Environmental law or environmental legislation is a body of the legal process. It involves a system of complex and interlocking conventions, acts or edicts, treaties, statutes, common regulations and policies, which are meant to protect the physical natural environment (short, 2003) which may from time to time be impacted, affected, or endangered by the activities of humans in a global perspective. Some environmental legislation is designed to regulate the nature and quantity of negative impacts of human activities.
Meanwhile, the essence of this essay is primarily focusing on the Subsidiary Policy of the EU, as a means of Implementing Environmental Policy. To critically examine this concept in order to reach an acceptable conclusion of the essay. However, there is need to know exactly what the Subsidiarity concept means not only in a European union perspective but a global perspective as well.
Subsidiarity as a principle states that matters need to be handled or addressed by the smallest or lowest(in case of an hierarchical order) competent authority on any given field(Bernie, P. & Boyle, A., 2002).
By applying the Subsidiarity principle, we mean that any central authority or government needs to have subsidiary functions performed by officials who are closest to the root problem. This rule however does not overlook the role of a superior authority as long as the superior authority can perform the task more effectively and efficiently at the local level.
The (EU) (Subsidiarity Monitoring Network) defines the Subsidiarity meaning in the Union aspect, including its principles:
Subsidiarity is the guiding principle for defining the boundary between Member State and EU responsibilities. If the area concerned is under the exclusive competence of the Community or the Member States, the question does not arise. If instead the competence is shared between the Community and the Member States, the Subsidiarity principle clearly establishes a presumption in favour of devolution. In other words, only if the lower decision-making level (local, regional, national) cannot act sufficiently and effectively, can the Union take action?
With this respect, the European constitution presently being ratified will provide for the enhancement of the Subsidiarity principle. This will be particularly be done by a means of an outright obligation by the established institutions of the union to directly inform the national governments of all member states, at each and every stage of the legislative process. This will be aimed at restoring the faith within the union as well as being a means of bringing member states closer to the drawing board.
On top of this the there will be the establishment of an early warning system. This system will assist in commanding respect for the Subsidiarity principle since it will enable parliaments of all member states to request the commission to review any piece of legislative proposals if the member state feels that it violates the Subsidiarity principle.
CRITICAL EXAMINATION OF EU SUBSIDIARITY CONCEPT:
The major objective of the European environmental policy is to protect, improve and preserve environmental quality. In addition to this it is also geared towards the protection of human life, with these tasks at stake it also has to ensure that natural resources are utilized sustain ably. It also seeks to enhance international measures to combat environmental problems both regionally and internationally (article 174 of the European commission treaty).
For example, a legislation may be passed designed to set allowable levels of emissions or pollution whether water or air pollution (bell, 2006). Other environmental laws and legislations are designed for a preventive role. These types of laws seek to assess and analyse the possible impacts of human activities and devise means to avoid such activities ever-taking place on legal grounds.
Environmental law emerged as a distinct system in the 1960s in some of the major industrial nations like the U K, France and Germany. Although most policies designed are good the implementation has always not been remarkable. In recent years, environmental law has played a major role in promoting sustainable development (Richardson and Wood, 2006).
The Subsidiarity concept as a whole is not restricted to the field of environmental legislation. Generally, it covers broad fields including the fields of political science, management, cybernetics, government policies amongst others. As a concept, Subsidiarity can be traced back to the onset of federalism and it remains an important feature of federalism to-date. The concept can be found in many constitutions since it is a defining factor in legal affairs e.g. the tenth amendment of the United States constitution.
It is presently a fundamental principle of the European Union law. The principle was established during the drafting process of the 1992 Treaty of Maastricht, and it can still be found within the proposed new Treaty seeking to establish a constitution for the European Union. The principle has been existent since then and at the local level, it is a key element of the ‘European Charter of Local Self-Government’, which is a policy instrument of the ‘Council of Europe’.
The Subsidiarity concept is generally intended to ensure that decisions or the process of decision-making is taken as closely as possible to the citizen. It also has a provision that allows for constant checks so as to determine whether actions taken at the Community level are justified in the light of the alternative possibilities available not only at the national level but also at the local and regional levels.
The concept is closely bound up with the principles of necessity and proportionality. These principles require that in any circumstance the actions of the European Union should never go beyond the necessary conditions to achieve the objectives highlighted in the treaty.
One of the basic point to examine on this policy is of its positive side (Subsidiarity) that is adapted by the European Union is its simplification, which is ventured in order to make is very easier for members countries to adapt to it efficiently and effectively, and probably to further encourage them on the policy. There are conditions governing the adaptation of this policy that are not mush necessary, and thus wiped out to enable members enjoys its dividends. The exercise involves the application of formal and informal consolidation of legislation.
The (Europe Glossary) sighted that:
“This concept has grown in importance in relation to the internal market since the White Paper on the Completion of the Single Market”. This was highlighted by the Edinburgh European Council in 1992. Over the past decade, a concentrated effort has been made to establish a market giving priority to the four freedoms, but this has meant a wealth of European legislation, simplification of which has now become a priority in order to ensure that Community action is transparent and effective. The pilot program (Simplification of Legislation for the Internal Market — SLIM) covering four specific areas was launched in May 1996 and has been reinforced by a multi-annual program on the simplification and updating of Community legislation adopted by the European Commission in February 2003.
Meanwhile, since some of the positive aspects of this policy are noted, there is need to also critically examine some of its weak and negative sides. One of which is the problems of implementing this policy, as there are insufficient environmental policies, although some scholars will argue that the policies are not weak, but instead it is the mode of implementation that is weak, is hard to dispute. However, whether it is the policy that is weak or the implementation process we have to accept the fact that there is an issue at stake concerning the policy. Likewise also, there are problems of weak political measures. Although commission members of the European Union may give advice or give directives, it is usually up to the member countries to adhere to these directives. When member countries fail to adopt them then there will ultimately be a problem.
According to one of the text on (Implementing Environmental Law in the European Union), critically explains that some of the immediate problems toward the implementation of environmental policy in the members countries. Its states that:
“One of the primary problems of environmental federalism in the European Union (EU) is the failure of Member States to effectively implement EU environmental law”. The problem arises from the unique division of authority between the EU, which is primarily responsible for the formulation of EU environmental law, and Member States, which are primarily responsible for implementation and enforcement. Because Member States retain broad authority over implementation, they can sometimes delay or avoid their obligation to implement EU environmental law, thereby frustrating the purposes for which those laws were passed.
Issues of environmental laws and legislation keep on getting more elusive by the day. Although many developed western countries especially in the European Union have already introduced specific and stringent laws on environmental protection, many countries especially in the developing world are still lagging behind. Many countries in East Asia, Latin America and sub-Saharan Africa are still to come up with acceptable environmental statutes to protect against environmental degradation.
The Subsidiarity principle may be new in the European legislature but that does not over rule its importance. In addition to this, it is surprising to note that it is within the field of environmental legislation that the principle has the greatest task.
The European constitution being presently ratified will provide for the enhancement of the Subsidiarity principle. This will be particularly be done by a means of an outright obligation by the established institutions of the union to directly inform the national governments of all member states, at each and every stage of the legislative process. Once this is done successfully, the Subsidiarity principle will hold ground and no member state will be allowed to violate the principle and let scot-free.
The integration of environment protection requirements into the definition and implementation of Community policies and activities is one of the basic principles of the European Community (Article 6 of the EC Treaty). There is much evidence of the need for enhancing public awareness of sustainability. A real change in the consumption and production patterns of our societies is recognized as indispensable, even though there is still a lack of clarity and consensus on what sustainability exactly means. Therefore, a public discourse should be opened on the concept itself and the strategies to achieve sustainability.
To add on to this the role of non-state actors in assisting with successful implementation of sustainable environmental policies should not be over looked. This is because non-governmental organizations usually have their own objectives that are usually not subject to parliamentary debate. Thus for immediate adoption and implementation these agencies should be alerted on areas where they can assist.
Finally, there is need for giving a possible solution through which this policy will be adequately adapted by all members of EU without facing any future problem. During the (European Union Consultative Forum on Environmental and Sustainable Development), while problems hindering the development of this policy are sighted, then some solutions were given that:
Bell S. & McGillivray, D. 2006. Environmental Law.6th ed. London:
Bernie P. & Boyle, A.E. 2002. International law and the environment. 2nd Ed. Oxford: Oxford University Press.
Short B. 2003. Environmental Law. London: Sweet and Maxwell.
Other useful reading materials:
McCormick J. 2001. Environmental Policy in the European Union. London: Pal grave press.
Thornton J. & Beckwith S. 2004. Environmental Law. London: Sweet and Maxwell.
Wilkinson D. 2002. Environmental Law. London: Rout ledge.
Wolf S. & White A. 2002. Principles of Environmental Law. Cavendish Publishing.