Aspirations and realities under the water framework directive: Proceduralisation, participation and practicalities

Journal of Environmental Law

Volumn 21, Issue 3, 2009, Pages 391-417

  Howarth, William ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

England and Wales; Participation; Proceduralisation; Water Framework Directive

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; POLICY ANALYSIS; POLICY APPROACH; POLICY IMPLEMENTATION; WATER MANAGEMENT; WATER PLANNING;

ENGLAND; EURASIA; EUROPE; UNITED KINGDOM; WALES; WESTERN EUROPE;

EID: 70449350447     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqp019     Document Type: Article

References (134)

1. L Kramer, 'The Environment and the Ten Commandments' (2008) 20 JEL 6.
2. Foreword, House of Lords European Union Committee, 27th Report of Session 2006-07, Water Framework Directive: Making it Work, HL Paper 136 (2007).
3. Council Directive (EC) 2000/60 establishing a framework for Community action in the field of water policy, hereafter 'WFD'.
4. T Le Quesne and C Green, Can We Afford Not To? The Costs and Benefits of a Partnership Approach to the Water Framework Directive (WWF 2005) 4.
5. D Woods, 'Stakeholder Involvement and Public Participation: A Critique of Water Framework Directive Arrangements in the United Kingdom' (2008) Water Env J 258-9.
6. Commission (EC), 'Common Strategy on the Implementation of the Water Framework Directive 2001' accessed 10 June 2009.
7. UK Technical Advisory Group (UKTAG) for Water Framework Directive Implementation: Terms of Reference (2004) accessed 10 June 2009.
8. Commission (EC), Towards Sustainable Water Management in the European Union: First Stage in the Implementation of the Water Framework Directive 2000/60/EC, COM (2007) 363; House of Lords European Union Committee, 27th Report of Session 2006-07, Water Framework Directive: Making it Work, HL Paper 136 (2007).
9. See, eg the issues raised by D Grimeaud, 'Reforming EU Water Law: Towards Sustainability' (2001) EELR 41-51, 88-97, 125-135.
10. For general academic literature on legal aspects of the Water Framework Directive see D Matthews, 'The Framework Directive on Community Water Policy: A New Approach for EC Environmental Law' (1997) YEL 191
11. W Howarth, 'Accommodation without Resolution? Emission Controls and Environmental Quality Objectives in the Proposed EC Water Framework Directive' (1999) Env L Rev 6
12. Grimeaud (n 9); A Farmer, 'The EC Water Framework Directive' (2001) Water L 40
13. G Kallis and D Butler, 'The EU Water Framework Directive: Measures and Implications' (2001) Water Pol 125
14. W Howarth and D McGillivray, Water Pollution and Water Quality Law (Shaw and Sons Ltd, Kent 2001) ch 5
15. and H Unnerstall, 'The Principle of Full Cost Recovery in the EU Water Framework Directive - Genesis and Content' (2007) 19 JEL 29.
16. Illustrated by early cases before the European Court of Justice where the UK was found guilty of breaching water directives and circumstances within national control were not found to amount to a defence. Howarth and McGillivray (n 10) s4.15.
17. Art 5 EC Treaty provides that 'in areas that do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.' For a general discussion of the implications of subsidiarity, see W Wils, 'Subsidiarity and EC Environmental Policy: Taking People's Concerns Seriously' (1994) 5 JEL 85.
18. See N Gunningham, 'Environmental Law, Regulation and Governance: Shifting Architectures' (2009) 21 JEL 179, forthcoming, for discussion of historical trends in the development in environmental law.
19. Generally see J Black, 'Proceduralizing Regulation' (2000) OJLS 597, and (2001) 21 OJLS 33
20. J Scott, 'Flexibility 'Proceduralization' and Environmental Governance in the EU' in J Scott and G De Burca (eds) Constitutional Change in the European Union (Hart, Oxford 2000)
21. R Macrory and S Turner, 'Participatory Rights, Transboundary Environmental Governance and EC Law' (2002) CML Rev 489
22. M Lee, EU Environmental Law (Hart, Oxford 2005) ch 6
23. and CF Sabel and J Zetlin, 'Learning from Difference: The New Architecture of Experimentalist Governance in the EU' (2008) ELJ 271.
24. Council Directive (EEC) 85/337 Environmental Impact Assessment Directive as amended by Council Directive (EC) 97/11.
25. Council Directive (EC) 2001/42 Strategic Environmental Assessment Directive.
26. W Howarth, 'Substance and Procedure under the Strategic Environmental Assessment Directive and the Water Framework Directive' in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (Cavendish Publishers, London 2007) 149.
27. Council Directive (EC) 1996/61 concerning integrated pollution prevention and control [1996].
28. J Scott, 'Flexibility 'Proceduralization' and Environmental Governance in the EU' in J Scott and G De Burca (eds) Constitutional Change in the European Union (Hart, Oxford 2000)
29. B Lange, 'Searching for the Best Available Techniques - Open and Closed norms in the Implementation of the EU Directive on Integrated Pollution Prevention and Control' (2006) Int J L Context 67
30. and generally see J Holder and M Lee, Environmental Protection, Law and Policy (2nd edn Cambridge, CUP 2007) ch 9.
31. See, eg the quote from L Kramer in preface to this paper.
32. Lee (n 14) 165.
33. M Lee, 'Public Participation, Procedure and Democratic Deficit in EC Environmental Law' (2003) 3 Eur Env L Ybk 193.
34. See, eg the emphasis placed upon participation in the Commission (EC), White Paper on European Governance, COM (2001) 428 and the European Parliament and Council Decision (EC) No.1600/2002 laying down the Sixth Environment Action Programme, Art 10 which requires environmental policy objectives to be pursued through extensive consultation and strengthened participation.
35. Generally see J Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem-solving Approach' (2001) OJLS 415
36. K Getliffe, 'Proceduralisation and the Aarhus Convention: Does Increased Participation in the Decision-making Process Lead to More Effective EU Environmental Law?' (2002) 4 ELR 104
37. and M Lee and C Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention' (2003) MLR 80.
38. L Kramer, 'The Elaboration of EC Environmental Legislation' in G Winter (ed) European Environmental Law: A Comparative Perspective (Dartmouth, Aldershot 1996) 302
39. S Mazey and J Richardson, 'Environmental Groups and the EC: Challenges and Opportunities' in A Jordan (ed) Environmental Policy in the European Union: Actors, Institutions, and Processes (Earthscan, London 2002) 150.
40. WWF, WWF's preliminary comments on Public Participation in the context of the Water Framework Directive and Integrated River Basin Management (2001) 2.
41. JS Dryzek, The Politics of the Earth: Environmental Discourses (2nd edn OUP, Oxford 2005).
42. R McCracken and G Jones, 'The Aarhus Convention' (2003) JPEL 803.
43. Steele (n 24).
44. A Dobson, Citizenship and the Environment (OUP, New York 2003)
45. and C Hilson, 'Greening Citizenship: Boundaries of Membership and the Environment' (2001) 13 JEL 335.
46. The widely cited definition from the World Commission on Environment and Development, Our Common Future (1987) at 43 characterises sustainable development as 'development which meets the needs of the present without compromising the ability of future generations to meet their own needs'.
47. See the review of literature on the benefits of active involvement in environmental decision-making in Le Quesne and Green (n 4) 11.
48. SR Arnstein, 'A Ladder of Citizen Participation' (1969) 36 J Am Plan Assoc 216
49. WWF, WWF's preliminary comments on Public Participation in the context of theWater Framework Directive and Integrated River Basin Management (2001) 3.
50. See, eg Environment Agency, Working together: Your Role in Our Environmental Permitting Decision Making (2007) on the consultation processes adopted by the Agency in relation to environmental permitting decisions.
51. Le Quesne and Green (n 4) 11.
52. For discussion of the role of participation in water management contexts, see J Newig, C Pahl-Wostl and K Sigel, 'The Role of Public Participation in Managing Uncertainty in the Implementation of the Water Framework Directive' (2005) Euro Env 333
53. and N Videira and others, 'Public and Stakeholder Participation in European Water Policy: A Critical Review of Project Evaluation Processes' (2006) Euro Env 19.
54. Principle 10, Rio Declaration, United Nations Conference on Environment and Development (1992) accessed 10 June 2009. This principle has been reaffirmed in Johannesburg Declaration on Sustainable Development (2002) which states that sustainable development requires 'broad-based participation in policy formulation, decision-making and implementation at all levels'. Johannesburg Declaration, Principle 26 accessed 10 June 2009.
55. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation and Decision making and Access to Justice in Environmental Matters (1998). Adopted by European Environment Ministers meeting in Aarhus (Denmark) 25 June 1998, and entered into force 30 October 2001 accessed 10 June 2009. See The Aarhus Convention: An Implementation Guide (2000) accessed 10 June 2009.
56. For commentary see J Jendroska and S Stec, 'The Aarhus Convention: Towards a new Era in Environmental Democracy' (2001) Env Liability 140
57. and W Upton, 'The Human Factor: Public Participation, Third Party Rights and Aarhus' (2003) ELM 219.
58. A recital to the Aarhus Convention recognises that 'improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns'.
59. Aarhus Convention Art 1.
60. See also Art 6 Aarhus Convention on participation in decisions on specific activities and Art 8 on preparation of executive regulations and/or legally binding instruments, which may also have relevance to activities related to the implementation of the WFD.
61. Art 7 Aarhus Convention.
62. Art 2(5) Aarhus Convention.
63. Lee and Abbot (n 24) 86, though it has been suggested that 'the public concerned' is a term that is wide enough to encompass not only those affected by a decision, but also those with an interest in it, which may be of a legal or factual kind, hence all members of the general public will probably come within the ambit of the 'concerned public', J Adshead, 'Public Participation, the Aarhus Convention and the Water Framework Directive' (2006) 17 J Water L 185,190.
64. Economic Commission for Europe, The Aarhus Convention: An Implementation Guide (United Nations, New York 2000) 85-6.
65. Council Directive (EC) 2003/35 of the European Parliament and the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with the regard to access to justice Council Directive (EEC) 85/337 and Council Directive (EC) 96/61, amends provisions on public participation in the national permitting procedures on environmental impact assessment and integrated pollution prevention and control, and introduces requirements for access to justice.
66. Recital 46 WFD.
67. Recital 14 WFD.
68. Art 14(1) WFD.
69. Art 14(2) WFD.
70. Lee and Abbot (n 24) 100. Similarly, respondents to national consultation on WFD 'stressed that public involvement included, but did not stop at, providing information and consulting'. See Department for Environment Food and Rural Affairs, Third Consultation Paper on the Implementation of the EC Water Framework Directive (2000/60/EC) (2003) para 2.273.
71. Macrory and Turner (n 14) 505.
72. Commission (EC), Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document No.8, Public Participation in Relation to the Water Framework Directive (2003) para 2.2.
73. Ibid 10.
74. Ibid 11.
75. SI 2003/3242, hereafter referred to as 'Transposing Regs'. See also the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 SI 2003/3245 and the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 SI 2004/99.
76. Reg 10(2)(b) Transposing Regs.
77. Reg 12(2) Transposing Regs.
78. Reg 18 Transposing Regs.
79. Adshead (n 43) 189.
80. See the written evidence from the Foundation for Water Research, which expresses some critical views on the effectiveness of public participation under the WFD and response from Baroness Young, Chief Executive of the Environment Agency, House of Lords European Union Committee, 27th Report of Session 2006-07, Water Framework Directive: Making it Work, HL Paper 136 (2007) 26 onwards.
81. See Le Quesne and Green (n 4) 27, where it is maintained that that the model of stakeholder engagement proposed by the Environment Agency is inconsistent with government policy in other areas.
82. See also Ph AK Rault and PJ Jeffrey, 'Deconstructing Public Participation in the Water Framework Directive: Implementation and Compliance with the Letter or with the Spirit of the Law?' (2008) Water Env J 241, stressing the need for public participation to be seen as a 'flexible, adaptive process' for which no blueprint exists.
83. W Maloney and J Richardson, Managing Policy Change in Britain: The Politics of Water (Edinburgh University Press, Edinburgh 1995) 170-1.
84. See also Environment Agency, Water for Life and Livelihoods: A Framework for River Basin Planning in England and Wales (Environment Agency 2006).
85. For a discussion of contrasts between approaches to public participation in other parts of the UK, see D Woods (n 5).
86. Comparisons may also be drawn with IG Bush and others, 'Public Participation - Drawing the Boundaries' (2005) Water Env J 181, concerned with public participation in the mapping of access land under the Countryside and Rights of Way Act 2000.
87. Department for Environment, Food and Rural Affairs (DEFRA) and Welsh Assembly Government, in River Basin Planning Guidance (2006) para 11.2 accessed 10 June 2009.
88. Ibid.
89. DEFRA andWelsh Assembly Government, River Basin Planning Guidance (DEFRA 2006) ch 11.
90. P Fox and others, Public Participation and River Basin Planning - Early Experiences (Environment Agency, 2004)
91. and see the independent evaluation of this by M Davis and Y Rees, Public Participation in the Ribble River Basin (2004) (produced as part of Workpackage 5 of the HarmoniCOP ('Harmonising Collaborative Planning') Project) accessed 10 June 2009.
92. See also the discussion of the Ribble Project in E Louka, Water Law & Policy (OUP, NewYork 2008) ch 15.
93. Fox and others (n 66) 65.
94. Ibid.
95. Similarly, see the conclusions offered in Bush and others (n 62) concerned with public participation in the mapping of access land under the Countryside and Rights of Way Act 2000.
96. See HFMW van Rijswick, Moving Water and the Law: On the Distribution of Water Rights and Water Duties Within River Basins in European and DutchWater Law (Europa Law Publishing, Groningen 2008), particularly pp 24 and 30, arguing for a substantive interpretation of the obligations under the WFD.
97. Art 4(1)(a).i and Art 4(1)(b).iWFD.
98. Recital 51WFD.
99. Art 10(3) WFD, providing for a 'combined approach' to point and diffuse sources. 74 Council Directive (EEC) 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community. The five 'daughter' directives to the Dangerous Substances Directive, setting environmental quality standards for specific substances, are listed in WFD, Annex IV.
100. Although the WFD is not explicit as to what 'other' legislation is relevant here, it is possible that water quality standards provided for under the Agricultural Nitrates Council Directive (EEC) 91/676 and the Drinking Water Quality Council Directive (EEC) 80/778 as amended might be examples that fall within this category.
101. Art 16(1) WFD, on strategies against pollution of water.
102. See Council Decision (EC) 2455/2001 establishing the list of priority substances in the field of water policy and amending Council Directive (EC) 200/60
103. and COM (2006) 397
104. COM (2006) 398 on proposals for a Daughter Directive on environmental quality standards for priority substances; and Council Directive (EC) 2008/105 on environmental quality standards in the field of water policy.
105. Art 22 WFD.
106. Art 10 WFD
107. and Howarth (n 10).
108. Art 4 WFD uses this form of words in relation to various categories of waters.
109. See also Commission (EC), Proposal for a Council Directive Establishing a Framework for Community Action in the Field of Water Policy COM (97), 49, Explanatory Memorandum s3.3.3 which characterised 'good status' as a 'common level of ambition', suggesting that something less than a binding legal obligation was envisaged.
110. See Grimeaud (n 9).
111. Under Art 4 WFD.
112. See DEFRA andWelsh Assembly Government (n 65).
113. For commentary see Anon, 'Government Formalises Delaying Tactics onWater Framework Targets' (2006) 380 ENDS Report 40.
114. Under Reg. 20(3) Water Environment (Water Framework Directive) (England and Wales) Regulations 2003
115. Reg. 5 Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 and Para16(2) of Schedule 1 to the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004.
116. (n 65) paras 4.17-4.19 and 9.6-9.9.
117. Generally, see Cabinet Office Regulatory Impact Unit, Better Policy Making: A Guide to Regulatory Impact Assessment (2003) para 5.35, which states that it is Government policy not to 'gold-plate' directives by implementation that goes beyond the minimum necessary for compliance.
118. See Anon, 'Just 31% of Rivers Covered by Water Framework Directive' (2006) 379 ENDS Report 19.
119. DEFRA and Welsh Assembly Government, Consultation on River Basin Planning Guidance Volume 2 (February 2008).
120. The final version of this guidance is River Basin Planning Guidance Volume 2 (DEFRA 2008) accessed 10 June 2009. The final guidance omitted some of the introductory discussion on the consultation process contained in the consultation document and, for that reason, reference is made to both documents.
121. Ibid, para 1 of the Consultation document.
122. Annex II(b) WFD.
123. Common Implementation Strategy, Guidance Document No.1, Economics and the Environment: The Implementation Challenge of the Water Framework Directive (WATECO, 2003).
124. RPA Consortium, Development of a Methodology to Determine the Cost-Effectiveness of Measures and Combinations of Measures for theWater Framework Directive (2005) and ICF International, Preliminary Cost Effectiveness Analysis of the Water Framework Directive Revised, After Stakeholder Review (December 2007) accessed 10 June 2009.
125. DEFRA and Welsh Assembly Government (n 87) paras 138 and 139.
126. Art 4 WFD.
127. Jacobs, Report on Guidance on Evidence required to Justify Disproportionate Cost Decisions Under theWater Framework Directive (2007) accessed 10 June 2009.
128. DEFRA and Welsh Assembly Government (n 88) Consultation para 148 and final Guidance para 10.6.
129. For a European Commission review of initial implementation of the WFD see, Towards sustainable Water Management in the European Union - First Stage in the Implementation of the Water Framework Directive 2000/ 60/EC COM(2007) 128
130. and SEC(2007) 362 and 363.
131. Initial decisions of the European Court of Justice under the WFD have established failures to transpose the WFD or to provide timely reports in Commission v Greece (C-264/07, failure to report under Art 5),
132. Commission v Italy (C-85/07, failure to report under Art 5) and
133. Commission v Luxembourg (C-32/05, failure to communicate transposition legislation under Art 24).
134. The decision concerning Luxembourg does contain some general observations on the character of the obligations under the WFD (see para 43, where it is noted that 'overall consideration of the directive shows that most of its provisions... require Member States to take the necessary measures to ensure that certain objectives... are attained, whilst leaving the Member States some discretion as to the nature of the measures to be taken). No case has yet come before the Court where the extent of the implementation discretion allowed to a member state has been directly scrutinised. On the review of implementation discretion more generally see C Hilson, 'Legality Review of Member State Discretion Under Directives' in T Tridimas and P Nebbia (eds) European Law For the Twenty-first Centuary: Volume 1 (Hart, Oxford 2004).