European Union Overview: The Shift of Power in the European Union and Its Consequences for Energy and the Environment

• Author: Noah M. Sachs
• Pages: 485-500

CHAPTER 26

European Union Overview:

The Shift of Power in the European

Union and Its Consequences

for Energy and the Environment

NOAH M. SACHS*

I. Introduction

Since the 1980s, the European Union (EU) has expanded its role in environ-

mental lawmaking considerably. It has expanded its role internally, as the

principal driver of environmental policy making in Europe, and also exter-

nally, as an influential player in international environmental negotiations.

The growing role of the EU in environmental policy has meant that Brussels

frequently sets environmental standards for the member states. As a result, a

clear trend has emerged in which EU environmental law has become more

uniform, and the autonomy of the member states over environmental policy

has decreased. Member states still retain flexibility, however, in the imple-

mentation and enforcement of environmental law and in the adoption of

policies not covered by EU rules.1

EU institutions have evolved considerably since the 1980s, moving

beyond traditional areas of concern, such as trade harmonization, to new

areas of competence, such as energy efficiency policy, product regulation,

climate change mitigation, toxic chemical regulation, and environmental lia-

bility. Along with this growing breadth of competence, the membership of

the EU has also expanded. Since it was founded in 1957, the EU has grown

from six member states to 28 member states. The enlargement in 2004, with

ten new countries joining 15 existing member states, was the largest single

expansion of the EU, followed by two more member states in 2007 and Croa-

tia in 2013. The EU now has a population of over 500 million, and with a

*The author would like to thank Dr. Bettina Enderle of Allen & Overy LLP in Frankfurt

for many helpful suggestions on drafts of this chapter and Eric Wallace for invaluable

research assistance.

485

2011 GDP of $17.6 trillion, the EU comprises about one-fifth of the global

economy.2 As a result of its geographic scope, economic power, and legisla-

tive and regulatory authority, the EU is now a major player in international

environmental law.

This chapter reviews several recent trends in EU environmental law. It

does not attempt to summarize every piece of EU environmental legislation.

Instead, this chapter focuses on institutional changes in EU governance and

major new developments in EU environmental policy in the last decade.

II. Centralization of Decision Making

In the past three decades, there has been a major shift in control over envi-

ronmental lawmaking in Europe: a shift from the member states to EU insti-

tutions, including the Council, the Parliament, and the Commission

(especially the Directorate-General for Environment, the Directorate-General

for Energy, and the new Directorate-General for Climate Action). The roles

and responsibilities of each of these institutions are described in greater

detail in chapter 27, The European Union. Here, I discuss both the causes

and the effects of policy centralization.

A. Causes of Policy Centralization

One cause of the centralization of decision making is that the member states,

through various treaty amendments, have conferred greater authority on EU

institutions to act in the environmental realm. The Single European Act

(1986)3 contained key environmental provisions, including the principle that

the environment should be considered in all Community legislation, and the

Treaties of Maastricht (1992) and Amsterdam (1997) made sustainable devel-

opment one of the Community’s central objectives.4

Treaty amendments over the past three decades have also conferred more

power on the Parliament. This trend culminated in the Treaty of Lisbon (2009),

through which the Parliament became, for most matters, a co-equal decision

maker with the Council in the ordinary legislative procedure of the EU.5 The

Parliament has been an important forum for consumer and environmental

interests in Europe. The European Green Party and pro-environment Members

of Parliament from other parties have taken a leading role in promoting envi-

ronmental legislation, and the Parliament’s rising power and authority have

helped to support the increasing scope of EU environmental law making.6

Policy centralization is also the result of the transboundary nature of

environmental problems in Europe. Climate policy and water quality are

two notable examples of the need for centralized lawmaking at a suprana-

tional level. Chemical regulation is another example. European chemical

manufacturers produce for both a European and an international market,

and a patchwork of national legislation would be less effective than EU

legislation at ensuring both public safety and continued growth in the

chemical industry. The EU has also taken the lead on legislation aimed at

reducing the environmental impacts of products. Because of the traditional

486 INTERNATIONAL ENVIRONMENTAL LAW