The impact-based regulatory strategy in environmental law: Hallmark of effectiveness or pitfall for legitimacy?
By Niko Soininen, Professor of Environmental Law and Water Law, Seita Romppanen, Docent, Senior Lecturer on International Environmental Law and Senior Research Scientist at Finnish Environment Institute (SYKE), Mika Nieminen, Principal Scientist at Natural Resources Institute Finland (LUKE) and Sampo Soimakallio, Head of Unit at Finnish Environment Institute (SYKE)
Environmental law was created to protect the environment in various domains like air, water, and soil. Despite evolving terminology like “planetary boundaries” its fundamental purpose remains the same. As environmental challenges have become more intricate, however, biophysical sciences have taken on an ever-larger role in shaping legislative solutions to enhance the effectiveness of environmental laws. A good example is EU environmental law that is shifting towards an impact-based regulatory strategy that relies increasingly on biophysical sciences. The approach which we call – following Carol Rose’s distinction – an impact-based regulatory strategy influences not only regulatory design, however, but also the interpretation and implementation of the law increasing the role of science in legal processes. In a recent article published in Journal of Environmental Law, we explore the impact-based regulatory strategy by examining the EU Water Framework Directive (2000/60/EC) and the Regulation on Land Use, Land-Use Change and Forestry (LULUCF, 2018/841/EU), and provide a critical analysis of the legal legitimacy challenges posed by this strategy using Lon L. Fuller’s framework on legal legitimacy (what ‘good’ and legitimate law should look like) as an analytical framework.
Impact-based & behaviour-based law in the EU
Carol Rose distinguishes between two main strategies for creating environmental laws. The first strategy is behaviour-based, which focuses on regulating the activities of states, companies, and individuals. This involves permitting, banning, or limiting certain behaviours or technologies that have environmental impacts. Scientific knowledge plays a significant role in this strategy during the drafting phase of legislation in setting targets and coining effective measures. However, science has a lesser role in interpreting and implementing the laws. The second strategy is impact-based, where the law aims to regulate environmental quality in different mediums such as air, water, or soil. In this strategy, legal obligations of states, companies, and individuals depend on scientific knowledge about the state of the environment, human impacts on that state, and scientifically established methods for mitigating those impacts. Scientific knowledge not only influences legislative drafting but also plays a key role in legal interpretation and implementation.
Getting to grips with the legal legitimacy questions of law
Legitimacy is a flexible concept that invites various understandings, uses and contexts. Here, our interest lies primarily in whether the legal obligations arising from EU environmental law – adopting an impact-based regulatory strategy – can be considered legitimate from the law’s internal perspective. We apply Lon L. Fuller’s eight famous criteria for the rule of law to guide our analysis. Fuller’s main argument can be summarised by noting that law as a policy instrument fails to provide legally legitimate rules and standards for human behaviour unless there are rules, that are public, are not applied retroactively, are understandable, are not in contradiction with each other, do not require the impossible, do not change constantly and are applied as they are announced. This, as we show in the article, is a tall order for EU environmental law based on the impact-based regulatory strategy.
The legal legitimacy of WFD and the LULUCF
To understand the legal obligations of the WFD and LULUCF Regulation, scientific knowledge is paramount. This knowledge does not only illuminate the factual context in which these two pieces of regulation are applied in, but scientific knowledge is needed to unpack what the legal obligations embedded in the law are. For this reason, Fuller’s legitimacy criteria traditionally attributed only to law are extended to apply to science as well. And as science constantly evolves and often contains considerable uncertainty, the WFD and LULUCF Regulation do not, and one could venture, cannot comply with the eight criteria. This demonstrates that there are significant legitimacy shortcomings at the heart of EU environmental law’s regulatory design.
For example, the fourth legitimacy criterion requires that rules need to be understandable. LULUCF Regulation’s rules on the so-called forest reference levels that are used to calculate emissions and removals from the managed forest land are impossible to interpret without scientific knowledge spanning modelling methodologies, accounting inflows and outflows of carbon in the land use sector, or the use of documented historical data versus assumptions in accounting. Consequently, they are only understandable to experts well-versed in the modelling and accounting methods.
Taking an example of the Water Framework Directive, which sets EU Member States obligations on reaching a Good Ecological and Chemical Status of all surface waters, coastal waters, transitional waters, and groundwaters, Fuller’s sixth criterion (i.e., rules cannot require the impossible) presents challenges. It is well established in the research covering the implementation of the WFD that the ecological characteristics of different water bodies have been under significant human pressure for decades, if not centuries, meaning that there are legacy loads in waters (e.g., nutrients emitted into waters in the past and causing internal loading). Such legacy loads and their internal pressure on the ecological status of waters are typically among the most significant pressures in any given water body, the coastal water bodies of the Baltic Sea being a good illustration. Given that climate change will likely increase water temperature and nutrient runoff due to increased precipitation, it is unlikely that the good ecological status required WFD would be reached in all EU water bodies by 2027 – even if all the current anthropogenic nutrient and other pressures on waters stopped today. Consequently, the WFD may require – by establishing such a strict deadline and high level of ecological ambition – the impossible from many Member States, regional authorities, and industrial actors.
Considering the seventh criterion (i.e., rules cannot change constantly), the WFD Article 4 requires science to elaborate on what ‘the good status requirement and the no-deterioration rule’ require in specific permitting and other instances. What is curious, however, is that science, by nature, is evolutionary and defeasible. The knowledge about the status of waters, their ecological trends, and the impact of different human activities on the status is changing, not least due to the changing climate. As the implementation – and interpretation – of WFD Article 4 hinges on scientific knowledge, the obligations for forest management and drainage will face changes when we know more about the impact of those activities on the ecological status of waters. In short, as science is constantly changing, so will the specific legal obligations stemming from WFD Article 4, as they depend on science for elucidation. The LULUCF Regulation in turn contains a strong review clause, which gives the Commission the competence to uphold the legislation’s requirements by reviewing its overall performance. The LULUCF Regulation is, in fact, not intended to be a static legal instrument, but more of a temporary legal framework that is integrated with the global climate regime and consequently open to review and revision. In other words, scientific developments can directly influence the normative content of the legislation; with the prospect of change thus inbuilt, the Regulation fails to comply with the seventh criterion.
Are there ways forward or are we stuck with the impact-based regulatory strategy and its poor legitimacy performance?
What would be a better alternative to the current impact-based strategy? If impact-based regulation is essential for effective environmental legal instruments, how can we ensure their legitimacy? And who should act after the problem has been recognised – the EU legislature, scientific institutions, or some other actor or institution?
The legitimacy challenges we show call for broader recognition of how science and the related knowledge production operates, and what kind of science it invites. First, this means that the criteria for legitimate science are and will be somewhat different to those for ‘legitimate’ law. Taking just one example from our analysis, legitimate science always changes with new knowledge, but legal requirements on Member States, individuals and companies cannot change all the time if law is to be legitimate. However, this statement invites the broader question of whether a more dynamic approach, capable of evolving faster to respond to complex environmental challenges environmental law faces today, would be necessary. Second, the impact-based regulatory strategy would merit a broader inquiry into whether and how social goals and obligations and social scientific insight related to them could be more integrated in EU environmental law alongside with the ecological goals and obligations. Participatory processes and member state discretion concerning exemptions are important in securing such social aspirations but if the social considerations overall are left at the fringe of EU regulatory instruments and their regulatory strategy, these instruments will continue to have legitimacy challenges. Therefore, the interface between participatory processes and knowledge production would merit more research.
Photo by Niko Soininen