When soft regulation is not enough: The integrated pollution prevention and control directive of the European Union

Abstract

Recent debates regarding the effectiveness of regulatory policymaking in the European Union (EU) focus on the merits of soft, non-binding forms of regulation between public and private actors. The emergence of less coercive forms of regulation is analyzed as a response to powerful functional pressures emanating from the complexity of regulatory issues, as well as the need to secure flexibility and adaptability of regulation to distinctive territorial economic, environmental, administrative, and social conditions. In this article we empirically assess the above normative claims regarding the effectiveness of soft regulation vis-a-vis uniformly binding legislation. We draw on an exploratory investigation of the application of the Integrated Pollution Prevention and Control Directive of the EU in four countries. Our study reveals that effectiveness in the application of soft policy instruments is largely contingent upon strong cognitive, material, and political capacities of both state regulators and industrial actors involved in regulatory policymaking. In the absence of those conditions, the application of soft, legally non-binding regulation may lead to adverse effects, such as non-compliance and the “hollowing out” of the systems of environmental permits to industry. In the medium term, such developments can undermine the normative authority of the EU.