MANAGEMENT ACT
2. INTEGRATION OF ENVIRONMENTAL LEGISLATION
2.3. Ultimate Goal: One Environmental Code 1. Indeed an ultimate goal
In the Netherlands the idea of integration has resulted in a framework act, the Environmental Management Act of 1993. This Act forms so-called build-on legislation, meaning that it can be extended with new topics and chapters.
Since 1993, several extensions have indeed occurred. Apart from the Environmental Management Act, important specific environmental laws still exist, like a Water Pollution Act, a Soil Protection Act, and a Hazardous Substances Act. The strong idea of integration in the Netherlands has been causing discussions about improving (the structure of) the environmental legislation, in which respect one integrated Environmental Code is more than once seen as an ultimate goal. In the literature it has also been stated that the concept of codification – meaning the enactment of one Environmental Code – is to be seen as the ultimate form of harmonization.22 However, a recent comparative survey towards the integration of environmental legislation in six EU Member States has shown how different the process towards integrated environmental legislation, and towards the appreciation and enactment of one Environmental Code has been in several national systems.23 In fact, every country (all of them Member States of the European Union) that was exam- ined had its own, specific development in environmental legislation, with sometimes very specific culture-related aspects. In several countries, discus- sion on further integration of national environmental legislation has scarcely begun (Denmark, United Kingdom). In Sweden, there have been impressive developments in the direction of an Environmental Code, but when the extent of real substantive integration is examined, it must be concluded that the result is not overly convincing. Germany developed an impressive proposal for an
22 Faure discusses several views of different authors on the codification of envi- ronmental law (2000, pp. 176–7). There is an impressive academic proposal for restructuring Dutch environmental legislation, in order to install one Environmental Code, serving the concept of sustainable environmental legislation: Biezeveld (2002).
23 Deketelaere et al. (2003).
Environmental Code (Umweltgesetzbuch) as well, but – surprisingly – for political reasons and reasons of public law, this Code has not yet been adopted, and there are no clear signs that it will be adopted in the near future.
2.3.2. A scheme for one Environmental Code
It is nevertheless an interesting exercise to consider the optimal structure for an Environmental Code. The German Umweltgesetzbuch for instance is an attractive proposal from which legislators could take inspiration. It consists of a part with general provisions for environmental law, followed by a part with specific (for instance medium-oriented) provisions. In the Flemish region there have been rather similar interesting developments towards the enactment of an Environmental Code as well.24
The scheme shown in Table 5.1 is inspired mainly by legislative developments in Sweden, Belgium and Germany. It could also be used as an inspiring example for setting up an Environmental Code in developing countries:25, 26
In the General provisionsrows, the common provisions relevant for the whole environmental policy field, like environmental principles, environmen- tal quality standards, environmental planning, and environmental impact assessment could be regulated. Under the Specific provisions, the necessary (medium-specific) regulations, like soil-sanitation obligations could be included.
At first glance, the schematic approach seems to be very attractive as it is clearly structured, and looks rather simple. Nevertheless, when filling in the scheme serious dogmatic questions could arise. Some main questions are:
• What exact policy area will be covered by the Environmental Code? To what extent will the Act also include or relate to spatial planning deci- sions, waterflow or water drought measures, or decisions on traffic and transport? This in fact concerns the problem of filling in a sound exter- nal integration of environmental concerns. Also the question whether
24 Deketelaere et al. (2003).
25 This scheme is based on an idea of Kurt Deketelaere, Catholic University of Leuven, Belgium, as presented in a workshop held for the comparative research project. In the literature, Gustaf Biezenveld has presented another model for an Environmental Code. Another author has considered a further going idea, namely inte- grating all the legislation concerning spatial planning and the environment (like spatial planning law, water management law, environmental law, and nature conservation law), but he also thinks that with coordination coherency can be reached: Michiels (2002).
26 For a conceptual approach towards the establishment of a coherent legal framework for decision-making, see also Anker (2002, pp. 199–209).
specific nature conservation rules should be incorporated into the Environmental Code needs to be addressed.
• How will the provisions of environmental law be tuned with the provi- sions in the general codes, like the Constitution, and respectively the Civil, Administrative, and Penal Code? For example, do the procedural rules for public participation in (environmental) decision-making need to be laid down in an Administrative Code, or in the Environmental Code, or in both, supplementing each other?27
• To what extent will a variety of regulatory instruments be used, and how can the use of different types of instruments be fitted into the structure presented? Should one integrated permit – such as a horizontal provi- sion – indeed be preferred as the best regulatory option? Do other types of regulatory interventions – like market-based instruments – fit into the comprehensive or integrated structure of the Environmental Code (see also the next paragraph)?
• Will it be possible to keep the content of the Environmental Code simple and easy to understand? Is it not the case that due to the complexity and broadness of the environmental policy field the content of the Environmental Code will be difficult to design, and that as a result internal inconsistencies between the rules might still occur?28
27 The latter option is current practice in the Netherlands, meaning that the main procedural rules are included in the General Administrative Law Act, and specific procedural rules are included in the Environmental Management Act, and/or specific environmental acts.
28 For instance, the proposal of G. Biezeveld, aiming at addressing the different types of problems to be addressed by one Environmental Code, is also rather complicated.
Table 5.1
General provisions principles, duties of care environmental quality standards environmental planning
environmental impact assessment environmental permit
enforcement
procedures for environmental information procedures for public participation
procedures for access to court in environmental matters . . .
Specific provisions air soil water nature waste . . .
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.