Voluntary Environmental Agreements: A Regulatory Solution for Activities Involving Integrated Policy Concerns

• Author: Amy O' Halloran
• Position: BCL, LLM (Candidate), University College Cork. The author would like to thank her parents, Michael and Helen O' Halloran and her friends for their support and encouragement
• Pages: 24-46

(2018) 17 COLR 24

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VOLUNTARY ENVIRONMENTAL AGREEMENTS: A REGULATORY SOLUTION

FOR ACTIVITIES INVOLVING INTEGRATED POLICY CONCERNS

Amy O’Halloran*

A INTRODUCTION

There has been disenchantment with the performance of the regulatory state achieving

objectives through formal rational law.

1

The emergence of the welfare state saw the utilisation

of the law as an instrument for purposive, goal orientated regulation.

2

This created a strain on

formal rational law to achieve policy goals to meet societal needs.

3

The intersection of the

policy objectives of environmental protection and economic development contributes to this

pressure today.

Public demands for legal environmental protections in the 1960s and 1970s saw regulators

respond with licensing regimes to control certain activities that could impact on environmental

quality standards.

4

Licensing regimes are aligned to formal rational law in that they generally

apply universal rules; are hierarchal, and; are directed at particular individuals.

5

These typical

features of licensing regimes have led to them being described as command and control

regulation.

6

Licensing has been an important mechanism in achieving environmental

objectives in relation to point source pollution; however, it is not easily adaptable to other

economic activities and consumer behaviour.

7

Accordingly, goal orientated policy areas such

as environmental protection have seen the emergence of alternative regulatory mechanisms,

such as voluntary environmental agreements, and economic regulatory mechanisms. These

mechanisms are recognised by the European Commission as furthering the implementation of

* BCL, LLM (Candidate), Universit y College Cork. The author would like to thank her parents, Michael and

Helen O' Halloran and her friends for their support and encouragement.

1

Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1982 -3) 17(2) Law and Society

Review 239, 239.

2

ibid 240.

3

ibid.

4

Jane Holder and Maria Lee, Environmental Protection, Law and Policy (2nd ed n, Cambridge University Press

2007) 323.

5

Suzanne Kingston, Veerle Heyvaert and Aleksandra Čavoški, Europ ean Environmental Law (Cambridge

University Press 2017) 120.

6

ibid.

7

Commission, ‘Environmental Agreements at Community Level – Within the Framework of the Action Plan on

the Simplification and Improvement of the Regulatory Environment’ COM (2002) 412 final [2].

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the objective of achieving sustainable development in accordance with the principle of

subsidiarity.

8

The utilisation of voluntary environmental agreements and economic regulatory

mechanisms may be justified through the concept of shared responsibility which requires the

involvement of all economic players in order to achieve environmental objectives.

9

The European Commission views the role of voluntary environmental agreements as a

supplementary tool to legislation rather than an alternative to legislation.

10

The Commission

has explained that voluntary environmental agreements should be constructed to allow industry

to determine technical process standards, and that environmental performance targets should

continue be laid down within legislative frameworks. This approach is generally considered

more flexible and cost-effective than traditional environmental licensing regimes.

In accordance with the approach of the Commission, it will be argued that voluntary

environmental agreements are not an alternative to command and control regulation but are a

supplementary regulatory device. It will also be demonstrated that in some circumstances

voluntary environmental agreements can outperform command and control regimes in the

regulation of activities that require the integration of environmental protection with other

policy areas.

11

However, it will also be explained that the suitability of employing voluntary

environmental agreements is context dependent.

12

For example, voluntary agreements are not

sufficient to regulate hazardous industrial processes.

The use of voluntary environmental agreements has not been widely embraced by Irish

regulators or industry.

13

However, the Repak scheme which assists in the implementation of

8

Decision No 21 79/98/EC of the European Parliament and o f the Council of 24 September 1998 on the revie w

of the European Community programme of policy and act ion in relation to the environment and sustainable

development towards sustainability’ [1998] OJ L275/1, art 3.

9

Resolution of the Council and Representatives of the Governments of the Member States, meeting within the

Council of 1 February 1993, on a Community programme of policy and action in relation to the environment and

sustainable development - A European Community programme of policy and action in relation to the environment

and sustainable development [1993] OJ C138/1, ch III. This includes: public authorities; public and private

enterprise, and; the public as both citizens and consumers.

10

Communication from the Commission to the Council and the European Council on Environmental Agreements

COM (96) 561 final, 6; Commission (n 7) [1].

11

Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General

Union Environment Action Programme to 2020 ‘Living Well, Within the Limits Of Our Planet’ [2013] OJ

L354/171, Annex [11].

12

Commission, ‘Environmental Agreements’ (n 10) 8.

13

Brendan Flynn, ‘Much Talk But Little Action? “New” E nvironmental Policy Instruments in Ireland’ (2003)

12(1) Environmental Politics 137, 140.