministry in charge of environmental protection. In particular, local self-government shall administer affairs of local jurisdiction by which the needs of citizens are directly fulfilled, including, among others, the protection and improvement of the environment. Units of regional selfgovernment shall administer affairs of regional significance, but among their competences environmental protection is not mentioned. According to the Environmental Protection Act, the government, counties, cities and Municipalities shall, each within their scope, jointly and with solidarity participate in the implementation of environmental protection placed under their competence. Also, in Montenegro, the high number of administrative actors, institutional rivalry and fragmentation poses the threat of hampering environmental protection. Neither the Constitution nor the Montenegrin Law on environment specifies any division of competences among different government levels with regard to the environment. The situation at the horizontal level is marked by institutional rivalry and conflicted interests. Frequent re-composition of the ministries inside the government, creation of new institutions and constant reshaping of the legal framework only complicates it further. Conversely, a competing attitude is rare between central and local levels because local authorities are not so keen to take over environmental competences for which they cannot provide enough resources.



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In sum, the cooperative attitude that is necessary to manage complex environmental issues does not seem to depend to a decisive degree on the territorial setting of the country, but rather on the instruments for institutional cooperation and coordination among actors (belonging to the same or to different level) as well as on the overall political and administrative culture. In any event, unitary countries are also faced with similar if not with the same problems of coordination among different actors (including those belonging to different levels of government) that affect territorially complex (federal or regional) States. 3. Toward Centralisation or Decentralisation? Irrespective of the constitutional models in terms of territorial division of powers, common trends can be identified with regard to the distribution of powers in the area of environmental protection. On the one hand, a strong degree of centralization is to be noted with regard to environmental protection legislation and overall coordination. Such a trend is neither affected by the overall processes of decentralization that characterize modern times (including by devolving considerable legislative powers with regard to the environment to the sub-national levels such as in Germany, Italy and the UK), nor by the overall institutional architecture of the country (be it federal, regional and even, to some degree, unitary). Such a trend has no doubt to do with the nature of the protection of the environment as an overall constitutional goal rather than as a single and clear-cut competence matter, as well as with the fact that environmental issues are at odds with man-created borders and boundaries. All this makes it natural to attract the framework legislative power to the “higher” (better: wider) possible level; that is, at least the central/federal level if not, as is the case in the EU, at the supranational level. On the other hand, however, more detailed legislation and implementation are largely left to the sub-national level. This is due not only to common sense (because the territory and the environment are diversified, it is necessary to provide for wide margins of accommodation of specific needs within the framework of general minimum standards), but also to the overall prevalence of cooperative instruments as the winning model in multi-level polities. Of course, the degree to which the division between (centralized) macropolicies and (decentralized) micro-policies and implementation takes place in the different countries largely depends on the structure and on the concrete working of each constitutional system. It happens more

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consistently in federal countries with a more consolidated cooperative tradition and institutional attitudes, whereas in predominantly dualistic federations, several legacies of this approach are to be noticed with regard to the federations’ powers including in the administrative field. Similar considerations apply to regional countries: while these are institutionally all based on the cooperative model, the degree to which cooperation among the levels of government really takes place depends on a number of factors of an institutional as well as cultural and political nature, which also affect the number of conflicts that arise among the levels of government. Overall, however, all regional countries are based on the assumption of the same macro-micro division of powers in the environmental field. With regard to unitary States, it might appear that the centre has the monopoly on environmental regulation. However, a closer look presents a more nuanced picture. Although it is true that unitary States do not devolve any legislative power to the sub-national levels and the legislation (both framework and detailed) is vested exclusively with the State, the comparative analysis shows not only that the sub-national units have considerable administrative powers including in the environmental field, but also that often the division between framework and detailed legislation is in place in practice, as the French case clearly shows. Considering the constant environmental and governmental challenges increasingly facing decision-makers, the situation seems in a state of flux, also affecting the distribution of powers. Looking more in detail, it emerges that in federal countries the establishment of cooperative methods – essential for managing the protection of the environment – obviously depends on the overall structure of the federal system, but it also represents a challenge that cannot be resolved once and for all and rather requires constant re-assessment. In the United States, the pendulum of authority including in the environmental field has been continuously swinging between State and federal levels of government, before recently stabilizing alongside the macro-micro distinction. One factor that might change the picture in the future – and not only in the US – is the link between the division of powers and bud­ getary constraints: as State budgets become increasingly constrained because of the economic downturn, the ability of States to meet their requirements under delegated programs is coming into question. A key requirement for States to receive program delegation is that the State has adequate resources to implement the programs. Many States are now finding themselves short on the resources necessary to fulfil these commit­ments because their budgets for environmental agencies are cut.



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Similarly, political changes with corresponding changes in priorities in some States have called into question the willingness of those States to maintain high environmental standards and called for further debate on the future distribution of powers in the environmental field. In Germany, where the macro-micro divide is more visible with framework legislation reserved to the Federation (or the EU) and detailed legislation as well as implementation in the hands of the Länder, some recent developments are calling such division into question. In particular, the Federation also occasionally attracts some micro-legislative and administrative functions in the environmental field. This paradoxically happens after the constitutional reform that on paper has granted wider legislative powers to the Länder in this field, proving once more that environmental protection can rarely fit into a rigid scheme of separation of competences precisely because it is not a competence but rather a transversal matter. Similar debates are taking place in Switzerland too. In regional countries, the distinction between macro (framework legislation) and micro (detailed legislation and implementation) is somewhat more natural, but at the same time, the more fluid division of powers and the legacy of a centralized administration often present a different picture in practice, allowing for national intervention also in areas that would be constitutionally reserved to “micro” environmental policy. In Spain, the State sometimes attempts to maximize its power to set out so-called basic rules that in constitutional terms should be restricted to the essential minimum. The national laws sometimes tend to limit the room for the Autonomous Communities to develop their environmental policy. This mostly occurs by making use of other transversal powers with ample horizontal reach, such as energy or economy planning. In Italy, the scenario is similar and even more acute. The overall perception with regard to environmental protection is that the 2001 constitutional reform has led to a stronger role of the State instead of opening avenues for a more regionalized policy-making. This seems to have to do also with centralizing attitudes by the still large bureaucracy in central government. A remarkable degree of the central government’s intervention also in the micro-areas is still to be noticed in the UK, essentially for similar reasons: transversal powers, the need of a coherent regime across the national territory, a still largely centralized bureaucracy. The difficulty identifying a clear-cut division between macro and micro environmental policies while sticking to such a distinction in general terms also characterizes the unitary States. In particular, if the current picture is considered, a clear predominance of the central level is to be

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observed including in many micro-policies. However, if the situation is analysed in terms of developments and the current state of the art is compared with that of a few decades or even just a few years ago, the room for the sub-national levels of government especially in the micro-policies related to the protection of the environment is astonishing. In France, while environmental legislation and administration are still predominantly centralized, the trend toward decentralization in recent decades has been remarkable and now many tasks may be undertaken by subnational authorities. The same trend is to be noticed in Poland, although overall the degree of centralization of environmental legislation and policies remains higher than in France. Finally and interestingly, in the Western Balkans, the process of decentralization of micro-policies in the environmental field which gradually took place in the 1990s was largely slowed down in connection with the process of approximation to the EU. In fact, especially in Croatia but also in Bosnia and Herzegovina and in Montenegro (irrespective of their very different institutional structure and of their different speeds with regard to EU integration), the national governments have seized the occasion of their duty to incorporate EU environmental legislation into their respective legal orders to also keep control of a number of micro-activities that could and should be transferred to the sub-national units but have so far remained in the hands of the central governments, including the limited administrative capacity of the sub-national levels. 4. The EU as an Input Factor for Reshaping Environmental Governance of MS The EU, due to its specific constitutional nature, has been one of the main engines for centralization of environmental macro-policies and for decentralization of micro-activities (detailed legislation and implementation). In addition to all the general factors already mentioned (non-territoriality of environmental issues, different needs of different territories, strong link between environmental protection and economic issues), a key reason the EU has voluntarily or involuntarily pushed for such a both centralizing and decentralizing trend is the fact that it lacks an administration and thus relies on the Member States to implement its policies and legislation. In general, the competence for environmental policy is shared between the EU and the Member States. The EU may take action “only in so far as



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the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or the effect of the proposed action, be better achieved at Union level” (Article 5(3) TEU). Open conflicts between the EU institutions and MS on competences in environmental matters are rare because several mechanisms have been established to promote coordination and agreement. Moreover, environmental litigation between two or more MS on EU environmental matters, although theoretically possible, has not yet taken place. As a rule, Member States shall implement the environmental measures taken at the EU level by the Parliament and the Council (which makes the States at least co-legislators at the EU level), whereas the Commission “shall ensure the application of the Treaties and of measures adopted by the institutions pursuant to them” and oversee the application of Union law (Article 17 TEU). However, for a number of reasons, the EU environmental law enforcement by the Member States (and by their sub-national actors) has often been disappointing. Thus, such as in other cases of territorially composite polities analysed in this book, the role of the judiciary has significantly increased, with the EU Court of Justice becoming an essential actor in resolving competence conflicts and ensuring that EU environmental law is observed. Over the years, the Court assumed a role which went far beyond that of an interpreter of EU environmental law and made de facto political decisions. However, the division of powers between the EU and the Member States is obviously much more complex than what the Treaty provisions establish. When it comes to implementation, in particular, factors such as the institutional structure of the Member States or the length of time each State has been (or not been) a member of the EU (thus having contributed to designing EU environmental norms), have considerably influenced the way each country has implemented EU environmental legislation. Germany, which used to be an environmental pioneer in the EU and which first decisively contributed to shaping EU environmental policy and to making it what it is now, then saw its national environmental policies being deeply influenced by EU legislation and EU court jurisprudence. EU integration has definitely changed the traditional division of powers in the environmental field between the Federation and the Länder, but overall it also improved the cooperation among institutional actors rather than increasing conflicts between them. In the other founding countries of the then European Communities analysed in this book, Italy and France, the Europeanization of environmental law has been equally determinant in changing the consolidated relations between the levels of government in

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the environmental field. However, the degree of inter-institutional cooperation has not decreased but rather been incremented due to the insufficient cooperation procedures and mechanisms among the levels of government in both countries. In recent and even more so in not-yet-established EU Member States, the practical impact of EU integration on the management of environmental issues varies a great deal depending on the readiness of the respective domestic system to walk in the footsteps of the European blueprint with regard to centralization and decentralization within the framework of effective cooperation procedures. In some cases, such as in Spain, difficulties in coping with the EU regulations depended on the insufficiency of cooperative mechanisms between the national and the sub-national levels of government, although overall the distinction between macropolicies (increasingly decided at the EU level) and micro-activities (left to the Member States or, based on their constitutional structure, to the subnational governments) remained within and sometimes increased the role of the sub-national levels. The situation in the UK has been almost the opposite, with well-functioning, cooperative procedures (sometimes institutionalized but mostly conventional in nature) and devolution starting long after the main trends in EU regulation of environment had been established, thus leading to a stronger supervisory role of the national level to cope with European prescriptions. Such a trend is even more visible in the countries that have more recently acceded to the EU (such as Poland), are in the process of doing so (Croatia) or are adapting their legislation to European norms in view of a possible future accession (Bosnia and Montenegro). Comparatively speaking, however, in all countries – irrespective of their constitutional structure – Europeanization of macro-policies in the environmental field led national governments to subtly introduce some degree of increased centralization of micro-activities at the domestic level. This trend is due to factors such as under-developed decentralization in some countries, the following insufficient institutional capacity of sub-national governments (which makes them unfit to deal with complex tasks in the environmental field), the absence of effective cooperation procedures among the levels of government in European affairs and the ultimate national responsibility for incomplete implementation of EU legislation, obliging the national level to maintain control over sub-national implementation activities. Although the impact of EU environmental legislation on territorial pluralism (i.e. on the constitutional division of powers in the different



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countries) has been varying, its decisive role in increasing societal pluralism (i.e. participation of other actors and stakeholders in environmental issues) is uncontested. In this regard, the role of the EU in promoting a pluralistic environmental governance (thus indirectly also a multi-level one) as well as in strengthening a still weak involvement of public access to environmental information and justice should not be underestimated. In other words, an often unnoticed decentralizing effect of EU environmental policy has been the indirect consequence of its being a strong factor for improving pluralistic environmental governance. Pluralism essentially has three legs (institutional, societal and territorial); therefore, improving pluralism necessarily also means improving its territorial dimension, to the extent it is imbued in the constitutional structure of the respective country. For the purposes of this book, however, it should not surprise that the EU has prompted both strong centralization and strong decentralization in the environmental field. On the one hand, the need for harmonized rules in all fields relevant for the establishment of a common market, including the environment, made it necessary to create a significant regulatory EU power in environmental issues, which has been constantly expanded over the past forty years and is likely to continue to increase. On the other hand, especially in more recent times, the assumption (and even the self-assumption) of the EU as a detailed legislator is losing appeal and is leaving room to a more nuanced and balanced relationship between the several layers of decision-making within the framework of what is now often called “multi-level governance”. This term, which can be considered the functional equivalent to federalism in the EU context, indicates the necessary presence of a plethora of regulatory bodies and of implementing authorities that need to be coordinated and need to be able to cooperate in achieving the same transversal goals. In this case, the common transversal goal is effective protection of the environment, guaranteeing uniform standards of protection, avoiding the idea that environmental rules can distort infra- and extra-European competition, and allowing for the specificities of each territory to be adequately considered and taken into account without degenerating into environmental parochialism. Such a trend leads to the prospective conclusion that future legislation will be increasingly Europeanized with regard to framework policies in areas such as energy, transport, agriculture, fisheries and protection of common goods (air, water), whereas increasing decentralization will affect more traditional areas of environmental policy. This might also be prompted by the limits to integration capacity that the EU seems to have

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reached in recent times and by the decrease of political influence of EU institutions in the last decade. Most likely, the current time is simply witnessing a shift of paradigm in the role of the EU, from a centripetal factor as it has been for a long time to “just” one (while powerful) regulatory body contributing to the institutional kaleidoscope of modern governance, including in the environmental field. 5. From General to Sectorial Environmental Governance: The Case of Water Protection and Management When looking more specifically at the case of water management and protection in the selected States, some of the previous remarks may be emphasized. Although at first glance, it could seem that breaking down the broad field “protection of the environment” into more specific competence matters such as management and protection of water resources may produce a more consistent division of powers among levels of government, a closer look at the comparative practice demonstrates that in essence very little changes in terms of vertical distribution of competences in this selected environmental field. In fact, also with regard to water management and protection, competences are often blurred in a multitude of different public actors as well as scattered in various provisions, both in federal, regional and unitary States. In the United States, to limit pressure of parochial interests, the national government has exerted all its political influence to limit the formally extensive powers of the States to implement the federal water legislation. Here, the US cooperative federalism may help to reduce institutional conflicts and improve the effectiveness of water management and protection. Also, in Germany, water management and protection follows the general rule whereby the federal level is in charge of legislation whereas the Länder have concurrent right to legislate (i.e. only as long as and to the extent that the federal government has not already legislated in this area). However, unlike in most areas, the recent federal reform has empowered the federal government to pass, where appropriate, detailed regulations reducing the scope for sub-national intervention, although the Länder still hold a limited right of deviation in the management and protection of water resources by passing regulations diverging from the federal ones. Such right of deviation has been used only sparingly and has not raised constitutional conflicts yet. Similarly to the German situation prior to the constitutional reform of 2006, in Switzerland, the Constitution provides



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for a comprehensive federal competence covering all variety of water bodies and functions; however, according to other constitutional provisions, the federal government is only entitled to lay down general principles in some fields. Cantons thus continue to possess residual competence over water resources and are primarily responsible for administration. This apparently clear division of competences, however, is in practice much more fragmented than it may appear, and institutional conflicts and overlaps are quite frequent. Water governance seems to be even more prone to conflicts in regional countries. In particular, in Spain and Italy, diverging trends of decentralisation and re-centralisation, coupled with frequent water reforms, have spelled a resurgence of institutional conflicts and a lack of implementation and enforcement. In Italy, a clash of interests along the centreperiphery line emerged after the 2001 constitutional reform which was also in the water sector. Conflicts have exploded, in particular, after the adoption of the 2006 environmental code. This code tried to reverse the overall trend toward decentralization by centralizing legislative and administrative functions related to environmental and water protection, creating a dangerous situation of uncertainty and discontinuity with the previous framework. The new provisions on water management have been repeatedly challenged by the Regions in front of the Constitutional Court and conflicting regional laws on this same subject have been enacted based on the asserted (and constitutionally stipulated) regional concurrent competence in this field. However, the Constitutional Court eventually ruled in favour of the State, striking down the regional acts and provisions on water protection. The conflicts are likely to continue. Also, in Spain, the constitutional ambiguity on the division of competences was eventually addressed through legislation by identifying the river basin as the territorial domain for the distribution of competences. However, the increasing territorialisation of water issues, further accentuated in many new Auton­ omy Statutes of several Autonomous Communities, have increasingly challenged the competences of the State with regard to intercommunity river basins and transfers. Thus, the conflicts have been solved by the Constitutional Tribunal, which on the one hand, re-affirmed the sub-national competence for the partial management of inter-community river basins, and on the other hand, established that the State has a margin to legislate on inter-community river basins. This way, the process of decentralization of the strategic water sector was substantially stopped, although the institutional conflict is expected to continue. As for environmental issues as a whole, the situation is less conflictive in the United

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Kingdom, also because water law, more than other aspects of environmental law, already witnessed a significant degree of separate management even before the devolution process. The political and legislative process of devolution has enabled different approaches to managing water and water is a good example of the increased autonomy and divergence of the constituent parts of the UK. In particular, in Scotland, the new Parliament was keen to establish itself as both pro-environment and pro-European. Thus, there has been significant new primary legislation in the implementation of the European Water Framework Directive (WFD) as well as other aspects of water law, and this reflects a desire to have a more pro-active and forward-looking approach to the implementation of environmental and especially water law. Conversely, the UK Government preferred a minimalist approach to the implementation of the WFD and did not take the opportunity to pass primary legislation; it instead used secondary (delegated) legislation. Furthermore, it has been noticed that the administrative and policy changes brought by devolution have contributed to greater participation and better governance in water management in the devolved Regions, and, seemingly, this trend is likely to continue in the future. Regarding unitary States, the legislative monopoly of the State does not mean a reduction of the number of actors involved in water management. Furthermore, in these countries the trend toward decentralization seems more accentuated than in territorially compound States. In particular, in France, decentralization of normative intervention due to the peculiar division of roles between laws (reserved to the national Parliament) and regulations (that are largely used, including by sub-national authorities), competences and responsibilities in the field of water management and protection are shared among four levels: national, regional, departmental and local. Furthermore, most laws have placed the Regions as the key actors in water management, vesting them with most responsibility in this field. Also, the role of local government has been expanded, although the same degree of responsibility is not attached to that level, creating some potential for conflicts. Such decentralization has called for greater efforts toward institutional and procedural coherence and integration, which have been pursued in several ways: modifying the legal status of guiding documents, creating coordination bodies or merging existing bodies that had overlapping competences. The main obstacle to the development of the role of sub-national authorities in water management is not institutional, but rather financial in nature. Recent events have shown the failure of decentralized authorities in properly



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addressing water pollution because they were short of the financial means needed. In Poland, the division of competences in water protection and management appears to be much more consistent and transparent than the structure of competences in other areas of environmental protection. In water management, the majority of planning and organisational competences lie at the central level within a specialised water management administration, whereas most of the regulative competences belong to local government bodies. Such a principal division minimises the number of disputes over competence and in fact relevant judicial adjudication is rare in the field of water management, although minor administrative conflicts do arise in areas such as water permits when different responsibilities of the local authorities (e.g. environmental and socio-economic development) clash. In the unitary Balkan countries, the centripetal effect produced by approximation to EU legislation is quite visible also in the field of water management and protection. In Croatia, general competence in this area has been attributed to a single national body, “Hrvatske vode”, which has taken over several competences previously entrusted to the sub-national authorities; also, regulative and inspection competences have been centralized at the level of the Ministry of Regional Development, Forestry and Water Management. Conversely, in Montenegro, poor water governance seems to be due to excessive fragmentation in the institutional framework at the horizontal level. A clear division of competences is still lacking; therefore, the establishment of new administrative bodies beside the old administrative structure has prompted some institutional conflicts, and it is likely that the national level will take over more coordination functions, similar to what happened in Croatia. The analysis of water governance carried out in the second part of the book clearly demonstrates that this field is largely influenced by the European Union and that such influence had an impact in promoting decentralization of competences within a unitary general framework. In particular, the innovative water protection and management legislation introduced by the WFD allowed for experimentation at different levels of government across the EU, in light of the subsidiarity principle. The Directive emphasized the need for coherent action at EU, Member State and sub-national levels. The integrative and flexible approach of the Directive has set the scene for increased interaction between different levels of government in each Member State. The Directive impacted how water administration works at various government levels, making the

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need for coordination of tasks and authorities even greater and strengthening public participation, thus improving pluralism in the sense mentioned earlier. It also prompted adjustments to the division of competences in this area as well as a restructuring of the competent national and subnational institutions. Conversely, the Common Implementation Strategy has created an informal, but well-established network for dialogue and mutual learning between the authorities of different Member States, as well as with nongovernmental stakeholder experts. In some MS, such as Germany, the UK, France and Poland, the WFD implementation process has represented an opportunity to reshape the legislative and administrative apparatus by increasing cooperation and coordination among governmental bodies at various levels and by enhancing transparency and streamlining national measures and procedures as well as administration’s control and effectiveness of water governance. In other MS, notably in Spain and Italy, this chance has been missed due to existing institutional rivalry and lack of strong and coherent political will to enact a set of clear and not fragmented laws. Regarding nonEU member States, the Balkans experience shows that during the preaccession period, centralisation of powers related to water protection and management helps to achieve necessary results. Paradoxically, it can be concluded that the centralizing effect of EU measures is much stronger in the pre-accession phase than after full membership is achieved. In general, the EU accession process facilitates a coherent administrative apparatus, but also requires both existing and newly established authorities to assume several new responsibilities and activities and to work in a more open manner, establishing mechanisms to communicate policies and decisions to the public and involving stakeholders in the decision-making. Despite implementation and coordination problems, the biggest challenge facing all constitutional models considered in the book both belonging and not belonging to the EU, is reconciling water (as well as envi­ronment) protection and management with conflicting interests, mainly with those coming from the agriculture, energy and industry sectors. 6. Lessons Learned? Theses for Further Reflection on “Federal Environmental Law” The analysis conducted in this book aims at contributing to the devel­ opment of a so far under-investigated field: the relationship between



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federalism and the environment. Although this topic has recently caught some attention in political science, legal investigation in the field, where existing, is still sporadic: whereas environmental lawyers normally look at the broader picture, focusing on the international, the European and at best on the national levels because this is where the most relevant normative decisions are made, constitutional lawyers often look at the institutional structures but fail to investigate how these are affected and even challenged by important policies such as the environment. The advancement of legal and constitutional analysis on what could be labelled “federal environmental law”, however, seems critical, especially to better understand current and future trends and to anticipate policy decisions in areas that are of vital importance to everyone, such as the environment. Focusing on both environmental competences as a whole and on the specific issue of water management and protection in a number of countries (selected to address different constitutional models and different degrees of exposition to supranational environmental law) within the framework of a common grid of research questions, the book provides for a number of comparative answers and hints for further research. In particular, in addition to the research hypotheses laid down in the outset of these concluding remarks, four overall trends of “federal environmental law” can be comparatively identified from the preceding analysis. First, to deal with environmental issues, many institutional actors are necessary. Pluralism being the constitutional essence of environmental law, territorial pluralism is concerned by environmental issues to a great extent. In Europe and in the US, a common trend seems to emerge according to which macro-environmental policies are decided at the national and/or the supranational level, whereas micro-environmental policies and implementing activities are increasingly left to the sub-national actors. Although each case is specific and influenced by a number of factors including the constitutional setup and the internal division of powers, the general trend seems confirmed irrespective of the federal, regional or unitary nature of the respective country. Of course, the domestic institutions and procedures for inter-governmental cooperation and for participation in decision-making at the central level do influence the degree of sub-national involvement, its effectiveness and the magnitude of the subnational powers in the environmental area. However, the difference seems to be quantitative rather than qualitative in nature. This eventually means that environmental governance is to some extent inherently “federal” irrespective of the constitutional character of each State.

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Second, the complexity of environmental issues, which makes it necessary for a number of actors to deal with it contextually, inevitably creates a number of overlaps and grey zones regarding the division of competences in this field. Overlaps emerge due to the fact that more than one actor deals with related if not with the same issue, and grey zones are inevitable because often the single, individual competence is not clarified in detail, giving room for different interpretations regarding the responsible level or institution. Although good legislation can help streamline competences and avoid gross structural conflicts, a degree of conflict potential is inherent in environmental policies. Therefore, efficiency in environmental governance depends on the degree of effectiveness of the overall cooperative instruments among the various territorial and institutional levels. This means that environmental legislation cannot be disconnected from the cooperative system in place in each country and must be seen in a holistic perspective, taking into account the overall degree of cooperation. Such an approach is particularly important at the EU level, because macro-environmental legislation might face (as it does) major implementation problems due to the extremely asymmetrical cooperative instruments and culture among the Member States. The designers of macro-environmental policies, in other words, should be more aware of the inherent “federal nature” of the environment as a policy and competence field to prevent avoidable difficulties in implementation at the national and sub-national levels. Third, and consequently, because a certain degree of conflict potential cannot be avoided in environmental issues due to their multi-level nature, the increasing importance of courts as ultimate conflict-solvers has to be considered as a physiologic rather than a pathologic element of environmental governance. The degree of judicial conflict varies significantly depending on structural and even cultural elements of each legal system, being rather limited in some countries and oversized in others. What seems to be common to legislators and sometimes even to academic scholars, however, is the idea that judicial conflict is per se exceptional and the symptom of bad (environmental) laws. Judicial conflict is instead a structural element of environmental governance and at best the symptom of poor cooperative instruments and attitudes. Looking at judicial decisions is essential to understand the “real” division of competences in the field of environment. Such decisions are to be considered as “normal” sources of a complex and multifaceted law rather than just adhoc remedies that could be prevented by a more detailed legislation. Thus, the aim of environmental legislation should not primarily be to avoid



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inter-governmental conflicts, but rather to prevent them by focusing on cooperative procedures and to adjudicate them swiftly when they inevitably arise. Fourth, and finally, although constitutions recently devote much more attention to the environment including as a competence matter to be assigned to the various levels of government (normally as a concurrent or shared competence), this subject can hardly be treated as a competence matter like many others. In fact, environment is probably the most glaring example of a “non-matter”, of a transversal constitutional duty for all levels of government and all institutions, thereby creating an arena for contextual and often overlapping intervention of different levels of government, actors and legitimacies. Treating the environment as a competence matter, even when breaking it down into several more specific subjects (such as water management) might just produce partial results. In constitutional terms, this attitude can provide for a general, overall orientation regarding the levels responsible for environmental and related areas, but it can never give the precise answers that legislators usually expect. This is simply because the environment is not constitutionally identifi­ able  as a specific matter. Thus, instead of trying to more clearly divide environmental competence(s) among the levels of government, as most recent constitutional documents are doing, attention could be paid to improving the “constitutional environment” for effective environmental governance by: inter-governmental cooperation, mechanisms for adjudication and streamlining the procedure for multi-actor and multi-level decision-making.

LIST OF CONTRIBUTORS Jorge Agudo González, Professor of Administrative Law, Autonomous University of Madrid (Universidad Autónoma of Madrid), Madrid, Spain. Mariachiara Alberton, Senior Researcher in Environmental Law, EURAC, Institute for Studies on Federalism and Regionalism, Bolzano/ Bozen, Italy. Alexandre Boiret, EHS Consultant for Enhesa, Brussels, Belgium. Jennifer Bowmar, Environmental Law Fellow and Visiting Associate Professor of Law, George Washington University Law School, Washington, D.C., USA. Lea Colasuanno, Law Fellow, George Washington University Law School in Washington, D.C., USA. Paweł Czepiel, Researcher, Department of Environmental Protection Law, Jagiellonian University (Uniwersytet Jagielloński), Krakow, Poland. Ekaterina Domorenok, Researcher, Department of Political Science, Law and International Studies, University of Padua (Università di Padova), Padua, Italy. David Furger, Visiting Scholar, Lauterpacht Centre for International Law, University of Cambridge, UK, and writing his dissertation at the European Law Institute of the University of Fribourg (Université de Fribourg – Universität Freiburg), Fribourg, Switzerland. Agustín García-Ureta, Professor of Law, Faculty of Law, University of the Basque Country (Universidad del País Vasco – Euskal Herriko Unibert­ sitatea), Bilbao, Spain. Armelle Gouritin, Researcher in Environment and Sustainable Development, Institute for European Studies, and Associate Professor (Maître de conférence), Free University of Brussels (Université Libre de Bruxelles), Brussels, Belgium.

530

list of contributors

Sarah Hendry, Lecturer in Law, IHP-HELP Centre for Water Law, Policy and Science under the auspices of UNESCO, University of Dundee, Dundee, UK. Barbara Iwanska, Researcher, Department of Environmental Protection Law, Jagiellonian University (Uniwersytet Jagielloński), Krakow, Poland. Wolfgang Köck, Head of the Department of Environmental and Plan­ ning Law, Helmholtz-Centre for Environmental Research – UFZ, Leipzig, and Professor of Environmental Law, Law Faculty, Leipzig University (Universität Leipzig), Leipzig, Germany. Ludwig Krämer, Former Official of the European Commission, and Visit­ ing Professor, University College London, London, UK. Olivera Kujundzic, Legal Advisor, Italian Ministry for the Environment, Land and Sea, Rome, Italy/Montenegrin Ministry for Spatial Planning and the Environment, Podgorica, Montenegro. Iñaki Lasagabaster, Professor of Law, Faculty of Law, University of the Basque Country (Universidad del País Vasco – Euskal Herriko Unibert­ sitatea), Bilbao, Spain. Elisa Morgera, Lecturer in European Environmental Law, School of Law, University of Edinburgh, Edinburgh, UK. Emanuela Orlando, Isaac Newton-Dorothy Emmet Research Fellow, Lucy Cavendish College, University of Cambridge, Cambridge, UK. LeRoy C. (Lee) Paddock, Associate Dean for Environmental Legal Studies, George Washington University Law School, Washington, D.C., USA. Francesco Palermo, Director of the Institute for Studies on Federalism and Regionalism, EURAC, Bolzano/Bozen, and Professor of Comparative Public Law, University of Verona (Università di Verona), Italy. Colin T. Reid, Professor of Environmental Law, University of Dundee, Dundee, UK. Andrea Ross, Senior Lecturer, Environmental Law, University of Dundee, Dundee, UK.



list of contributors531

Nicolas Schmitt, Senior Fellow Researcher, Institute of Federalism, University of Fribourg (Université de Fribourg – Universität Freiburg), Fribourg, Switzerland. Marcin Stoczkiewcz, Researcher, Department of Environmental Pro­ tection Law, Jagiellonian University (Uniwersytet Jagielloński), Krakow, Poland. Gerd Winter, Professor of Public Law and the  Sociology  of  Law,  CoDirector of the Research Unit for European Environmental Law, Depart­ ment of Law, University of Bremen (Universität Bremen), Bremen, Germany.

ANNEX ONE

QUESTIONNAIRE 1. Guiding Questionnaire for PART I (A, B, C, D) of the Book: Forms of States and Environmental Protection – I s  environmental  protection  a  goal/principle  included in  the Con­stitution? – How does the Constitution formally allocate responsibility for environ­ mental regulation among the subnational units (States, Regions, Cantons, Länder, Provinces) and the centre? – Which level of government is responsible for the various dimensions of environmental rule making? –  Are legislative/administrative powers in the environmental sector shared by different institutional actors at different government levels? Please provide a short overview of the constitutional allocation of pow­ ers/competences in the environmental field. – Do institutional actors cooperate or compete in the environmental field? – What are the (formal/informal) modes and procedures of cooperation/ coordination among the institutional actors? – Looking at the constitutional framework, is the environmental sector prone to institutional conflict? Please consider horizontal (same level) and vertical top/down and vice versa (between levels) – Do conflicts exist among national, regional and local levels in manag­ ing and protecting natural resources? If yes, what kind? Are they dealt with by judicial bodies or settled though alternative procedures? – (For EU Member\potential\candidate Member States): Do the EU legis­ lative and policy instruments enhance cooperation among national actors in charge of environmental protection? Or do they increase conflicts? – Are the inter-institutional conflicts decreasing/increasing in the envi­ ronmental field as compared with the past? What are/may be the cause(s)? – What is the role of the Constitutional/Supreme Court? Is the case law overall favouring the centre or the periphery?

534

annex one

– To what extent does the interpretative role of the Constitutional/ Supreme Court affect the allocation of legislative/administrative pow­ ers and the overcoming of conflicts with regard to environmental protection? – In your opinion, does the Constitutional/Supreme Court play a policy/ lawmaker role or merely an interpretative one in the environmental field? – What are the enforcement mechanisms serving environmental law? – What are the shortcomings in implementing and enforcing environ­ mental legislation? – Do any forms of public involvement contribute to the formulation of environmental policy and legislation at different territorial levels? – Is public participation in decision-making (where provided) actually effective or simply symbolic? – Rules of standing: are individuals and public interest groups legitimated to litigate on behalf of the environment? Are citizen suits a part of the enforcement mechanism serving environmental law? – Highlight trends and provide examples and case law. – Recalling the principles the EU White Book on Governance proposed as principles of good governance, (i.e. openness, participation, account­ ability, effectiveness and coherence) try to evaluate a current national situation with regard to environmental protection, highlighting the present limits and challenges of the institutional setting. – Does the national (multi-level/unitary) institutional setting analysed enhance or prevent an effective environmental policy/law formulation and implementation? – Does a tendency toward decentralization/centralization exist with regard to environmental protection? How is this taking place (legisla­ tion, administration, case-law, other sources)? 2. Guiding Questionnaire for PART II (A, B, C, D) of the Book: The Management and Protection of Water Resources – In which legislative act are roles and responsibilities for water manage­ ment and protection defined? – Are responsibilities for water management and protection clearly iden­ tified and divided at different levels of government? – Looking at the constitutional/legislative framework, is the water sector prone to institutional conflict? Please consider horizontal (same level) and vertical top/down and vice versa (between levels).

questionnaire535 – Do conflicts exist among national, regional, local levels in managing and protecting water resources? What are/may be the cause(s)? – Does the institutional framework for water management come into conflict with objectives/activities for water protection? Provide case law. – What are the (formal/informal) modes and procedures of cooperation/ coordination among the institutional actors in the water sector? – Analysis of case law: to what extent does the interpretative role of the Constitutional/Supreme Court affect the allocation of legislative/ administrative powers and the overcoming of conflicts with regard to the water sector? – (For EU Member\potential\candidate Member States): Has the institu­ tional adaptation toward the Water Framework Directive (WFD) been overall in favour of the national or subnational level? Has the WFD implementation strengthened the role of regional/provincial or central water management authorities? Who are the competent authorities? Who are the components in terms of government levels involved? – (For EU Member\potential\candidate Member States): Do the EU legis­ lative and policy instruments in the water sector (with special refer­ ence to the WFD) enhance cooperation among actors at different levels? Or do they increase conflicts? – (For EU Member\potential\candidate Member States): To achieve the goal of “good water status” by 2015 a need for greater inte­gration  between water management institutions and other sectors (e.g. spatial plan­ ning) exists. Is such integration being pursued? What are the integra­ tion modalities, instruments and activities carried out? –  (For EU Member\potential\candidate Member States): Regarding participation and the role of the public in the implementation of the WFD, how do different countries define “public” (local population, NGOs, private actors, lobby groups)? At which stages of the develop­ ment of the river basin management plan does the country involve the public? What is the degree of involvement (information, advisory, practice)? – (For EU Member\potential\candidate Member States): Do decisions reached in this way produce better outcomes for water protection and management? – For non-EU countries: what are the instruments (if any) for public/citi­ zens’ participation in decision-making in the water sector? (Including veto-players). – Highlight trends and provide examples and case law.

536

annex one

– Recalling the principles the EU White Book on Governance proposed as principles of good governance, (i.e. openness, participation, account­ ability, effectiveness and coherence) try to evaluate a current national situation with regard to the water sector, highlighting the present limits and challenges of the institutional setting. – Does the national (multi-level/unitary) institutional setting analysed enhance/prevent an effective water policy/law formulation and implementation? – Does a tendency toward decentralization/centralization exist with regard to water management and protection? How is this taking place (legislation, administration, case-law, other sources)?

INDEX Aarhus Convention 19–20, 24–25, 71, 124–126, 128, 179–180, 202–203, 241–242, 250, 258, 260, 273, 358, 492, 496 Aarhus Convention Compliance Committee. See Aarhus Convention, See Aarhus Convention, See Aarhus Convention, See Aarhus Convention accountability 8, 24–25, 50, 79, 106, 154, 157, 183, 205, 227, 275, 278, 271, 283–285, 308, 311, 313, 384, 390, 420, 461, 478, 500, 534, 536 actio popularis 126 administration 3, 13, 15, 17, 22, 25, 29, 40, 44–45, 50–51, 61–67, 69, 79–80, 84, 93–94, 97, 103, 119, 132, 136, 140–142, 147, 149, 150, 157, 162–163, 168, 175, 177–178, 183–184, 189, 192, 196, 200–202, 205, 209, 212–218, 222–235, 238, 246–250, 253, 256, 258–260, 267, 282, 305, 319, 323–324, 326–327, 331, 334, 351, 366–367, 370–373, 377, 380, 383, 385–386, 392, 398, 409, 412, 414, 417, 425–428, 434, 437–438, 444–446, 451, 453, 463–482, 485, 489–490, 503, 506–507, 510–512, 515–516, 521, 523–524, 534, 536 administrative 3, 5, 11, 16, 20–21, 29, 48, 61–80, 84, 93–98, 103, 105, 114, 118, 122–125, 127, 130–132, 136–142, 146–148, 150–151, 154, 156, 161, 168, 171, 175, 180, 183, 189, 191, 194–196, 202, 205, 218–219, 221–223, 226, 228–233, 236–239, 241–242, 244, 248–249, 252–256, 260, 267, 272, 275, 282, 323–324, 329, 356–357, 365, 369, 372–373, 378–379, 383, 386, 390–391, 393, 399, 402, 404, 410, 416, 419, 425–429, 437–444, 451, 453–454, 456–458, 464–465, 467–471, 473–477, 480–481, 490–492, 494–495, 501, 504–505, 507, 510–516, 521–524 agriculture 5, 12, 16, 27–28, 94, 101, 104, 107, 117, 132, 136, 139, 143, 167, 198, 229, 247, 294–295, 297–298, 300, 306–307, 312, 315, 317–318, 320, 324–327, 329–333, 336, 339–340, 343, 345, 348, 354, 380, 391, 398, 433, 436, 439, 454, 456, 459, 466, 490, 492, 495, 499, 509, 519, 524

air pollution 2, 13, 26–27, 44, 50, 60, 80, 84, 87, 103–104, 108, 195 Autonomous Community 116, 121, 128, 131, 365, 366–371, 381–382, 385 Belgrade Convention 483 Bosnia and Herzegovina 235–237, 251, 253–260 Bund 55–56, 58–61, 322 Bundesrat 64–65, 75–76, 320, 323, 507, Bundestag 56, 75–76, 320, Bundesverfassungsgericht 56–57 Canton 83–84, 86–87, 89–90, 92–99, 102, 104–105, 107–108, 236, 251–252, 255–256, 339–341, 344–354, 356–357, 359–360, 484, 495–496, 507, 521 case law 24, 114–115, 123, 128, 143–145, 148, 169, 199, 249, 255, 260, 265, 278, 305, 398, 427–428, 443–444, 452, 458, 486–487, 491, 509 causality principle 89–91, See polluter pays principle centralization 27, 79–80, 154, 226, 240, 498, 501, 513, 521, 524 Charter for the Environment 190–192, 199, 203–204, 511 Chesapeake Bay 50, 291–293, 296–313 Chief Inspector of Environmental Protection 223, 465 citizens 13, 18, 20, 22–23, 25–26, 48–50, 52, 61, 67, 70, 83–84, 93, 97–98, 102, 106, 108, 118, 120, 123–126, 132, 138, 140, 149–150, 193, 202, 205, 211, 214–216, 232, 237–238, 244–256, 298, 325–326, 401, 434, 461, 479, 493, 496–498, See also actio popularis climate change 13, 16, 26, 40–41, 100, 107–108, 132, 151, 153, 172, 174–175, 183, 195, 198, 207, 285, 325, 433, 499 command and control 2–4, 79 Commerce Clause 36–37, 51–52, 292, 506 Committee of the Regions 14 Commune 64, 67, 69, 193–195, 197, 201, 436–437, 444–445, 451, 511 communities 3, 70, 87, 113–121, 126–129, 137, 168, 175, 192–201, 207, 214–215, 217, 247, 327–328, 334, 365–368, 370–376, 381, 384–386, 416, 442, 444–448, 453, 457,

538

index

460, 468, 471, 474, 508–509, 511, 515, 517, 521, local 3, 137, 214, 217, 247, 444–445, 468, 471, 474 river basin 327, 334 territorial 192–197, 199–201, 207, 442, 446–448, 453, 460, 511 comparative 1, 6–7, 175, 350, 503, 514, 518, 520, 525 competence 5, 7, 13, 17–19, 55, 57, 59–64, 66, 68–69, 76–77, 79–80, 93, 116, 136–148, 151–152, 155–158, 164–166, 169, 172, 176–177, 192–201, 205, 210–216, 223–232, 237–240, 243, 245–249, 252, 255, 260, 318–320, 339–343, 346–347, 349, 351, 357, 359, 365, 368–376, 381–382, 384, 386, 390, 396, 399, 404, 419, 434–442, 445–447, 453–455, 457, 459–460, 463, 465–471, 481, 484–485, 490–492, 496, 498–499, 501, 503–505, 507–512, 515–517, 520–527 distribution 4, 6, 17, 59–62, 69, 77, 93, 113, 115, 117, 121–122, 129, 137, 139–141, 146, 148, 151, 154–155, 157, 190, 192, 199–200, 205, 213, 218, 240, 251–253, 331, 344, 365–366, 369, 372–373, 375–376, 384, 386, 481, 508–509, 511, 513–515, 520–521 division 4–6, 59, 136, 139–140, 156–158, 165, 227, 245, 254, 260, 340, 374, 390, 395, 399, 470, 490, 494, 498, 503–505, 508, 511–515, 517–518, 520, 521–526 repartition 18, 199, 206 competence of performance 66 competence of substance 66 concurrent competence 47, 59–60, 68, 76, 79, 139, 142–143, 146, 148, 151, 399, 521 concurrent legislation 148, 319 Confederation 35, 84–87, 89–90, 92–96, 102–103, 106, 108, 339–341, 360, 366–367, 372, 374, 376, 507 Conferenza dei Servizi 147, 149 Conferenza Stato-Regioni 147, 149, 155 conflict 5, 7, 16–17, 33, 36, 55, 65–69, 78, 102–103, 118–121, 126–129, 143–144, 149, 152–153, 156–157, 165, 168, 207, 227, 235, 247–248, 255–256, 259–260, 320, 326, 331, 333, 359–360, 365–367, 383–385, 389–390, 395–396, 398–400, 404, 413, 426–427, 441, 443–445, 458–459, 470–471, 486, 489, 491, 499–501, 505–510, 512, 514, 517, 520–524, 526–527 institutional 151, 255, 259, 359–360, 396, 399, 404, 426, 491, 520–521, 523 Congress 36–38, 40–42, 45–46, 175, 292, 294, 299–300, 302, 307–308, 310, 312

Conseil d’Etat 191, 201, 433, 435, 437, 439, 443–445, 453, 458, 461 Constitution 5, 33–38, 55, 57, 61–62, 78, 83, 85–86, 88–90, 95–97, 113–117, 121–122, 126, 129, 132, 135–140, 143, 146, 148–149, 151–152, 154, 163, 170, 189–194, 199–201, 204, 209–215, 228–231, 237, 242–245, 248, 250–252, 292, 319, 340–343, 345–347, 358, 365–366, 381, 398, 405, 409, 426, 434, 450, 478, 480, 484, 487, 490, 494, 499, 504, 506–512, 520, 527 reform 136–141, 155, 157–158, 319, 398, 400, 507, 515, 520 Constitutional Council 190–191, 198–201, 440, 445 Constitutional Court 7, 56, 114–115, 117–118, 120–122, 127–128, 137, 142–144, 148, 151–152, 156, 242–244, 248–249, 255, 321, 332, 365–366, 368–371, 376, 381, 384, 398–399, 404, 426, 486, 491, 508–509, 511, 521 Constitutional Tribunal 211, 213–214, 509, 521 cooperation 5, 7, 27, 34, 78, 84, 90, 92, 102–104, 117–118, 126–127, 147–149, 152, 156, 158, 167–168, 177, 196, 198, 207, 215–216, 231–232, 239–241, 246–248, 253–254, 265, 267, 271, 277, 279–281, 298–300, 306, 311–312, 339, 349–351, 353, 360, 370, 373, 386, 394, 397–399, 404, 423, 425, 436, 463, 468–469, 471, 473–474, 481, 483, 486, 489, 492, 496–499, 509, 513–514, 517–518, 524 cooperative federalism 41–42, 50, 52, 312, 349, 504, 506, 520 cooperative regionalism 148 County 115, 171, 212, 425 Cour de Cassation 191 court 7, 13–14, 17–21, 24, 28–29, 35, 37, 40, 49, 51, 56–57, 65–66, 72–74, 83, 91, 95, 97, 105, 113–128, 132, 135, 137, 142–146, 148, 150–156, 162, 164, 169, 171, 176–177, 179–181, 191, 202, 205, 219–222, 227–229, 232, 241–244, 248–249, 255, 258, 260, 278–279, 293, 304–305, 311–312, 319, 321, 332, 342, 353–354, 358, 360, 365–366, 368–371, 373–374, 376, 381–382, 384–385, 394, 398–400, 404, 409, 425, 427, 440, 444–445, 447–451, 456, 458, 461, 470, 478, 486, 489, 491, 508–510, 517, 521, 526 access to 13, 29, 126, 220 Croatia 6, 235–244, 249, 258, 260, 483–489, 493, 498, 501, 512, 516, 518, 523

index539 decentralization 3, 27, 79, 137, 141, 147, 154, 210, 212–214, 231, 254, 260, 393, 438, 441, 446, 448, 457, 459, 501, 513, 521 DEFRA 412, 419, 421, 423, 429 Department 12, 15–16, 44, 55, 69, 95, 97, 113, 167–168, 172, 193–194, 196–197, 201, 206, 209, 229, 239, 256, 294, 302, 309, 315, 319, 320, 332, 348, 389, 391, 398, 402, 410–413, 416, 418–419, 423–425, 428, 435–441, 444–445, 453–457, 459, 463, 511, 522 deviation clause 60 devolution 161–166, 168–169, 171–173, 175, 177–178, 180, 182–183, 197, 207, 409–410, 413–414, 416, 419, 423, 425–429, 510, 518, 522 ecological 3, 40, 84, 91, 101, 145, 151, 210, 238, 244–245, 252–253, 266, 277, 282, 318, 321, 331, 333–335, 343, 349, 416–417, 437, 439, 456, 459, 484, 491 economic instruments 2, 74, 100, 400, 500 effectiveness 3–4, 8, 42, 50, 74, 79, 106, 157–158, 184, 206–207, 227–228, 260, 281–282, 311, 336, 370, 384, 390, 404, 415–416, 448, 452, 454, 460–461, 478, 481, 501, 505, 520, 524, 526 energy 2, 5, 13–14, 16, 27, 29, 64–65, 68, 74, 83, 91, 93–96, 100, 104, 116–117, 129, 139, 149, 151–153, 165, 172–174, 218, 220, 238, 317, 329, 340, 347, 355, 359, 380, 398, 415, 426, 435, 474–476, 478, 493, 499, 508–509, 515, 519, 524 enforcement 12, 20–22, 29, 42, 44, 46–50, 70–71, 73–75, 77, 79–80, 94–95, 122, 150, 154, 180–182, 189, 197, 204, 206, 217, 219, 222, 230, 232, 238, 240–241, 249, 252, 256, 292, 306, 312, 348, 376, 394, 412, 412, 451, 473, 475, 477, 488, 491, 494, 506–507, 517, 521, 526 England 38, 161–166, 168, 170–172, 174–177, 179–183, 409–415, 417–425, 427–429, 507, 510 environment 1, 4–5, 7, 11–12, 15–16, 18–19, 21, 25, 29, 36, 39, 45, 56–58, 65, 75, 83–91, 93–108, 113–115, 117, 119–121, 123, 127, 129, 131–132, 135, 139–143, 145, 147, 149, 150–157, 165–167, 170–173, 176, 181–184, 189–195, 197, 199, 202–207, 209–212, 215–220, 222–223, 228–229, 231–232, 237–242, 244–253, 257–258, 266, 270, 320, 331, 335, 340, 348, 350, 379, 391–392, 398–400, 402–403, 411–415, 417, 419, 422, 424, 435–436, 440, 443, 445, 450–452, 463, 466, 471–472, 474, 476–478, 487,

489–490, 492, 494, 503, 510–516, 518, 520, 522–527 protection 84, 141, 165, 170–171, 173, 181, 239, 246, 249, 252–253, 257, 399, 410, 490–491, 496 environmental impact assessment 74, 84, 99, 101, 116, 118, 122–123, 140–142, 149, 217–218, 220, 226, 228, 231, 238, 250, 257, 342, 347, 352, 358, 493, 503, 509 Environmental Protection Act 85, 162, 216, 228, 238, 240–241, 342, 487, 507, 512 Environmental Protection Agency 1, 41, 43, 181, 246–247, 250, 255, 292–293, 299, 301, 424, 506 EU 1–8, 11–29, 58, 60, 68, 74–75, 77–78, 101, 113, 117, 122–123, 125–127, 129–130, 132, 141, 149, 151, 153–158, 161, 164, 167, 169–171, 175–178, 180, 184, 189, 193, 198–199, 201, 207, 212, 230–232, 236–237, 239–241, 248, 255, 258–260, 265–273, 275, 277, 278–284, 315–316, 331, 340, 350, 354–356, 389–391, 393–396, 400, 404, 409, 411, 417, 433, 448, 451–452, 456, 460, 479, 483–484, 486, 488–489, 491–496, 498–501, 513, 515–520, 522–524, 526 law 14, 19, 21, 58, 68, 77–78, 117, 123, 125, 127, 132, 153–155, 161, 164, 170–171, 175–178, 180, 189, 411, 448, 452 EU Charter of Fundamental Rights 58 EU directives 22, 151, 154, 156, 176, 269, 394, 409, 496 EU enlargement 236, 254–255, 259, 491, 496 EU environmental policy 3, 5, 11–12, 14, 24, 26, 28, 517, 519 EU regulations 281, 518 EU Treaty 19–20 European Commission 21, 77–78, 130, 492–493, 495 European Convention on Human Rights 164, 170, 181, 426 European Council 13 European Court of Human Rights 114, 427, 447, 461, European Court of Justice 28–29, 128, 155–156, 176–177, 202, 278, 373–374, 376, 427, 448–450 European Economic and Social Committee 13 European integration 19, 155, 260 European Ombudsman 21, 29 European Parliament 11–15, 18–20, 23, 25, 68–69, 71–73, 75, 118–119, 124, 132, 141, 150, 153, 156, 170, 173, 178, 202, 231, 265–266,

540

index

271, 273, 278, 281, 284, 315, 318, 350, 355, 367, 377, 389, 397, 403, 410, 434, 451, 464, Eurostat 433, 471 exclusive competence 138–140, 142, 144, 146, 199, 252, 370, 509 executive federalism 93, 107, 138 Federal Agency for Nature Protection 63, 68 Federal Court 91, 95, 97, 105, 342, 353–354, 358 federalism 1, 5–6, 33–35, 39–42, 44, 46–48, 50, 52, 55, 59, 74, 77, 83, 88, 93, 96, 107–108, 138–139, 145, 155, 158, 291–292, 312, 319, 334, 349, 392, 397, 399, 503, 506, 519–520, 525 Federation 59, 65, 102, 236, 251–252, 257, 298, 310, 339–344, 346–350, 357, 359, 495, 497, 514–515, 517 financial 15–16, 22, 24, 26, 28, 44, 95, 101, 124, 176, 193–194, 197, 216–219, 232, 255, 307–308, 313, 326, 331–332, 335, 348, 350, 393, 402, 405, 438, 440, 442, 454–455, 457, 464, 476–477, 491, 499, 522 fisheries 16, 20, 27, 108, 139, 143, 177, 317, 329, 340, 343–344, 346–347, 352, 414, 419, 421, 439, 452, 509, 519 Floods Directive 265, 271–272, 519 FOEN 84, 90, 93–94, 99–100, 102, 107–108, 348 forestry 59, 136, 139, 143, 198, 228–229, 485, 490, 495, 498, 509 France 6, 126, 130, 189, 193–195, 198, 201–203, 205–207, 375, 433, 343, 437–438, 441, 443, 445, 447–451, 455–456, 516–517, 522, 424 GATT 104 General Environmental Protection Director 223 Germany 279, 315–322, 324, 326–327, 330, 334–335, 507, 513, 515, 517, 520, 524 Gmina 212–213, 224–227, 465, 468, 481, 512 GMOs 71, 75, 215–216, 219–220, 243, 250 governance 1–8, 24–26, 35, 48, 52, 73, 78, 80, 108, 130–132, 135–141, 143, 148–149, 152, 153–155, 157, 163, 167, 177, 182, 184, 201, 236, 239–241, 244, 248, 252, 258–260, 265, 271, 275–278, 280–285, 313, 336, 383–384, 386, 389–391, 394–396, 398, 400, 402, 404–405, 416–418, 423, 428–429, 448, 460, 463, 483–484, 486, 489, 495, 498, 500–501, 509, 516, 519

good 7–8, 24, 26, 78, 157, 260, 336, 383–384, 448, 460, 498, 500 multi-level 4, 6, 177, 268, 519 government 1–7 11, 13, 29, 33–44, 46, 49–50, 52, 55–56, 62, 64–67, 77–78, 83, 91, 93, 97, 107, 117, 119–120, 125, 128–129, 132, 138, 140, 147–148, 153, 155, 157–158, 161–168, 171–174, 176–179, 182–184, 189, 192–194, 196–203, 205–207, 209–210, 212–215, 223–229, 231, 236–240, 242, 245–249, 251–255, 258, 265–268, 271, 275–276, 278, 281–295, 297, 312–313, 319–320, 322–325, 328, 332, 334, 341, 346, 348, 365–368, 374, 376, 381–386, 390–393, 395–399, 402, 404, 409–411, 414, 416–419, 421, 426, 438, 440, 463, 465–471, 473, 478–480, 484, 486, 489–493, 496–497, 499–501, 503–504, 506, 510–518, 520–523, 527 central 119, 129, 132, 189, 192–193, 196–199, 206–207, 213, 237, 239–240, 246, 251, 390, 392, 398, 404, 484–486, 492, 496, 499, 501, 509, 511–512, 515–516 levels of 4–7, 22, 29, 43–44, 48, 65, 83, 93, 97, 107, 118, 128–129, 137–138, 140, 147–149, 153–155, 157–158, 192, 194, 206, 220, 224, 228, 231, 239, 245, 247–248, 265, 267–269, 271, 275–278, 281–282, 343, 346, 365, 392, 394, 398–399, 402, 435, 456, 459, 469, 483–484, 496, 503, 523–527 local 162, 172, 192–194, 198, 200–201, 203, 205–207, 209–210, 212–215, 223–224, 226–227, 229, 231–232, 236–237, 248, 285, 365, 381–383, 395, 424–425, 438, 465–471, 473, 478, 480–481, 486, 490, 512, 522–523 Great Britain 161–162, 168, 172, 175, 177 green economies 260 Party 76, 102, 106 policies 103 products 3 Grundgesetz 55–56, 59, 61–64, 77 Habitats Directive 118, 133, 269 hunting 139, 143–145, 175, 509 implementation 5–6, 8, 24–26, 28, 43, 45, 47–48, 50, 78, 84, 86–90, 92–93, 95, 98, 102–103, 105–107, 119, 125, 131, 136, 139–141, 148–158, 168, 175, 177, 192, 196, 203–204– 206, 214, 224, 227, 229, 231, 238, 239–242, 250, 258, 260, 265–267, 269–286, 297, 300, 303, 307, 309, 312, 316, 319, 322–325,

index541 334, 336, 348–349, 355, 357, 359–360, 371, 377, 384, 389, 391, 393–397, 400, 402–404, 410–412, 414–415, 418, 421, 425–426, 438–439, 448–449, 452, 456, 458–459, 463, 467–468, 471, 479–480, 485, 488–489, 492, 494–496, 499–500, 503, 505, 508–509, 512–513, 515, 516–518, 521–522, 524, 526 information 3, 12, 20, 22, 25, 39, 41, 44, 51, 65, 71, 74–75, 90–94, 107, 124–125, 130, 147–148, 154, 157, 168, 178–179, 182–183, 190, 202–204, 220, 22, 230, 232, 241, 245, 250–251, 257, 268–270, 272–276, 279, 282, 285, 296, 298–299, 306, 309–310, 350, 357–358, 374, 377, 379, 382–383, 402–403, 420, 423, 428, 437, 442–443, 458, 460, 469, 471–473, 476–479, 481, 491–492, 497, 500, 519 access to 20, 25, 71, 74, 124–125, 154, 157, 178–179, 190, 202–203, 220, 230, 232, 241, 257, 273, 285, 358, 377, 379, 471–473, 476, 479, 492, 497, 519 integration 18–19, 24, 27, 69, 78, 80, 99, 103, 119, 149, 155–156, 183, 255, 260, 266–267, 274, 276, 316, 334–335, 355, 367, 379, 393, 398, 400, 437, 448, 457, 460, 516–519, 522 principle of 149 Interdepartmental Water Mission 435 international treaties 487 Italy 1, 6, 18, 135–137, 139–140, 150–151, 156–157, 176, 195, 235, 389–391, 394–397, 400–401, 403–405, 483, 503, 509, 511, 513, 515, 517, 521, 524 Joint Ministerial Committee 169, 177 judgment 211–215 219, 229, 243–244, 248–249, 282, 321, 329, 335, 353–354, 366, 369–373, 376, 382, 384–385, 400–401, 447, 470 judiciary 240–241, 249, 259, 488–489, 491, 505, 517 justice 14–15, 17–18, 20–21, 25, 28–29, 40, 51, 55, 71, 124, 126, 128, 132, 138, 155–156, 167, 169, 176–177, 179–181, 197, 202, 215, 229, 241, 245, 257, 273, 278, 358, 373–374, 376–377, 394, 426, 448–451, 456, 492, 497, access to 15, 25, 71, 124, 126, 179, 257, 273, 358, 377, 492, 497, 517, 519 Länder 55, 57–61, 63–64, 66, 68–69, 74–80, 319–320, 322–324, 327–328, 332, 334–335, 507, 515 legislator 1–2, 55, 59, 79, 83, 88, 105, 114, 191–192, 200–201, 203–204, 211, 213–215,

218, 228–229, 231–232, 281, 299, 359, 370–371, 381, 385, 397, 404, 444–446, 474, 479–480, 511, 517, 519, 526–527 litigation 18, 49, 179, 292, 302–304, 309, 312, 504, 517 macro and micro environmental policies 515 management plan 117, 220, 225, 268–274, 279, 294, 300, 315, 318, 321, 323–326, 328–330, 333, 335, 356–357, 360, 366–367, 371, 373–374, 377–378, 383, 395, 397, 399, 401, 403, 412–413, 419–420, 422–423, 429, 467, 469, 472, 475, 488–489, 494–495, 498 market-based instruments 3–4 Member States 1–2, 5, 11–15, 17–24, 26–28, 58, 69, 71, 199, 202, 267–270, 272–273, 275–284, 315–316, 331, 356–357, 374, 395, 400, 449, 481, 501, 516–518, 524, 526 Ministry of the Environment 379, 403 Montenegro 6, 235–237, 244–250, 258, 260, 498, 501, 512, 516, 518, 523 multi-layered system 5, 33, 37, 42, 45, 50, 52, 311, 313, 505 Municipality 98, 212, 236, 242, 245, 248–249, 252, 382, 488 National Environmental Policy Act 1, 39, 506 National Hydrological Plan 367–369, 380, 385 Natura 2000 74–75, 123, 127, 152, 368 natural resources 36, 40, 45, 58, 107, 114, 142, 146, 151–152, 228–229, 246, 252, 285, 302, 306, 309, 344, 410, 414–415, 426, 484 necessity test 60 new environmental governance 3 NGOs 3, 24–26, 51, 119–120, 126–127, 149–150, 191, 203, 205–206, 238, 242–244, 250, 257, 259–260, 271, 275–276, 278, 282–283, 285, 319, 325, 328, 354, 410, 421, 423–424, 437, 441–442, 444, 454–456, 459, 461, 473, 487–489, 492–493, 497–498, 501, 524 Northern Ireland 161–163, 166–169, 171–176, 179, 181–183, 409–411, 416–418, 424–425, 427–429, 510 one-size-fits-all approach 40 openness 7, 24–25, 29, 62, 125, 154, 157, 202, 230, 258, 336, 383, 390, 434, 460–461, 500 Parliament 11–15, 18–20, 23, 25, 29, 34, 61, 68, 69–71, 73, 75, 84, 86, 88, 91, 99–100,

542

index

102, 118–120, 124, 126, 128–129, 131–132, 141, 150, 153, 156, 161–165, 167–176, 178, 184, 192, 202, 204–205, 212, 225–226, 228–229, 231, 236, 241, 244, 265–266, 271, 273, 278, 281, 284, 315, 318, 320, 325, 350, 355, 367, 377, 389, 397, 403, 409–412, 414–415, 428, 434–435, 438, 440, 451, 464, 484, 493, 507, 510–512, 517, 522 participation 7, 20, 23–25, 48–50, 55, 62, 68, 70–71, 74, 78–79, 97, 106, 113, 118, 124–126, 131–132, 136, 148–150, 153, 155, 157, 178–179, 182, 190, 202, 204, 207, 212–214, 216, 218, 220–222, 231–232, 241, 250, 252, 256–257, 259, 265, 269–270, 272–274, 278–280, 283–285, 326, 335–336, 357–358, 360, 366, 372, 377–378, 381, 383, 390, 393, 395, 397, 404, 412, 417–418, 420–421, 423, 425, 428, 437, 441–442, 460, 468, 471–473, 480, 487–489, 496–497, 500, 509, 519, 522, 524–525 public 1–3, 5, 7, 13, 22–26, 28, 34, 45, 48–49, 52, 55, 57, 62, 64, 70–71, 73–74, 78, 83, 90–94, 100, 104, 106–108, 113–114, 116–120, 122–125, 127–128, 130–132, 136, 141, 149–150, 153–154, 157, 165, 178–179, 181–183, 190, 194–198, 200–204, 207–231, 141, 245–251, 256–259, 265–266, 268–269, 271–275, 278–281, 283–285, 291–292, 308, 315, 317, 321, 324–326, 329, 334–335, 341, 348, 350, 354–355, 357–360, 369, 372–374, 377–380, 382, 386, 391–395, 397–401, 403–405, 410, 412–415, 417, 419–420, 422, 424–426, 428, 436–442, 444–448, 452–456, 458–461, 463–481, 485, 487–490, 492–493, 496–498, 500, 508, 512, 519–520, 524 polluter pays principle 90, 190, 279, 326, 331, 335, 343, 400, 440–441, 456 pollution 2, 13, 15–16, 26–27, 33–34, 38–47, 50–52, 60, 69, 80, 84, 87, 91, 95, 97, 103–105, 108, 116, 119, 135–136, 141, 148, 154, 165, 170–171, 173–174, 180, 183, 195, 216, 218, 238, 250, 265–267, 270, 284, 291–298, 300–313, 325–326, 330, 340, 343–344, 355, 359, 390, 394, 415, 418–419, 422, 427, 433–434, 437, 440, 450–453, 457, 460, 463, 467, 470, 476–477, 490, 506, 523 Water Framework Directive 170, 173–174, 265–270, 273–278, 283–284, 315, 322–323, 326, 331, 334, 340, 355–358, 360, 367, 368, 371–379, 383, 386, 389, 395, 403, 410, 412, 417–418, 425, 429, 434, 439, 464, 488, 493–495, 522

powers 4, 6–7, 35, 43, 59, 61, 64, 66, 72, 77–79, 86–87, 94, 113, 115–119, 121–122, 127, 129–130, 137–140, 143, 145, 148, 150, 154, 157, 161–162, 164–172, 174, 176, 182–184, 190, 192–193, 196, 198–200, 206, 215, 226–228, 231, 237, 240, 251–253, 256, 258, 271, 281, 312, 340, 342, 344, 346, 390, 393, 398, 409, 413, 418, 426, 435, 453, 486, 489, 496, 501, 503–505, 507–515, 517–518, 520, 524–525 administrative 138–139, 256, 511, 514 distribution of 6, 113, 115, 117, 122, 129, 154, 190, 192, 200, 240, 252–253, 508, 513 division of 6, 139, 149, 253, 503–505, 508, 511, 513–515, 517–518, 520 exclusive 59, 61, 118, 139, 145, 519 Powiat 212–213, 224–227, 465, 467, 469, 481, 512 precautionary principle 65, 74–75, 190 prevention 15, 69, 72, 82, 89–90, 92, 116, 119, 136, 148, 150, 165, 173–174, 180, 183, 216, 219, 229, 232, 250–251, 284, 343, 345, 355, 397, 402, 437, 442, 446, 453, 455, 457, 463, 464, 467, 472, 474, 475, 485 Province 6, 120, 128, 137–141, 146–147, 155, 235–236, 385, 392, 394, 398–399, 403 public administration 3, 94, 209, 213, 215, 217–218, 222–225, 227–229, 231, 248–249, 256, 259, 299, 313, 373, 380, 398, 425, 428, 464–466, 468–471, 474–476, 481, 485, 512 public authority 116, 119, 211–214, 220, 223, 242, 436, 479 Question Préjudicielle de Constitutionnalité 191 referendum 84, 97–98, 106, 163, 172, 358, 360, 401 reform 5, 59, 91, 120, 136, 138–141, 144, 155–158, 167, 172–173, 175, 193, 227, 240, 248, 255, 259, 268–270, 289, 313, 319, 334, 368–370, 384, 389, 392–394, 397–398, 400–402, 404–405, 411, 141, 416, 425–426, 428, 437, 455, 459, 507, 509–510, 512, 515, 520–521 Region 6, 14, 44, 120–121, 136–149, 151–152, 154–156, 158, 193–194, 197–198, 200, 236, 260, 279, 296–298, 302, 306, 312, 317–318, 328–329, 390–394, 397–401, 419, 428, 433, 436–439, 447, 457, 459, 465, 467, 469, 471–472, 472, 475–476, 481, 483, 486, 488, 489, 499–501, 509, 511, 521–522 regulatory body 180, 520

index543 river basin 116, 119, 121, 220, 266–275, 277–282, 285, 301, 306, 315–317, 322–323, 325–327, 330, 334, 336, 351, 356–357, 366–380, 383, 385–386, 390–391, 394–395, 396–397, 403–404, 412, 415–425, 436, 464–467, 472, 474–476, 481, 483, 485, 488–489, 494–495, 498, 521 Rotterdam Convention 85 Scotland 161–184, 296, 313, 409–412, 414–419, 422–429 Sejm 211–212, 225, 481, 511 self-government 64, 66–67, 192, 199–201, 212–214, 224–227, 231, 237, 241, 245–249, 252–253, 258, 445, 485, 499, 511–512 Senate 39, 42, 118, 190–191, 211, 511 Spain 6, 15, 113–115, 118–119, 121–128, 130–131, 279, 365–8, 370–376, 379, 382–383, 511, 515, 518, 521, 524 spatial planning 5, 204, 226, 235, 246, 248, 324, 342, 344, 346–347, 349–350, 352–353, 357, 464, 483, 490–491 Spending Clause 37–38, 506 State 1–7, 11–15, 17–24, 26–29, 33–52, 55–58, 62, 64–67, 69, 71, 77, 86, 89, 92–93, 96, 106–107, 115–119, 121, 124, 126, 128–129, 136, 137–140, 142–149, 151–154, 156–158, 161–164, 167, 170, 173–174, 176–177, 179, 189–194, 196, 198, 201–203, 209–212, 214–215, 217, 219, 222–224, 228, 230–232, 235–238, 241, 244–255, 258, 267–273, 275–285, 291–296, 298–312, 316, 318–329, 331–334, 339–340, 342, 356, 357, 366–372, 376, 378, 380–381, 384–385, 395, 398–400, 409, 412–413, 418–421, 423, 427–428, 434–441, 446, 449, 451, 455–457, 459, 461, 464–467, 469, 471–481, 483–486, 489–496, 500–501, 503–517, 520–526 status exclusivity 211, 511 sub-national 5, 164, 401, 404, 505, 511–514, 516–518, 520–523, 525 subsidiarity 17, 20, 91, 139, 140, 146, 149, 155–156, 158, 199–200, 213, 215, 265, 270, 281, 283, 285, 523 Supremacy Clause 36 sustainable 26, 28, 58, 83, 89–90, 96–97, 100, 104, 148, 170–171, 183–184, 190, 196, 198, 203, 210–211, 214, 216, 239, 247, 250, 260, 267, 269, 343, 379, 380, 389–390, 395, 400, 404, 416, 433, 435, 437, 440, 455–456, 473, 478, 490–491

Switzerland 90, 93, 97, 99–101, 105–108, 339–340, 343–344, 348–349, 351, 354–360, 507–508, 515, 520, territorial planning 118, 197, 379, 380, 392 tourism 26, 103, 139, 167, 174, 247, 250, 414, 490–492, 499, 509 transparency 25, 29, 154, 157, 173, 182, 189, 204–205, 207, 218, 230, 283–284, 420, 428, 442, 460, 479, 524 transport 5, 16, 22, 26–27, 59, 95, 99, 136, 139, 141, 164–165, 167, 197, 203, 317, 320, 335, 341, 348, 398, 415, 435, 440, 442, 455, 456, 509, 519 UK 6, 161–165, 167–180, 182, 184, 409–429 unitary 4, 6–8, 135, 144, 147, 150, 153, 158, 189, 209, 212, 214, 231, 236–237, 252, 270, 370–371, 373, 375, 409, 428, 503–504, 511–515, 520, 522–523, 525 State 4, 7, 189, 209–210, 212, 214, 231, 236, 252, 409, 428, 503–504, 511–512, 514–515, 520, 522 USA 1–2, 6, 33 Voivod 212–213, 223–226, 232, 465–466, 468, 470, 480, 512 Voivodship 212–213, 220, 223–227, 229, 465–471, 481, 512 Wales 161–163, 166, 168, 170, 172–183, 409–414, 417–420, 424–425, 4 27–428, 510 waste management 12–14, 27, 84, 92, 101, 103, 107, 141–142, 195, 207, 217–220, 225–226, 238 water governance 265, 390–391, 393, 394–396, 400, 402, 405, 463, 484, 521, 523–524 management 2, 7, 60, 74, 79, 121, 198, 223–224, 226, 229, 246, 265–267, 269–270, 273, 276–277, 279, 281–284, 315–316, 320, 336, 340, 345, 351, 353, 356, 359–360, 365, 368, 372–374, 376, 378–380, 383–384, 389–390, 392–396, 400–405, 410–411, 414, 416, 418, 424–425, 428, 434–439, 442, 444, 446, 457, 459–461, 463–480, 483–485, 487, 489, 490–492, 494, 498–499, 501, 520–523, 525, 527 policy 8, 15, 119, 170, 265–268, 275, 283, 291, 310, 315, 318–319, 335–336,

544

index 355, 365, 367, 379, 380, 389, 410, 425, 434–436, 438, 440–441, 452, 457–460, 464, 499, pollution 34, 38–39, 42–44, 46, 50, 69, 87, 136, 148, 174, 265, 270, 294, 307, 309, 325, 330, 340, 344, 415, 419, 456, 477, 490, 523

Western Balkans 235–237, 239, 241, 258–260, 483, 499–500 White Paper 7, 25, 130, 172, 182, 201, 285, 448, 460 Yugoslavia 235–236, 245, 258, 260, 483, 490, 500