Evolving Environmental Norms in the European Union

• Published date: 01 February 2003
• DOI: http://doi.org/10.1111/1468-0386.00170
• Date: 01 February 2003

Evolving Environmental Norms in the

European Union

Yoichiro Usui*

Abstract: The EU has demonstrated interesting institutional practices with regard to the

evolution of environmental norms. The paper illuminates a role of law in the institutional

practices in terms of the discursive power of law, drawing on the fact that law catalyses

discourses and individual laws in and of themselves are also discourses. In order to

elucidate this discursive viewpoint, the paper oers a conceptual framework, referring to

the concepts of frame and regime. Building on this conceptual framework, the paper

understands the development of EU environmental law as an example of normative

evolution in a re

Âgime and describes the evolutionary process from pre- to post-Single

European Act.

Introduction

It was the Single European Act (hereinafter SEA) in 1987 that formed the legal base

for EU environmental legislation. At that time, Article 174 EC provided three main

objectives: `to preserve, protect and improve the quality of the environment; to

contribute towards protecting human health; to ensure a prudent and rational

utilisation of natural resources'.

1

At least insofar as the setting of this legal base for

enacting secondary legislation is regarded as the birth of EU environmental law, it

may be said that there was no environmental law before the SEA and it was after the

SEA that environmental protection became one of the ®elds of EU law. However,

secondary legislation clearly orientated to environmental protection had since the

1970s been enacted, along with three Community environmental action programmes

(hereinafter EAPs), and environmental matters had been brought before the European

Court of Justice, despite the economic orientation of the building of the common

market in the early stages of European integration. The environmental acquis was

gradually created through legal practices even before a clear legal base was established

in primary legislation. Nowadays environmental protection is one of the main ®elds of

EU law established in Articles 174, 175, 176 EC, on the basis of Article 6 EC,

which provides the principle of environmental integration for realising sustainable

European Law Journal, Vol. 9, No. 1, February 2003, pp. 69±87.

#Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

* Niigata University of International and Information Studies and Honorary Sta Member, University of

Manchester, email: usui@nuis.ac.jp. The current paper was presented at the Workshop of UACES Study

Group: Constitutionalism & Governance Beyond the State (16 February 2002 in Belfast) and at the

UACES 32nd Annual Conference, Panel 8: Ideas and Norms in EU Policy-Making (2±4 September 2002

in Belfast). The author would like to thank all participants at the Workshop and the Panel. Particular

thanks to Dermot Hodson, Joanne Scott, Jo Shaw, and Antje Wiener for precious comments. All

responsibility for any remaining errors lies with the author.

development. De®nitely, the proliferation of legislation and case law does not by itself

lead to the alleviation of environmental deterioration. However, eective environ-

mental problem-solving cannot take place without shared environmental norms and

the evolution of these norms. This paper insists that EU environmental law is a

noteworthy example of normative evolution. While the institutional setting of the EU

was orientated towards the building of the common market, its day-to-day institu-

tional practices have brought about environmental norms, which inevitably constrain

economic concerns. Therefore, the experience of the EU is an interesting research

theme in exemplifying the endogenous logic of institutional complexes.

This paper illuminates a role of law in this institutional practices. This role is argued

in terms of the discursive power of law. That is, law is seen as catalysing discourses,

but at the same time individual laws in and of themselves are regarded as discourses. In

order to elucidate this viewpoint, the paper refers to the concepts of frame and re

Âgime.

In this conceptualisation, it is emphasised that environmental law, as shared environ-

mental norms, establishes collective cognitions concerning environmental issues and

the development of EU environmental law is described as normative evolution in the

process of which environmental issues are framed. In other words, normative evolu-

tion is assumed to occur through discourses and to come into being as a frame; the

latter is seen to create the context of the former.

2

The institutional setting that enables

discourses and frames to interact is conceptualised as re

Âgimes.The paper de®nes

regimes as procedurally reproducing discourses and substantively establishing a policy

agenda on the basis of which framing is carried out in an issue-area. Figure 1 shows

this conceptual framework.

The structure of the paper is as follows: Section I presents this conceptual frame-

work; Section II examines the basic characteristics of the EU environmental re

Âgime;

Section III traces the evolutionary process of environmental norms on the basis of

what the previous sections argue.

I Conceptual Framework

Discourse

The social world is commonly experienced on the basis of common meanings of the

concepts which constitute the world. It is an accumulation of the endless discursive

practices of countless individuals that creates, modi®es and/or makes more precise a

web of such meanings. As such, discourses are inescapably penetrated with an extant

system of common meanings. However, since this system of meanings is socially

constructed through intersubjective struggles or collaboration between countless

European Law Journal Volume 9

70 #Blackwell Publishing Ltd. 2003

1

The Maastricht Treaty added a clause for the promotion of international cooperation to this article.

2

See P. Strydom, Discourse and Knowledge (Liverpool University Press, 2000), 1±67.

The development of

law

k

Discourse ! Norm Evolution !Framing

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procedure termssubstantive terms

j

R

egime 

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Figure 1. Conceptual framework