Journal of Environmental Law Advance Access originally published online on February 11, 2008
Journal of Environmental Law 2008 20(1):5-7; doi:10.1093/jel/eqm048
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The Environment and the Ten Commandments
College of Europe, Bruges, Belgium
Applying the principles of an open society to environmental law and policy was the subject of my original contribution twenty years ago. The article had identified as threats to the environment: nuclear waste, the greenhouse effect of anthropogenic emissions, tropical forest depletion, depletion of the ozone layer, desertification and the extinction of species. It had argued that EC legislation was unfit to meet the challenges and called for improvements. It pleaded for a more positive role for environmental lawyers who were called upon to be more preventive, active and innovative and to adopt an attitude of more democratic criticism. Environmental administration was criticised for not being sufficiently open, and better rules for access to environmental information and participation in decision-making were asked for.
Where do we stand twenty years later? A Commission report might help to answer this question:
the European Union is not yet on the path of sustainable environmental development. There has only been limited progress with the fundamental issues of integrating environmental concerns into other policy areas and improving the enforcement of EU legislation. Many environmental pressures are actually increasing: global emissions of greenhouse gases are rising, the loss of biodiversity is accelerating, pollution still has a major effect on public health, the amount of waste produced inside the EU continues to increase and our ecological footprint is steadily growing (COM(2007) 225).Also, in 2007, the Commission stated that transport and energy policies were not sustainable either (COM(2007) 642 and COM(2007) 1). And if one looks at the environmental problems which had been mentioned in 1989, it appears that only with regard to the depletion of the ozone layer are we on a sustainable path. This balance is not very positive. One might wonder whether all of the legislation which has been enacted since 1989, and all of the financial and administrative means which have been expended, at the end of the day have only helped to eliminate the most obvious problems of pollution or environmental impairment.
Europe has adopted legislation on access to environmental information and on participation in environmental decision-making (Aarhus Convention transposed by Directives 2003/4, 2003/35, 2001/42 and Regulation 1367/2006). While the relevant administrations increasingly—though often enough reluctantly—grant access to environmental information which they hold, citizens’ participation in environmental decision-making is still capable of considerable improvement. The environment has no voice to give its opinion on decisions which affect it; the taking of decisions gives power and numerous administrations at local, regional, national or Community level do not like to let citizens and their organisations participate in the decision-taking on plans or programmes, infrastructure or other projects.
In general, EU environmental legislation has become more general in the last two decades, leaving more and more monitoring and implementation discretion to EU Member States. This has led to a situation that where a country or an administration wishes to protect the environment, it can find sufficient tools and means in (EU) environmental legislation to do so. However, where a country or an administration does not have the determination to provide for an appropriate protection of the environment, environmental law is not sufficiently precise and stringent to ensure this protection. And environmental organisations or citizen groups have not been granted effective rights to enforce the protection of the environment against an unwilling or passive administration.
Environmental lawyers—in courts and private business, in the administration, environmental groups or academia—have not, in their great majority, developed to be preventive, active and innovative. They often monitor the status quo, instead of contributing to the creation of law which effectively protects the environment. The result is reflected in the Commission quotation mentioned earlier.
How then will environmental law develop over the next twenty years? I admit that I do not like futurology. Policy was once defined as the long and patient drilling of hard wood—and environmental policy fits well into this definition. I see a clear risk that the protection of the environment will play a role in future society in the same sense as the ten commandments: respected by the great majority of people, never openly opposed, praised in Sunday speeches by European politicians—and yet of rather limited impact on daily life. Of course, it is possible to see environmental law develop into a real tool to ensure the protection of the environment, globally, European-wide, and in the different States; catastrophes or the obvious failure to reach the envisaged results might tell us what is necessary. As Popper stated (in The Open Society and its Enemies, on which the title of the original article was based): ‘(in our social world) many mistakes would be made which could be eliminated only by a long and laborious process of small adjustments; in other words, by that rational method of piecemeal engineering’. The question is, whether the environment has enough time for such a learning process.
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