Document Type

Article

Publication Title

University of Chicago Legal Forum

Abstract

Because of these historical and institutional differences, the evolutionary path of environmental policy is far more indeterminate in the Community than in the United States. In Europe, economic and political integration is ongoing but incomplete, not only shaping but also shaped by the development of environmental policy. Nonetheless, there are important functional similarities in the types of environmental problems presented in a federal system such as the United States and in supranational systems such as the Community. Most important are the different types of spillovers-pollution, product, competitive, and preservation-that occur among Member States. The welfare losses caused by these spillovers often make cooperative measures dealing with these spillovers mutually advantageous. Moreover, there is a common array of institutional tools-such as regulation, liability rules, subsidies, and pollution charges-available to deal with different types of spillovers. There is also a similar array of potential legal and administrative means for implementing and enforcing environmental protection measures. These common elements provide a foundation for comparative analysis. Community environmental legislation will not ensure strong environmental protection or promote political integration unless it is effectively enforced. But Community legislation must simultaneously provide the flexibility needed to accommodate different national and regional situations and concerns. Today, such flexibility is largely secured by differences in the implementation and enforcement of Community environmental legislation in the Member States. States with a strong commitment to given Community measures tend to implement them effectively. Compliance in other states is more of a paper exercise. Obviously such "implementation gaps" are a poor way to achieve regulatory flexibility. Reliance on ever-more-detailed central regulations, directives, and decisions to close these implementation gaps may give an appearance of progress but ultimately prove self-defeating. This strategy of techno-bureaucratic central planning threatens to exacerbate the Community's democracy deficit and undermine the perceived legitimacy of Community measures in the Member States. The United States experience suggests two antidotes. The first antidote is to encourage an expanded role for environmental and citizen groups at the Member State level by affording them new enforcement and other remedies through Community law. Second, the EC should make greater use of economic incentives to achieve environmental objectives.

First Page

41

Volume

1992

Publication Date

1992

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