UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

The management of diversity : flexible integration in enviromental law through enhanced cooperation in… Abt, Marianne Freiermuth 2004

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-ubc_2004-0710.pdf [ 9.14MB ]
Metadata
JSON: 831-1.0091757.json
JSON-LD: 831-1.0091757-ld.json
RDF/XML (Pretty): 831-1.0091757-rdf.xml
RDF/JSON: 831-1.0091757-rdf.json
Turtle: 831-1.0091757-turtle.txt
N-Triples: 831-1.0091757-rdf-ntriples.txt
Original Record: 831-1.0091757-source.json
Full Text
831-1.0091757-fulltext.txt
Citation
831-1.0091757.ris

Full Text

THE MANAGEMENT OF DIVERSITY: FLEXIBLE INTEGRATION IN ENVIRONMENTAL L A W THROUGH ENHANCED COOPERATION IN THE E U AND HARMONIZATION IN CANADA b y MARIANNE FREIERMTJTH ABT L i e . i u r . ' u t r i u s q u e i u r i s , T h e U n i v e r s i t y o f F r i b o u r g , 1 9 9 9 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA A u g u s t 2 0 0 4 © M a r i a n n e F r e i e r m u t h A b t , 2 0 0 4 Abstract This thesis compares two mechanisms of flexible integration in environmental policy in two different legal systems, Canada and the European Union. It looks at the surrounding circumstances that led to the creation of these mechanisms, examines their design and functioning, attempts to assess their achievements and potential and situates them in a broader international context of current trends in federal systems. M y point is that federal systems have had to turn to some form of flexible integration in order to prevent lowest common denominator solutions. They have chosen different solutions, but the examples show that effective environmental policy through flexible integration could be possible. Chapter One sets out the methods that are used in this comparative study. Comparative law is a logical choice to deal with the topic. I argue that the E U and Canada have a baseline of similarity and can be compared as two federal systems. Furthermore, I use federalism as a lens through which to look at enhanced cooperation in the E U and harmonization in Canada. Chapter Two explains the Canada-wide Accord on Environmental Harmonization and investigates its achievements to date under the Canada-wide Sub-Agreement on Environmental Standards. I question the design of the mechanism and its solely political character. Some results have been achieved under the Standards Sub-Agreement and considering the background of the Canada-wide Accord, one should not be too dismissive about these achievements. I argue, however, that the mechanism's potential could be considerably increased. Chapter Three describes the E U provisions on enhanced cooperation and their potential application in environmental law. I show that although the legal prerequisites are numerous and seem very strict, the mechanism has great potential i f the conditions for application are not interpreted narrowly. My example is the new chemicals policy (REACH), but I emphasize that many other areas in environmental policy could be addressed effectively through enhanced cooperation. Chapter Four compares the two mechanisms and explores their differences and similarities. I explain the major problem areas and try to offer some suggestions for improvement based on the comparison. The Conclusion sums up and evaluates the findings of each chapter. i i Table of Contents Abstract i i Table of Contents i i i Acknowledgements vii Chapter One: Flexible Integration in Environmental Law - Introduction and Methodology 1 I. Introductory Remarks 1 II. Canada and the E U - Are they Comparable? 4 III. Enhanced Cooperation in the European Union (Title VII TEU, Art. 43-45; Art 11, 11a TEC) 7 IV. The Canada-Wide Accord on Environmental Harmonization 11 V. Theoretical Framework of Analysis / Conceptual Approach 13 A . Comparative Law 13 B. Federalism as Framework 15 1. Executive Federalism and its Variations: Competitive, Cooperative and Collaborative federalism 15 2. Collaborative federalism as a Trend in Federal Systems 18 a) Canada 18 b) E U 21 VI. Outline of the Following Chapters 26 Chapter Two: Harmonization in Canadian Environmental Law 28 I. The Canada-Wide Accord on Environmental Harmonization 28 A . Background 28 B. The Canada-Wide Accord on Environmental Harmonization (CWAEH) and the Sub-Agreement on Canada-Wide Standards (CWSs) 31 1. The Canada-Wide Accord on Environmental Harmonization 31 a) Aims and Content 31 b) Critique / Discussion in the Literature 33 2. The Canada-Wide Environmental Standards Sub-Agreement 38 a) How are Common Standards Developed? 38 b) What Kind of Standards Can Be Developed? 39 c) How are the CWSs Implemented? 40 d) What Accountability Mechanisms are Built in? 41 e) What Degree of Public Participation Does the Accord Provide? 43 f) Is the Mechanism Effective? 44 C. Risks and Opportunities ; 45 1. Risks 46 2. Opportunities 48 D. Critical Assessment 49 II. Actual Results Under the Sub-Agreement on Canada-Wide Environmental Standards 50 A. Benzene 51 1. Implementation 51 2. Results 52 B. Mercury 53 1. Implementation 55 2. Results 56 C. Dioxins and Furans 56 1. Implementation 56 2. Results 58 D. Petroleum Hydrocarbons in Soil 58 1. Implementation 58 2. Results 59 E. Particulate Matter and Ozone 59 1. Implementation 60 2. Results 61 F. International Perspective 61 G. Concluding Remarks 65 iv Chapter Three: Enhanced cooperation in the European Union 67 I. Introductory Remarks on the European Union 67 II. Background and Legal Prerequisites 71 A . Background 71 B. Legal Prerequisites of Enhanced Cooperation in the First Pillar 73 1. Procedure For Initiating Enhanced Cooperation (Art. 11, 11a TEC) 74 2. General Admissibility Criteria (Art. 43 - 45 TEU) 75 a) General Conditions 76 b) Conditions Requesting Compliance with E U Law 79 c) Conditions Relating to the Internal Market, Trade and Competition 80 C. Risks and Opportunities 84 1. Risks 84 2. Opportunities... 86 D. Critical Assessment / Outlook 87 III. Application of Enhanced Cooperation in E U Environmental Law 88 A . E U Environmental Policy 88 B. Enhanced Cooperation in Environmental Policy 91 C. Case study: R E A C H (Registration, Evaluation and Authorisation of CHemicals) - A New Chemicals Policy for the European Union 96 1. Introductory Remarks 96 2. The R E A C H Initiative 97 a) Background 97 b) Content and Concepts 99 c) Procedure 101 d) Reactions to R E A C H 102 3. Enhanced Cooperation and R E A C H 104 4. From Disadvantage to Advantage - Distortion Justified for Environmental Reasons 105 D. Conclusion 108 v Chapter Four: Comparison of the Two Mechanisms 109 I. Introductory Remarks and Background 109 II. Comparison of the Substance 110 A. Effective Policy Making 110 1. Procedural Issues I l l 2. Results 114 B. Implementation 115 C. Accountability 119 D. Public Participation 122 III. Assessment and Suggestions 124 IV. Summary (Table) 130 Chapter Five: Conclusion 132 Bibliography 135 vi Acknowledgements Many people have encouraged me while I was working on this thesis; I will not be able to mention them all. Special thanks go to the families from all over the world living at St. Andrew's Hall, who provided delicious baked goods to overcome the more difficult moments and offered their friendship which will hopefully last for a long time to come. I am very grateful for the support of my supervisor Karin Mickelson. She surely deserves a medal for being the greatest supervisor ever - thank you for everything! M y thanks also go to my second reader, Lijljana Biukovic for taking her time and examining my thesis under difficult circumstances. The writing of this thesis would not have been possible without the help and love of Peter, my husband. He mastered the manifold tasks of a housedaddy wonderfully and I am grateful for his willingness to share this adventure with me. This thesis is dedicated to Nicolas, our son, who trained me for nightshifts - your smile makes this place a better world. vii Chapter One: Flexible Integration in Environmental Law - Introduction and Methodology [Cooperation too often has been accepted as the end in itself. At best, intergovernmental cooperation is an instrumental goal, it is desirable to the extent that it allows us to achieve our primary goals more efficiently1. I. Introductory Remarks 2 How do we achieve effective environmental protection in a federal system? On the one hand, the wish to decentralise leads to the devolution of powers to regional or local entities, so that different levels of government are responsible for specific sectors. On the other hand, it is not possible to separate the various aspects of the environment. The need to integrate environmental considerations in all policy fields leads to the conclusion that environmental issues should be dealt with centrally3. This creates a tension between the principle of subsidiarity, whereby a problem should be tackled by the level of government best situated to do so and the idea of uniform (high) standards. A federal system could be seen as the 'best of all possible worlds' to solve the described problem: it has the advantages of smaller units responsible for local issues and the advantages of a central federal unit for environmental issues concerning the whole territory. The reality proves much more complex. In a federal system it can be difficult to implement a high standard of environmental protection in all constituents (Provinces, Territories or Member States), especially when some are not yet ready or Kathryn Harrison, "Intergovernmental Relations and Environmental Policy: Concepts and Context" in Patrick Fafard & Kathryn Harrison, eds., Managing the Environmental Union -Intergovernmental Relations and Environmental Policy in Canada (Kingston: Queen's University Press, 2000) 3 at 12 [Harrison, "Intergovernmental Relations"]. Wherever literature in French or German is referred to in this thesis, the translation is mine. Colin T. Reid & Gerardo Ruiz-Rico Ruiz, "Scotland and Spain: The Division of Environmental Competences" (January 2003) 52 ICLQ, 209. 1 able to commit themselves to such a standard. Uniform standards therefore often become the "lowest common denominator", resulting in a weak legal framework4. In such cases, a flexible approach is needed. The emergence of such flexibility mechanisms seems to be a trend in federal systems5. Watts mentions that "among interesting recent developments and innovations has been the acceptance in an increasing number of instances of some degree of asymmetry in the relationship of member units to federations or to supranational organizations"6. Flexible integration refers to cooperation combined with a certain measure of flexibility within the framework of a federal system. M y hypothesis is that federal systems have had to turn to some form of flexible integration to prevent lowest common denominator solutions. Flexible integration is the term I use as an umbrella term for all methods of integration that do not require all constituent units to participate in every integration project, or which allow Member States or provinces/territories to implement policies at their own pace. In my view, such an approach can lead to innovative policy with spill-over effects on initially non-participating constituent units7. Enhanced cooperation in the E U means that Member States that are ready to move forward agree upon common standards and further development in a certain area. Other Member States do not participate immediately but do not hinder them either. Ideally, all Member States will ultimately adhere to the enhanced cooperation initiative. Harmonization in the case of Canada aims at Canada-wide approaches. It has been combined with consensus decision making to ensure full participation of all, the possibility of concluding bilateral or multilateral agreements among groups of Particularly when unanimity is required for decision-making, such as is the case in some areas of EU environmental law (e.g. tax related measures). It may be coincidence, but the two mechanisms have been adopted around the same time (1997 and 1998). Watts, Comparing Federal Systems supra note 6 at 6. In the U.S., the states can go beyond national standards which seems to have eliminated the lowest common denominator problem to some extent (Kathryn Harrison, in a personal meeting at UBC, November 17,2003). 1 2 provinces (and/or the federal government) and a large measure of flexibility in implementation. In my thesis, I will compare the mechanism of enhanced cooperation in the Treaty of Nice and the Canada-Wide Accord on Environmental Harmonization and examine whether they contribute to creating effective environmental regulations. The underlying question of this research project is how environmental law systems can be made to work effectively. M y argument is that flexible integration mechanisms could contribute to effective environmental protection, but their potential has not yet been realized. This is mainly due to the political context in which these mechanisms were created. Indeed, political practice can significantly change the way they are supposed to operate8. M y goal is not to make a general proposal for achieving more effective forms of environmental governance. I restrict my research to the existing mechanisms, and try to further the understanding of their 'shape' (how can the creation of these mechanisms be explained; what is the background they sprung from?) and identify possible improvements by way of a comparison between two legal systems. I will also compare the formal design of the intergovernmental cooperation mechanisms and the achieved (and potential) results (i.e. the impact that these different models of intergovernmental cooperation have on policy outcomes). The 'original' part of my thesis will consist therefore, on the one hand, in a comparison of a similar mechanism in a federal system that has not yet been compared to the Canadian mechanism (contrary to comparisons to Australia, Germany and the U.S. 9 and a analysis of environmental regulation in the U.S., the E.U. and the international community from a law and economics perspective10), and See Harrison, "Intergovernmental Relations", supra note 1 at 14-15, pointing out that notwithstanding a formal, institutionalized intergovernmental agreement to cooperate, competition and conflict can still characterise intergovernmental relations. See Debora L. VanNijnatten, "Intergovernmental Relations and Environmental Policy Making" in Fafard & Harrison, supra note 1 at 23-48 ["Environmental Policy Making"]. Richard L. Revesz & Philippe Sands & Richard B. Stewart, eds., Environmental Law, the Economy and Sustainable Development - the United States, the European Union and the 3 on the other hand, in the investigation of the actual results achieved so far through the use or potential use of these mechanisms in the management of chemicals. In brief, this thesis focuses upon how mechanisms of flexible integration could represent a useful approach to create a solid legal framework for cooperation in environmental protection of (relatively) independent constituent units in a federal system. I I . C a n a d a a n d t h e E U - a r e t h e y c o m p a r a b l e ? "[E]ach system continues or embarks upon a journey through the relatively uncharted waters of 'variable' constitutional arrangements." Harmsen, The Puzzle of Constitutional Asymmetry: Recent Canadian and European Debates, Review of Constitutional Studies Vol. II, 2/1995, 341. Canada is suitable for a comparison with European Union on a general level. A certain similarity arises already from the fact that the Canadian provinces are very independent and powerful11, thereby occupying a roughly comparable position to that of the E U Member States, at least for the purposes of this study12. Due to this relatively extensive independence of the Provinces (and Territories) similar problems arise as in the E U . On the specific issue of flexible integration, similar needs for accomodating diversity lead to the adoption of flexibility mechanisms. Consequently, International Community (Cambridge: Cambridge University Press, 2000) [Environmental Law, the Economy and Sustainable Development]. More than the German Lander or the Australian states, for example. See VanNijnattem, "Environmental Policy Making" in Fafard & Harrison, supra note lat 43. For an analysis of the EC as possible model for Canada, see Gretchen M. MacMillan, "Is the European Community a Viable Model for Canada?" in R. P. Tychonick, ed., Defence of Canada: Constitutional, Economic and Security Dimensions (Occasional Papers, Strategic Studies, University of Manitoba, 1991; Peter M. Leslie, The Maastricht Model: A Canadian Perspective on the European Union (Kingston: Queen's University, 1996) [A Canadian Perspective on the EU]. The Agreement on Internal Trade guarantees an "economic union" based on the very same principles as the EU: the four basic freedoms (free movement of goods, persons, services and capital) are mentioned explicitely and are thus valid in Canada as well as in the EU. However, the AIT is not enforceable and therefore has a .limited' value compared to the EU basic freedoms. 4 parallel questions of legitimacy, institutional design and policy capacity arise and a comparison might offer useful insights and perspectives for both systems. The European Union is not a state and therefore not a federation in this sense. It is based on treaties (the Treaty establishing the European Community and the Treaty of the European Union), not a constitution15 and the coercive power remains with the Member States. Nonetheless, the European Union is somewhat more than just an international organization - usually it is called an 'international organization sui generis', because the Member States have given up certain parts of their sovereignty to 'pool' them. The European Union's structure is similar to that of a federation since the activities of government are divided between two levels of government and each has some exclusive powers. There are institutions representing the executive, the legislative and the judiciary. The E U has its own legal system and its law prevails over the laws of the Member States in the event of a conflict (principle of supremacy). The special status of the E U is not only visible internally, towards its Member States, but also externally, because it takes part in international negotiations. Because of this "intermediate status", as Lijphart16 puts it, it is difficult to decide from which perspective and under which theoretical framework it can be analysed. Some argue that it may be more appropriate to see it as a hybrid structure, something See on these questions and for an early contribution on the parallels of the discussion of asymmetrical federalism in Canada and variable geometry in the EC Robert Harmsen, "The Puzzle of Constitutional Asymmetry: Recent Canadian and European Debates" (1995) 11:2 Review of Constitutional Studies, 305. At least not yet, since a new Constitutional Treaty has been agreed upon very recently: EU leaders adopted the Constitutional Treaty on 18 June 2004 ("Draft Treaty establishing a Constitution for Europe, OJ C 169 of 18 July 2003). See Chapter Three for further explanations. But even the current treaties are similar to a constitution, as Arend Lijphart, Patterns of democracy: government forms and performances in thirty-six countries (New Haven: Yale University Press, 1999) at 45 [Patterns of democracy] points out, because, among other reasons, they can only be amended with the consent of all Member States which makes them hard to change. Ibid, at 34. The author decides to consider the EU as a federal state for the purpose of the illustration of the consensus model of democracy. 5 1 7 in between federation and confederation . The approach of comparing it to a federal 18 state is, however, increasingly used . For the purposes of this comparative paper, this approach shall be followed19. If we look at the EU as if it were a state, we can see that it is "more 'confederal' than federal, as well as extremely decentralized" which probably makes it especially comparable to Canada. Against the background of the 'province-building', and also because of the deep divisions in society through national/provincial differences (language, culture, mentality) Canada needs, too, to accommodate unity and diversity21. This is also particularly visible in intergovernmental relations. These have been characterised in Canada by considerable conflict and over time, the First Ministers Conference became crucial to dealing with such disputes. This, in the words of McKay, "speaks volumes for the status of Canadian federalism. Such Watts, Comparing Federal Systems, supra note 6 at 9; McKay, Designing Europe, Comparative Lessons from the Federal Experience (Oxford: Oxford University Press, 2001) at 9 [Designing Europe]. On the EU as developing towards a federation see for example John Pinder, "Economic and Monetary Union: Pillar of a Federal Polity" (Fall 1996) 26:4 Publius, 123 and John Loughlin, '"Europe of the Regions' and the Federalization of Europe" (Fall 1996) 26:4 Publius 141; on the EU as a confederation see William Wallace, "Europe as a Confederation: The Community and the Nation-State" (1982) 21: 1-2 JCMS 57.The EU has also been called a "hybrid structure involving elements of confederation and federation" (Watts, Comparing Federal Systems, supra note 6 at 4) or a supranational system with a quasi-federal structure (See on the first attempts to create a federalist Europe Christophe Reveillard, "Les premieres tentatives de construction d'une Europe federate - Des projets de la Resistance au traite de C.E.D. (1940-1954)" (Paris : Francois-Xavier de Guibert, 2001)).On the different approaches used in the study of the European Union, see Simon Hix, "The Study of the European Community: The Challenge to Comparative Politics" (Jan. 1994) 17:1 West European Politics, 1. For a detailed explanation on different attempts to conceptualise the EU (Westphalian model, intergovernmentalist conception regulatory model, multi-level governance model) see Sonia Mazey, "European integration - Unfinished journey or journey without end?" in Jeremy Richardson, ed., European Union - Power and Policy-making (London: Routledge, 2001) ["European integration"] at 47, Endnote 2. David McKay, Designing Europes, supra note 17 at 9 thinks the categorization of the EU as a variety of federation is justified for three reasons: First, the "constitution" of Europe has accepted the principle of subsidiarity in the allocation of powers to the different levels of government, second, the EU displays more centralized features than the US or Switzerland and third, the stated aim of the EU is an "ever closer union". Lijphart, Patterns of democracy, supra note 15 at 45. See also Watts, Comparing Federal Systems, supra note 6 at 24, who describes Canada as one of the more decentralized of existing federal systems. The motto of the European Union "United in Diversity" fits the Canadian federation, too. 6 institutions are more typical of interstate bargaining in confederations or in such bodies as the EU than they are of mature federations."22 Therefore it seems that Canada and the EU are comparable in some respects . In particular, they share the feature of executive federalism which shall be further explained later on. III. Enhanced Cooperation in the European Union (Title VII Treaty on European Union, Art. 43-45; Art 11, 11a Treaty Establishing the European Community)2 4 J "Differentiation in the European Union is the direction of the future, and necessarily therefore increasingly of the present." Francis Snyder, Foreword to Filip Tuytschaever, Differentiation in European Union Law, 1999. The EU chose to address the problem of lowest common denominator solutions by a mechanism called enhanced cooperation. Enhanced cooperation is a very current issue in Europe, since the relevant dispositions were introduced in the EU by the Amsterdam Treaty only in May 1999 (and subsequently amended in the Treaty of Nice 2002). Creation of enhanced cooperation was preceded by numerous political declarations and reflections on the future development of the European Union (the terminology varies, but key words include: "Europa a la carte", "concentric circles", McKay, Designing Europes, supra note 17 at 66. For a thorough comparison of Canada and the EU see for example Leslie, A Canadian Perspective on the EU, supra note 12. TEU is the acronym for the Treaty on European Union, which was agreed at Maastricht in December 1991 and came into effect on November 1, 1993 (O.J. C. 325 of 24 December, 2002, consolidated text). TEC is the acronym for the Treaty Establishing the European Community (Treaty of Rome 1957, subsequently reformed by the Single European Act 1987, Treaty of Maastricht (creating a Treaty on European Union) 1993, Treaty of Amsterdam 1999 and Treaty of Nice 2003), O.J. C. 325 of 24 December, 2002, consolidated text. "Extremely fashionable", see Kerstin Junge, "Differentiated integration" in Michelle Cini, ed., European Union Politics (Oxford. Oxford University Press, 2003) at 383; "emerging as the key dynamic of European integration", see Alex Warleigh, Flexible Integration - Which Model for the European Union (London: Sheffield Academic Press, 2002) at 1 [Flexible Integration]. 7 "multi-speed Europe") . MacMillan explains that "weakness in institutional 97 frameworks gave rise to executive dominance and intergovernmentalism" . This assumption does not hold entirely true for the EU enhanced cooperation. Although enhanced cooperation is intergovernmental cooperation, it is embedded in the single institutional frame of the European Union. By 'lending' the institutions (by no means a weak institutional framework) to a group of Member States wanting to progress in a certain area, the Union ensures control over these initiatives, but also (to some extent) transparency. Flexibility as such has been controversial. Some have argued that it strengthens intergovernmentalism and is an attempt of the Member States to slow down the 9R process of integration to be able to exert greater control again . However, as noted above, flexibility in the form of enhanced cooperation is not pure intergovernmentalism. As there has not yet been an actual case of enhanced cooperation, the examination of how the provisions would work in a specific area of environmental policy is For a collection and categorization of all the different terms used to describe the phenomenon, see Stubb, Alexander. "A Categorization of Differentiated Integration" (1996) 34:2 JCMS (Journal of Common Market Studies) 283. In the European context "differentiation" is used as a general term for the idea that groups of member states engage in integration initiatives that do not involve all the members, an idea that stands in a certain contrast to the notion of the EU as a uniform exercise in integration, see Michelle Cini, European Union Politics, supra note 25 at 417. Despite many scholarly contributions on the categorizations of the concepts and terms of differentiated integration, a standard terminology has still not evolved, ibid, at 386. Warleigh, Flexible Integration, supra note 25 at 10 explains three main models of flexibility: The "multi-speed" model is caused by the inability to implement policies (in the short term) and leads to policy regimes with different members; laggards are committed to catch up over time (time as main variable of differentiation). The "concentric circles" model results from the inability to implement policies (in the long term) and the outcome is various tiers of member states around a hard core (differentiation by space). The "a la carte" model is based on the choice not to participate in certain policies and leads to policy regimes with different memberships over the long term (differentiation by policy area). The enhanced cooperation provisions, as Warleigh shows (at 12), make simultaneous recourse to all models. Gretchen M. MacMillan, "The European Community: A Supranational State?" in Stephen J. Randall, & Roger Gibbins, eds., Federalism and the New World Order, (Calgary: University of Calgary Press, 1994) at 222 ["EC: A Supranational State?"]. Y. Devuyst, "The Community Method After Amsterdam" (1999) 37:1 JCMS (Journal of Common Market Studies) 109; Andrew Moravcsik & Kalypso Nicolaidis, "Explaining the Treaty of Amsterdam" (1999) 37:1 JCMS (Journal of Common Market Studies) 59. 8 hypothetical. But enhanced cooperation is a mechanism imminently linked with the aim to guarantee the functioning of the E U after the enlargement, and therefore the research concerns an area of certain interest for the future. On the importance of the subject of enhanced cooperation, Francis Snyder writes, [...] It may be suggested that, in order to understand and contribute to the debate on legitimacy, democracy and citizenship, one now has necessarily to take account of, and to take seriously, the law, practice, and ideology of differentiation. The word 'ideology' deserves to be emphasised. It is often argued that, except in a few limited policy spheres, closer co-operation in Amsterdam Treaty terms is not really practical. But it is an important political fact that, regardless of the political feasibility of many forms of Amsterdam closer co-operation, the idea and ideology of differentiation remains a powerful force which informs, conditions and even shapes the polity and living constitution of European Union today."29 Since the adoption of the enhanced cooperation provisions in the Treaty of Amsterdam, an impressive body of literature has emerged on this subject . But most of the academic contributions about enhanced cooperation in the E U written to this point consists largely of overviews of the normative basis or the general implications of the new instrument . Most of the authors agree on the importance of the Francis Snyder, Foreword to Filip Tuytschaever, Differentiation in European Union Law (Oxford: Hart, 1999). As early as 1985, Helen Wallace wrote about the origins of differentiation in the EU and its implications for the future (Europe: The Challenge of Diversity, Royal Institute of International Affairs: Chatham House Papers 29 (London: Routledge & Kegan Paul, 1985)). Bernd Martenczuk discusses the relationship of differentiated integration and the EU as a federal system ("Die differenzierte Integration nach dem Vertrag von Amsterdam" (1998) 4 ZeuS 447) and concludes that, even if some forms of differentiated integration will be necessary, the fact remains that the federal system of the EU needs a certain level of unity and solidarity to continue its existence. Differentiated integration is, in his view, a danger for the federal system of the Union and should not be considered a structural principle such as subsidarity, solidarity and cohesion. Filip Tuytschaever, Differentiation in European Union Law (Oxford: Hart, 1999) analyses differentiated integration from a legal perspective and gives a helpful overview on the concepts and examples of flexible integration in the EU. Warleigh, Flexible Integration, supra note 25, discusses the reasons for the importance that flexibility has taken on in the integration process. To explain the concept, he examines the different models of flexible integration. His view on the use of flexible integration is optimistic, he considers that it could really contribute positively to the integration process. General comments on the provisions on enhanced cooperation and the underlying positions of the Member States on this issue can be found for example in Florence Chaltiel, "Le traite d'Amsterdam et la cooperation renforcee", (1998) 418 RMC 289, (arguing that flexibility does not adress the real issues of importance, by avoiding to discuss the common "finalite politique"); Ulrich Becker, "Differenzierung der Rechtseinheit durch 'abgestufte Integration'" (1998) 1 EuR-Beiheft, 29; Giorgio Gaja, "How Flexible is Flexibility Under the Amsterdam Treaty?" (1998) 35 9 mechanism (several discuss whether it is a new constitutional principle ), but question its applicability because of the strict conditions imposed by the Treaties. The general application possibilities in a particular area have not yet been researched extensively33, but there are several areas that have been designated as possible future applications for enhanced cooperation. The application of enhanced cooperation in environmental policy has been the subject of several studies34. The overall conclusion is that the environment is a logical candidate for enhanced cooperation projects, which could offer a solution for deadlock and stagnation in this policy area. CML Rev. 855; Josef Janning, "Zweiter Anlauf -. die "verstarkte Zusammenarbeit" im Vertrag von Nizza", in: Werner Weidenfeld, ed., Nizza in der Analyse (Giitersloh: Bertelsmann Stiftung, 2000) at 145; Griller, S. et al. The Treaty of Amsterdam - Facts, Analysis, Prospects, (Vienna, 2000) at 199; Claus Giering & Josef Janning, "Flexibilitat als Katalysator der Finalitat? Die Gestaltungskraft der „Verstarkten Zusammenarbeit" nach Nizza" (2001) 2 Integration 146. Claus Dieter Ehlermann, "Engere Zusammenarbeit nach dem Amsterdamer Vertrag: Ein neues Verfassungsprinzip?" (1997) 4 EuR Heft, 362; Grainne De Burca & Joanne Scott, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) [Constitutional Change in the EU]; Herve Bribosia, "De la subsidiarite a la cooperation renforcee" in Yves Lejeune, ed., Le Traite d'Amsterdam - Espoirs et Deceptions (Bruxelles: Bruylant, 1998); Philippe De Schoutheete, 77ie Case for Europe - Unity, Diversity, and Democracy in the European Union (London: Lynne Rienner, 2000); Helmut Kortenberg (alias), "Closer Cooperation in the Treaty of Amsterdam" (1998) 35 CML Rev. 833; Jo Shaw, "The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy" (March 1998) 4 European Law Journal 63. One of the founding fathers of the EU, Jean Monnet, considered flexibility in another light, however. For him, it represented evidence of the failure of the integration process, a failure of the common institutions to take on the authority of their national equivalents and the failure of solidarity among Member States, which are therefore not able to overcome the differences between them. See Jean Monnet, Memoirs, (London: Collins, 1978), cited in Warleigh, Alex. Democracy in the European Union (London: Sage, 2003) at 69. I try to contribute to the research in this area with my doctoral dissertation at the University of Fribourg (to be published in 2005). A comprehensive analysis of the issue of flexible integration and assessment of the possible application of enhanced cooperation in selected policy areas (the potential application social policy and culture) can be found in a volume by De Burca & Scott, Constitutional Change in the EU, supra note 32. One of the first contributions exploring the potential of flexible integration in environmental policy is Gisela Miiller-Brandeck-Bocquet, "Flexible Integration-eine Chance fur die europaische Umweltpolitik?" (1997) 4 Integration 292. In a study by Stefani Bar et al. Verstarkte Zusammenarbeit im Umweltbereich - Moglichkeiten der Anwendung der in Titel VII TEU festgelegten Bestimmungen fur Flexibilitat im Umweltbereich commissioned by the Austrian Federal Ministry of Environment, Youth and Family Affairs, Berlin, September 1999, the general possibilities of applications are being explored and many opportunities for enhanced cooperation revealed. The consequences of the EU enlargement for the EU's environmental policy were furthermore the centre of a study by Katharina Holzinger & Peter Knoepfel, eds., Environmental Policy in a European Union of Variable Geometry (Basel: Helbing & Lichtenhahn, 2000). In this volume, Epiney discusses the legal aspects of flexible integration in environmental policy and outlines the possible application of enhanced cooperation in this area (Astrid Epiney, "Flexible Integration and Environmental Policy in the EU - Legal Aspects", at 39). 10 The ultimate fear, of course, is that the EU, instead of developing continually towards an ever closer union with solidarity as a core principle, will return to being solely a free trade area due to extensive enhanced cooperation - thus leading to the disintegration of the Union. In my opinion, this outcome is unlikely. Instead, enhanced cooperation will propel the EU forward and more specifically offers a useful tool for effective environmental law making. IV. The Canada-Wide Accord on Environmental Harmonization While the original Canadian constitution of 1867 was characterized by strong central powers, pressure to account for duality and regionalism has led to a relatively decentralized federation. The most distinctive feature of the Canadian federation is its incorporation of a system of parliamentary responsible government in which the executive and the legislature are fused (therefore Canada combined a federal and parliamentary system)35. The division of powers is strict; when the Canadian federation was established, the ideal was that in a federation each government should be able to act independently within its own watertight sphere of responsibility36. The constitution lists exclusive federal, exclusive provincial, and concurrent powers with the residual authority assigned to the federal government. The environment is not expressly included in the constitution. Provinces and territories act under other powers and have their own legislation concerning the environment. The level of protection in the provinces therefore varies considerably, but the need for cooperation to create coherent regulations has been recognized. The creation of the Canadian Council of Ministers of the Environment (CCME) as an intergovernmental forum of discussion was specifically aimed at the promotion of cooperation between the federal government and the provincial governments. The view was taken that legislation and policy should be harmonized and common problem-solving strategies should be worked out. Watts, Comparing Federal Systems, supra note 6 at 24. Ibid, at 36. 11 In 1998 the C C M E , with the exception of Quebec, ratified the Canada-Wide Accord on Environmental Harmonization. The Accord is a framework agreement containing mechanisms for better cooperation and coordination between the governments in order to create more effective regulations on the protection of the environment and thus to attain the highest possible quality of environment in the whole of Canada . In sub-agreements the participating governments agree upon common regulations in different areas such as environmental impact assessment and common quality standards for air, water and soil. The Accord has been criticized on several grounds and even presented as a risk to environmental protection in Canada. It has been argued that it devolutes responsibility from the federal government to the provinces and finally none of the two levels of government will allocate sufficient resources for implementation, and furthermore, consensus decision making will lead to fewer and weaker standards . However, seen against the backdrop of the predecessor accords and attempts to develop a common Canadian environmental policy 3 9 , it seems that the Canada-Wide The predecessor of the Canada-Wide Accord, the EMFA (Environmental Management Framework Agreement, 1995) did resemble the Australian Intergovernmental Agreement on the Environment (IGAE) of 1992, but did not adopt the majority decision rule. See Debora L. VanNijnatten, "Environmental Policy Making" in Fafard & Harrison, supra note 1 at 43. The advantage of the Australian mechanism compared especially to the Canadian one is that the decision is made by a two thirds majority voting, not unanimity. This is at least formally a progress -it is possible, however, that none of the states wants to outvote another for fear of being outvoted in another issue. Kathryn Harrison, "The Canada-Wide Accord: A Threat to National Standards", (January 1998) 6:1 Canada Watch, 13. Elsewhere this author writes that provincial support for the development of common standards stems from a desire to avoid federal standards and to dilute federal influence, see Kathryn Harrison, Passing the Buck - Federalism and Canadian Environmental Policy, (Vancouver: UBC Press, 1996) at 143-144. Similar accords in the 70's were not successful and the 80's and 90's were characterized by conflicts between the two levels of government. These agreements were criticized as "a virtual abdication" of federal responsibility for environmental protection (see David R. Boyd, Unnatural Law - Rethinking Canadian Environmental Law and Policy, (Vancouver: UBC Press, 2003) at 242) [Unnatural Law]. In 1999 the CWAEH was unsuccessfully challenged in Court by the Canadian Environmental Law Association CELA which claimed that it was illegal because power, especially the enforcement of federal environmental laws, was transferred from the federal government to the provinces without amendment of the Constitution, Canadian Environmental Law Association v. Canada (Minister of the Environment) (1999), 30 C.E.L.R. (N.S.) 59 (F.C.T.D.). 12 Accord despite its many drawbacks helps to further environmental protection at least in some areas. With most of the literature concerning the C W A E H and the Standards Sub-Agreement41 having been written before 2000, it will be interesting to see what the Accord has achieved since that time 4 2. V. Theoretical Framework of Analysis / Conceptual Approach [...] a comparative perspective can expand our understanding of the possibilities before us. Harvey Lazar, Foreword to Watts, Ronald: Comparing Federal Systems, 1999. A. Comparative Law In the words of de Cruz 4 3 , I will undertake a micro-comparison, i.e. a study of a specific instrument in two legal systems. Legal systems can be compared usefully when they are economically, politically and socially at a similar stage of development. This is the case for Canada and the E U , therefore a baseline of similarity exists44. Canada and the E U are different systems and therefore conclusions about the transferability of parts of the chosen solutions have to be mindful of these differences. E.g. that the Council of the Canadian Ministers of the Environment CCME lacks political accountability and the set up procedures hence suffer from a democratic deficit. See for example Alastair R. Lucas & Cheryl Sharvit, "Underlying Constraints on Intergovernmental Cooperation in Setting and Enforcing Environmental Standards" in Fafard & Harrison, supra note 1 at 133. Since 2000 the CCME published a two-year review and a five-year review (the latter was published in October 2003, dealing with the actual achievements of the Accord, not only on a procedural level, but also concerning the impact of the Accord on the environment. In this respect, the Sub-Agreement on Standards received a very positive evaluation). Some progress was also made with regard to compliance and enforcement matters with the Sub-Agreement on Inspections and Enforcement of 2001. Peter De Cruz, "The Techniques of Comparative Law", in Peter de Cruz, Comparative Law in a Changing World, 2nd ed. (London:Cavendish, 1999) 213 at 227. Ibid, at 222. 13 Advice to be cautious in these respect is also given by Watts , "Even where similar institutions are adopted, different circumstances may make them operate differently." He proceeds to state that with these cautions in mind, "there is a genuine value in undertaking comparative analyses. [....] Through identifying similarities and difference they may draw attention to certain features of our own arrangements whose significance might otherwise be underestimated." De Cruz warns against overlooking 'extra-legal' factors which often are the reasons for differences and similarities discovered in the comparison46.1 try to integrate at least some of the extra legal factors that have influenced the mechanisms in question, by examining the political background and thus illuminating their respective context. Using a comparative approach has a long tradition in the European Community, since the European Court of Justice (ECJ) looks at the different solutions in the Member States when it needs to interpret or fill a gap in Community legislation. The Court can conclude that a specific national solution would be in the interest of the Community. A legal concept or solution can thus be 'imported' into E U law 4 7 . It is certainly less common to compare a Community solution to something similar in a third state, as I intend to do. A comparative perspective seems to be less frequently taken in Canada. Watts says in this respect, "Canadians have emphasized the uniqueness of their own political experience and been reluctant to undertake comparative analyses' . A caveat is in order: As Watson4 9 succinctly puts it, the choice of the topic can "scarcely be made in full knowledge of all the relevant facts". This will certainly lead to modesty in the conclusions. Consequently, the primary purpose of my thesis is to place the emergence of such flexible integration mechanisms in a larger context so as 4 5 Watts, Comparing Federal Systems, supra note 6 at 2. 4 6 De Cruz, "The Techniques of Comparative Law", supra note 43 at 224. 4 7 Lenaerts mentions the principle of proportionality and the protection of legitimate interests as examples for concepts borrowed of the German legal order. Koen Lenaerts, "Interlocking Legal Orders in the European Union and Comparative Law" (October 2003) 52 International Comparative Law Quarterly, 873 at 894. 4 8 Watts, Comparing Federal Systems, supra note 6 at 1. 4 9 Alan Watson, Legal Transplants (1974) at 11 cited by De Cruz, "The Techniques of Comparative Law", supra note 43 at 220. 14 to understand why they are the way they are, and through examining their application identify decisive elements for their effectiveness which hopefully indicate which direction law reform could take. M y thesis follows the three main stages of the comparative law method5 0: the descriptive phase (Chapters Two and Three), the identification phase (dealing with the identification of differences and similarities, Chapter Four) and the explanatory phase (attempting to account for resemblances and dissimilarities between the mechanisms, Chapter Four and Conclusion). B. Federalism as Framework Since the subject of this thesis touches questions that arise in federalist systems, it seems opportune to draw to some extent from federalist theories to try to explain the difficulties and challenges of trie mechanisms of flexible integration and situate them in a broader conceptual framework. 1. Executive Federalism and its Variations: Competitive, Cooperative and Collaborative Federalism Federations vary strongly in their structure and distribution of powers and competences51, but the central feature is that sovereignty is divided and shared between a central government and the constituent units 5 2. The organization of federal systems depends on the circumstances. In the context of flexible integration in environmental policy in Canada and the E U , the theoretical framework that is used in this thesis is executive federalism and more specifically, its collaborative variation. See De Cruz, "The Techniques of Comparative Law", supra note 43 at 233. "There is no single pure model of federation that is applicable everywhere. Rather the basic notion of involving the combination of shared-rule for some purposes and regional self-rule for others within a single political system so that neither is subordinate to the other has been applied in different ways to fit different circumstances.", Watts, Comparing Federal Systems, supra note 6atl. Traditionally, a written constitution guarantees this division and sharing of sovereignty. The EU is based on Treaties, not a constitution, but these are similar to a constitution in the sense that they can also only be amended "by special procedures that reinforce legitimacy by maximizing political consent" (as Michael Burgess, "Federalism and Federation" in Cini, supra note 25, 65 at 68 explains the importance of a constitution). 15 What is executive federalism? Smiley defines it as "the relations between elected and appointed officials of the two orders of government in federal-provincial interactions" . Watts describes it as "the predominant role of governmental executives (ministers and their officials), in intergovernmental relations in parliamentary federations where first ministers and cabinet ministers responsible to their legislatures tend to predominate within both levels of government."54 Sharman explains that in a parliamentary system all governmental agencies are integrated into a single hierarchy with the executive at the top - which leads to the situation that "the relations between the component governments in the federation become the realm of executive action alone, and of the chief executive officer, premier or prime minister in particular."55 Such intergovernmental relations are therefore taken as the constant that defines executive federalism in general. Executive federalism depicts intergovernmental relations as conflictual and competitive relations between very self-assertive governments. Negotiations between governments take place 'in secret' without (or with very limited) public participation. Ministers and officials conduct intergovernmental affairs and decide on all kinds of policy issues. If the emphasis lies on conflict, then the result of the relations will often be deadlock. Painter points out that there is a "close parallel between this view of intergovernmental relations in the federal system and the deadlocks of 'intergovernmentalism'" in the European Community5 6. To this rather negative view of executive federalism has to be added the observation that the growing interdependence between provincial and federal governments also creates incentives for cooperation and can lead to the prevention of conflicts by negotiation of joint Donald V. Smiley, Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson, 1980) at 91. Watts, Comparing Federal Systems, supra note 6 at 58. Campbell Sharman, "Executive Federalism" in Brian Galligan & Owen Hughes & Cliff Walsh, eds., Intergovernmental relations and public policy (Sidney: Allen&Unwin, 1991) 23 at 25. Martin Painter, "Canada" in Brian Galligan & Owen Hughes & Cliff Walsh, eds., Intergovernmental relations and public policy (Sidney: Allen&Unwin, 1991) 88 at 91. 16 solutions . Thus, the outcome really depends on which variation of executive federalism is used in a certain context. Three main variations have been used to qualify interactions between the different levels of government: competitive, cooperative and collaborative federalism. • Competitive federalism looks at the relations o f the different levels o f government in terms o f independence and competition. The federal and provincial governments compete for support by the electorate and therefore use their powers to respond to the interests of the population. Because they have different priorities, they respond to different interests and thus different publics. Policy is made by a process o f action and counteraction, by direct negotiation, and by coordination through adjustment (where this is perceived to be advantageous and therefore necessary) 5 8. • Cooperative federalism focuses on the administrative dimensions of joint action between the two levels of government 5 9. The main difference between this form and collaborative federalism is that cooperative federalism is more hierarchical, considering the provinces/Member States as only implementing and administering agreed upon national/community-wide policies 6 0 . It implies "the subordination o f the unruly political aspects of federalism to the reasoned processes o f administrative accommodation." 6 1 In Canada, competitive federalism was a characteristic of the Trudeau government in the 1980s. The federal government reacted to the growing assertiveness of the provinces by persisting on its powers and appealing directly to Canadians in order to win their support, thereby creating strong intergovernmental conflicts. Painter points out, however, that numerous federal-provincial programs and agreements were in effect and therefore cooperative federalism was still working (Painter, "Canada", supra note 56, 88 at 96). Painter, "Canada", supra note 56, 88 at 93. David Cameron & Richard Simeon, "Intergovernmental Relations in Canada - The Emergence of Collaborative Federalism" (Spring 2002) 32:2 Publius 49 ["Collaborative Federalism"], oppose "Ottawa-led cooperative federalism" and collaborative federalism, where codetermination of broad national policies is aimed at. Sharman, "Executive Federalism", supra note 55, 23 at 34. In Canada, this kind of image is linked to the period in the 1950s, when shared cost programs for national programs were developed. For an example in Australia see Martin Painter, "The Council of Australian Governments and Intergovernmental Relations" (Spring 1996) 26:2 Publius 101. 17 • Collaborative federalism is a perspective which focuses more on the collaboration of political executives than their conflicts. Intergovernmental relations are seen as a way to solve specific problems and attain national goals. Cameron/Simeon describe it as being characterized more by the principle of co-determination of national policy than by the traditional pattern of federal leadership62. The two levels of government therefore operate more as equal partners to achieve common solutions than players in a hierarchy. 2. Collaborative Federalism as a Trend in Federal Systems The flexible integration mechanisms discussed in this thesis are examples of 'problem-solving in federal systems'63. They constitute intergovernmental cooperation in two different, yet similar settings and display the characteristics of collaborative federalism. In the following section, the characteristics of executive federalism and the emergence of collaborative federalism in Canada and the E U shall be outlined, in order to situate these approaches to federalism in both systems. a) Canada This is not the place to dwell on the history of executive federalism in Canada64, but some short remarks are in order to give some background to the development of the Canada-Wide Accord on Environmental Harmonization. Canadian federalism is characterized by an emphasis on jurisdictional federalism combined with the British Westminster model of governance. This has led to "a distinctly elitist quality to Canadian democracy at both the federal and the provincial Cameron & Simeon, "Collaborative Federalism", supra note 50. Ute Wachendorfer-Schmidt, ed., Federalism and Political Performance, (London: Routledge, 2000). See Stefan J. Dupre, "Reflections on the Workability of Executive Federalism" in Richard Simeon, ed., Intergovernmental Relations (Toronto: University of Toronto Press 1985) at 1 ["Executive Federalism"], and Kenneth McRoberts, "Unilateralism, Bilateralism and Multilateralism: Approaches to Canadian Federalism", ibid, at 71 ["Unilateralism, Bilateralism and Multilateralism"]. 18 level" . Executive and legislative are fused (the principle of responsible government) and the cabinet is the key engine of the state within both levels of government66. As one author has noted, Canada, more than any other federation, relies on intergovernmental negotiation to help resolve political differences . Consultation and intergovernmental agreements have become typical in recent decades, characterized by cooperative or conflictual executive federalism68. The growth in federal-provincial intergovernmental relations was caused by the increased role that both levels of government have tried to play within their jurisdictions, so that more and more overlap occurred and made collaboration necessary69. The need for cooperation is even greater in areas of shared jurisdiction, such as the environment70. Responsibility for environmental protection71 is not easily divided since different problems require Herman Bakvis & Grace Skogstad, eds., Canadian Federalism - Performance, Effectiveness, and Legitimacy (Oxford: Oxford University Press, 2002) at 4. Dupre, "Executive Federalism", supra note 54 at 2. Michael Jenkin, The Challenge of Diversity: Industrial Policy in the Canadian Federation (Ottawa, 1983) at 101, cited by Donald V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 83. McRoberts, "Unilateralism, Bilateralism and Multilateralism", supra note 54 at 75. Ibid. The constitution does not explicitly assign responsibility for the environment to neither of the two levels of government. Both have have acted in this field, based on constitutional provisions relating to the environment. Federal competencies .relating to the environment include Parliament's jurisdiction over seacoast and inland fisheries, federal lands and Indian reserves, navigable waters, interprovincial and international trade and commerce, the criminal law and the federal Parliament's general power to make laws for the Peace, Order and Good Government of Canada. The provincial competence to enact environmental laws is based, in turn, primarily on their jurisdiction over property and civil rights, local works and undertakings, and the ownership and management of natural resources within their territory (Constitution Act, 1867, s. 92). The question whether federal standards are needed is controversial. Federalists emphasize the risk of the 'race to the bottom' among subnational governments and claim the need for involvement of the federal government to prevent this race to the bottom. This seems to be a particularly worrying thought with respect to environmental policy. It would mean that states would compete with low environmental s^tandards to attract businesses, thus creating pollution havens (See Kathryn Harrison, "The Regulator's Dilemma: Regulation of Pulp Mill Effluents in the Canadian Federal State" (1996) 29:3 Canadian Journal of Political Science, 469). Creation of federal standards would prevent provinces from forcing the adoption of the lowest common denominator. Brown argues that this might even lead to a 'race to the top' as provinces will seek to raise standards over the federal level to increase public support and allegiance (Gordon R. Brown, "Canadian Federal-Provincial Overlap and Government Inefficency" (Winter 1994) 24:1 Publius: The Journal of Federalism, 21). Economists, on the other hand, have argued that the race-to-the-bottom-argument is basically just a pretext for federal governments to attract power in certain fields (Richard L. Revesz, "Federalism and Environmental Regulation: an Overview" in Revesz 19 actions on different levels. The developments in Canada show that there is a new tendency "away from focusing on policy jurisdiction and toward apportioning policy functions to different levels of government", i.e. joint setting of policy goals while implementation and enforcement remain the task of the constituent units (similar to the use of directives in the EU). This new direction is exemplified by the harmonization initiative of the Canadian Council of Ministers of the Environment (CCME) to establish a Canada-Wide Accord on Environmental Cooperation . Canadian federalism has thus been transformed and now emphasizes federal-provincial collaboration. The clear separation of functions ('watertight compartments') advocated by 'classical federalism' does not exist anymore74 and a new approach has been adopted. Cameron/Simeon explain that executive federalism "has been increasingly informed by a set of practices of collaborative federalism". It means that collaboration is based more on a common determination of national policies between equal partners than by a hierarchical process (cooperative federalism as it existed in the 1950s) or competitive federalism (which prevailed in the 1960s). One of the causes for this collective action lies in the cuts in federal financial & Sands & Stewart, supra note 10 at 38. The race to the bottom notion is explored in Richard Revesz, "Rehabilitating Interstate Competition: Rethinking the Race to the Bottom Rationale for Federal Environmental Regulation" (1992) 67 New York University Law Review, 1210; Kirsten Engel, "State Environmental Standard-Setting: Is There a Race and is it to the Bottom?" (1997) 48 Hastings Law Journal, 271. Revesz explains that contrary to the opinion in the legal (and political science) literature, the "leading economic model of the effects of interstate competition on the choice of environmental standards shows that interjurisdictional competition leads to the maximization of social welfare, rather than to a race to the bottom" (Richard L. Revesz, "Federalism and Environmental Regulation: an Overview" in in Revesz & Sands & Stewart, supra note 10 at 44. Which can be described as jurisdictional federalism, with both levels of governments acting independently. In Australia, a similar development is exemplified by the Intergovernmental Agreement on the Environment (IGAE), an agreement that was signed by Commonwealth and state officials in May 1992. The Accord was ratified in 1998 by all provinces but Quebec. Boyd, Unnatural Law, supra note 39 at 266, points out that Jean Chretien, Prime Minister at that time, pushed the accord through despite opposition by the environment minister, backbench MPs, the Standing Committee on Environment and Sustainable Development, environmental groups and the Canadian Bar Association. McRoberts, "Unilateralism, Bilateralism and Multilateralism", supra note 54, 71 at 123. In other words, the "layer cake" (watertight compartments) has been replaced by the "marble cake", see J. Peter Meekison, "Comment" in Robert Young, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) 69 at 72. 20 transfers to the provinces in the 1990s which eventually led to more assertiveness of the provinces to judge, in their areas of jurisdiction, not only what the provincial, but also what the national interest requires. Or as Cameron/Simeon put it: "If Ottawa was no longer paying the piper, what right did it have to call the tune?"75 Thus, collaborative federalism is a new trend in Canadian executive federalism76, a 77 trend that (successfully ) began with the signing of the Canada-Wide Accord on Environmental Harmonization ( C W A E H 199878) and was continued with the Social Union Framework Agreement (SUFA 1999) 1 9. b) EU Although the E U is not a state, federalism is being used here as a theoretical approach to explain its functioning , since this supranational organization sui generis is Cameron & Simeon, "Collaborative Federalism", supra note 50 at 54. Executive federalism is therefore not a "dead duck", writes Meekison, "Comment", supra note 74, 69 at 73. Failed attempts of the collaborative version of executive federalism were the constitutional accords: the Meech Lake Accord (failed to be ratified by all provincial legislatures by 23 June 1990) and the Charlottetown Accord (failed 1992 in a national referendum). Online: CCME, <http://www.ccme.ca/assets/pdt7cws_accord_env_harmonization.pdf> (August 4, 2004). For a detailed account of these agreements, see Cameron & Simeon, "Collaborative Federalism", supra note 50 at 55-58. Several theoretical concepts are used to explain the European integration and system of governance (such as neo-functionalism, mtergovernmentalism, federalism, theories of multi-level governance and new institutionalism), see for an in-depth study Dimitris N Chryssochoou, Theorizing European Integration (London: Sage, 2001); for an overview on new theories of European integration see Ben Rosamond, "New Theories of European Integration" in Cini, supra note 25 at 110. Theories of integration relating to enhanced cooperation and to the federalist framework used here include for example functional federalism or federal functionalism, which are other terms for neofunctionalism, an application of functionalism to the study of European integration, see MacLean, Iain & McMillan Alistair. Oxford Concise Dictionary of Politics (Oxford: Oxford University Press, 2003) s.v, "neofunctionalism". The distinction between functionalism and neofunctionalism is, mainly that the latter accepts "a regional and centralized focus of power", while the former tends more towards flexibility and is against large-scale schemes of regional integration, proposing instead "global integration under dispersed functional agencies" (ibid.). Neofunctionalism maintains that political integration and transfer of competences to the supranational level occur as a consequence of economic integration. Furthermore, when integration occurs in one sector, it creates a spillover effect in the sense that integration in other sectors is needed (functional spillover). The second aspect of spillover is that self-interested groups of actors are drawn into the game (political spillover). The latter aspect is particularly important in the context of enhanced cooperation in the EU, since the hope is that 21 characterized by its multi-level or federal structure . The definition of competences of the Member States and the Union is constantly developing , even though there are certain exclusive competences of the respective levels of government defined in the Treaties and the principle of specific conferment of powers {Prinzip der begrenzten Einzelermachtigung) only allows the Union to act where the Treaties confer it the power to do so. As MacMillan argues, the term 'executive federalism', which was developed by Donald Smiley to explain federal-provincial relationships in Canada, gives a useful framework to look at the developments in the E C 8 4 . Its particular structure renders the E U a "system of intensive executive cooperation and consensual decision-making"85. through this mechanism, a political spillover effect will take place and help to maintain a certain integration dynamic. The founding fathers of European integration were federalist inclined, "We believed in starting with limited achievements, establishing a de facto solidariy form which a federation would gradually emerge. I have never believed that one fine day Europe would be created by some great political mutation...The pragmatic method we had adopted would...lead to a federation validated by the people's vote, but that federation would be the culmination of an existing economic and political reality." (Quote from Jean Monnet, Memoirs (London: Collins, 1978), cited by Mazey, "European integration", supra note 19 at 28. The question of federalism today leads to tension between Germany that favours European federalism and France that prefers an intergovernmental Union (ibid, at 46). The term "competence" equals the meaning of "jurisdiction" in the Canadian context. The Treaties do not confer on the Community and its institutions any general power to take all measures necessary to achieve the objectives of the Treaty, but lay down in each chapter the extent of the powers to act (principle of specific conferment of powers). See Art. 5 TEU, Art. 5 TEC, Art. 249 (1) TEC - the principle is mitigated by the 'implied powers'doctrine of the ECJ (powers to take such measures as are indispensable for the effective and meaningful implementation of powers that have already been expressly conferred) and Art. 308 TEC. While in Canada, the federal system originally tried to "divide decision authority according to discrete policy areas and largely avoid functional entanglement" (theory of the watertight compartments of jurisdiction, see VanNijnatten, "Environmental Policy Making" in Fafard & Harrison, supra note 1 at 31), functional entanglement is certainly one characteristic of the EU. The principle of subsidiarity is the core of the functional division of competences in the Union, as it stipulates that the Union should only act in a certain area if the Member States are not better placed to take actions. (Art. 5 TEC). The principle of subsidiarity was established 1992 in the Maastricht Treaty and elaborated in the Amsterdam Treaty of 1999. MacMillan, "EC: A Supranational State?", supra note 27 at 220. Smiley defined executive federalism " as a system of government which is executive dominated and within which a large number of important public issues are debated and resolved through the ongoing interactions among governments" (Smiley, The Federal Condition in Canada, supra note 57 at 83). Philipp Dann, "Looking Through the Federal Lens: The Semi-parliamentary Democracy of the EU" Jean Monnet Working Paper 5/02 (New York: NYU School of Law, 2002) at 2 ["Semi-parliamentary Democracy"]. 22 How does this system work and does the label 'executive federalism' fit the EU? To answer this question requires a look at the institutions and at the way they work . The E U institutions do not have separate functions as legislative or executive. The only 'easy' case is the European Court of Justice that holds the judicial power; however it has been more active and creative in developing (and extending the meaning of) the law through interpretation than most national courts would ever be. The European Council, the Council of the European Union, the Commission and the European Parliament are more difficult to classify in terms of the usual separation of powers. The Commission serves as the executive of the E U and can be compared to a cabinet . It is composed of 20 members which are the. directors of the so-called Directorate Generals (DG) that are responsible for different policy areas. The Commissioners are appointed by the Member States. The biggest five (Germany, U K , France, Italy, Spain) have two commissioners, the other Member States one each8 8. This composition renders it a very broad coalition, one that "unites the left, center and right of the political spectrum in Europe" . The Commission is the 'motor' of the integration process, because it has the monopoly to propose legislation, and it is the guardian of the Treaties, because it watches over their implementation. The European Parliament can be seen as the lower house90. Its legislative powers are rather weak -but some improvements (extension of the co-decision procedure) have been made by the Treaty of Amsterdam (1997) and Nice (2000) under the pressure of the perceived and much discussed democratic deficit of the Union. In some areas the EP can now be seen as "a co-equal legislator"91 with the Council of the European Union. Both the For the categorization of the European Union as federation, see above in the introduction. Lijphart, Patterns of democracy, supra note 15 at 42. From 2005, every MS only has one Commissioner until the Union counts 27 MS - after that the Council decides on the size of the Commission. Lijphart, Patterns of democracy, supra note 15 at 42. Ibid, at 45. Mazey, "European integration", supra note 19 at 44. The decision making can be distinguished in two main procedures: Unanimity (which gives each state a veto right) and qualified majority vote 23 Commission and the Parliament have a supranational character and exert more federal influences at the E U level. The Council of the European Union (former Council of Ministers) is composed of ministers from the national governments. It can be compared to an upper house92 that represents the constituent units of a federation. It is part of the executive (together with the Commission) and part of the legislature (together with the Parliament) - its powers therefore do not follow the traditional separation of power principle, which also renders it a characteristic feature of executive federalism in the E U 9 3 . The Council of Ministers on the one hand institutionalises intergovernmental relations and on the other hand fulfils its role as a federal institution. It has the "ultimate say on E U policies"9 4, but is entirely lacking transparency. The European Council (composed of the Heads of State and the President of the Commission9 5) has no formal role in the legislative process, but initiates the major developments of the European Union and has a huge political influence96 - the E U is 'its creature'. Both Councils are more (QMV). Qualified in the sense that it is more than the simple or absolute majority - each Member State has a weighted vote related to its size. This means of course that the Council votes are not proportional to the population size in the Member States. As it happens, Germany has only five times as much weight as Luxemburg while, if based on the population size, it should have 160 times that weight (see Thomas Christiansen, "The Council of Ministers - The Politics of Institutionalised Intergovernmentalism" in Jeremy Richardson, ed., European Union - Power and Policy-making (London: Routledge, 2001) 135 at 138 ["The Council of Ministers"]). This weighting of votes becomes increasingly important against the backdrop of more and more matters falling under the QMV procedure. The procedure is a fundamental progress from the usual decision-making procedure in intergovernmental institutions, because the Member States accept that decisions made under this procedure are legally binding (even if they are taken against their will) and thus they renounce the national veto. Inofficially, the consensus method still prevails, however, see Dann, "Semi-parliamentary Democracy", supra note 85 at 9. Lijphart, Patterns of democracy, supra note 15 at 42. Dann, "Semi-parliamentary Democracy", supra note 85 at 8. The author explains that the Council's powers flow from interwoven competencies and that it is necessary that the Council participates in lawmaking because implementation is finally the task of the Member States. Christiansen, "The Council of Ministers", supra note 91, 135 at 136. Initially, this was not an institution, but it began in the 1970s as extraordinary summits of Heads of State and government and the President of the Commission. "It is at this level that package deals and trade-offs, these quintessential features of EU policy-making, are best constructed", writes Christiansen, "The Council of Ministers", supra note 91, 135 atl46. 24 intergovernmental in nature and in terms of federalism strengthen the confederal elements of the Union 9 7 . QO To sum up, executive federalism is a characteristic of the European Union which can briefly be explained by looking at three elements, as Dann describes: "a structure of interwoven competencies between the federal layers, a Council as federal chamber and institutional core, harboring the necessary processes of cooperation and, thirdly, a consensus method facilitating the accommodation of the diverse interests."99 Insomuch as excessive cooperative/collaborative federalism can undermine the democratic accountability of the respective governments and too much competition among governments can lead to divisive conflicts, "a blend of cooperation and competition may in the long run be the most desirable"100. What is true for a political system in general is also relevant for the mechanisms in question. The ambiguity of enhanced cooperation in the E U , for example, is very present in the literature on the subject; the fear of a breakdown of the Union because of too much flexibility is brought forward as the 'twin' of the fear of stalemate in the integration process due to the imminent enlargement. The numerous legal prerequisites to enhanced cooperation illustrate the uncertainty about the impact of the new instrument. The conceptual distinction between federation and confederation being that the latter is less binding and regulated than the former. Confederation is a "form of union where the constituent units rather than the central authority remain the decisive force, and institutionalized diplomacy takes the place of federal government", see Burgess, "Federalism and Federation" in Cini, supra note 25, 65 at 68. Many federalist forces at EU and Member States levels (through the Commission, the EP and from interest groups, public organizations and civil associations) influence this confederal dimension of the EU (ibid., 69). Dann describes the EU as a "semi-parliamentary system" since it is "neither a truly parliamentary nor a presidential system", but one based on "a negative parliamentary power to determine the executive and a consensual method of decision-making", Dann, "Semi-parliamentary Democracy", supra note 85 at 3. On a terminological level, he adds that the EU does not and will not have a Westminster Model parliamentary system, but that the EU has a strong legislature without its being closely linked to the executive, as this is the case in the British derived parliamentary system. Ibid, at 12. On the consensus model in the EU see also Smiley, The Federal Condition in Canada, supra note 57 at 42. Watts, Comparing Federal Systems, supra note 6 at 61. 25 The mechanism of enhanced coooperation is triggered through political executives, since the authorisation to establish closer cooperation is granted by the Council acting by qualified majority voting on a proposal by the Commission. Participants of a closer cooperation work together to realise specific projects which aim at realising Community goals and deepening integration. Enhanced cooperation can therefore be looked at through the lens of collaborative federalism101. VI. Outline of the Following Chapters The second chapter deals with the Canada-wide Accord on Environmental Harmonization and investigates its achievements to date. The third chapter describes the E U provisions on enhanced cooperation and their potential application in environmental law. Both chapters shall outline an answer to the question: How can the creation of these models of intergovernmental cooperation be explained? I will look at the background of the two mechanisms on two levels: On the one hand, their 'history' needs to be looked at briefly - this is especially important so as not to be too dismissive about eventual achievements of the C W A E H and enhanced cooperation in the E U . On the other hand, the mechanisms shall be situated in a broader context of processes for flexibility in federations. To look at this background is useful as it will provide a more thorough understanding of the reason, actual shape and functioning of 1 (Y) these mechanisms and explain their differences and similarities . The second part of each chapter deals with the question: What impact do the different models of intergovernmental cooperation have on the creation of actual measures? These 1 0 1 Karl-Heinz Ladeur, "Flexibility and 'Co-operative Law': The Co-ordination of European Member States' Laws -The Example of Environmental Law" in de Burca & Scott, Constitutional Change in the EU, supra note 32 at 281, explains the phenomenon in the EU as follows, "Flexibility in the European Community is a paradigm which is discussed primarily with reference to the distribution of competences between the supranational, the intergovernmental and the state levels. New forms of a kind of transnational fragmented intergovernmentalism are being discussed on the basis of the Amsterdam Treaty, which tries to integrate into Community law forms of co-operation between Member States which draw upon traditional international law approaches." He therefore puts more emphasis on the intergovernmental characteristics which are, however combined in an innovative way with the supranational approach of the EU. 1 0 2 According to De Cruz, "The Techniques of Comparative Law", supra note 43 at 234, "the topic being compared must be placed within the context of the entire legal system from which it is derived". 26 considerations take the form of a case study in flexible integration. It exemplifies the closer cooperation approach by reference to the chemicals policy in Canada and the EU and examines how enhanced cooperation works in Canada and could work in the EU (i.e. 'how the game is played'). The fourth chapter compares the two mechanisms and tries to derive some hypotheses about the determinants of success and failure in mechanisms of flexible integration. I explore i f and how the two systems could inspire each other in order to be more effective and offer suggestions for improvement. The Conclusion will sum up and evaluate the findings of each chapter and situate them in a broader international context. 27 Chapter 2: Harmonization in Canadian Environmental Law I. The Canada-Wide Accord on Environmental Harmonization "Canadian environmental policy is at a turning point, with the federal and provincial governments committed to leaving behind the conflicts that characterized intergovernmental relations concerning the environment in the late 1980s and early 1990s. A new Canada-Wide Accord on Environmental Harmonization [...] promises to enhance environmental protection by providing ongoing mechanisms for intergovernmental coordination and by clarifying and redefining federal and provincial roles."' A. Background The distribution of competences between the federal and the provincial governments is set out in the Constitution Act (1867). The provinces have exclusive jurisdiction over their lands and resources. Environmental legislation has also been enacted under s. 92 (10) on local works and undertakings, s. 92 (13) on property and civil rights within the provinces, and s. 92 (16) on matters of a local or private nature. With the Constitution Act of 1982, provinces were assigned exclusive jurisdiction over the development, conservation, and management of non-renewable resources (s. 92A). Concerning matters of pollution (water, land, stationary air pollution), the provinces are competent insofar as these are civil (not criminal) offences . Exclusive federal powers include two categories: functional and conceptual powers. Functional powers include navigation and shipping (s. 91 (10)), sea coast and inland fisheries (s. 91 (12)), canals, harbours, rivers and lake improvements (s. 108) and federal works and undertakings (s. 91 (29), 92 (10)). Conceptual powers are powers that provide general authority to Parliament to legislate on broadly defined matters which implicitly or by analogy include matters of environmental quality (such as criminal law s. 91 (27); Kathryn Harrison, "Intergovernmental Relations and Environmental Policy: Concepts and Context" in Patrick Fafard & Kathryn Harrison, eds., Managing the Environmental Union (Montreal and Kingston: McGill - Queen's University Press, 2000) 3 at 4 ["Intergovernmental Relations"]. Judith I. McKenzie, Environmental Politics in Canada - Managing the Commons into the Twenty-First Century (Oxford: Oxford University Press, 2002) at 115 [Environmental Politics in Canada]. 28 Peace, Order and Good Government, s. 91, taxation, s. 91 (3), trade and commerce, s. 91 (2) and the Spending Power, s. 91 (1A)) 3 . The environment thus constitutes an area of shared competence between the provinces and the federal government. The overlapping of federal and provincial jurisdiction in several environmental issues (e.g. the environmental assessment processes) lead to tensions. The Constitution is unclear about which level of government is primarily responsible for the environment. It has been argued that both levels of government use this ambiguity "to justify their reluctance to act, when the reality is that environmental authority overlaps"4. The question was how to deal with conflicting rules and standards that can lead to overlap and duplication, costs and conflicts5. Thus, an effort was made to deal with the harmonization of environmental policy throughout Canada by an accord between Provinces and the federal government6. Environmental policy making in Canada can basically be divided into three eras: bipartite bargaining (1968-72), multipartite bargaining (mid-1980s to mid-1990s) and deregulation, destaffing, defunding, and voluntary compliance (mid-1990s -?) . The Canada-Wide Accord was concluded in 1998, in the third era, when, as McKenzie puts it, an ideological shift occurred from "government as protector and service Marie-Anne Bowden, "Jurisdictional Issues" in Elaine L. Hughes & Alastair R. Lucas & William A Tilleman, eds., Environmental Law and Policy, 3rd ed. (Toronto: Edmond Montgomery, 2003) 41 at 42. David R. Boyd, Unnatural Law - Rethinking Canadian Environmental Law and Policy, (Vancouver: UBC Press, 2003) at 260 [UnnaturalLaw]. J. Peter Meekison, "Comment" in Robert Young, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) 69 at 72. Generally the provinces are the environmental policy makers, but the federal government could take a much stronger role than it has to date. Kathryn Harrison argues that "constitutional uncertainty persists primarily because the federal government has taken a narrow view of its own powers" (Kathryn Harrison, Passing the Buck - Federalism and Canadian Environmental Policy, (Vancouver: UBC Press, 1996) at 54 [Passing the Buck]). Boyd states that the Supreme Court of Canada has supported a strong role for the federal government in environmental protection and it is clear that it is (would be) responsible for issues in the national interest (Boyd, Unnatural Law, supra note 4 at 261). He explains that a major reason for the inaction of the federal government is the fear of Quebec separating from Canada, therefore it preferred not to assert its powers to protect the environment. See McKenzie, Environmental Politics in Canada, supra note 2 at 108-114. 29 provider in the environmental arena to government as facilitator for investment" . Since the budget for environmental issues was drastically reduced, governments hoped for efficiency and cost savings through closer cooperation. A single-window approach for environmental regulation was sought, consistent with the agenda of regulatory reform and deregulation that was developed to enhance competitiveness in the increasingly global economy9. Currently, the general regulatory approach to environmental regulation is less coercive. Instead of prohibitions and limitations ('command and control' approach), more emphasis is put on voluntary compliance by industry and the so-called 'right-to-know-approach'10. The Accord was the result of a new spirit of cooperation between the federal and provincial governments, which started in the early 1990s, when both levels of government faced the task of implementing new environmental statutes in a climate of decreasing public interest in environmental issues11. The renewal of the federation in response to the threat of another Quebec referendum on sovereignty was a further important factor pushing the development of the Accord 1 2 . The federal government, in particular, wanted to show Quebec that federalism can work 1 3. Ibid, at 112. Harrison, "Intergovernmental Relations", supra note 1, 3 at 8. Against the backdrop of this approach, it is not surprising that the Accord is not legally enforceable, although this would be legally feasible and, in my view, certainly helpful for achieving effective environmental law and policy. Harrison, "Intergovernmental Relations", supra note 1, 3 at 4. The author explains that the developments in intergovernmental relations in this period are parallel to what happened 20 years earlier. As in the 1980s (because of the federal government's Canadian Environmental Protection Act CEPA 1988, the $3 billion Green Plan in 1990 and the Canadian Environmental Assessment Act CEAA 1992 - initiatives that aimed at giving more authority to the federal government), intergovernmental conflicts arose in the late 1960s and early 1970s when the federal government began entering the environmental field, previously an almost exclusive provincial domain. A series of bilateral accords - which can be seen as predecessors of the CWAEH - restored harmony. Therefore, in the last three decades, "the pendulum has twice swung from cooperation to conflict and back". Harrison, "Intergovernmental Relations", supra note 1, 3 at 4. See for a detailed outline of the historical developments in intergovernmental relations in the environmental field (ibid., 4-12) and Evert A. Lindqvist, "Efficiency, Reliability or Innovation? Managing Overlap and Interdependence in Canada's Federal System of Governance" in Robert Young, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) 35 at 53-57. Harrison, "Intergovernmental Relations", supra note 1, 3 at 8. Clark & Winfield, "Harmonizing to Protect the Environment" supra note 21 at 6, point out correctly that environmental protection 30 The Accord's predecessor, the Environmental Management Framework Agreement (EMFA), was presented as a draft in November 1995 and "shelved" in January 1996 due to strong opposition by environmentalists arguing that the federal government was trying to devolve its responsibilities to the provinces and that lack of regulation was much more of a problem than duplication. No decision rule was explicitly included, meaning that consensus was to be applied. Environmental groups opposed this, since all parties would have a veto, the consequence being "incremental action at best and deadlock at worst" 1 4 . Similar arguments can be made concerning the C W A E H , which is not surprising since the Accord was developed in a "fast track approach" with an approval in principle of the environment ministers already in November 1996, only nine months after the 'end' of E M F A 1 5 . B. The Canada-Wide Accord on Environmental Harmonization (CWAEH) and the Sub-Agreement on Canada-Wide Standards (CWSs) 1. The Canada-Wide Accord on Environmental Harmonization "As a federation, we need to persist in finding effective ways, such as this Council, to collaborate to achieve the collective results expected by Canadians." Hon. Joyce Murray, Minister of Water, Land & Air Protection, British Columbia, CCME President's Message, November 2003, 2. (http://www.ccme.ca/assets/pdf7pres_message.pdf) a) Aims and Content In January 1998, all Provinces except Quebec signed the Canada-Wide Accord on Environmental Harmonization and three sub-agreements. The aim of this initiative is to protect the environment in Canada more effectively through closer co-operation between governments16. must be the primary reason for harmonization and that other reasons brought forward for harmonization either do not exist (such as duplication and overlap) or are about problems (such as national unity) that have nothing to do with the environment. 1 4 See Harrison (citing Clark and Winfield), "Intergovernmental Relations", supra note 13 at 9. 1 5 Ibid, at 10. 1 6 On the motivation to solve the conflicts concerning the different environmental assessment procedures that were sometimes required for a single project see McKenzie, Environmental Politics in Canada, supra note 2 at 119. 31 The Accord's vision is that of "governments working in partnership to achieve the highest level of environmental quality for all Canadians" and its purpose is to provide the framework and mechanisms for doing that. The emphasis on the 'highest level' was put in to demonstrate that the new accord was not about detracting from environmental programs, as environmentalist critics alleged, but rather about enhancing the protection of the environment17. Under the Accord, governments enter into multilateral sub-agreements to implement the agreed upon obligations18. The possibility to conclude regional or bilateral agreements is also included in the Accord 1 9 . Three sub-agreements have been concluded under the Accord: the Inspections and Enforcement Sub-Agreement, the Environmental Assessment Sub-Agreement and the Canada-Wide Environmental Standards Sub-Agreement. The objectives of the Inspections and Enforcement Sub-Agreement are to achieve a high level of compliance with environmental protection laws across Canada and to serve as framework for future bilateral and multilateral implementation agreements. The principle of subsidiarity is central, providing that activities shall be undertaken by whichever government is best situated to deal with a problem. The Accord sets out criteria for this decision. Generally, it can be said that the federal government has delegated most of its responsibilities to the provinces. The Environmental Assessment Sub-Agreement aims at achieving the most effective use of resources for assessment procedures by establishing a single environmental assessment for projects involving more than one jurisdiction. The sub-agreement on Canada-Wide Standards (CWS) allowed the development of standards for several pollutants (such as Benzene, Mercury, Dioxins and Furans, Petroleum Hydrocarbons, Harrison, "Intergovernmental Relations", supra note 1, 3 at 10. Canada-wide Accord on Environmental Harmonization, online: CCME, <http://www.ccme.ca/assets/pdf/cws_accord_env_harmonization.pdf> (March 28, 2004). It would be possible, therefore, to conclude agreements similar to enhanced cooperation in the European Union, where a group of Member States, in the case of Canada provinces and territories, could work together and develop common standards to further environmental protection. 32 Particulate Matter and Ozone). The implementation of these standards has been initiated20. Decisions under the Accord are consensus-based. Each government retains its existing competencies and authorities, but under the Accord, will coordinate with other governments in order to achieve a high level of environmental quality. Every government has its defined responsibilities for environmental performance and has to report to the public on the implementation of agreed upon goals. b) Critique / Discussion in the Literature Opposition to the Accord was intense21 and the merits of the accord were also the subject of controversy in the media2 2. Environmental organizations were not the only opponents: The House of Commons Standing Committee on the Environment and Sustainable Development called on the federal government to delay signing the 23 Accord until further studies on gaps, overlap and duplication could be carried out . The Committee concluded that greater administrative effiency or cost savings through the Accord and Sub-agreements seemed doubtful, that the need for harmonization had not been demonstrated, and that the participation of aboriginal organizations in the 20 22 23 See Besner & Associates (October 2003) Five-Year Review Canada-Wide Accord on Environmental Harmonization, submitted to the Canadian Council of Ministers (CCME), online: <http://wwwxcmexa/assets/pdf7harm_accrd_5yrrvw_rpt_e.pdf> (March 28, 2004) at 1 [Five-Year Review]. Support came mainly from government and industry, "on the basis that it would reduce the costs of overlap and duplication of government environmental protection activity, improve the efficiency of environmental management in Canada, enhance public accountability, and also assist governments in Canada in their efforts to move toward sustainable development", see Report of the Standing Committee on the Environment and Sustainable Development, December 1997, online: Parliament of Canada, <http://ww.parl.gcxa/InfoComDoc/36/l/ENSU/Smdies/Repom/ENSURP01-E.htm>(May10, 2004). For an overview on the history of the harmonization process until 1996, see K. L. Clark & M. S. Winfield, "Harmonizing to Protect the Environment. An Analysis of the CCME Environmental Harmonization Process" (1996) Report, Canadian Institute for Environmental Law and Policy at 4 ["Harmonizing to Protect the Environment"]. See the „Commentary" exchange between Michael Cloghesy & Charles Caccia, "Should we ,harmonize' the environmental rules?", Globe and Mail (29 January 1998) and Anne Mitchell & Mark Winfield, "The accord is a tragedy for Canada's environment", Globe and Mail (2 February 1998). Report of the Standing Committee on the Environment and Sustainable Development, supra note 21. 33 negotiating process had been lacking. It also criticized the decision making by consensus, as leading to the adoption of the lowest common denominator or resulting in deadlock. The Committee recognized that consensus did not mean unanimity, but asked for a clearer articulation of the decision making standard, including a substantial majority of governments24. In addition to this critique, the Accord was challenged in Court . Whether the new intergovernmental cooperation, and especially the Canada-Wide Accord on Environmental Harmonization, is effective, has also been a subject of scholarly investigation and different aspects of the concerns expressed by the Standing Committee have been explored. Boyd argues that harmonization in this area would not have been necessary, because no duplication existed. He concludes that "the hidden agenda behind harmonization involved saving money and placating the provinces, with the result that the Canadian environment suffered"26. Harrison adds that the Standards Sub-agreement primarily aims at uniform ambient environmental quality standards - which will differ according to the environmental conditions in the different provinces and therefore are not very effective - not uniform discharge or product standards27. Although she recognizes that the C W A E H is a remarkable achievement and that the new Accord pays more attention to accountability than its predecessor accords of the mid-1970s, she thinks that the Canada-Wide Accord "presents a risk not only to national The Committee made allusion to the Australian IGAE (Intergovernmental Agreement on the Environment), where a two-thirds majority rule is set up for decision making. The Canadian Environmental Law Association (CELA) claimed the agreements were of no force and effect, since the minister of the environment had exceeded her authority in signing them (argument which was denied by the Federal Court of Appeal) or had fettered her discretion by agreeing not to act in matters withing her authority. The court held that the latter argument was premature, since there was no evidence to date. See Canadian Environmental Law Association v. Canada (Minister of the Environment) (1999), 30 C.E.L.R. (N.S.) 59 (F.C.T.D.). Boyd, Unnatural Law, supra note 4 at 243. Kathryn Harrison, "The Canada-Wide Accord: A Threat to National Standards", (January 1998) 6:1 Canada Watch, 13, online: <www.robarts.yorku.ca/canadawatch/vol_6_l/harrison.htm> (July 31, 2004) ["A Threat to National Standards"]. 34 standards, but to environmental protection generally" Conrad claims that the Sub-Agreement diminishes the ability of the federal government to raise its standards in areas of concurrent jurisdiction to offset low provincial standards . Harrison further argues that it may encourage a devolution of responsibility for environmental protection from the federal government to the provinces - which, i f both governments are not willing to allocate sufficient resources, will result in a weakening of environmental protection30. She adds that the Canada-Wide Accord makes it difficult "for the federal government to step in i f a province fails to fulfill its obligations, or for a province to do so in the event of federal government failure"3 1. The tendency of devolution was criticized as well against the backdrop of a Canadian Supreme Court Decision of 1997 which highlighted the importance of a strong federal role in environmental management by upholding the validity of the toxics 32 provisions of the Canadian Environmental Protection Act (CEPA) . The constitutional validity of a strong federal role in environmental protection should therefore have been reflected in the Accord, instead of making "equal partners" of the federal government, on the one hand, and the provincial governments, on the other hand. Contradicting these critiques, Ian Glen, Deputy Minister of Environment Canada, emphasized on his second appearance before the Committee that "devolution Alexis J. Conrad, Assessing the Adequacy of Intergovernmental Collaboration as an Organizing Principle for Environmental protection (MA Thesis, Queen's University, 1999) at 63 [Adequacy of Intergovernmental Collaboration]. Kathryn Harrison writes that provincial support for the development of common standards stems from a desire to avoid federal standards and to dilute federal influence, see Harrison, Passing the Buck, supra note 6 at 143-144. Beauchemin agrees and advocates that the purpose of the harmonization accord was not to provide better environmental safeguards or enhanced environmental protection to Canadians, but that the rationale behind the harmonization initiative and primary objective of the Accord was the devolution of federal responsibilities in this area to the provinces (Marc Beauchemin, of the Centre quebecois du droit de l'environnement cited in Report of the Standing Committee on the Environment and Sustainable Development, supra note 21. Harrison, "A Threat to National Standards", supra note 27. She concludes this article, "Intergovernmental agreement should not be the end, at least not the only end, in itself. R. v. Hydro-Quebec (1997) 3 R.C.S. 213. "It is a welcome decision in view of the absolute lack of interest shown by the provinces in the protection of the environment", writes Jean Leclair, "The Supreme Court, the Environment and the Construction of National Identity: R. v. Hydro-Quebec" (1998) 4:2 Review of Constitutional Studies 372 at 375. 35 is not a part of the harmonization approach. A l l jurisdictions will continue to maintain their legislative authorities and use them as they feel it's necessary." 3 3 As VanNijnatten notes, the accord is indeed well furnished with phrases such as " i f a consensus is not achieved in any given area, governments are free to act within their existing authorities" and "all governments retain their legislative authorities"34. Another argument is that the consensus rule for developing Canada-wide standards will lead to fewer and weaker standards, since every province will have a veto, "including those seeking lax standards to protect vulnerable industries"35. Conrad points out, however, that the "invocation of a consensus decision-rule is seen to be a major improvement over unanimity or majoritarian decision-rules", because the latter would lead to the lowest common denominator standards. He states though, that the decision rule used by the C C M E is not clear on what consensus entails, stating solely that "although all participants may not agree with all aspects of the solution, consensus is reached i f all participants are willing to live with 'the total package'"36. He explains that this will most probably lead to decision making on the basis of unanimity37. The critique that consensus decision making leads to the lowest common Ian Glen, Deputy Minister of Environment Canada, argued for the Accord (cited in Report of the Standing Committee on the Environment and Sustainable Development, supra note 21). See also David Cameron & Richard Simeon, "Intergovernmental Relations in Canada - The Emergence of Collaborative Federalism" (Spring 2002) 32:2 Publius 49 at 60. Debora L. VanNijnatten, "Intergovernmental Relations and Environmental Policy Making" in Fafard, Patrick C. & Harrison, Kathryn, eds., Managing the Environmental Union — Intergovernmental Relations and Environmental Policy in Canada, (Montreal & Kingston: McGill -Queen's University Press, 2000) 23 at 38 ["Environmental Policy Making"]. This needs to be seen, however, against the background of the constitutional order, which has to be respected. Carl Hrenchuk, Executive Director CCME, points out how difficult constitutional change in Canada is and explains that because the existing authority has to be respected by the Accord, the formula "in no way alters the powers of environmental management" has to be put in every time the CCME is acting, telephone interview, Thursday, June 17, 2004. Harrison, "A Threat to National Standards", supra note 27. Conrad, Adequacy of Intergovernmental Collaboration, supra note 29 at 62, citing Carl Hrenchuk, Director, Programs, CCME, Sept. 2, 1999. The similarity to the EU decision making process is obvious, since "package deals" are effectively used in the European Union for various issues. Hrenchuk claimed, however, that this would not lead to lowest common denominator policy, because a province proposing such a low standard would be "faced across the negotiation table with other jurisdictions that could not live with that as a result, and whose public and stakeholders would not readily allow them to do. Ibid, at 63, citing Carl Hrenchuk, Director, 36 denominator is, according to the C C M E paper on consensus, only pertinent in instances where the process is not properly run or time pressures are too great. It is admitted, however, that in case of "issues and outcomes where participants believe that remaining outside the decision is [...] a better alternative to a negotiated agreement", the agreement should just go as far as possible toward meeting the interests of the stakeholders"38. Since that would probably not be very effective, it could be worth thinking about a mechanism to address such issues. It has to be noted, that while the formal requirement is decision making by consensus39, the implementation provides for flexibility 4 0. Harrison criticizes the fact that the Standards Sub-agreement gives each jurisdiction complete flexibility to decide how it wants to achieve the agreed upon environmental quality goals4 1. One could also argue contrarily and say that because of this flexibility it is not imperative that the lowest common denominator emerges from the cooperation. In my opinion, the design of the mechanism does at least not preclude high national standards and their implementation by other provinces42. Programs, CCME, Sept. 2, 1999 and pointing out that pressure from industry to keep standards low would probably prevail nonetheless. Canadian Council of Ministers (CCME), "Strengthening Consensus - Reinforcing the CCME Consensus Decision-Making (CDM) Model", online: CCME, <http://www.ccme.ca/assets/pdf/strengthening_consensus_e.pdf> (August 2, 2004) at 2. Canada-Wide Accord on Environmental Harmonization, Principle 8. This can be illustrated by an example given in the Five-Year Review of the Canada-Wide Accord (at 15): Currently, the setting of a Canada-Wide Standard on Mercury is being discussed and the goal is to reduce mercury emissions from the coal-fired electric power generation sector by 2010 and to align with the U.S. standards for mercury. But: "Provincial applications of the national target or standard may vary, with some jurisdictions doing mor or less depending on the control technologies for different coal types" (Besner & Associates, Five-Year Review, supra note 20 at 8). This is an approach that can be compared to the implementation of EU directives. These set binding goals but leave the implementation measures up to the Member States. Of course the public may lose confidence in such standards, when governments are free to decide whether they want to enforce agreed limits. See Alastair R. Lucas & Cheryl Sharvit, "Underlying Constraints on Intergovernmental Cooperation in Setting and Enforcing Environmental Standards" in Fafard & Harrison, supra note 34, 133 at 134 ["Underlying Constraints"]. Principle 11 of the Accord allows that parties can exceed standards (a clause prohibiting to do less than the agreed upon standards should be put in as well). 37 Finally, VanNijnatten hopes that Canada can employ the lessons learned from its own previous experiences and those of other federations (such as Australia 4 3 and Germany) that face similar challenges and designed workable institutional solutions "to forge a path to effective environmental governance"44. 2. Canada-Wide Environmental Standards Sub-Agreement The Standards Sub-agreement serves as a framework for federal, provincial and territorial Environment Ministers to cooperatively develop common environmental standards across Canada. The Sub-agreement sets out principles for the identification of Canada-wide environmental priorities and the development of such standards. The Sub-agreement does not change the jurisdiction of governments nor delegate legislative authority45. a) How are Common Standards Developed? The Environment Ministers, through the C C M E , establish priorities for standards and set a timeframe for their development and implementation. They establish workplans for dealing with issues of nation-wide concern. The Canada-Wide Environmental Standards Sub-Agreement46, for example, makes it incumbent upon the Council of Ministers to establish priorities for the development of standards. Governments support the ministers in identifying issues of Canada-wide significance with potential impacts on the environment and human health. Once the priorities are set, jurisdictions cooperatively develop the type of standard they consider to be appropriate for the designated environmental contaminant or issue. The Sub-agreement recommends a timeframe of six months to agree upon the the process for the development of a standard, which depends on the case. It can be a process internal For an evaluation of the CWAEH in comparison with the Australian model, see Marshall Ogan, "An Evaluation of the Environmental Harmonization Initiative by the Canadian Council of Ministers for the Environment" (December 2000) 10:1 J.E.L.P. 15. VanNijnatten, "Environmental Policy Making", supra note 34 at 44. See the general information on the Sub-agreement, online: CCME, <http://www.ccme.ca/initiatives/standards.html> (May 5, 2004). Canada-wide Sub-Agreement on Environmental Standards, online: CCME, <http://www.ccme.ca/assets/pdf/cws_envstandards_subagreement.pdf> (March 28, 2004). 38 to the C C M E , but other fora of intergovernmental cooperation can also be agreed upon. The opportunities for public participation will also be provided on a case by case basis. Consultation mechanisms can include advisory groups, workshops, mail-outs and website posting of information and public stakeholder consultation (participants include industry, municipal, health, environmental and Aboriginal groups). Principle 5 of the Accord states that "openness, transparency, accountability and the effective participation of stakeholders and the public in environmental decision-making is necessary for an effective environmental regime". This stands in a certain contrast to the character of collaborative federalism that the Accord shows, where the lines of accountability and responsibility are blurred47 The underpinning principles for Canada-wide standards are contained in section 3 of the Sub-agreement: pollution prevention approach, sound science, precautionary principle, equity (consistent level of environmental quality across Canada), results-oriented, flexibility (the kind of implementation measures is at the discretion of the responsible government). Generally, standards presented to Ministers contain48 • a numeric limit (e.g., ambient, discharge, or product standard); • a timetable for attainment; and • a framework for monitoring progress and reporting to the public. Each standard is accompanied by a list of preliminary actions to attain the standard. b) What Kind of Standards can be Developed? According to the Sub-agreement (section 2.1), standards encompass "qualitative or quantitative standards, guidelines, objectives and criteria for protecting the environment and human health". Primarily, ambient environmental standards "for the quality of air, water, soil, biota, other media, and for other components of ecosystems as well as ecosystems themselves" are the focus of the Sub-agreement. As Harrison points out, the primary focus on standards for ambient environmental quality, rather 4 7 Mark S. Winfield, "Environmental Policy and Federalism" in: Herman Bakvis & Grace Skogstad, eds., Canadian Federalism - Performance, Effectiveness, and Legitimacy (Oxford: Oxford University Press, 2002) 124 at 133. 4 8 Online: CCME, <http://v^vw.ccme.ca/initiatives/standards.html> (May 5, 2004). 39 than discharge or product quality standards, is "a significant and somewhat surprising departure from federal and provincial governments' historical emphasis on unifrom discharge standards as a means to prevent a 'race to the bottom'" 4 9. The problem is that where a low level of pollution for a specific substance exists, the discharge standards will be different from places with a high level of pollution. This does not make it very effective in terms of environmental protection. The Sub-agreement offers the possibility (section 2.3) to include, where governments agree and where appropriate, discharge specifications on the quantity and/or quality of a release of a specific type/source of pollution as well as product standards. Product and discharge standards may include specifications on the quantity or quality of a release of a specific type or source of pollution (such as waste specifications for a substance), or the content and use of a commercial product50. The bases for decision are sound science and the principles of the C W A E H . So far, the C C M E has adopted Canada-wide standards on fine particulate matter, ground-level ozone, benzene, mercury51, dioxins and furans52 and petroleum hydrocarbons in soil. c ) H o w a r e t h e CWSs I m p l e m e n t e d ? The Sub-agreement differentiates between environmental issues limited to intraprovincial/intraterritorial effects where the responsible government has discretionary power in deciding on specific actions it takes to meet its obligations, on the one hand, and transboundary issues or issues where an integrated Canada-wide approach is also required for implementation, on the other hand. In the latter case, governments have to agree on the timeframe and the kind of measures for attainment Harrison, "Intergovernmental Relations", supra note 1, 3 at 11. The Standing Committee included this point in its recommendation No. 10, asking to focus on discharge standards instead, see Report of the Standing Committee on the Environment and Sustainable Development, supra note 21. Online: CCME, <http://www.ccme.ca/initiatives/standards.html?category_id=45> (July 7, 2004). From incineration and base metal smelting, lamps and dental amalgam waste. Additional standards are being developed for mercury emissions from electric power generation. From waste incinerators and pulp and paper boilers burning salt-laden wood, as well as emissions from iron sintering and steel manufacturing. Additional standards are under development for dioxins and furans emissions from conical waste burners. 4 0 of the standards endorsed by the Ministers . Governments develop joint workplans including the "clear articulation of the desired environmental outcome, the indicators, milestones and time frames for attaining the agreed-upon standard; the actions that need to be taken to meet the agreed upon standard; an outline of results-oriented obligations of each government for implementing these actions" (section 6.4 Sub-agreement). What kind of measures can be undertaken to implement the standards? Section 6.5 enumerates regulatory standards, codes of practice, guidelines, memoranda of understanding, voluntary initiatives, economic instruments and pollution prevention planning. One is immediately tempted to ask how effective standards can be when such a diversity of measures for implementation can be taken in different jurisdictions without there being legally binding goals with a control mechanism supervising the implementation54. d) What Accountability Mechanisms are Built in? The question of accountability is one of the crucial points55. According to section 4 of the Sub-agreement governments agree to report to the public on Canada-wide standards and their progress in attaining them. Furthermore, when one order of government has accepted obligations and is discharging a role under the Sub-agreement, the other order of government will not act in that role during the period set up in the relevant agreement (legislative authorities are, however, not altered by the Sub-agreement). This provision has met with particularly fervent critique since it can be looked at as a circumvention of constitutional amendment by devolving powers from the federal government to provincial/territorial governments. In case a government is unable to fulfil its obligations, the concerned governments shall develop an alternative plan to ensure that no gaps are created within the 5 3 Points 6.1 and 6.2 of the Sub-agreement. 5 4 Clark & Winfield, "Harmonizing to Protect the Environment" supra note 21 at 19, advocate that implementation of a standard in order to be effective, should mean incorporation into new and existing regulations and that voluntary programs should not be acceptable for implementing a Canada-wide standard. 5 5 Ibid, at 14, 16, 17. 41 environmental management regime. Such an alternative plan has to be completed within six months56. An alternative plan will include the issues to be addressed, collaborative mechanisms, a plan of action and timeframe for implementation. This is all that the Sub-agreement contains on accountability. According to sector 7, the "Ministers, through C C M E , will review progress, address issues and effectively administer the requirements" of the Sub-agreement. The Sub-agreement is not legally binding. There is no provision on an independent supervisory body or Court procedure helping to enforce set standards. Voluntary compliance is, however, not sufficiently effective57. An Annex to the C W A E H defines accountability and clarifies the commitments in the Accord and sub-agreements in relation to the administrative and legal accountabilities of the governments and ministers within their respective jurisdictions. Guidelines and principles are set out whereby accountability will be promoted, such as establishing public goals, meaningful participation of interested parties and regular public reporting. The Annex came into effect in September 199858. The only external "control" of implementation could therefore come from the public's reaction to the reports on progress according to section 4.3 of the Sub-agreement. In contrast to the citizen submission process, as it exists in the framework of the N A A E C (North American Agreement on Environmental Cooperation, the environmental side agreement to NAFTA) , no active role can be taken by individuals to challenge ineffective implementation and the lack of achievement. So it seems that citizens enjoy more democratic rights under the international agreement N A A E C than Several questions come up regarding these provisions - does being unable also include being unwilling to fulfil its obligations? Who decides if such a situation is occurring? And from when on do the six months for the alternative plan start to count? David McLaren, "A Briefing on the Harmonization Accord" (October-December 1998) 23:4 Intervenor, online: <www.cela.ca/newsletter/detail_art.shtml?x=1452> (July 7, 2004) cites data from KMPG studies in 1995 and 1996 which showed that industry ranked voluntary programs as one of the least significant reasons for improving environmental performance and compliance with regulations as one of the most important and argues that the provinces are susceptible to their industry's wishes and goals, since industry provides jobs. Canadian Council of Ministers (CCME), Annex to the Accord on Environmental Harmonization, online: <http://www.ccme.ca/assets/pdf/annex_to_accord_e.pdf> (August 2, 2004). 42 u n d e r the C a n a d i a n a g r e e m e n t ( C W A E H & s u b - a g r e e m e n t s ) w h e r e i t i s o n l y d u r i n g the d e v e l o p m e n t o f s t anda rds tha t a s o m e w h a t m e a n i n g f u l p a r t i c i p a t i o n i s p o s s i b l e . I n the c o n t e x t o f the C W A E H , o n e c o u l d t h e r e f o r e i m a g i n e a p r o c e s s w h e r e b y a n o t h e r p a r t y o r a c i t i z e n c a n m a k e a c o m p l a i n t a g a i n s t a n o f f e n d i n g p a r t y . A t h i r d p a r t y b o d y c o u l d t h e n i s s u e a f a c t u a l r epo r t , s u c h as i n the c i t i z e n s u b m i s s i o n p r o c e s s , t h e r e b y i n c r e a s i n g at l eas t p o l i t i c a l p r e s s u r e 5 9 . e) What Degree of Public Participation Does the Accord Provide? W h a t k i n d o f p a r t i c i p a t i o n i s p o s s i b l e f o r the p u b l i c ? P r i n c i p l e 5 o f the A c c o r d states that " o p e n n e s s , t r a n s p a r e n c y , a c c o u n t a b i l i t y a n d the e f f e c t i v e p a r t i c i p a t i o n o f s t a k e h o l d e r s a n d the p u b l i c i n e n v i r o n m e n t a l d e c i s i o n - m a k i n g i s n e c e s s a r y f o r a n e f f e c t i v e e n v i r o n m e n t a l m a n a g e m e n t r e g i m e " a n d P r i n c i p l e 6 r epea t s t h i s f o r the c o o p e r a t i o n w i t h A b o r i g i n a l p e o p l e . I n p h a s e 1, t he p r i o r i t y s e t t i n g , t he p u b l i c i s a s k e d f o r t h e i r c o m m e n t s o n the l i s t o f c a n d i d a t e p r i o r i t i e s , i n c l u d i n g t h e i r v i e w s o n the r e l a t i v e d e g r e e o f s i g n i f i c a n c e a n d t h e n e e d f o r a c t i o n o n e a c h c a n d i d a t e p r i o r i t y . L a t e r i n the p r o c e s s , o n c e M i n i s t e r s ag ree o n t h e C W S p r i o r i t i e s , the l i s t o f p r i o r i t i e s a l o n g w i t h the i n f o r m a t i o n u s e d i n the s e l e c t i o n s tage i s m a d e a v a i l a b l e to the p u b l i c 6 0 . I n p h a s e 2, t he s t a n d a r d s d e v e l o p m e n t , t he p u b l i c w i l l h a v e a n o p p o r t u n i t y to r e v i e w o p t i o n s f o r the C W S , i n c l u d i n g p o s s i b l e i n i t i a l a c t i o n s , t i m e l i n e s , a n d r e p o r t i n g p r o t o c o l s . T h e p r o c e s s f o r p u b l i c i n v o l v e m e n t i s s p e c i f i c to e a c h p r i o r i t y . P u b l i c i n p u t i s g a t h e r e d i n v a r i o u s w a y s , s u c h as t h r o u g h m u l t i s t a k e h o l d e r w o r k s h o p s a n d t e c h n i c a l a d v i s o r y g r o u p s . T h e p u b l i c c a n a l s o r e g i s t e r w i t h C C M E ' s l i s t s e r v to a u t o m a t i c a l l y r e c e i v e e m a i l n o t i f i c a t i o n o f n e w d e v e l o p m e n t s p o s t e d to C C M E ' s w e b s i te . I n a d d i t i o n , t he p u b l i c i s i n v i t e d to c o m m u n i c a t e w i t h t h e C W S c o n t a c t s i n t h e i r j u r i s d i c t i o n f o r fu r the r i n f o r m a t i o n o n a s p e c i f i c C W S . D u r i n g p h a s e 3, In this direction also Clark & Winfield, "Harmonizing to Protect the Environment" supra note 21 at 19. The executive director of CCME, Carl Hrenchuk, claimed that political pressure could be added any time, since the ministers commit to certain standards, with a timeline and reporting schedule, in an open and transparent way. any citizen could therefore complain to her government, telephone interview, Thursday, June 17, 2004. See Proposed Process for CWS Priority Setting, CCME, online: CCME, <http://www.ccme.ca/assets/pdf7prpsdproccwsprtystngrvsd_e.pdi> (July 7, 2004). 43 implementation, individual governments are responsible for public consultations and therefore opportunities for public input vary with the needs of individual governments61. f) Is the Mechanism Effective? The two-year review concluded that the C W A E H was having an impact on environmental management in Canada. At that stage (2000), the achievements were mainly process related. Intergovernmental cooperation was strengthened. The Accord was having effects on policy development as was visible at the federal level, where the princples and processes of the C W A E H were affecting the management of toxic substances and monitoring and reporting. Since the Canada-wide standards were not yet formally adopted, the benefits of their development were at that time mainly the sharing of resources and exchange of information. On toxic substances, the Accord had facilitated the flow of information between federal and provincial/territorial agencies and non-governmental stakeholders . The five-year review was already much more pronounced on the effects for the environment. Concerning the Sub-agreement on standards it stated that the environmental benefits of this agreement were clear to all stakeholders. It identified a clearly positive impact of the Accord and its sub-agreements on environmental management in Canada. Cooperation between jurisdictions has been increasing and improved environmental standards and environmental quality have been achieved, according to the Five-Year Review 6 3. It is difficult to assess how much has really been achieved - information tends to be either very positive (when coming from the CCME) or very negative, respectively 6 1 See also C C M E , Guidelines for Consultation and Partnerships, online: C C M E , <http://www.ccme.ca/assets/pdf7gdlns_consultos_partnshps_stkhldrs_e.pdf> (August 2, 2004). 6 2 Canadian Council of Ministers (CCME) (June 2000) Two-Year Review of Canada-Wide Accord on Environmental Harmonization at 17. 6 3 Besner & Associates, Five-Year Review, supra note 20 at 20-21. The main area for improvement identified by the review was the transparency of the implementation. Carl Hrenchuk mentioned that there were still issues between governments with regard to inspection and enforcement This Sub-Agreement has not yet yielded the aimed at results yet, telephone interview, Thursday, June 17, 2004. 44 non existent (publications about the Accord stop pretty much at 2000). Environmental organizations do not seem to follow up on the process, at least not in a publicly accessible way 6 4. C . R i s k s a n d O p p o r t u n i t i e s As seen, the Accord has been strongly criticized as being a pretext for devolution of federal responsibilities to the Provinces and obscuring the responsibilities in the environmental field as a whole - thereby leading to weaker environmental protection65. Another problem seems to be that the federal government renounced its ability to step in when provincial governments are not fulfilling their tasks. It is possible that this is a consequence of the collaborative federalism approach, and more particularly its characteristic of there being two orders of government working together as equals. The problem of accountability and the lack of democratic legitimacy brought forward in some of the criticisms corresponds to the critique of executive federalism as seen above. If Canadian federalism as a whole is criticized for unduly concentrating governmental power in the hands of the political executive, how could the Accord then be different in that respect? In a way it just seems to fit the bigger picture (which of course is no excuse, but explains why it is designed the way it is). Some efforts have been made to address these issues. Public participation in the development of standards, for example, has been improved by offering the opportunity to take part in the policy-shaping on the internet (website of the CCME) . Although the decision making still occurs in an unelected body at ministerial level and therefore the democratic legitimacy of the policy results may well be questioned, there are thus mechanisms in place allowing at least for a certain level of public involvement. 6 4 I attempted to contact environmental organizations about this matter. While they were very helpful in locating literature about the Accord, they did not possess any newer material of their own. 6 5 See for example Boyd, Unnatural Law, supra note 4 at 242, 266; Harrison, "A Threat to National Standards", supra note 27. 45 The fears about the ineffectiveness of the Accord have also proven at least partly wrong: Under the Sub-Agreement on Standards, six Canada-wide standards have been developed and are being implemented. While this may be only a modest achievement, it nonetheless illustrates that flexible intergovernmental cooperation in this area can work and can lead to effective environmental policy. As the Five-Year Review of the Accord concludes, the resultant standards are not lowest common denominator solutions, but are "fully comparable to other measures internationally"66. It is doubtful whether the provinces would individually have adopted such standards 67 or even taken any initiative in these matters . 1. Risks The Accord is perceived as an attempt of the federal government to devolve responsibilities to the provinces and try to "stay out" of environmental matters -although a recent Supreme Court case68 stated clearly the extended competencies that the federal government would have to protect the environment. For the environment, this could lead to a negative outcome in the sense that none of the two levels of government feel responsible and are held accountable for the state of the environment. A particular weakness of the Accord, and therefore also a risk for leading to a sub-optimal result, is its non-binding nature. Although one could argue that the Agreement on Internal Trade (AIT), for example, worked just as well or even better without being legally binding, this argument cannot be transposed as such to the environment. When the economic incentive is lacking to achieve a certain goal, I consider it necessary to use the law's framework to push parties to comply with what was agreed and to offer a way of holding them accountable for their actions or non-actions. Besner & Associates, Five-Year Review, supra note 20 at 21. Not many references to relevant international measures are given, however. Hrenchuk admits that no study has been undertaken so far, telephone interview, Thursday, June 17, 2004. Winfield, "Environmental Policy and Federalism", supra note 47, 124 at 133, argues, however, that the standards in some cases are even lower than those in place before. R. v. Hydro-Quebec (1997) 3 R.C.S. 213. 46 The Canadian Council of Ministers can be "best characterized as a decision-through-consensus body; however, any decision/policy/agreement which is adopted cannot be imposed on any dissenting jurisdiction"6 9. Regarding the decision making procedure in intergovernmental negotiations, it is obvious that i f every province enjoys a veto 70 right, it is highly probable that no joint solution will be found in conflictual cases . The C W A E H sets out the decision rule in Principle 8: "Decisions pursuant to the 71 Accord will be consensus-based....". The advantage of consensus is to achieve better implementation discipline, because all the parties have agreed. The disadvantage is that it can lead to lowest common denominator solutions. Solutions to that problem are either different procedural rules (such as majority voting) or opting out provisions, that provide for flexibility in case not all provinces are immediately ready to adopt a certain uniform measure. Flexible integration has often been used for Quebec72. A majority rule would be preferable - even i f it would not be used every time, since it could at least serve as a kind of "threat" to reluctant parties and maybe 7^  help to achieve more progressive compromises. Clark and Winfield propose "the most obvious model", i.e. two thirds of the provinces and territories, representing 50% of the population plus the federal government. Another danger is the de facto amendment of the Constitution, because the C W A E H allows for the establishment of national policies jointly decided by the two orders of government, a cooperation that could however be a useful innovation in the conduct Besner & Associates, Five-Year Review, supra note 20 at 1. Patrick Fafard, "Environmental Harmonization: A Guide to the Future of Canadian Federalism?" (January 1998) 6:1 Canada Watch 15 ["Environmental Harmonization"], mentions for EMFA that a decision rule was not established, i.e. unanimity would have been almost certain, meaning that every party has a veto, likely to cause very slow decision-making process. As is also put forward in the context of the Council of Ministers of the EU - which factually decides by consensus, even when a majority rule is applicable, see for example Philipp Dann, "Looking Through the Federal Lens: The Semi-parliamentary Democracy of the EU" Jean Monnet Working Paper 5/02 (New York: NYU School of Law, 2002). Martin Painter, "Canada" in Brian Galligan & Owen Hughes & Cliff Walsh, eds., Intergovernmental relations and public policy (Sidney: Allen&Unwin, 1991) 88 at 100. Clark & Winfield, "Harmonizing to Protect the Environment" supra note 21 at 18. As they point out, this model is also used for general constitutional amendment and the Canada Pension Plan. 47 of intergovernmental relations . An increase in the democratic deficit of Canadian governments is a further risk. The extended use of intergovernmental agreements challenges democratic accountability . Less open, less transparent, and inherently less democratic. Intergovernmental policymaking exacerbates the democratic deficit 77 of contemporary governance . Lastly, a great risk lies in the flexibility in implementation. It is hard to believe that it will not be used to circumvent agreed upon standards or goals. While different measures can be chosen for attaining a certain result, the goal itself should not be flexible. Why should a government be given the possibility of agreeing to a specific standard but then not be bound by this agreement? It would be clearer and more transparent, i f those who want to go ahead, do it - and others, that are not ready yet, follow later on and join the common standard. 2. Opportunities In the best case, the stated objectives of the Accord - enhanced environmental protection (the highest level of environmental quality); sustainable development; Fafard, "Environmental Harmonization", supra note 70. The only place in the Accord, where the concept of equal partners is obvious, is point 2 under the objectives of harmonization, where an "environmental management partnership" is mentioned - and of course in the consensual decisionmaking. The freedom to act within their sphere of sovereignty as they deem right is, however, provided for both levels of government by Principles 9 of the Accord ("nothing in this Accord alters the legislative or other authority of the governments or the rights of any of them with respect to the exercise of their legislative or other authorities under the Constitution of Canada), Principle 11 (a government can still introduce more stringent environmental measures), as well as under the rules on sub-agreements point 8 (if no consensus is reached, each government is free to act within its existing authority. Democratic deficit is a term that is commonly used for the critique of the decisionmaking in the EU. "By the usual standards of intergovernmental negotiating, the development of the EMFA (predecessor of CWAEH) was a remarkably open and consultative process - However, the process of negotiation and decision-making processes proposed by it are still subject to criticism on democratic grounds" (Fafard, "Environmental Harmonization", supra note 70- he mentions the concept of national policies (instead of federal, see on this distinction also Harrison, "Intergovernmental Relations", supra note 1, 3 at 9), that was introduced by EMFA, as a possibility for reforming Canadian intergov. Relations - but this was not transferred to the CWAEH). These are all problems of executive federalism in general and of these mechanisms of collaborative federalism in particular. But it needs to be acknowledged that the process is already much more open than it probably is in "usual" intergovernmental relations. 48 greater effectiveness, efficiency, accountability, predictability and clarity of environmental management for issues of Canada-wide interest through cooperation, joint capacities and expertise - will be achieved. , Public participation can be seen as enhanced by the Accord and is probably already more developed than in usual executive federalism decision-making. D. Critical Assessment In terms of executive federalism, the Accord is an example of the emerging trend of collaborative federalism. Winfield describes it as a response to the competitive federalism that prevailed in the environmental area in the early 1990s. He says the time between 1998 and 2000 has marked "the most important developments in 78 federalism and environmental policy in Canada of the past 30 years" . Lucas & Sharvit point out that the collaborative model contains a legal trade-off: On the one hand, the obligations in an intergovernmental agreement must be formulated broadly, so that they "survive potential constitutional challenges for binding future governments"79. On the other hand, in order to be enforceable, quite specific language would be needed which is neither the case in the Accord nor in the Sub-Agreements. However, as shown for the environmental field, collaborative federalism can, despite heavy criticism, lead to effective joint policy making. This conclusion does of course not preclude that competitive federalism could lead to more effective outcomes regarding the quality of the environment, but it might not do so. Therefore, given its advantage of 'obliging' the people that make up the executives to meet and discuss 80 issues, collaborative federalism seems at least not to be the worst solution . If it is Winfield, "Environmental Policy and Federalism", supra note 47 at 124. The Accord was furthermore a model for the reform of other areas of shared jurisdiction (social policy, for example -which is a similarity to enhanced cooperation, since social policy is a potential area for its application). Lucas & Sharvit, "Underlying Constraints", supra note 46 at 133. Fafard, "Environmental Harmonization", supra note 70 points out that the efforts in environmental policy can be seen in the bigger context of the reform of the federation and show well the possibilities and dangers associated with the redesign of Canadian intergovernmental relations. 49 true that the successes of the Accord in terms of effective standards are "a function of 81 a few officials who drove things forward on specific issues" at least there is a forum in which these officials meet and discuss things and such a dynamic can develop, which then can be translated into achievements within the framework of the Accord. II. Actual results of the Sub-Agreement on Canada-Wide Environmental Standards The aim of this section is to explore what impact the the C W A E H has on environmental protection in Canada. I will focus on the outcomes of the sub-agreement on standards. The sub-agreement on Canada-wide standards is supposed to provide a regulatory tool for the management of environmental issues of national interest. The jointly developed standards are intended to be achievable targets that will reduce health and environmental risks within a specific timeframe. Canada-wide standards fall under the category of Environmental Quality Objectives under the Canadian Environmental Protection Act (CEPA 1999)82. Since 1998 when the sub-agreement on Canada-wide standards was concluded, standards for six substances (particulate matter, ground level ozone, benzene, mercury, dioxins and furans, petroleum hydrocarbons) have been developed and continue to be developed. The status of each substance and the CWSs are published on the C C M E website. A number of provinces publish their implementation plans as well 8 3 . Governments have to issue progress reports for the public. Mark Winfield, personal correspondence per e-mail, July 9, 2004. This statement seems to confirm what Smiley wrote about executive federalism in general, namely that executive federalism was and is significantly shaped by the complex interplay of human personalities and that its features really depend on the dominant actors in place, Donald V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 99. They represent only one route for developing environmental standards, other mechanisms for national action such as codes of practice and guidelines are not rendered obsolete. CWSs provide an important new tool for specific cases, „where concerted, consistent and timely national action is required", online: CCME, <http://www.ccme.ca/initiatives/standards.htrnl?category_id=45> (July 7, 2004). The relevant information is available at the CCME website (www.ccme.ca) under the individual standard information. 50 Much of the information in this part is based on the five-year review of the Canada-wide Accord . A . Benzene Benzene is considered a non-threshold toxicant, which means that at any level of exposure there is some probability of harm (as, for example, causing cancer). In June 2000, the Council of Ministers endorsed a Canada-wide standard for benzene (Phase 1) and the further development of reduction targets for emissions (Phase 2). In September 2001, the latter targets were adopted. For phase 1 a 30 % reduction in total (national) benzene emissions by the end of 2000 (based on 1995 emission inventory levels ) was agreed upon. For phase 2, two different standards apply, one for existing facilities (addressed under phase 1), with the objective to achieve additional emissions reductions from 1995 levels of 5.8 kilotonnes per year (15%) by 2010. The second standard, for new and expanding facilities, prescribes the use of best available pollution prevention and control techniques (BAT), based on what sector-specific Best Management Practices, jurisdictional regulations or other air issue programs recognize as BAT. 1. Implementation Phase 1 was implemented through emission reductions in five primary sectors (Oil O f and Gas, Transportation , Petroleum Refining, Chemical Manufacturing, Steel Manufacturing). Additional emission reductions were expected as side-effects of the implementation of other CWSs (particulate matter and ozone, dioxins and furans) Besner & Associates, Five-Year Review, supra note 20. One expert, Mark Winfield, called the review "a bit of a joke", since there were no actual evaluative criteria, nor independent external assessment, personal correspondence per e-mail, July 9, 2004. Unfortunately, I could not find a comparable assessment of the achievements from an environmental organization opposed to the Accord to compare the evaluation in the Five-Year Review, which is obviously fairly positive, with something of a more critical approach. Motor vehicle emissions are responsible for up to 83 per cent of all benzene emissions in Canada, petroleum refining and chemical processing on the other hand contribute less than 10 per cent, see McKenzie, Environmental Politics in Canada, supra note 2 at 212, with further references. The author adds that beginning in 2004, there will be stricter emission standards in place for cars and trucks (ibid, at 213). 51 applied to certain sources (e.g. residential wood combustion, wood products industries, transportation and steel). Phase 2 continued existing initiatives from phase 1 to attain a further six kilotonne reduction and promoted the application of Best Management Practices to new and existing facilities. Implementation of phase 2 also includes determining supplementary reductions achieved through other CWS initiatives, establishing improved sector-specific data and monitoring and reporting activities. Implementation included voluntary action by the source sectors, regulations on cleaner fuel, and a mix of regulation and policy direction by the governments. Emission reductions through the requirement of approval were considered to be equivalent to regulation on reductions. Ontario, for example, besides continuing successful Phase 1 activities, contributes to the achievement of the national objective by its expanded Drive Clean program, the Clean Air Plan for Industry and the application of pollution prevention (P2) and Best Management Practices (BMPs) to new and expanding industrial facilities . 2. Results Phase 1 targets were attained and even exceeded. The achieved emission reduction was 38-40% in the national average. The reductions in certain jurisdictions can therefore vary and be higher or lower. In Alberta, for example, benzene emissions were reduced by approximately 50% since 1995. As an effect of these standards, a decrease in ambient concentrations of benzene was observed. At urban monitoring sites, the concentrations were reduced by Ontario's implementation plan, online: Government Ontario, <http://www.ene.gov.on.ca/envision/cws/#benzene> (July 7, 2004). For another, very detailed, example of a progress report, outlining where and how progress (reduction of emissions) was achieved, see Alberta, online: Government Alberta, <http://www3.gov.ab.ca/env/protenf/standards/cws_participation/publications/Benzene-PhaselProgressReport2001.pdf> (July 7, 2004). Alberta managed to reduce benzene emissions by approximately 50% since 1995. 52 approximately 60% between 1991 and 2001, and 35% between 1995 and 2000 8 /. In rural areas the reduction was not as significant, due to 'background concentrations' . B. Mercury Mercury is a naturally occuring metal which has several forms. It combines with other elements (such as chlorine, sulfur, oxygen) to form inorganic mercury compounds ("salts") . Metallic mercury is used in the production of chlorine gas and caustic soda and in thermometers, dental fillings and batteries. Mercury salts can be found in skin lightening creams and antiseptic ointments90. Mercury is persistent, toxic to humans and wildlife, and bioaccumulates in the food chain. Approximately 60% of the mercury entering the ecosystem comes from anthropogenic sources. Canada-wide standards have been developed based on the precautionary principle, since there is no scientific certainty about the causal links between specific emission sources and elevated mercury levels in particular locations. The Council of Ministers adopted the first of a series of CWSs for mercury in June 2000. These standards concerned two of three primary polluters, the base metal smelting industry and the waste incineration sector. For the third sector, coal-fired electricity generation, a CWS is currently under development. Ministers aim at setting a standard for existing and new plants by 2005 with the target of reducing emissions from this sector and take on the same standards as the US. Unfortunately, this does not elucidate how much of it is due to the standards, since the first period can hardly count for the Accord and the second only partially. It would be interesting to have data from the beginning of the standard implementation to 2003 and then compare it to data from before that period. Combined with carbon, it makes organic mercury compounds of which the most common one is methylmercury, produced by microscopic organisms in the water and soil. Increased mercury release in the environment leads to bigger amounts of methylmercury made by these organisms. Fact Sheet on Mercury, online: Agency for Toxic Substances and Disease Registry (US Department of Health and Human Services), <http://www.atsdr.cdc.gov/tfacts46.html> (August 1, 2004). 53 • CWS for Base Metal Smelting: Existing facilities have to apply best available pollution prevention and control techniques economically achievable91 to reduce their atmospheric emissions in accordance with the guideline of 2g Mercury per tonne of produced finished metals. This standard shall be met by 2008. New and expanded facilities have to apply B A T to minimize emissions throughout the life-cycle of the minerals in question and achieve an emission guideline of 0.2 g Mercury per tonne of produced finished zinc, nickel and lead and l g per tonne of finished copper. New facilities have to comply fully upon operation. Jurisdictions have to examine the efforts of upgrading existing facilities to ensure they constitute "determined efforts". • CWS for Waste Incineration: Existing facilities have to apply BAT, such as mercury waste diversion programs, to achieve certain maximum concentrations in the exhaust gases from the facility. New or expanding facilities have the same "obligation" and are required to comply upon operation. • CWS for Mercury-Containing Lamps: This CWS was adopted in April 2001 and takes a pollution prevention approach by reducing mercury content of lamps sold in Canada. Four stages of the life-cycle of lamps are targeted: during their manufacturing, during transport, during landfilling and during incidental incineration. The CWS is a 70% decrease by 2005 and 80% decrease by 2010 in the average content of mercury in all such lamps sold in Canada. The baseline is 1990. This is one example of the principle that CWSs will consider other factors such as economic impacts (for example, costs associated with solving the problem), social aspects (for example, effects on jobs), and technical feasibility (for example, availability of technology), online: CCME, <http://www.ccme.ca/initiatives/standards.html?category_id=45> (July 7, 2004). CCME published a document for carrying out socio-economic analyses, the Framework for the Application of Socio-Economic Analyses in Setting Environmental Standards, Economic Integration Task Group, Canadian Council of Ministers of the Environment, Version of 7/9/98, online: CCME, <http://www.ccme.ca/assets/pdf/seframeeng.pdf> (July 7, 2004). "Economically achievable" probably relates to page 13 of this document, where the financial effects analyses is described. The method is to assess the impact of potential compliance costs of achieving proposed standards on the financial position of firms that have to incur the costs. According to this method, a standard can be judged to have severe financial effects if, "after incurring potential costs, financial indicators for a plant, firm or industrial sector are pushed to adverse levels in comparison to historic levels achieved by these indicators for the plant/firm or for the industry". 54 • CWS for Dental Amalgam Waste: The CWS was endorsed in September 2001 and aimes at decreasing mercury levels in waste going to sewage systems when old dental fillings are replaced or shaped. The best management practice in this case is the use of amalgam traps by Canada's dentists. The standard prescribes a 95% reduction in mercury releases from dental amalgam waste by 2005, taking the year 2000 release levels as a baseline. 1. Implementation Environment Canada signed a memorandum of understanding (MOU) with the Canadian Dental Association for the implementation of the 95% reduction by 2005. Many provinces and territories are working with the dental societies in their jurisdictions by way of voluntary measures as well as regulations . Environment Canada also concluded a voluntary commitment with the lamp manufacturing industry association to meet the agreed upon 70% reduction in average mercury content by 2010. Some jurisdictions took the lead in changing government purchasing policies (buy low mercury content lamps). Other measures taken by jurisdictions include the recycling of mercury-containing lamps, voluntary prevention programs (e.g. national voluntary program to remove mercury switches from vehicles when they are recycled at scrap yards). For waste incineration plants, most jurisdictions have adopted regulatory/approval requirements . Newfoundland and Labrador has adopted a waste management strategy that includes the reduction of 100 kg mercury per year through the closing of conical waste combustors by 2008. Prince Edward Island's94 approach to new facilities will for example include the Canada-wide standard into the terms and Even cities adopt their own regulations concerning waste amalgam that is disposed of in municipal sewerage (e.g. Toronto put a bylaw in place and monitored a reduction in mercury concentrations at four wastewater treatment plants). Some jurisdictions meet the CWS for the base metal smelting sector, but in others only "determined efforts" are being noted, which does not make clear whether the CWS will be met, Besner & Associates, Five-Year Review, supra note 20 at 18. For Prince Edward Island's implementation plan see online: Government Prince Edward Island, <www.gov.pe.ca/fae> (July 7, 2004). 55 conditions of the permits to operate pursuant to the Air Quality Regulations of the Environmental Protection Act. 2. R e s u l t s The standards have had a significant impact throughout Canada, since many mercury emission sources are common to most of the provinces/territories95. C. D i o x i n s a n d F u r a n s Dioxins and Furans are toxic, persistent and bioaccumulative. They result mainly from anthropogenic sources. Because of their harmful effects, the target is to eliminate them, a target incorporated in the Canadian Environmental Protection Act since 1998 and the C C M E Policy for the Management of Toxic Substances96. Three principal sources are responsible for dioxin and furans pollution: point source discharges to water, air and soil, contamination from in situ dioxins and furans, and loadings from long-range transboundary air pollution (LRTAP). While some dioxins are produced through natural events (forest fires, volcano eruptions), the primary polluters are the petrochemical industry, waste incineration and the pulp and paper industry97. The C C M E endorsed CWSs for waste incineration (sets out targets for four types of incineration: municipal solid waste, medical waste, hazardous' waste and sewage sludge) and pulp and paper boilers which burn salt-laden hogged fuel (May 2001) and for steel arc furnaces and sintering plants (March 2003). In the fall of 2003 the 9 5 Besner & Associates, Five-Year Review, supra note 20 at 17. 9 6 Dioxins and furans are also part of the 12 persistent bioaccumulative organic chemicals (POPs) identified in the UNEP Governing Council Decision 18/32 Persistent Organic Pollutants (POPs) of May 1995, which include: PCBs, dioxins, furans, aldrin, dieldrin, DDT, endrin, chlordane, hexachlorobenzene, mirex, toxaphene and heptachlor, online: UNEP Chemicals Programme <http://www.chem.unep.ch/pops/indxhtms/gcl832en.html> (August 4, 2004). 9 7 McKenzie, Environmental Politics in Canada, supra note 2 at 213. 9 8 The Canada-wide standard (CWS) on conical waste combustion of Municipal Waste will phase out the operation of conical waste combustors in Newfoundland and Labrador, and prevent the operation of new facilities elsewhere in Canada. The phase-out strategy will also result in reduced mercury emissions. See "Backgrounder - Canada-wide standard on Dioxins and Furans: Conical Waste Combustion of Municipal Waste", online: CCME, <http://www.ccme.ca/assets/pdf/d_f_cwc_bckgrnder_e.pdf> (August 1, 2004). 56 C C M E adopted a CWS for pollution by the conical combustion of municipal waste. These five standards together concern sectors that are responsible for approximately 65% of the national atmospheric releases of dioxins and furans. 1. I m p l e m e n t a t i o n Implementation includes for example that plans for reduction of dioxin and furans were made for the major sources of pollution (Ontario, Federal Government's waste incinerators). The closing down of 41 conical waste combustors for municipal waste incineration in Newfoundland and Labrador by 2008 will entirely eliminate one source. Other municipal and biomedical waste incinerators throughout all jurisdictions will be closed or upgraded to meet the CWS. The standards are implemented through full 'implementation plans' or changes in regulatory/approval structures. Many jurisdictions combined their incineration implementation plans for dioxins and furans with those for mercury. Voluntary agreements with concerned facilities are another tool to achieve the CWS. For the base metal smelting sector, Environment Canada plans to incorporate limits for dioxins and furans into a comprehensive environmental code of practice. Manitoba, for example", integrated the mercury and dioxin and furan CWS requirements into "relevant processes". The province is still at the beginning of the development and implementation of a strategy to bring existing incinerators into compliance with the CWS. Measures that are considered to achieve compliance "include an aggressive campaign to seek voluntary compliance with the CWS". No specific timelines have been established for undertaking this process. For new incinerators, Manitoba will include CWS requirement in the environmental licencing and amend the current Incinerator Regulation to include the CWS. To verify compliance with the Canada-wide requirements, new facilities would have to report annually on their achievement of the CWS. Manitoba's implementation plans, online: Manitoba Government, <http://www.gov.mb.ca/consen'ation/cwsmb/pdf7hg-d-f-mcinerators-existing.pdf> , <http://www.gov.mb.ca/conservation/cwsmb/pd£'hg-d-f-incinerators-new.pdf> (July 8, 2004). 57 2. Results The ambient data for dioxin and furans is sparse and changes would only been seen over the long term, since levels are very low. Nonetheless, CWSs have an impact on the main sources of dioxins and furans. Emissions were reduced from 190g per year in 1998 to 160g per year in 2000. D. Petroleum Hydrocarbons in Soil Petroleum hydrocarbons (PHC, also called total petroleum hydrocarbons TPH) is a term used to describe family of several hundred chemical compounds100 that originally come from crude oil. Petroleum hydrocarbons are widely used in Canada and enter the environment through accidents, industrial releases, spills or leaks. Some of the problems they can cause are explosion hazards, toxicity and impairment of soil processes (e.g. water retention and nutrient cycling). Approximately 60% of contaminated sites in Canada involve PHC contamination and management of these sites varied considerably across the country, resulting in over-and undermanagement. Therefore the C C M E endorsed Canada-wide standards for PHCs in soil (April 2001) to ensure a consistent, effective approach. Since the effects of PHC pollution are mainly limited to the individual jurisdictions, the developed remedial standard does not give a certain timeframe for the remediation of contaminated sites. It specifies methods of management and assessment of such sites101 and leaves the decision on a timeframe to individual jurisdictions. 1. Implementation It seems that the CWS has in some jurisdictions been adopted into the existing procedures for remediation of contaminated sites or such procedures have been Some chemicals that may be found in TPH are hexane, jet fuels, mineral oils, benzene, toluene, xylenes, naphthalene, and fluorene, as well as other petroleum products and gasoline components. See for the technical documents on this remedial standard, online: CCME; <www.ccme/initiatives/standards.html?category_id=8> (July 7, 2004). 58 amended to incorporate the CWS. Some jurisdictions have, however, expressed concern over the complexity of the standards . 2. Results The standard requires a consistent level of cleanup when remediation takes place (but does not trigger remediation as such). There is no timeframe included, but governments are supposed to report on implementation of the standard in 2003 and every five years after that103. E . Particulate Matter and Ozone Particulate matter and ozone, as well as sulphur dioxide104, are the pollutants with the most 'public attention'. Federal, provincial and municipal measures concerning these substances have been adopted and implemented for decades already. Particulate Matter (PM) and ground-level ozone can cause several respiratory illnesses. Environmental impacts include for example crop damage and vulnerability to disease in trees in the case of ozone, reduced visibility in the case of particulate matter. Canada-wide standards were adopted in June 2000. These are the only standards which are ambient concentration levels105. The Council of Ministers acknowledged the fact that in some jurisdictions, the transboundary pollution from the United States would have to be reduced in order to be able to achieve the set standards106. In the Besner & Associates, Five-Year Review, supra note 20 at 14, 19. This remedial standard includes methodologies for assessment and management of contaminated sites. British Columbia, for example, expressed concern on the precision of the analytical methods involved and their cost. Online: CCME, <http://www.ccme.ca/assets/pdf7phcs_backgrounder_e.pdf> (July 7, 2004). See on the important issue of acid rain and its implication for health McKenzie, Environmental Politics in Canada, supra note 2 at 208. Even if the Canada-Wide Environmental Standards Sub-Agreement in sector 2.1 reads, "The primary focus of this Sub-Agreement is on Canada-wide priority ambient environmental standards [...]". So it seems that the concern of some critics of the Accord, that only "inefficent" ambient standards would be adopted, leading in the worst case to weaker standards in some jurisdictions, has not materialized. Upon demonstration of transboundary flow as primary cause for continued exceedance of the CWS levels, the affected jurisdictions will be identified in reporting as "transboundary influenced 59 assessment of achievements towards the compliance with the standards, natural events (such as forest fires, natural formation and stratospheric intrusion) causing high levels of PM and ozone would have to be considered. The standard set for particulate matter is more than twice as stringent as the 1997 U.S. standard107. The European Union has deferred the adoption of a (fine fraction) particulate matter standard108. The ground-level ozone standard is 25% lower than the U.S. standard and comparable to the European Union standard109. 1. I m p l e m e n t a t i o n The implementation of the set standards is a complex and multi-faceted process. The concepts of continuous improvement, pollution prevention and keeping-clean-areas-clean are key elements of the different implementation strategies. Each jurisdiction has different targets to attain, since air quality varies significantly in each region The federal government acted through clean fuel regulations, and concentrated on vehicle emissions and consumer products. It also took on a strengthened role in science and monitoring110. Provinces and territories are developing implementation plans. Alberta, for example, developed a "Guidance Document for the Management of Fine Particulate Matter and Ozone in Alberta" and put in place a "Management Framework" to adress the continuous improvement and keeping-clean-areas-clean policies In many jurisdictions, the monitoring of fine particulate matter has been ordered to see what the most appropriate strategies could be. British Columbia, for example111, focusses on "improving understanding of fine particulate matter sources communities" that are unable to reach attainment of the CWS until further reduction in transboundary air pollution flow occurs, Besner & Associates, Five-Year Review, supra note 20 at 11. Ibid, at 10. EC, Council Directive 1999/30 of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air [1999] O.J. L. 163/41. Art. 5 paragaph 1 of this directive only contains rules for the measurement of fine particulate matter levels in the air and the exchange of information between Member States. Besner & Associates, Five-Year Review, supra note 20 at 10. Ibid, at 18. British Columbia's implementation plan, online: Government British Columbia, <http://wlapwww.gov.bc.ca/air/airquality/> (July 7, 2004). 60 and levels" and is developing a framework for airshed planning to be applied to threatened airsheds and to keeping clean areas clean. It also promotes cleaner transportation initiatives (such as new vehicle standards, alternate fuel tax exemption and cleaner transportation infrastructure). 2. Results An assessment of the results achieved directly by the creation and implementation of CWSs will be very difficult, since impacts will be masked partially by transboundary pollution 1 1 2. F. International Perspective Canada is a party to the North American Agreement on Environmental Cooperation (NAAEC), therefore the Canada-wide efforts are linked in many ways to a 'bigger picture' including efforts at an international level, between Canada, Mexico and the United States. The N A A E C is a side agreement to N A F T A and was adopted in 1993. It aims at ensuring that the national laws provide high levels of environmental protection and are effectively enforced113. The Commission for Environmental Cooperation (CEC), an international organization, was created to administer the Agreement114. Which is one of the reasons why it would make sense to abandon the ambient quality standards or at least combine them with discharge/emission standards. For Canada's 2003 Progress Report on Particulate Matter and Ozone, stating that significant progress has been made since 2000, online: Government Canada, <http://www.ec.gc.ca/CEPARegistry/documents/agree/PM_resp_03/toc.cfm> (July 5, 2004). McKenzie, Environmental Politics in Canada, supra note 2 at 267, notes a growing concern, however, that countries may be reluctant to adopt new environmental laws because of the NAAEC, its dispute resolution mechanism and the citizen submission process; she says that already a 'regulatory chill' has set in. This chilling effect (a possible 'hemispheric environmental regulatory freeze') is also mentioned by Johnson, Pierre Marc & Beaulieu, Andre. The environment and NAFTA. Understanding and Implementing the New Continental Law (Washington, D.C.dsland Press, 1996) at 259. The NAAEC does require that each Party ensure its laws provide for high levels of environmental protection without lowering standards to attract investment (Art. 3), but this provision is not enforceable (ibid, at 251). This Commission is led by a Council comprising Canada's Minister of Environment, Mexico's Secretary of the Environment and the Administrator of the United States Environmental Protection Agency. The Commission was the first of its kind in the world in linking 61 The Sound Management of Chemicals project"5 is an initiative aimed at reducing chemical pollution in North America using a life-cycle approach. This initiative is part of the CEC's program on 'Protecting Human Health and the Environment' 1 1 6 under which Action Plans are developed to address the management of substances of concern. This can be seen as an international background to efforts under the C W A E H . Two North American Regional Action Plans are of special interest in this context: the N A R A P on dioxins and furans and the N A R A P on mercury1 1 7. • A North American Regional Action Plan on dioxins and furans and 118 hexachlorbenzene is being developed by a task force under the N A A E C . The first phase will be about capacity building, in a second phase, long-term actions and risk reduction actions shall be undertaken. The draft of the Phase 1 N A R A P was published on the web site of the CEC for public comment recently (17 July -16 September 2003)' 1 9. The final draft is expected in June 2004 1 2 0; Phase 2 environmental cooperation with trade relations, online: Commission for Environmental Cooperation, <http://www.cec.org> (July 9, 2004). The Sound Management of Chemicals (SMOC) Initiative of the Commission for Environmental Cooperation of North America, Overview and Update, October 2003, online: Commission for Environmental Cooperation, <www.cec.org> at 8 (August 1, 2004). It is related and interacting with the following CEC projects: North American Pollutant Release and Transfer Register Project, initiative on Children's Health and the Environment in North America, program on cooperation on North American Air Quality Issues and Capacity Building for Pollution Prevention initiative. See The Sound Management of Chemicals (SMOC) Initiative of the Commission for Environmental Cooperation of North America, Overview and Update, October 2003, online: Commission for Environmental Cooperation, <www.cec.org> at 17 (August 1,2004). Five North American Regional Action Plans (NARAPs) have been created (DDT, chlordane, PCBs, mercury, and environmental monitoring and assessment) and two are being developed currently (one for dioxins, furans and hexachlorobenzene and one for lindane, a commonly used pesticide. Hexachlorbenzene was widely used as pesticide against fungus and to make fireworks, ammunition and synthetic rubber. Dioxins and furans are highly toxic substances in many different compositions (210 different dioxins and furans). They do not occur naturally, but are formed and released into the environment as by-products in the making of other chemicals and in municipal and medical waste incineration, production of iron and steel, backyard burning of household waste and electrical power generation. Dioxins and furans travel long distances in the atmosphere and bioaccumulate in the body fat of animals (and humans..). Large doses cause serious health problems, including cancer. For detailed information see online: Government Canada, <http://www.hc-sc.gc.ca/english/iyh/environment/dioxins.html> (August 1, 2004). The final draft is expected for June 2004, Phase 2 development commences in 2004 with expected completion in fall 2005. The Sound Management of Chemicals (SMOC) Initiative of the 62 development commences in 2004 with expected completion in fall 2005. A baseline air emissions inventory of dioxins and furans was prepared and linked to Canadian and U.S. inventories to give an overview of the release of these substances in North America which allows to develop the priorities of action under the N A R A P . This N A R A P addresses a cluster of compounds and is an example of the widening approach taken by the Sound Management of Chemicals program . • The Background to the Canada-wide effort to reduce mercury pollution is the Mercury North American Regional Action Plan. It was developed in two phases and its objectives are to reduce mercury levels in the ecosystem by reducing the sources of anthropogenic mercury pollution through phasing out and banning specific mercury uses (for example, reductions of mercury releases from combustion sources, commercial processes, operations, products and waste streams). The Parties develop capacities to measure and manage mercury, assess its impacts and exchange information on concerns and successes. An inventory of mercury emissions has been established in Mexico and a database project identifies areas within North America where concentrations are significantly higher than background levels and makes it possible to map and track such mercury "hot spots". In 2003, the implementation task force completed an assessment of 122 mechanisms for tracking mercury imports and exports in North America . Commission for Environmental Cooperation of North America, Overview and Update, October 2003, 13, online: Commission for Environmental Cooperation, <www.cec.org> (August 1, 2004). Up to date (August 4, 2004) there was, however, no information relating to the final draft or phase 2 to be found on CEC's website. North American Agenda for Action: 2003-2005, Pollutants and Health, December 2002, C/C.01/02-06/PLAN/01, 62, online: Commission for Environmental Cooperation, <http://www.cec.org/files/PDF/PUBLICATIONS/3yp03-05_en.pdf> (August 4, 2004). The Sound Management of Chemicals (SMOC) Initiative of the Commission for Environmental Cooperation of North America, Overview and Update, October 2003 at 12, online: Commission for Environmental Cooperation <http://www.cec.org/pubs_docs/documents/index.cfm?varlan=english&ID=1385> (August 4, 2004). 63 Another interesting aspect of the N A A E C is the Citizen Submission Procedure (Art. 19^ 14, 15 N A A E C ) , which is the review institution of the N A A E C . The mechanism of citizen submission allows any individual or group in one of the participant countries to allege a failure of enforcement of domestic environmental law by the Parties and thereby trigger an investigation by the Commission for Environmental Cooperation (CEC). On 14 August 2003, 49 Canadian and US nongovernmental organizations (NGOs) filed a submission to the Secretariat of the Commission for Environmental Cooperation (CEC) under Article 14 of the North American Agreement for Environmental Cooperation ( N A A E C ) 1 2 4 . The NGOs claimed that emissions of mercury, sulphur dioxide and nitrogen oxides from Ontario Power Generation's coal-fired power plants in southern Ontario pollute the air and water in eastern Canada and the northeastern US and that Canada fails to effectively enforce the relevant environmental legislation. It could have been that the international pressure will help to adopt and implement the CWS for the electric power generation sector more speedily than planned (adoption foreseen for 2005, with implementation by 2010) -however, after reviewing the submission in light of Canada's response, the Secretariat concluded that the submission does not warrant the development of a factual record 1 2 5. Karl Raustiala, "Citizen Submissions and Treaty Review in the NAAEC" in David L. Markell & John H Knox, eds., Greening NAFTA - The North American Commission for Environmental Cooperation (Stanford: Stanford University Press, 2003) at 256 explains the function of review institutions as "review treaty implementation, but [..] also treaty compliance or even effectiveness" (see also ibid. 258 f.). SEM-03-001 /Ontario Power Generation, CEC Citizen Submissions on Enforcement Matters, online: Commission for Environmental Cooperation, <http://www.cec.org/citizen/submissions/details/mdex.cfm?varlan=english&ID=88> (August 4, 2004). "The Secretariat concluded that the information in the submission and the Canadian response regarding Ontario's emission reduction targets and the concrete actions Ontario is taking, together with recent media reports of the planned closure of some or all of OPG's coal-fired power plants, indicates a dynamic and improving situation in regard to the transboundary pollution of concern to the Submitters", online: Commission for Environmental Cooperation, <http://www.cec.org/news/details/mdex.cfm?varlan=english&ID=2610> (July 9, 2004). 64 G. Concluding Remarks While the Two-Year Review concluded that results were very much process related, the Five-Year Review could already show "substantial environmental returns", even if in some instances CWS have implementation dates several years from now and benefits will only be visible then . Six Canada-wide standards were developed under the CWAEH, with stakeholder involvement. The resulting emission and ambient standards are claimed (by CCME) to be strict and comparable to other measures taken internationally. It was pointed out that the "resultant standards belie the concern that the Harmonization Accord would result in the 'lowest common denominator'." Some experts come to different conclusions and point especially to the problems generated through the veto right that every party to the agreement 127 enjoys . Points of concern remain the level of effective public participation and the decision making procedure. Despite the CCME's positive formulations in its paper on consensus decision making, a more effective formula is needed to achieve substantial results128. Additionally, there needs to be more information on the comparability of the standards with other measures internationally. Without that, it is very difficult to assess if the standards can be called "rigorous" at all (rigorous relative to no standard Besner & Associates, Five-Year Review, supra note 20 at 20. Winfield admits that some outcomes were more positive than expected (e.g. CWS on dioxins) but calls the process a "chaotic mess" that suffers a lot from the veto problems and says that where positive results are achieved, it is due to a few officials who drive things forward in specific issues, personal correspondence per e-mail, July 9, 2004. These aspects are not emphasized in the Five-Year Review - it concludes on a much more conciliate note, "Although the CCME Canada-Wide Accord on Environmental Harmonization may not achieve every goal set out by the Council of Ministers; it is not an immediate cure for all intergovernmental issues or friction concerning the environment. However, it has undoubtedly made a significant contribution to environmental management in Canada. Perhaps the Accord may be best thought of as an example of the benefits of cooperative action, in terms of resource efficiency, and desirable outcomes and as a framework for continued cooperation." (Besner & Associates, Five-Year Review, supra note 20 at 21) 65 at all is very different from rigorous compared to specific standards, e.g. in leading environmental states such as Sweden ). Boyd, Unnatural Law, supra note 4 at 298 proposes Sweden and the Netherlands as possible role models for Canada. 66 Chapter Three: Enhanced cooperation in the European Union and its Application in Environmental Law I. Introductory Remarks on the European Union 1 "Unity in diversity" is the European Union's motto - a motto that is familiar to Canadians, too . Initially the E U consisted of six Member States. The most recent enlargement of May 2004, when ten new states joined the E U , led to a E U of 25 Member States, with many different traditions, languages and cultures, but also the will to cooperate to face the challenges of an increasingly interdependent world. The European Union is neither just a supranational organization, nor a federal state, it is a unique system that has been evolving over the past 50 years. It is based on a series of treaties (Paris and Rome in the 1950s, treaties of Maastricht, Amsterdam and Nice in the 1990s). Through the Treaties, the Member States pool their sovereignty, which means that they delegate some of their national competences to the shared E U institutions that represent their collective interest. The rule of law is fundamental to the European Union. A l l decisions and procedures are based on the Treaties which constitute the so-called primary legislation. Secondary legislation - such as regulations, directives and recommendations - are derived from the primary legislation. The third source of law are the decisions by the European Court of Justice. The acquis communautaire is the body of common rights and obligations which bind all the Member States together within the European Union. It comprises the content, principles and political objectives of the Treaties; the legislation adopted in application of the Treaties and the case law of the European Court of Justice; the declarations and resolutions adopted by the Union; measures relating to the common foreign and security policy; measures relating to justice and For a thorough but very comprehensible introduction to the major issues of the EU see for example Michelle Cini, ed., European Union Politics (Oxford: Oxford University Press, 2003). In a slightly different version, though, see for example Geoffrey Booth and Dennis Roughley, Canadian Political Structure and Public Administration (Toronto: Edmont Montgomery, 2000), Chapter Two: "Unity Through Diversity: Canada Becomes a Nation". 67 home affairs; international agreements concluded by the Community and those concluded by the Member States between themselves in the field of the Union's activities. EC law has direct effect within the national systems and enjoys supremacy over national laws. The Court (ECJ) ensures the correct application and interpretation of E U law. It can find any Member State guilty of failing to meet its obligations under the Treaties. At the request of the national courts, it offers the correct interpretation of the Treaties and rules on the validity and interpretation of E U secondary law. Thus it ensures that throughout the Union, E U law is interpreted and applied in the same way. E U law and policy covers a wide array of subjects - from trade and economy to freedom, security and justice to environmental protection - and is made by three main institutions that work closely together: • the Council of the European Union (representing the Member States), • the European Parliament (representing the citizens) • the European Commission (a politically independent body that upholds the collective interest of the Union). The EU's structure consists of what is called the three pillars. The first pillar is the 'Community pillar'; most European policies come under this pillar. The second pillar consists of Common Foreign and Security Policy (CFSP). The third pillar was the Justice and Home Affairs pillar until Amsterdam (1999) and was then renamed Police and Judicial Co-operation in Criminal Matters (PJCCM). The first pillar has supranational character; only the law made under this pillar, EC law, actually overrides national laws. It is in this pillar that the E U institutions have regulatory powers and act independently of the Member States.The Commission has the exclusive right of proposing legislation, decisions are taken by the Council by (mostly) qualified majority voting (i.e. Member States can be outvoted, but still have to apply the adopted legislation). The second and third pillar are essentially intergovernmental, since they concern sensitive matters that the Member States do 68 not want to transfer entirely to the supranational level and therefore the EU institutions only have a marginal role in the decision making process. In some areas, the EU has exclusive competence; other areas are shared competences between the EU and the Member States. In these areas, the principle of subsidiarity ensures that decisions are taken at the level best situated - meaning that the EU should only act when it is more effective than action at national level. The heterogeneity of the Member States has led to various instances where some Member States wanted to go further in a certain area than others. Examples of this are the Social Policy Agreement and the Schengen Accords (on the elimination of border controls). These initiatives took place 'outside' the institutional framework of the European Union. The concept of 'closer cooperation' or enhanced cooperation, as it is now called, was formally introduced by the Treaty of Amsterdam into the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC). The aim of enhanced cooperation is to enable a significant number of Member States to make use of the institutions to advance European integration. Enhanced cooperation must meet numerous conditions, which makes it not easily applicable, even though the Treaty of Nice introduced changes that were aimed at simplifying the use of this instrument of flexible integration. Different provisions apply for enhanced cooperation in the first, the second and the third pillar. While the basic legal prerequisites are the same (not concern an area of exclusive Community competence, be aimed at furthering the objectives of the Union, respect the Treaties, be used only as last resort, involve a certain number of Member States, be open at all times to all Member States, Art. 43-45 TEU), the authorisation procedure is different in each pillar, but also the possible scope of the initiative. • Enhanced cooperation in the first pillar (EC) is authorised by the Council, acting by a qualified majority on a proposal by the Commission (based on a request by 69 interested Member States) and after consulting (or getting the assent of, in the case of the co-decision procedure) the European Parliament. (Art. 11 TEC) • In the second pillar, Common Foreign and Security Policy, enhanced cooperation is authorised by the Council (on request by interested Member States) acting by qualified majority after an opinion of the Commission (the European Parliament must only be informed). Enhanced cooperation may not concern matters of military or defence implications. (Art. 27a-e TEU) • In the third pillar, enhanced cooperation aims at (as in the second pillar) developing the area of freedom, security and justice. Authorisation is given by the Council acting by qualified majority, at the request of the Member States concerned, after an opinion of the Commission and consulting the European Parliament.If the Commission refuses to submit a proposal, the Member States can develop a proposal and submit it directly to the Council. Enhanced cooperation will certainly have a role to play in the E U of 25 and in the future, with a Union of maybe one day 30 Member States. Another very important development for the future of the European Union is the creation of a Constitution for Europe. The draft Constitution is designed to simplify the Treaties and to make the EU's decision-making system more transparent. The future European Constitution replaces the three pillar structure of the Union and merges the European Communities and the European Union. The Treaties will be replaced by the "Treaty establishing a Constitution for Europe" . The Charter for Fundamental Rights will also be merged into the text and the Constitution will See Provisional consolidated version of the draft Treaty establishing a Constitution for Europe, online: Council of the European Union, <http://ue.eu.int/igcpdf/en/04/cg00/cg00086.en04.pdf> (August 4, 2004). In preparation for signature, the text of the Treaty establishing a Constitution for Europe has still to be edited by the Council's Legal/Linguistic Experts in the 21 languages in which it will be authentic within the meaning of Article IV-10 of the said Treaty. Editing will begin at the end of June and be completed at the end of October 2004. The future EU Constitutional Treaty will be signed in Rome on October 29, 2004. On the constitution, see "A Constitution For Europe", online: EU<http://europa.eu.int/futurum/index_en.htm> (August 5, 2004). 70 contain a clearer presentation of the distribution of competences and a simplified set of legal instruments and procedures. Therefore this document will look very much like a constitution, however, despite its name, legally it remains a treaty. After signing it (October 29, 2004), Member States will have two years to ratify it. It will only enter into force when all Member States have ratified it, which in some cases has to be done by popular consultation. It is therefore still uncertain i f the document will eventually enter into force4. However, the Constitution is a further important step in the process of getting Europe's nations and peoples to cooperate. II. Background and Legal Prerequisites A. Background "Flexibility has gained ascendancy for the principle reason that it is a tool for the management of diversity. The member states continue to want different things from, and outcomes of, the integration process; flexibility builds on the lead of QMV (which of course obliges all member states to participate in generally agreed policy, whether they supported it or not) to ensure that recalcitrant states cannot always dictate the pace to the others." (Warleigh, 2003, 68) The provisions on enhanced cooperation have been referred to as a "Copernican revolution"5. While I do not believe this statement to be entirely accurate - flexible integration has always been present throughout the integration history of the European Communities6 - it nonetheless reveals that a new era of community integration has begun. For the first time in the history of the European Union, flexible integration has been codified and anchored in the Treaties, which constitutes a It seems to be looking good for the Constitution at the moment: In a recent survey by the Commission more than 80% of the citizens declared themselves more or less in agreement with the adoption of a European Constitution, see Survey Report, online: European Commission, <http://europa.eu.int/comm/public_opinion/index_en.htm> (August 5, 2004). Renaud Dehousse, "Les realites de la Conference intergouvernementale" CRISP (1997) 1565-6 Courrier hebdomadaire, 3 cited in Giorgio Gaja, "How Flexible is Flexibility Under the Amsterdam Treaty?" (1998) 35 CML Rev. 855 at (857). Philippe De Schoutheete, The Case for Europe - Unity, Diversity, and Democracy in the European Union (London: Lynne Rienner, 2000) at 64 writes, "In reality, the entire European integration process is marked by a dialectic relationship between the necessary cohesion of the Union and the equally necessary diversity of the parts." See also Neill Nugent, The Government and Politics of the European Union (Houndmills: Palgrave MacMillan, 2003) at 98, who explains that flexibility has been a long-established characteristic of the integration process. 71 methodological change in the traditional uniform integration. A group of Member States can now establish enhanced cooperation in a certain area and move on despite the unwillingness or incapacity of other Member States to do so. For this enhanced cooperation, they use the EU's institutions, procedures and mechanisms. Flexible integration in this sense is to be used only as a last resort and is subject to numerous conditions, such as not to affect the acquis communautaire, not be a hindrance to trade and also to be open to all Member States at all times. Enhanced cooperation is a mechanism closely linked with the aim of guaranteeing the functioning of the future EU after the enlargement. The current Member States sought an "emergency outlet" for future deadlock due to the increased heterogeneity of Member States after the enlargement and the envisaged difficulties of new members to keep up with the pace of integration . However, there have been stalemates already Q in a Union with 15 and even in a Community with only six Member States . The new provisions would therefore be called for even without EU enlargement. While flexible integration in the beginning was "an unspecified if frequent practice of EU governance", it is slowly becoming a "leading principle of democratic governance in theEU"9. George A. Bermann, "Law in an enlarged European Union", 14:3 (Summer 2001) European Union Studies Association Review 1, thinks the provisions on enhanced cooperation miss the challenge of the management of diversity and adapting the decision-making process in view of enlargement. What should really be done, according to Bermann, is to find legislative solutions at the Community level which entail the participation of all Member States and bind all, while still taking into account diverse circumstances. Only think of the policy of "empty chair" by General De Gaulle in 1965/66 or the establishment of the Social Protocol of the Maastricht Treaty and the initial unwillingness of UK to participate, the Schengen Agreements or again the Economic and Monetary Union where serious opposition came from different Member States - in all of these cases, flexibility was sought and found either by political agreements (Luxembourg Compromise) or ad-hoc opt-out provisions for certain states. Alex Warleigh, Democracy in the European Union (London: Sage, 2003) at 68. 72 B. Legal Prerequisites of Enhanced Cooperation in the First Pillar The provisions on enhanced cooperation were introduced by the Treaty of Amsterdam (1999) and subsequently amended by the Treaty of Nice (200210). Treaty provisions are rarely amended that quickly. Concerns that the provisions would be inapplicable due to the strict conditions set up by the Treaty of Amsterdam led to the rapid change". The Treaty of Nice amendments included abolishing the veto right, lowering the participants threshold to eight Member States (instead of a majority, which would have been impracticable in an enlarged Union of 25) and systematically regrouping the conditions in general provisions (Art. 43 - 45 TEU) and the procedure for enhanced cooperation in the first pillar in Art. 11 and 11a T E C 1 2 . The new Constitution of Europe1 3 contains the general provisions on enhanced cooperation in Part I, Title V Exercise of Union Competence, Chapter III Enhanced Cooperation, Art. 1-43 where it is said that Member States can undertake enhanced cooperation within the limits and limits and in accordance with the procedures laid down in this Article (the conditions remain essentially the same as in the Nice Treaty) and in Articles III-322 to III-329. Among other things, at least one third of the Member States must participate (which changes the requirement of 8 Member States slightly). The specific provisions on enhanced cooperation are included in Part III The Policies and Functioning of the Union, Title VI The Functioning of the Union, Chapter III Consolidated version in O.J. C. 325/1 of 24 December 2002. There were other reasons, as for example that the IGC of Nice should at least bring some revolutionary results. As there were many difficulties in achieving agreements on the issues on the agenda, the provisions on enhanced cooperation presented a welcome opportunity to veil the fact that not many substantial agreements had been reached. Enhanced cooperation in CFSP was introduced by the Treaty of Nice in Art. 27a - e TEU, but its application is limited: military or defense questions are excluded and in addition there is a veto right of the Member States. In the third pillar, enhanced cooperation is contained in Art. 40 TEU with a slightly different procedure than in the first pillar. Adopted by the Member States leaders on June 18, 2004 and now subject to ratification by the Member States (parliaments and/or peoples). See the Provisional consolidated version of the draft Treaty establishing a Constitution for Europe, online: <http://ue.eu.int/igcpdf/en/04/cg00/cg00086.en04.pdf> (August 4, 2004). 73 Enhanced Cooperation (Art. III-325 for enhanced cooperation in previously first pillar matters). 1. Procedure For Initiating Enhanced Cooperation (Art. 11,11a T E C ) The specific norms for initiating enhanced cooperation in first pillar matters are Art. 11 and 11a TEC. Environmental policy falls into the first pillar: Art. 174 and 175 TEC are the legal basis for the Community's competence in this area. Member States wanting to establish enhanced cooperation have to inform the Commission of their wish 1 4 . The Commission may submit a proposal to the Council. If the Commission does not submit such a proposal, it has to inform the Member States of the reasons thereof. Even though the Treaty does not oblige the Commission to submit a proposal, it is to be expected that a negative decision could be brought before the E C J 1 5 . The question is however, i f only procedural arguments can be brought forward or i f the content of the decision can also be challenged. Shaw says that the reasons of the Commission cannot be examined for their content16. I agree that the Commission certainly has a wide discretion in these matters, since it is its task to protect the interests of the Union and make sure an initiative of enhanced cooperation really furthers the integration and the aims of the E U . In my opinion, it should be possible, however, for a Member State to introduce proceedings for annulment (Art. 230, 231 TEC), i f it thinks that the conditions are fulfilled, but the Commission said they were not. The Member States can, of course, not oblige the Commission to make the proposal, since the competence to make this decision is the Commission's, but they should be able to bring the matter before the ECJ i f they think the Commission has abused its discretion. There is no further precision as to how this notification or request shall be presented. The request should certainly contain information on the subject, scope and purpose of the cooperation as well as a reasoned opinion on the fulfillment of the conditions. Tuytschaever, Differentiation in European Union Law, supra note 15 at 61, says "The ECJ may also be called to judge on a refusal by the Commission to submit a proposal to the Council in view of the authorisation of closer co-operation". Jo Shaw, "The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy" (March 1998) 4 European Law Journal 63 at 75 ["Treaty of Amsterdam"]. 74 The Council gives the actual authorisation to establish enhanced cooperation, by a qualified majority voting after consulting the Parliament. It is interesting to note that the Parliament has a weak position here17. The Parliament's assent is, however, necessary in matters falling under the co-decision procedure of Art. 251 TEC (which is increasingly used). A Member State wishing to participate in an established enhanced cooperation notifies the Council and the Commission, the latter giving an opinion to the Council. The Commission then decides on the accession of the Member State to the enhanced cooperation (Art. 11a TEC). This procedure privileges accession of further Member States over the initiation of enhanced cooperation and is a guarantee of impartiality reflecting the function of the Commission as Guardian of the Treaties. In this way, the creation of a "closed club" where members refuse other states' admittance is prevented18. 2. General Admissibility Criteria (Art. 43 - 45 T E U ) 1 9 Art. 43 - 45 T E U contain the general admissibility criteria for enhanced cooperation in the Community, resp. the Union. Art. 43 - Art. 43b enumerate the conditions that must cumulatively be fulfilled for starting an enhanced cooperation initiative. The conditions define the scope and character of enhanced cooperation. Instead of explaining the conditions one by one, I regroup them, presenting them under a) general conditions, b) conditions requesting that enhanced cooperation must comply with E U law and c) Conditions relating to the internal market, trade and competition20. At least it is stronger than it was in the Treaty of Amsterdam. It still shows clearly, however, that the Member States play a crucial role in matters of enhanced cooperation. Berad Martenczuk, "Die differenzierte Integration nach dem Vertrag von Amsterdam" (1998) 4 ZeuS 447 at 467. Art. 40, 40a in Title VI are the legal basis for enhanced cooperation in the third pillar, which is not being dealt with in this paper. This structure is similar to the arrangement of the provisions on enhanced cooperation in the new Constitution of Europe and thus makes it easier to apply the explanations to the future provisions - once (if) they enter into force. 75 a ) G e n e r a l C o n d i t i o n s 9 1 Enhanced cooperation between at least eight Member States is meant to be a tool to continue the integration process and make progress in the interest of the Union, not to go back on what has been achieved so far . Art. 43 a emphasizes that the mechanism can only be used as a last resort, i.e. when the Council has established that the objectives of a specific cooperation could not be attained by the normal Community procedure within a reasonable period of time ("delai raisonnable"23). It has to remain within the limits of the powers of the Union or the Community, since widening the powers can only be achieved through a treaty amendment with the respective procedure and cannot concern areas of exclusive competence24. Art. 43 lit.g) TEU. The Treaty of Amsterdam required "a majority" of Member States to participate and interestingly, Art. 1-43 (2) of the Draft Treaty Establishing a Constitution for Europe changes it to "at least one third of the Member States" (which would be nine in the Union of 25, compared to actually eight required participants). The setting of this limit happened somewhat randomly, but in any event, the number of participants is clearly less important than the kind of initiative that is brought forward and whether it is eight or one third, it appears to be enough of a critical mass for enhanced cooperation not to be a threat to Community integration. Art. 43 lit.a) TEU states that enhanced cooperation has to be aimed at furthering the objectives of the Union and of the Community, at protecting and serving its interests and at reinforcing their process of integration. The exact meaning of this condition, apart from stating quite generally the motivation for introducing enhanced cooperation, depends to a large extent on political considerations at a given time. What this means will, however, strongly depend on the actual circumstances of the specific case, as often political constellations will be decisive for the impossibility to attain a certain objective with the usual procedures of the Treaties. Ultimatively it will be a political decision taken by the Council. 43 lit. d TEU. The notion of exclusive competence is mentioned in Art. 5 (2) TEC, but there is no definition to be found in the Treaties. In the literature, exclusive competences are seen as obligation of the Community to handle certain tasks as the only competent instance, while the Member States have to refrain from taking any measure, Christian Calliess, "Art. 5 TEC" in Christian Calliess & Matthias Ruffert, eds., Kommentar zu EUV und EGV, 2nd ed. (Neuwied: Hermann Luchterhand, 2002), marginal note 27. See on the transfer of competence E.C.J. Commission v. UK, case 804/79 [1981] E.C.R. 1045, para. 17 f, 27 f). There is no consensus as to which areas belong to the exclusive competences of the Community. Some authors (and the Commission) are for a large interpretation of the notion of exclusive competence, others for a narrow interpretation. The main difference lies in the attribution of the competences in the area of the internal market, which for the representatives of a large interpretation fall under the exclusive competences of the Community. The determination of areas of exclusive competence was much discussed. For a detailed overview and thorough analysis of this problem see Daniel Dittert, Die ausschliesslichen Kompetenzen der Europaischen Gemeinschaft im System des EG-Vertrags (Frankfurt a.M.: Peter Lang, 2001). 76 Concerning the controversial question of what areas are part of the exclusive competences of the Community/Union, it may currently be illuminating to turn to the new provisional consolidated version of the draft Treaty establishing a Constitution for Europe that was agreed upon by Member States leaders on June 18, 2004 . Art. I-12 of the Draft Constitution mentions the customs union, the competition rules necessary for the functioning of the internal market, the monetary policy in the Euro countries, the conservation of marine biological resources under the common fisheries policy and the common commercial policy, as well as the conclusion of an international agreement (under certain conditions ). The environment is mentioned under the areas of shared competence in Art. 1-13 lit. e) and would therefore be open to enhanced cooperation. Enhanced cooperation shall not limit non-participating States in their freedom to act as it was before a specific cooperation. Their rights and obligations remain the same, they are not bound by measures adopted within a enhanced cooperation group (Art. 43 lit. h). This is the reverse side of the obligation contained in Art. 44 (2) where the non-participating Member States are advised not to impede the implementation of a enhanced cooperation. Any specific enhanced cooperation shall at any time be open to all Member States (Art. 43b), provided that a willing participant also meets the requirements of the basic decision (and, in case of enhanced cooperation in progress, all the decisions taken within this framework). The Commission and the participating Member States shall encourage as many Member States as possible to take part in the cooperation. The background of this clause d 'encouragement is that the best enhanced cooperation is the one that ceases to exist, because eventually all Member States participate. Provisional consolidated version of the draft Treaty establishing a Constitution for Europe, online: <http://ue.eu.int/igcpdf7en/04/cg00/cg00086.en04.pdf> (August 4, 2004). These are: when the conclusion of the agreement is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act. Especially the last two conditions could lead to a large competence of the Union to conclude international agreements. 77 The importance of this clause d'encouragement lies in its function to link 'ins' and 'outs' and ensure that only objective criteria (like ability and willingness) are used to decide on the participation in an enhanced cooperation. Aim of enhanced cooperation is again not to create a Core Europe, but to allow the deepening of the integration through temporary differentiation. The process of taking part in an enhanced cooperation in progress is similar to joining the European Union in the sense that a newcomer must embrace the enhanced cooperation acquis, i.e. all the measures and decisions taken by the participants to the cooperation prior to the participation of a State. It is disappointing that there is no requirement of helping politically willing Member States that may lack financial means to participate in enhanced cooperation. Acts and decisions implementing enhanced cooperation are to follow the institutional provisions of the T E U and TEC. No new institutions are to be created for enhanced cooperation and the procedure is 97 the same as i f it were "normal" Community law-making (Art. 44) . The voting right in the Council is only granted to participants in an enhanced cooperation initiative, 98 but all members can participate in the deliberations . Concerning the legal nature of the acts and decisions adopted in the framework of an enhanced cooperation, Art. 44 states that they shall not form part of the Union . 29 acquis . What is then the legal nature of the enhanced cooperation implementation norms? 'Special secondary law' seems to be the answer to this question - in the sense that they are to be regarded as secondary law restricted in their territorial validity30. For example, in environmental policy, there are still areas that require unanimity and this requirement cannot be circumvented by initiating an enhanced cooperation. Thus, information on the development of a cooperation by a group of Member States is at all times guaranteed for all the Member States of the Union. Qualified majority is to be established following the proportions of the weighted votes and number of Council members laid down in Art. 205 (2) TEC, unanimity is constituted by those Council members participating. The new Constitution contains an adaptation of the new double majority requirement in Art. 1-43, sector 3: A qualified majority shall be defined as at least 55% of the members of the Council representing the participating States, comprising at least 65% of the population of these States. Whereby the acquis communautaire is probably meant. This terminological inexactitude exists in the French and German version, too. See also Matthias Ruffert, "Art. 43 TEC", in Calliess & Ruffert, supra note 24, marginal note 20. 78 Enhanced cooperation law is only binding on those Member States which participate (Art. 44 (2)) . In case of conflict of laws, the following rules should apply: Al l Community law has supremacy over norms and decisions stemming from an enhanced cooperation (43 lit. c). These have, in turn, supremacy over national law of the participants contrary to the special secondary law31. The aim of the principle of supremacy is to assure uniform validity and effectivity in all Member States , aim that has to be valid for enhanced cooperation, too. Expenditures resulting from enhanced cooperation, other than administrative costs for the functioning of the institutions, have to be met by the participants. The Council may, after consultation of the European Parliament, unanimously decide otherwise . The consistency of enhanced cooperation activities and the policies of the Union and the Community shall be ensured by the Council and the Commission. They have to cooperate to that end (Art. 45)3 4. Only consistent actions will lead to a goal-directed integration process instead of numerous different approaches to integration. b) Conditions Requesting Compliance with EU Law Enhanced cooperation may not be used to circumvent the treaty amendment procedure; the integrity of the provisions of the Treaties has to be respected (Art. 43 lit. b)). No parallel institutions may be created for measures adopted within an See Tuytschaever, Differentiation in European Union Law, supra note 15 at 238, 289. 3 2 EU law constitutes an autonomous legal system, see E.C.J. Costa v. E.N.E.L, case 6/64 [1964] E.C.R. 1194. Although there is no direct reference to the supremacy of EU law in the Treaties, the Court established this principle as vital to the functioning of the Union, see e.g. E.C.J. Simmenthalv. Commission, case 92/78 [1978] E.C.R. 1129. 3 3 Art. 44 TEU. This could be in a case of enhanced cooperation from which all Member States would profit, even though only a group of them is carrying out the cooperation measures. 34 But not only the Community has to assure the consistency of European law, this duty is one of the Member States, too (see Art. 3 (2) first sentence TEU for consistency between Community and Member States actions). 79 enhanced cooperation . The acquis communautaire and the measures adopted under the provisions of the Treaties have to be respected (43 lit.c) . c) Conditions Relating to the Internal Market, Trade and Competition These conditions are probably the most important and also the most relevant to enhanced cooperation in environmental policy. Therefore, I will deal with them in more depth than the previous conditions. According to Art. 43 lit.e), enhanced cooperation shall not undermine the internal market or the economic and social cohesion. Insofar as the internal market constitutes the core of the acquis communautaire, it is very clear that a enhanced cooperation must not negatively affect this area . Member States will not use the new mechanism if they would face major competitive disadvantages by doing so. The advantages of the common market are so considerable that even with a lowering of the requirements for enhanced cooperation, a disintegration of the common market would not be expected . This is rather obvious, because it is the aim of enhanced cooperation to use the institutional framework of the Union as opposed to (ad hoc) differentiation outside this framework. 36 From a legal perspective, this condition is unnecessary because it follows already from the fundamental principles of the Community, such as the supremacy of Community law and Community loyalty. The reason for enumerating it is political: to reassure opponents of the enhanced cooperation that it will remain within strict limits. The last of the conditions relating to compliance with EU law is Art. 43 lit. i) which states that enhanced cooperation shall not affect the provisions of the Protocol integrating the Schengen acquis into the framework of the Union. This Protocol is a different version of enhanced cooperation. See Herve Bribosia, "De la subsidiarite a la cooperation renforcee" in Lejeune, Yves, ed., Le Traite d'Amsterdam - Espoirs et Deceptions (Bruxelles: Bruylant, 1998) at 72. The difference to enhanced cooperation under Art. 43 TEU is the one restated in this condition: the candidate countries (new members) are obliged to incorporate the Schengen acquis (OJ L 239/13, 22 September 2000), because it is part of the acquis communautaire, even though several Member States have negotiated exceptions. This is different from enhanced cooperation measures: they are not part of the acquis communautaire and therefore new members do not automatically have to incorporate them. 3 7 Ruffert, in Calliess & Ruffert, supra note 24, marginal note 16, calls this condition superfluous. 3 8 Tobias Bender, "Die Verstarkte Zusammenarbeit nach Nizza. Anwendungsfelder und Bewertung im Spiegel historischer Prazedenzfalle der differenzierten Integration" (2001) 61:4 ZaoRV 730 at 756 ["Die Verstarkte Zusammenarbeit nach Nizza"]. The author deducts his opinion especially from the example of the Social Protocol, where the real danger of distorted competition through costs of social systems which would have been caused in 11 of the 12 MS, lead to a delayed legislation until the participation of the UK. 80 The aim of economic and social cohesion has its origin in the preamble of the Treaty of Rome, in the formula "Anxious to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions". Still today, working towards and conserving economic and social cohesion constitutes a considerable share in the budget of the EU (e.g. Cohesion funds)39. Art. 43 lit. f states that enhanced cooperation may not constitute a barrier to or discrimination in trade between Member States and not distort competition between them40. The common market (Art. 3 lit. h TEC), resp. internal market (Art. 14 TEC), is based on the customs union, the basic freedoms and a system protecting competition within the internal market (Art. 81-97 TEC). Free trade and competition is one of the most important elements of the Community4 1. The Treaty does not define the kind of protected competition. It only enumerates the prohibited behaviour (Art. 81 lit. a-e TEC). The European Court of Justice uses the concept of "workable competition", which it understands as "the degree of competition necessary to ensure the observance of the basic requirements and the attainment of the objectives of the Treaty, in particular the creation of a single market achieving conditions similar to those of a domestic market. In accordance with this requirement, • the nature and intensiveness of competition may vary to an extent dictated by the products or services in question 42 and the economic structure of the relevant market sectors" . When differentiating measures of the Member States result in a distortion of competition or when it is to be feared that a distortion could be caused by a specific regulation being adopted, the Community aims at harmonizing the measures in order to prevent this from happening (Art. 94 -97 TEC). The background of enhanced EC Council Regulation 1164/94 of 16 May 1994 establishing a Cohesion Fund [May 25, 1994] O.J. L. 130, amended by EC Council Regulation 1264/1999 of 21 June 1999 [June 26, 1999] O.J. L. 161, EC Council Regulation 1265/1999 of 21 June 1999 amending Annex II to Regulation EC 1164/94, [June 26, 1999] O.J. L. 161. While in the Treaty of Amsterdam, mere "restrictions" of trade would have been enough to prevent a enhanced cooperation, the Treaty of Nice speaks of barriers or discrimination to trade. "[...] the common market can be said to be at the centre of the EC and the EU, and commitment to the norms and policies which underpin it has always been essential to membership", Grainne De Burca, "Differentiation within the Core: The Case of the Common Market", in Grainne De Burca, & Joanne Scott, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) at 133 ff. ["Differentiation within the Core"]. E.C.J. Metro v. Commission, case 26/76 [1977] E.C.R. 1875, para. 20. 81 cooperation is the second part of this reasoning, which is that heterogeneity not leading to such obstacles is admissible or even desirable where it leads to a new dynamic of the integration process. The idea of flexibility is also behind Art. 94 - 96 TEC, therefore just as for Art. 95 TEC, certain intrusions in the functioning of the internal market can be held admissible in Art. 43 lit. f43. When does a certain measure constitute a barrier to or a discrimination in trade? In the realm of Art. 81 (1) TEC it has to be established with a sufficient probability that the measure/behaviour "may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that the realization of a single market between Member States might be impeded" and thus constitutes an obstacle to the functioning of the internal market44. Therefore the meaning of Art. 43 lit. f T E U is that a measure constituting a barrier to or discrimination in trade by actually or potentially having a negative influence on the internal market cannot be the object of a enhanced cooperation initiative. However, as it was stated for Art. 95 TEC, certain effects are inherent in using the flexibility mechanisms, therefore the meaning can only be to prevent disproportional barriers to trade. How can the Commission judge whether a measure has potentially a hindering effect? In the case of stricter national measures being introduced by one Member State under Art. 95 TEC, the Commission looks at the scientific proof brought forward by the Member State in question and its own prognosis concerning the potential effects of the unilateral national action by the Member State45. The same procedure should apply for enhanced cooperation, except that no scientific proof can be required, because this is not mentioned in the Treaty. It is however in the interest of the 4 3 See for example Helmut Kortenberg (alias). "Closer Cooperation in the Treaty of Amsterdam" (1998) 35 C M L Rev. 833 at 849, who writes that Art. 43 lit. f reminds him of the conditions for allowing a single-handed effort of a Member State. Grainne De Burca, "Differentiation within the Core", supra note 41 at 144 says "[...] some degree of discrimination is necessarily inherent in the notion of differentiation". 4 4 E.C.J. Ferriere Nord v. Commission, case C-219/95 P [1997] E.C.R. 1-4411, para. 20. 4 5 Geert Van Calster, "Green Unilateralism: The European Commission and the Environmental Guarantee in Art. 95 EC" (2000) EELR, 232 at 234 ff. 82 participating Member States to give precise information to the Commission on their desired cooperation and to explain that the conditions for an enhanced cooperation are fulfilled. The second part of this condition is about distortion of competition. A distortion of competition46 is generally caused when the conditions of competition are being changed through the influence of a government (State), by which specific branches or corporations are being treated differently than their competitors. The notion of distortion is characterized by "distortive legal differences, which on the one hand have no discriminating character prohibited by the Treaty and on the other hand do not simply lead to generally differentiated treatment throughout the whole Community, but which constitute such a clear advantage or disadvantage to specific economic branches that a rapid intervention is necessary in the interest of the internal market, where appropriate even in anticipation of the general legal harmonization"47. This constitutes an important limitation to the application of enhanced cooperation. In any event, it has consequences in areas that are closely related with economic interests, since enhanced cooperation will potentially have a certain distortive effect on competition there. But again, it needs to be emphasized that not just every possible effect should be considered in the context of enhanced cooperation. I think that only a narrow interpretation of this condition, in the sense that there must be a noticeable distortion of competition, should be applied4 8. Such an interpretation is justified because enhanced cooperation consists of a group of Member States acting towards the fulfillment of Community aims within the institutional framework of the Union 4 9 . Claus Dieter Ehlermann, "Engere Zusammenarbeit nach dem Amsterdamer Vertrag: Ein neues Verfassungsprinzip?" (1997) 4 Europarecht 362 at 376 ["Engere Zusammenarbeit nach dem Amsterdamer Vertrag"], criticizes the introduction of this vague term, since it does not belong to the basic requirements for admissible differentiation according to traditional Community law. Wolfgang Kahl, "Art. 96", in Calliess & Ruffert, supra note 24, marginal note 5. See also Astrid Epiney, "Flexible Integration and Environmental Policy in the EU - Legal Aspects" in Holzinger, Katharina & Knoepfel Peter, eds., Environmental Policy in a European Union of Variable Geometry (Basel: Helbing & Lichtenhahn, 2000) 39 at 60. This case is clearly a different one from the single-handed action of one Member State under Art. 95 (1) TEC and the wide interpretation that has been adopted to justify harmonisation in such matters. Because harmonisation was often the only way of getting anything done at the Community level, the notion of distortion of competition was therefore largely used whenever there were different regulations. Stephen Weatherill, ""If I'd wanted You to Understand I Would 83 Thus the interests of the Union are safeguarded. Enhanced cooperation is meant to serve the interests of the Union; even i f temporarily some distortion would arise, the idea is that eventually all, or at least a majority of Member States, would adopt the same (better) framework of legislation. For areas with no primary economic interests involved, such as culture, health and (partly) environment, it can be assumed that generally no major competition problems would arise and the mere potential of a distortion of competition would not be enough to prevent enhanced cooperation. In conclusion, it can be said that the criteria of Art. 43 lit. f T E U should not be interpreted in a way as to leave no scope of application for enhanced cooperation. A broad interpretation would make it nearly impossible to initiate enhanced cooperation in the first pillar - because there will almost always be a certain effect on trade or competition. A n interpretation that narrows this condition to legal discriminations and noticeable distortions of competition, which can be considered disproportional, is therefore appropriate. C. R i s k s a n d O p p o r t u n i t i e s Flexibility is needed to balance differences in the Member States' economic ability to act, to manage the increased heterogeneity after enlargement, but it bears both risks and opportunities. 1. R i s k s There are two categories of risks that have to be considered: structural and political risks. Structural risks include above all the fragmentation or even destruction of the Union through too much flexibility. Furthermore, structural risks in terms of democratic have Explained it Better": What is the Purpose of the Provisions on Closer Co-operation Introduced by the Treaty of Amsterdam?" in O'Keeffe D./Twomey P., Legal Issues of the Amsterdam Treaty (Oxford: Hart, 1999) 21 at 29 ["If I'd wanted You to Understand"], talks about "camouflaging political desire to make things happen at Community level with its . constitutionally capacious cloak of harmonisation under Art. 100/100a". 84 legitimacy arise: On the one hand, increased complexity does not help to bring the E U nearer to the people50, on the other hand, the European Parliament has been attributed a weak role in the provisions on enhanced cooperation51. Political risks are manifold, both internal to the E U and external. The latter includes for example that the credibility of the E U in the world will suffer, because it becomes even more difficult to know which level (EU, group of E U Member States) is affected by which measures and whether the E U is acting for all or just a part of the Member States. One of the internal political risks is that the possibility of the deepening of integration in some areas for a group of Member States could render the "finding of consensus through package-deals" , as it was successfully practiced in the past, obsolete. This would cause a significant slowing down of the integration dynamic -contrary to what flexible integration aims at. The loss of an effective consensus finding method could lead to less compromises in discussions about new policy fields or reforms in the Council (especially during Intergovernmental Conferences), since there would still be the possibility of enhanced cooperation. Another political risk is the threat potential and the pull effect of the mechanism, at least from the perspective of outsiders to a certain enhanced cooperation. In case some states are simply against a specific project, other states could threaten to use the provisions on enhanced cooperation. This threat could be effective because it is not attractive for Member States to be "excluded" and not able to take part in the decision making, especially when they risk having to adopt the whole set of rules created by a Ehlermann, "Engere Zusammenarbeit nach dem Amsterdamer Vertrag", supra note 46 at 369. According to Art. 11 (2) the Parliament will only be consulted on the authorisation to establish enhanced cooperation. An assent of the Parliament is, however, necessary in cases where enhanced cooperation relates to an area covered by the co-decision procedure (Art. 251 TEC). Cf. Shaw, "The Treaty of Amsterdam", supra note 16, 63 at 85. Claus Giering, "Vertiefung durch Differenzierung"(1997) 2 Integration 77. The method consists in creating large packages with different projects which offer something different for everyone, in order to achieve a compromise (because Member States want to achieve a certain thing, they are ready to renounce something else). 85 enhanced cooperation group one day anyway . This poses problems of democratic legitimacy, as does the following potential scenario: Since some influences of enhanced cooperation projects on non participants cannot be excluded (notwithstanding the strict provisions), it may be that considerations of power lead to an increased pressure to participate. Maybe some Member States let themselves be pushed to participation in unwanted deepening projects or at least to increased readiness to compromise, before enhanced cooperation is put in place55. 2. O p p o r t u n i t i e s The objective of enhanced cooperation is to create more adaptability to current and future challenges, whereby the dynamic of integration can be preserved. The enlargement of the Union to 25 Member States will have a huge impact on the integration process. This perspective increased the necessity to create instruments for preventing stalemate. Closer cooperation outside the treaty structure is seen as dangerous for the balance of the institutions - which is an essential factor for the EU's stability and ability to act - because the democratic and legal guarantees of the Union' cannot be applied5 6. Thus, it was essential to develop an "internal" instrument of flexible integration. Enhanced cooperation offers the opportunity to work within the institutional framework of the Union, and the Union's control mechanisms can be applied. Art. 43b TEU states that enhanced cooperation must remain open at any time for Member States, „subject to compliance with the basic decision and with the decisions taken within that framework". Such a pull effect could already be seen in the developments concerning the Economic and Monetary Union and the social policy provisions. That is also why Great Britain wanted to have a unanimous decision on the initiation of an enhanced cooperation, see Ehlermann, "Engere Zusammenarbeit nach dem Amsterdamer Vertrag", supra note 46 at 370. Precisely for this reason, the readiness to compromise on the side of the participants in an „avantgarde" group could decrease. -While it is difficult to estimate the political acceptance of such unwanted progress, the current "discipline" of some Member States in the implementation of (jointly developed!) EU law does not bode well for real deepening through such initiatives. Cf. Shaw, "The Treaty of Amsterdam", supra note 16 at 84, who explains that if the Schengen agreements had to be looked at examples of enhanced cooperation outside the treaties, with the undemocratic processes this entailed, it would well be worth giving up some aspects of constitutional unity in order to promote democracy. 86 Enhanced cooperation not only offers the possibility to move on despite economic disparities, but also in situations where some Member States lack political will . Not only will the differences of opinion grow with enlargement, but the deepening of the Union has already progressed so far that it is not about finding compromises in peripheral areas of national sovereignty; more and more core areas are being targeted (social policy, tax policy, etc.). Therefore it is crucial to take the political will of the actors more into account57. Against the backdrop of the historical, cultural, political, economical and social differences in Member States, flexible integration seems to be the most suitable approach for the shaping of the institutional order of the Union. Openness for initially non participant members and the possibility of a partial participation in the integration process are important58. Therefore, the big opportunity of enhanced cooperation is that "while allowing diversity it avoids splintering and prevents the integration process becoming the hostage of the slowest or most reluctant Member States"59. In providing "controlled experimenting", enhanced cooperation provides a laboratory for innovative policy solutions that can later be applied to all Member States60. D . C r i t i c a l A s s e s s m e n t / O u t l o o k Enhanced cooperation can present an effective alternative to cooperation under public international law and thus prevent the circumvention of the Community procedures i f the numerous conditions are interpreted by way of a teleological reduction (i.e. a By allowing more diversity, enhanced cooperation could even lead to more democratic legitimacy of the EU, see Warleigh, Democracy in the European Union, supra note 9 at 69. Rainer Hofmann, "Wieviel Flexibility fur welches Europa?" 34:6 (1999) Europarecht 713 at 733. The author advocates for accepting complex and diverse systems based on flexible structures, since they do not necessarily engender chaos, but allow fruitful developments. Jo Shaw, "Flexibility in a "Reorganised" and "Simplified" Treaty" (2003) 40 CMLRev. 279 at 287. Therefore, enhanced cooperation also corresponds to the well-known pattern of the integration process that is incrementalism. See on this pattern, Nugent, The Government and Politics of the European Union, supra note 6 at 99. 87 narrow interpretation of the conditions' scope)61. It offers a way out of stalemate, a solution for safeguarding the dynamic of the integration process and a possibility for developing and testing innovative policies in a smaller group that can eventually be transferred to all of the Member States. The management of flexibility, however, could pose huge problems in the long run-whether fragmentation can really be prevented is difficult to assess. The implications of the process on the democratic accountability of the policy development could raise some concerns as well - what i f reluctant Member States in the end just have to adopt policies that were developed through enhanced cooperation and thus without their participation? The fear of a "directorate" of some selected Member States thus is somewhat understandable. I I I . Application of enhanced cooperation in E U environmental law The mechanism of enhanced cooperation has not yet been put into effect. This could change soon, since ten new Member States joined the E U on May 1, 2004. After a short overview of E U environmental policy, I will try to show in what cases enhanced cooperation could be applied for the benefit of the environment. A. E U environmental policy The Treaty of Rome of 1957 (the founding treaty of what has become the EU) did not mention the environment at all. The aim of the new supranational organisation was primarily an economic one. Awareness of the interdependence of a growing economy and the environment began to develop only ten years later when industrial production processes and the intense use of chemicals were recognized as causing environmental damage. With the Stockholm Declaration of the UN Conference on the Human Environment in 1972, proclaiming that "a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences" (I, point 6), the time of 'blessful ignorance' was finally over. It was recognized that the protection of the environment demanded "the acceptance of 6 1 Cf. Weatherill, ""If I'd wanted You to Understand", supra note 49 at 32, who talks about the necessity "to soften the criteria". 88 responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts" (I, point 7). The beginning of E U environmental policy dates back to November 1973, when the 62 first action program of the then European Economic Community was adopted . This happened again at least partly for an economic reason: the Member States had begun to develop legislation for pollution control and the different measures threatened to distort trade within the Community, therefore harmonization of policies at the Community level was considered necessary. Over the last three decades, environmental policy in the E U was transformed from a "series of incidental measures to a far-reaching multilevel governance system" , including over 400 pieces of legislation relating to environmental protection. Amendments of the Treaty of Rome (the Single European Act of 1987 and the Maastricht Treaty of 1993) conferred a firm legal basis to environmental policy (Title X I X , Art. 174-176 TEC). Internationally, the E U has signed many environmental conventions. Thus, the legal and political developments in this area have led to a "federal system with more than one legislature, but where the higher level of government is not itself a nation state"64 or a multilevel governance structure65. Declaration of the Council on a programme of action of the European Communities on the Environment (First Environmental Action Program), O.J. C. 112/1, 20 December 1973. Further environmental action programs followed in 1977, 1982, 1987, 1993 and 2001 (References for all action programmes can be found online: DG Environment, <http://europa.eu.int/comm/environment/env-act5/envirpr.htm>). While the first three programs focused on a sector by sector policy approach without dealing much with implementation, the fourth and fifth program emphasized the need to integrate environmental considerations in all policy sectors and to tackle the problems at the root, e.g. the problem of consumption. This is particularly important, since energy and water use, car ownership and the production of wastes are ever increasing in the EU and contribute to continuing deterioration of the environment, see Andrew Jordan, "EU environmental policy at 25: the politics of multinational governance" (Jan./Feb. 1998) 40:1 Environment 14 at 20 ["EU environmental policy at 25"]. The integration of environmental requirements into all Community policies and actions has been given a legal basis by the Treaty of Amsterdam in Art. 6 TEC. Jordan, "EU environmental policy at 25", supra note 52. Nigel Haigh, "The European Community and International Environmental Policy" in A. Hurrell & B. Kingsbury, eds., The International Politics of the Environment (Oxford: Oxford University Press, 1992) 228 at 233. Jordan, "EU environmental policy at 25", supra note 52 at 17. 89 E U environmental policy covers many different areas, such as water and air pollution, transport pollution, waste management, control of the chemical industry, environmental impact assessment, protection of wildlife and human health, and incentives for research and development of eco-technology66. Already by the mid-1980s, the Community's environmental policy had taken the lead on national environmental legislation and was "the single most significant factor affecting the development" of such legislation67, pushing "laggard" Member States to take action in this area. The decision-making procedure changed from unanimity to qualified majority voting in the Council for environmental measures linked to the single market and was extended by the Maastricht Treaty to most areas of environmental policy 6 8. Decision-making in environmental issues follows the co-decision procedure of Art. 251 TEC. The Parliament and the Council act as co-legislators; both can go through two successive readings of a proposal by the Commission. If no agreement can be found between Council and Parliament, a conciliation committee is set up, a solution has to be found which then goes through a third reading by Council and Parliament. This is the primarily used procedure for policy-making in the European Union's first pillar. The legal basis for a legislative proposal determines the procedure that has to be followed. Therefore it is very important for the Commission to chose the right basis; the choice can be very contentious in cases where two or more areas are concerned and different procedures could apply - however, for health and consumer protection, which often are interconnected with environmental issues, the co-decision procedure applies as well. A legislative procedure can be more difficult in areas where the unanimity requirement persists69. But even with qualified majority voting, there is no guarantee of being able to establish a higher protection standard, because it is not easy to Pamela M. Barnes, & Ian G. Barnes, Environmental Policy in the European Union (Cheltenham: Elgar,1999)at 1. Ibid, at 1. According to Art. 175 paragraph 2 TEC, unanimity is still required for provisions primarily of a fiscal nature, measures affecting town and country planning, quantitative management of water resources or measures affecting the availability of those resources, land use, with the exception of waste management and measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply. Measures under Art. 175 (2), Art. 93 or 152 (4) TEC, i.e. essentially measures with tax effects, town and country planning, land use, quantitative management of water resources and issues concerning the choice between different energy sources and the general structure of energy supply. 90 achieve the necessary majority in the Council . It will be even more difficult in a Union of 25 Member States71. B. Enhanced cooperation in environmental policy Environmental policy in the E U is to a large extent concerned with harmonization of standards72, be it product requirements or emission limits for certain substances. As there are substantial controversies on such issues, stalemate or stagnation can be the result. Flexibility has always been used in environmental policy, through permanent exceptions or temporary transition periods , since different Member States face different challenges in terms of ecological, economic and social conditions74 The recent enlargement to 25 Member States will , however, increase the differences. Environmental protection is one of the areas where the new Member States75 have for the most part only recently begun to develop coherent internal law 7 6 and the scale of The list of environmental initiatives blocked for a long time in the legislative process is long and therefore the scope of application for enhanced cooperation would be quite large. See Stefani Bar et al. Verstdrkte Zusammenarbeit im Umweltbereich - Moglichkeiten der Anwendung der in Titel VII TEU festgelegten Bestimmungen fur Flexibilitat im Umweltbereich commissioned by the Austrian Federal Ministry of Environment, Youth and Family Affairs, Berlin, September 1999, Annex of pending and failed legal procedures since 1992 at 150-169. A report based on interviews with 30 senior European Commission officials directly involved with enlargement ("Enlargement 2004 - Big Bang and Aftershocks", online: Burson-Marsteller, <www.bmbrussels.be>, 12 (July 3, 2004)) states for the environment, "The ten new member states will slow down policy development dramatically". The initial reason for the EC to engage in environmental matters was, as with equal treatment of men and women, the emergence of trade barriers due to different standards in the Member States. Therefore the first standards to be harmonized concerned product regulations as they emerged in Member States. But already early on, another group of framework directives was aimed at a more general goal of protecting the environment through environmental quality objectives, which constituted a new step in European integration. See Duncan Liefferink & Mikael Skou Andersen, The innovation ofEU environmental policy (Oslo: Scandinavian University Press, 1997) at 11. See for the legal basis for primary law differences Art. 95 and Art. 176 TEC (provide the option for MS to maintain or introduce stricter national measures than agreed at the EU level); for flexibility in secondary law Art. 95 para 10 and Art. 175 para 5 TEC (safeguard clauses and transition periods for the implementation of Directives). A fact that is already recognized in Art. 174 para 2 TEC: "Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community". Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia. And most countries have inherited a legacy of pollution. There are many contaminated sites, air pollution is worse than in the EU, the energy sector uses outdated technology etc. See 91 environmental damage is huge in some areas. Despite considerable effort on the part of the new Member States to fulfil the requirements set out by the acquis communautaire in view of their accession , meeting the commitments arising from the existing European Union law will be challenging enough. And although the principle is that the new members have to implement all E U environmental legislation by the time of accession, transition periods had to be granted for certain 7R areas (e.g. build wastewater treatment plants) . One of the most difficult aspects is the strenghtening of the new members' environmental administrations in order to be able to implement and enforce E U legislation (part of the Phare financial aid is dedicated to institution building efforts). Deepening the environmental union and establishing higher standards for extended environmental protection to other areas will likely be a low priority for the new Member States , because economic development will be considered more pressing "Enlargement and Environment: Questions and Answers" (May 2002), online: EU DG Environment, <www.europaxu.int/comm/environment/enlarg/pdf7qa.pdf> (August 4, 2004). This is another aspect of the changed integration method: countries have been asked to assimilate prior to being members and have thus voluntarily adopted the whole acquis without having acquired the status of members. In order to help the candidate countries in this task, the EU set up financial and technical support through different programmes: Phare programme (assistance in institution building and investment support), SAPARD (agriculture and rural development) and ISPA (Instrument for Structural Policies for Pre-Accession, which finances environmental and transport infrastructure) provide an annual EU assistance form Euro 1.5 to Euro 3 billion for the period of 2000-2006. This financial assistance, however, is only a fraction of what is needed. The Commission estimated that investments needed to conform to EU environmental legislation for the ten new members would be around Euro 80 -110 billion. For further information see Commission Communication, "The Challenge of Environmental Financing in the Candidate Countries", online: EU DG Environment, <www.europa.eu.int/comm/environment/docum/01304_en.htm> (August 4, 2004). Transitional arrangements for urban wastewater treatment go from 2009 (final date for full compliance in Lithuania), to 2010 (in Czech Republic, Estonia) to 2015 (in Latvia, Poland, Slovakia, Slovenia and Hungary). No transition periods have been accepted for example for the framework directives on water and air, as well as for directives on nature protection, access to information and environmental impact assessment. See "Enlargement and Environment: Questions and Answers" (May 2002), online: EU DG Environment, <www.europa.eu.int/comm/environment/enlarg/pdf7qa.pdf> (August 4, 2004). But it has to be noted that the new Member States will bring environmental assets to the EU, like for instance an amazing richness in nature, species and habitat types that have vanished from western Europe, see <www.europa.eu.int/comm/environment/enlarg/pdf7qa.pdf> (December 12, 2003), DG Environment, May 2002. It will be the responsibility of the EU as a whole to protect this "capital" from unsustainable development when confronted with demands of economic development. 92 and desirable. The group of "laggard" States, that are against higher standards in environmental protection, will probably be strengthened. Thus, the decision-making at the E U level will become more difficult, not only in matters where the unanimity rule still applies, but also for policy measures aiming at higher environmental standards. As Liefferink & Andersen point out, regulating new issues (real innovation in environmental policy) usually happens in the specific phase of agenda setting, the creation of strategic programmes (Action Programmes) or the Treaty revision process80. Enhanced cooperation can be of use in such matters, because it provides the opportunity to break through the reluctance of Member States to embrace new environmental matters and make it possible for "avantgarde" States Q J not to be hindered by "laggards", but to move on . In the best case, a spillover effect is created: seeing that a specific policy measure works well, more and more Member States participate in the cooperation. Enhanced cooperation can thus on the one hand give "additional political leverage" to environmental leader states82, helping to balance the growing influence of the laggards83 and on the other hand offer a way out of stalemate on decisions concerning environmental issues. It could also reactivate a certain dynamic in E U environmental policy making, which has been somewhat lost in recent years . Of course, having a high policy output is not enough; effective implementation is needed to realise agreed Liefferink & Andersen, The innovation ofEU environmental policy, supra note 72 at 10. Stefani Bar & Ingmar von Homeyer & R. Andreas Kraemer, "Amsterdam Flexibility: Green Cooperation for Europe's Environment", RECIEL (Review of European Community & International Environmental Law) 9 (3), 2000, 307 at 310 ["Amsterdam Flexibility"] talk about the „threatening" effect: the existence of the enhanced cooperation mechanism could be a tool for environmental „leader" States to push the "laggard" States by threatening to initiate an enhanced cooperation if the latter do not agree to a higher level of environmental protection under the normal legislative process. As leader or pioneer states have been identified: Denmark, Germany, Austria, Sweden, Finland and the Netherlands (see A. Sbragia, "Environmental Policy" in Helen Wallace & William Wallace, eds., Policy Making in the European Union (Oxford: Oxford University Press, 1996)at 235 and Michael Skou Andersen, & Duncan Liefferink, eds., Environmental Policy: the Pioneers (Manchester and New York: Manchester University Press, 1998). Bar & von Homeyer & Kraemer, "Amsterdam Flexibility", supra note 81 at 310. See Jordan, "EU environmental policy at 25", supra note 52 at 20. 93 upon aims . While measures adopted at the Community level with the participation of all Member States are usually not supported in the same manner by all, my hope for enhanced cooperation initiatives is that they are less prone to weak implementation and therefore more effective, since their participants clearly have the political will to achieve the set aims. The condition which is particularly relevant for enhanced cooperation in environmental matters is Art. 43 lit. f TEU (no barrier to trade or discrimination in trade between the Member states and no distortion of competition). Barriers to trade can be caused through national product standards that are based on environmental criteria and the costs that companies have to bear that operate within the Common Market due to different national legislation86. The applicability of the enhanced cooperation mechanism largely depends on the character of the measure. Three broad categories can be distinguished: product-related regulations87, process-related measures and measures of 'pure' protection of nature88. The first category includes for example car emission limits and requirements for drinking water quality - i.e. quality requirements and discharge limits. Higher standards for certain products could be set by a group of Member States, but they would have to respect the principle of non-discrimination and therefore admit the products of the non-participating countries. This would put manufacturers in the enhanced cooperation countries at a disadvantage. For such standards, the provisions on the free movement of goods (Art. 28-30 TEC) would be applicable. They prescribe 8 5 Barnes & Barnes, Environmental Policy in the European Union, supra note 56 at 12 describe the dilemma which the EU has to resolve as "how to ensure that the rhetoric of environmental policy does not overwhelm the action and leave environmental damage as a drain on the economic resources and economic growth of the EU". On the implementation of environmental policy in the EU see Glachant, Implementing European Environmental Policy, 2001. 8 6 On the European Union's action to prevent such distortions see Barnes & Barnes, Environmental Policy in the European Union, supra note 56 at 124. 8 7 Product standards regulate the properties of marketable and tradable products. 8 8 .See for example Bar & Homeyer & Kraemer, "Amsterdam Flexibility", supra note 81 at 311; Epiney, "Flexible Integration and Environmental Policy in the EU - Legal Aspects", supra note 48,39 at 60. 94 the right to free circulation for products originating from Member States (and products from third countries in free circulation in a Member State). According to the Dassonville formula, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to 89 be considered as measures having effect equivalent to quantitative restrictions . Art. 30 provides the possibility to justify such measures for environmental policy requirements. If and to what extent justification for enhanced cooperation concerning product standards would be admitted, has to be decided on a case by case basis. Since the problem of trade barriers and distortion of competition is particularly acute in this category, application for enhanced cooperation will remain limited 9 0. More probable are initiatives concerning process-related regulations, where the common market is only indirectly affected. The Community does not generally91 adopt harmonized standards for production processes . Process-related measures include for example environmental assessment procedures, and measures such as the directive on integrated pollution prevention and control (IPPC) 9 3. The latter provides a framework for the licensing of polluting emissions from industrial installations, based on the Best Available Technique (BAT) 9 4 approach. Environmental measures can cause production costs to raise, but this does not always result in a distortion of competition. On the contrary, an incentive to develop clean technologies could lead to 8 9 E.C.J. Procureur du Roi v. Dassonville, case 8/74 [1974] 837. 9 0 See Harrie Temmink "From Danish Bottles to Danish Bees: The Dynamics of Free Movement of Goods and Environmental Protection - a Case Law Analysis" (2000) 1 Y.B. Eur. Env. L. 61. 9 1 Exceptionally, uniform emission limit values were fixed, e.g. for large combustion installations and waste incinerators. 9 2 Ludwig Kramer "Thirty Years of EC Environmental Law" (2002) Y.B. Eur. Env. L. 155 at 171. Instead the approach is to apply the concept of best available techniques (BAT) to installations. 9 3 EC Council Directive 96/6I/EC of 24 September 1996 concerning integrated pollution prevention and control, [1996] O.J. L. 257/26. This directive takes a different approach to environmental protection, by not focussing on individual environmental media, but recognizing that the different media are interrelated and that legislation targeting one medium may lead to a transfer of pollution to another medium. 9 4 Which is defined as the "most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing [...] the basis for emission limit values designed to prevent or reduce emissions and their impact on the environment as a whole", EC Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, [1996] O.J. L. 257/26, Art. 2 (12). 95 the emergence of an eco-industry in the participating countries. This would constitute a competitive advantage95, because eventually this or similar technology will have to be used by a l l 9 6 . In this area, enhanced cooperation initiatives could lead to a negative impact on competitiveness, which does not, however, necessarily distort trade. My case study will focus on the possibility to initiate enhanced cooperation in the area of chemicals review to examine i f in a competition sensitive area, enhanced cooperation can be used to make progress in the protection of the environment. Realistically, it is to be expected that enhanced cooperation is to take place in the third category, i.e. areas where no (major) economic impact is to be feared - not only because of the legal prerequisite of no distortion of competition, but also because the major decision-making factor are economic reasons. Thus, enhanced cooperation in the protection of habitat, nature, animals and biodiversity and the implementation of international agreements on environmental protection presents no major problems97. C. Example: R E A C H (Registration, Evaluation and Authorisation of CHemicals) - A New Chemicals Policy for the European Union 1. Introductory remarks The European chemicals industry is one of the most important industrial sectors. There are more than 29,000 European chemicals companies, but 40% of production is in the hand of the five biggest companies within the EU: BASF (Germany), Bayer (Germany), Atofina (France), Akzo Nobel (Netherlands) and BP (UK) 9 8 . Similar to the first mover strategy or the intentional pusher and forerunner roles described by Duncan Liefferink & Mikael Skou Andersen, "Strategies of the 'Green' Member States in EU Environmental Policy-making", in Andrew Jordan, ed., Environmental Policy in the European Union - Actors, Institutions and Processes (London: Earthscan, 2002) at 65. Rodolfo Lewanski, "Environmental Integration: Is a Green Government Enough? Some Evidence from the Italian Case" in Andrea Lenschow, ed., Environmental Policy Integration - Greening Sectoral Policies in Europe (London: Earthscan, 2002) 78 at 87 writes that for example in Italy there is a growing awareness that the competitiveness of firms on the international market depends upon their ability to develop environmentally compatible goods and services. These areas are mentioned by Bar & Homeyer & Kraemer, "Amsterdam Flexibility", supra note 81 at 311. Data for 2002, "Facts and Figures", online: CEFIC (Conseil Europeen de l'lndustrie Chimique / European Chemical Industry Council), <http://www.cefic.org/factsandfigures/> (July 3, 2004). 96 Due to the EU's environrnental legislation, new technologies have been introduced and have brought cost and time savings, which in turn has led to more commitment of this sector to environmental protection than other industry sectors, since it was recognized that this had led to a strengthened competitiveness". Obstacles to trade were prevented by a wide-ranged national and supranational legislation, affecting all companies in the sector to the same extent100. This latter consideration does of course not apply when we talk about enhanced cooperation, since not all companies would be affected in the same way. 2. T h e R E A C H I n i t i a t i v e "The chemical substances review has become one of the fiercest political battlegrounds ever in the history of policy definition in the EU. Because of its wide implications for competitiveness and innovation on the one hand, and health and the environment on the other, the proposed legislation has led to very intense and effective lobbying."101 a) Background Some economic facts illuminate why a consistent and environmentally sustainable E U chemicals policy is of the highest importance for all of us: • European industry produces 28.6% of the world's chemicals (the US 26.34%) Note that fifteen of the thirty biggest producers in the world have their headquarters in the EU -BASF and Bayer being the two biggest worldwide. The positive result is that the chemical industry has doubled its production since the 1970's, but reduced its pollution impact by 50%, see Barnes & Barnes, Environmental Policy in the European Union, supra note 56 at 175. It is not clear, however, whether this positive result is really as positive as it looks at first sight, since the point of departure is not defined - suppose the chemicals industry started with the worst chemicals and no environmental protection at all. In that case, the reduction by 50% does not look all that impressive. Ibid, at 175. "Chemicals: Commission modifies legislative plans after successful consultation", online: EurActiv, <http://www.euractiv.eom/cgi-bin/cgint.exe/l ?204&OIDN=1506288&-home=home> (August 4, 2004). Numbers for 2002, "Facts and Figures", online: CEFIC (Conseil Europeen de lTndustrie Chimique / European Chemical Industry Council), <http://www.cefic.org/factsandfigures/> (July 3, 2004). 97 • The EU's chemical industry generates around 1.7 million jobs (indirect employment for more than 3 million people) and is the world's third largest manufacturing industry The revolutionary approach of the Commission's proposal on a new chemicals policy for the E U 1 0 4 is situated in a context of a growing role of the E U as a leader in issues about chemicals that began in the 90s, when the Commission first assumed an active role in the international discussion about regulatory measures for trade in hazardous products105. The EC chemicals policy in the 60s and 70s was only based on the aim of creating the common market. Regulation served to remove trade barriers. The issue of serious environmental and health effects of hazardous chemicals emerged on an international level in the early 1980s. It was in this period that environmental and health considerations began to play a part in the EC's chemicals policy and risk assessment of new substances was introduced. Thus, two parallel systems were created, one for existing substances, which were marketed before 1981 1 0 6 and one for new See "Chemicals Policy Review REACH", Background, online: EurActiv, <http://ww.euractivxonVcgi-bin/cgint.exe/2126135-882?714&1015=9&1014=ld_chem> (August 4, 2004). The legal basis for the Commission's proposal for a Regulation is Art. 95 TEC in keeping with the objective of safeguarding the internal market, while ensuring a high level of health, safety, consumer and environmental protection. The precautionary principle (Art. 174.2 TEC in combination with Art. 6 and Art. 95.3) will continue to guide the approach in the implementation of necessary measures (see MEMO/03/213, Brussels, 29 October 2003, "Q and A on the new Chemicals policy REACH", online: EU, <http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/03/213&format=HTML& aged=0&language=EN&guiLanguage=en> (July 3, 2004). Marc Pallemaerts, "Regulating Exports of Hazardous Chemicals - EU External Chemical Safety Policy", in Golub, Jonathan, ed., Global Competition and EU Environmental Policy (London: Routledge, 1998) 60 at 72. The Commission was forced to take an active role in the 'Working Group on the Export of Domestically Prohibited Goods and Other Hazardous Substances' that was established by the GATT Council, because of its institutional position within the GATT and the necessity to speak with ,one voice' for the Community. These substances were included in the EINECS (European Inventory of Existing Commercial Chemical Substances), deemed to be on the EU Market between 1 January 1971 and 18 September 1981. It is a closed list of 100,106 'existing'chemicals governed by EC Council Regulation 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances [1993] O.J. L. 84/1. 98 substances that had to be assessed. The consequence of this legislation was that knowledge about most of the chemicals in use is sparse and often non existent (one report indicates that there is a lack of safety data on 95 per cent of existing chemicals in commerce)108. b) Content and Concepts REACH requires that enterprises that produce or import more than one tonne of a chemical substance per year register it in a central database. Industry is given more responsibility to manage the risks emanating from chemicals and to provide safety data on the substances109. The original proposal of the Commission in February 2001 (White paper)110 contained several promising features, such as the reversed burden of proof (industry has the burden of testing and assuring safety of the chemicals they use), no data no sales principle, blacklisting of hazardous substances, substitution principle111, sharing New substances are substances not in use in the EU before September 1981 and therefore not in EINECS. They must be notified before being placed on the market, after which they are registered in ELINCS (European List of Notified Chemical Substances, currently contains some 2,700 substances and is an ever expanding list, following notification to Competent Authorities of the placing of a 'new' substance on the market). International Chemical Secretariat, Report, New Chemicals Policy in the EU - Good or Bad for Companies? , May 2003, online: <www.chemsec.org> (August 3, 2004). This situation could be called an "organized lack of responsibility". The most evident shortcomings of the current system are that 100'106 existing substances can be used without testing, the burden of proof lies with the public authorities, there is no efficient instrument to ensure safe use of the most problematic substances, a lack of incentives for innovation, in particular of less hazardous substitutes (see the online: Environment Commission, <www.europa.eu.int/comm/environment/chemicals> (July 5, 2004)). REACH mandates that between 2006 and 2012, chemical producers have to register and make publicly available the latest information on health impacts for existing and new chemicals produced or used in quantities greater than one ton per year (estimated 30,000 chemicals) and strict evaluation of chemicals produced in quantities over one hundred tons. White Paper, Strategy for a future Chemicals Policy, February 2001, COM (2001) 88 (01), online: EU, <http://europa.eu.int/cgi-bin/eur-lex/> (July 2, 2004). It is interesting to follow the substitution principle through the legislative process, see "Chemicals Policy Initiative, Update on the European Commission's REACH Proposal — Registration, Evaluation, and Authorization of Chemicals" (November 2003), online: The Lowell Centre for Sustainable Development, <http://www.chemicalspolicy.org/downloads/Update%20on%20the%20European%20Commissio n%20final.doc > (July 3, 2002).The Commission's White Paper (Feb. 2001) called the substition of hazardous chemicals an important objective, the Council conclusions (June 2001) maintained 99 of knowledge between producers and users, increased consumer power and insight, and one system for both old and new substances . Most of these concepts are still contained in the legislative proposal, but some have already been watered down or deleted, such as the substitution principle. In the final proposal (of October 29, 2003), the principle of 'adequate control' was introduced instead, which means that even i f a safer alternative is available at a comparable price, the use of a chemical of very high concern could still continue113. This proposal is the result of the amendments the Commission introduced after an internet consultation with all interested parties114. that chemicals that are dangerous should be substituted with safer chemicals or with safer technologies, the EP resolution (Nov. 2001) called for the substitution principle to be fully applied to all chemicals of concern using a broad concept, the duty for manufacturers to substitute and no authorisation of substances of very high concern if alternatives exist, as well as no authorisations for substances of very high concern in consumer products after 2012 and zero discharges after 2020. The Commission's latest proposal of October 29, 2003, however, contains only the objective to encourage substitution, if the company can demonstrate that the dangerous substance is under "adequate control", there is no need to consider alternatives (COM 2003/644 (03) Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)). The EU's proposed new chemical policy therefore does not as yet include measures that will move us away from a permissive regime based on attempted control of exposure and risk. The new chemicals policy should aim at the elimination of exposure to intentionally manufactured substances whose intrinsic properties give cause for high concern Although the framework (REACH) and mechanism (Authorization) are there, the draft legislation continues with 'adequate control' as the regulatory paradigm. It is crucial to give a central place in chemicals legislation to the Substitution Principle. This can be defined quite simply as 'the substitution of hazardous substances by less hazardous substances or preferably non-hazardous substances where such alternatives are available'. Within REACH this means that the Substitution Principle needs to be written into the authorization procedure so that the availability of a safer alternative is sufficient grounds for an authorization to be refused. See "Safer Chemicals Within Reach. Using the Substitution Principle to drive Green Chemistry", online: Clean Production Action, <http://cleanproduction.org/NEWS/SafeChem.htm> (August 4, 2004). 1 1 2 For more details on these concepts see for example "New Chemicals Policy in the EU - Good or Bad for Companies?" (May 2003), online: International Chemical Secretariat <www.chemsec.org> (August 3, 2004). 1 1 3 For a critique see "EEB Position on Commission Proposal for a Regulation on REACH" (10 December 2003), online: European Environmental Bureau, <http://www.eeb.org/activities/chemicals/20031210-EEB-position-on-REACH.pdf> (August 4, 2004). For more information on the substitution principle which would replace this risk-based approach, see "Safer Chemicals Within Reach. Using the Substitution Principle to drive Green Chemistry", online: Clean Production Action, <http://cleanproduction.org/NEWS/SafeChem.htm> (August 4, 2004). 1 1 4 The debate was intense. During the eight week Internet consultation, more than 6,000 contributions were received. 42 per cent of them were sent by industry. 142 NGOs, five Member State governments and ten public authorities as well as many important international trading partners (such as Canada, Japan, the USA and others) sent their comments and position papers, 100 The R E A C H proposal is now being considered by the European Parliament (although a vote before the new Parliament is elected is not probable)115 and the Council of Ministers for adoption under the co-decision procedure. The Council discussed R E A C H at its Competitiveness and Environment sessions on May 17-18 and on June 28-29, 2004. The first reading in the Parliament will probably only take place at the beginning of 2005. The final view of the Council is to be expected under the U K Presidency and the finalisation of the legislation around the end of 2005 1 1 6. c) Procedure Three main phases of the process can be distinguished: Registration, Evaluation and Authorisation. A l l substances produced or imported in quantities over one tonne per year have to be registered with the new European Chemicals Agency 1 1 7. The manufacturer has to gather the relevant information on the properties, uses and safe management of the substance in question. The European Chemicals Agency asks the Member States' competent authorities to proceed with an evaluation. If the substance requires further regulation, because it • i n poses high risks , authorisation will only be granted i f these risks can be adequately controlled1 1 9. If this is not the case, surprisingly there is no direct ban of the see for more information "Chemical Policy Review REACH", Background, online: EurActiv, <http://ww.euractiv.com/cg^ (August 4, 2004). 1 1 5 The Parliament will probably examine the REACH regulation in fall 2004. A decision on which Committee (environment, industry or legal affairs) will take the lead on this dossier will be taken after the June 2004 elections. 1 1 6 See "The EU legislative process on chemicals" (June 2004), online: Chemical Reaction, <www.chemicalreaction.org> (August 2, 2004). 1 1 7 The European Chemicals Agency will manage the registration database and play a role in the evaluation and authorisation. The European Council decided (12 December, 2003) that the agency will have its seat in Helsinki, Finland. 1 1 8 I.e. because it has very hazardous properties or poses unacceptable risks - such as substances that can cause cancer or mutations or is toxic to reproduction (CMR), is persistent, bio-accumulative and toxic (PBT) or very persistent and very bio-accumulative (vPvB) or equivalently serious and irreversible effects. 1 1 9 The substitution principle would mean that the availability of a safer substance would be sufficient to refuse authorization. 101 substance, but it can still be used i f the socio-economic benefits of using the substance are bigger than the expected risk (and no suitable substitute is available). d) Reactions to R E A C H Generally, the main positions in the E U on the issue of R E A C H can be divided as 120 follows . The chemicals industry (and 'downstream users' of chemicals, e.g. producers of cars, toys, furniture etc.) fear the paperwork, the loss of flexibility, competitiveness and jobs. Industry claims that R E A C H will be too costly, unworkable and will cause huge job losses in the sector. Environmental and consumer NGOs, initially supportive of the White Paper proposal, accuse the Commission of caving to the pressure of industry121 and the United States122. The potential economic impact of the new policy has been and still is the object of different studies with very different outcomes, depending on who commissioned the study. The Commission estimated, for example, that the cost for industry will be around 2.3 billion Euro over 11 years (which would correspond to 0.05 per cent of the annual 123 turnover of the sector) , while a study by the Union of Chemical Industries (UIC) recently found that R E A C H could cost " 28 billion and 360,000 jobs by 2010" and that 10-30 per cent of chemicals will be too expensive to register and therefore "Chemical Policy Review REACH", Background, online: EurActiv, <http://www.euractiv.eom/cgi-bin/cgint.exe/2126135-8827714& 1015=9& 1014=ld_chem> (August 4, 2004). Paul Meller, "EU seeks new rules on chemicals", New York Times (30 October 2003), online: International Herald Tribune, <www.iht.com>. Industry used its influence to convince the US government to intervene and weaken a major environmental initiative in Europe, see Joseph DiGangi, „US Intervention in EU Chemical Policy" (September 2003) Environmental Health Fund, online: Clean Production Action, <www.cleanproduction.org> (August 3, 2004). The anticipated costs had been reduced by 80% from what was originally proposed, according to Erkki Liikanen, EU Enterprise Commissioner. Meller, "EU seeks new rules on chemicals"', supra note 121. To put these costs into perspective, it is interesting to note that ABB was forced to pay about one billion dollars in damages in the high-profile asbestos cases in the autumn of 2002. See International Chemical Secretariat, Report, "New Chemicals Policy in the EU - Good or Bad for Companies?", May 2003, 8, online: <www.chemsec.org>. 102 production would have to stop . The foremost supporters of R E A C H , environment and consumer organisations, compared the costs to industry with the gains that would result from a reduction in public health costs and a better protected environment. A WWF study found that over 30 years the financial gains could be around 293 billion Euro 1 2 5 . Although the fact that economy dominates politics is commonplace, it is surprising how openly the governments of the three biggest chemicals producing E U countries ( U K 1 2 6 , Germany1 2 7 and France) have developed a common position with industry and condemn R E A C H as being too bureaucratic and unnecessarily complicated. Support of R E A C H does not only come from green groups, but also from industry and downstream users, a fact that is not very present in the media. Thus, the Nordic industry and downstream users for example are generally neutral or in favour of 198 R E A C H . Three big German Unions argue also in favour of a strong chemicals legislation to protect the health of their members129. 1 2 4 "Chemical costs out of REACH" (April 13, 2004), online: Eupolitix, <http://www.eupolitix.com/EN/Bulletins/PressReview/Items/200404/aefl al 48-1 ae7-4115-86a6-cd6443475564.htm>, Press Review April 13, 2004, (April 20, 2004). 1 2 5 "The Social Costs of Chemicals - The Costs and Benefits of Future Chemicals Policy in the European Union" (May 2003), online: WWF UK, <http://www.wwf.org.uk/filelibrary/pdf/socialcostofchemicals.pdf> (August 4, 2004). 1 2 6 See DiGangi, "US Intervention in EU Chemical Policy", supra note 122 at 8. 1 2 7 Joint position of the German Government, the Association of the German Chemical Industry (VCI) and the Mining, Chemical and Energy Industrial Union (IGBCE) on the consultation document of the European Commission on the Registration, Evaluation and Authorization of Chemicals (REACH), August 14, 2003, online: EU Enterprise Commission, <http://europa.eu.mt/comm/enterprise/chermcals/chempol/contributions/public.hto (July 3, 2004). 128 "REACH - a leap forward for industry; Nordic Concerns and Benefits"(Press release March 25, 2004), online: International Chemicals Secretariat, <www.chemsec.org>, (April 14, 2004), see also "What we need from REACH"- Opinions from industries, Resume from a seminar held at the Swedish Permanent Representation, Brussels, 25th February 2004, online: International Chemicals Secretariat <www.chemsec.org> (August 3, 2004). 129 Position paper of IG Metall, ver.di and IG BAU, "EU-Chemiepolitik muss Schutz der Gesundheit und Umwelt in den Mittelpunkt stellen" (October 2003), online: International Chemicals Secretariat, <www.chemsec.org> (August 4, 2004). Recently, even the German and the Swedish Environment Minister argued for a stronger REACH, "A safe chemicals policy for Europe" (June 28, 2004), online: International Chemical Secretariat, <http://www.chemsec.org/trittsomm.htm> (August 4, 2004). 103 In the US, over fifty public health, environment and labor unions sent a letter to President Bush, asking the Administration to develop a positive position on R E A C H i in that broadly represents the American public's support for safer chemicals . The ambitious White Paper proposal by the Commission in 2 0 0 1 has become a much more modest project in the meantime. Pressure from industry groups within the E U has certainly contributed to the downsizing of R E A C H . Enhanced cooperation would allow some leader states to realise the ambitious goals of the original proposal. 3. Enhanced cooperation and R E A C H There are three possible scenarios for enhanced cooperation: groups for a stricter R E A C H could be composed of old Member States, of old and new Member States or of mainly new Member States. The scenario of enhanced cooperation between old Member States seems probable, since it can be expected that the new Member States will consider such a system as 131 too expensive and do not possess the administrative apparatus to deal with it . A lack of capacity would therefore exclude them from a stricter version - as could the prospect of being able to make some short term profit due to laxer environmental standards. A group of old Member States, possibly "leaders" like Denmark, Finland, Austria, the Netherlands and some other four states could establish enhanced cooperation and thus not play the game of the powerful chemical industry states such as Germany, the U K and France that have participated in the watering down of the proposal (it has to be noted that the lobbying by the US is particularly heavy and successful in this specific 130 "Building US Support for a new chemical policy by exposing the US government's Opposition to REACH", online: Clean Production Action, <http://cleanproduction.org/SustainableMaterials/Building_support.htm> (August 4, 2004). 1 3 1 A report based on interviews with 30 senior European Commission officials directly involved with enlargement ("Enlargement 2004 - Big Bang and Aftershocks", supra note 71 at 12) reads, "The new member states are expected to seek transition periods to allow their industries to adjust to ending the manufacture or use of certain products. The new members will also have problems with the testing requirements due to the costs involved." 104 case1 3 2). And even i f it is true that the big five chemicals companies produce 40% of all E U chemicals and the remaining 28995 companies the rest, it can still be positive for the environment, i f the majority of the remaining companies are in states participating in an enhanced cooperation. It is even possible that some new Member States would participate in enhanced cooperation in order to distinguish themselves as leader states . Another option would be that new Member States could take the chance to position themselves as "clean states", in order to attract industry that realises the innovative potential and the possible benefits from a "safe label", but this is admittedly the least probable scenario. 4. From Disadvantage to Advantage - Distortion Justified for Environmental Reasons The experience gained from widespread, uncontrolled use of chemicals should be enough for adherence to the precautionary principle and therefore strict and extensive registration and evaluation of chemicals to end the 'organized lack of responsibility'. One argument therefore is that health and environmental considerations need to have priority over economic considerations - certain effects on trade that could otherwise perhaps be characterized as distortions, need to be admitted in order to further the effective protection of the environment and the people. DiGangi, "US Intervention in EU Chemical Policy", supra note 122; United States House of Representatives, online: Committee on Government Reform Minority Office, "A Special Interest Study: The Chemical Industry, the Bush Administration, and European Efforts to Regulate Chemicals" (April 1, 2004) prepared for Rep. Henry A. Waxman, <http://www.house.gov/reform/min/pdfs_108_2/pdfs_inves/pdf_admin_reach_rep (August 4, 2004). A recent survey carried out by Friends of the Earth shows, for example, that potential MEPs from the ten new EU Member Countries are likely to back strict environmental legislation in the upcoming Parliament. For the areas of agriculture, chemicals, climate, consumption of resources, trade and corporate accountability, the Green NGO is optimistic, "European politicians from the new Member States are often seen as people who are more interested in economic growth rather than ethic and environment. But our survey draws a picture of European Parliamentarians from the new Member States working for a tightening of environmental standards," says Henning Bo Madsen from NOAH/Friends of the Earth Denmark, the lead organisation in the survey. "Eastern MEPs to back tight environmental rules", online: EurActiv, <http://www.euractiv.com/cgi-bin/cgint.exe/1933098-505?204&OIDN=1507833> (July 2, 2004). 105 In an attempt to take a more legal approach, I will try to explain why an enhanced cooperation concerning a stricter version of REACH would not necessarily have to fall under the "guillotine" of the distortion-clause (Art. 43 lit. f TEU, "Not constitute a barrier to or discrimination in trade between Member States and not distort competition between them"). As seen, the notion of distortion is characterized by "distortive legal differences, which on the one hand have no discriminating character prohibited by the Treaty and on the other hand do not simply lead to generally differentiated treatment throughout the whole Community, but which constitute such a clear advantage or disadvantage to specific economic branches that a rapid intervention is necessary in the interest of the internal market, where appropriate 134 even in anticipation of the general legal harmonization" As explained above, this condition has to be interpreted narrowly to make enhanced cooperation possible. Most importantly, two things have to be kept in mind. First, even if a group of Member States follows stricter regulation, products of other Member States will still be allowed within the enhanced cooperation group, since this is a requirement of the single market and enhanced cooperation has to respect the Treaty provisions. Second, the purpose of enhanced cooperation is to fulfill Community aims and ultimately its regulations should be taken over by all or at least most of the Member States. Why could enhanced cooperation concerning REACH be possible although some effects on competition are to be expected? The notion of distortion usually concerns regulations of a Member State which either put its own industry at a clear advantage or other states' industries at a clear disadvantage. This would not be the case for an enhanced cooperation, since stricter rules would apply for the participants' industry, but not for the non-participants, however, the products of the non-participants would still be allowed in the participants' territory. This means that the enhanced cooperation group would in a first step put its industry at a certain disadvantage, the others at an advantage - the reverse of what the notion of distortion usually covers Kahl, "Art. 96", in Calliess & Ruffert, supra note 24, marginal note 5. 106 (even though the definition above is more cautiously formulated and -put to the test -would probably also cover this situation). More importantly, the aim of the whole exercise is innovation. New ways need to be found to substitute dangerous substances and protect the environment. A distortion of trade, i f it would be established, could still be justified by reasons of public interest, such as the protection of the environment (that would be the same legal reasoning that applies for Art. 28 TEC, where the justification of a proportionate restriction of trade in goods is possible1 3 5 for mandatory requirements such as consumer or environmental protection, public health, etc.)1 3 6. The participating Member States get the chance to do their own "branding", in the sense that it will be known by consumers that their testing procedures are stricter and their products therefore safer compared to products from Member States with less stringent regulation. The disadvantage could shift to an advantage for the participant 137 states, as innovation takes place and consumer patterns change . This could lead to the participation of more Member States, since they realise that non-participation is neither in their political nor economical interest, which in turn could lead to a positive dynamic and faster integration process than would have been n o possible without enhanced cooperation . Besides the explicit exceptions contained in Art. 30 TEC. See on this argument Bender, "Die Verstarkte Zusammenarbeit nach Nizza", supra note 38 at 749. See also Bar & Homeyer & Kraemer, "Amsterdam Flexibility", supra note 81 at 311, who write that "short-term competitive disadvantages as a result of stricter environmental process standards could in many cases be compensated by market and modernization effects which provide participating States with medium- to long-term economic and technical advantages, for example with regard to demand for environmentally sound prodcuts, resource efficiency or pollution-abatement technology". Thereby the principle of consensus decision making is challenged, of course. The danger is, that the group of Member States participating in enhanced cooperation functions as a "directory" for all others that have to follow later on. However, the requirements for enhanced cooperation are quite clear: only initiatives furthering the interests of the Union will be allowed and the Commission's central role in the authorization process ensures that there will be no pushing of purely national interests through enhanced cooperation. Some also think that the democratic decision making process is put at risk. This however, need not be true, because the procedures are those of the Treaties and the European Parliament,even participates as a whole (no exclusion of 107 The requirement of Art. 43 lit. f T E U does make a lot of sense, because an economic "test" is needed to ensure that a locational advantage is attained only through environmentally positive innovation in the interest of the Union and not through measures aiming simply at protectionism of a certain national industry. In sum, enhanced cooperation could offer the possibility for smaller or less important Member States, too, to develop their "brandname" through turning a competitive disadvantage into an advantage. D. Conclusion Enhanced cooperation in the case of environmental policy in general could lead to effective policy making and innovation at a much faster pace. In the case of the new European chemicals policy R E A C H , the so called "ambitious", but really common sense aims (such as the introduction of the substitution principle) of the original Commission proposal could be realised by a group of willing and capable Member States. Such an initiative could lead to more public pressure on non-participant States to agree to stricter procedures and thus eventually to more effective environmental protection - benefitting not only the environment, but the state of health of all E U citizens and consumers of E U products, too. While some effects on trade are to be expected from enhanced cooperation in this area, they do not constitute a distortion of trade such as prohibited by the Treaty and excluded by the requirements for enhanced cooperation. And even i f they would constitute a distortion of trade, a parallel argument to the legal reasoning of Art. 28 TEC could be made, namely it could be justified for public interest reasons, such as the protection of the environment. non-participant States' MEPs) - this is precisely the advantage of enhanced cooperation compared to enhanced cooperation outside the framework of the Treaties. 1 0 8 Chapter 4: Comparison of the Two Mechanisms The purpose of this chapter is to identify the major similarities and differences between the two mechanisms of flexible integration examined in the previous chapters in order to gain some insight into how each mechanism could be rendered more effective. Furthermore it situates the mechanisms in the big picture of how a modern state or state-like organisation is working towards protecting its most essential basis: the environment. I. Introductory Remarks and Background Both Canada and the E U face the challenge of managing diversity in environmental protection and need to find a way to prevent lowest common denominator solutions. The ways they have chosen to address these issues are harmonization and enhanced cooperation. The Canadian mechanism established through the Canada-wide Accord on Environmental Harmonization has been compared to similar efforts in Australia, Germany and the U.S. 1 , but not to the E U . Furthermore, a analysis of environmental regulation in the U.S., the E U and the international community has been undertaken from a law and economics perspective . The E U enhanced cooperation is relatively new and, as far as I know, has not been compared to a similar mechanism in another legal system. Therefore the comparison of the two mechanisms represents a new approach. Recommendations regarding caution when comparing legal systems or parts thereof (see Chapter One) are particularly valid for this chapter; suggestions and ideas for See Debora L. VanNijnatten, "Intergovernmental Relations and Environmental Policy Making" in Patrick C. Fafard, & Kathryn Harrison, eds., Managing the Environmental Union -Intergovernmental Relations and Environmental Policy in Canada, (Montreal & Kingston: McGill -Queen's University Press, 2000) at 23. Richard L. Revesz & Philippe Sands & Richard B. Stewart, eds., Environmental Law, the Economy and Sustainable Development - the United States, the European Union and the International Community (Cambridge: Cambridge University Press, 2000). 109 improvement made here are therefore to be taken as such and not as recommendations. The compared mechanisms are set in similar, but different political systems ; the history of their creation needs to be seen against a different political background4, and even though the challenges which motivated the choice of these solutions are similar5, the context influenced not only the design of the mechanism in each system, but also represents the framework within which amendment has to take place. The latter aspect leads to specific limits in each case (such as, for example, the impossibility to make the C W A E H legally binding because of the principle of the responsible government). II. Comparison of the Substance How do the mechanisms differ and why; where are they similar and why? What can be said about the results and what has been achieved? Where are the pitfalls and what are the potential benefits in each of the mechanisms? Looking at E U enhanced cooperation and harmonization in Canada, four major issues seem to emerge that are examined more closely in the following sections: effective policy making, implementation, accountability and public participation. A. Effective Policy Making One of the most interesting issues is, of course, whether the chosen mechanisms really lead to effective policy making and thereby to strengthened environmental protection. Two aspects might reveal whether this is the case: the decision making Both are decentralised federations, the EU characterised by semi-parliamentary federalism, Canada by parliamentary federalism. The EU mechanism of enhanced cooperation has a strong institutional system in the background; in the case of the CWAEH, the CCME is not an elected body, has no binding power over the jurisdictions. Particularly the wish to avoid lowest common denominator solutions and to achieve a high level of environmental protection. In the EU, however, the enlargement was the main push to "invent" a new mechanism, while in Canada, the lack of national standards and resulting pachwork of different solutions needed to be addressed. 110 procedure that was chosen in each case and the results that were achieved or could potentially be achieved. 1. P r o c e d u r a l I s s u e s A major difference between the Canadian and the E U mechanism lies in the choice of the decision making procedure: While in Canada, consensus is necessary to develop a common standard, the major decision making procedure that formally applies to E U enhanced cooperation in environmental policy is qualified majority voting. Authorisation to establish E U enhanced cooperation is given by the Council, acting by a qualified majority (on a proposal by the Commission and after consulting or having the assent of the Parliament). Decisions within a enhanced cooperation group are taken according to the provisions in the Treaties. For environmental policy, this would mostly mean qualified majority voting. Qualified majority voting (QMV) obliges all Member States to participate in a generally agreed policy, whether they voted for it or not. This procedure has been successfully applied and has helped to put some very ambitious measures in place6. As with enhanced cooperation, the idea is that the most reluctant Member States should not set the pace for all others, but as seen above, Q M V alone is no longer sufficient to avoid stagnation, because it can be hard with so many members to attain it. A qualified majority is the number of votes required in the Council for decision making on issues falling under Art. 205 (2) TEC. The total number of votes in the Council increases from May 1, 2004 (date of enlargement) from 87 to 124. This arrangement will be changed again on January 1, 2005 , when the votes will be re-weighted in order to better reflect the relative population size of the Member States. Two conditions must be fulfilled to attain a qualified majority: the proportion of votes required will be of 72 per cent8 and these votes must come from a majority of 6 Such as the European Monetary Union and the creation of the Rapid Reaction Force. 7 Date of entry into force of the provisions in the Nice Treaty on Council decision making. 8 Before it was 62 out of 87, i.e. 71 per cent. Member States votes were weighted on the basis of their population and corrected in favour of less populated countries, leading to the following distribution: France, Germany, Italy and United Kingdom 10 votes each; Spain 8 votes; Belgium, 111 Member States (13 of 25). Additionally, any Member State can request verification whether these Member States represent at least 62 per cent of the total E U population9. If this is not the case, qualified majority is not considered to have been attained and the decision is not adopted. This leads to the situation that three large Member States plus one smaller one can block any decision1 0. In the EU, qualified majority voting over time has (nearly) replaced unanimous voting which was recognised to be less effective for developing Community policies, since every Member State had a veto1 1. It has to be acknowledged, however, that this is not 'the whole truth' since in practice, Member States negotiate to find a consensus solution, or as Dann puts it, behind the formal Q M V there is the informal consensus12. The main reason is the same that is brought forward in the Canadian context, namely that implementation works better when all the parties agree. This is especially true in the case where the same officials take part in the creation of new legislation at the higher level and then are responsible for implementing it at the level of their jurisdiction1 3. Consensus is also sought because the E U is very heterogeneous, including different cultures, languages and nations in one Union, and Greece, the Netherlands and Portugal 5 votes each; Austria and Sweden 4 votes each; Denmark, Ireland and Finland 3 votes each; Luxembourg 2 votes. This population threshold is a new requirement, triggered however only upon explicit request. It was introduced because big Member States were underrepresented and with the enlargement, this problem would have been aggravated. The aim was to safeguard the democratic representativeness of Council decisions. This 'triply secured' majority could probably even be classified as a consensus, says Philipp Dann, "Looking Through the Federal Lens: The Semi-parliamentary Democracy of the EU" Jean Monnet Working Paper 5/02 (New York: NYU School of Law, 2002) at 11. For an overview on the changes introduced by the Treaty of Nice to EU Institutions after enlargement see, online: Institute for European Environmental Policy, Manual of Environmental Policy, <http://www.mep-online.com/chapter2/section_2_5_2.html> (July 23, 2004). "Glossary of the European Union", online: EU, <http://europa.eu.int/scadplus/leg/en/cig/g4000.htm> (July 23, 2004). Dann, "Looking Through the Federal Lens", supra note 10 at 9. This is the case in Canada, but also in the EU, see ibid, at 10, pointing out that in the EU implementation not only covers the actual administration and adjudication of EU law by local authorities, but also the legislative actions of the Member States to adjust EU to their national systems. The civil servants participating in EU working groups for developing EU legislation are mostly responsible for drafting the implementing legislation in their jurisdiction afterwards. 112 consensus represents a way of bridging the diversity of interests . This rationale certainly applies in Canada as well, especially seen against the background of the increasing assertiveness of the provinces. Consensus is facilitated by the existence of the 'esprit de corps' of the Council's members (be it the Council of the European Union or the Canadian C C M E ) 1 5 . The bigger picture against which all these aspects can be seen is the structure of executive federalism for which consensus decision making is necessary to a certain extent, but also enhances i t 1 6 . However, i f consensus does not work, there has to be some other way to proceed and that is when first Q M V (which forces dissenting states to look for deals with other states) and then - as ultima ratio - enhanced cooperation (with QMV) comes in. The aspect of qualified majority voting could be of interest for the C W A E H procedure, which is based on consensus as one of the fundamental operating principles of the Canadian Council of Ministers. Consensus was chosen to give room to the differing interests of the 14 jurisdictions. The idea is to find a solution that all participants are willing to live with, even i f they disagree with certain aspects. The risk is that the solutions reflect the lowest common denominator and that decision making is ineffective. The power lies in the hands of the province/s or/and territory/territories that are most strictly against a proposal, which makes a raising of standards rather unlikely. The mechanism of enhanced cooperation could inspire harmonization in Canada also by the fact that within a enhanced cooperation group, it will be easier to obtain an agreement for two reasons: one, because it is only a group of Member States working together17 and two, because they have already agreed on the general direction that their cooperation shall take. It is this latter point that is of particular interest here: I suggest that the decision making in the C C M E could be changed "softly" in the sense Dann, "Looking Through the Federal Lens", supra note 10 at 10. Ibid. Ibid, at 9. This is basically the case in Canada, too, since Quebec is not (officially) part of the CWAEH process. 113 that a consensus decision is taken on the substance or issue, where a common standard shall be set and then qualified majority voting is applied for the details. It is beyond the scope of this paper to develop a proposal on how such a majority could look like in practice. Others have for example proposed to adopt the general constitutional amending formula, i.e. two thirds of the provinces and territories, 18 representing 50% of the population plus the federal government . This formula is used, too, for the Canada Pension Plan - which points to "how strong intergovernmental processes could be" 1 9. 2. Results Under the C W A E H , Canada-Wide standards have been developed to reduce levels or concentrations of several potentially harmful substances. These standards are non-binding; decisions regarding implementation are made by each jurisdiction. While the official Five-Year Review of the Accord has concluded that the effects of the CWS on the environment are positive, it is hard to judge whether more could have been achieved i f the federal government by itself had taken a stronger position on K. L. Clark, & M. S. Winfield, "Harmonizing to Protect the Environment. An Analysis of the CCME Environmental Harmonization Process" (1996) Report, Canadian Institute for Environmental Law and Policy at 18. Daniel Schwanen made a suggestion in 1992 as to how for example a qualified majority could compromise 19 (two-thirds) of 28 provincial votes distributed as follows: Quebec and Ontario, four each; Alberta and British Columbia, three each; PEI and the three territories, one each, and all other provinces, two votes (See Daniel Schwanen, "Open Exchange" in David M. Brown & Fred Lazar & Daniel Schwanen, eds., Free to Move: Strenghtening the Canadian Economic Union, Canada Round series No. 14 (Toronto: C D . Howe Institute, 1992). In 1997, he identified the decision making structure of the Agreement on Internal Trade as a serious flaw and obstacle to implementation. "Instead of adopting the model used to complete the Single European market, that is, use a qualified majority voting procedure to decide on specific technical measures to implement the goals which have already been unanimously agreed upon, the principle of consensus is carried into each minute, technical negotiations, which gives an extraordinary leverage to a single province wishing to hold onto a particularly sensitive barrier, Daniel Schwanen, "Canadian Regardless of Origin: "Negative Integration" and the Agreement on Internal Trade", in Harvey Lazar, ed., Canada: The State of the Federation, 1997, Non-Constitutional Renewal 169 at 195-196). The point is "that since governments have agreed to the principles contained in the agreement, no one government should be able to block implementation", (ibid, at 198). Douglas M. Brown, "Getting Things Done in the Federation: Do We Need New Rules for an Old Game?" in Douglas M. Brown & France St-Hilaire, eds., Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation, 1 (2003) at 5, note 7 ["Getting Things Done in the Federation"]. 114 environmental issues instead. It is also very difficult to assess the rigour of the standards, since C C M E did not have data on a comparison with other measures that were taken internationally, nor did environmental organisations undertake such a comparison to show that the standards were comparably weak. Unfortunately, such a study is beyond the scope of this thesis, but would help much to assess the Accord's effectiveness and verify i f the gloomy prognosis and critique of the Accord that were intially put forward by environmental organisations and other actors have come true. No actual results exist for enhanced cooperation, a situation that is very likely to change in the next few years. In this thesis, I tried to identify the application possibility of enhanced cooperation for the new chemicals policy of the E U (REACH). Even i f another solution, such as transition periods, were to be chosen, the example shows that enhanced cooperation could lead to higher standards of environmental protection. Many other examples could be identified, such as the raising of standards for large combustion plants, environmental liability or the taxation of energy products20. The mechanism of enhanced cooperation is promising in the sense that the achievement of a very high standard of environmental protection can be expected, since a group of like-minded Member States could work together without being restrained by 'laggards'. B . I m p l e m e n t a t i o n Effective policy making is useless without effective implementation of the policies. The question therefore is how and by whom the policies and legislative measures adopted under the mechanisms in question are implemented. What kind of measures can be undertaken to implement the standards adopted under the Sub-Agreement on Canada-wide standards? A wide array of possibilities is open for the jurisdictions, for example regulatory standards, guidelines or voluntary 2 0 See also Stefani Bar & Ingmar von Homeyer & R. Andreas Kraemer, "Amsterdam Flexibility: Green Cooperation for Europe's Environment", RECIEL (Review of European Community & International Environmental Law) 9 (3), 2000, 307 at 311. 115 initiatives21. As explained above (Ch. II) this diversity of measures poses problems in terms of the effectiveness of the standards, especially if measures are chosen which are not binding and a control mechanism of the implementation is lacking. Implementation should be defined more strictly, meaning the incorporation into new 22 and existing regulations, but not the adoption of guidelines or voluntary initiatives . Another necessary clause would be that participants do not have the right to adopt lower standards than those developed by the CCME, but can go beyond them (as is the case in the EU for enhanced cooperation measures) . In the EU, the need for a certain flexibility in the choice of implementation is recognised; however, the agreed upon aims are binding. The Commission supervises the application of EU law in the Member States to make sure that it is applied in a "reasonably uniform manner"24. The European Court of Justice can deal with matters of insufficient enforcement by Member States. The ECJ's competence developed significantly, once it became clear that there was a so called "implementation gap"25. Section 6.5 of the Sub-Agreement enumerates regulatory standards, codes of practice, guidelines, memoranda of understanding, voluntary initiatives, economic instruments and pollution prevention planning. See also Clark, & Winfield, "Harmonizing to Protect the Environment", supra note 18 at 19. A similar solution was already proposed in 1996 by ibid, at 19. Neill Nugent, The Government and Politics of the European Union (Houndmills: Palgrave MacMillan, 2003) at 135. This implementation gap consisted (and consists) in the frequent failure of Member States to put EU environmental policy into action. The issue of enforcement came up relatively recently - as Jordan notes (Andrew Jordan,. "EU environmental policy at 25: the politics of multinational governance" (Jan./Feb. 1998) 40:1 Environment 14 at 39 ["EU environmental policy at 25"]. He points out that the Third Action Program (1982-1986) only dealt with it in three lines. The lack of implementation was a structural problem (unanimity decision making in the Council led to vague and contradictory legislation, the Commission had little responsibility for implementation of proposed measures). But once economic actors understood the importance of comparable enforcement for the common market to prevent competitive advantages of noncompliant countries, enforcement was put at the top of the EU's environmental agenda (other reasons Jordan mentions are: landmark rulings by the ECJ on the supremacy of EU law over MS law, rising pressure through individuals and NGOs complaining about lack of compliance, greater academic interest in implementation, intensified lobbying by environmental groups. A report by the Court of Auditors in 1992 pointed out that environmental directives were implemented slowly and that there was a significant gap between legislation in force and its actual application, see OJ C245, September 23, 1992, 1. Some measures taken to address this issue are the presentation to the European Parliament of an annual report on the application of EU law by the Commission and 116 Implementation remains an enduring structural problem of the E U . Jordan writes, "Unlike a federal state such as the US, the E U lacks political parties operating at both levels of government as well as a high degree of economic, natural, and cultural homogeneity"27. In this respect, Canada might be similar to the EU, in the sense that the Westminster style parliamentary system leads to "pressures for party discipline within each government and thus separate federal and provincial branches of parties into more autonomous layers of party organization" , a tendency that is very strong in Canada. For implementation of E U environmental measures, an additional limitation exists. While the Directorates General for economic affairs (competition, mergers, fisheries) have direct powers of enforcement and agents that carry out their policies, the D G Environment has no such power. Therefore "in the very places where environmental policy really needs to "bite" - factories, river banks, beaches [...]- it has little or no presence"29. The D G Environment can therefore not compel national or subnational actors to follow its policies. Enforcement procedures are "slow, secretive, inflexible complex and almost exclusively between member states and the Commission, since there is no possibility for private individuals to bring public interest cases before the E C J " 3 0 . Even so, the emphasis in the (general) jurisprudence of the ECJ has increasingly been on correct implementation of EC law. In its Francovich ruling of 19913', the ECJ introduced liability of the member states for damage resulting from incorrect or non-legal proceedings against noncompliant states by the Commission, some of which are taken to the ECJ (which can fine states that persistently do not comply with its rulings). 2 6 See on this Fritz Scharpf, "Community and Autonomy: Multi-Level Policy Making in the EU" (1994) 1:2 Journal of European Public Policy 219 cited in Jordan, "EU environmental policy at 25", supra note 25 at 40). 2 7 Ibid, at 40. 2 8 Ronald L. Watts, Comparing Federal Systems, second edition (Montreal and Kingston: McGill-Queen's University Press, 1999), 91. 2 9 Jordan, "EU environmental policy at 25", supra note 25 at 40. 3 0 Ibid, at 40. 3 1 E.C.J. Francovich and Bonifaci v. Italy joined cases C-6/90 and C-9/90 [1991] E.C.R. 1-5357, (individuals are entitled to financial compensation if they are adversely affected by the failure of a Member State to transpose a directive within the prescribed period of time). 117 implementation of directives. Furthermore, the Maastricht Treaty introduced the possibility of fining governments which do not follow an ECJ ruling (Art. 228 TEC). Therefore important control mechanisms are in place to make sure that E U law is implemented effectively. In the case of Canada-wide standards, implementation is entirely at the discretion of the responsible government (Sub-Agreement, clause 6 I) for intra-jurisdictional issues and undertaken by the order of government best situated to effectively discharge them in the case of inter-jurisdictional issues. Which level of government is to act is a decision that is based on "the scale, scope and nature of environmental issue; equipment and infrastructure to support obligations; physical proximity; efficiency and effectiveness; human and financial resources to deliver obligations; scientific and techical expertise; ability to address client or local needs; interprovincial/interterritorial/international consideration" (Sub-Agreement, clause 3). The executive director of the C C M E , Carl Hrenchuk, thinks that the principle of the responsible government offers sufficient opportunities for putting political pressure on governments not implementing Canada-wide standards . I think, however, that it would be helpful to have something more than that. My suggestion is to introduce a process similar to the Citizen Submission Process used in the context of the North American Agreement on the Environment (NAAEC, the environmental side agreement to N A F T A ) . Since it is not a binding decision by a tribunal or panel, but only a report on the failure to act or act correctly by an individual government, it would not interfere with the constitutional order of Canada and would not make constitutional change necessary. But of course it would also be just political pressure, nothing more, therefore it would not be certain that a jurisdiction would effectively Telephone interview, Thursday, June 17, 2004. In 1996, Clark, & Winfield, "Harmonizing to Protect the Environment", supra note 18 at 19, proposed "a process whereby which another party or member of the public can make a complaint against the offending party. A complaint should be trigger for [a] factual report on whether the party in question has implemented or maintained the standard as required. Such a report must be prepared by [an] independent, third party body and made available to the other parties, the Legislatures, Parliament, and the public." 118 implement a standard due to this pressure. In such a case, the federal government should step in and implement the standard34. A n even more minor change would be to delete the clause 4.4 of the Standards Sub-Agreement, that reads "when a government has accepted obligations and is discharging a role under this Sub-Agreement, the other order of government shall not act in that role for the period of time as determined in the relevant agreement". The federal government could take a stronger position and step in, in case provinces or territories do not follow the agreed upon goals. A more radical (at least in the Canadian context) idea would be to make the agreement legally binding and give the power to decide on complaints about failure to implement to the courts. C . A c c o u n t a b i l i t y Accountability means "the requirement for representatives to answer to the represented on the disposal of their powers and duties, act upon criticisms or requirements made of them, and accept (some) responsibility for failure, incompetence, or deceit"35. Government ministers are accountable for government decisions to a legislature and the voting public - which is also included in the principle of responsible government, whereby the government has to be responsive to public opinion, pursue policies that are prudent and mutually consistent, and is 36 accountable to the representatives of the electors . On the one hand, making officials and politicians too accountable will prevent them from doing their job, but on the other hand, there is concern about the weakness of See also Clark, & Winfield, "Harmonizing to Protect the Environment", supra note 18 at 19. Iain McLean & Alistair McMillan, Oxford Concise Dictionary of Politics, (Oxford: Oxford University Press, 2003, s.v. "accountability". Ibid. s.v. "responsible government". 119 accountability, particularly when there is a tendency for power to flow from elected public bodies to unelected bodies37. Many decisions on environmental management are going and will go through the C C M E , which is not an elected body and therefore neither directly accountable to the public (electorate) nor to a legislature. C C M E has no legal or constitutional status and 38 no effective accountability mechanisms; it exists in "intergovernmental space" . To make it accountable as a collective decision making body would mean constitutional change; the C C M E would need to be elected . An attempt was made to deal with the question of accountability in an Annex to the C W A E H . It defines accountability40 and clarifies the commitments in the Accord and sub-agreements in relation to the administrative and legal accountabilities of the governments and ministers within their respective jurisdictions. According to the annex, ministers remain responsible to act and to be held accountable within their jurisdiction - the consensus decision making pursuant to the Accord does not change this. Government accountability is not changed either41. The annex sets out guidelines and principles whereby accountability will be promoted, such as establishing public goals, meaningful participation of interested parties, monitoring on progress and achievements and regular public reporting. The annex came into effect in September 199842. For example to so called quasi non-governmental organisations (quangos) - which are created and funded by government and therefore should rather be called quasi governmental organisations, see ibid. s.v. "quango". Clark, & Winfield, "Harmonizing to Protect the Environment", supra note 18 at 17. Ibid, at 17, proposing to introduce a federal veto over all decisions, leading to federal responsibility for the content of CCME decisions. This could also create an incentive for adopting stronger standards within CCME, since the threat of unilateral action of the federal government is maintained. "Accountability is defined as the obligation to demonstrate and take responsibility for performance in light of agreed-upon commitments". The Annex reads "Governments are held accountable to the public through political processes, legislated reporting mechanisms, and the media. However, they are also legally accountable through laws that impose requirements and obligations for governments to conduct business in certain ways." Canadian Council of Ministers (CCME), Annex to the Accord on Environmental Harmonization, online: <http://www.ccme.ca/assets/pdf/annex_to_accord_e.pdf> (August 2, 2004). 120 But the problem remains: decisions made by C C M E suffer from a blurred line of responsibility - who exactly can be held accountable for these decisions? Following the principle of responsible government, it is the individual governments and their ministers, but since the decision was not made solely by them, it is difficult to know who is responsible, which poses problems in terms of democratic control by the public. Executive federalism is, however, by definition dominated by the executive, has a tendency to be secretive and bureaucratic and keep the legislatures at bay 4 3. In the case of implementation it is clear that the individual governments are accountable for putting agreed upon standards into effect. The principle of responsible government should work and the public should be able to complain in case of failure or slow implementation. For enhanced cooperation, the question of accountability follows the usual line of responsibility and governments are held accountable by the ECJ for correct and timely implementation of agreed upon measures. The democratic deficit44 of decision making in the E U remains, however, and represents a different situation than in Canada, where the federal government is responsible to the directly elected Parliament45. Brown, "Getting Things Done in the Federation", supra note 19 at 5. David Cameron, & Richard Simeon, "Intergovernmental Relations in Canada - The Emergence of Collaborative Federalism" (Spring 2002) 32:2 Publius 49 at 62 ["The Emergence of Collaborative Federalism"], cite Smiley's critique of executive federalism as follows: "First, it contributes to undue secrecy in the conduct of the public's business. Second, it contributes to an unduly low level of citizen participation in public affairs. Third, it weakens and dilutes the accountability of government to their legislatures and to the wider public." Since there is no separation of power neither horizontally (between institutions) nor vertically (between the EU level and the Member States)- the powers are 'fused'- it is not possible for citizens to identify which institution or 'government' is responsible and can be held accountable for a certain action. See for an in depth explanation of the so called democratic deficit, Alex Warleigh, Democracy in the European Union (London: Sage, 2003) at 3-16. Elsewhere he points out that "the individual remains on the periphery of EU decision making" (ibid., 67) Brown, "Getting Things Done in the Federation", supra note 19 at 5, Fn. 8 on "democratic deficit". 121 D . P u b l i c P a r t i c i p a t i o n Concerning public participation in the C W A E H process, the Accord's principle 5 states that the effective participation of the public is necessary for an effective environmental management regime. The Sub-Agreement notes that opportunities for public input in determining priorities, setting the standards, and developing implementation plans are to be provided (clause 3.1.8). Reports on progress shall be submitted to the public by the different jurisdictions. The Annex to the Accord deals with stakeholder participation in section 2. According to the annex, the goal of public participation is to obtain feedback and offer opportunities to influence decisions before they are made. Full and fair access to the process in its initial stage, openness, transparency and equal and timely access to information are some of the principles enumerated. Means of participation include formal communication, consultation or partnership, depending on the nature of the input sought. It is interesting to note how the annex formulates it, under the principle of mutual respect "[...]While remaining accountable to the constituencies they represent, participants should be willing to consider a broader perspective". How were these "promises" put into effect in the last six years? Certainly, consultation over the internet and through workshops with stakeholders has taken place4 6. However, there is no obligation whatsoever on the governments to really take into account what stakeholders propose or want to change47. This is a difficult issue, since it is complicated for governments to maintain simultaneously the For current and recent stakeholder consultations, see online: CCME, <http://vvfww.ccme.ca/about/consultation.html> (August 2, 2004). See on this aspect for example the "furious" letter of Cindy Chiasson, Environmental Law Centre Alberta, August 18, 1998, to the Director of Federal-Provincial Relations Branch, Environment Canada, online: <www.elc.ab.ca/ims/client/upload/harmon2.pdf> (July 25, 2004), expressing "dismay and disappointment in this "consultation" process. We find that this process has been poorly conceived and delivered and offers no assurances that the time and effort that stakeholders put into the process will yield any tangible results. The material on stakeholder participation does not establish concrete strategies that can be used to involve stakeholders. Rather, this material seems to be a compilation of "motherhood" statements worded in such a vague fashion as to enable governments to choose to undertake no stakeholder involvement and justify such a course of action under the draft annex. We feel that the flaws of this consultation process have placed us in a position where we cannot participate in a productive manner." 122 intergovernmental process and public consultations - which leads to a preference of governments to act unilaterally, in direct contact with their electorates, instead of AO collaborating with other governments . While the level of possible public participation may thus seem disappointingly low and far from effective, from the perspective of executive federalism, it is at least a start that the issue is on the agenda49. The weak involvement of parliaments is probably "balanced" by the fact that individual members of the C C M E may be unable to get their cabinet or legislature to adopt the proposed standards when they "bring" them back into their jurisdiction5 0. As pointed out in the section on implementation, the public should have some power to act when governments fail to protect the environment51. In the E U , public participation in enhanced cooperation measures is about the same as for all E U legislation, namely, the only democratic participation for the general public goes through the European Parliament . Therefore, such public participation can be considered quite small - very small in the case of the authorization of enhanced cooperation and then somewhat more significant in the case of actual enhanced cooperation measures, especially where the co-decision procedure applies. When co-decision applies to closer cooperation legislation, the EP must approve proposals. It can therefore approve or disapprove (but not change) the proposal. Even i f the Parliament has gained more legislative power through the co-decision process, the democratic legitimacy is somewhat hampered through the fact that it is "inside the 4 8 Brown, "Getting Things Done in the Federation", supra note 19 at 6. 4 9 See also Richard Simeon, Recent Trends in Federalism, The Round Table (2000), 354 (231-243) at 240, observing that "all agreements pay at least lip service to the need for greater transparency and accountability." 5 0 See on this point already Clark, & Winfield, "Harmonizing to Protect the Environment", supra note 18 at 17. 5 1 Ibid, at 8, proposing for example an environmental bill of rights. 5 2 Warleigh, Democracy in the European Union, supra note 44 at 78, writes that "in terms of democratic theory, the EP is the most likely forum for the representation at EU level of the peoples rather than the governments of the member states: it is the body most likely to serve as a generator of, or repository for, direct supranational legitimacy - that is legitimacy which is conferred on the supranational level directly by the citizen, without going through the mediating prism of national institutions." 123 very secretive system by which the E U makes policy, as a joint legislator with the Council" 5 3. Its integration into the policy networks of the E U compromises its ability to be a forum for public debate54. Therefore we can conclude that public participation in the E U in general and in initiatives of enhanced cooperation in particular, is not satisfactory. To some extent, however, environmental NGOs can influence the policy making through lobbying channels. Enhanced cooperation could on the other hand be looked at as helping to reduce the democratic deficit, since it allows differentiation, and thus manages, but also respects diversity55, rather than false homogeneity56. III. A s s e s s m e n t a n d S u g g e s t i o n s How do the mechanisms of the C W A E H and enhanced cooperation look compared to each other? How could they inspire each other and what is the bigger picture in which these attempts to develop effective environmental policy can be situated? As explained above, both mechanisms are set in a structure of executive federalism, which influences their design and the possibilities for amendment. The situation in the E U is such that enhanced cooperation is an alternative path to trying to achieve uniform standards alone. Uniform standards shall be developed wherever possible, but enhanced cooperation offers a mechanism ultima ratio where no agreement can be reached through the normal legislative procedure involving all the Member States. Certainly it can be argued that common action and the development of joint standards by way of enhanced cooperation would lead to more fragmentation. On the other hand, it would (at least in areas that had not been harmonised before), lead to a partial uniformity of diverse national standards, which would already be more compatible with the requirements of a common market than 5 3 Ibid, at 78. 5 4 Ibid, at 78. 5 5 Ibid, at 69 (citing: Alex Warleigh, "Towards Network Democracy? The Potential of Flexible Integration" in M. Farrell, & S. Fella & M. Newman, eds., European Integration in the Twenty-First Century: Unity in Diversity? (London: Sage, 2002)). 5 6 Ibid, at 75. 124 different national standards in each Member State. Therefore enhanced cooperation initiatives have at least some harmonizing effect. The Canada-wide Accord can be looked at from a similar perspective, since implementation does not always reach the same level in all participating jurisdictions and Quebec is not part of the harmonization effort . Issues of democratic legitimacy have to be addressed on a general level in the E U -enhanced cooperation constitutes a certain risk in terms of increased complexity, but it also allows for more diversity, which is eventually more democratic . Enhanced cooperation will on the one hand lead to more dynamic policy-making through the push effect, bringing reluctant Member States to agree to more progressive compromises under the "threat" of a enhanced cooperation initiative. On the other hand, it also offers the great opportunity of a laboratory for innovative environmental policy with influence on the whole European Union. Such a dynamic does not appear to have set in with the mechanism of the Canada-wide Accord. If the Canadian quest for a federal-provincial consensus to attain coherent and effective national policy in environmental matters is indeed the pursuit of a mirage 5 9 - what could be changed to increase the effectiveness of the system? Probably, the provinces and territories will continue to be responsible for the major part of adopting, administering and enforcing environmental law. If the intergovernmental cooperation taking place under the C W A E H is currently criticized as being one of the reasons why governments fail to protect the environment, this The argument of more fragmentation does of course not apply in Canada, would not even apply if similar initiatives to enhanced cooperation would take place. Of course, the idea is to have all Member States join the initiative and "latecomers" will not be able to shape the legislation adopted within enhanced cooperation, which presents a problem in terms of democratic legitimacy. However, there is no obligation to join such an initiative. Donald V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 94 on Thorburn (in the industrial field). 125 cooperation obviously suffers from a lack of credibility with the public. More transparency and public participation is needed60. Suggestions Effective multilevel governance is what the E U is working on and it is what Canada needs to work on in order to be able to respond to increasing interdependence61. Enhanced cooperation as it was designed suffers from drawbacks that relate directly to the E U system as a whole (e.g. democratic deficit, complexity) and therefore cannot be changed without a fundamental redesigning of the whole system, which is not going to happen. This is maybe similar to the Canada-wide Accord insofar as its legal formality is concerned, but it seems to me that the design of the Accord and its functioning offers room for improvement through more modest and achievable amendments. The following suggestions might be useful to consider when reforming the C W A E H process: • Creating a stronger institutional background62 and accountability mechanisms to improve effectiveness and transparency. A procedure for public involvement should be set up and the necessary "implementation offices" designated in each province (use of existing institutions, additional allocation of resources necessary). The challenge lies in the development of "effective mechanisms which integrate 63 executive federalism and public involvement" . • Developing a mechanism to address deadlock issues which can happen when consensus decision making is used- the E U enhanced cooperation model could See also Donna Tingley, "Conflict and Cooperation on the Environment" in Douglas Brown, ed., Canada: The State of the Federation, 1991 (Kingston: Queen's University, 1991) 131 at 154. See Brown, "Getting Things Done in the Federation", supra note 19 at 7. See Cameron & Simeon, "The Emergence of Collaborative Federalism", supra note 43 at 50 who explain that "despite the growth of collaboration, the institutions of intergovernmental relations in Canada remain, compared with some other federations, relatively ad hoc and under institutionalized." J. Peter Meekison, "Comment" in Robert Young, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) 69 at 74. 126 provide inspiration for the development of a mechanism by which a significant group of jurisdictions could agree upon more ambitious goals with the aim of having all jurisdictions join in due time. The agreed upon aim of highest environmental standards for all Canadians would, however, have to be the aim that all jurisdictions earnestly and effectively try to attain and the criterion inspiring all Canadian efforts in environmental policy. • Rendering the agreement legally enforceable and put it under the jurisdiction of the Supreme Court (how exactly one could get around the principle of responsible government is beyond the scope of this paper64). If this proves to be too unrealistic, then at least an effective control mechanism should be put in place. If effective environmental protection is really the goal, something more than just potential public pressure due to the principle of responsible government should be envisaged. As pointed out above, the Citizen Submission Process of the North American Agreement on Environmental Cooperation could provide some inspiration. • Changing the voting procedure for concrete measures in a (by consensus) chosen area from the consensus rule, which favours lowest common denominator solutions65, to a majority rule 6 6. While the consensus rule may make policies and This is a major problem: The Supreme Court in a recent judgment made clear that intergovernmental agreements are not legally binding. This precisely because governments would be legally bound and accountable to each other under these agreements. But since the principle of responsible government states that each government is responsible to its own legislature and cannot bind future legislatures, there is a deep tension between the logic of collaborative federalism and responsible parliamentary government. See Cameron & Simeon, "The Emergence of Collaborative Federalism", supra note 43 at 62. The CCME is of a different opinion in this respect, see Canadian Council of Ministers (CCME), "Strenghtening Consensus - Reinforcing the CCME Consensus Decision-Making (CDM) Model", online: <http://www.ccme.ca/assets/pdf7strengthening_consensus_e.pdf> (August 2, 2004). Similar to the Intergovernmental Agreement on the Environment (IGAE) in Australia. I do acknowledge, however, that the political reality in Australia, with such few states probably leads to something more similar of a consensus rule anyway, because none of them wants to be the one that is overruled 'next time'. In Canada, due to the higher number of participants, this would maybe be less tempting, as coalitions could change according to the issue that is being dealt with. And, if not all of the provinces are taking part in a closer cooperation, then it can be assumed that 127 their implementation more successful (strenghtened commitment of the participants), in the case of Q M V decisions, similar results could also be achieved through making the agreement (and sub-agreements) legally enforceable and therefore binding 6 7. I would even expect that standards would be higher and implementation more effective in the latter constellation. • Improving access to information for citizens: While there is an impressive amount of information available on the C C M E ' s website, it is on the one hand characterised by much propaganda value and on the other hand does not adequately address important issues such as the comparability of standards or an easily accessible overview on implementation in the provinces . • Undertaking a comparative study of standards prevailing elsewhere to examine whether they are really "rigorous" in comparison or whether this is just an empty formula to disguise that it is indeed usually a lowest common denominator solution that is adopted. • Expanding the area of application of the Accord: Canada-wide high environmental standards are needed not only in the field of toxic substances, but also in other areas. A possible and pressing project could be, for example, standards for safe drinking water. Environmentalists have in vain called for federal standards and this the participants have already agreed on the general direction of regulatory action and therefore it may be less of a problem for the "losers" on a certain decision. See however Campbell Sharman, "Executive Federalism" in Brian Galligan & Owen Hughes & Cliff Walsh, eds., Intergovernmental relations and public policy (Sidney: Allen & Unwin, 1991) 23 at 25, who calls recourse to the judicial process a strategy of the last resort signalling the breakdown of the usual pattern of intergovernmental relations. This possibility is also seen as doubtful by David Besner (author of the Five-Year Review of Canada-Wide Accord on Environmental Harmonization), who wrote (personal correspondance of May 24, 2004) that the most important reason for the non-binding nature of the CWAEH is that a legally enforceable accord "would require the individual jurisdictions to become legally accountable to a body (CCME?) which has no legal standing within those same jurisdictions". He thinks that in terms of the standards, the principle of responsible government leads to enough pressure through the public on the individual governments to put appropriate legislation or policies in place. It is not sufficient to simply provide the links to provincial/territorial websites - I would suggest to make this information more accessible and prepare it in a way as to make it understandable for any citizen - since citizens are those called on to watch over the implementation process and to put on political pressure when governments are failing! 128 could constitute a very important area for application of the Accord . The C C M E has released a technical document recently (June 23, 2004) providing guidelines to drinking water system owners and operators on how to apply the concept of the 70 multi-barrier approach to Canadian drinking water supplies from source to tap , but this seems a rather weak attempt given the importance of safe drinking water for all Canadians. These changes could respond to some of the major criticisms of executive and collaborative federalism by creating more transparency, accountability and legitimacy of common regulatory measures concerning the environment without completely 71 79 inhibiting a competitive dynamic , falling into a 'joint-decision trap' or demanding too much flexibility or pluralism of the Canadian system73. They could help to create the impetus needed to impel environmental policy toward success and effectively achieve highest standards of protection for all Canadians. See on drinking water safety Tingley, "Conflict and Cooperation on the Environment", supra note 60 at 137-140. See also David R. Boyd, Unnatural Law - Rethinking Canadian Environmental Law and Policy (Vancouver: UBC Press, 2003) at 24, calling the Canadian approach to drinking water safety an "inconsistent hodge-podge of laws, regulations, standards, and guidelines" resulting sometimes in inadequate drinking water quality. From Source to Tap: Guidance on the Multi-barrier Approach to Safe Drinking Water, June 23, 2004, online: <www.ccme.ca> (July 25, 2004). See on this critique Martin Painter, "Canada" in Brian Galligan & Owen Hughes & Cliff Walsh, eds., Intergovernmental relations and public policy (Sidney: Allen & Unwin, 1991) 88 at 102. See the famous analysis of the joint-decision trap in West Germany by Fritz W. Scharpf, "The Joint-Decision Trap: Lessons from German Federalism and European Integration" (autumn 1988) 66:3 Public Administration 239.. See Smiley's critique on Breton's arguments for competitive federalism, Smiley, The Federal Condition in Canada, supra note 59 at 96-97. 129 IV. Summary (Table Comparison) EU/enh. coop. Canada/CWAEH Political system Decentralised federation, "semi-parliamentary federalism" Decentralised federation, parliamentary federalism « the problem(s) » in environmental policy Enlargement leads to (accrued) problem of lowest common denominator decisions Weak environmental protection, lack of national standards, patchwork of different standards Mechanisms developed to address these issues Enhanced cooperation, collaborative federalism (for creation) Canada-Wide Accord, collaborative federalism Aim of the mechanisms Dynamic deepening of integration, cooperation for higher standards than common E U standards Harmonization, Unification of standards, "highest level of environmental quality for all Canadians" Background of the mechanism strong institutional system in the background of the mechanism C C M E is of doubtful legitimacy, no power/binding force over provinces Procedure Qualified majority voting (for the most part), some unanimity areas Consensus decision making Accountability MS are held responsible for correct implemen-tation, C'ssion supervises, E C J can rule on this issue Responsible government, blurred line of responsibility Implementation Implementation supervised by C'ssion and E C J ; goals are binding, way of achieving them flexible; problem: no individuals/NGOs allowed for public Implementation depends on the provinces/territories -can be very diversified; no control mechanism except progress reports to the public 130 interest cases before ECJ, C'ssion aware that until Court rules, environment will be damaged, therefore it tries to work with states directly, using legal proceedings as last resort. P u b l i c p a r t i c i p a t i o n Indirectly, through EP; lobbying of environmental NGOs Some participation through stakeholder consultation R i s k s / D a n g e r s Strict conditions endanger application; large margin of interpretation; democratic deficit Lowest common denomi-nator; not legally bin-ding; lacking use of the potential; democratic deficit; no effect i f political will non-existent O p p o r t u n i t i e s Laboratory for innovative environmental policy with influence on the whole of the E U ; "threat effect" to achieve more progressive compromises, more room for diversity and thus democratic legitimacy Harmonized environmental policy, common standards. Maybe little progress, but everywhere in Canada R e s u l t s / A c h i e v e m e n t s Hypothetical: effective method of setting strict environmental standards, higher than the uniform E U standards - and/or setting new standards. Canada-wide standards, closer cooperation between governments -rigour of standards is questionable (lacking data) A s s e s s m e n t / O u t l o o k Innovative globally leading environmental policy of groups of MS; higher standards at the expense of uniformity, but incentive for other MS to adapt new stan-dards (=ultimate aim of enhanced cooperation). Uniform standards, better overall situation (maybe at the expense of single higher standards?), low incentive for amelioration 131 Chapter Five: Conclusion In Chapter One, the methodology was set out. Comparative law appeared to be a logical choice, given that I planned to study a specific instrument in two legal systems. It was also an unproblematic choice, since Canada and the E U share a baseline of similarity that allows for a useful comparison. Furthermore, federalism was identified as the lens through which the two mechanisms of flexible integration in environmental policy could examined. I concluded that both instruments display characteristics of collaborative federalism, apparently a trend in federal systems, and can be situated in the broader context of processes for flexibility in federations. The second chapter examined the Canada-wide Accord on Environmental Harmonization and investigated its achievements to date. It was shown how the context of Canadian federalism and its specific aspects influenced the design and the working of the mechanism. The achievements of the Accord have to be seen against this background and illustrate that collaborative federalism is a valid choice for trying to achieve high environmental standards for all Canadians. Insufficient accountability, lacking control of implementation and weak public participation were identified as major drawbacks. Evaluation of the achievements proved difficult, because of a lack of comparative data. In the third chapter, I described the E U provisions on enhanced cooperation and their potential application in environmental law. Legal prerequisites to the application of enhanced cooperation are numerous and some are very open to interpretation. Actual application therefore will depend on how widely or narrowly these provisions will be interpreted. The mechanism of enhanced cooperation could potentially be applied in many areas of environmental protection and would offer a great opportunity for effective policy making. Chapter Four concluded the 'investigation' with a comparison of the major issues of interest of the two mechanisms. If we look at the E U system, we can establish a 132 system of paths for effective policy making, that can be used one after the other in case the first choice does not work: 1. Consensus 2. Q M V (formal) 3. Enhanced (informal) Cooperation All agree Qualified majority agrees QM of significant part agrees All implement All implement Significant part implements The Canadian system so far only provides the first path and as a default the patchwork of different solutions in each jurisdiction1. In my opinion, there should be more possibilities given to work effectively towards environmental protection. The problem with the Accord being only a political agreement and lacking legal formality is that it is totally up to the parties to change it or ignore it and an election can change the whole picture. More effective rules could create better incentives for achieving collaborative results . At the beginning of this project, I was very interested in the Canada-Wide Accord and the solution of harmonization (with possible opt out, e.g. Quebec). Now it seems to me that EU enhanced cooperation offers perhaps a greater potential for effective environmental protection. However, part of this is speculation, since enhanced cooperation has yet to be applied. In Canada, on the other side, the CWAEH mechanism has been operationalized and thus it is easier to criticize its achievements. Whichever direction the improvement of the mechanisms may take, their existence points to a trend in federal systems. States have to find a solution for the competing "Canadian governments do not have well developed machinery for making collective decisions. There is no entrenched constitutional or legal provision for intergovernmental bodies; and no formal decision rules for the ad-hoc and informal mechanisms that exist.", Doug Brown, 5. See also Douglas M.Brown, "Getting Things Done in the Federation: Do We Need New Rules for an Old Game?" in Douglas M. Brown & France St-Hilaire, eds., Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation, 1 (2003) at 5. 133 values of globalisation and localisation and flexible integration can be looked at as a broader international trend, not only "exceptions" taking place in very specific settings such as Canada or the EU. They can even be seen as constituting "an integral part of the redefinition of the modern state" . Robert Harmsen, "The Puzzle of Constitutional Asymmetry: Recent Canadian and European Debates" (1995) 11:2 Review of Constitutional Studies, 305 at 341. 134 Bibliography Andersen, Michael Skou & Liefferink, Duncan, eds., Environmental Policy: the Pioneers (Manchester and New York: Manchester University Press, 1998). Bailey, Ian. New Environmental Policy Instruments in the European Union (Aldershot: Ashgate, 2003). Bakvis, Herman & Skogstad, Grace. Canadian Federalism: Performance, Effectiveness and Legitimacy (Oxford:Oxford University Press, 2002). Bar, Stefani & von Homeyer, Ingmar & Klasing, Anneke. "Overcoming Deadlock? Enhanced Cooperation and European Environmental Policy after Nice" (2002) 2 Y . B . Eur. Env. L. 241. Bar, Stefani et al. Verstdrkte Zusammenarbeit im Umweltbereich - Moglichkeiten der Anwendung der in Titel VII TEU festgelegten Bestimmungen fur Flexibilitdt im Umweltbereich commissioned by the Austrian Federal Ministry of Environment, Youth and Family Affairs, Berlin, September 1999. Bar, Stefani & von Homeyer, Ingmar & Kraemer, R. Andreas, "Amsterdam Flexibility: Green Cooperation for Europe's Environment", RECIEL (Review of European Community & International Environmental Law) 9 (3), 2000, 307. Barnard, Catherine. "Flexibility and Social Policy" in Grainne De Burca/Joanne Scott, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) at 197. Barnes, Pamela M . & Barnes, Ian G. Environmental Policy in the European Union (Cheltenham: Elgar, 1999). Becker, Ulrich. "Differenzierung der Rechtseinheit durch "abgestufte Integration" (1998) 1 EuR-Beiheft, 29. Bender, Tobias. "Die Verstarkte Zusammenarbeit nach Nizza. Anwendungsfelder und Bewertung im Spiegel historischer Prazedenzfalle der differenzierten Integration" (2001) 61:4 ZaoRV 730. Bowden, Marie-Anne. "Jurisdictional Issues" in Hughes, Elaine L. & Lucas Alastair R. & Tilleman, William A. , eds., Environmental Law and Policy, 3rd ed. (Toronto: Edmond Montgomery, 2003) at 41. Boyd, David R. Unnatural Law - Rethinking Canadian Environmental Law and Policy (Vancouver: U B C Press, 2003). Bribosia, Herve. "De la subsidiarite a la cooperation renforcee" in Lejeune, Yves, ed., Le Trade dAmsterdam - Espoirs et Deceptions (Bruxelles: Bruylant, 1998). Brown, Douglas M . "Getting Things Done in the Federation: Do We Need New Rules for an Old Game?" in Brown Douglas M . & St-Hilaire, France, eds., Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation, 1 (2003). Brown, Gordon R. "Canadian Federal-Provincial Overlap and Government Inefficency" (Winter 1994) 24:1 Publius: The Journal of Federalism, 21. Burgess, Michael. "Federalism and Federation" in Cini, Michelle, ed., European Union Politics, (Oxford: Oxford University Press, 2003) at 65. 135 Cairns, Alan C. "The Other Crisis of Canadian Federalism" (Summer 1979) 22:2 Can. Pub. Admin. 173. Calliess Christian. "Art. 5 TEC", in Calliess Christian & Ruffert Matthias, eds., Kommentar zu E U V und EGV, 2 n d ed. (Neuwied: Hermann Luchterhand, 2002). Cameron, David & Simeon, Richard. "Intergovernmental Relations in Canada - The Emergence of Collaborative Federalism" (Spring 2002) 32:2 Publius 49. Chaltiel, Florence. "Le traite d'Amsterdam et la cooperation renforcee", (1998) 418 R M C (Revue du Marche Commun et de 1'Union Europeenne) 289. Christiansen, Thomas. "The Council of Ministers - The Politics of Institutionalised Intergovernmentalism" in Richardson, Jeremy, ed., European Union - Power and Policy-making (London: Routledge, 2001) at 135. Chryssochoou, Dimitris N . Theorizing European Integration (London: Sage, 2001). Cini, Michelle. European Union Politics (Oxford: Oxford University Press, 2003). Clark, K . L. & Winfield, M . S. "Harmonizing to Protect the Environment. An Analysis of the C C M E Environmental Harmonization Process" (1996) Report, Canadian Institute for Environmental Law and Policy. Conrad, Alexis J. Assessing the Adequacy of Intergovernmental Collaboration as an Organizing Principle for Environmental protection (MA Thesis, Queen's University, 1999). Dann, Philipp. "Looking Through the Federal Lens: The Semi-parliamentary Democracy of the E U " Jean Monnet Working Paper 5/02 (New York: N Y U School of Law, 2002). De Burca, Grainne & Scott, Joanne, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000). De Burca, Grainne. "Differentiation within the Core: The Case of the Common Market", in Grainne De Burca, & Joanne Scott, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) at 133. De Cruz, Peter. "The Techniques of Comparative Law", in de Cruz, Peter, Comparative Law in a Changing World, 2 n d ed. (LondomCavendish, 1999) at 213. De Schoutheete Philippe. The Case for Europe - Unity, Diversity, and Democracy in the European Union (London: Lynne Rienner, 2000). Devuyst,Y. "The Community Method After Amsterdam" (1999) 37:1 JCMS (Journal of Common Market Studies) 109. DiGangi, Joseph. „US Intervention in E U Chemical Policy" (September 2003) Environmental Health Fund, online: <www.cleanproduction.org>. DiGangi, Joseph. „US Intervention in E U Chemical Policy" (September 2003) Environmental Health Fund, online: Clean Production Action, <www.cleanproduction.org> (August 3, 2004). Dittert, Daniel. Die ausschliesslichen Kompetenzen der Europaischen Gemeinschaft im System des EG-Vertrags (Frankfurt a.M.: Peter Lang, 2001). Dupre, Stefan J. "Reflections on the Workability of Executive Federalism" in Simeon, Richard, ed., Intergovernmental Relations (Toronto: University of Toronto Press 1985) 1. 136 Ehlermann, Claus Dieter, ed., Der rechtliche Rahmen eines Europas in mehreren Geschwindigkeiten und unterschiedlichen Gruppierungen (Koln: ERA, Bundesanzeiger, 1999). Ehlermann, Claus Dieter. „Engere Zusammenarbeit nach dem Amsterdamer Vertrag: Ein neues Verfassungsprinzip?" (1997) 4 EuR Heft, 362. Elgie, Stuart. "The Harmonization Accord: A Solution in Search of a Problem" (January 1998) 6:1 Canada Watch, 10. Engel, Kirsten, "State Environmental Standard-Setting: Is There a Race and is it to the Bottom?" (1997) 48 Hastings Law Journal, 271. Epiney Astrid. "Flexible Integration and Environmental Policy in the E U - Legal Aspects" in Holzinger, Katharina & Knoepfel Peter, eds., Environmental Policy in a European Union of Variable Geometry (Basel: Helbing & Lichtenhahn, 2000) at 39. Fafard, Patrick & Harrison, Kathryn, eds., Managing the Environmental Union (Montreal and Kingston: McGi l l - Queen's University Press, 2000). Fafard, Patrick. "Environmental Harmonization: A Guide to the Future of Canadian Federalism?" (January 1998) 6:1 Canada Watch 15. Fafard, Patrick. "Green Harmonization: The Success and Failure of Recent Environmental Intergovernmental Relations" in Lazar, Harvey, ed., Canada - The State of the Federation, 1997 — Non-Constitutional Renewal, (Kingston: Queen's University, 1997) at 203. Gaja Giorgio. "How Flexible is Flexibility Under the Amsterdam Treaty?" (1998) 35 C M L Rev. 855. Galligan, Brian. A federal republic: Australia's constitutional system of government, (Cambridge: Cambridge University Press, 1995). Gallon, Gary. "Environmental Harmonization in Canada Does More than what it was Meant to Do" (January 1998) 6:1 Canada Watch, 17. George A . Bermann, "Law in an enlarged European Union", 14:3 (Summer 2001) European Union Studies Association Review 1. Giering, Claus & Janning, Josef. "Flexibilitat als Katalysator der Finalitat? Die Gestaltungskraft der „Verstarkten Zusammenarbeit" nach Nizza" (2001) 2 Integration 146. Giering, Claus. "Vertiefung durch Differenzierung"(1997) 2 Integration 77. Glachant, Matthieu, ed., Implementing European Environmental Policy (Cheltenham: Elgar, 2001). Griller, S. et al. The Treaty of Amsterdam - Facts, Analysis, Prospects, (Vienna, 2000) at 199. Haigh, N . "The European Community and International Environmental Policy" in Hurrell A . & Kingsbury B. ,eds., The International Polity of the Environment, (Oxford: Oxford University Press, 1992) 233. Haigh, Nigel. "The European Community and International Environmental Policy" in A . Hurrell & B. Kingsbury, eds., The International Politics of the Environment (Oxford: Oxford University Press, 1992) at 228. Harmsen, Robert. "The Puzzle of Constitutional Asymmetry: Recent Canadian and European Debates" (1995) 11:2 Review of Constitutional Studies, 305. 137 Harrison, Kathryn. "Intergovernmental Relations and Environmental Policy: Concepts and Context" in Fafard, Patrick & Harrison, Kathryn, eds., Managing the Environmental Union (Montreal and Kingston: McGil l - Queen's University Press, 2000) at 3. Harrison, Kathryn. "The Canada-Wide Accord: A Threat to National Standards", (January 1998) 6:1 Canada Watch, 13, online: <www.robarts.yorlai.ca/canadawatclVvol_6_l /harrison.htm>. Harrison, Kathryn. "The Regulator's Dilemma: Regulation of Pulp M i l l Effluents in the Canadian Federal State" (1996) 29:3 Canadian Journal of Political Science, 469. Harrison, Kathryn. Passing the Buck - Federalism and Canadian Environmental Policy, (Vancouver: U B C Press, 1996). Hix, Simon. "The Study of the European Community: The Challenge to Comparative Politics" (Jan. 1994) 17:1 West European Politics, 1. Hofmann, Rainer. "Wieviel Flexibilitat fur welches Europa?" 34:6 (1999) Europarecht 713. Holzinger, Katharina & Knoepfel Peter, eds., Environmental Policy in a European Union of Variable Geometry? The Challenge of the Next Enlargement, (Basel: Helbing & Lichtenhahn, 2000). Janning, Josef. "Zweiter Anlauf - die "verstarkte Zusammenarbeit" im Vertrag von Nizza", in:Weidenfeld, Werner, ed., Nizza in der Analyse (Giitersloh: Bertelsmann Stiftung, 2000) at 145. Johnson, Pierre Marc & Beaulieu, Andre. The environment and NAFTA. Understanding and Implementing the New Continental Law (Washington, D.C.:Island Press, 1996). Jordan, Andrew. " E U environmental policy at 25: the politics of multinational governance" (Jan./Feb. 1998) 40:1 Environment 14. Junge, Kerstin. "Differentiated integration" in Cini, Michelle, ed., European Union Politics (Oxford. Oxford University Press, 2003) at 383. Kahl Wolfgang. "Art. 96" in Calliess Christian & Ruffert Matthias, eds., Kommentar zu E U V und EGV, 2 n d ed. (Neuwied: Hermann Luchterhand, 2002). Kortenberg Helmut (alias). "Closer Cooperation in the Treaty of Amsterdam" (1998) 35 C M L Rev. 833. Kramer Ludwig. "Thirty Years of EC Environmental Law" (2002) Y . B . Eur. Env. L . 155. Ladeur, Karl-Heinz. "Flexibility and 'Co-operative Law': The Co-ordination of European Member States' Laws -The Example of Environmental Law" in de Burca, Grainne & Scott, Joanne, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) at 281. Laufer.Heinz & Fischer Thomas. Foderalismus als Strukturprinzip fur die Europaische Union (Giitersloh: Bertelsmann Stiftung, 1996). Leclair, Jean. "The Supreme Court, the Environment and the Construction of National Identity: R. v. Hydro-Quebec" (1998) 4:2 Review of Constitutional Studies 372. Lenaerts, Koen. "Interlocking Legal Orders in the European Union and Comparative Law" (October 2003) 52 International Comparative Law Quarterly, 873. 138 Leslie, Peter M . The Maastricht Model: A Canadian Perspective on the European Union, (Kingston: Queen's University, 1996). Lewanski, Rodolfo. "Environmental Integration: Is a Green Government Enough? Some Evidence from the Italian Case" in Lenschow, Andrea, ed., Environmental Policy Integration - Greening Sectoral Policies in Europe (London: Earthscan, 2002) at 78. Liefferink Duncan & Andersen Mikael Skou. "Strategies of the 'Green' Member States in E U Environmental Policy-making", in Jordan Andrew, ed., Environmental Policy in the European Union - Actors, Institutions and Processes (London: Earthscan, 2002). Liefferink Duncan & Andersen Mikael Skou. The innovation of EU environmental policy (Oslo: Scandinavian University Press, 1997). Lijphart, Arend. Patterns of democracy: government forms and performances in thirty-six countries (New Haven: Yale University Press, 1999). Lindqvist, Evert A . "Efficiency, Reliability or Innovation? Managing Overlap and Interdependence in Canada's Federal System of Governance" in Young, Robert, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) at 35. Loughlin, John. '"Europe of the Regions' and the Federalization of Europe" (Fall 1996) 26:4 Publius 141. Lucas, Alastair R. & Sharvit, Cheryl. "Underlying Constraints on Intergovernmental Cooperation in Setting and Enforcing Environmental Standards" in Fafard, Patrick C. & Harrison, Kathryn, eds., Managing the Environmental Union - Intergovernmental Relations and Environmental Policy in Canada (Montreal and Kingston: McGi l l -Queen's University Press, 2000) at 133. MacLean, Iain & McMillan Alistair. Oxford Concise Dictionary of Politics (Oxford: Oxford University Press, 2003). MacMillan, Gretchen M . "Is the European Community a Viable Model for Canada?" in Tychonick R. P., ed., Defence of Canada: Constitutional, Economic and Security Dimensions (Occasional Papers, Strategic Studies, University of Manitoba, 1991). MacMillan, Gretchen M . "The European Community: A Supranational State?" in Randall, Stephen J. & Gibbins Roger, eds., Federalism and the New World Order, (Calgary: University of Calgary Press, 1994). Martenczuk Bernd. „Die differenzierte Integration nach dem Vertrag von Amsterdam" (1998)4ZeuS447. Mazey, Sonia. "European integration - Unfinished journey or journey without end?" in Richardson, Jeremy, ed., European Union - Power and Policy-making (London: Routledge, 2001) at 27. McCormick John. Environmental Policy in the European Union (Houndmills: Palgrave, 2001). McKay, David. Designing Europe, Comparative Lessons from the Federal Experience (Oxford: Oxford University Press, 2001). McKenzie, Judith I. Environmental Politics in Canada - Managing the Commons into the Twenty-First Century (Oxford: Oxford University Press, 2002). 139 McLaren, David. " A Briefing on the Harmonization Accord" (October-December 1998) 23:4 Intervenor, online: <www.cela.ca/newsletter/detail_art.shtml?x=1452> (July 7, 2004). McRoberts, Kenneth. "Unilateralism, Bilateralism and Multilateralism: Approaches to Canadian Federalism" in Simeon, Richard, ed., Intergovernmental Relations (Toronto University of Toronto Press, 1985) at 71. Meekison, J. Peter. "Comment" in Young, Robert, ed., Stretching the Federation. The Art of the State in Canada (Kingston: Queen's University, 1999) at 69. Meller, Paul. " E U seeks new rules on chemicals", New York Times (30 October 2003), online: International Herald Tribune, <www.iht.com>. Monnet, Jean. Memoirs, (London: Collins, 1978). Moravcsik, Andrew & Nicolaidis, Kalypso. "Explaining the Treaty of Amsterdam" (1999) 37:1 JCMS (Journal of Common Market Studies) 59. Morton, F.L. "The Constitutional Division of Powers with Respect to the Environment in Canada" in Kenneth M . Holland & F.L. Morton & Brian Galligan, eds., Federalism and the Environment, Environmental Policymaking in Australia, Canada and the United States (Westport, CT: Greenwood Press, 1996) at 37. Mtiller-Brandeck-Bocquet, Gisela. „Flexible Integration - eine Chance fur die europaische Umweltpolitik?" (1997) 4 Integration 292. Nugent, Neill. The Government and Politics of the European Union (Houndmills: Palgrave MacMillan, 2003). Ogan, Marshall, "An Evaluation of the Environmental Harmonization Initiative by the Canadian Council of Ministers for the Environment" (December 2000) 10:1 J.E.L.P. 15. Painter, Martin. "Canada" in Galligan, Brian & Hughes, Owen & Walsh, Cliff, eds., Intergovernmental relations and public policy (Sidney: Allen&Unwin, 1991) at 88. Painter, Martin. "Conditional co-operation in Australia's arm's length federal polity" in Wachendorfer-Schmidt, Ute, ed., Federalism and Political Performance, (London: Routledge, 2000) at 130. Painter, Martin. "Intergovernmental Relations in Canada: A n Institutional Analysis" in (June 1991) XXTV:2 Canadian Journal of Political Science 169. Painter, Martin. "The Council of Australian Governments and Intergovernmental Relations" (Spring 1996) 26:2 Publius 101. Pallemaerts, Marc. "Regulating Exports of Hazardous Chemicals - E U External Chemical Safety Policy", in Golub, Jonathan, ed., Global Competition and EU Environmental Policy (London: Routledge, 1998) at 60. Philippart, Eric. "The new provisions on 'Closer Cooperation': A call for prudent politics" (2001) 14 ECSA Review, 6. Pinder, John. "Economic and Monetary Union: Pillar of a Federal Polity" (Fall 1996) 26:4 Publius, 123. Raustiala, Karl. "Citizen Submissions and Treaty Review in the N A A E C " in Markell, David L. & Knox, John H. , eds., Greening NAFTA - The North American Commission for Environmental Cooperation (Stanford: Stanford University Press, 2003). 140 Reid, Colin T. & Ruiz-Rico Ruiz, Gerardo. "Scotland and Spain: The Division of Environmental Competences" (January 2003) 52 International and Comparative Law Quarterly, 209. Reveillard, Christophe. "Les premieres tentatives de construction d'une Europe federale - Des projets de la Resistance au traite de C.E.D. (1940-1954)" (Paris : Francois-Xavier de Guibert, 2001). Revesz Richard L. "Federalism and Environmental Regulation: an Overview" in: Revesz, Revesz, Richard L. & Sands, Philippe & Stewart, Richard B., eds., Environmental Law, the Economy and Sustainable Development - the United States, the European Union and the International Community (Cambridge: Cambridge University Press, 2000). Revesz, Richard L. "Federalism and Environmental Regulation: Lessons for the European Union and the International Community" (1997) 83 Va.L.Rev. 1331. Revesz, Richard, "Rehabilitating Interstate Competition: Rethinking the Race to the Bottom Rationale for Federal Environmental Regulation" (1992) 67 New York University Law Review, 1210. Robertson, Gordon. "The Role of Interministerial Conferences in the Decision-making Process" in Oiling, R.D. & Westmacott, M.W., eds., Perspectives on Canadian Federalism (Scarborough: Prentice-Hall, 1988) at 224. Rosamond, Ben. "New Theories of European Integration" in Cini, Michelle, ed., European Union Politics (Oxford: Oxford University Press, 2003) at 110. Ruffert Matthias, "Art. 43 TEC", in Christian Calliess & Matthias Ruffert, eds., Kommentar zu E U V und EGV, 2 n d ed. (Neuwied: Hermann Luchterhand, 2002). Ruffert Matthias. "Art. 43" in Calliess Christian & Ruffert Matthias, eds., Kommentar zu E U V und EGV, 2 n d ed. (Neuwied: X X , 2002). Sbragia, A . "Environmental Policy" in Wallace, Helen & Wallace, William (eds.), Policy Making in the European Union (Oxford: Oxford University Press, 1996). Scharpf, Fritz W. "The Joint-Decision Trap: Lessons from German Federalism and European Integration" (autumn 1988) 66:3 Public Administration 239. Schwanen Daniel. "Canadian Regardless of Origin: "Negative Integration" and the Agreement on Internal Trade", in Lazar, Harvey, ed., Canada: The State of the Federation, 1997, Non-Constitutional Renewal at 169. Schwanen Daniel. "Open Exchange", in Brown, David M . & Lazar, Fred & Schwanen, Daniel, eds., Free to Move: Strenghtening the Canadian Economic Union, Canada Round series No. 14 (Toronto: C D . Howe Institute, 1992). Sharman, Campbell. "Executive Federalism" in Galligan Brian & Hughes Owen & Walsh Cliff, eds., Intergovernmental relations and public policy (Sidney: Allen & Unwin, 1991)23. Shaw, Jo. "Flexibility in a "Reorganised" and "Simplified" Treaty" (2003) 40 CMLRev. 279. Shaw, Jo. "The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy" (March 1998) 4 European Law Journal 63. Skogstad, Grace. "Intergovernmental Relations and the Politics of Environmental Protection in Canada" in Kenneth M . Holland & F.L. Morton & Brian Galligan, eds., 141 Federalism and the Environment, Environmental Policymaking in Australia, Canada and the United States (Westport, Connecticut: Greenwood Press, 1996) 103. Smiley, Donald V . Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson, 1980). Smiley, Donald V . The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987). Stubb, Alexander. " A Categorization of Differentiated Integration" (1996) 34:2 JCMS (Journal of Common Market Studies) 283. Temmink Harrie. "From Danish Bottles to Danish Bees: The Dynamics of Free Movement of Goods and Environmental Protection - a Case Law Analysis" (2000) 1 Y.B.Eur . Env. L. 61. Tingley, Donna. "Conflict and Cooperation on the Environment" in Brown, Douglas, ed., Canada: The State of the Federation, 1991 (Kingston: Queen's University, 1991) at 131. Tuytschaever, Filip. Differentiation in European Union Law (Oxford: Hart, 1999). Van Calster, Geert. "Green Unilateralism: The European Commission and the Environmental Guarantee in Art. 95 E C " (2000) EELR, 232. VanNijnatten, Debora L. "intergovernmental Relations and Environmental Policy Making" in Fafard, Patrick C. & Harrison, Kathryn, eds., Managing the Environmental Union - Intergovernmental Relations and Environmental Policy in Canada, (Montreal & Kingston: McGil l -Queen's University Press, 2000) at 23. Von Buttlar, Christian. "Rechtsprobleme der „verstarkten Zusammenarbeit" nach dem Vertrag von Nizza" (2001) 4 ZeuS 649. Wallace, Helen. Europe: The Challenge of Diversity, Royal Institute of International Affairs: Chatham House Papers 29 (London: Routledge & Kegan Paul, 1985). Wallace, William. "Europe as a Confederation: The Community and the Nation-State" (1982)21: 1-2 JCMS 57. Warleigh, Alex. Democracy in the European Union (London: Sage, 2003). Warleigh, Alex. Flexible Integration - Which Model for the European Union (London: Sheffield Academic Press, 2002). Watts, Ronald L. "Executive Federalism: The Comparative Context" in Shugarman, David/Whitaker, Reginald, eds., Federalism and Political Community: Essays in Honour of Donald Smiley (Peterborough: Broadview Press, 1989) at 439. Watts, Ronald L. Comparing Federal Systems (Montreal & Kingston: McGill-Queen's University Press, 1999). Weatherill, Stephen. ""If I'd wanted You to Understand I Would have Explained it Better": What is the Purpose of the Provisions on Closer Co-operation Introduced by the Treaty of Amsterdam?" in O'Keeffe D./Twomey P., Legal Issues of the Amsterdam Treaty (Oxford: Hart, 1999) at 21. Weatherill, Stephen. "Finding Space for Closer Co-operation in the Field of Culture" in De Burca, Grainne & Scott Joanne, eds., Constitutional Change in the EU - From Uniformity to Flexibility? (Oxford: Hart, 2000) at 237. Winfield, Mark S. "Environmental Policy and Federalism" in: Bakvis, Herman & Skogstad, Grace, eds., Canadian Federalism - Performance, Effectiveness, and Legitimacy (Oxford: Oxford University Press, 2002) at 124. 142 Jurisprudence E.C.J. Ferriere Nord v. Commission, case C-219/95 P [1997] E.C.R. 1-4411. E.C.J. Francovich and Bonifaci v. Italy, joined cases C-6/90 and C-9/90 [1991] E.C.R. I-5357. E.C.J. Commission v. UK, case 804/79 [1981] E.C.R. 1045. E.C.J. Simmenthalv. Commission, case 92/78 [1978] E.C.R. 1129. E.C.J. Metro v. Commission, case 26/76 [1977] E.C.R. 1875. E.C.J. Procureur du Roi v. Dassonville, case 8/74 [1974] 837. E.C.J. Costa v. E.N.E.L, case 6/64 [1964] E.C.R. 1194. Canadian Environmental Law Association v. Canada (Minister of the Environment) (1999), 30 C.E.L.R. (N.S.) 59 (F.C.T.D.). R. v. Hydro-Quebec (1997) 3 R.C.S. 213. Documents Canada Canadian Council of Ministers (CCME), A Canada-Wide Accord on Environmental Harmonization, online: <http://wv^.ccme.ca^assets/pdf7cws_accord_env_hairnonization.pdf> (August 2, 2004). Canadian Council of Ministers (CCME), Canada-Wide Environmental Standards Sub-Agreement, online: <http://www.ccme.ca/assets/pdf/cws_envstandards_subagreement.pdf> (August 2, 2004). Canadian Council of Ministers (CCME) (January 29, 1998) Guide to the Canada-Wide Accord on Environmental Harmonization, online: <http://www.ccme.ca/assets/pdf/guide_to_accord_e.pdf> (August 2, 2004). Canadian Council of Ministers (CCME) (June 2000) Two-Year Review of Canada-Wide Accord on Environmental Harmonization, online: <http://www.ccme.ca/assets/pdf/harminitiative_2yr_e.pdf> (August 2, 2004). Besner & . Associates (October 2003) Five-Year Review Canada-Wide Accord on Environmental Harmonization, submitted to the Canadian Council of Ministers (CCME), online: <http://www.ccme.ca/assets/pdf/harm_accrd_5yirvw_rpt_e.pdf> (March 28, 2004). Canadian Council of Ministers (CCME), "Strengthening Consensus - Reinforcing the C C M E Consensus Decision-Making (CDM) Model", online: < http://www.ccme.ca/assets/pdf/strengthening_consensus_e.pdf> (August 2, 2004). Canadian Council of Ministers (CCME), Annex to the Accord on Environmental Harmonization, online: <http://www.ccme.ca/assets/pdf/annex_to_accord_e.pdf> (August 2, 2004). Canadian Council of Ministers (CCME), Guidelines for Consultation and Partnerships, <http://www.ccme.ca/assets/pdf/gdlns_consultns_partnshps_stkhldrs_e.pdf> (August 2, 2004). 143 Canadian Council of Ministers (CCME), Proposed Process for CWS Priority Setting, online: <http://wwwxcme.ca/assets/pdf/prpsdproccwsprtystngrvsde.pdf> (July 7, 2004). Canadian Council of Ministers (CCME), "Backgrounder - Canada-wide standard on Dioxins and Furans: Conical Waste Combustion of Municipal Waste", online: <http://www.ccme.ca/assets/pdf/d_f_cwc_bckgrnder_e.pdf> (August 1, 2004). Canadian Council of Ministers (CCME), technical documents on Petroleum Hydrocarbons in Soil CWS, <www.ccme/initiatives/standards.html?category_id=8> (July 7, 2004). Canada, House of Commons, Report of the Standing Committee on the Environment and Sustainable Development, Harmonization and Environmental Protection: An Analysis of the Harmonization Initiative of the Canadian Council of Ministers of the Environment (December 1997) online: <http://www.parl.gc.ca/InfoComDoc/36/l/ENSU/Studies/Reports/ENSURP01-E.htm> (May 10, 2004). Framework for the Application of Socio-Economic Analyses in Setting Environmental Standards, Economic Integration Task Group, Canadian Council of Ministers of the Environment, Version of 7/9/98, online: <http://www.ccme.ca/assets/pdf/seframeeng.pdf> (July 7, 2004). Documents International UNEP Governing Council Decision 18/32 Persistent Organic Pollutants (POPs) of May 1995, UNEP Chemicals Programme, online: <http://www.chem.unep.ch/pops/indxhtms/gcl832en.html> (August 4, 2004). North American Agenda for Action: 2003-2005, Pollutants and Health, December 2002, C/C.01/02-06/PLAN/01,62, online: <http://www.cec.org/files/PDF/PUBLICATIONS/3yp03-05_en.pdf> (August 4, 2004). The Sound Management of Chemicals (SMOC) Initiative of the Commission for Environmental Cooperation of North America, Overview and Update, October 2003, Commission for Environmental Cooperation, at 12, online: < http://www.cec.org/pubs_docs/documen^ (August 4, 2004). SEM-03-001/Ontario Power Generation, CEC Citizen Submissions on Enforcement Matters, online: <http://www.cec.org/citizen/submissions/details/index.cfm?varlan=english&ID=88> (August 4, 2004). White Paper, Strategy for a future Chemicals Policy, February 2001, C O M (2001) 88 (01), online: <http://europa.eu.int/cgi-bin/eur-lex/> (July 2, 2004). EU Legislation and Documents Treaty on European Union O.J. C. 325 of 24 December, 2002, consolidated text Treaty Establishing the European Community O.J. C. 325 of 24 December, 2002, consolidated text. 144 EC Council Regulation 1164/94 of 16 May 1994 establishing a Cohesion Fund [May 25, 1994] O.J. L. 130, amended by EC Council Regulation 1264/1999 of 21 June 1999 [June 26, 1999] O.J. L. 161, EC Council Regulation 1265/1999 of 21 June 1999 amending Annex II to Regulation EC 1164/94, [June 26, 1999] O.J. L. 161. EC Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, [1996] O.J. L. 257/26. EC Council Regulation 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances [1993] O.J. L. 84/1. EC, Council Directive 1999/30 of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air [1999] O.J. L. 163/41. White Paper, Strategy for a future Chemicals Policy, February 2001, C O M (2001) 88 (01), online: <http://europa.eu.int/cgi-bin/eur-lex/> (July 2, 2004). C O M 2003 0644 (03) Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). O t h e r M a t e r i a l On E U Environmental Policy / R E A C H " A safe chemicals policy for Europe" (June 28, 2004), online: International Chemical Secretariat, <http://www.chemsec.org/trittsomm.htm> (August 4, 2004). "Building US Support for a new chemical policy by exposing the US government's Opposition to R E A C H " . online: Clean Production Action, <http://cleanproduction.org/SustainableMaterials/Building_support.htm> (August 4, 2004). Burson-Marsteller, report "Enlargement 2004 - Big Bang and Aftershocks", online: <www.bmbrussels.be> (July 3, 2004). "Chemical costs out of R E A C H " (April 13, 2004), online: Eupolitix, <http://www.eupolitix.com/EN/Bulletins/PressReview/Items/200404/aefl al 48-1 ae7-4115-86a0-cd6443475564.htm>, Press Review April 13, 2004, (April 20, 2004). "Chemicals Policy Initiative, Update on the European Commission's R E A C H Proposal — Registration, Evaluation, and Authorization of Chemicals" (November 2003), online: The Lowell Centre for Sustainable Development <http://www.chemicalspolicy.org/downloads/Update%20on%20the%20European%2 0Commission%20final.doc > (July 3, 2002) "Chemicals Policy Review R E A C H " , Background, online: EurActiv, <http ://www. euractiv.com/cgi-bin/cgint.exe/2126135-882?714&1015=9&1014=ld_chem> (August 4, 2004). "Chemicals: Commission modifies legislative plans after successful consultation", online: EurActiv, <http://www.euractiv.com/cgi-bin/cgint.exe/l?204&OIDN=1506288&-home=home> (August 4, 2004). "Eastern MEPs to back tight environmental rules", online: EurActiv, <http://ww.euractiv.com/cgi-bin/cgint.exe/1933098-505?204&OIDN=1507833> (July 2, 2004). 145 "EEB Position on Commission Proposal for a Regulation on R E A C H " (10 December 2003) , online: European Environmental Bureau, <http://wwwxeb.org/activities/chemicals/20031210-EEB-position-on-REACH.pdf> (August 4, 2004). "Enlargement and Environment: Questions and Answers" (May 2002), online: E U D G Environment, <www.europa.eu.int/comm/environment/enlarg/pdf/qa.pdf> (August 4, 2004) . "Facts and Figures", online: CEFIC (Conseil Europeen de 1'Industrie Chimique / European Chemical Industry Council), <http://www.cefic.org/factsandfigures/> (August 4, 2004). Institute for European Environmental Policy, Manual of Environmental Policy, <http://www.mep-online.com/chapter2/section_2_5_2.html> (July 23, 2004). Joint position of the German Government, the Association of the German Chemical Industry (VCI) and the Mining, Chemical and Energy Industrial Union (IGBCE) on the consultation document of the European Commission on the Registration, Evaluation and Authorization of Chemicals (REACH), August 14, 2003, online: E U Enterprise Commission, <http://europa.eu.int/coninVenterprise/chemicals/chempol/contributions/public.htm> (July 3, 2004). "New Chemicals Policy in the E U - Good or Bad for Companies?" (May 2003), online: International Chemical Secretariat <www.chemsec.org> (August 3, 2004). " R E A C H - a leap forward for industry; Nordic Concerns and Benefits"(Press release March 25, 2004), online: International Chemicals Secretariat, <www.chemsec.org>, (April 14, 2004). "Safer Chemicals Within Reach. Using the Substitution Principle to drive Green Chemistry", online: Clean Production Action, <http://cleanproduction.org/NEWS/SafeChem.htm> (July 4, 2004). "The E U legislative process on chemicals" (June 2004), online: Chemical Reaction, <www.chemicalreaction.org> (August 2,2004). "The Social Costs of Chemicals - The Costs and Benefits of Future Chemicals Policy in the European Union" (May 2003), online: WWF U K , <http://www.wwf.org.uk/filelibrary/pdf/socialcostofchemicals.pdf> (August 4, 2004). Position paper of IG Metall, ver.di and IG B A U , "EU-Chemiepolitik muss Schutz der Gesundheit und Umwelt in den Mittelpunkt stellen" (October 2003), online: International Chemicals Secretariat, <www.chemsec.org> (August 2, 2004). United States House of Representatives, online: Committee on Government Reform Minority Office, " A Special Interest Study: The Chemical Industry, the Bush Administration, and European Efforts to Regulate Chemicals" (April 1, 2004) prepared for Rep. Henry A . Waxman, <http://www.house.gov/reform/min/pdfs_108_2/pdfs_inves/pdf_admin_reach_rep.pd f> (August 4, 2004). "What we need from R E A C H " - Opinions from industries, Resume from a seminar held at the Swedish Permanent Representation, Brussels, 25th February 2004, online: International Chemicals Secretariat <www.chemsec.org> (August 3, 2004). 146 On the C W A E H Cloghesy Michael and Caccia Charles, "Should we ,harmonize' the environmental rules?", Globe and Mail (29 January 1998). Mitchell Anne and Winfield Mark, "The accord is a tragedy for Canada's environment", Globe and Mail (2 February 1998). » Websites relating to the implementation of Canada-wide standards British Columbia's implementation plan (fine particulate matter and ground-level ozone standard), online: Government British Columbia, <http://wlapwww.gov.bc.ca/air/airquality/> (July 7, 2004). Canada's 2003 Progress Report on Particulate Matter and Ozone, online: Government Canada, <http://www.ec.gc.ca/CEPARegistry/documents/agree/PM_resp_03/toc.cfm> (July 5, 2004). Manitoba's implementation plans for Dioxins and Furans Standard, online: Government Manitoba, <http://www.gov.mb.ca/conservation/cwsmb/pdf/hg-d-f-incinerators-existing.pdf> ; <http://www.gov.mb.ca/conservation/cwsmb/pdf/hg-d-f-incinerators-new.pdf> (July 8, 2004). Ontario's implementation plan (Benzene standard), online: Government Ontario, <http://www.ene.gov.on.ca/envision/cws/#benzene> (July 7, 2004). Prince Edward Island's implementation plan (Mercury standard), online: Government Prince Edward Island, <www.gov.pe.ca/fae> (July 7, 2004). Progress report (implementation of Benzene standard) Alberta, online: Government Alberta, <http://www3.gov.ab.ca/env/protenf/standards/cws_participation/publications/Benze ne-PhaselProgressReport2001.pdf> (July 7, 2004). Personal Correspondence/Interviews Besner, David, author of the Five-Year Review of Canada-Wide Accord on Environmental Harmonization, personal correspondence of May 24, 2004. Harrison, Kathryn, informal meeting at UBC, November 17, 2003. Hrenchuk, Carl, Executive Director, Canadian Council of Ministers, Telephone Interview, June 17, 2004. Winfield, Mark, Executive Director, Pembina Institute for Sustainable Development, personal correspondence of July 9, 2004. 147 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0091757/manifest

Comment

Related Items