By Roland Gawlitta

On September 21, 2014, hundreds of thousands[1] from cities around the world gathered for the People’s Climate March to take an active stance against human-made climate change. The protest which took place two days prior to the UN Climate Summit in New York intended to remind heads of states and supranational institutions of the surging public interest in environmental responsibility and sustainable development; ‘change the politics, not the climate’ is one of the recurring mottos of this march. Solidarity spanned most major European cities, like Berlin, Paris, or Amsterdam. In London, approximately 40,000 people joined the demonstrations (NBC News 2014). The position of the European Union also has changed considerably over the past decades, mostly as a result of this growing consciousness and public opinion. This has not always been the case. In the beginning, EU environmental policy was basically non-existent, largely a by-product of economization (Benson and Jordan 2010, p.370), always bound to bend to economic pressures; Huelshoff and Pfeiffer talk about the “market-first perspective on environment” (1992, p.147). Today, EU environmental policy includes complex areas such as sustainable development, emission trading, and ecological modernization (Benson and Jordan 2010, p.359). This begs the question, what has the European Union done so far concerning the environment and how? What are the determining instruments of how environmental policy is made? In this essay, I will outline the evolution of environmental efforts by the European Union. The purpose is to make out the development of its environmental stance to assess different mechanisms of decision-making by nominal success and actual effect. It will show that EU environmental policymaking is heavily reliant on neo-functionalist methods, spillover and the incremental increase in competences, while at the same time emphasizing the role of nation states in terms of implementation. This leads to either political interplay between states, multi-speed integration or non-compliance; some scholars suggest that the EU rather behaves like a federation in this respect. In the last part, I will explore this argument by comparing Spain and Germany in the 1990s to display the means of the European Union to affect national environmental policymaking. Environmental policymaking is a positive example of neo-functionalist spillover in terms of legislation, while implementation gaps reinforce the domestic government’s role in integration.

One of the most striking features of EU environmental policy is the fact that it has ascended from being a non-issue in the formative years of the European Union to one of the most expansive policy fields, with subdivisions and delegation in different competence areas, to even extending its mandate, and permeating into previously unrelated fields such as agriculture, transport, and energy (Staab 2013, p.174). Janez Potocnik, current European Commissioner for Environment, notes the EU’s position has become a role model for international and supranational organizations “trying to out-green each other” (in: Jordan and Adelle 2012, p.xviii).

To understand environmental policymaking in the EU, its ulterior motives, it is necessary to have a look at its origins. When the EU was founded in the late 1950s, no designs for a comprehensive model for environmental policy were envisaged. The European Union understood itself as a mostly economic network to promote trade and overcome political obstacles after the war (Benson and Jordan 2010, p.359). It was only after the EEC summit in Paris 1972 that heads of states asked to address the issue of environmental protection. Reasons were not solely based on a growing understanding of hazards to human health, but more likely a lingering fear that different environmental standards might create trade barriers, distort the market and restrict competitiveness (Jensen 2010, p.76). Consequently, the European Commission authored the first Environmental Action Programme (EAP) in 1973. After the second EAP in 1977, the Directorate-General for Environment was created in 1981 (info brochure 17). These initial steps marked the beginning of the rapid progression of European environmental policymaking. Instead of stipulating a single, comprehensive European position through few, extensive pieces of legislation, studies show the EU’s attempt to incrementally broaden its scope and increase its influence in many small steps. However, instead of being an end by itself, environmental policy was subordinate to economic pressures; only later in the late 80s and early 90s was an emphasis on the importance of environmental protection, including risk prevention, apparent. Recent EAPs stressed sustainable development (Benson and Jordan 2010, p.361), while the current EAP from 2012 sees the need of global cooperation and reconcilability of economic growth and environmental protection (eur-lex.europa.eu 2015). The aforementioned figure from the Institute for European Environmental Policy suggests both incrementalist and neo-functionalist mechanisms of policymaking. More than 500 directives, decisions, and regulations have been approved since 1992 (IEEP.eu 2015). However, the underlying processes and spillovers remain untransparent and unpredictable as the EU touches new policy areas. (Benson and Jordan 2010, p.361). According to Héritier, EU policymaking resembles a “patch work” (in: Benson and Jordan 2010, p.363). But what is neo-functionalist spillover and how does it work?

Neo-functional spillover is the assumption that to accomplish one goal, cooperation extends to indirectly related fields, further boosting the authority of the overseeing institution (Jensen 2010, p.75); states are voluntarily giving up their sovereignty, and spillover is the encroaching expansion of these power transfers through precedents and externalities (Huelshoff and Pfeifer 137).  One recent example of how externalities shape policy and create spillover is Germany’s reaction to the nuclear reactor incident in Fukushima, Japan. While the plans to switch from nuclear (and fossil) to renewable energy sources is not entirely new, the Atomausstieg movement to push for changes gained sizable momentum. Societal changes and technological insights can enable the enlargement of EU competences. Given the expandable nature of environmental issues, it is not surprising to see this chain reaction, this integration “by stealth” in environmental policymaking (Weale in: Benson and Jordan 2010, p.364). In theory, domestic governments would be increasingly intertwined with the EU, encouraging them to upload more of their sovereignty to the Union (Jensen 2010, p.83). The mission statement of the DG Environment explicitly reads that it is aiming to “integrate environmental concerns into other policy areas” and to “work closely with business and consumers in a more market-driven approach to identify solutions” (Dawn and Maher 2002, p.8). Public opinion towards the environment has made it necessary to include businesses and interest groups in the decision-making process to ensure legitimacy. Lobby groups have become actors in environmental policymaking trying to “push for integration” for their interests (Jensen 2010, p.73). In 1992, for instance, corporate interest groups succeeded in lobbying national governments to prevent a carbon emission tax (Benson and Russel 2014, p.7). Nonetheless, the final decision and implementation is still made by nation states as the EU lacks “uniform environmental governance” (Weale in: Benson and Jordan 2010, p.367).

Some of the most important early initiators were national environmental ministers within the Council of Ministers who saw opportunities to circumvent rigid national governments to achieve environmental policies on a European level as seen in Germany, Netherlands, or Denmark (Keleman 2000, p.150, Benson and Jordan 2010, p.364). However, higher standards did not always compel ‘laggard’ states like the UK to follow suit. The “lowest common denominator” policies granted ‘leader’ states to enact their higher standards. The EU would only step in and enforce integration if different national standards prevented the free movement of trading goods (Jensen 2010, p.76). Policing remained imperfect (Huelshoff and Pfeiffer 1992, p.142). Different preferences, methods, and capabilities inevitably lead to uneven, multi-speed integration. The fear of falling behind was incentive enough to see a “push-pull effect” of ‘leader’ and ‘laggard’ states (Benson and Jordan 2010, p.364). Ultimately, implementation is only an option if it is instrumental to national interest; the “nation state remains  the core element in an understanding of international relations” (Jensen 2010, pp.77,80). This integration deficit might therefore be a result of both a collective action problem and of “policy dilution”, an avoidance to implement regulation with full effect to prevent economic disadvantages (Liberatore in: Benson and Jordan 2010, p.368). The EU realized that

many environmental challenges are global and can only be fully addressed through a comprehensive global approach, while other environmental challenges have a strong regional dimension. This requires cooperation with partner countries, including neighbouring countries and overseas countries and territories. (eur-lex.europa.eu 2015)

Agreement on a global level is easier reached than implementation on a local level is achieved (Huelshoff and Pfeiffer 1992, p.157). The internationalization of discourse, for instance through the negotiations of the Kyoto protocol, is a good example of European model behavior. The Union, as a single actor in a larger international network seized the opportunity to position itself as a role model (Benson and Jordan 2010, pp.367-368). The minimal enforcement mechanisms of the European Commission, however, led to some cases, in which regulations were being waved through without any intentions to implement them (Benson and Jordan 2010, pp.369-370). Looking at these developments, it might be useful to explore the actorness of the EU from a federalist perspective to analyze these political games.

The EU’s tendency to rely mostly on regulation, suggests that the EU behaves like a federation of its member states. There is no doubt that the EU does not meet all requirements of a federal government, thus making it not useful to examine it solely through this lens. However, Keleman argues that its conduct in environmental policy suggests that the EU is more akin to regulatory federalism and that the low implementation rate is still within the scope of other federations, such as the US or Canada. In essence, this perspective allows us to explain EU environmental policymaking, while maintaining member states’ discretion to implement laws (2000, pp.133-5, p.152).

One element of this approach is the realist understanding that member states are solely pursuing national interests, while federal governments focus on cost-effective authority maximization at the cost of other members. Voluntary power transfer happens only if a popular policy cannot be achieved alone; failure by the federal government absolves the respective states of any blame (Keleman 2000, pp.137-138). Division of powers leads to a constant bargaining of competences between levels. Who is in charge of policy design, implementation, and funding? Who is blamed for failure? What are the consequences for poor implementation? The tendency of federal governments to “under-fund” regulation and leaving integration to members to save bureaucratic expenses, leads to “uneven implementation”, or multi-speed integration (Keleman 2000, p.141). Mistrust between states, however, necessitates intervention by the EU in form of functional spillover: laggard states accuse their partners of market protectionism, while leader states fear disadvantages for their allies’ non-compliance (Keleman 2000, p.150). Interestingly, interest groups have taken a bigger role in implementation through lawsuits as the Commission is “encouraging an adversarial, litigious approach to regulation” (Keleman 2000, p.136). The Commission wants “private parties to act as watchdogs” (Keleman 2000, p.160). They can enforce implementation, while also saving money on bureaucracy. “When central governments cannot deploy bureaucrats, they can respond to political demands by allowing citizens to deploy lawyers and lawsuits” (Kagan in: Keleman 2000, p. 161).

To illustrate previous findings of the persisting importance of nation states and to demonstrate the intrinsic features of European Union environmental policymaking, I will now turn to a case study of environmental efforts in Spain and Germany and EU involvement until the mid 1990s. Susana Aguilar Fernández argues that the Commission’s heavy use of regulations can be seen as a reaction to member states rather than its own initiative. The ultimate power remains in national governments. However, she does acknowledge the ability of the EU to influence states indirectly, through agenda setting and standardizing limits and assessment methods of pollution (Fernández 1994, pp.40-41). She concedes though that this might be correlational, since national governments had their own incentives to implement these measures. The internationalization of environmental policies might therefore not exclusively be caused by members uploading parts of their sovereignty to the EU by vertical integration (neo-functional spillover), but also by the horizontal influence exerted by progressive members. The driving factors of environmental policymaking are therefore “deeply rooted in history and tradition […] at the domestic level.” (Fernández 1994, pp.41-42).

The main differences between Germany and Spain in institutional design are the levels of cooperation between state and industry. While Spain’s state protectionism does not allow a lot of leeway for special interest to influence policymaking (except in the case of former politicians), Germany enables industrial players to take part in policy design (Fernández 1994, pp.43-44). These differences are owed mainly to different historical developments. As for Germany, the aversion of a too powerful government relates to experiences of German totalitarianism, thus enabling a state system that is open to outside input and exchanging ideas, an active engagement of interest groups and public discourse (Fernández 1994, p.44). These differences make Spain and Germany good examples to analyze EU influence in environmental policymaking as they form two sides of a spectrum “where the distinction between government and social groups is totally blurred to those where the public and social realms are clearly separated” (Fernández 1994, p.45).

As I have previously mentioned, lower levels of state-public cooperation correlates with a “higher implementation deficit” and vice versa (Fernández 1994, p.46). The author explains that EU directives have little to no effect on actual implementation at a domestic level. The size of the Directorate General for Environment does not allow a comprehensive oversight on member states’ commitments (Fernández 1994, p.47). Spillover is mostly only a theoretical reality, as the international consensus about the European Union’s competences and committing to implement regulations are two separate things. Given the lack of effective enforcement mechanisms, the EU’s power in environmental policy implementation lies more in providing an atmosphere where domestic structures can change internally and organically. In the case of Spain, the EU succeeded to some extent in opening up the domestic policymaking process to “interest group participation” (Fernández 1994, pp.47-48).

In Germany, because of strong public awareness, domestic pressures have generally been higher than international influences by the EU. However, given the unsatisfying results of environmental policies, concerns about the close cooperation of corporate representatives in environmental policymaking started to arise (Fernández 1994, p.48). The success of the Green Party coincided with a questioning of the industry’s position to assess environmental issues independently, scrutinizing their ability to self-regulate (Fernández 1994, p.49). The issue with NGOs and environmental activist groups like the European Environment Bureau is that despite their exponential growth over the past decades, they still lack the funds to stand against industrial lobby groups (Benson and Jordan 2010, p.365). So to hinder an “agency capture” by special interest groups, the EU steps in as an “animator and not an implementor” to indirectly encourage participation in the political process (Fernández 1994, pp.46, 49-50); it tries to affect national implementation indirectly as mediator through cultivated spillover (Jensen 2010, p.76). The author affirms her argument about the EU’s heavy use of regulation by saying that “it is one thing if a country decides to change its substantive policy due to a discussion at the EU level. It is another if it changes its traditional consultation procedures with private interests” (Fernández 1994, p.52).

To conclude the discussion on EU environmental policymaking, the findings have shown that this particular policy area has run through a rather unique development. Given its negligible size in the beginning, it is remarkable to see how it has evolved into one of the most pervasive policy field within the European Union; it has even extended its mandate to already established policy areas like agriculture and energy. The legislation process itself has always appeared as somewhat chaotic and opportunistic; reason for this is the ever expanding scope of environmental protection. Today, as the biggest disputes about competence and discretion have been settled, policymaking has also calmed down, while still being far from static (Jordan and Adelle 2012: p.xix). When looking at the numbers of passed environmental legislation, it has definitely become a standard for any international institution. The number of directives, however, does not reflect to what extent national governments implemented them; to this point, actual integration is still far from being perfect as the EU lacks effective enforcing mechanisms. Theories of neo-functionalist spillover can only account for some of the success of Europe’s environmental efforts, given the persistent importance of national actors and governments. Still, considering the EU’s unique actorness, its hybrid nature, it is hard to make assumptions based on net outcomes. Looking at the EU from a federal perspective, these shortcomings in terms of implementation deficit can be seen as within the norm, rather than a failure. The strength of this approach is that it gives non-state actors agency to influence integration through civil lawsuits based on the rights given by European Community law. The examples of Germany and Spain have demonstrated the EU’s ability to indirectly affect national institutional design by opening up the policymaking process to private actors in the case of Spain’s rigid, protectionist government; in Germany serving as an umpire, a mediator between the government, the industry, and environmental groups. Despite being the decisive players, not all states possess the same means and environmental interest. In the end, this leads to the conclusion that in the current state of power fragmentation, even if the EU is taking on a leadership role as environmental actor in the international system, the outcome is still reliant on the national governments and their voluntary compliance to binding, but effectively optional directives. “Regulation remains the EU’s instrument of choice” (Benson and Jordan 2010, p.370), but if it wants to “strive towards an absolute decoupling of economic growth and environmental degradation” (eur.lex.europa.eu 2015), then it has to use its authority to impose economic consequences for violators, even if it is at the cost of an extensive bureaucratic apparatus.

Roland Gawlitta is a postgraduate student of Contemporary European Studies at the University of Bath, the University of Washington Seattle, and the Humboldt Universität Berlin. Before dedicating his studies to European culture and politics, he completed his bachelor’s degree in American Studies and Political Science at Freie Universität Berlin and Boston University. His current research interests deal with theoretical implications and consequences of the NSA scandal for the compatibility of security and intelligence communities, as well as the metric of the strained US-German relationship.

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[1] the number of attendees is only an estimate given by the official website of the People’s Climate March (http://peoplesclimate.org/wrap-up/)