Tackling environmental challenges in Europe: what role for EU agencies?
The European Environmental Agency (EEA) has recently published its latest ‘State of the Environment’ report (SOER 2020). Published every 5 years as part of the tasks of EEA’s mandate, the report contains a comprehensive assessment on the state of, trends in, and prospects for the protection of the environment in the EU.
The SOER 2020 came at a crucial time, shortly ahead of the presentation of the European Green Deal Communication put forward by European Commission President Ursula von der Leyen. The picture that the SOER 2020 draws is particularly worrisome: faced with environmental challenges of unprecedented scale and urgency, the EU is failing to achieve the sustainability goals established for 2030. This requires an urgent rethink of the current approach to environmental issues. The SOER 2020 is, therefore, a clear call for EU institutions and Member States to scale up and speed up the transformation of economies and societies towards a more sustainable path.
At the same time, from an institutional perspective, the publication of this report by the EEA represents the perfect opportunity to highlight the role and impact that this agency has (and will have) in relation to the environmental and climate change challenges. The role of EU agencies in EU environmental law and policy has, in fact, remained largely unexplored. Whilst the prominent role of EEA is evident in this context, this is not the only agency that deals with these issues. In line with Article 11 TFEU, which requires environmental protection to be integrated into the definition and implementation of the Union's policies and activities, other agencies may also be called to perform actions which, directly or indirectly, contribute to the objective of environmental protection. Indeed, EU agencies not only often integrate environmental protection aspects in their different EU policies, but they are also entrusted with varied and important tasks which contribute to shaping and managing the EU environmental policy.
First of all, an essential role played by EU agencies in this field is the provision of information to EU institutions and Member States. This is precisely the reason why the EEA was set up by Regulation 1210/1990. In particular, the EEA not only publishes a report on the state of the environment every five years, but it also elaborates more targeted reports on specific issues. Moreover, it plays a role in the implementation and enforcement phases, assisting the Commission in the monitoring and assessment of the application of EU benchmarks. It is also entrusted with the setting up and coordinating the European Environmental Information and Observation Network (Eionet), which brings together the main elements of the national information networks on the environment. This allows the Agency to influence, at least to some extent, the development of EU environmental policy in the phase of elaboration of environmental legislation, providing the scientific ground and the factual justification for the adoption EU measures. However, the precise role of EEA in the whole regulatory process is not clearly defined by legislation and its actual influence is unclear, if not very limited (Lee, 2014).
A number of other agencies are also asked to provide information on the state of the environment in relation to the specific sectors in which they exercise their activities. This is the case in particular of the European Union Aviation Safety Agency (EASA) and its European Aviation Environmental Report, published every three years, which shall give ‘an objective account of the state of environmental protection relating to civil aviation in the Union’ and which can also contain recommendations aiming to improve the level of environmental protection in this area. However, the role of EASA is not limited to the provision of information as this agency is also empowered to adopt binding measures which have legal effects on third parties. Under the EU Aviation Strategy, this Agency is entrusted with tasks related to the certification, oversight and enforcement of the ‘airworthiness and environmental certification’ system, attesting the compliance with noise and emissions standards for the design of aircrafts and related products. As a result, EASA issues ‘environmental certificates’ to individual applicants.
In relation to the marine environment, the European Maritime Safety Agency (EMSA) provides technical and scientific assistance to the Commission and Member States in the field of prevention of and response to maritime pollution, while the European Fisheries Control Agency (EFCA) has an important role in coordinating the control and inspection activities in relation to the common fisheries policy - a policy strongly characterised by measures concerning the environmental sustainability of natural marine resources. Therefore, within their specific mandates, both contribute to providing for a sustainable exploitation of living aquatic resources in the context of the environmentally sustainable development of the maritime domain.
Finally, EU agencies play a fundamental role in the identification and evaluation of the environmental effects caused by different activities or products marketed in the EU. In particular, the European Chemicals Agency (ECHA) is called to assess the impact on the environment of substances under the CLP Regulation and the REACH Regulation. Its evaluation of the risks posed by these products concerns not only physical or health hazards, but also environmental hazards. Also the European Food Safety Authority (EFSA), which carries out risk assessments on the safety of substances and products in the food chain, is increasingly engaged with this dimension. While the General Food Law regulation requires it only to ‘take into account’ the environment in its mission, sectoral legislative acts request EFSA to include not only the effects on human and animal health, but also more broadly the effects on the environment in its assessments of GM food and feed, plant protection products and feed additives. In this case, they are referred to as ‘environmental risk assessments’ (ERAs). Furthermore, ERAs are also carried out by the European Medicines Agency (EMA) for the authorisation of medicinal products for veterinary use and for human use. Although the ERAs in these different sectors have common objectives and principles, the methods and the specific environmental protection goals do not appear fully harmonised among the fields (Summary Report of Joint VKM and EFSA Symposium, 2018).
In the light of the relevant tasks and different agencies involved in the EU environmental law and policy, it appears quite surprising how the recent European Green Deal Communication does not fully recognise the role of EU agencies in the proposed actions to tackle climate and environmental-related challenges. Indeed, in describing the ambitious initiatives the Commission intends to put forward to transform the EU’s economy and society for a more sustainable future, a close collaboration is foreseen with the Member States at all levels and even with private entities, but there is no mention of the contribution of EU agencies in delivering these objectives. The document refers to these bodies only in relation to the Commission’s commitment to reduce its own environmental impact and become a climate neutral institution and employer. On this, it calls on EU agencies to do the same. While it is true that EU agencies should urgently engage with this objective, especially since it was recently observed that the consideration of the environmental impact of their activities and organisation is rather unsatisfactory (Court of Auditors, 2019), it is clear that their contribution to the European Green Deal cannot be limited to that.
In spite of their absence in the first policy document of the new Commission, we should expect EU agencies to be on the front line, alongside the Commission, in the fight against climate change in upcoming years. From the implementation of the future strategy on sustainability for chemicals, especially in the agri-food field, to the different initiatives for sustainable and smart mobility, EU agencies have a key role to play. The implementation of the European Green Deal will require significant technical and scientific expertise which EU agencies could provide to the institutions and the Member States. Although the Commission still seems to see itself as the sole executive of the EU, its ambitious plan may entail a delegation of powers to these other bodies which today represent an inescapable reality of the EU composite administration. It may thus become a push towards a more far-reaching empowerment of EU agencies active in these fields and a further consolidation of these bodies within the EU institutional landscape. Closer attention should therefore be paid in the near future to this under-researched aspect of agencification, recognising the increasing role of EU agencies in the promotion of a greener EU governance and administration (for further discussion, see Annalisa Volpato and Ellen Vos, “The Institutional Architecture of EU Environmental Governance: The Role of EU Agencies”, in Marjan Peeters and Mariolina Eliantonio, Research Handbook on EU Environmental Law (Edward Elgar, forthcoming)).
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