The implementation of environmental policy in Ireland: Lessons from translating EU directives into action

By Bernadette Connaughton

This book explores the response of Ireland’s political-administrative system to the implementation of environmental directives in the cases of waste management, water reform and biodiversity. Ireland represents the implementation challenges of a small EU member state with a weak background in environmental governance, and has struggled to adapt to the complexities of enforcing environmental rules. Using a theoretical framework inspired by traditional implementation analysis and insights from the Europeanisation literature, the book traces the implementation process in three directives. The main conclusion of this study is that Ireland’s implementation performance in waste management, water and nature conservation is influenced by the low issue salience of environmental policy and the need to overcome structural problems in the public administration system to give effect to EU legislation.

• Language: English
• Publisher: Manchester University Press
• Release date: May 22, 2019
• ISBN: 9781526127570

Bernadette Connaughton

Bernadette Connaughton is Junior Lecturer in Public Administration at the University of Limerick

Book preview

Preface and acknowledgements

For the most part, the ‘Irish summer’ of 2018 will be remembered fondly for golden sunshine, blue skies, children spending time at the beach without shivering in their wetsuits, and bumper ice-cream sales. But it was also revealing of the types of environmental pressures Ireland is struggling to address, which are accelerated by economic growth, demographic changes and consumer habits. In June 2018 the heatwave exposed the vulnerability of water supplies, particularly in the Greater Dublin area, as the prolonged spell of dry weather resulted in falling levels in rivers and lakes across the country. The increases in water consumption during the hot weather raised further alarm bells about shortages, and some water restrictions were introduced as monitoring the water supply became more challenging. At the end of the month, Ella McSweeney highlighted that a third of all bee species in Ireland could be extinct by 2030 in an article in The Irish Times. She referred to research published in 2006 by scientists Dr Úna Fitzpatrick and Dr Tomás Murray (now working in the National Biodiversity Data Centre in Waterford). They surveyed the Irish bee population and drew on previous records by Professor John Breen (formerly of the University of Limerick). The question raised was: what are we going to do if our ‘great unpaid pollinators’ go ‘missing’? Towards the end of the summer the first litter survey of Ireland's coasts and waterways found that 40 per cent of our rivers, beaches and harbours were littered or heavily littered. This highlighted an absence in environmental awareness of those visiting these amenities and a failure to enforce litter laws.

These examples reflect the reality of our environmental stresses and emphasise how important it is for all levels of government and administration, citizens, NGOs and business to work together to conserve and protect our environmental resources. The effective implementation or ‘translation into action’ of EU environmental directives requires this. This book explores the complex process of implementation, conceptually and empirically. It strives to understand how the EU has influenced and ‘Europeanised’ Irish environmental policy over time, and analyses the essential role of public administration. The narrative on water supplies, bee population and litter are not just references from summer 2018. They are also illustrative of the cases discussed in the book – water, birds and habitats, and waste management. I hope this study will be of interest to both scholars and policy actors who appreciate our environmental heritage, and are engaged in the circuitous, often tortuous, and ongoing efforts to give effect to environmental policy.

The research for the book was enriched by the contributions and insights from officials at all levels of government, academics, activists and business through formal interviews, seminars and conversations. I acknowledge their contribution and respect the requests for anonymity. My thanks also go to Rob Byron, Tony Mason and the team at Manchester University Press for their advice and assistance in bringing this work to publication. In particular, I want to thank my husband Brendan, my children Aisling, Niall and Darragh, and my mother, Kathleen, for their support and encouragement. The cover photo, taken in June 2018, is of the boardwalk in Ballycroy National Park, near Westport, in Northwest Co. Mayo. Ballycroy is Ireland's sixth national park, nested in my mother's native county. It stretches over 11,000 hectares, including one of the last intact blanket bog systems, and gives impressive views of the Nephin Beg mountains.

Abbreviations

Irish terms

1

Environmental policy making and the implementation challenge

Community environmental legislation will only be effective if it is fully implemented and enforced by Member States. (Statement of the European Council EC 6–1990, 18–21 note 4)

Introduction

Environmental protection is inherently a cross-border issue which creates opportunities for transnational regulation. Since the 1970s, the EU has developed a corpus of law which makes up the environmental acquis and extends to a wealth of areas such as air, nature, noise, water and waste. This is complemented by advancing policy in cross-cutting issues such as environmental impact assessment, access to information, public participation and liability for environmental damage. The expansion of the EU environmental policy illustrates the efforts made to contain environmental challenges by encouraging the convergence and strengthening of national regulation among member states, more so than the creation of distinct European policy processes and institutions.

As well as having transnational impact, the EU environmental policy has consequences for each level of government in Europe – national, regional and local – through its implementation. In theory the institutional architecture of the EU implies a very clear-cut separation between policy making and implementation activities whereby member states are primarily responsible for ensuring the translation and effective compliance with directives. In practice the interrelationships and interactions that arise in a system of multi-level governance presents a multifaceted implementation reality. This study investigates that reality by exploring Ireland's experience of implementing EU environmental policy through three case studies – habitats, water and waste. It argues that Ireland's implementation record in EU environmental policy is significantly influenced by the low issue salience of environmental policy, a range of structural shortcomings in the public administration system and a very steep learning curve. This chapter introduces the broader context of the study by outlining the EU's role as presented in the Treaties and the significance of the European Commission and the Court of Justice of the European Union (CJEU) in the pursuit of effective implementation. It considers explanations for the EU implementation gap and the extent to which it is regarded as a persistent problem. This is followed by a discussion of Ireland's environmental performance, which sets the scene for the theoretical and empirical discussions presented in later chapters.

Environmental policy and implementation

By their nature environmental problems dictate that implementation is unlikely to be an automatic process (Gollata and Newig, 2017; Knill, 2015; Jordan, 1999). Its complexity is augmented by the requirements for the coordination, planning, resources and support of a wide range of actors in both the public and private sector spheres. The effective implementation of environmental measures is more typically the ‘weak link’ in the regulatory chain since the need for substantial financial and technical resources, organisational problems within administrative structures and various other elements make the implementation of (sometimes unclearly) written provisions difficult at national and local levels. Member states are also unlikely to be neutral arbiters of environmental policy implementation since their responses are strongly influenced by domestic politics, bureaucratic and economic interests. Despite these challenges and conundrums the experience of EU environmental policy indicates that when implemented effectively, environmental legislation yields positive outcomes (Signals, 2016; 2012). Eurobarometer opinion polls on the attitudes of European citizens towards the environment also confirm that for most EU citizens a good quality environment is an important contribution to their quality of life, as are the state of the economy and social conditions (Eurobarometer, 2017).

Despite an affirmation of the benefits of a good environment, the European Environment – State and Outlook series contends that Europe faces considerable environmental challenges due to the degradation of ‘natural capital’ by socio-economic activities and unrelenting global pressures on the environment since the 1990s (EEA, 2015: 9–10). Although the study points to progress in Europe in areas such as reducing greenhouse gas emissions and reducing hazardous pollutants, it also highlights difficulties such as a failure to halt biodiversity loss, despite the designation of protected areas across Europe. The 2008 financial crisis and subsequent economic recession did deliver some respite from environmental pressures but when viewed holistically it becomes evident that trends in Europe and globally reveal a number of ‘systemic challenges’ which may be worsened by feedbacks, interdependencies and lock-ins in environmental and socio-economic systems (EEA, 2015: 13). The political and scientific discourse has responded to this with an apparent consensus that ‘business as usual’ isn't an option and perceptions of environmental risks have changed. This is evident in the emphasis on ‘green growth’ in EU plans such as the Europe 2020 Strategy (EC, 2010) which promotes a smart, sustainable and inclusive economy. Also significant are the Seventh EAP (2014) and the circular economy policy framework initiated in 2015. An increased awareness of global and systemic risk indicates that a full adherence to the implementation of the acquis is crucial.

In 2011 the European Commission reported on the costs of not implementing the EU environmental acquis and noted that implementation gaps exist across most environmental sectors and in almost all member states. Their study estimated that the cost of implementation gaps with respect to current legally binding targets could be around €50 billion per year (EC, 2011a: 8–9). It emphasised how non-implemenation is not just harmful to the environment and internal market, but also has significant human health impacts. The evidence that implementing the environmental acquis is a difficult task across the EU is borne out in the high number of open cases in the environmental sector. These findings were reiterated in the 2015 State of the Environment Report (EEA, 2015), the results of a 2015 survey of national environmenal authorities (IMPEL, 2015) and in various communications from the Commission to the Council, including COM (2016) 316 final, on the introduction of regular environmental implementation reviews.

The depiction of the environment is therefore of a complex policy field which presents equally complex implementation challenges. Academic analysis also identifies EU membership as a highly significant factor in explanations for strong domestic policy output (Liefferink et al., 2009: 677). Over time the content of environmental policy in the member states has become increasingly ‘Europeanised’ but a convergence in policy content does not necessarily result in effective compliance. This book employs theoretical perspectives gleaned from both traditional implementation theory and EU implementation studies to understand the implementation process of three environmental directives in Ireland. Implementation is analysed through the application and interpretation of implementation models to explain the interactions of actors, institutions and actions. An understanding of implementation processes, rather than policy content or legislative output, is important as these are critical pathways that determine success or failure. An exploration of how Ireland has adapted to the complexity of EU environmental legislation also contributes to our understanding of the ‘Europeanisation’ of the public policy process in Ireland and the performance of Irish public administration.

Implementation in the European Union

Implementation in the EU refers to ‘putting into effect’ European laws, decisions and policies (Thomann and Sager, 2017; Knill, 2015; 2006a) formulated and agreed during the policy-making process by the European Commission, European Parliament and Council of the European Union.¹ This implies three parts: the first is the transposition of EU legislation into national legislation through the enactment or revision of national legal instruments. The second part requires the adherence and enforcement of such legislation through administrative and practical procedure and considers its effect on the behaviour of the target groups. The third refers to how the legislation/policy influences and forms part of the political, legal and social environment. This is akin to Easton's (1965) systems theory approach which also implies three stages – output, outcome and impact (the latter in terms of effectiveness and problem-solving capacity).

The success of any policy depends on its implementation and it is crucial that EU policy is effective since it makes an important contribution to its legitimacy (Brown, 2016). Establishing whether EU law is actually applied in practice, however, is one of the most challenging tasks in research on European integration since there is no homogenous measure of implementation (Falkner et al., 2005: 33). Implementation itself has become a central political issue in the process of European integration since the early 1980s and the launch of the single market initiative. According to Article 3a of the Treaty of Lisbon the member states, and ultimately national governments, are responsible for implementation by taking ‘any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. Article 9D, Treaty of Lisbon appoints the Commission as the institution that has to monitor whether the member states perform this role effectively. As there are over 200 pieces of legislation to monitor in 28 member states, this is a major task in the environmental field. Of particular significance is the heterogeneity in the national administrative structures in charge of implementing the directives. EU policy must be accommodated by very different administrative traditions (Knill, 2001; 1998). This is further complicated by the increasing decentralisation and fragmentation of national administrative systems into the various multi-level agencies and structures that tend to diminish hierarchical control even within government. Other actors of significance are interest groups and individual citizens on whom the Commission relies in order to assess the progress of implementation and the CJEU, which ensures that European legislation is uniformly interpreted and disputes are adjudicated.

The European Commission and the Court of Justice act as supranational monitoring and enforcement institutions. Article 258 of the Treaty on the Functioning of the European Union (TFEU) empowers the European Commission to open infringement proceedings against member states found in violation of European law. Before this procedure is followed through, the Commission takes a number of formal and informal steps to call for the correct implementation of the legislation. It first takes up informal contacts with the competent national authorities in order to discuss the details and possible problems concerning the execution of the affected measure, followed if necessary by a reminder letter (formal notice) and, further, a reasoned opinion explaining to what extent law has been infringed (see Börzel et al., 2011). Following a reasoned opinion, the member state is given a time-limit within which defective implementation must be redressed and if this does not occur the Commission makes a referral to the Court of Justice and initiates the adjudication phase. Article 267 TFEU provides for references for preliminary rulings from the courts and tribunals of the member states themselves.

The Commission gives a high priority to infringements that ‘undermine the rule of law’ (European Commission, 2014) and, as a result, Commission oversight has become more aligned to standard operating procedures that record perceived implementation shortfalls (European Commission, 2017a). The vast majority of cases are solved at the early stages of proceedings but there are differences between states in their proclivity to convert substandard adherence to EU rules to adequate compliance. The European Commission's monitoring report on the application of EU law in 2016 identifies Cyprus and Belgium as the member states with the highest number of open cases and Estonia as having the lowest total number of open cases. In the specific case of member states that have failed to implement directives within the deadline agreed by the Council of Ministers and the European Parliament, the Commission may request the Court to impose a financial penalty on the member state concerned the first time the Court rules on such a case. This possibility, introduced by the Lisbon Treaty, is laid down in Article 260 (3) of the TFEU. If, despite the first ruling, a member state still fails to act, the Commission may open another infringement case under Article 260 of the TFEU, with only one written warning before referring the member state back to the Court. In these circumstances the Commission can propose that the Court imposes financial penalties on the member state based on the duration and severity of the infringement and the size of the member state concerned. Each year the Commission draws up an annual report on its monitoring of the application of EU law and the 2016 report (published July 2017) details that the European Commission launched 986 new infringement proceedings against member states. The EU compliance system itself appears to be quite effective since, sooner or later, all non-compliance cases get settled (Panke, 2010) but it can take years. The process itself is a mixture of both formal and informal communication at initial stages and may culminate in highly formal legal proceedings. Of crucial importance for the functioning of EU legislation is an effective public administration, and where national administrative bodies are inefficient or ill-equipped to manage this the legislation will be ‘mismanaged’ (Petter Graver, 2002: 5).

In order to understand EU implementation it is necessary to appreciate the legislative instruments that the EU has at its disposal – regulations, directives and decisions – listed in Article 288 TFEU. Directives are the most utilised legislative instrument and allow national and sub-national governments a substantial degree of flexibility in terms of choice of form and method to use in implementation. They are binding as to the results to be achieved, and therefore cannot be regarded as flexible in outcome. These acts, unparalleled in other legal systems, comprise approximately 80 per cent of all EU legislation (Ciavarini Azzi, 2000: 53). A time limit is normally specified with the directive, along with a binding result to be achieved, but within a framework which provides member states with discretion over the process to achieve this goal. However, while directives respond to the fact that member states are not composed of linear administrative systems and reflect different traditions, they also add further complications for effective implementation. This provides a window of opportunity for national governments to potentially erode the original objectives of EU policies. This gives member states with weak implementation capacities time to reach full compliance (Börzel, 2002: 206). Such variability of application and enforcement also led to the establishment of specialist agencies such as the European Environment Agency (EEA) in 1990 and to the increasingly detailed nature of Union directives in an effort to minimise significant national variations in the implementation of EU laws.

In addition, implementation can be regarded as a slippery concept. A range of terms is used to refer to the process of successful implementation or the notion of deficit. These include: incorporation and application (Peters, 1997); legal implementation and practical application/final implementation (Thomann and Sager, 2017; From and Stava, 1993) and formal transposition (Mastenbroek et al., 2014) and (non-)compliance (Börzel and Sedelmeier, 2017; Thomson, 2007). The literature presents a Babylonian variety of understandings and definitions of compliance often using it synonymously with effective implementation. For the purposes of this study an extensive definition of implementation by Bursens (2002: 175) will be used which considers

implementation to be the whole of the actions exercised by the various relevant authorities of the member state in order to effect European legislation within that member state. Consequently, the implementation of European regulation encompasses four consecutive stages: (1) formal transposition (2) practical application (3) enforcement/control, and (4) outcome/results.

This definition incorporates transposition which predetermines the subsequent moves in implementation and the Court of Justice considers timely transposition as a rigorous obligation (Haverland and Romeijn, 2007). It also encompasses ‘practical’ as well as ‘formal’ implementation. Practical implementation refers to the establishment of agencies and policy instruments (practical application), monitoring and inspectorate (compliance), and the actual adherence to the law by the regulated (practical application, compliance). This may be summarised as ‘law in action’ (Versluis et al., 2011: 184).

Explanations for the implementation gap

Explanations in the academic literature on the EU implementation gap appear to be stimulated by two basic questions. To what extent is the implementation of policy a problem in the EU? What kind of problem is it? Numerous authors have referred to the notion of an EU ‘implementation deficit’, ‘implementation gap’ or ‘compliance problem’ (Börzel and Sedelmeier, 2017; Spendzharova and Versluis, 2013; Mastenbroek, 2007; Steunenberg, 2006; Glachant, 2001; Jordan, 1999; Knill and Lenschow, 1998; Lampinen and Uusikylä, 1998; From and Stava, 1993) whereby the stated goals of a policy or piece of legislation do not translate into the desired outcomes. This raises questions of how this deficit is defined. It can mean the incorrect transposition into national legislation (From and Stava, 1993), imply the difficulties in translating a stated policy into an operational policy (Thoman and Sager, 2017; Peters, 2000) or be distinguished as a gap between policy goals and policy outcomes (Jordan, 1999) which undermine the notion of a level playing field within the EU regulatory system. Indeed, perfect implementation rarely, if ever, exists and as a consequence any deficit in implementation is not peculiar to the EU.

Several scholars have argued that the level of implementation and compliance with EU law compares well to the level of compliance with domestic law in democratic liberal states (Sverdrup, 2003). Member states are also obliged to restrict implementation to compliance with the EU's minimum requirements and restrain from practices of ‘gold plating’, which may hamper the role of markets (Thoman, 2015). Overall, the number of commencements of proceedings before the CJEU is very low in relation to reminder letters, reasoned opinions and the bilateral negotiations that take place between the Commission and national administrations in order to find solutions. This system is referred to as taking ‘the form of a highly developed management–enforcement ladder – a twining of cooperative and coercive measures that, step by step, improve states’ capacity and incentives for compliance’ (Tallberg, 2002: 632). Despite this, many observers consider poor implementation and non-compliance to be a serious problem for the EU and one that is systematic and ‘pathological’ (Lampinen and Uusikylä, 1998; Mendrinou, 1996; From and Stava, 1993).

Many studies have challenged this view and questioned the methods prompting such conclusions. For example, Börzel's (2002; 2000a) analysis contested claims that implementation was a ‘Southern problem’ and demonstrated that levels of non-compliance were modest and remained stable over time when measured against a growing body of European legislation and EU enlargements. The accession of ten Central and Eastern European (CEE) states in 2004 and 2007 revived debates about the ‘Mediterranean Syndrome’ and the legacies of weak administrative capacity, patronage, poor governance and low levels of development. Yet a longitudinal analysis of compliance encompassing EU enlargements since 1973 indicates that enlargement does not lead to deterioration in compliance with EU law (Börzel and Sedelmeier, 2017). Administrative capacity is an important factor in explaining why implementation deficits occur in some member states and accordingly the Commission promoted the use of pre-accession conditionality and financial/technical assistance towards the CEE candidate countries. Arguably this strategy alleviates the emergence of an East–West divide in implementation despite the prevalence of low bureaucratic quality in CEE.

It is apparent that implementation is a highly politicised issue and process. In particular, the transposition of directives ‘is not a mechanical process, in which their contents are simply translated into the national codes. It is a political process in which directives are re-interpreted and gradually changed in order to adapt for the different national interests’ (Steunenberg, 2000: 371). The salience of an issue will increase its politicisation, blame-shifting and resistance at the national level. A wealth of research on implementation in specific policy sectors and of individual EU directives clearly demonstrates that the laws derived from one and the same EU directive differ considerably between the member states. Indeed, for that reason Commission bureaucrats have encouraged the use of regulations rather than directives wherever the Treaty allows.²

Several factors can be attributed to the increasing politicisation of implementation problems, including the growth in the acquis, rules by the CJEU, economic and institutional crises, inability to meet deadlines and public opinion. Research indicates that the launch of the internal market project in the late 1980s was a turning point in relation to perceptions of implementation (Jordan, 1999), whereas the change from European Community to European Union following the Treaty on European Union 1992 heralded symbolic significance for better implementation standards because it conveyed pitching ambitions at a higher level (From and Stava, 1993). Such commentary aligns with enforcement theorists who note that deepened cooperation and increases in general adjustment pressure over time result in growing compliance problems. Although the idea of ‘one size fits all’ may be utopian, the variable implementation of EU rules can have a marked impact on the efficacy of agreed policies and a distorting effect on the single market. It increases the transaction costs and imposes problems for citizens and businesses when relating to several sets of rules. Clearly, a dilution of standards through weak or non-implementation provides firms based in non-complying member states with a competitive advantage. At societal level resistance arises around issues such as costs involved or impact on local employment and the ability of non-governmental actors to mobilise opposition to European legislation.

Over time, the European institutions have introduced various approaches to improve implementation and monitoring capacity. For example, the European Commission attempts to build capacity by developing organisational instruments such as data-based systems, rules and procedures, in order to monitor and sanction non-compliance by the domestic administrations. Since 1984 it has reported every year on the legal action it has brought against the member states. Member states are now obliged to routinely report their transposition initiatives and issue press releases on court referrals. Regularly published scoreboards also act as a stimulus to improve performance and efforts have been made to facilitate various groups to report on, and deliver, complaints. On the one hand, these mechanisms can be effective since member states don't wish to weaken their political credibility as ‘good Europeans’ with poor performances. On the other hand, it is challenging to produce reliable data and much of the Commission's information is based on submissions from the member states themselves. The Commission's implementation statistics primarily refer to the problems of formal transposition and statistics don't sufficiently capture the challenging problems of practical application. Learning more about the gap between ‘law in the books’ and ‘law in action’ presents a challenge to EU implementation research (Thoman and Sager, 2017; Treib, 2014; Falkner et al., 2005) and understanding how domestic actors, institutions and processes adapt to compliance obligations.

Until recently large states have been the principal subject of analysis (Börzel, 2000b; Knill, 1998) but small member states are also confronted with implementation challenges (Liefferink et al., 2009; Falkner et al., 2008). The following section contextualises the study by reflecting on Ireland's environmental performance since 2008. It acknowledges the tensions that have arisen over the implementation of EU environmental legislation as Ireland has been subject to both criticism from the European Commission and a series of adverse rulings from the CJEU.

Ireland's environmental performance

Towards the end of the second decade of the twenty-first century Ireland could be considered at a juncture in environmental governance as it attempts to deal with the consequences of the development model robustly applied since the 1980s, climate change mitigation challenges, the aftermath of the great recession and the impending impact of Brexit.

Ireland's environmental performance is intrinsically linked with economic performance and societal changes over time. After decades of economic underperformance Ireland experienced strong growth from the early 1990s and became known as the Celtic Tiger economy. This turnaround in fortunes was initially attributed to a range of factors including adjustment to sensible fiscal policies, foreign direct investment with export-oriented policies, the benefits of EU membership and the broader international economic environment. In the mid-2000s competitiveness faltered and domestic demand with an over-reliance on construction replaced exports as a driver of growth. The close correlation between credit expansion in the economy and house price inflation suggested that property market movements were increasingly driven by banks’ lending practices rather than the state of the real economy. This became all too apparent as the global financial crisis and worldwide recession unfolded and Ireland experienced an unprecedented decline in GDP. From 2008 to 2014 Ireland remained seriously affected by the crisis and a large budget deficit imposed serious constraints on all areas of public administration; putting at risk its commitments as an EU member state to meet environmental obligations.

The crisis itself was described by the National Economic and Social Council (NESC) as five-dimensional – banking, fiscal, economic, social and reputational (NESC, 2009). By autumn 2010 the financing of the Irish banks became critical as investors were increasingly apprehensive about both the Irish banking sector and public finances. The government's efforts to introduce remedial measures and plans to restore confidence had