Legal Perspectives on Regulatory Strategies
New Horizons in Environmental and Energy Law series
Edited by Marjan Peeters and Rosa Uylenburg
Chapter 2: The governance approach in European Union environmental directives and its consequences for flexibility, effectiveness and legitimacy
The complex nature of environmental problems, the uncertainty with regard to developments such as climate change, the call for regional differentiation and policy discretion for the Member States has led to new developments in the area of European environmental law. The European Commission has recognised the need for flexibility to increase the quality and efficiency of its environmental policy. Detailed legislation in areas like environmental law no longer suffices. In its 2001 white paper on governance the Commission already advocated the use of different policy tools such as Framework Directives. Next to that, several authors have argued that the classical top-down government approach, which can be characterised by the setting of rather specific and substantive rules at EU level that have to be implemented and administered by the national Member States, is lacking legitimacy because with this approach current environmental problems cannot be solved. A new approach has been embraced: the governance approach. The Commission's white paper on adaptation to climate change and the Commission staff working document, Climate change and water, coasts and marine issues - both from 2009 - are mainly based on this governance approach. The aim of the governance approach is, according to Howarth, to increase the input-legitimacy and to achieve more legitimate policymaking (political legitimacy) by the involvement of stakeholders in standard setting and decision making, and to increase flexibility by standard setting at various levels so that regional circumstances can be taken into account.
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