Evolving Environmental Norms in the European Union

Published date01 February 2003
Date01 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.
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'.
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
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.
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
Section III traces the evolutionary process of environmental norms on the basis of
what the previous sections argue.
I Conceptual Framework
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
The Maastricht Treaty added a clause for the promotion of international cooperation to this article.
See P. Strydom, Discourse and Knowledge (Liverpool University Press, 2000), 1±67.
The development of
Discourse ! Norm Evolution !Framing
procedure termssubstantive terms
Figure 1. Conceptual framework

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