United States and European Union: environment law in comparison

Prof.Dr.Ludwig Krämer

Kramer.ludwig@skynet.be

Overview

Comparison EU-USA, not Denmark-California!1. Environmental infrastructure 2. Pre-emption 3. Citizens and pressure groups 4. Climate 5. Nature 6. Biotechnology/Food 7. Waste 8. Water 9. Application, enforcement 10. Third World 11. Concluding remarks

Environmental infrastructure(1)

European Union1. 27 Member States with 27 environmental departments (ministries)2. Environment policy in theory principally at Member State level; in

practice, EU has taken over in many areas3. EU-level: subsidiarity principle, minimum decisions by Council

which is composed of Member States4. EU-level has a neutral body, the Commission which acts in the

general EU interest. May drive policy and law.5. No EU bodies in Member States; at EU level: Agency for data

collection and processing (100 officials; network of 2000 in MSt)6. No EC income; therefore no money (grants, aids) to change

environmental behaviour7. Implementation in the hands of Member States 8. Commission staff modest, compared to staff available in EC

Member States (650 officials)9. Civil law tradition

Environmental infrastructure(2)

United States1. One State, one government, one Parliament, one language2. No environmental ministry; Environment Protection Agency not part

of government3. International attitude in environmental matters mainly influenced by

State Department and Department of Commerce4. Large staff at central level (EPA:18.000 officials, 10 regional offices,

own laboratories)5. Strong central financial capacity (taxes); possibility to influence

behaviour via money6. Owner of about forty percent of US land7. Democratic elements (citizen groups, lobbyists) stronger than at

EU, which is not a State8. Central government may sue polluters directly9. Governed by common law

Pre-emption

To what extent may (USA: States; EU: Member States) legislate in environmental matters?

1. There is no federal legislation (US); no EC legislation (EU)

(a) USA: States may legislate, how they wish, though in the limits of the Constitution (commerce clause)

(b) EU: Member States may legislate, how they wish, though in the limits of the EC Treaty (Article 28 EC)

2. There is federal/EC legislation

(a) USA: The Federal Act determines the right of the States; where it does not do so, limits are drawn by courts

(b) EU: Article 176 EC: Member States may maintain or introduce more stringent environmental provisions. Where product-related issues are concerned, less possibilities (Article 95 EC)

Climate change

1. Convention on Climate Change - Both USA and EC ratified; USA: no obligation under the Convention; EC: there is an obligation to stabilise CO²- emissions by 2000 at

1990 level2. Kyoto Protocol - USA signed, but withdrew signature - EU signed and ratified3. Substantive legislation USA: voluntary conservation measures support for renewable energy technologies increased research EU: emission trading legislation energy saving renewable energy4. What matters at the end of the day: reduce emissions. For both sides: too little, too late. Not the legislation matters, but the policy

Citizens and pressure groups

1. USA: concentration on Federal level; State level secondary EU: strong pressure groups in Member States’ capitals: increase in

pressure at EU level, because of Commission’s monopoly for legislative proposals and increased environmental legislation

2. USA: Financial resources for environmental NGOs not really a problem (Foundations, charitable organisations, fund-raising tradition; tax legislation)

EU: Almost all environmental NGOs depend on public funding (exception: Greenpeace). At EU level 50:13.000 number of lobbyists

3. USA: Private enforcement of legislation far-spread (contingent fee), also against the administration

EU: administration has monopoly of enforcement (exception: nature protection; Netherlands); at EU level, no action against administr.

4. USA: Liability provisions are a considerable deterrent EU: Liability provisions play no role at EU level, hardly any role at

national level

Nature (1)

EU

1. Practically all land in the EU is owned by private owners which see nature conservation measures as expropriation and oppose it

2. Competence within Member States largely devolved to regional, sometimes even to local level.

3. EC legislation on habitats of endangered species and on the species themselves (Dir.92/43), on birds (Dir. 79/409), on trade in endangered species (Reg.338/97), on zoos (Dir.99/22)

4. Main problems:

- application of existing provisions

- loss of biodiversity continues

- in the conflict of natural environment with agriculture or fisheries

or transport or energy, the environment is almost always the loser

Nature (2)

USA

• There is public ownership of land for about 40 percent of the territory

• Nature conservation focusses on public land

• No comprehensive federal act on nature protection, but Natural Parks Act, Wilderness Act, National Monument Act, Wild and Scenic Rivers Act. Endangered species are also protected by federal law.

• Considerable amount of State legislation exists, among others for hunting. Migratory birds partly federal, partly State regulation.

• In part, State legislation provides for a “right to hunt and fish”

Nature (3)

1. EU is not member of the CITES-Convention, among others, because the USA do not want that!

2. Differences between US and EU mainly explained by difference in land ownership and in the size of the territory.

3. Neither area has managed to stop biodiversity loss, except for prestigious animals (Commission for Environmental Cooperation: The North American Mosaic. 2006).

4. Hunters and fishermen are no longer the real problem; the problem is habitat loss and chemicals.

5. Inside protected areas: Visitors, insufficient funds for management; adjacent development leading to island-status; use of surrounding land.

Biotechnology/Food(1)

EU

1. Discussion and legislation strongly marked by scandals (hormones, mad cows, PCB in food)

2. Quality of food plays a considerable role

3. Absence of liability provisions lead to more precautionary attitude (or precautionary attitude makes liability rules less necessary)

4. Population largely rejects GMO-food; environmental NGOs also

5. Legislation on GMO centralised; in practice pre-emption

6. EC legislation tries to promote GMO technology (no liability rules, no “GMO-free”-label; impact assessment provisions; European Food Safety Authority)

7. Long-term studies on the environment, pesticide use etc. not available

8. EU produces too much food anyway. GMO not seen as an export opportunity at all.

Biotechnology/Food (2)

USA:

1. Food quality less important

2. FDA takes care of problems; what comes on the market, is safe.

3. Authorisations for GMO products at State level

4. Large legislative (acts plus resolutions) activity at State level, generally in support of GMO-technology (finance, liability, co-existence, criminal law, pre-emption of local/county rules): (2001-2005) 30 laws on anticrop destruction, 29 support of GMO, 20 pre-emption, 5 labelling, 8 liability, 8 studies, 2 moratorium

5. GMO-food mainly seen as export opportunity, much less as an environmental impact issue; Congress: open global markets

Biotechnology/Food (3)

1. On both sides, the public debate centres on health issues for humans, not on the environment

2. Do we have enough data on the medium- and long-term impact on biodiversity, environment, nature?

3. If not, what is the consequence?

4. Thus, introducing biotechnology is more a question of policy (with regard to risk), than of law.

5. Europeans have a stronger desire for proof that potentially dangerous substances are safe; Americans are more comfortable with activities and substances not proved unsafe (Harris)

6. Consumers do not get a choice on either side of the Atlantic.

Waste(1)

USA: -Resource Conservation and Recovery Act, and subsequent laws and regulations

-- directly regulate hazardous waste: definition, transport, storage, export, disposal; hazardous household waste and non hazardous waste regulated by States -- ensures monitoring, inspections, enforcement by federal officials -- allows States to adopt more stringent legislation. - Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) -- provides for clean-up of uncontrolled hazardous waste, the costs of which are at charge of waste generators, transporters, processors, land owners - States are obliged to set up solid waste plans; if they comply with

EPA guidelines, they qualify for financial assistance. - No State import/export ban of waste is allowed (commerce clause) - Recycling: EPA: education and financial incentives

Waste (2)

EU: - Directive 2006/12 (ex 75/442): framework provisions on definitions, permits, basic requirements, planning, recovery and recycling objectives

- Directive 91/689 on hazardous waste

- Regulation 1013/2006 (ex 259/93) on waste shipments (export ban!)

- Directives on incinerators, landfills, port reception facilities

- Directives on about a dozen of specific waste streams (cars, electronic products, batteries, packaging, waste oils, sludge)

Legislation lays down definitions, basic requirements, management plans, in waste streams also obligations for separate collection and sometimes on take-back

Waste (3)

1. USA legislation differentiates much stronger in the management provisions between hazardous and non hazardous waste

2. In EU, Member States may object to waste shipments, when the waste is to be disposed of (in contrast to recovery). In USA, this is contrary to commerce clause

3. In EU, export ban for hazardous waste to non OECD countries (Basel Convention) - Clemenceau; USA rejects

4. NIMBY (not in my backyard) is a problem of both sides of the Atlantic, LULU (locally undesirable land use) only in USA; siting is not a problem in Europe

5. No monitoring of legislation by EC administration; strong monitoring by US-EPA

6. More efforts at EU level to promote, via legislation, recycling and recovery; financial incentives not available. In USA, stronger emphasis on voluntary action and on State initiatives

Water (1)

USA1. Prior to 1972, ambient water quality standards which were difficult

to enforce and, overall ineffective.2. 1972 Federal Water Pollution Amendments Act (Clean Water Act)

regulated point sources, for which permits were required. Permits (42.000 applications) given by EPA, based on technology (BPT-BCT-BAT).

Enforcement by States, EPA, but also citizen groups.3. Big omission: non-point sources from agriculture and

municipalities were only marginally addressed. States may regulate, but are not very eager to do so.

4. Clean Water Act several times amended5. Water today better than 30 years ago? Cautious agreement.

Objectives of Clean Water Act not achieved (“elimination of all pollutant discharges by 1985”; “fishable and swimmable waters”)

Water (2)

EU

1. Frame directive of 1976: Permit requirement; concept of emission limits for discharges of toxic, bio-accumulative and persistent (TBP) substances. For others, reduction programmes. UK imposes as alternative use of ambient water quality standards.

2. Legislation on specific substances fails, after 17 substances were regulated till 1991 (out of 130); programmes not elaborated

3. New approach as of 1991: waste water treatment, canalisation becomes compulsory for all municipalities; nitrates reduction.

4. In 2000, new frame directive: water management plans for river basins; quality to be fixed per basin (“good ecological quality”). Implementation by 2016. Discharge to TBP-substances to be stopped by 2016

5. Water of better quality than 30 years ago? Yes, due to permits (point sources). For the rest, success still uncertain (agriculture).

Water (3)

1. In both areas, drive for improvement of water quality mainly from central level. States (Member States) less active.

2. In both areas, ambient water quality standards have proved to be unenforced (unenforceable); this is not yet admitted in the EU.

3. In both areas, water improvement mainly due to stricter requirements imposed on industrial polluters.

4. Canalisation and waste water treatment powerful instrument to reduce discharges.

5. Big problem in both areas: diffused pollution = mainly agricultural discharges. Not really addressed.

6. Water scarcity left to State (Member State) level

7. How clean is clean? Fishable and swimmable?

Application, enforcement(1)

1. USA: Federal legislation enforced by EPA, with own inspectors, controllers,

EU: Legislation enforced by Member States2. USA: EPA may sue polluters directly; liability law with high amounts

acts as a deterrent; class of lawyers as drivers for enforcement (contingent fee); may also ask States to enforce.

EU: action only against Member State; no effective liability law; environment remained an interest without a group

3. USA: Financial means help changing behaviour EU: No financial help available4. USA: private enforcement far spread EU: no private enforcement5. USA: high reputation of Supreme Court with other courts EU: limited acceptance of Court of Justice by courts (precedents,

Art.234 EC); this is a power battle.

Application, enforcement (2)

6. USA: criminal law plays some role

EU: at EU level, criminal law not existent; at national level, it is not an efficient tool.

7. Application and enforcement of ratified international environmental conventions: USA: little in practice. EU: little in practice. No control by European Commission.

8. USA: No international courts on environmental issues.

EU: Court of Justice has given some 550 environmental judgments (against Member States).

9. On both sides, full application of environmental provisions is a problem.

10. On both sides, enforcement systems not protected from pressure group influence.

Third World

1. UN: countries should give 0,7% of GNP as official development assistance

USA: 0,1% EU: 0,33% (DK 1,06%; SW 0,81%)

2. Rio 1992: On environment, nations have common, but differentiated responsibilities

USA 1992: “The American way of life is not negotiable”

2002: “I oppose the Kyoto Protocol, because it exempts 80% of

the world, including major population centres such as

China and India” (Bush) (USA: 30% GHG emissions,

China and India together: 9%)

EU: accepts common, but differentiated responsibilities

3. USA: Leadership in environmental issues is in the economic and security interest of the USA

EU: There is a moral argument for helping people in poor countries

4. USA: Public opinion doubtful, when it costs; EU: public opinion in favour

Concluding remarks (1)

1. This is not an attempt to demonstrate who is “better”.

2. The presentation only scratched the surface. Much deeper analysis is necessary to reach comparable results

3. Environment has no voice. It does not either vote.

4. The legislative technique can be relatively similar, once the policy objective is clear.

5. Environmental protection law therefore depends of the determination of governments to want to protect the environment

6. A Martin Luther King’s dream: use the money which is spent for the environment to trade in arms, and the money that is spent for arms to protect the environment: this planet’s problems, including poverty, could be solved in twenty years.

7. Is environment protection in the United States a “fashion”? (Krämer 2004)

Concluding remarks (2)

1. “At the turn of the century, (people in USA and Europe) are faced with the paradox that many activities on which (their) economy is based

impoverish the environment on which our well-being ultimately depends.

Much has been done over recent decades to put the human

relationship with the natural environment on a more sustainable footing.

Yet we are still far from achieving that goal, and it is clear that the scale

of efforts is insufficient to meet the challenge”

(Commission for Environmental Cooperation, Montreal 2006)

2. On both sides of the Atlantic, the global responsibility for the environment is not really taken up: the US are unwilling, the EU is incapable