Keywords

It is almost a truism to say that the state of the environment is one of the greatest challenges facing the European Union and humanity at large in the twenty-first century. Admittedly, there have been some positive developments since environmental issues gained prominence in the public debate in the 1960s and 1970s. The emissions of certain harmful substances have decreased, and the populations of some threatened species have recovered. At the same time, we have realized that humans impact the climate on such a scale that we may soon have altered the conditions for ourselves and other species in profound ways and for the foreseeable future. We are also in the midst of a mass extinction of species, the rate of which is only comparable to the consequences of large meteorite impacts.

The concept of the ‘Anthropocene’ (from Greek antropo, approximately ‘that has to do with humans’) is being established as a term for the current geological age, reminding us that we are living in a time when a single species, i.e. Homo sapiens, is transforming the planet’s fundamental physical processes in unprecedented ways. Change as such is neither new nor avoidable; all natural systems change with time. But the speed at which change is currently happening is dramatic. Some of the processes unfolding today may rapidly transform large ecosystems, other natural systems or the planet as a whole into new states which may be significantly less conducive to human society than the fairly stable conditions that have prevailed for the last 10 millennia.

As biological beings, we are inescapably dependent on the planet’s physical conditions and our societies can be viewed as parts of complex social-ecological systems that both form and are formed by the physical environment in which we live. Although there are still people who experience few consequences of environmental change in their daily lives, there are clear signs that the apparent stability is illusory. Among these signs are dramatically declining numbers of pollinating insects in many regions, increasingly intensive heatwaves and floods, and a gradual shift of the habitats of many species as a consequence of a changing climate.

One might reasonably assume that the European Union—a project comprised of far-reaching political and legal cooperation and involving influential actors in the form of rich and technologically advanced States over a considerable geographical area—would be well placed to contribute to the handling of environmental challenges. Compared to individual States, the EU has obvious advantages in this regard. One advantage has to do with the typically transboundary nature of environmental problems; taking measures within one country alone is usually not sufficient to protect even that country from negative impacts. Politically and legally coordinated measures within the EU can also reduce costs for individual countries, e.g. by reducing the threat of industries relocating to avoid meeting higher environmental requirements. Compared to other forms of international cooperation, the EU is also well equipped in terms of institutions and processes for joint decision-making to agree on and implement common environmental policies.

The EU has a long history of environmental policymaking, reflected not least in the environmental action programmes adopted since 1973. Even before the EU obtained formal competence to legislate on environmental matters in 1987, several legal acts were adopted that can be described as environmental law, in particular ones focusing on hazardous substances. Since the end of the 1980s, there has been a virtual avalanche of environmental legislation. Among the most well-known products of this development is Natura 2000, a network of protected habitats; the so-called water framework directive (2000/60/EC), which has led to far-reaching reforms of how water is managed in several Member States; and the cap and trade system for emission rights, the EU ETS.

Despite these developments, the European Environmental Agency (2019) has concluded that Europe at the beginning of the 2020s is facing greater and more pressing environmental challenges than ever before. In its 2019 communication on ‘The European Green Deal’, the European Commission (‘the Commission’) identifies tackling climate and environmental-related challenges as the current generation’s ‘defining task’ (Commission, 2019; On the ‘Green Deal’, see also the chapter by Bäckstrand). A recurring theme in the green deal is resilience, in particular resilience to climate and environmental risks. Such resilience is seen as a way to prevent climate and environmental challenges from becoming sources of conflict, food insecurity, and forced migration. Environmental resilience is thus a precondition for an ecologically, socially and economically sustainable Europe.

Against this background it is pertinent to ask how EU law has responded to the growing recognition of the profound effects that human society, including the EU, has on natural systems and processes, as well as how dependent we are on such systems. More specifically, this chapter aims to shed some light on the potential of EU legal instruments and processes to achieve and maintain environmental sustainability, and thereby sustainability in a wider sense too, amid such rapid change and major challenges. As instruments of analysis will be used some factors that are often identified as key to sustainable management of complex social-ecological systems:

  • knowledge about the state of the environment and how it is affected by human activities;

  • relevant objectives and targets linked to specific measures;

  • ensuring that measures relate to ecologically and socially relevant scales, including ecosystems;

  • and adaptivity in light of changing circumstances and new knowledge (Engler, 2015; Grumbine, 1994; Long et al., 2015).

Such big questions can obviously be addressed in different ways and seldom have clear-cut answers. Here a legal systems perspective is applied. The aim is not to assess the adequacy or effectiveness of specific rules or pieces of law. What is discussed is rather the extent to which relevant EU legal structures have certain features that are deemed important for sustainable environmental management. Examples are also provided of strengths and weaknesses relating to the ability to manage new circumstances, new knowledge, or new challenges. That said, the actual implementation of environmental policy objectives requires many other features from legal and administrative systems, not least legitimacy and public acceptance, as well as financial and human resources, which are not discussed here. It is also important to note that an analysis of the resilience of the legal system as a whole is not intended (cf. Ruhl et al., 2021).

In the following, a short introduction is given to the EU as a legal entity followed by a discussion of some core features of theories on ecosystem-based management and so-called resilience theory, which provide the basis for the analysis that follows. The development of EU environmental legislation is then briefly outlined, with a focus on the increasing complexity of both the challenges that EU law tries to address and the regulatory instruments employed. Thereafter follows a discussion of the legal instruments used by the EU in light of the theories introduced. This includes looking at examples of how EU law deals with the need for knowledge, objectives, relevant scales, and adaptivity.

Briefly on the EU as a Legal Structure

What makes the EU so unique, compared to most other forms of cooperation between States, is that EU Member States, through the so-called basic treaties, transfer decision-making power to the EU to be exercised jointly through the Union’s institutions. More specifically, the Council of the European Union (‘the Council’) and the European Parliament adopts, based on proposals from the Commission, legal acts within the policy areas where the Member States have transferred decision-making power. Over the years, the EU has been granted competence to legislate in numerous areas. It is also significant that in many areas, including the environment and the functioning of the EU’s internal market, legal acts can normally be adopted by a qualified majority of Member States, meaning that no single State can block new legislation due to a specific national interest.

The EU legislator primarily has two kinds of legal instruments at its disposal: regulations and directives. While regulations are to be directly applied as they are by courts and public authorities in the Member States, directives describe results to be achieved by legal means. The detail as to how that is to be done is for each Member State to decide. The Court of Justice of the European Union (‘the CJEU’) has, however, developed a set of criteria for the correct implementation of directives within the Member States’ legal orders. Among these is that the national law must enable physical and legal persons to be aware of and enforce any rights that they enjoy through a directive (Langlet & Mahmoudi, 2016). Despite these criteria, the requirements of directives can be implemented in national legal orders in a way that is more sensitive to national conditions, whereas regulations establish a more uniform state of law. Also with regulations, however, different legal traditions, administrative systems, etc. bring inevitable variation in how the law is construed and applied.

The EU can be partly seen as a mechanism for producing common legislation, promoting consistent interpretation and ensuring that the law is implemented and made effective in the Member States. The concrete operationalization of legal rules and the control of how private parties comply with them are, however, essentially left to the individual Member States. The same largely applies for the funding of the legal and administrative structures necessary to make the law operational. In practice, there are quite significant differences across and sometimes even within Member States in terms of how common EU law provisions are construed, implemented, and complied with. Nonetheless, compared to other forms of international cooperation, the EU is unique in its intensity of legal harmonization, not least within areas such as agriculture and fisheries, trade and environmental protection.

Social-Ecological Systems

One crucial realization, which has become increasingly influential in recent decades, is that individual ecosystems as well as the planet as a whole are far more complex and unpredictable than previously assumed. Ecosystems are affected by many variables which can interact with or counteract each other. There are numerous processes that connect different parts of the planet, including the oceans and the atmosphere, land and sea, or a river and the surrounding landscape. The systems also tend to have the potential to shift between different semi-stable states, sometimes quickly and dramatically, and sometimes over vast timescales that make the change hard to discern.

Another important recognition is that human societies and the natural environment are intimately interconnected and can seldom be meaningfully separated (Berkes et al., 1998). The ‘natural’ environment is affected by human activities all over the planet. And human societies are inevitably affected by major changes in ecosystems and natural processes. This has led to the recognition that there is not an environment ‘out there’ that humans can degrade or preserve. Rather, environmental and social systems are interlinked in so many ways that managing the environment and natural resources requires us to define what state of the environment we want (Murawski, 2007). Clearly, such a view is open to criticism from the perspective that the environment has an intrinsic value that should be respected. In practical terms, however, it is hard to escape the fact that humans have to define the environmental state through which this intrinsic value is best realized.

The analysis undertaken in this chapter builds on principles from so-called ecosystem-based management (EBM) and resilience theory. Both originate from the natural sciences, primarily biology, but have developed to comprise principles for how human society can relate to a complex, sensitive, and changing environment that we are both part of and dependent on. EBM can take many forms but has been described as ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way’ (CBD, 2000). Resilience theory is essentially concerned with an ecological or social-ecological system’s capacity to deal with disturbance without switching to a fundamentally different state (Carpenter et al., 2001), such as a forest landscape that turns into savannah due to logging, grazing, reduced precipitation, soil erosion, or similar factors.

Both EBM and resilience theory tend to stress that human interaction with the environment is a continuous process and that there are seldom obvious or simple solutions to complex governance challenges. It is rather a matter of balancing interests and testing out different ways to protect, manage and use the environment, although without transgressing boundaries that would shift the social-ecological system into new and significantly less beneficial states. As will be shown, many of these ideas are reflected in EU environmental policy, particularly over the last two decades. It is important to note, though, that the aim here is not to assess relevant EU law against the full concepts of EBM or resilience theory but only in relation to the specific factors discussed above.

The Development of Common Environmental Legislation

As mentioned above, a first environmental action programme was adopted by (what is now) the EU in 1979. It set out basic principles for a common environmental policy. These principles included: that the environmental impacts of planned projects must be assessed; that the costs of preventing and repairing environmental damage shall be included in consumer prices; and that environmental information should be publicly available. Today, some 50 years later, these principles are well-established in the form of environmental impact assessment requirements, the polluter pays principle, and the rights to access environmental information (Langlet & Mahmoudi, 2016). Beyond the principles, the programme’s main focus was on reducing emissions of known pollutants.

New action programmes were adopted regularly. The third programme, from 1983, raised the need to integrate environmental considerations into other policy areas, something that from 1987 was required by the revised Treaty of Rome. The fourth programme, from 1987, adopted a more trans-sectoral approach highlighting the need to ensure that pollution is not merely transferred from one environmental sector (e.g. air) to another (e.g. water) in response to regulatory measures. Through the fifth programme from 1993, entitled ‘Towards Sustainability’, environmental sustainability in a broader sense came to the fore of the EU’s environmental policy. To the previous focus on particular activities and substances were added calls for more sustainable consumption and production, decreased waste generation and more efficient use of natural resources. The programme emphasized the need for behavioural change across society and introduced market-based instruments and financial support schemes as important additions to traditional regulatory approaches. The sixth action programme, covering the years 2002 to 2012, aimed to decouple economic growth from resource use and waste generation so that the economy should be able to grow without increasing use of natural resources and energy from unsustainable sources. Both the fifth and sixth programmes had better implementation and monitoring of environmental policy measures as core themes.

The action programme covering 2013–2020 is called ‘Living well, within the limits of our planet’ thereby emphasizing the need for sustainability in a broad sense. All of society must adapt for us not to cause changes to the climate and other natural processes that undermine the preconditions for society itself. That the EU must keep its use of natural resources within sustainable planetary boundaries is also a basis for the Circular Economy Action Plan adopted in 2020 (Commission, 2020a) as a core element of the European Green Deal. The eighth programme, which was still being negotiated in the fall of 2021, should be an instrument for implementing the environmental objectives of the European Green Deal and accelerate the EU’s transition into a climate-neutral circular economy.

The action programmes have tended to be fairly responsive to new scientific knowledge and progressive environmental ideas. However, developing legislation and other measures matching the insights and objectives formulated in the programmes has often been a slower process. Although the need to tackle trans-sectoral environmental problems and prevent emissions from being transferred from one environmental sector to another was acknowledged in the mid-80s, it was only in 1996 that a directive (96/61/EC) on integrated pollution prevention and control was adopted and only in 2000 was there a coordinated legal approach to protecting inland and coastal waters (directive 2000/60/EC). It took eight more years for a correspondingly integrated approach for the protection of marine waters to be adopted (directive 2008/56/EC).

Unsurprisingly, it is often easier to put in place relatively simpler forms of regulation, such as restricting the use of substances with known risks, compared to tackling more complex challenges that require reform of existing management structures. Yet, it is not true to say that there would have been a linear regulatory development, with ‘simple’ end of pipe measures being replaced by more sophisticated, integrated and trans-sectoral measures. The need to formulate environmental quality targets and not just focus on specific emission sources was recognized already in the first action programmes and also clearly influenced the air quality legislation adopted in the 1980s, even though it took longer for such an approach to be applied more widely. The advent of integrated regulatory measures and quality standards has also not meant that technical requirements and emission limits for specific activities are no longer important regulatory instruments (Lee, 2014). However, it is clear that the overall regulatory approach has moved from focusing on specific substances towards trying to address more complex phenomena and using a broader set of policy instruments.

Knowledge as a Precondition

Knowledge about the state of the environment, the functioning of important natural processes and how these are affected by human activities is decisive for the ability to make relevant decisions contributing to long-term sustainability. EU law has several mechanisms for generating knowledge and making it available to public agencies and the general public. For instance, the obligation to carry out an environmental impact assessment (EIA) before the commencement of larger projects, set out in the EIA directive (now 2011/92/EU), is an important source of knowledge of the expected effects of planned activities. Projects likely to have significant effects on the environment must be subject to a requirement for development consent and an EIA must be performed before such consent is granted. The EIA must cover direct and indirect effects on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets, and cultural heritage, as well as the interaction between these factors. Since 2001, there is also a directive (2001/42/EC) requiring an environmental assessment to be carried out before the adoption of many plans and programmes with expected impacts on the environment.

Something that is indispensable for integrated management of ecosystems and natural processes that EIAs do not generate is a comprehensive view of the state of the environment over larger geographical areas or longer time periods. To achieve that, systematic environmental monitoring is needed. The extent to which such monitoring is prescribed or specified in EU law varies between policy areas.

An area with a strong focus on generating and reporting environmental data is water management. The EU’s water framework directive (2000/60/EC), WFD, requires Member States to establish monitoring programmes that enable a coherent and comprehensive overview of water status within each river basin district. For surface waters, the programmes must cover the ecological and chemical status and ecological potential of the waters. Monitoring and analysis are to be carried out in accordance with standardized technical criteria (directive 2009/90/EC). In a similar fashion, the Marine Strategy Framework Directive (2008/56/EC), MSFD, requires Member States to have monitoring programmes for ongoing assessment of the status of their marine waters. Consistency of methods and standards must also be pursued here to facilitate comparability of monitoring results. In practice, however, it is a challenge to achieve uniformity for sea areas that are shared by several States, all of which implement the directive in slightly different ways. Although there is always room for improvement, the WFD and the MSFD are advanced in terms of their structures for monitoring and integration of new knowledge (Soininen & Platjouw, 2018). The rules on this have also been developed and tightened since the directives were adopted.

As for species and habitats, it has been required by the habitats directive (92/43/EEC) since the early 1990s that Member States undertake surveillance of the conservation status of the natural habitats and species covered. This surveillance generates important data, but the level of standardization is low, and the monitoring programmes diverge between Member States. While some have established specific programmes for the directive, others rely on data from various pre-existing programmes. The Commission has identified the lack of a comprehensive governance framework to steer the implementation of biodiversity commitments as a significant problem and plans to develop such a framework, comprising monitoring and review mechanisms with a clear set of agreed indicators (Commission, 2020b).

EU chemicals law and particularly the so-called Reach regulation (EC 1907/2006) has the generation of new knowledge as a core element. When adopted in 2006, after years of heated debate, the main purpose of Reach was to overcome the major lack of knowledge about environmental and health effects of thousands of chemical substances, especially those put on the market before the 1980s. Whether the demands placed on the chemicals industry and the pace of their implementation have been sufficient are open to debate, but from an international perspective the EU can be seen as a model for how to deal with these problems (Biedenkopf, 2015). By making the continued presence of chemical substances on the EU market contingent on manufacturers and importers gathering knowledge, carrying out tests and publicizing the results, Reach has prompted both the extensive compilation of existing knowledge and the generation of new data. A remaining challenge is the limited knowledge about the effects of being exposed to multiple chemicals. While the safety of chemicals is usually assessed through the evaluation of single substances, in reality many different chemicals tend to be present at the same time, for example in water bodies or in human bodies. There is mounting evidence of significant combination effects meaning that exposure to several substances can have negative effects even when the individual substances occur in quantities that are deemed safe. Generating knowledge about such combination effects presents large practical and methodological challenges but is seen by the Commission as something that must be better integrated into EU chemicals legislation (Commission, 2020c).

Once environmental data has been generated, EU law has rules on how it should be technically ‘packaged’ and on how the public should be given access. Technical requirements are found in the so-called INSPIRE directive (2007/2/EC) on infrastructure for spatial information. It aims to ensure that various forms of spatial data, including environmental data, become easier to find and use. This should be achieved, for example, through increased standardization and generation of meta data, i.e. information that describes large data sets, and data services to facilitate the use and combination of data from different sources. The general public also has a right to access environmental information that is held by or for public authorities. According to the directive on public access to environmental information (2003/4/EC), such information should be made available to the public on request. Environmental information is defined broadly. Although access can be refused on various grounds, several such grounds, including confidentiality of commercial or industrial information, do not apply if the request relates to information on emissions into the environment.

Ultimately, access to relevant and qualitative environmental data is largely dependent on the knowledge and resources available ‘in the field’ in each Member State and geographical area. A suitable number of measuring points and sufficiently long time series are often the only things that can provide a good knowledge basis for environmental regulation and management. At the same time, it is important to recognize that knowledge about complex ecosystems and social-ecological systems will never be complete and that it is necessary to be pragmatic and make best use of the knowledge available at any given time. Environmental management must have the capacity to integrate new knowledge and translate new data into new or revised measures. Successful management also requires an inclusive approach to what data and what knowledge are relevant. A strict focus on natural science and quantitative data will seldom lead to measures that are sustainable in the long term. Economic and social dimensions as well as people’s expectations and beliefs must be considered (Link et al., 2017). Different kinds of data, such as measurement data from the environment, data on human activities that affect the environment and human preferences, must be able to be integrated and considered together.

Targets Linked to Measures

Objectives and targets can be seen as providing direction and as helping to navigate and prioritize between alternative courses of action. When realistic and sufficiently specific, they can also be used to assess whether what was intended has been achieved. They can differ in nature and have various, more specific functions. Here, it suffices to distinguish between more general, broad or visionary objectives and more specific and concrete targets. Within the EU, the first category tends to have the primary function of raising an issue or problem and stressing its significance compared to other issues and competing priorities. Such objectives also justify or motivate the elaboration of more specific, measurable targets in relation to which legislative or other measures can be developed and evaluated.

According to what is now Article 192 of the Treaty on the Functioning of the European Union (TFEU), EU policy on the environment, and hence its environmental legislation, should contribute to conserving, protecting and improving the quality of the environment, contributing towards protecting human health, to prudent and rational utilization of natural resources and to promoting international measures to deal with regional or worldwide environmental problems. Environmental policy measures shall aim at a high level of protection and be based on certain principles, including the precautionary principle, and the principles that preventive action should be taken and that the polluter should pay. Unsurprisingly, the CJEU has found the relevant article to be ‘confined to defining the general environmental objectives’ of the EU, while leaving the Council and the European Parliament to decide what action is to be taken in pursuit of these objectives (Court of Justice of the European Union, 2010, para. 45).

Since 1987 the Commission is required to take as a base for its legislative proposals relating to the establishment and functioning of the internal market a high level of protection of the environment when relevant (now TFEU, Art. 114). Various kinds of products standards, such as allowable emissions from vehicles, are normally adopted on the legal basis for the internal market. There is, however, no guarantee that the proposals tabled by the Commission will not be revised in the legislative process in a way that lowers the level of environmental protection. A high level of protection and improvement of the quality of the environment is also part of the sustainable development of Europe that the EU is to work for (Treaty on European Union, Art. 3). It is, however, hard to see that this very general statement would have much steering effect.

Somewhat more specific objectives can be found in the seventh environmental action programme, ‘Living well, within the limits of our planet’. This programme lays down a number of priority objectives, including to protect, conserve and enhance the Union’s natural capital; to safeguard its citizens from environment-related pressures and risks to health and well-being, and to secure investment for environment and climate policy. Interestingly, it is also the first programme to contain a long-term vision:

In 2050, we live well, within the planet’s ecological limits. Our prosperity and healthy environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably, and biodiversity is protected, valued and restored in ways that enhance our society’s resilience. Our low-carbon growth has long been decoupled from resource use, setting the pace for a safe and sustainable global society. (Decision No. 1386/2013/EU, Annex, para. 1)

Although still rather abstract, this vision clearly links and gives weight to important ideas and principles elaborated in discourses on social-ecological sustainability. Particularly significant is the use of the concept of planetary boundaries or limits, developed by Rockström and others (2009), as a way to illustrate how society has to adjust in order to keep within safe ecological and hence social boundaries.

Obviously, long-term visions like this must be linked to specific targets and concrete measures for various sub-objectives. Climate policy is one area where the EU has long had relatively clear targets. Since just before the turn of the millennium there has been both the general objective to reduce overall emissions of greenhouse gases from the EU, and specific commitments for each Member State. In 2019 the Council and the European Parliament agreed on a target of net climate neutrality by 2050 at the latest. In 2021 this was signed into law as part of the ‘European Climate Law’ which requires the EU to reduce emissions to net zero by 2050 and aim to achieve negative emissions thereafter (Regulation (EU) 2021/1119). Starting in 2023, and every five years thereafter, the Commission is to assess the collective progress made by all Member States towards achieving climate neutrality. The law also strengthened previously adopted targets for 2030 to require at least a 55 percent reduction of greenhouse gas emissions by 2030 compared to 1990, including emissions and removals. Detailed emission reduction targets have been set for specific sectors. The so-called trading sector, i.e. around 10,000 installations in the power sector and manufacturing industry, as well as airlines operating between the members of the European Economic Area, that are covered by the EU ETS are to decrease their total emissions of greenhouse gases by 43 percent by 2030 compared to 2005 levels. However, the Commission has subsequently proposed to increase this target to 61 percent in light of the agreed economy-wide target of 55 percent reduction (Commission, 2021). There are also targets for renewable energy. How the targets are to be achieved differs between policy areas. The general emissions targets for each Member State, which correspond to the total emissions from all sectors, are to be achieved partly through joint EU measures like the EU ETS, and partly through measures adopted by each State individually but within common legislative or policy frameworks.

Waste is an area with many numerical targets, often even more detailed than in the case of climate policy. Among other things, there are specific targets for recovery and recycling of different kinds of packaging waste, batteries, and electrical and electronic equipment (Langlet & Mahmoudi, 2016). Several waste-related targets are also being reviewed as part of the European Green Deal. Increased resource efficiency and generally decreasing use of natural resources across the economy are issues that have been discussed for some time but it has been hard to agree on specific targets. The 2020 Action Plan for the Circular Economy is also rather short on concrete targets specifying what should characterize a ‘regenerative growth model that gives back to the planet more than it takes’ (Commission, 2020a, sec. 1). The plan is, however, clear about the need for such a transition if the EU is to keep its resource use within planetary boundaries.

As regards biodiversity, many targets have been adopted in recent decades, but regrettably, few have been met. The EU has had targets for the reduction of biodiversity loss, both for the year 2010 and then for 2020. That the targets have been linked for three decades to comprehensive legal frameworks in the form of the birds and habitats directives, and more recently other EU legislation too, has not sufficed to reverse the negative trend for many species and habitats in the Union. The new EU Biodiversity Strategy for 2030, adopted in 2020, sets out as ‘key commitments’ that at least 30 percent of the EU’s land area and an equal share of its sea area are to be legally protected with integrated ecological corridors. At least a third of the protected areas, including all remaining EU primary and old-growth forests, are to be strictly protected (Commission, 2020b). The strategy also contains some specific targets, including the planting of at least 3 billion additional trees by 2030 and to bring back, by the same year, 10 percent of the agricultural area under so-called high-diversity landscape features, including, inter alia, buffer strips, hedges, non-productive trees, and ponds. The Commission will also put forward a proposal for legally binding EU nature restoration targets to restore degraded ecosystems.

Two closely related areas with ambitious but more complex targets are freshwater and marine environmental protection. The WFD has as its overarching objectives to protect and enhance the status of aquatic ecosystems and to promote sustainable water use. A more specific target is that ‘good surface water status’ is to be achieved or preserved in all bodies of surface water, with some exceptions (Art. 4). A similar target applies to groundwater. A body of surface water is deemed to have good status if both its ecological and chemical status are found to be at least ‘good’. What constitutes good ecological status is determined with the use of type-specific reference conditions representing the values of specific quality elements at high ecological status. Good status requires that the biological quality elements for the surface water body type deviate only slightly from those normally associated with the surface water body type under undisturbed conditions (Annex V). The chemical status is subject to a less complicated definition and is considered good if concentrations of pollutants do not exceed environmental quality standards (‘EQS’) established in relevant legislation.

The MSFD has a similar system for assessing the state of the environment and establishing environmental targets, in this case with the overall objective of achieving ‘good environmental status’ in marine waters (Art. 1). The directive has a broad definition of good environmental status entailing, inter alia, that marine waters ‘provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions’, and that the use of the marine environment is ‘at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations’ (Art. 3). This objective is to be specified for different marine areas. Using 11 qualitative descriptors, the Member States concerned must establish a number of conditions that characterize good environmental status for each marine region. Given the size of these regions, however, this occurs at a high level of aggregation.

There is generally no shortage of environmental objectives and targets in the EU, and many of them are also reasonably clear and linked to different kinds of indicators and timed. In some cases, the complexity of the objectives makes it challenging to achieve comparability across regions and the Member States or clearly determine if they have been met. Some objectives and targets have been criticized as being unrealistic, not least the WFD’s requirement to achieve good surface water status by 2015, or 2027 at the very latest, despite the enormous scale of the measures this would require and the time lags that are often involved when dealing with natural systems (Voulvoulis et al., 2017). The main reasons for failure to fulfil many targets are probably more linked to insufficient legal mechanisms or lack of resources than to the targets themselves. Such deficiencies often reflect limited political support for environmental objectives. But even Member States with high environmental ambitions fail to meet targets, inter alia because other parts of the legal system counteract an effective implementation of environmental policy measures. In the field of biodiversity, a consistent system for monitoring and assessment has long been lacking, but that will hopefully change in accordance with the Commission’s plans. When it comes to resource efficiency and prudent use of natural resources, however, the EU seems to have some way to go before it can agree on clear targets.

Relevant Scales

Scale is a broad concept, potentially encompassing many different things. Here it is used to capture the challenge of responding adequately to environmental issues whose causes and effects can be specific to certain places or regions but which may also concern countries, continents or even the whole planet.

A political and legal entity comprising 27 countries and stretching from the polar regions to the Mediterranean will inevitably find it challenging to devise rules and mechanisms that consider relevant local conditions. Even though there are examples of EU legislation that only applies to specific areas or has different obligations for different parts of the Union, these are exceptions. There are, however, both general legal mechanisms that create room for local variation, and specific legal acts and governance models based on targets and measures being tailored to local conditions. Among the more general mechanisms is the principle of subsidiarity, i.e. that a measure should be taken at the EU level only if its objectives can be better achieved at that level than by the Member States individually (TEU Art. 5.3). In the field of environmental policy, subsidiarity generally has little restraining effect on EU action since the benefits of such action are mostly easily demonstrable. Such benefits either follow from the transboundary causes or effects of environmental problems or from the need to coordinate measures to prevent negative impacts on free movement and competition within the Union. Subsidiarity does, however, serve as a reminder that EU measures must not limit the room for national or local solutions any more than is necessary to achieve the purpose of those measures. In this regard, the use of directives as legislative instruments is important. They enable Member States to achieve common objectives in ways that are considerate of the nature of national legal and administrative structures. This is particularly true for the so-called framework directives that have been used e.g. for water management.

An important dimension of scale is how EU law can integrate the management of ecologically and socially linked areas. When the WFD was adopted, it was criticized for drawing an artificial line one nautical mile seaward of the coast—or from the so-called baseline, where that had been drawn further out, e.g. around an archipelago—and not sufficiently considering the sea beyond that line. Through the subsequent adoption of the MSFD, this problem was addressed even though it also gave rise to some coordination issues. Overall, the WFD is characterized by the intention to tailor water management to ecological units and scales, like water bodies and river basins, rather than using pre-existing governance structures. In practice, however, even such ‘natural’ units are defined through an interplay between science and policy (Langlet, 2018).

The directive on maritime spatial planning (2014/89/EU) is, however, a clear example of how political considerations and resistance towards common rules can trump the interest of social-ecologically sound management. An original proposal for a directive on ocean and coastal planning was turned into legislation that excludes coastal waters—i.e. out to one nautical mile from the baseline—from its remit when those waters fall under a Member State’s town and country planning. This may seem rational, but it comes at great risk of cementing separate and poorly integrated management structures for land and coast on the one hand, and the rest of the sea on the other, despite these being strongly interconnected both ecologically and economically (Langlet & Westholm, 2021).

The legal protection of Natura 2000 sites applies to activities outside such sites when an activity can have a significant impact on a site. With time, however, it has become evident that focusing on the protection of designated sites is insufficient. The whole landscape must be compatible with the needs of many species. Not least in a time of climate change, it is crucial that both animals and plants are able to move their habitats as previously suitable areas become inhospitable to them. This requires ecological ‘corridors’, something that can be hard to reconcile with the intense urbanization of large areas or infrastructure carving up the landscape (Wessely et al., 2017). As mentioned above, the Commission has proposed measures aimed at addressing this challenge, at least in part.

At a more principal level, there can be conflicts between effectively protecting specific areas and the ability to protect the environment more broadly. In the so-called Weser case (Court of Justice of the European Union, 2015), the CJEU found that the WFD requirements of non-deterioration and of achieving a good surface water status apply in individual permit assessments. This strengthens the effect of these requirements compared to the programmes of measures that are otherwise the main instrument of the WFD. Yet, at the same time, it makes it harder to weigh up different environmental objectives or allow a certain local deterioration caused by an activity that leads to overall decreased environmental pressure. Examples could include a new water treatment plant or a new industry with better environmental performance than existing industries.

An obvious scale issue is how the EU can address environmental problems in situations where the Union does not have control over (all of) the activities causing the problem. Climate change is the obvious example, but the management of biodiversity is also pertinent. Simply put, the EU has acted in two main ways to try to influence developments beyond its territorial or legal control. One way is to actively participate in the development of international environmental policy, not least international agreements. The EU is party to most relevant international agreements concerning the protection of the environment and management of natural resources and is often seen as a progressive force for stricter commitments and better implementation (Delreux, 2018). Another approach is the EU’s attempts to extend the reach of its own legislation to activities undertaken outside the Union and by non-EU citizens. This has often met with considerable opposition, not least in the field of climate policy (Dobson, 2021). A potentially effective mechanism is to make access to the EU’s large market contingent on compliance with EU environmental standards. It can be a matter of assessing the risks of chemical substances in order to export them to the EU, as required by the Reach regulation, or of sustainability criteria for biofuels that also apply if the fuels were produced outside the EU (Langlet & Mahmoudi, 2016). Another, and controversial, example is regulation 1026/2012 on measures relating to non-sustainable fishing, which allows for import restrictions and the closing of EU harbours to ships from countries considered to allow non-sustainable fishing, also when the fishing occurs in international waters or in such countries’ own waters. The measure in this category that has attracted the most attention is probably the EU’s so far failed attempt to include flights to and from the EU in the EU ETS. When the EU decided that such flights would require emission allowances under the EU ETS, it sparked such strong protests, not least from the US and China, that this measure was effectively mothballed. This category also includes the much-debated proposal to set up a ‘carbon border adjustment mechanism’ to impose a carbon price on imported goods that have not been subject to such pricing in the country of production and which thus may have a competitive advantage over goods produced in the EU. Such a proposal is now part of the European Green Deal (Commission, 2019).

Ultimately, it is clear that the EU has limited ability to deal with issues like climate change through unilateral measures. However, one should not underestimate the impacts of a big market or the potential of driving technological development or demonstrating that a transition to more sustainable solutions is economically and socially possible or even preferable. At least in the field of climate policy, the EU outperforms most other regions in this regard, although much remains to be done.

Adaptivity: A Necessity in a Changing World

Adaptivity here means the ability to adjust legislative and other measures in the light of new circumstances or new knowledge. An important feature of EU law in this regard is that legal acts are usually subject to a review or ‘fitness check’ some years after their adoption. For example, the WFD instructs the Commission to review it no more than 19 years after its entry into force and propose any necessary amendments. Such a review, which also comprised some related legal acts, was concluded in 2019. While not resulting in any formal amendments to the directive, it identified deficiencies in the coordination with other legal acts. A similar review of the birds and habitats directives was concluded in 2016. In that case, the review was not required by the directives themselves but was part of the Commission’s so-called ‘better regulation agenda’. Such reviews involve analysis of the legal acts’ effectiveness, relevance and coherence with other relevant legislation.

Improved and strengthened legislation can sometimes result from a dramatic event that highlights deficiencies in the existing law. The so-called Seveso directive (now 2012/18/EU), which aims to prevent major accidents involving dangerous substances, was drafted as a reaction to a serious accident in the Italian city of Seveso in 1976 and has since been strengthened after similar accidents on a number of occasions.

Even when legislation is subject to review, in practice there is a certain inertia in the system since it can be politically challenging to significantly revise existing rules. When an EU legal act is opened for revision, it is also hard for the Commission as well as for individual Member States to foresee the outcome. There is a risk that political priorities may deliver a result that is worse for the environment, at least in certain respects.

In terms of adaptivity of existing legislation, water management is probably the area in which this is most developed. Water management under the WFD is built on recurring, six-yearly cycles of environmental assessment, adoption of quality standards and establishment of programmes of measures. When monitoring data indicate that environmental objectives for a body of water are unlikely to be met, the Member State must investigate the causes, examine relevant permits, and take additional measures as necessary. The MSFD applies a similar management model although with less clearly stated requirements (Soininen & Platjouw, 2018).

Even when the legislation is designed to enable flexible and knowledge-based management that respects ecological conditions, the actual decision-making may be strongly influenced by other considerations. Under the common fisheries policy (‘CFP’), the Council each year establishes the total allowable catch (‘TAC’) for commercially fished stocks. When making these decisions, it has access to advice from the International Council for the Exploration of the Sea (ICES) as well as the EU’s own Scientific, Technical and Economic Committee for Fisheries. Despite the law (regulation 1380/2013) making clear that fishing activities shall be environmentally sustainable in the long term and that populations of harvested species shall be restored and maintained above levels that can produce the maximum sustainable yield, the Council has a history of setting many TACs well above the recommended levels (Borges, 2018). This is usually due to a desire to protect the employment and profitability of the fishing sector. It is, however, a short-sighted strategy since it tends to lead to stocks yielding much less fish in the long run than would have been possible, or even to stock collapse. Hence, room for adaptivity can be used for other purposes than making decisions based on the best available knowledge.

For such a complicated system as EU law to be effective, adaptivity must be combined with coordination and feedback across relevant legal acts and mechanisms. Otherwise, inefficiencies will occur and legislative acts may even counteract each other. There are a number of such feedback mechanisms, e.g. between the WFD and the industrial emissions directive (2010/75/EU). As an example, the latter holds that if an EQS cannot be achieved by using the best available technology, additional measures shall be included in the permit. This links permitting individual installations to acts establishing EQSs. There are, however, also clear deficiencies in the linking of legal acts. As an example, chemicals legislation contains few links to other relevant laws despite clear functional connections. One such link, however, is that the regulation on plant protection products (EC 1107/2009) requires Member States to review authorizations when relevant EQSs of the WFD may not be achieved.

Coordination between the CFP and nature conservation legislation has a history of being challenging. For example, even if a Member State finds that it must restrict fishing within or in the vicinity of a marine Natura 2000 site in order to comply with obligations under EU law, it is not competent to take such measures. Any measure that can affect other Member States’ fishing fleets must be taken at EU level (regulation 1380/2013, Art. 11). This can result in important protective measures being delayed or blocked.

Another form of adaptivity becomes important in relation to the use of market mechanisms for environmental purposes, with the EU ETS as the prime example. The idea here is to combine the flexibility of a price, which is essentially a function of supply and demand, with stability in the form of legally determined yearly reductions in the number of emission allowances added to the market. The price signal should ensure that emission reductions happen where they are least costly. For several reasons—not least excessive initial allocation of emission rights and a drop in economic activity following the 2008 financial crisis—the EU ETS has long put a much lower price on emissions than what was foreseen when the system was designed and one that is lower than needed to influence many industries’ investment decisions. To a certain extent, the EU legislator has been forced to allow flexibility, in the form of amendments to the system, to take priority over the legal stability that should characterize a market-based instrument. Despite certain resistance, the EU ETS has been amended repeatedly to protect the system’s functionality. Emission rights have been removed from the market and will only return if demand, and hence price, exceeds a certain level (Verbruggen et al., 2019).

In conclusion, there is a range of mechanisms in EU law that facilitate adaptivity. The effect of those mechanisms, however, is often dependent on political will to give priority to ecological sustainability. The number of relevant linkages between different pieces of EU law has grown over time, but there are still challenges in getting legal acts relating to the same issue to work together.

From Legal Preconditions to Actual Sustainability

EU environmental law has developed and expanded enormously since the 1970s. Today, the EU subscribes to the idea of ecological boundaries to which society must adjust. Not necessarily because such boundaries are ‘natural’ but because exceeding them entails serious risk of undermining the preconditions for a prosperous and sustainable society. There are many mechanisms in place to generate knowledge and to translate objectives, of varying specificity and clarity, into action. However, in terms of both knowledge and actual measures, the EU is highly dependent on the financial, human and institutional resources available at the national and local level in the Member States.

In some areas, such as consumption and resource use, there is a clear need for more specific targets and concrete measures. In the case of biodiversity, both targets and monitoring have tended to be too general or blunt, but this could improve if the Commission’s plans are realized. It is also important that room for adaptivity is not used in a way that counteracts effective environmental protection by habitually prioritizing other objectives.

A recurring theme and legal requirement in EU environmental policy is that environmental considerations must be integrated into other policy areas. Much remains to be done, however, in terms of ensuring coherence and relevant linkages between different pieces of law. It is particularly important that environmental considerations are effectively integrated into agriculture and fisheries policy. It is, for example, unrealistic to protect biodiversity merely by protecting specific species or habitats. Also, ‘ordinary’ forests and agricultural areas, as well as green areas in cities, must be able to function as habitats for many species, not least now with the natural range of many species shifting. Policy integration must also go far beyond the areas that have traditionally been seen as relevant for environmental protection and comprise inter alia taxes, spatial planning, and the rules on competition and financial markets. Fully integrating social dimensions into environmental law also remains a challenge (Langlet & Westholm, 2021) but is inevitable if the idea of governing social-ecological systems is to be realized. As the Commission points out in its Green Deal, society must change profoundly if it is to be resilient in the face of the great challenges of the twenty-first century (Commission, 2019).

The weakest point in the EU’s attempts to protect and sustainably manage the environment lies probably not in the rules as such but rather in their implementation. To some extent, complicated rules which allow for many interpretations, or which are not well adapted to local conditions, can contribute to the problem, but a lack of political support, ignorance, and insufficient resources are more significant. Sometimes, demands for stability and rules on the protection of investments and ownership can counteract necessary adjustments. At the same time, excessive flexibility must not be allowed to harm trust in the regulatory system by making it seem unpredictable and impossible to adjust to in a rational manner.

The need for better compliance has been raised by the Commission many times. One would hope that growing recognition of society’s vulnerability will prompt better implementation of environmental law. To that end, it is vital to identify and build on positive synergies, such as the fact that nature management that protects biodiversity often also results in higher sequestration of carbon dioxide, thus counteracting climate change. Or that more ecosystem-based management can generate jobs for people without extensive education, thus linking ecological and social sustainability.