MANAGEMENT ACT
3. TWO CLASSICAL WAYS FOR REGULATORY INTERVENTIONS AND THEIR ABILITY TO
3.2. The Integrated Permit
Much can be said about the alternative options to design a permit system. This section will only discuss the fundamental characteristics of a permit system (see Appendix for summary). This regulatory instrument should clearly be regulated in the primary legislation.
The basic idea of a permit system is that the law explicitly forbids a certain activity, and subsequently rules that this activity is only allowed when a competent authority has issued a permit. Within the primary law it must be prescribed exactly which authority is competent to issue the licence (charac- teristics (1) a permit obligation for (2) certain well-described activities, and (3) attribution of the administrative competence to issue a permit, to include permit conditions and to adjust or revoke the permit). The enumeration of the activities covered by the permit system can eventually be done in secondary legislation, or in an annex to the primary law.
The substantive core of the permit system is the focus of protection: what will be the scope of environmental protection (characteristic 4: description of the scope of protection)? Within this scope, the extent of integration (or isolated approach) will become clear.38In order to guarantee legal certainty it is recom- mended that the scope of the permit system is rather precisely defined.39From the viewpoint of dynamic decision-making it can however be argued that this scope should be flexible, in order for the permit system to adapt to new insights into environmental policy. From a legal point of view, however, legal certainty will be preferred. This legal certainty will facilitate the administrative authori- ties in taking responsibility for protecting the environment through permit deci- sions. If they are not sure whether they are indeed allowed to take account of certain specific environmental concerns within the permit, they might be reluc- tant to do so – fearing court proceedings by the applicant for the permit.
38 From 1993, the scope of the permit system of the Dutch Environmental Management Act (which replaced and extended the Hinderwet) was intentionally broadened, for instance in the use of raw materials, and towards energy efficiency. An evaluative study showed that it is crucial that the central government provides the decentralized competent bodies with information on the application of the new elements in the permit decisions: Evaluatiecommissie Wet Milieubeheer, De verruimde reikwijdte van de Wet milieubeheer,ECWM 2001/3 (postbus 30945, 25000 GX Den Haag, the Netherlands).
39 In the Netherlands, the scope of the permit scheme of the Environmental Management Act is not precisely described. Different opinions exist as to whether this is necessary: Boeve et al. (2004, pp. 153–4).
Where the scope does not include a fully integrative approach, the legisla- tor should take into consideration what kind of harmonizing or coordinating provisions need to be provided (characteristic 5: attention to harmonizing and coordinative provisions). As already pointed out in Section 2.2, coordination is for instance prescribed in Dutch environmental law between the permit based on the Environmental Management Act, and the permit based on the Water Pollution Act.
Once the scope of the permit system has been designed, it must subse- quently be clear on what criterion or criteria the decision is to be based. This is a very sensitive topic, as it will specifically determine the level of protec- tion that will be given to the environment, and – vice versa – will also make clear what kind of activities will or will not be allowed for society (especially industry). Within the criteria (we can imagine that not just one criterion, but a set of criteria, will be necessary in order to give direction to the substantive decision-making), the challenging tension between economic abilities and environmental protection will be present. This is for instance expressed by the economic/technological criterion as used in the IPPC Directive. This Directive prescribes that the emission limit values, or equivalent parameters and techni- cal measures, which are to be part of the integrated permit, shall be based on the ‘best available technology’ (BAT). In addition to this economic- technological criterion, geographical location and local environmental condi- tions should also be taken into account by the permitting body40(characteris- tic 6: description of the economic-technological criterion and other criteria for decision-making). However, in practice it is often not immediately clear what BAT really means. The definition of ‘best available technology’ in the IPPC Directive is rather vague and confusing.41 However, it clearly cannot be assumed that a legislator will be able to prescribe in its primary or secondary legislation all the techniques that have to be applied by installations. It is predominantly for this reason that a permit system, in other words, a system of tailor-made decision-making, is needed.42 In order to make clear what is meant by best available techniques (or other economic-technical criteria), guidelines are crucial; these guidelines provide the permitting (decentralized) bodies with relevant information. The guidelines may be provided by the central government, or by expert commissions. The legal status of guidelines may differ, depending on the specific legal context. As it is necessary to facil- itate technological innovations, it may be argued that the guidelines should not
40 IPPC Directive, Art. 9.
41 IPPC Directive, Art. 2, section 11.
42 It is not strictly necessary for this tailor-made decision-making to be done by a command and control permit system. Market-based mechanisms, like emissions trad- ing and taxes, may also be applied to certain environmental problems.
be strictly binding, but should function as clear recommendations to the permitting bodies. This would enable the permitting bodies to deviate from the guidelines where guidelines have become outdated.43The IPPC Directive for instance urges the Member States to ensure that the competent authorities follow or are informed of developments in best available techniques.
Subsequently, these developments need to be applied in the permits. The Commission has installed a bureau that aims to provide the Member States with information on best available techniques.44This European IPPC Bureau regularly publishes so-called ‘BREFs’ (BAT reference documents), holding information on the best available techniques. This information is to be taken into account by the permitting bodies of the Member States.45
In addition to the economic-technical criterion for decision-making, the relationship with so-called environmental quality standards (EQS) should be made clear. Those EQS (when set) may differ in their legal status (such as being strictly binding, or, alternatively, only to be taken account of, meaning that with convincing arguments – like unreasonably expensive investments – deviations may occur). Depending on the legal status of the EQS, they may overrule the BAT criterion. For example, when an activity for which a permit is requested, and which intends to apply BAT, nevertheless causes an EQS to be crossed by its emissions, extra measures will be needed, or even refusal of the application for a permit.46In addition, when present, the relationship with environmental plans should also be made clear (characteristics 7a and 7b: rela- tionship with environmental quality standards, and environmental plans).
As already mentioned about characteristic 3, the legislator should fine-tune the specific competences of the permitting body. These are not only about issuing a permit (or denying the request for a permit). Specifically the inclu- sion of permit conditions and the competence to update the permit and its conditions are extremely relevant. Through the specific permit conditions, the real (individual) standard setting will take place. Legislation should make clear what kinds of conditions might be included in the permit – in which respect a whole set of possibilities may be indicated.47 In this respect, the
43 IPPC Directive, Art. 11.
44 The reports on best available techniques are published on the web:
http://eippcb.jrc.es.
45 As regards BAT, it seems to be necessary to establish (additional) provisions which encourage the process of technological innovations.
46 The IPPC Directive Art. 10. rules: ‘Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available tech- niques, additional measures shall in particular be required in the permit, without prej- udice to other measures which might be taken to comply with environmental quality standards’.
47 See for example Art. 8.13 Dutch Environmental Management Act.
consideration of goal-oriented or method-oriented conditions must take place.
Goal-oriented conditions are often preferred as they give discretion to indus- try as to how to meet these limits. The IPPC Directive illustrates this strong preference for goal-oriented permit conditions (emission limit values), as it rules that the use of any technique or specific technology should not be included in the permit conditions.48Another important aspect of permit condi- tions are the monitoring provisions. To some extent, it can be prescribed within the permit conditions that the operator of an activity should measure its emissions and report them to the authority. Other necessary elements of the competence to issue or update the permit are:
• the duration of the permit; will it be temporary or not?
• clear rules on the competences of the administrative authorities to adjust the permit to new circumstances, or even to revoke the permit when this might be necessary in the interests of the environment;
• clear procedural rules on updating the permit in the event of changes in the activity.
In addition to the substantive characteristics mentioned above, procedural provisions are also extremely important in order to provide decisions that fit into the concept of democratic and transparent regulatory interventions.
Provisions that aim at carefully preparing the ultimate decision are very important in this respect. In the first place, it should be clear what kind of impacts the activity might have on the environment. Environmental impact assessments, which are usually prescribed for activities that could signifi- cantly affect the environment, are a well-known instrument in this respect. For less significant activities, it may be prescribed that within the application of the permit the possible effects on the environment should be pointed out (this is in fact a ‘mini-EIA’) (characteristic 8: collection of relevant information on the environmental effects of a specific activity, for instance through environ- mental impact assessments or through requirements concerning the applica- tion of the permit).
In addition, it is commonly accepted that the decision-making process in environmental matters should be transparent, for both third parties and NGOs (characteristic 9: access to information), and that it should be open to comment (characteristic 10: access to environmental decision-making). On the latter, there could be discussion about who precisely may have access to environ- mental decision-making, for instance only the people concerned, that is, NGOs, or everyone (actio popularis).
48 IPPC Directive, Art. 9 section 4.
A permit system will be completed by the possibility of going to court, in order to challenge the administrative decision on a permit request (or other relevant administrative decisions, such as the decision to revoke or to adjust a permit (characteristic 11: access to court)). Here it may also be considered who will be given access to court: only the people concerned, that is, NGOs, or for example everyone (actio popularis).
Last but not least, it is clearly indispensable to provide clear and adequate enforcement competences (characteristic 12: monitoring and enforcement provisions).49