Enforcement of EU environmental law in air pollution control in the UK with

specific reference to Leeds.

By

Suziana Ahmed Shukor

A Thesis Presented In Partial Fulfilment

of the Requirements for the Degree of

MA (Business Law)

I COTOSTAT

Department of Law

University of Leeds

November 1997

Acknowledgements

My thanks go to the many people who have helped me with advice, data and

encouragement with this research. These include my husband, mother and children,

for their support and love, Mr.Neil Stanley for supervising me, Mr.Matthew Page

(Institute of Transport Studies), Mr.Mike Kelly (Leeds Environment and Energy

Centre), Mr.Chris Hill of the Environment Department of Leeds City Council and

Mr.Richard Clark at the Environment Agency. Thank you.

COPYRIGHT © UiTM

Abstract

This research sets out to investigate the impact of EU environmental law on the UK

air pollution control with specific reference to Leeds. It highlights the difficulties

faced by the UK regulatory regime in controlling air pollution such as problems of

interpreting EU environmental directives. It also endeavours to demonstrate how

difficult it is to protect the environment due to industry and commerce lobbying in

Britain as well as in European Union.

This research also analyses the impact of EU environmental law on Leeds air

pollution control strategy. How effective are the EU environmental directives in

solving the road transport problems in Leeds?

COPYRIGHT © UiTM

Tables of Contents

Chapter 1 Introduction

1.1 The Outline of this Research1.2 The Methodology1.3 The Leeds Context1.4 The Possible Health Harms Associated with Air Pollution1.5 The Possible Benefits of Controlling Air Pollution

Summary

Chapter 2 Role of EU Environmental in Controlling air Pollution in the UK

Introduction

2.1 A Brief History of UK Environmental Law2.2 Membership of European Union2.3 The Benefits of Implementing and Enforcing EU

Environmental Law in the UK

2.3.1 Standard Setting

2.4 Problems of Implementing and Enforcing EU EnvironmentalLaw in the UK.

2.4.1 Divergent Regulations2.4.2 Lobbying2.4.3 Subsidiarity2.4.4 Standard Setting Problem2.4.5 Lack of Local Government Awareness ofEU

Environmental Law

Summary

Chapter 3 The UK's Air Pollution Strategy

Introduction

3.1 The UK Air Quality Strategy3.2 The EC Air Quality Strategy3.3 Commentary on the UK Air Quality Strategy

3.3.1 Recommendations for Air(AQS) improvement

COPYRIGHT © UiTM

3.4 Integrated Pollution Control (IPC)3.5 Commentary on IPC3.6 The Impact of EU Integrated Pollution Prevention Control

(IPPC)3.7 Local Authority Air Pollution Control (LAAPC)3.8 Access to Information

3.8.1 Commentary on the Environmental InformationRegulations

Summary

Chapter 4 The Leeds Air Quality Strategy

Introduction

4.1 Leeds Air Pollution Strategy

4.1.1 The General background4.1.2 What does the Leeds Air Pollution Report state?4.1.3 DoE Automatic Urban network4.1.4 What do the measurements imply?4.1.5 Commentary on the Leeds Air Quality Strategy4.1.6 The North East Environment Agency

4.2 Transport UK

4.2.1 How EU environmental directives influence UKtransport strategy?

4.2.2 How serious is the air pollution problem inLeeds?

4.2.3 Transport and environment4.2.4 Leeds Transport Strategy4.2.5 Problems

Summary

Chapter 5 Recommendations

5.1 The Central Government5.2 The Strategy5.3 Local Government5.4 Consumer5.5 Business5.6 The Difficulties

ConclusionGlossary

COPYRIGHT © UiTM

AppendixAppendixAppendixAppendixAppendixAppendix

123456

Bibliography

COPYRIGHT © UiTM

CHAPTER 1 - INTRODUCTION

Health problems originating from air pollution have generated many studies (will be

discussed later in this chapter). For example an American study made by the

Department of Environmental Medicine identified associations between ambient air

pollution and adverse human health effects.'Although this is not without controversy

(will be discussed later in this chapter), public concern regarding the possible health

hazards of air pollution is triggered.

The objective of this research is:

To find out to what extent EU environmental law can assist in the

control of air pollution in the UK with specific reference to Leeds.

1.1 The outline of this research

Chapter 1 will discuss the adverse health effects caused by air pollution as well as the

possible benefits that the UK can gain from reducing its air pollution.

Chapter 2 will discuss the role of EU environmental law in controlling the level of air

pollution in the UK. This will include discussions on the doctrine of direct effect, the

1 See George D.Thurston - Human Health Effects of Exposure to Air Pollutants (Department ofEnvironmental Medicine) httpV/www.med,nyu.edu/Research -" We found that air pollution producesconsistent adverse health consequences across the various populations and locations we researched. Forexample, on high-ozone, air-pollution day, New York City Hospital admissions for respiratory causesrise approximately 20% above otherwise expected figures."

COPYRIGHT © UiTM

benefits (if any) and problems (if any) of implementing and enforcing the EC

environmental directives.

Chapter 3 will discuss the UK's own initiatives in controlling air pollution -

Integrated Pollution Control (EPC), Local Authority Air Pollution Control (LAAPC),

the Air Quality Strategy and Access to Information.

Chapter 4 will consider Leeds air quality and road transport strategies. This will

include a discussion of initiatives and problems relating to the improvement of air

quality and reduction of air pollution.

Chapter 5 will discuss the possible steps, which can be taken to control air pollution

in both Leeds and the UK.

1.2 The Methodology

This research is based upon both documentary evidence and interviews. The

respondents were the monitoring officer from the regional office of the Department of

Environment (DoE) (Leeds Environment Department), a Chief Inspector from the

Environment Agency *s branch in Leeds and an air pollution campaign leader from the

local branch of Friends of the Earth (FoE) in Leeds.

COPYRIGHT © UiTM

Problems:

• Difficult to obtain up-to-date documents.

• Difficult to obtain respondents' genuine opinions and problems in carrying out their

duties and therefore there is a risk of being informed of just the departments' policies.

• Respondents are reluctant to be quoted personally and have requested anonymity.

1.3 The Leeds Context

In 1974, following local government reorganisation, Leeds became a metropolitan

district with boundaries extending far beyond the built up area of the city itself.

(Fraser, 1980). hi addition to that, it has also recently become one of three*\

'Environment Cities* in the whole UK. hi 1989, the National Road Traffic Forecast

an increase of motor vehicles on the road from 83% to 142% in the UK by 2025. For

this research, Leeds will be a useful barometer of progress made at local level. Hence

whatever achievements and failures Leeds has obtained so far, can be studied for the

benefits of all other cities.

1.4 The Possible Health Harms Associated with Air Pollution

It is necessary to analyse the possible adverse health effects caused by air pollution in

order to understand why it needs to be controlled.

COPYRIGHT © UiTM

The concentrations of PM10 (Paniculate matter 10 microns or less in diameter)3 in

large UK cities are within the range recorded in the US study (a study of six urban

areas in the US4. By making the assumption that particulate material in urban air is

similar in the two countries, and extrapolating from the results of the US study, it has

been suggested that PM10 may be responsible for as many as 10,000 extra deaths a

year in England and Wales. Although there is insufficient data about the origin, nature

and ambient concentrations of particulates in UK cities to allow the validity of this

extrapolation to be tested, it seems that the health implications of particulates need to

be taken very seriously.

In New Orleans, US, a study found that ozone, smog, and airborne particles were both

linked to asthma development. 5A further 5year study in London has found that more

people die when ozone and particulate levels in air are high. In 1995, the London Air

Quality Network reported that London's air quality was deteriorating despite the

introduction of catalytic converters (CATS) on new cars. According to Professor R.

Anderson of St. George's Hospital, severe air pollution episode in December 1991 has

killed 100-180 people,6 However, this has been refuted by the COMEAP 1995 Report

2 See Leeds Local Council - Green Strategy 19923 See The United Kingdom National Air Quality (1997) DoE at p 1894 See Dockery, W.D., Pope, C.A. et al. (1993). Mortality and air pollution in six US cities. The NewEngland Journal Medicine, 329, 1753-1759 hi the Royal Commission on Environmental Pollution(1994) 18* Report - Transport and the Environment HMSO: Cm 2674 at p 315 See Doctor's Guide -http://www.plsgroup.com/dg/898e.htm - researches from Loma Linda Universityof Arizona and the US EPA examined more than 3000 non-smoking Seventh Day Adventists inCalifornia between 1977 and 1992. During this period, 106 study participants developed asthma. Theinvestigators compared the cases to measured levels of pollution and discovered that ambient airpollution exposure was significantly related to the development of asthma.See further The New Scientist 14/1/1995 reported a study by the US Centre of Disease Control thatshowed 63% of US asthmatics lived in areas that failed federal air quality standards.6 ENDS Report 254 March 1996 at p 10

COPYRIGHT © UiTM

on Asthma and Outdoor Air Pollutants which states that there is no evidence showing

a direct link between asthma and air pollution 7

The Royal Commission admits that the amount of UK research relating to adverse

health effects from air pollution was small compared with the US, some othero

European countries and Japan.

1.5 The Possible Benefits of Controlling Air Pollution

The above section demonstrates why there is a need to control air pollution although

the COMEAP report in 1995 suggested that air pollution has no direct link to asthma.

Nevertheless other findings in the US, cannot be so easily dismissed,9 It is submitted

that it is both myopic and dangerous to ignore the health hazards caused by air

pollution discovered by these bodies or organisations just because the COMEAP 1995

Report indicates otherwise. This is especially true since the COMEAP admitted that

there was lack of data available in the UK.

7 See Committee on the Medical Effects of Air Pollutants (COMEAP) 1995 Report - Department ofHealth (1995), COMEAP Report on Non-Biological particles and health (Department of Health 1995)-" We conclude that, in terms of protecting public health, it would be imprudent not to regard theassociation as causal. We also believe that the findings of the epidemiological studies of the acuteeffects of particles, which have been conducted in the US and elsewhere, can be transferred to the UKat least in a qualitative measure. However, we consider that there are insufficient UK data available toallow direct extrapolation and reliable estimation of effect in the UK"See further the United Kingdom National Air Quality Strategy (1997) on the possible health effectscaused by some of the components in air pollution like ozone, carbon monoxide and sulphur dioxide.See ENDS Report 242 March 1995 at p 3 on the US epidemiological study of fine paniculate mattersand heart and lung diseases - adults in cities with the highest levels of fine particulates were at a 17%greater risk of dying than those in the least polluted areas.See ENDS Report 269 June 1997 on a large-scale epidemiological study by US researchers found thatbabies exposed to high levels of paniculate air pollution are 10% more likely to die in infancy thanthose exposed to low levels.See ENDS Report 233 June 1994 at p 29 - exposure to benzene in air may be causing 3000 deaths inthe UK each year and 70% case of childhood leukaemia.See ENDS Report 234 July 1994 p 29 -conflicting evidence on vehicle emissions and health.

COPYRIGHT © UiTM

Having said that, there is also a need to explain why air pollution should and must be

controlled, apart from its associated adverse health factors. In the USA, an estimated

increase in the value of £0.8 billion to £ 2 billion of production in the agricultural

sector can be gained annually if the level of ozone across the USA can be reduced by

10% to 40% respectively. 10This shows that economically, it is beneficial for the UK to

control its air pollution level. Apart from reducing damage to human health,

vegetation soils, crops, water resources, fish stocks and buildings, a central estimate

puts the agricultural benefits at £18 billion.11

Summary

The possible economic benefits that can be gained from controlling air pollution

refutes the general perception that protecting the environment is in conflict with

economic growth and prosperity. In fact, air pollution can prove to be costly to the

economy as a whole. For example, asthma in children and adults costs the UK1 9economy about £ 1 billion in healthcare annually. Thus it is worthwhile to control air

pollution, even though the Department of Health argues that there is no evidence to

show that air pollution has a direct link to causing asthma nor aggravating it.13

See Royal commission Cm 2674 at p 31.9 See fh 1,3 and 4 (Chapter 1)10 See ENDS Report 231 April 1994 at p 1011 See ENDS Report 241 February at p 6 (suggestion made to the DoE)12 See ENDS Report 249 October 1995 at p 913 See BBC News 8/10/1997 - A recent Government investigation discovered that there is a direct linkbetween the mad cow disease, BSE and the human version of the disease, CJD. This has led to a greatcriticism on the last Conservative Government, which repeatedly denied such allegation, stating thatthere was no evidence to show such link. In the mean time, 21 deaths caused by CJD have beenreported. Thus, taking a similar approach, the last Government claimed that there is no evidence toshow a direct link between asthma and air pollution. It will not, however, be pleasant to discover aswith the case of BSE, that a new research discovers otherwise.

COPYRIGHT © UiTM

CHAPTER 2 - Role of EU environmental law in controlling

air pollution in the UK

Introduction

This chapter will look at the role of EU environmental law in controlling air pollution

in the UK. How important are EU environmental directives to the UK regime? In what

ways the UK can benefit from implementing them? Are there any shortcomings? This

chapter will analyse the impact of EU environmental law on the UK environmental

regime including the air pollution control.

2.1. A brief history of UK environmental law

Britain established the world's first national public pollution control agency.1 Under

the Alkali Act 1863, an Alkali Inspector was appointed to act as a regulator of alkali

processes. In 1874, another Alkali Act was passed and this introduced the concept of

best practicable means (BPM)2. This concept ensured that there was to be a

conciliatory and co-operational approach towards law enforcement which would not

place 'an undue burden on manufacturing industry'.3

1 See Ball and Bell - Environmental law 3rd edition at p 92 See Ball and Bell at p 26 — This phrase was never statutorily defined. Instead it was explained inrelation to different processes in BPM Notes published by HMDP and its predecessors. Even these werenot comprehensive, since an important feature is that it allows flexibility to cater for local andindividual circumstances.3 Seem2 (chapter2)

COPYRIGHT © UiTM

In December 1952 London experienced a persistent smog, causing an estimated 4000

deaths. That incident prompted the introduction of the Clean Air Act 1956, later

supplemented by the Clean Air Act 1968, which were introduced to control air

pollution from commercial, industrial and domestic sectors.4

Why then does the UK need the intervention of EU environmental law5, if it appears

that it has already had its own set of emission law and has developed its own concept

of tackling air pollution problems? This is mainly due to its membership of the

European Union as will be discussed in the next section.

2.2.Membership of European Union

The UK legal system does not recognise EU environmental law as part of its own

unless it is incorporated into UK law by an Act of Parliament.6 However, to what

extent EU environmental law becomes part of the UK legal system will depend on the

particular "effect" of each individual EC legislative instrument7 This "effect'' can be

in a form of direct effect, indirect effect and by means of the Francovich principle

(will be discussed below).

4 See Ball and Bell at p 3245 See Diana Good - Why EC environmental law affects your business: A view of environmental lawfrom the EEC with particular reference to the transport sector. (1991) Issue 2 Vol. 3 LMELR at p 50 ona brief history of EC environmental law.6 See Section 2(1) of the European Communities Act 1972, which provides that EC law, is to form partof the law hi the UK.7 See Thornton and Beckwith - Environmental Law (1997) Sweet and Maxwell at p 63

COPYRIGHT © UiTM

• Direct effect

This basically means that if a provision of the EU law is "directly effective" or has a

"direct effect", the EC law takes priority over domestic law — Article 169.8 Thus,

national courts must apply it in preference to national law.9Most of EU environmental

law is in a form of Directives10. In order for a directive to have a direct effect, it must

be sufficiently clear and precise, to the extent, Member States have no discretion in

the method of implementing it. However, difficulties occur when many of these

environmental directives contain mere instructions to Member States on how to draw

up plans to undertake monitoring activities (will be discussed later)11. If Member

States still have the discretion on how to achieve the objectives laid down in the

Directives, those directives are not directly effective. I2This indicates that many of EU

environmental directives are not directly effective in national courts- to be directly

effective, they must be clear, precise and unconditional — Comitato di Coordinamento

per la Difesa della Cava v Rigione Lombardia™

However, the ECJ uses two different approaches to enable EU environmental law to

have the direct effect (despite the problem of discretion). First through the notion of"

horizontal direct effect"l*and secondly through the principle of "indirect effect"15

8 See Article 169 " If the Commission considers a Member State has failed to an obligation under thisTreaty (EEC Treaty), it shall deliver a reasoned opinion on the matter after giving the State concernedthe opportunity to submit its observatiobs. If the State concerned does not comply with the opinionwithin the period laid down by the Commission, the latter may bring the matter before the Court ofJustice"9 See fh 710 See Article 189 (3) " A Directive shall be binding as to the result to be achieved, upon each MemberState to which it is addressed, but shall leave to the national authorities the choice of forms andmethods..."11 See fh 712 Seem?13(1994) IECR 1125 - See the European Court of Justice held that Article 4 of Waste Directive75/442/EEC could not nave direct effect because it was not unconditional and not sufficiently precise.14 See Thoraton and Beckwith at p 64.

COPYRIGHT © UiTM

• Horizontal direct effect

The ECJ uses this principle to overcome the problem of "direct effect" as discussed in

the previous section. This means environmental Directives can still be invoked against

the Member States by widening the definition of certain phrase(s) or word(s) such as

"the State". '6 In Foster v British Gas pic ll, the ECJ held that the direct effect principle

could be relied against:

"... a body, whatever its legal form, which has been made responsible, pursuant to a

measure adopted by the State for providing a public service under the contract of the

State and has for that purpose special powers beyond those which result from the

normal rules applicable in relation between individuals ".

This indicates that EU environmental directives can still be directly effective on local

authorities or public bodies or any organisation that comes within the ambit of the

above ECJ judgement.

• Indirect effect

The principle of indirect effect requires national courts to interpret domestic law

consistently with the Community law.18 This principle will still apply even where the

national provisions in question were adopted after the Directive. In Marleasing S.A. v

See Somsen and Bovis at p 18515 See & 12

See fii 12case C188/89 (1990) IECR 3313

16

COPYRIGHT © UiTM

La Commercial Internaciona de Alimentation S.A.19, the ECJ held that national courts

will have to strike out any domestic legislation if it is inconsistent with the

Community law. However, the UK national courts have shown their reluctance to

uphold this principle over the UK law - R v Swale Borough Council and Medway

Ports Authority, ex parte RSPB.20 In this case, the UK court focused solely on

interpreting the planning regulations and did not consider the wording of the Directive

they purported to implement at all.21

• The Francovich principle

Under the judgement of this case — Francovich and Others v Italian Republic22,

individuals can obtain compensation from a Member State for its breach of an EU

environmental obligation. In this case the ECJ held that there are several conditions to

be met before a Member State can be held liable for breaching its EU environmental

obligation.23 First, the breach must be "fundamental Community obligation".

Secondly, the result required by the Directive must include the conferring of rights for

the benefit of individuals. Thirdly, the content of these rights must be identifiable in

the Directive. Fourthly, there must be a causal link between the breach of the State's

obligation and the damage suffered by the persons affected.24

18 Von ColsonvLandNordrhein-Westfalen, Case 14/83 (1984) ECR 189119(1992)1CMLR305.20(1991)JPL3921 See Thomton and Beckwith at p 65.22 Cases C6/90 and C9/90 (1991) I ECR 535723 See fh 1924 See G.Stuart — Combating non-compliance with European Community environmental Directives(1994) ELMR 160 at p 166 on the shortcomings of the Francovich principle

COPYRIGHT © UiTM

However, in reality, the Francovich principle has several disincentives. First, this

principle applies only where a Directive confers individual rights but majority of

environmental Directives do not.^Secondly, the high cost of litigation and the

problem of establishing locus standi discourage individuals from invoking the

Francovich principle.

2.3. The Benefits of Implementing and Enforcing EU Environmental

Law in the UK

This section will consider the benefit (if any) Britain has gained from implementing

and enforcing EU environmental law. It illustrates why Britain should (and not only

because it has to) enforce such law. The criticisms of these benefits (if any) will be

dealt in section 2.5

2.3.1. Standard setting

The main impact of EU environmental law in Britain is standard setting. The EC

legislative agenda for the environment sets additional measures to the existing

national legislation but provides that it is still possible for each Member State to

introduce, or maintain, more stringent measures than that of the EC measure.26 This

25 See Somsen and Bovis at p 187 - the protection of the interests breached by the unlawful act mustbelong to the objectives of the norm that has been violated.26 See Article 130t "The protective measures adopted pursuant to Article ISOshall not prevent anyMember State from maintaining or introducing more stringent protective measures. Such measuresmust be compatible with this Treaty ".

COPYRIGHT © UiTM

new concept has shifted Britain from its traditional method of enforcing compliance,T-T

from being co-operational basis to a more confrontational one.

Through their membership of the EC, Member States must now implement EU

snvironmental law. The main intention of harmonising air pollution standards'yo

amongst the Member States is to generate fairer competition. Business and industry

will not be unfairly attracted to set up their establishment in Member States that

impose low air pollution standards since they do not have to upgrade their production

techniques and technology.29

Furthermore, by setting harmonised emission standards, Britain's air pollution regime

san rely on those standards without having to rely on the Government's environmental

17 See Hawkins — Environment and Enforcement — Regulation and the Social Definition of Pollution;i984) Clarendon Press on a study of water enforcement- Chapter 2 on Standard Setting at pp 28-29, "Standard setting is not a large part of water authority activity because most discharges have long sincelegotiated their consents..."See Chapter 6 on bargaining from pp!22 — 126, " A sense of mutual trust is important in sustaining thebargaining relationship: trust that the polluter will not 'pull a fast one', trust that the officer will notpenalise theoretically illegal conduct."(at p 123)See Chapter 7 on Negotiating Tactics from pp 141-147-" Negotiations often open with preparatoryvork by the field man designed to make the discharger receptive to his requests. A common ploy is toippeal to the polluter's sense of social responsibility." (at p 141)» Although Hawkins conducted his research on water enforcement, chapter 3 of this dissertation on airpollution will try to analyse whether or not the same method applies to air pollution enforcement aswell.See W.G.Carson-White-collar-crime and the enforcement of factory legislation (1970) 383 Britishfournal of Criminology at p 10 " .. .informal rules governing the general attitudes of occupier and thepromptness of their response to pressure from the Inspectorate played a crucial part in the determinationjf appropriate enforcement decisions."See Environment Action August/September 1997 at p 4- the chief executive of the Environment\gency, Ed Gallagher stressed on the importance of moving away from the traditional co-operationalipproachi'Ve need heavier fines for pollution incidents - current leveller little more than a flea bite fornany industries ".18 See Ogus - Regulation: Legal form and economic theory (1994) Clarendon Press from pp 174-179"or a further reading on standard setting.19 See &Tot>rJ - Different air pollution standards amongst the Member State will impair the concept ofreedom of movement. Meeting higher and more stringent emission standards will normally mean thatndustry has to incur higher cost of production, which may mean lower profit margin if the goods haveelastic demand. In addition to that the higher price of the goods may mean losing out to cheaper goodsiriginating from Member States that have lower and less stringent emissions standards. Consequently,ndustry will be attracted to establish their operational plants there!p 51 J

COPYRIGHT © UiTM

policy solely (that may change from one Government to another)30. Besides, it has not

to worry about competition being impaired by other Member States that have lower

air pollution standards. In short, becoming a Member State, the UK Government must

implement EU air pollution directives, whether or not it likes the very idea.

Secondly, English private law remedies such as the use of civil law compensation

claims (a reactive approach) and information disclosure are not sufficiently

preventative, contrary to a proactive approach of EC environmental

directives.31Therefore, EU environmental law can assist prevention of harm from

being committed on the environment.

However, several problems of enforcement have undermined the full effect of EU

environmental law. In many respects, these problems have defeated the basic EU

preventative approach on protecting the environment (will be discussed below).

2.4* Problems of implementing and enforcing EU environmental

in the UK

The previous section illustrates the implementation of EU environmental law in the

UK as merely on documents. The real challenge will eventually be how much of this

law has actually been enforced - that is, how much the UK regulators follow what is

being implemented — that is the real action. Environment sceptics like Good argued

30 See Weale, Pridham, Williams and Porter -Environmental Administration in Six European states;Secular Convergence or National Distinctiveness? (1996) Pub.Adm. Vol 74 at p 255 on a discussion ofsix Member States* attitudes (including the UK) towards protecting the environment,

COPYRIGHT © UiTM

that the enforcement process at Community level lacks real teeth.32 The scope of this

section is to highlight the problems of enforcing EU environmental law in controlling

air pollution and how mere words on pieces of paper will not secure compliance, by

the potential polluters nor by the Government itself.

2.4.L Divergent regulations

The main constraint regarding the enforcement of EU environmental law in each

Member State lies ultimately in the availability of adequate financial resources33For

example, there was no mention of financial support for local authorities in

implementing the Air Quality Strategy34

It is debatable whether rules focusing solely on emissions will lead to compliance with

Community limit values. According to the European Commission latest annual report

on the application of Community law,35 suspected breaches of EC rules are more

common in the environmental field than in any other area except internal market.

The report36shows that the UK has a poor record in transposing EC environmental

legislation into its domestic law (will be discussed later). The UK also has the highest

rate of public complaints regarding the alleged breaches of EC rules.37

31 See Ogus at p 152; see Ogus Chapter 3 for a discussion on private law failures.32 See G.Stuart at p 16233 See Ball and Bell at p 26234 See Environment Business (15/271995)35 OJ C254 Vol. 38, 29/9/1995, HMSO36 See in 3237 See ENDS Report 249/1995 at p 37 - The UK, which takes pride in claiming mat its compliance withEC rules is virtually free of blemishes, was one place of the bottom. The Report states: " The mostserious problem in the environmental field is the failure of Member States to apply EC Directives

COPYRIGHT © UiTM

For example, the EC limits on smoke, sulphur dioxide, lead and nitrogen dioxide have

been implemented in the UK by administrative means and were only given statutory• lo

force in 1989 after the threat of legal action by the Commission.

Another setback with the EU environmental law concerns with the actual results on

enforcing it. For example, is Article 169 sufficient to prevent harm on the

environment?39 There are several issues that should be raised regarding the problems

of EU environmental law enforcement:

• Enforcement procedure

The Commission relies heavily on the complaint procedure to warn it to cases of non-

compliance.^As far as environmental sector is concerned, the issue of public apathy is

not very worrying with the number of complaints relating to environmental matters

increased by one third since 1991.41 It is actually to detect genuine and serious non-

compliance complaints that become problematic. The investigation of high number of

complaints against one Member State may divert the Commission's focus from other

Member States which may have even worse levels of compliance, bearing in mind that

properly. The Commission does not have the information it needs for a proper assessment.. .MemberStates do not always supply it and this does not make the performance of the Commission's tasks underthe Treaty any easier".38 See ENDS Report 230 March 1994 at p 3839 See G.Stuart at p 163-164 -Article 169 is reactive and thus does not prevent environmental harmfrom being committed.40 See fh 36 -10* Report to the European Parliament on commission monitoring of the application ofCommunity Law 1992, p 40 (OJ 1993 C233). In 1992 the Commission were alerted to 1545 suspectedinfringements across every sector of its competence. Of these, 1185 resulted from the Commission'scomplaint procedure, by which individuals and interest groups are able to inform the Commission ofinfringements without expense or formality. A further 282 cases were detected by the Commissionitself, 33 cases resulted from petitions and 45 from Parliamentary questions.41 See G.Stuart at p 161

10COPYRIGHT © UiTM

the Commission faces both shortage of staff and financial constraint.

• Transposition of EU Environmental Law

This involves a detailed examination of the relevant national texts in order for the

degree of compliance to be assessed. This requires extensive knowledge of national

legislative and administrative systems and may entail cross-referencing multiple

instruments. Furthermore, Directives may introduce new and unfamiliar

environmental concepts, which are open for different interpretation and definition.

The problem of verification worsens due to a lack of co-operation by Member States.42

Apart from that, it is a common practice amongst Member States to simply transfer

the wording of a Directive into national instruments, thereby satisfying the formal

requirements of implementation.43 Such action fails to take into consideration of the

Member States' own legal and administrative systems that in practice, the Directive

might be unworkable.

However, it is not within the scope of this research to include all the possible steps to

improve the EU enforcement regime.44

42 See G.Stuart at p 161 - The Commission requests diagrams and tables from Member States to enableit to compare and cross-refer multiple instruments of implementation, but this request is often ignored.43 Seem 4044 See G.Stuart for a further discussion on the problems of EU environmental directives in combatingnon-compliance and the possible steps to improve the EU environmental regime.

11COPYRIGHT © UiTM

2.4.2. Lobbying

Lobbying is the lifeblood of any political system. Without lobbies, politics is either

irrelevant or dead. Lobbies indicate that the outcome of a political process is taken

seriously enough to justify the investment of energy and money in trying to influence

the outcome.45Interest groups, companies, foreign governments, citizen groups and

business organisations have all contributed richly to the EU environmental decision-

making process.46 In recent years, lobby, has become more numerous and

commercial.47 Pressure groups have developed more sophisticated communication

methods and lobbyists for a whole range of interest have become a burgeoning and

more visible presence in Westminster. For many commentators, British politics has

developed the * sleaze factor* in lobbying.

In recent years, rising concern over the influence of outside interests in Parliament has

been emphasised by a number of detailed investigation into the activities of individual

MPs such as John Browne and Michael Grylls. Grylls for example refused to disclose

45 See Van Schendelen - National Public and Private EC Lobbying (1993) Dartmouth at p 746 See Sebastian Berry- Lobbying - A need to regulate? at p 97 in Jones. The extent of MPs' financialrelationships with professional lobbyists and other interests has grown since the mid-1980s. By 1991,384 MPs held over 500 directorships and 450 consultancies between them. Some industries areparticularly well represented among the ranks of directorships and consultancies. These include the furtrade, the tobacco industry, alcohol companies and drug companies. Drug companies, for example, havedirect financial links with 22MPs.47 See Rees Laurence - Selling Politics (1992) London: BBC Book on a further discussion of theestablishment of professional political consultant like Bell Political Consultant.48 See Panorama -December 1996 on "Money for Question" which involves MP Neil Hamilton andMohammed Al-Fayed. Also on the professional lobbyist, the so-called political consultants like BellPolitical Consultancy and lan Greer Associates. The programme shows how industrial and businesslobbyists play a major role in a legislative process in protecting their interests.

12COPYRIGHT © UiTM