Another instrument contained within the bracket of regulation is the implementation of restrictions and prohibitions, "they are binding in their entirety and directly applicable to all Member States,". This quotation directly highlights one of the merits for using the tool of banning practices or products. Prohibitions do not need an act of transposition into national law where they may be diluted. They can be applied to every Member State, regardless of their economic strength or other non-relating factors. Lists of banned or restricted practices and products are a flexible way of tackling environmental problems because they can be amended with ease with few complications," lists avoid too much technical detail being included in the basic legislative or regulatory text,". The banning of products or substances is often a result of increased product standards, such as in the case of PCB's and CFC's. These instances highlight positive aspects resulting through the use of prohibitions. The major defect of relying upon prohibitions is the risk of non-compliance. For practices such as dumping of waste it is extremely costly and difficult to police such behaviour. Also, there is often cases of leeway such as in the shipment of waste products, "Member States shall take appropriate legal action to prohibit and punish illegal traffic of waste,". This example shows that a Government in one country may punish a lot less severely than another nation for the same European crime, thereby making the crime possibly a risk worth taking in certain countries.
Directives and prescriptions are another way to approach treating the symptoms of pollution," environmental directives tend to be of a general nature,". These rules can be applied by national Governments through either an Act of Parliament or through national law but must be applied to the whole country. The directive can be adapted regionally or locally if necessary. This flexibility allows Governments to apply EU rules but to their own extent," directives address Member States and normally oblige them to act in a certain way,". The position is that the directives are not demands or prohibitions but rules and guidelines. This can lead to a misinterpretation where expectations of results are not achieved because the Governments may not be fined or individuals are not fined for breaking the directives.
There are other defects to using regulations to control pollution problems. One of these defects is that there are very few incentives for companies and individuals to work strictly to regulations, unlike in Sweden where rather that fine companies for polluting, they pay them to not pollute. There is often little profit to be made for companies to operate environmentally correct, and therefore many companies work to the highest limits that they legally can.
The central core of the market based approach is the 'polluter pays principle'. This idea was first stated in the 1973 'EC Action program, and later cemented in the 'European Convention in Civil Responsibility for Damages Resulting from the Exercise of Activities Dangerous to the Environment 1974'. The polluter pays principle has led to a number of tools being used, by national Governments on the whole, to ensure that rather than the public or Government pay, the companies or individuals who do the polluting pay directly financially. One way that this is done is through taxation, "there are various degrees or taxes that can be levied with the aim of affecting behaviour towards the environment,".
Taxation can be implemented in a number of ways. One is directly onto polluting products such as petrol.
This ensures those that drive, and therefore pollute are directly made to pay for doing so. The advantage of this is that money obtained through this form of taxation is often reinvested in road quality therefore improving national infrastructure. Also the money is used on environmental research or nature conservation projects. Another example where taxation is used is through the taxation on discharges to the environment. This is common practice in France where firms are made to pay for substances released. From a business point of view this is very much a disadvantageous way to control pollution. This tool may possibly affect foreign businesses setting-up in the nation if the taxes are perceived to be either too high or unfair. Taxation does very little to actually prevent pollution. For MNE's who are saving millions of dollars by operating in countries like Greece, the charges for polluting are small compared to that amount they are saving in set-up costs etc. Therefore the amount of pollution actually being produced is quite unsubstantial.
Permits and licences are tools used to treat the causes of pollution," it is unlawful to carryout a process listed as polluting or potentially harmful without authorisation,". Permits are used on businesses or individuals whose operations require a degree of pollution. Local councils assess the amount of pollution that is likely to be created before deciding whether a permit is to be issued. The advantage with this approach is that permitting can be as tight and stringent as necessary i.e. when dealing with nuclear waste the conditions of obtaining a permit are severe. Another merit for the use of permits is that they act as a middle-area between unregulated practices and absolute prohibitions. As with taxation the main defect of permits is that they barely prevent pollution happening, but just obtain capital for the practice," licensing controls are not designed to eliminate all pollution,". The issuing of permits may also be an expensive process. Quite often a whole department will be set-up to deal with the administration of permits, therefore countering the capital obtained through the selling of permits. A second type of permitting system is through the use of negotiable permits or 'bubbles'. A level of pollution is agreed with a company and a relative charge delivered. If a company then begins to operate consistently below these limits they may sell their permit to another company, whilst obtaining a new, cheaper permit for their new levels of pollution. The advantage of this approach is that companies will strive towards cheaper permits, therefore reducing their pollution output. If though the permit charges are deemed reasonable by the company, their is little incentive for them to reduce say, their emissions, because this may be a more costly alternative.
The use of grants and subsidies in another market based tool available for the use of tackling environmental problems. Companies are encouraged to operate in an environmentally friendly way by receiving such grants or subsidies as rewards, "in Sweden a wide range of grants are available to find measures that are not yet legally required,". Companies are much more likely to operate in a environmentally friendly way, if it results in financial rewards. If though the rewards that are given are dwarfed by the expense to operate in such a manner, then companies again will be reluctant to change their systems. Also, this style of pollution management is likely to prove extremly costly, primarily to tax-payers who will inevitably finance the grants.
"The establishment of a specific, autonomous set of rules to protect the environment in Western Europe is anything but easy since legal systems are different and the perception of environmental problems varies considerably". Has this quotation from 1997 been made less accurate from the introduction of the Euro and the closer integration of the EU as a whole? Fundamentally, no. The developement of EU Environmental Policy and it's impact on EU Member States is increasing, but is still very difficult to implement in most areas, such as waste dumping. The need for an equilibrium between command and control approaches and market based strategies is crucial. Command and control approaches can be thought of as most effective in their overall environmental effectiveness, their administrative cost and EU wide adaptability. Whilst market based approaches can be seen to be best in terms of economic efficiency in terms of cost to non-polluters, and cost effectiveness because their implementation and maintenance costs are lower. With the news in the last few days that the EU is to implement a'polluter pays' legislative bill concerned with recycling, this idea of an equilibrium of the two approaches can clearly be understood.
Within this essay, the merits and defects of the main approaches in tackling environmental problems have been discussed. The instruments and tools available through both EU legislation and national law allow environmental problems to be tackled from two fronts, treating the symptoms of pollution and tackling the causes of pollution. These instruments and tools produce both positive and negative results and it is these results that
determine the extent to which the tool should be implemented.
1998 words
Bibliography
Textbooks
- 'The law and policy relating to the protection of the environment', 4th Edition
S. Bell 1997, Blackstone
- 'The politics and economics of the European Union', 2nd Edition
R. Jones 2001, Edward Elgar
- 'Manual of European Environmental Law', 2nd Edition
A. Kiss and D. Shelton 1997, Cambridge Univeristy Press
- 'Focus on European Environmental Law', 2nd Edition
L. Kramer 1997, Sweet and Maxwell
- 'EC Environmental Law', 4th Edition
L. Kramer 2000, Sweet and Maxwell
- 'Blackstones guide to the Environment Act 1995',
P. Lane 1995, Blackstone
J. Scott 1998, Longman
D. Woolley 2000, Oxford University Press
Articles
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'The Independent' April 9th 2002, "European Parliament set to enact 'polluter must pay' legislation, changing forever the way we discard rubbish," by Stephen Castle
'Manual of European Environmental Law' pg114
'EC Environmental Law' pg119
'Manual of European Environmental Law' pg116
'EC Environmental Law' pg40
'The Politics and Economics of the EU' pg351
'Manual of European Environmental Law' pg120
'Manual of European Environmental Law' pg128
'Focus on European Environmental Law' pg120
'Manual on European Environmental Law' pg129
'Manual of European Environmental Law' pg137
17 'The Independent'
