European Union Environmental Law Research Articles

Reflexive EU environmental law: Exploring divergence in the French and German transposition of the Single‐use Plastics Directive

AbstractReflexive environmental law (REL) techniques create potential for reflexivity by regulated companies. This reflexivity is fundamental to overcoming various regulatory hurdles posed by complex and dynamic sustainability challenges, such as plastics circularity. However, even when European Union (EU) environmental legislation incorporates REL techniques, Member State transposition may either undermine or enhance these techniques' potential for driving regulatee reflexivity. This article examines REL's evolution within complex, transnational legislative frameworks, taking the EU's Single‐use Plastics Directive (SUPD) as a case study. It compares reflexivity techniques in the SUPD to those in transpositions by France and Germany. Our analysis is based on the coding of 11 REL techniques and three overarching reflexive drivers—autonomy, accountability and adjustability—within four SUPD instruments. Identifying divergence in REL between the SUPD and Member State transpositions allows us to highlight three explanations as to why REL evolves in certain ways through the transposition process.

Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

European Regulatory and Insurance Aspects of Carbon Capture and Storage

Carbon capture, use and storage (CCUS) has the potential to significantly reduce carbon emissions, however, because CCUS technology almost exclusively aims for carbon mitigation without co-benefits, this expensive technology has not been widely adopted. In order to make this technology viable, a robust regulatory and legal regime is required both internationally and within the European Union (EU). A comprehensive insurance system is also required to ensure that efficient running of CCUS. With this understanding in mind, this article analyses the regulatory regime governing CCUS both internationally and in the EU and also the law governing insurance of this technology. It argues that whilst European regulation has improved with respect to filling regulatory gaps, a number of gaps are identified which still need to be closed. In addition, the article will argue that special insurance coverage for specialized risks must be in place to diminish any environmental impact and hazard, including cyber-related risks that need to be identified and insured to be properly handled and adequately covered to allow for the successful deployment of CCUS. Carbon capture, use and storage; climate change; climate change mitigation; environmental insurance; cyber insurance; EU environmental law

Europeanization of Environmental Law of the European Union Member States

Topicality. The topicality of the issue presented in the article is due to the insufficiency of research on the Environmental Law Europeanization in domestic legal science. The purpose of the article. The purpose of the article is to study the essence of the concept of “law Europeanization” and the peculiarities of its implementation in the field of Environmental Law of EU member states and candidate states. Research methods. The Europeanization concept arose and developed as a result of changes occurred within the theory of integration itself. The article deals with the influence of the process of deepening of the integration and expansion of the European Union on the obligations of the member states regarding the protection of the environment and climate.It is observed that the construction and functioning of the EU legal order is a decisive factor of integration, which is viewed as a project of building a single market, complemented by the range of policies implementation, in particular in the field of environmental and climate protection. Results. The concept of Environmental Law Europeanization was analyzed, and the way how the legal systems of the EU member states contribute to the development of the European Union Environmental Law, which is supranational by its legal nature, was examined.It is emphasized that the Europeanization of law cannot be addressed as a homogeneous process, nor as a process that leads to the same result in each of the member states.Despite the obvious dominance of international law and globalization as factors determining the national law reform, it can be argued that the peculiarities of legal regulation of relations in the field of environmental and climate protection are caused by the consequences of “soft” or indirect Europeanization. In many cases, the rules of the EU legal order, which are incompatible with national rules, create pressure on national governments, prompting them to adapt national environmental legislation to European environmental legal standards. Attention is drawn to the fact that within the framework of the process of European integration, the process of de-Europeanization can occur to a certain extent and for various reasons. The significance of the results. The conclusions obtained as a result of the research will contribute to the awareness of the phenomenon of Europeanization of the EU member states and candidate states national law, in particular such a component as Environmental Law, its directions and forms, and may be useful in the process of domestic environmental legislation to the European Union environmental legislation adaptation.

Access to Environmental Justice and European Union Institutional Compliance With the Aarhus Convention: A Rather Longer and More Winding Road than Anticipated

The aim of this article is to track through and offer some reflections on the efforts by the European Union (EU) to ensure that EU law adequately implements the access to environmental justice obligations set down in the 1998 Aarhus Convention (AC) with respect to activities carried out by its supranational institutions and other Union bodies. For a number of years the EU has struggled to ensure its legal framework is in conformity with the Convention’s requirements concerning access to justice, not least in the wake of adverse findings expressed by the Convention’s Compliance Committee responding to complaints from members of the public. However, matters appear to have improved significantly in October 2021 with the adoption of EU Regulation 2021/1767 amending the Union’s legislative rules on an internal review mechanism of EU administrative acts or omissions alleged by members of the public to contravene EU environmental law (namely the ‘Aarhus Regulation’ 1367/2006). Whilst this article considers that most of the key issues relating to noncompliance have now been addressed satisfactorily, much of the credit for this ultimately lies with the European Parliament and Council of the EU as primary co-legislators rather than other key Union institutional actors such as the European Commission or the Court of Justice of the EU (CJEU). At the same time, this recent legislative innovation has not enabled the EU to reach its destination of achieving full compliance with the Convention over access to environmental justice, with some important administrative activities affecting the environment still remaining exempt from the Union’s internal review system such as EU decisions on state aid.

Access to the EU Courts in Environmental and Public Health Cases and the Reform of the Aarhus Regulation: Systemic Vision, Pragmatism, and a Happy Ending

Abstract After years of debate, the Aarhus Regulation has finally been reformed. This article focuses on the amendments to the scope of application of the Regulation’s internal review and access to justice provisions, and demonstrates that these are the most important changes introduced by the reform. Not only do these amendments mark an important development towards full compliance by the European Union (EU) with its obligations under the Aarhus Convention; they also fill a vacuum, and solve the main problem which lay at the heart of the EU system of access to justice in environmental public interest cases. First, the article explores the obstacles faced by different stakeholders seeking access to the EU Courts by reference to specific categories of EU environmental law and risk regulation acts. This provides a systemic overview of different problematic aspects associated with different scenarios, unpacking all relevant implications. Secondly, it embraces a pragmatic perspective and draws a clear distinction between challenges to legislative and regulatory acts. Against the backdrop of this examination, the article identifies the main problem of the EU system: the application of the ‘complete system of legal remedies’ rationale to the specific case of regulatory acts. Further, it highlights that there is no ‘interpretative’ way out of the TFEU conundrum. Thirdly, the article analyses the Commission’s disappointing proposal for a reform of the Aarhus Regulation and the final text of the 2021 amendments to the Regulation. The story has a (surprisingly) happy ending. The EU institutions have finally acknowledged the main problem in the system of access to the EU Courts in environmental matters, and recognized the need to solve it in the specific context of the Aarhus Regulation.

E. Greece

This report deals with the past year’s major developments pertaining to Greece’s implementation of international and European Union (EU) environmental law. Undergoing economic turmoil for most of the last decade, Greece is slowly recovering from the financial crisis, paving the way towards a circular, low-carbon economy. A turning point for the country’s sustainable growth was its international commitment to phase out lignite by 2028. On the other hand, the signing of new lease agreements for offshore exploration between the Greek government and private conglomerates may be seen as a threat against its climate change commitments. Last year, the Council of State ‘unlocked’ a major investment in the Metropolitan Pole of Hellinikon-Agios Cosmas in Athens, despite the allegations of environmental organizations and residents that the natural and cultural environment will be severely impacted. In terms of waste management, Greece was found to be lagging behind the rest of the EU...

Environmental Justice and European Union Law

The contribution examines to what extent European Union environmental law has directly or indirectly contributed to environmental injustice in the EU Member States. It examines one by one the different environmental legislative acts which the EU has adopted in order to find out whether minorities have been treated or were allowed to be treated differently from the rest of the population. It concludes that the existing environmental injustice within the EU is not due to the environmental legislation that was adopted by the EU, but rather due to its application in practice. The contribution indicates ways to improve the present situation, but concludes that changes for the better are likely to take time. Keywords: EU environmental legislation, ethnic minorities, environmental discrimination, citizen rights, better application of laws, Roma people. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: L Kramer, ‘Environmental Justice and European Union Law’ (2020) 16 CYELP 1.

Compliance with European Union environmental law: An analysis of digitalization effects on institutional capacities

AbstractThis article presents evidence for the positive effects of digitalization on the institutional capacity of key stakeholders, which is a necessary precondition for narrowing the existing implementation gap in European Union environmental law. Based on document analysis and semistructured interviews with actors involved in the implementation process, four main factors are considered. First, the Commission's institutional capacity benefits from a change of focus of the reporting system from textual information to data and indicators and by the development of new data harvesting methods. Second, subnational actors have improved their institutional capacity through knowledge transfers and strategic planning, facilitated by better information and communication technology and statistical data. Third, inspection networks benefitted from technical advances, such as the access to satellite images, presenting new opportunities for the detection of environmental crimes, and new software programs facilitating risk‐based inspections. Finally, citizens' and nongovernmental organizations' improved access to data and to justice in environmental matters strengthened their monitoring capacities.

Compliance with EU environmental law. The iceberg is melting

ABSTRACTThe European Union (EU) has become the main driver for environmental policy output for its member states whose number has more than tripled over the past four decades. The EU’s deepening and widening has led researchers to expect more non-compliance with EU environmental legislation. In fact, however, the implementation gap has narrowed over the past 25 years. Except for Southern enlargement, taking on new member states has not exacerbated the EU’s compliance problem in the field of environmental policy. Nor has the expansion of the environmental acquis. This is explained by the European Commission’s strategies of managing and enforcing compliance. EU environmental policy has become less demanding on member states since it increasingly tends to amend existing rather than set new legislation. Simultaneously, the Commission has developed new instruments to strengthen member state capacities to implement EU environmental legislation.

Left to interest groups? On the prospects for enforcing environmental law in the European Union

ABSTRACTThere have been important changes in the enforcement of European Union environmental law over the last 25 years. Environmental law has traditionally been reliant on the European Commission, but the Commission has started to withdraw from enforcement. Instead, it is undertaking efforts to ‘outsource’ enforcement to environmental non-governmental organisations (NGOs) by systematically promoting access for such groups to national courts. While the Commission has indicated that it sees centralised and private enforcement as substitutes, the advantages and drawbacks of each mechanism are evaluated and it is concluded that both mechanisms have an important role to play. In particular, the private enforcement of EU environmental law is dependent on national opportunity structures that are unlikely to ever be fully liberalised and harmonised by EU procedural law. Private enforcement is therefore not a panacea for compliance problems, and the growing absence of a central enforcing authority is a cause for concern.

Charges on Land for Environmental Liabilities: A Matter Of ‘Priority’ For Scotland

This article examines the viability and utility of introducing a statutory power in Scotland enabling its environmental regulators to take a first-ranking charge over land. It would facilitate recovery of costs incurred in undertaking the unfulfilled environmental obligations of a recalcitrant or financially distressed operator. Such a charge has been characterised as contrary to Scots land law. The article makes two original contributions, the latter of which is pertinent to other jurisdictions considering implementing such a charge. First, Scots land law is found to be receptive to such a charge provided there is appropriate publicity and its priority as compared to other charges created in favour of third parties at an earlier date is expressly stated in statute. Secondly, with the policy rationales for the 'polluter-pays' principle of European Union environmental law used as a frame through which to understand the multi-faceted functions of corporate environmental liability, such a charge is shown to play an important role in facilitating these. Recommendations are made for its implementation in statute.

E. Greece

This report addresses a number of normative developments from the past year that hold particular significance for the implementation of international and European Union (EU) environmental law in Greece. Significant progress was made in meeting overdue commitments under EU environmental law, particularly in the areas of marine environmental protection and environmental assessment. The period of reference was also marked by the adoption of a comprehensive legal framework for the management of the country’s protected area network. There are, however, some persisting shortcomings, stemming in large part from the socio-economic crisis that has troubled the country for the past decade and the structural issues that underlie it. For instance, almost two years after...

Protecting wild land from wind farms in a post-EU Scotland

Scotland is one of the places in Europe to have experienced significant wind farm development over recent years. Concern about impacts on wild land has resulted in legal challenges based on European Union (EU) law. This article analyses whether wild land can be protected from wind farms and the differences that the United Kingdom departure from the EU will make. It considers the concept of ‘wild land’ compared with ‘wilderness’, analyses the legal basis (if any) for wild land protection and examines potential impacts from wind farms. It highlights the significance of EU environmental law, particularly nature conservation and environmental assessment law, and analyses recent Scottish jurisprudence that has applied this. The role of the European Commission and Court of Justice of the EU (CJEU) is emphasised as a key part of EU environmental law. The article asks whether relevant global and regional environmental agreements can effectively replace the content of the substantive law and context of the Commission and CJEU. Four environmental agreements and two related compliance procedures are briefly evaluated. The conclusion is that while EU law does not directly provide protection for wild land, it is considerably stronger than the international environmental agreements that may replace it.

The challenge of implementing European Union environmental law in the new member states: The Urban Waste Water Treatment Directive in the Czech Republic and Poland

This article examines the problematic implementation of the Urban Waste Water Treatment Directive (UWWTD) in the Czech Republic and Poland from the perspective of the scholarly debate on European Union (EU) and post-accession compliance, focusing on the competing ‘goodness of fit’ and administrative-legal approaches to explaining variations in compliance with EU rules. It finds that administrative shortcomings of various kinds are a major reason for implementation problems in both countries, and that problems have also stemmed from the multilevel nature of the implementation process, which places a heavy administrative and financial burden on municipalities, and requires cooperation between national and local government authorities. In the Czech case, however, the ‘misfit’ between EU standards and contracting and regulatory practices in the Czech water sector has also undermined UWWTD compliance, through its negative impact on the country's ability to access EU funding.

EU Environmental Law, Governance and Decision-Making. By Maria Lee

EU Environmental Law, Governance and Decision-Making should be on the reading list of any researcher, teacher and student of European Union (EU) environmental law. The 2014 edition updates the previous book EU Environmental Law: Challenges, Change and Decision-Making (2005, Hart Publishing) and introduces new material. ‘EU Environmental Law, Governance and Decision-Making’ provides in 10 chapters a concise yet comprehensive and critical introduction to key cross-cutting themes and substantive areas of EU environmental law. The book’s discussion spans an analysis of EU primary and secondary legislation, as well as in-depth analysis of key cases decided by the European Courts. More specifically the book provides an account of the formal legal framework for EU environmental standards, in particular the primary Treaty law relevant to the protection of the environment, with the first chapter on this topic also including a discussion of the significance of the EU Charter on Fundamental Rights to EU environmental law. The subsequent chapters develop further key themes that provide insights into EU environmental law as a particular type of environmental decision-making. Among these are the often contested role of experts, politics and institutions in environmental decision-making, the pursuit of sustainable development through EU environmental law, as well as a scene-setting chapter on ‘instruments and governance’. The latter introduces the reader to topical developments in environmental regulation, such as the use of economic incentive instruments, voluntary regulation as well as information as a tool of regulation. There are two further chapters that discuss cross-cutting themes, one on participation in environmental decision-making in the Member States, which focuses on the application of environmental assessment, including Strategic Environmental Assessment. A further chapter discusses participation in environmental decision-making at the EU level, which extends also to a discussion of access to information at the EU level as a precursor for the meaningful exercise of rights to participation.

Commission v. Italy: Managing Waste Management in Italy

In the recently decided case C‐196/13 (Commission v. Italy), the Court of Justice of the European Union has imposed upon Italy record financial sanctions for its breach of European Union environmental law. The judgment, reached through the enforcement proceedings under Article 260.2 of the Treaty on the Functioning of the European Union, followed a 2007 infringement ruling establishing that Italy had generally and persistently failed to fulfill its waste management obligations. The present case raises several interesting questions, such as how much progress does a Member State need to make to remedy a general and persistent failure of its obligations, and how to determine the appropriate amount of financial sanctions for such a breach. This case note analyzes the factual and legal background to the case and argues that, given all the circumstances, the Court's judgment can hardly be seen to be surprising.

Collective Redress in Environmental Matters in the EU: A Role Model or a ‘Problem Child’?

The issue of collective redress in the European Union (EU) has been gaining increasing attention thanks to recent initiatives on the part of the European Institutions. European action in the field of collective litigation in competition and consumer matters is, however, still at an early stage of development. In environmental matters, however, while not primarily EU-driven, there is already a well-established framework of collective litigation established by the Aarhus Convention. The subject matter of this article is whether the mechanisms of collective redress envisaged by this international Convention are working within the EU legal system as they should. After providing some background on the special features of environmental law (which affect their enforcement modalities) and an overview of the mechanisms of collective litigation in the Member States, this article will contextualize the issue of collective redress in environmental matters in the framework of the Aarhus Convention, and will explore the current obstacles faced in the enforcement of EU environmental law before national courts. This analysis provides some ground to draw a conclusion as to whether the current system of collective redress in environmental matters can be regarded as a model for the current debate on this topic for competition and consumer issues.

Regina (Buckinghamshire County Council and others) v. Secretary of State for Transport

The United Kingdom Supreme Court has considered the requirements of environmental impact assessment and strategic environmental assessment in the context of a high speed rail scheme to be introduced by parliamentary procedure. The case is important for its detailed analysis of how parliamentary processes relate to the requirements of European Union environmental law. The Supreme Court has also made revealing comments about its view of the proper relationship between the domestic and European legal order.

Agriculture and EU Environmental Law. By BRIAN JACK

For practitioners specialising in agricultural law, a working knowledge of environmental law is essential. With a growing number of regulations impacting on agricultural businesses, the agricultural practitioner is just as likely to be asked to advise on environmental protection as landlord and tenant matters. Even though the common agricultural policy has been a major influence on European agriculture for more than 40 years, few textbook sources provide a detailed analysis of the effect of European Union (EU) policy on the rural environment. Accordingly, the first edition of this work aims to provide an overview of the regulations that affect agriculture. It states the law as at May 2009, although the author has been able to incorporate some further developments. In the last 20 years, environmental issues have climbed the political agenda and the common agricultural policy, a hallmark of EU policy, has undergone significant reform. There is now a recognition that greater support must be given to farming methods which protect and enhance the environment. The changes have shaped the way in which land is farmed. This work provides a discussion of the changes that have been effected, alongside a review of the current EU environmental legislation affecting agriculture. It does not provide extracts, or deal with the detail of each regulation; neither does it, for example, look at the specific requirements of cross compliance or the environmental schemes. Indeed, that is not its aim, and to have done so would have resulted in a considerably longer volume. Rather, the book looks at the policy background, and provides a starting point for those who need to gain an understanding of the conflicting interests that have shaped this area of law and policy.