Nicole Niessen
2. DECENTRALIZATION OF ENVIRONMENTAL MANAGEMENT: A COMPARATIVE ANALYSIS
2.2. Decentralized Environmental Management in Europe and the USA
It is not the purpose of these comparative sections to provide an in-depth analysis of all the possible similarities and differences in the field of state–
region relations regarding environmental management. That would be practi- cally impossible. In order to fully understand the environmental management system of a particular country it is of vital importance to have a full knowl- edge of its legal, historical, political, economic, and social context. This chap- ter, however, can only point to certain trends in a number of countries across the globe. As a preliminary remark, it can be said that in all countries there is some form of decentralized environmental management, although there are considerable differences in the amount of legislative and executive powers assigned to the regional authorities.
A first distinction can be made between federal states and unitary states.
Within a federal system – for example, the USA, Germany, and Belgium – the states enjoy separate sovereign authority. At the same time, either explicitly or implicitly, certain matters belong to the exclusive domain of the federal government. In the USA, the mere existence of a federal environmental statute pre-empts state regulations on that same subject unless the latter pertains to
10 Ibid., pp. 70–1.
11 Prud’homme (1994, p. 31).
12 Niessen (1999, p. 21).
supplementary regulation.13In addition, the federal Environmental Protection Agency (EPA) plays an important regulatory role. On the basis of federal acts, the EPA is the primary regulator for pollution, waste disposal, and toxic substances.14In Germany, the federal level has exclusive powers in a number of regulatory matters, meaning that the States (Länder) bear responsibility only for the execution of federal environmental laws, whilst in other matters the Federation and States share regulatory powers.15In Belgium, on the other hand, the communities-regions below the federal level are endowed with the most important environmental powers, and moreover, community-region legislation is of the same level as federal legislation.16
Within a unitary state – like France or Spain – the sub-national authorities are not independent sovereigns, but they nevertheless enjoy a certain amount of governance autonomy. France is rightly classified as a rather centralized state, even though Article 72 of the French Constitution stipulates that local entities are freely administered by elected assemblies.17It is not unusual for the central government to retain substantial powers on issues entrusted to local entities, which of course restricts their autonomy. It often happens that on a particular issue (of environmental management) a local decision and a central govern- ment decision must be delivered jointly.18 Decentralization in Spain, by contrast, almost approaches a federal system. The territory of the state is divided into Autonomous Communities that enjoy legislative, judiciary, and executive powers. Below this level are provinces and municipalities that merely perform administrative functions.19 The autonomy of the municipalities is guaranteed directly by the Constitution, but concrete municipal competences are regulated by State Act. On the one hand, environmental protection is an irrevocable municipal competence, on the other hand, it is one of the municipal activities which according to that same act – the Local Government Act – is complementary to ‘the same activities of other public administrations’.20
13 Yang (2002, p. 528). On p. 520 a reference is made to Article VI of the US Constitution which provides that federal law supersedes all state law (supremacy clause). Federal law includes statutory enactments by Congress, federal court rulings, federal agencies’ regulations, Presidential executive orders, and treaties conclude by the United States.
14 Seerden et al. (2002, p. 565).
15 Rodi (2002, p. 236).
16 Seerden et al. (2002, p. 565).
17 Auby (2002, p. 63).
18 Auby and Jegouzo (2002, p. 174).
19 Vaqués (2000, p. 397).
20 Ibid., pp. 413–14. In Spanish the Regional Government Act is called Ley 7/1985, de 2 de abril, reguladora de las bases del regimen local, commonly abbrevi- ated to LBRL.
In a unitary state, the central government is empowered to confine, control, and intervene in matters of the regional authorities. The same applies to state–region relations within the constituent states of a federal nation. These mechanisms are incorporated not only in the general legal-institutional frame- work for regional government but also in the laws on environmental protec- tion (general environmental codes as well as sectional statutes). In a federal state, a constitutional court watches over the demarcation of federal and state powers. This does not mean that there is a strict delineation of competences everywhere.21The federal government of the United States, for example, dele- gates environmental management responsibility contingent on a state’s perfor- mance. State environmental agencies must monitor and report to the federal Environmental Protection Agency (EPA) on the enforcement of national mini- mum standards. The EPA can withdraw the delegation of functions for poor performance, and one of its regional offices is then entitled to take over. In other countries, too, functional – and to some extent independent – adminis- trative authorities play an important role in the regulation and enforcement of environmental law.22
An overall conclusion is that nowhere are centralization and decentralization treated as mutually exclusive or dichotomous arrangements for environmental management. There is, however, a trend towards centralism in the USA as well as in (the Member States of) the European Union (EU) under the influence of EU directives. This can be explained by the need for technical expertise in envi- ronmental regulation, the need to curb transboundary externalities, the need to economize on administrative costs, and the need to avoid economic disparities between the Member States. Where at first sight decentralized authorities play an important role – as in Italy, Finland, and the Netherlands – the real extent of their regulatory discretion is often relatively small. Within the EU the principle of ‘subsidiarity’ – meaning that the EU does not regulate matters that are best dealt with at the Member State level – serves as a yardstick against which the appropriate level for environmental regulation is assessed.23A similar approach can also be discerned in the national systems for environmental protection.
21 Koopmans (2003, pp. 169–72): The German Basic Law (Grundgesetz), for example, enumerates a list of relatively few ‘exclusive’ federal powers, but gives a long list of subjects for ‘concurrent’ state legislation. To give another example, at first sight the US Constitution seems very precise in its delimitation of federal powers. The wide interpretation of the ‘interstate commerce clause’ by the Supreme Court, however, has broadened the scope of federal powers. Summarizing, although the courts play an important role in delimiting the extent of federal powers, developments in the inter- pretation of relevant constitutional concepts nevertheless demonstrate an intimate link with the evolution of political opinion in American society.
22 Seerden et al. (2002, pp. 564–5).
23 Ibid., p. 565.
2.3. Decentralized Environmental Management in Developing