MANAGEMENT ACT
2. INTEGRATION OF ENVIRONMENTAL LEGISLATION
2.4. The Concept of Integration Balanced with the Choice of
The fundamental question that has to be kept in mind when altering the exist- ing legislative system by incorporating environmental rules in one Environmental Code would be to what extent this would contribute to the transparency, effectiveness and efficiency of environmental law. In the litera- ture it has already been noted that although an environmental legal system where all legislation is brought together may appear attractive at first sight, decision-making in fact takes place in a disintegrated or even uncoordinated matter. Not the form, but the substance, of environmental law should be exam- ined primarily.29 Therefore, a general practical suggestion would be to first examine closely whether a stepwise approach might contribute significantly to the protection of the environment, before deciding on radically changing its legislative structure. It might often be more profitable to invest also and primarily in the execution of the law in practice, instead of starting expensive and often long-lasting legislative projects. In this respect, a scheme as presented above might be an interesting concept to be developed in the longer term.
In particular, the basic idea that one governmental decision should assess all the environmental effects of one activity does not seem to fit smoothly with ideas about improving regulatory effectiveness and efficiency. There are, for instance, strong arguments for using market-based instruments to regulate polluting behaviour, such as taxes, liability regimes, and marketable permits (emissions trading).30 Especially for long-distance pollution problems, like acid rain, the concept of tradable permits seems to be an attractive policy option. Emissions trading is one of the new, upcoming instruments of European environmental law, and even of international environmental law, aimed at combating the climate change problem and protecting the ozone layer.31Domestic experience with this regulatory approach in the US has led other countries to consider this regulatory option.32Subsequently, and after a period of doubt,33Europe has made a strong commitment to this market-based approach, as it is introduced as one of the main regulatory tools for combating the climate change problem.34In fact, the European Commission felt that it was necessary to propose an EU-wide system, in order to prevent a patchwork of several domestic emissions trading schemes occurring, as there were initia- tives by individual Member States to introduce domestic emissions trading schemes for greenhouse gases (for example in Denmark and in the United Kingdom).
Broad acceptance of emissions trading leads also in the case of Indonesia to the challenging question of whether this type of regulation would be a sound option for especially non-local pollution problems. A careful examination of whether the institutional and enforcement provisions would be sufficient in order to introduce this system is recommended. This should be done with respect to a range of other regulatory options, like environmental taxes.
2.4.2. The administrative organization
The basic characteristics of the administrative organization in a country are to be taken into account when regulatory instruments for environmental policy are considered. For example, in the Netherlands the regional water boards are part of the historical administrative culture. Those water boards are competent to issue the water pollution permit. Despite the strong desire for an integrated
30 For a more detailed discussion of these ‘economic’ instruments see the contri- bution of Michael Faure and Andri Wibisana to this volume (Chapter 10).
31 Peeters (2003b, pp. 147–70).
32 Tietenberg (2002, pp. 197–231); Environmental Law Institute Research Report, Implementing an Emissions Cap and Allowance Trading System for Greenhouse Gases: Lessons from the Acid Rain Program, September 1997.
33 Christiansen (2004, pp. 27–46).
34 Peeters (2003a, p. 87).
environmental law, these water boards are still kept competent to issue permits, and there has been no political support for transferring these compe- tences to the provinces and municipalities. Instead, there is an obligation to coordinate the decision-making procedures of the permit based on the Environmental Management Act and the Water Pollution Act (see section 2.2).
On the other hand, also from the viewpoint of integrated policy making, but in this case of integrated water management, it may be argued that transferring competence for issuing water pollution permits from the professional water boards to the general decentralized authorities – without having built up specific knowledge – would not be a good idea. Here, two policy fields (and two administrative organizational structures) meet, and in this respect, the option of coordination is a practical approach. As far as the activities falling under the IPPC Directive are concerned, the Netherlands has to be very care- ful in executing this coordination in order to meet the obligation for integrated decision-making. Nevertheless, as said before, the IPPC Directive accepts the fact that different competent bodies are in charge, meaning that full coordina- tion should take place.
In Indonesia, the Regional Governance Act has confirmed the strong wish and need for decentralization. It is clear that Indonesia wants as far as possi- ble to have a decentralized regulatory approach. The question arises as to how fundamental considerations about and developments towards a basic public law structure for a country (in this case: Indonesia) is also the preferred structure for implementing and executing environmental regula- tory interventions. The basic question here is whether environmental compe- tences should indeed be attributed to decentralized governmental bodies, or whether one or more of these competences would fit better at a higher level.
In the (specific) case of environmental policy, it has to be reviewed closely at what level governmental actions can be executed best – taking into account the knowledge and costs needed for administrative decision- making. This relationship between decentralization and environmental legis- lation will mainly be addressed in the contribution of Nicole Niessen to this book. It is clear, however, that at the very least relationships exist between (1) the concept and design of internal integration; (2) the choice and design of regulatory options and (3) fundamental arguments for a decentralized structure of a state. And, of course, (4) the typical characteristics of the (specific) environmental problems are also decisive in the design of the preferred environmental regulatory intervention. For instance, for regional (not local) or even transnational environmental topics, a higher level seems more appropriate. Here, the possibilities and attractiveness of vertical coor- dination between centralized and decentralized governments is something to be looked at as well.
2.5. Conclusion: The Challenging Task to Design Environmental