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European (EU) Environmental Law
 

Background

Increasingly the EU law reflects international environmental law. The most publicised example concerns the acceleration of the phase out of CFCs etc. arising from the Montreal Protocol and its amendments.

The environmental policies of the European Union (EU) increasingly drive the environmental law of the UK and other member states.

Increasingly environmental law drives companies plans about the environment. Some companies see environmental law as a potential threats to continued survival, others see the potential for increased revenues. EU environment law offers both a threat and an opportunity.

The first Environmental Action Plan in 1973 set out a number of principles. They have formed the basis of EU policy ever since. They are:

  1. Prevention is better than cure

  2. Take into account environmental effects as early as possible

  3. Avoid exploitation of nature that causes significant damage to ecological balance

  4. Improve scientific knowledge to enable action to be taken

  5. The polluter should pay

  6. One Member State's activities should not cause environmental damage to another State

  7. Environmental policies of Member States should take into account the interest of developing countries

  8. The EU and Members States should act together in international organisations.

  9. Protection and education of the environment is a matter for every citizen

  10. Establish the appropriate level, whether local, national, or EU for action.

  11. National environmental policies must be co-coordinated with EU

EU Directives

Between 1973 and the Single European Act of 1987, 200 Directives were made dealing with various parts of the environment. The treaty of Rome was amended by the Single European Act to include at title headed "environment" providing a clear legal base for environmental actions for the first time.

The first three Environmental Programmes (1973-76, 1977-81 & 1982-86) dealt with the acute pollution problems, leading to a more preventative approach. The main instrument used for action was a Directive. A Directive has no authority but each member state by virtue of its membership is required to enact national legislation giving it effect. The UK does this by statutory instruments and UK regulation. Each Member State enacts an EU Regulation - e.g. Environmental Management and Audit Systems, exactly word for word. Directives made in this period continue to determine the progress of further Directives and implementation of laws in Member States. The most significant are as follows.

Examples of preventative Directives include Directive 79/831 on the notification of new chemicals before marketing (known as the 'sixth amendment') and Directive 85/337 on the environmental assessment of development projects (environmental impact assessment). This Directive has been implemented in Town and Country Planning Regulations (1988) requiring environmental information to be taken into account for granting relevant planning permission.

Land

EU policy on waste is founded on the 1975 Framework Directive on Waste 75/442. This requires that waste is disposed of in a way that does not present a risk to human health or the environment. Because of problems of definitions and implementation, the Directives on Waste 91/156 and Hazardous Waste 91/689 replaced this. These Directives define the scope of waste and hazardous waste. They aim to encourage waste minimisation by waste avoidance, reduction, reuse and recycling, through the adoption of clean technologies, and to encourage self-sufficiency in waste management. In the UK, the EPA anticipated some of the changes, and the Environment Act has tidied up the loose ends.

"Waste" is defined as a substance the holder "discards, intends to, or is required to discard." The word "discard" remains undefined so that this definition is largely uncontrolled and circular. "Hazardous waste" is defined as waste featuring on a list to be drawn up by the Commission, and defined by 14 hazardous properties. The Directives do not lay down conditions for permit application or operational requirements. These are developed in Incineration (see Air below) and Landfill Directives. There is ongoing discussion on liability for damage from waste and a Directive on recycling of packaging wastes. EU Ministers have banned the exports of hazardous wastes to non-OECD countries, in line with the Basle Convention.

The Landfill Capacity Directive gave substance to permit obligations under 75/442, but it was rejected by the European Parliament in mid 1996. The opposition was because it lowered existing standards in some countries, especially rural areas.

The Packaging and Packaging Waste Directive 92/278 [check latest] aims to reduce the amount of packaging waste from industrial, business, and private sectors (see UK law for progress with implementation). US Industry described the Directive as " a brave experiment in environmental law with serious implications for the free movement of goods and services" . Packaging is defined as "all products made of any materials of products, goods, from raw materials to processed goods" The definition covers a wide range, including wine bottles, bulk wrapping, and pallets. The original proposal also included plans to reduce the amount of packaging disposed by landfill to a maximum of 10% in ten years.

Air

EU law relies on two approaches - to set emission limits of certain substances in flue/exhaust gases or by defining air quality objectives for substances. The first is the 'technology-driven' approach, the second 'issue-driven'.

The technology-driven approach tried to control emissions at source, by limiting certain fuel properties. The sulphur content of gasoils was reduced by a series of Gasoil Directives. The EU reduced lead in petrol in 1978, and introduced unleaded petrol in the 1985 Directive, that also limited the proportion of benzene to 5%. In 1991 the Consolidated Emissions Directive imposed severe exhaust emission standards to reduce emissions by 90%, using catalytic converters. They were installed in all new cars from 1993. Further Directives for further reductions are expected.

Air Pollution from Industrial plants control is technology-driven. Directive 84/360 requires Member States to authorise only new plants that can demonstrate BATNEEC (see UK Law EPA). The Large Combustion Plant Directive (88/609) limits emissions from Sulphur and Nitrogen Oxides and particulates in those plants. There are various measures to reduce Volatile Organic Compounds (VOCs) emitted in processes and to reduce by 90% emissions from the storage of petrol. US industry while seeing the environmental benefits wishes to assess the impact of these proposals as they involve considerable costs and important process changes.

The Incineration of Hazardous Waste Directive 92/9 establishes uniform, technical and operational criteria for all hazardous waste incineration facilities, as well as for industrial processes which incinerate a proportion of hazardous wastes as a fuel supplement. Facilities, which exceed emission limits, will not be authorised to operate until they comply with set limits, in particular for dioxins and furans. Industrial plants which incinerate hazardous waste as a fuel supplement would be subject to differing controls, based on the heat produced.

The EU is now moving towards Integrated Pollution Prevention Control (proposed IPPC Directive). Instead of unconnected laws dealing with each of the three receiving media, land, air and water, this seeks to integrate all pollution. Various members states, including the UK (see UK Law, EPA), France and the Netherlands already have introduced their own integrated system of law, systems and administrative bodies.

Following the issue-driven approach, the EU adopted, in the 1980s, air quality limits for SOx/suspended particulates (80/779), NOx (85/203), lead(82/884), and later for ozone (92/72). These provisions are given effect in the UK, for the first three substances, by the Air Quality Standards Regulations 1989.

The Air Pollution by Ozone Directive 92/72 established a harmonised procedure for the monitoring, and exchange of information and warning the population about air pollution. The ultimate intention is to gather information to set air quality limits in tropospheric ozone. The UK have yet to introduce laws for this Directive, but you can find out the relevant information through the Air Quality Telephone Line.

The EU signed the ECG - Convention on long range transboundary pollution, and the EMEP Protocol on the monitoring of transmission of air pollutants. The associated Protocols on VOC, sulphur and nitrogen oxides with emission reduction targets will continue to drive EU air quality standards. For more check out the European Environment Agency reports at http://www.eea.eu.int/

Water

EU Control of water started with two key Directives in the mid-1970s. Directive 75/440 deals with the principles and standards necessary to improve and sustain the environmental quality of water intended for drinking. Directive 76/464 regulates the discharge of dangerous substances into surface water. These two Directives recognise the interconnectedness of ecological systems. They try to control what we drink by controlling what goes into water and the how that should be treated. Many further EU regulatory measures build on the principles of these Directives. Future directions will be influenced by integrated pollution control (see above) and ecological quality.

Directive 75/440 has two purposes. The first is to ensure that surface water abstracted for use as drinking water reaches certain standards and is given adequate treatment before being put into public supply. The second is to improve rivers or surface waters used as sources of drinking water. Sources of surface water for abstraction of drinking water were classified into three categories corresponding to the treatment needed - simple physical, physical and chemical, intensive disinfection. Annex II laid down mandatory values for a whole list of substances - or parameters, of surface water. There were 46 'parameters', including temperature, BOd, nitrates, lead and feacal coliforms.

Directive 80/778 is developed from this Directive. It lays down some 62 quality standards and guidelines for monitoring water intended for drinking or for use in food. Annex 1 lists the Guide Levels, Maximum Acceptable Concentrations (MACs) or Minimum Required Concentrations for each of the parameters. The parameters are divided into six categories: organoleptic (colour, smell taste), physiochemical (pH conductivity), undesirable substances (nitrates), toxic substances (lead, pesticides), microbiological (coliforms) and hardness/alkalinity.

Directive 76/464 sets a framework for the elimination or reduction of pollution by particularly dangerous substances of "controlled" waters - lakes, rivers, ponds, groundwater and territorial seas. Daughter Directives have set standards for particular substances. The Directive also interprets various International Conventions. Annex I has two lists of groups of substances. Member States have to take steps to 'eliminate' List I substances, popularly known as the "Black List". This includes 129 compounds such as organohalogen, organophosphorus compounds, carcinogenic substances and mercury and cadmium compounds. List II substances include less dangerous compounds, and is popularly known as the "Grey List". It includes zinc, copper, lead compounds, cyanide and ammonia. Members States have to establish pollution control programmes with deadlines for implementing controls.

There is a continuous debate about whether control is based on the "Best Available Technologies" (BAT) or on the respect of quality standards. BAT supporters claim that cost elements an be built into the choice BAT and that only this approach conforms to the Precautionary Principle (see International Law). Opposers claim that the Precautionary Principle con only be respected by quality standards. Most of the Directives compromise the two positions. The UK voted against proposals in 1976 to set limit values for emission standards of List I substances. The compromise of the future will be that A BAT system should prevail in the absence of an Environmental Quality Standard laid down either by the European Council or of equivalent World Health Organisation (WHO) guidelines.

A new emphasis is being given to pollution from diffuse sources. "Diffuse sources" means from agriculture (e.g. fertilisers, pesticides), municipal waste water, and human activities like tourism and traffic. The Nitrates and Municipal Water Directives, Ecological Quality Directive, amended Drinking Water Directive and possible Ground Water Directive recognise that it is not only industry that pollutes water. Increasingly, there are other laws on chemicals that deal with chemicals with a diffuse origin.

Increasingly the Commission will prioritorise chemicals, according to risks they pose to the environment. The basic reference has been and remains Directive 76/464. The lists were drawn up from production and usage data. Priority moved to toxicity, persistence and bioaccumulation. The Commission is now looking to extend the list to about 180 chemicals, and ranking them on the basis of exposure and effects, rather than intrinsic properties.

Directive 76/464 left Member States the responsibility for fixing quality standards only for List II substances, including heavy metals, while the Council retained the responsibility to fix standards for List I substances. The IPPC Directive refers to a single list including all List I substances and the heavy metals.
The BAT supporters and those who believe that substances reach waters as complex mixtures oppose standard setting using risk assessment on a substance by substance basis.

Fifth Environmental Action Programme

Since the beginning of the 1990s, the emphasis has been on enforcement of existing law, rather than creating more, and using other instruments such as tax or voluntary agreements - like environmental management and eco-labelling schemes. These are ways of involving more stakeholders and complement rather than substitute existing law. The eco-labelling scheme is probably best forgotten.

The EU is the largest trading bloc in the world with 340 million inhabitants. It is in a critical position to take the lead in moving towards sustainable development. The EU considers it has a responsibility to take urgent action and that to achieve sustainable development will demand practical and political commitment over a long period of time.

The EU recognises that environmental policy will impact on the costs to business, but considers it is a precondition of industrial expansion. The EU believes the two objectives of consolidating industrial competitiveness and achieving a high level of protection of the environment should be mutually supportative.

These views are incorporated in the Fifth Environmental Action Programme. The latest Action Programme promotes more effective integration of environmental policy into the wider policy agenda, and seeks to put sustainable development at the top of the political agenda. Reforms include better preparation of measures, improved consultation, better practical follow-up to legal measures and stricter compliance checking and enforcement.

The Fifth Environmental Action Programme also proposes the development of a number of dialogue groups to assist in the design of future environmental policy. The Programme uses a consultative forum for debate and exchange of information between industrial sectors, regional and local authorities, trade unions, professional bodies, environmental groups and consumer organisations with the relevant officers in the Commission. It also uses an implementation network to help practical application of EU measures, with a policy review group to develop mutual understanding between the EU and Member States.

Specific developments are planned to promote industrial competitiveness. These change the emphasis from a reactive to a proactive stance, based round the adoption of clean technologies and the development of environmentally sound products. The two key instruments are the environmental management systems and the eco-labelling scheme. These are complemented by greater public access to environmental information and the application of levies, incentives and civil liabilities to channel people towards sustainable development.

A sign of the importance of involving more people in taking responsibility for environmental protection is the recommendation that member states draw up education policies that enable students gain a basic knowledge of ecology and learn to reason in terms of systems.

The intent of the increased transparency and consultation is to enable business to take its full part in the practical implementation of environmental policy. The American Chamber of Commerce produces the most comprehensive guide for industry. Industry can see and have a say in what is required. Companies can then take advantage of the future possibilities. The delay between the release of EU law and its subsequent implementation by Member States gives vital playing time for those companies who want to exploit the opportunities which are generated.

Since the Maastricht treaty, the process of adopting EU law has changed. Previously most items were adopted under the 'consultation' procedure, which requires unanimous voting by the Council of Ministers. MEPs are consulted, but their views can be ignored. Now the standard is the 'co-operation' procedure. This gives the parliament greater influence through a second reading and measures are adopted by qualified voting. If the parliament rejects, it still can be adopted by the Council, but only with a unanimous vote. There is also a 'co-decision' procedure that extends parliament's powers to block Council proposals. But it gets complicated after that.

The review of the Fifth Action Programme in 1996 concluded that some targets would not be met and that stronger measures are needed to tackle: climate change and acidification; urban issues, including air quality, noise and waste; and ground and surface water quality. Least progress was seen in agriculture, tourism and transport, although more has been made in the industry sector, particularly through regulation!

Infringements of EU environmental law, including nuclear safety and civil protection, within the jurisdiction of DG X1, have fallen in the last few years. In 1992 there were 587 infringements, 359 in 1994 and 265 in 1995. The UK was responsible for 57 infringements in 1994 down to 265 in 1995. The UK has the third best record on implementing EU environmental law, giving effect to 95% of the Directives.

Future Developments

Future EU Directives in process are on solvent emissions, and scrapped vehicles. There are proposals to amend the Directive on Environmental Assessment. Six future EU discussions are planned, relating to the recycling industry, noise policy, voluntary agreements in industry, the use of economic instruments in environmental regulation, and implementation of Environmental law.

A draft Convention was produced in 1995 by the 34 nation Council of Europe which would require members states to protect the environment through criminal law sanctions, and corporations would be held responsible for environmental crimes.

New EU directions require employers to look more at the environmental impacts of the products they make. It is called Product Stewardship.

European Packaging Directive 94/62/EC requires member states to valorise between 50% and 65% of their packaging by the middle of 2001. "Valorise" means to reuse, recycle or incinerate with energy recovery. It requires at least 25% of packaging to be recycled, including a minimum of 15% in each material sector.

The first law introduced into the UK under this principle is:
'Producer Responsibility Obligations (Packaging Waste) Regulations 1997'.

To learn more about EU Environmental Law visit
http://struiken.ic.uva.nl:88/

and check out
European Environmental Law


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