Environmental Politics,
Vol. 15, No. 1, 95 – 114, February 2006
EU Environmental Policy under
Pressure: Chemicals Policy Change
between Antagonistic Goals?
DIETER PESENDORFER
University of Salzburg, Department of History and Political Science, Salzburg, Austria
ABSTRACT Until now, chemicals policy was unable to find a method to establish a sound
balance between the benefits and risks of chemical substances. Policy learning within the
European Union (EU) resulted in the formulation of an alternative approach to future
chemicals policy in some quarters. The Commission’s proposal for new chemicals
legislation – presented as ‘paradigmatic’ policy change – led to a highly controversial
lobbying debate. This paper deals in particular with the influence of structures, policy
networks, multi-level governance and the influence of new modes of governance on
chemicals policy-making. It argues that future policy will not represent the paradigmatic
change announced by the Commission but only one incremental, cost-effective step towards
such a reform. The final proposal is criticised as a neo-liberal interpretation of the Lisbon
strategy which includes a dangerous shift in environmental policy making.
Ever since chemicals policy came to be a political topic in the second half of
the 1960s, national policy-making resulted in more or less strict regulatory
frameworks focusing on single substances with particularly unwanted properties.
Globally, chemicals policy was based on the general belief that regulations should
not endanger economic growth and jobs and that bans or restrictions must be
based on hard scientific facts. Because of the global integration of chemicals
markets, governments have also tried to avoid harmful barriers to trade.
Nevertheless, these regulations led to trade-related contests between trade blocs
(particularly between the European Community/European Union (EC/EU)
and the United States) which resulted in convergence and divergence in national
and supra-national policy-making influenced by many private interest groups and
international organisations (Brickman et al., 1985; Robertson & Kellow, 2001).
In this business- and trade-sensitive policy domain, regulations unavoidably
create winners and losers. They may include disadvantages for certain nations,
Correspondence Address: Dieter Pesendorfer, Research Assistant at the University of Salzburg, Department of History and Political Science, Rudolfskai 42, Austria. Email: [email protected]
I am grateful to Volkmar Lauber, Andrea Lenschow and the three anonymous referees who gave
valuable comments.
ISSN 0964-4016 Print/1744-8934 Online/06/010095–20 Ó 2006 Taylor & Francis
DOI: 10.1080/09644010500418803
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sectors, producers, exporters or importers but they never endanger the
dominant economic interests. Therefore, the main problem remains that for
substances for which substitution is not accepted by important parts of
industry for technical or financial reasons, either nothing happens or the
production is shifted to other countries. Given this competitive aspect of
regulation, regulatory, research and development (R&D) and innovation
strategies are of great importance for ‘ecological modernisation’ as well as for
increasing the industry’s competitiveness (Brickman et al., 1985: 223).
Concerning the EU’s legislation on chemicals, there is a broad consensus
about the main shortcomings of the current system (but as shown below not
with regard to their meaning and consequences):
.
.
.
.
.
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it became too complex and too difficult to survey
is not supportive enough for innovation and represents a burden on smalland medium-sized enterprises (SMEs)
lacks an adequate knowledge base
includes institutional blockades1
laws at European, national and regional levels are not coherent, consistent
and transparent
the precautionary principle, the polluter pays principle and the principle of
sustainable development are not respected
The EU reacted to that challenge with a review process of the current chemicals
policy and a proposal for a new regulatory framework which led to a highly
politicised environmental policy debate about basic goals and the means for
achieving them.
The main argument of this article is that structural factors (institutional
arrangements, power of industry), the broader context (share of chemicals in
world trade, neo-liberal globalisation, Lisbon goals) and the dominant belief
system (paradigm) shared by the major actors lessen ambitious goals and that
new modes of (participatory) governance have an impact on only the debate,
not the output and outcome. The major actors promote a neo-liberal
interpretation of implementing the Lisbon strategy, which emphatically does
not represent a sound balance between economic, social and ecological
interests. Moreover, the ‘business coalition’ not only blocks changes in power
relations but also tries to increase the power of economic actors in this classical
environmental topic by transferring decision-making to another policy arena,
namely that of competition. This shift in the locus of decision-making has
dangerous implications for future environmental politics and policies. The core
content of the chemicals policy reform – the ‘great expectations’ resulting from
policy change to the ‘no data – no market’ paradigm, outlined by the
Commission to overhaul the rules on Registration, Evaluation and Authorisation of CHemical substances (REACH) – will be doomed to failure. The
proposed regulatory framework for chemicals may be a ‘cost-effective’ reform
but not a major step towards the effective regulation and management of risks.
EU Environmental Policy under Pressure
97
Analysing Paradigmatic Conflicts
The current EU chemicals policy reform has been presented by its advocates as
a paradigmatic shift in policy-making resulting from a learning process. In
explaining such processes, network analysis and cognitive approaches play a
crucial role (Maier et al., 2003). With regard to the EU, a consensus has
emerged that the Union has become a ‘polycentric’ or multi-level system of
governance and several studies argue that we can observe ‘a ‘broadening of
participation’ in EU decision-making, which became less technocratic and
more contentious’ (Peterson & Bomberg, 2000: 25; see also Hooghe & Marks,
2001). As Peterson (2004: 121) stresses, all ‘highly politicized environmental
policy debates [. . .] can be viewed as battles between competing advocacy
coalitions – broadly advocating environmental protection vs. industrial
interests – for influence within EU environmental policy networks’.
‘Advocacy coalition’ has become a popular term in explaining policy change
and policy learning. Sabatier and Jenkins-Smith (1999) argue that when
paradigmatic policy changes occur, there are normally network coalitions with
separate paradigms which oppose each other. Each ‘advocacy coalition’
consists of actors from a variety of institutions who share a set of policy beliefs
(policy core, secondary aspects) within a policy subsystem and deep core beliefs
across all policy subsystems. Compared with other network approaches the
Advocacy Coalition Framework (ACF) provides a clearer criterion for
distinguishing ‘major’ from ‘minor’ policy change based on the assumption
that political belief systems are hierarchically structured. According to
Sabatier, major change is change in policy core aspects. Such a change is
difficult, but can occur if experience reveals serious anomalies. A change of
deep core beliefs is difficult and comparable to religious conversion. In order to
avoid such a change, actors or coalitions neglect the weaknesses of the policy
core but will give up secondary aspects of a belief system.
The ACF is used here to identify and to structure the belief systems of the
main actors at the EU level and to analyse the scope of the current reform. A
strong focus will be on macro-level factors which Sabatier summarises as
‘relative stable parameters’ and ‘external ‘‘system’’ events’ and which generally
function as constraints for all actors. Concerning these factors, it is important
to stress that chemicals policy is especially nested in economic and competition
policy. In this context, political economy is a useful complementary analytical
tool to explain the dominant position of industry in chemicals policy
(Lindblom, 1977). Another constraint for a major policy change within the
European context arises from the complexity of the Europolity and the quite
different political cultures in EU Member States. In seeking to adapt the ACF,
which originated in the United States, to the European context, Sabatier
(1998: 121) proposes to deal with that problem by adding the ‘degree of
consensus needed to institute a major policy change’ as an intervening variable.
Building on this theoretical framework the present article starts with an
analysis of two advocacy coalitions and their paradigmatic views on certain
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problems and possibilities for regulation to explain the EU’s chemicals policy
controversies. Next, it highlights how and why the policy review started, what
strategies actors used to promote their paradigmatic goals and which factors
limited their actions. Finally, it will argue why the ‘great expectations’
generated by the ‘no data – no market’ approach will be dashed and why the
shift in decision-making envisaged by some as positive in fact endangers future
environmental policy.
Main Actors and Coalitions
Chemicals policy is relatively complex, not only in its problem structures but
also in its actor constellation and networks. It is related strongly to clean air
policy, waste management, biotechnology policy, climate change policy and
(integrated) product policy. Globally, chemicals policy is based on test
methods developed by Organisation for Economic Co-operation and Development (OECD) working groups, and the OECD Chemicals Committee plays
an important role in developing chemicals control policies which are
harmonised across OECD countries. Regulations and restrictions are based
on World Health Organisation (WHO) recommendations. The WHO also
cooperates with the United Nations Environment Programme (UNEP) (which
runs the UNEP Chemicals Programme) and the International Labour
Organisation (ILO) within the framework of the International Programme
on Chemical Safety. International agreements and conventions on hazardous
substances and chemical safety standards (e.g. Basel Convention, Rotterdam
Convention, Stockholm Convention) are part of the EU acquis, which also
incorporates World Trade Organisation (WTO) rules on trade (Robertson &
Kellow, 2001).
Traditionally, the EU participates actively in preparing and implementing
international conventions on the environment. In several areas the EU views
itself as a leader. However, in fact the international arenas have multiple
effects: they are used by EU actors to devise ideas or to promote their interests
on international, European and national levels and represent constraints on
political action (Kellow & Zito, 2002).
The main actors in EU chemicals policy are parts of relatively stable
networks of policy specialists. This policy community clearly dominates in
policy implementation and in processes of ‘normal’ policy change (Hey, 2000).
Analogous to the (national) debates about chemicals legislation in the 1970s
and 1980s, the contemporary debate led to the involvement of numerous other
actors. According to the ACF, ‘actors can be aggregated into a number (. . .) of
‘‘advocacy coalitions’’, each composed of people from various governmental
and private organisations that both (1) share a set of normative and causal
beliefs and (2) engage in a non-trivial degree of coordinated activity over time’
(Sabatier & Jenkins-Smith, 1999: 120). Within the chemicals policy review
debate two major advocacy coalitions shaped decision-making. Their members
and belief systems are summarised in Table 1.
Scope of information
Secondary aspects
Instruments
Key supportive actors
at the international level
Deep core belief
Core policy belief
Supportive actors
Key actors
Restrictions on ‘‘sensitive’’ data
Soft regulations, bans only when alternatives are
available, voluntary measures (e.g. Responsible
Care), incentives
CEFIC, FECC, DG Enterprise and its
Commissioner, national economic affairs
ministries, business-friendly MEPs, MS
especially the leadership and key ministries of
France, Germany, Italy, UK, Ireland
Commission President, Internal Market, Industry,
and Competitiveness Councils, laggard MS,
several trade unions, many scientists and
journalists
OECD, WTO, leadership of US, Canada, Japan,
Australia
Globalisation, competitiveness, jobs
‘hazardous substance’ paradigm technical solutions
and ‘reputable scientific evidence’ (CEFIC, 1999)
Business coalition
(continued)
Strict regulations and bans, phase-outs for
hazardous substances
Partly also voluntary agreements, incentives,
chemicals leasing
Full access to information
International NGOs, non-EU scientists pushing the
precautionary principle
(Higher) priority of ecological and health concerns
‘no data – no market’ paradigm, precautionary
principle partly modified ‘hazardous substance’
paradigm
EEB, Greenpeace, FoE, WWF, DG Environment,
Environment Commissioner, ‘green’ MEPs,
environment ministries and agencies (especially
from ‘pioneer states’), animal protection NGOs,
consumer associations
Scandinavian countries, Austria, Netherlands, EEA,
critical scientists, green newspapers and journals
Green Coalition
Table 1. Belief systems of advocacy coalitions in EU chemicals policy
EU Environmental Policy under Pressure
99
Strict regulations and bans lead to high social costs
(unemployment)
View on social costs
View on innovation
No ‘overriding’ implementation, ‘sound’ balance
between economic, social and environmental aspects, standard risk assessment, partly PP is ‘junk
science’
Ambitious regulations endanger innovation and
threaten EU industry
View on precautionary
principle (PP)
Business coalition
Table 1. (Continued )
Ambitious regulations increase innovation
potentials and help to develop new markets for
clean chemicals
Social costs (health) are too high. Only strict
regulations and bans are adequate to avoid high
cost of reactive measures in the future
‘right’ balance between economic, social and environmental aspects, ‘better safe than sorry’, valid
interpretation of available evidence
Green Coalition
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EU Environmental Policy under Pressure
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The ‘business coalition’ consists of the most powerful actors in chemicals
policy. Above all, industry (especially, but not only, the chemicals industry) has
a dominant position. Industry and business have a strong influence on
decision-makers and they are highly involved in policy-making. According to
Lindblom (1977: 170–88) this ‘privileged position’ derives from structural
power, the dependency of governmental actors on knowledge from business
actors for effective policy-making and implementation and superior resource
mobilisation capability. The chemicals industry, for example, has the great
advantage of not only possessing knowledge about chemicals and products but
also about possible substitutes. This knowledge is vastly superior to that of
public authorities (Pesendorfer, 2002). Moreover, the chemicals industry, with
numerous links to nearly all other industrial sectors and especially to the
powerful energy sector, is of enormous importance for economic growth. It
supplies a vast range of chemicals to virtually all sectors of the economy.
Today, the EU is the largest chemicals-producing area in the world. EU
chemical companies are predominantly small and rather specialised (EEA
2003: 134). In policy-making, however, the large transnational companies play
the key role.
Within the business coalition, industry is represented via its two main
European associations: the European Chemical Industry Council (CEFIC) and
the European Association of Chemical Distributors (FECC). Both monitor
and influence EU chemicals legislation. They have established working
relations and networks with EU institutions and with all important actors.
Within the European Commission, which generally supports business
interests with a strong focus on internal markets and competitiveness, DG
Enterprise is a central actor within the business coalition. DG Enterprise is
responsible for internal markets, competitiveness and sustainable development
topics in chemicals policy. It is also responsible for proposals on risk
management measures based on risk assessments from DG Environment;
indeed there are many cases in which DG Enterprise ignored the risk
assessments and related demands from DG Environment (Hey, 2000). The
latter fulfils major tasks in chemicals policy (preparing legislation, risk
assessment, priority setting . . .) but is generally more susceptible to influence
by ‘green stakeholders’ and thus normally outside the business coalition.
Other important actors within the business coalition are national economic
affairs ministries which hold a crucial veto position, business-friendly Members
of the European Parliament (MEPs) and EU Member States with a large
chemicals sector, such as France, Germany, Italy, trhe United Kingdom and
Ireland. The second advocacy coalition is the ‘green coalition’, sharing an
environmentalist approach, partly a radical approach, but partly also an
approach similar to the business approach.
As assumed by the ACF, the representatives of environment ministries,
national environmental agencies and DG Environment in particular can be
identified as more moderate and closer to the business approach, sometimes
functioning as ‘policy brokers’ trying to find a maximum of ‘win–win
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solutions’. Especially with regard to policy formulation and implementation,
where the influence of national bureaucracies (the so-called competent
authorities) is much stronger than that of parliaments or political parties due
to the required, highly specific knowledge, these actors are largely dependent
on close cooperation with industry. In most countries they are also faced with
horizontally divided competences which result in sometimes difficult intergovernmental negotiations. In general, the most powerful environmental
ministries can be found in pioneer countries (Andersen & Liefferink, 1997). The
strongest supporters of an ambitious chemicals policy reform are the Austrian,
Dutch, German and Scandinavian environment ministries and agencies (see
below).
The strongest supporters of a radical change in chemicals policy are nongovernmental organisations (NGOs). In Member States as well as on the EU
level environmental and consumer organisations play a crucial countervailing
power to business associations and the powerful chemicals industry. Animal
rights and health organisations also promote their goals in that policy area.
NGOs have limited influence on policy-making on EU and member state
levels. Their influence is reduced mainly to agenda-setting and policy
formulation. In decision-making they are much weaker than industry, business
or labour (Peterson & Bomberg, 1999: Ch. 7).
On the EU level the main organisation is the European Environmental
Bureau (EEB) (Knill, 2003: 103). Other important European NGOs are the
European Consumers Organisation (BEUC) and the European Public Health
Association (EPHA). In particular, Greenpeace, Friends of the Earth (FoE)
and the Worldwide Fund for Nature (WWF), none of whom are members of
the EEB, have had a stronger influence on chemicals policy-making, based
mainly on studies and campaigns. These NGOs also have the resources to draw
upon policy advisers. None the less, green NGOs focus their work mainly on a
few hazardous chemicals due to their limited resources (Pesendorfer, 2002).
As well as the actors already mentioned, both networks include numerous
scientists, research institutes and journalists, some of them being members of
an advocacy coalition, others taking part only in the public debate. Members
of the European Parliament (EP) – widely regarded as a progressive actor in
EU environmental policies (Knill, 2003: 97) – can also be found in both
coalitions. Chemicals legislation (the usual procedure is that of co-decision) is
usually debated in the Committee on Environment, Public Health and
Consumer Affairs, which has become one of the most powerful committees
within the EP. Within the European Trade Union Confederation the European
Mine, Chemicals and Energy Workers’ Federation (EMCEF) is the main actor
in chemicals policy. Compared to industry and business associations its
influence is much weaker. However, trade unions played a crucial role in
struggles for better working conditions and also for national regulations on
environmental protection and higher safety standards in the chemicals industry
(Brickman et al., 1985: 255) but they, too, are concerned about competitiveness and employment and therefore oppose ‘unreasonable’ demands from
EU Environmental Policy under Pressure
103
environmentalists. The European Environment Agency (EEA), established in
1993, is a small institution with limited tasks. None the less, it has become an
important actor in environmental reporting and monitoring. By commissioning studies on certain topics, the EEA has the possibility to influence policy
evaluation, agenda-setting and policy formulation. In recent years, the EEA
has published extensive data on chemicals in the EU, several reports and
studies on chemicals policy in general and on specific substances in particular.
In short, EEA is part of the ‘green’ coalition contributing to the scientific and
political discourse, but with limited influence over decision-making.
Additionally, a number of further supportive actors at the European and
international levels can be identified (see Table 1 and below).
Another central actor in chemicals policy is the European Chemicals Bureau
(ECB). This intergovernmental organisation is the focal point for data
collection and assessment procedures on dangerous chemicals.2 However, with
regard to the current reform process the ECB occupies a neutral position
between the two coalitions but shaped policy learning in the respective
advocacy coalitions. In particular, the slow progress in evaluating chemicals
listed in the EU priority list led to more radical proposals from green actors.
The Emergence of a New Paradigm
At some point over the past few years environmental authorities in several EU
Member States began to review their chemical policies with the goal of bringing
them more into line with the precautionary principle and the guidelines for
sustainable development. Faced with policy failure, with increasing demands
from several Member States and with new challenges (e.g. international
conventions on Persistent Organic Polluters (POPs)), the EU also began to
review its policy. The major impetus for a new EU chemicals policy came from
Sweden. This country is traditionally one of the pioneers with a progressive
and ambitious chemicals policy, promoting preventive environmental strategies
(Kellow & Zito, 2002: 55). In the 1990s the Swedish government adopted
environmental quality objectives, including guidelines towards achieving the
objective of eliminating discharge and leakage of hazardous substances into the
sea. Pushed by the Swedish Environmental Protection Agency, the Environment Ministry and the National Chemicals Inspectorate, the government
appointed a Committee on New Guidelines on Chemicals Policy. In early 1998,
Sweden launched an initiative to overcome the difficulties in chemicals control
and risk evaluation at the European level. This initiative included a call for
tougher data requirements for chemicals and rules requiring the phase-out of
substances falling within certain general criteria of hazardousness. Given the
limitations of risk assessment, Sweden identified in particular persistence and
bioaccumulation as crucial characteristics of substances relevant for precautionary action. To enhance existing knowledge about substances already in use
in the EU, a timetable for producing the necessary information was proposed,
with the end of 2010 as the final deadline. Substances on which data are not
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available after that date should be banned from the market. The goal was that
the EU’s chemicals legislation should be placed under a framework directive
(Statens offentliga utredningar (SOU), 2000: 21; EnviroReport no. 4, July
2000: 4). The Swedish initiative was supported by Austria, Denmark, Finland
and the Netherlands, driven at first by an advocacy coalition composed mainly
of actors from their national bureaucracies. In 1998, this coalition presented a
joint paper for a broad strategic approach in an informal meeting of the
Environment Council (McCormick, 2001: 165). Green and consumer NGOs
welcomed the initiative and supported the forerunners of a modern and
environmentally sound chemicals policy.
From the Review Process to REACH
In 1998, the European Commission and the Environment Council finally
decided to start developing an integrated and coherent approach with the aim
of preparing a new EU chemicals policy reflecting the precautionary principle
and the overall goal of sustainable development. Based on that decision, DG
Environment released a report on the operation of the core of EU legislation
on chemicals. Inside the Environment Council, discussions on current policy
and its implementation began. In June 1999, the Council decided on a
fundamental review of EU policy and a clear mandate to the Commission. In
part this resulted from the fact that in 1999 Swedish politician Margot
Wallström had become Environment Commissioner and had made a new
chemicals policy one of the top priorities of the Commission.
The debate was also shaped by developments in other policy areas. In 2000,
the Commission published a communication with general guidance for the
application of the precautionary principle, which was a reaction to a series of
food scandals [such as the bovine spongiform encephalitis (BSE) crisis], the
dioxin crisis and the genetically modified organisms (GMO) debate. This
communication, as well as recent developments in these policy areas, had a
strong impact on the further debate on chemicals policy. A number of national
and international experts ‘thought it important to introduce the precautionary
principle into chemical laws and regulations in a systematic manner’
(Bro-Rasmussen, 2003:88). However, the scope of the debate was also limited
by external forces such as globalisation and enlargement and by internal effects
such as monetary restrictions arising from EMU or the goal of strengthening
EU’s competitiveness as a new superpower.
Based on overall developments, the Commission published its White Paper
Strategy for a future Chemicals Policy [COM (2001) 88 final], which proposed
10 political objectives ‘to achieve the overriding goal of sustainable
development’. These objectives are at least partly antagonistic. On one hand,
they include environmental demands such as the protection of human health
and the environment, increasing transparency or promotion of non-animal
testing. On the other hand, they stress maintenance and enhancement of the
competitiveness of the EU chemicals industry, preventing fragmentation of the
EU Environmental Policy under Pressure
105
internal market, integration with international efforts and conformity with
international obligations under WTO.
Based on the core principles set out in the White Paper and in the
conclusions of the Environment Council (Council of the European Union,
2001), the key element within the Commission’s proposal REACH – the
requirement that the marketing of a chemical should not be permitted unless
certain basic data are supplied (‘no data, no market’), which was not much
more than a message at that time – had to be translated into instruments. In
2001, DG Environment and DG Enterprise were put in charge of this task.
Reactions and Strategies from the Main Actors
In the late 1990s, business started initiatives to influence future chemicals
policy and intensified lobbying activities on the EU and member state levels.
Their starting-point was not environmental concern but dissatisfaction with the
existing bureaucratic system. In Europe, as well as in the United States and
Japan, the chemicals industry announced new initiatives to speed up the
assessment of industrial chemicals. In order to avoid new regulations, industry
argued in favour of self-regulation and voluntary measures. Additionally, the
European industry demanded a simplification of existing regulations in order
to make them easier to observe. In any case, risk assessment based on ‘sound
science’ should remain the basis for decision-making.3
Large parts of the industry were seriously worried about the impact of future
policy outlined in the 2001 White Paper. These concerns were expressed widely
by industry and business association representatives in press releases and media
reports, where they argued against an overriding precautionary principle and
warned about excessively high costs and negative effects on competitiveness
and jobs. The proposal would endanger the Lisbon goal of making the EU the
most competitive economic space worldwide. In total they used a wide range of
arguments to weaken the Commission proposal. They argued that too tough a
regulation would not solve environmental problems but cause production
shifts from Europe to other regions, and that extensive testing would mean the
death of millions of test animals. Industry used a number of scientific
conferences to discuss the impact of future policy. Another major strategy was
to push Member States’ national governments to adopt critical positions. The
German government, for example, adopted a common position together with
the German chemicals industry association and the trade union of chemical
workers demanding a regulatory framework guaranteeing innovation and
competitiveness of the chemicals industry (German Government, press release
12 March 2002).
In contrast to industry and business actors, NGOs supported the
Commission in its attempt to strengthen the precautionary principle in
chemicals policy. The EEB installed a new working group on chemicals to
intervene in the upcoming political debate and pushed a proposal for a better
chemicals management at EU level (EEB, 1999). In September 1999 NGOs
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started a ‘Chemical Awareness’ campaign to generate public interest and to
influence the Commission. Moreover, green and consumer NGOs agreed on
five key demands in the Copenhagen Chemicals Charter (EEB et al., 2000),
demands which were also supported by several members of parliament,
environment ministers and representatives from public authorities in several
Member States.
With regard to the White Paper, environmental NGOs remained concerned
that the proposed strategy could still fail to ensure a high level of protection.
According to their viewpoint, releases of hazardous substances would
inevitably continue. Furthermore, they could not detect any clear criteria for
the implementation of the precautionary principle and the principle of
substitution, and they criticised the proposed controls as being too weak. In
total, NGOs considered the chemicals policy review as the ultimate test of the
EU’s commitment to sustainable development (EEB, FoE and WWF, press
release, 6 February 2001).
The governments and environment ministers of the pioneer countries
welcomed the White Paper and continued their support for more far-reaching
proposals. On the other hand, the UK government, leading those countries
most sceptical about the future policy, quickly produced a first partial
regulatory impact assessment (RPA, 2001). In response to this criticism, the
Commission announced a study on the effects of the proposed measures on
other sectors of the economy. The EEA (2001) contributed a report showing
the meaning and insufficient implementation of the precautionary principle
in several case studies. The EP (2001) adopted a Resolution supporting the
White Paper.
In 2002, the Johannesburg World Summit on Sustainable Development and
UNEP (launching a ‘Strategic Approach to International Chemicals Management’) were the main forums to advocate a global strategy on chemicals based
on the precautionary principle. However, within the EU, business and some
national governments opposed to the Commission proposal caused a delay.
The United States, Canada, Australia and the OECD added their concerns.
Further consultations at the EU level as well as at the national level became
necessary.
Participatory Governance
Since the 1990s, numerous environmental policies have been prepared at the
EU level under a ‘new’ approach by delegating decisions from lawmaking
institutions to technical committees with a strong involvement of public and
private stakeholders. This change has been presented as an appropriate
approach for better governance and improved lawmaking by using new modes
of partnership, negotiation and networking. The new approach includes
elements of self-regulation of private stakeholders plus participation of
environmentalists and other public interest representatives, which should
improve input, output and outcome. However, it remains unclear up to now
EU Environmental Policy under Pressure
107
who the stakeholders to be involved should be, how their inputs are to be
weighed and how (broad) public participation can work without producing
institutional blockades or endangering the willingness of regulated industry to
cooperate. The impacts on efficiency and effectiveness are also unclear.
Furthermore, stakeholder participation has to take into account that
stakeholders and stakeholder coalitions have quite different resources to
influence scientific, media and political debates and negotiation processes. In
sum, new governance concepts provide limited answers to the question of how
the new forms of participation differ from traditional forms of lobbying and
policy-making, to what extent they really improve and increase input as well as
output legitimacy and how they can contribute to the professed goal of
sustainable development.
However, the new approach is widely supported in many areas of regulatory
policy-making in the Member States and at EU level. It also became part of
modern definitions of the precautionary principle (Raffensperger & Barrett,
2001). Within the policy formulation phase of the new chemicals policy, this
new approach can be clearly observed. Already in 1998, the Commission
announced its intention to involve stakeholders. In February 1999, a first
brainstorming of stakeholders (regulators, scientists, industry, environmental
and consumer NGOs and representatives from accession countries) was
organised by the Commission. In 2001, a first stakeholder conference was
organised on the White Paper; a second conference on the impact of the new
policy on business took place 1 year later.4
In April 2003, an 8-week public internet consultation on REACH was
started. Erkki Liikanen, Commissioner in charge of enterprise and information
society, presented it as ‘good governance in coherence with the principles of
better regulation’, which should ‘provide a reality check’ and a check of the
viability of the Commission proposals (Speech/03/232, 7 May 2003).
However, the documents released by the Commission were extremely
complex and purely technical. Nevertheless, DG Environment and DG
Enterprise received 6,400 contributions and several questions on the draft
chemicals legislation.5 The consultation led to 968 stakeholder reactions to a
structured questionnaire.6
As a result, many positions of EU and non-EU actors are now public or at
least more transparent, although in most governmental contributions from EU
Member States it was mentioned that the position submitted does not
necessarily reflect the government position or has no influence on the country’s
position in the upcoming negotiation process in the Council.
The only EU member state governments contributing in their official
capacity to the consultation were the United Kingdom and Ireland, concerned
mainly about negative impacts, with Austria and the Netherlands supporting
the proposal. Lithuania (environment ministry) was the only accession country
to submit a government contribution. Germany contributed a common
position paper from government, the chemicals industry association and the
chemical workers union based on their joint critical paper from March 2002.
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Additionally, a number of EU and non-EU public authorities used the
opportunity to submit proposals or critique.
A major critique came from the OECD New Industrial Chemicals Task
Force. This sub-group working in the OECD Chemicals Programme is led by
the Business and Industry Advisory Committee to the OECD and has no
mandate to speak or write in the name of OECD members (personal
information OECD Environment, Health and Safety Division). However, the
sub-group’s chair concluded that the ‘new paradigm offered by the concept of
REACH departs from the current frameworks in place among other OECD
member countries’ and recommended that the Commission proposal should
‘be adequately amended and streamlined to accommodate [. . .] progressive
concept[s]’ as contained in US, Canadian or Australian laws.7 These and
several other countries also expressed major concerns in their contributions.
Most of these arguments were also shared by many EU chemicals policy actors.
NGOs contributed a ‘Declaration for a Toxics-free Future’, which resulted
from the ‘chemicalreaction.com’ campaign launched by EEB, FoE and
Greenpeace. The declaration was signed by 483 organisations representing
several dozen millions of citizens and directly by 23,600 citizens, mainly from the
EU. It called for phase-out and substitution of hazardous chemicals, for the full
right to know which chemicals are in what products, and for applying the same
standards to imported goods. In the opposite direction, industry associations
argued mainly that REACH was unworkable and had a negative impact on
competitiveness. CEFIC demanded that the objectives set by the Lisbon
European Council should be respected. The industry from the Nordic countries
and its organisations were generally neutral, partly in favour of REACH.
Consultation processes, stakeholder involvement and other consensusbuilding activities also took place at the Member State level. All these
participatory approaches show that recent EU chemicals policy-making has
paid more than just lip-service to the new governance paradigm. But is it really
the case that the involvement of ‘all concerned parties’ guarantees better
governance? This approach assured the privileged position of business actors in
policy-making. Purely technical consultations in particular were ‘productive’ in
the sense that industry had the possibility to hide its demands behind the screen
of a technical debate about workability, efficiency and feasibility, which is
understood only by a small number of experts.8 A consultation about general
alternatives and core questions regarding future policy was not intended.
An Ambitious Proposal?
By 2003, several studies by industry and EU Member States concluded that the
planned reform showed unacceptable costs for industry and society.9 These
results found a broad echo in mass media. It also became obvious that a radical
departure from the formula ‘no data – no problem’ was supported by only a
limited number of actors, while important countries such as the United
Kingdom, Italy, France or Germany and further Member States were
EU Environmental Policy under Pressure
109
concerned mainly about economic and trade factors and especially about the
competitiveness of the European chemicals industry. While environmentalists
argued that the industry was able to afford the new system, industry urged the
Commission to reduce the economic cost of the policy.
The environmental actors stressed the argument that the reform was likely to
create new markets for companies employing cleaner processes to create
cleaner products. The German Advisory Council on the Environment
published a statement calling industry evaluations ‘systematically exaggerated’,
‘not plausible’ and ‘of little use’ for the debate. In particular, the Council
argued that innovation-focused approaches in environmental policy have great
advantages and ‘that strict environmental policy can foster both innovation
and pioneer effects’. Moreover, it expected ‘an increase in innovation and
enhanced competitive advantage in markets for substitutes and environment
and health compatible products’ (SRU 2003: 26f).
However, given the priority of economic goals in the Europolity, it is not
surprising that industry had the stronger advocates. Already in spring 2003,
Liikanen had promised amendments to reduce the impact on growth (Financial
Times, 11 May 2003). In the following months, DG Enterprise and DG
Environment fought difficult struggles to find a consensus on a final proposal.10
At this time, Blair, Chirac and Schröder warned Commission president Prodi
in a joint letter ‘not to go ahead with proposals for a new chemicals policy if it
was going to affect the competitiveness of Europe’s industry’. Concerned about
‘risks of de-industrialisation’, they argued for a moderate proposal ‘that could
serve as an example for other areas of industry’.11 While NGOs sharply
criticised this initiative, industry welcomed ‘these significant words’ (CEFIC
press release, 23 September 2003). In response, Liikanen announced significant
amendments (Süddeutsche Zeitung, 7 October 2003).
The Commission presented its final legislative proposal on 29 October 2003
[COM (2003) 644] together with a draft impact assessment [SEC (2003) 1171/
3]. As expected, the Commission did not ignore the major concerns and
worries from industry and some governments and the proposal is definitely not
a tough new policy as envisaged by ‘green’ actors. Although it includes a
number of serious weaknesses, it is – compared to the current system – in some
part an incremental step towards such a policy. It is mainly a change of
secondary aspects, but also of the policy core with regard to the shift
of responsibility for chemical safety to industry. However, seen in the light of
the progressive goals for a non-toxic environment it is definitely no major
change of the policy core, not to speak of deep core beliefs. The proposal
includes elements of deregulation (with regard to new substances), a strong
trust in information provided by industry without sufficient requirements for
transparency and with institutional weaknesses that will lead to new
implementation deficits; existing steering deficits remain with respect to several
aspects (SRU, 2004).
The Commission presented its proposal as ‘a streamlined and cost-effective
system’ and as ‘the right balance between maintaining growth and employment
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D. Pesendorfer
in Europe on the one hand and improving health and the environment in
Europe on the other’. According to the new impact assessment the direct costs
to the chemicals industry were now cut back by 82% compared with the draft
(IP/03/1477, 29 October 2003).
NGOs were disappointed by this result. They now hoped that Parliament
and Council would strengthen the proposal (EEB press release, 29 October
2003). CEFIC stated that the proposal showed ‘an encouraging move’ but still
did ‘not meet the request made by’ Chirac, Schröder and Blair (CEFIC press
release, 16 October 2003). With this strategy industry prolonged its attempt to
avoid a tougher regulation throughout the upcoming decision-making process.
The result was the installation of an ad hoc Working Party on Chemicals in
November 2003 and a broad debate about the proposals’ impact. In 2004, the
Commission agreed that UNICE and CEFIC carry out further work on impact
assessment under the supervision of the ad hoc working group. A second
impact assessment study was prepared by the Commission’s JRC-IPTS
focusing on the impact on the new Member States.12 In total, 36 studies on
the costs and benefits of REACH were debated among national officials in a
workshop held by the Dutch Presidency in October 2004. The conclusion of
that meeting was that the costs of the proposal would be too high and needed
to be curbed (Dutch Presidency, 2004).
Meanwhile, the proposal was forwarded to the EP and the Council. After a
controversial debate about which EP committee should take the lead, in
February 2004 the Environment Committee was put in charge of REACH.
However, both the Industry Committee and the Legal Affairs Committee were
to give their opinions. With regard to the Council, a battle also began as to
whether the Competitiveness Council or the Environment Council should take
the lead. The Commission planned that both Councils would debate the topic,
but the lead should be taken by the Competitiveness Council [COM (2004) 29
final: 73]. Such proposals are not new; a similar debate had occurred already
with regard to environmental liability. Their advocates want to increase the
importance of business interests and demand that environmental measures be
legitimated by cost–benefit analysis. Instead of integrating environmental
aspects into all policy areas, first of all environmental policy should
incorporate economic aspects: that is the core content of the neo-liberal
interpretation of the Lisbon strategy. It is the technocratic reply to a
‘politicized decision-making style’ which Hooghe and Marks (2001) identified
as new EU policy style in the ‘Post-Maastricht Era’. It also supports the
argument stressed by Peterson and Bomberg (2000: 26) that EU decisionmaking is becoming increasingly ‘driven by forces external to the EU itself’
such as those released by globalisation. Faced with such challenges, actors
from the business coalition usually argue that ‘Europe is no island’ and cannot
afford tough regulations; similar arguments are promoted in such different
areas as climate change, biotechnology and the future of the welfare state. On
all these major issues the core question is about the Union’s capacities to
develop an alternative to neo-liberal globalisation.
EU Environmental Policy under Pressure
111
However, the final decision to debate REACH in the Competitiveness Council
also led to a remarkable development. Denmark and Germany decided to send
their environment ministers to the council meetings. But again, given the power
of chemicals industry and the business-friendly institutional frame of the current
Europolity in general and of the dominant coalition in chemical policy in
particular, their influence can only be limited, as shown by the recent
Commission decision to restart the Lisbon strategy [COM (2005) 24].
Conclusion
The chemical policy reform under way is the result of serious anomalies of the
current EU chemicals regulation concerning both environmental and health
but also business and trade issues. These anomalies created a situation ‘in
which all major coalitions view a continuation of the current situation as
unacceptable’ (Sabatier, 1998: 119). Initially, green parts of the policy
community of ‘pioneer countries’ pushed for a paradigmatic shift. Their goals
were then supported by a ‘green advocacy coalition’. My argument was that
this process was driven especially by ideas based on the precautionary principle
which also partly influenced the Commission’s White Paper. Since then, the
debate has shifted towards a greater emphasis on competitiveness and businessfriendly innovation strategies to ensure capital accumulation. Dominant actors
at the EU and member state levels shared the worries from industry and
international actors that the Commission’s proposal was still too expensive and
too burdensome for the European industry in total and for SMEs in
particular.13 Given the sector’s importance in trade and competition on the
world market, the concerns for profitable economic activities and jobs were
superior to progressive environmental goals. The ‘business coalition’ used new
modes of governance – developed by the Commission – and shifting the locus
of decision-making as well as traditional forms of lobbying to bring the
Commission proposal in line with neo-liberal ideas. Often overestimated within
the environmental debate, ‘new governance’ did not result in ‘better regulation’
and in a ‘sound balance between economic, social and environmental goals’. It
reinstalled key players in a veto position and did little to enhance effective
participation of the public. The ambitious reform impulse was ground down in
this peculiar ‘political’ process. Given the economic situation of the European
chemicals industry, the trade- and business-sensitivity of each regulation in this
policy domain, the context of current globalisation, the institutional
arrangements within the EU and the dominant belief system shared by the
main actors, a radical ‘paradigmatic’ shift in chemicals policy-making was out
of reach. This result shows that beliefs as well as institutions certainly influence
policy change and shape strategic choices. It also demonstrates how the ‘degree
of consensus needed for major policy change’ and ‘constraints’ (Sabatier) are
framed by the structural power of capital and by EU institutions and practices
that appear to favour these interests. Given the neo-liberal tendency to make
the EU and Member States’ governments more responsive to the discipline of
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D. Pesendorfer
(often oligopolistic) ‘market’ forces, stronger tensions between economic and
antagonistic environmental goals are inescapable.
Notes
1. Governing chemicals has been an extremely technical policy focusing on prioritised hazardous
substances, with measures resulting mainly from interactions and negotiations between
industry and competent authorities, while other actors have little influence. The established
procedures guarantee that measures are based on standardised scientific proof, that costs for
business are as low as possible and that producers are protected from inappropriate measures.
Recommendations from the involved policy community are the basis for Commission
proposals on bans and restrictions. The overall result are long assessment and decision cycles
for particular substances, which Hey (2000) described as an ‘institutionalized blockade’. For
industry, it takes too long to assess chemicals. For green critics, ‘this supposedly ‘science-based’
risk assessment methodology has proven to be more effective in protecting vested interests
rather than protecting health and the environment’ (Quijano, 2003: 21).
2. See http://ecb.jrc.it/
3. For details see: http://www.cefic.be and http://www.chemicalspolicyreview.org
4. See: http://europa.eu.int/comm/environment/chemicals/reach.htm
5. http://europa.eu.int/comm/enterprise/reach/whitepaper/index.htm
6. See: http://europa.eu.int/comm/environment/chemicals/pdf/ipm_stakeholder_reactions.pdf
7. See: http://europa.eu.int/comm/enterprise/reach/docs/consultation/public/public_335_oecd2.
pdf
8. A Member of the EP said REACH can only be understood by chemical engineers, quoted in
Umwelt für Europäer, No. 18, December 2004: 8.
9. For example, Arthur D. Little (2002) for Germany; Mercer Management Consulting and Nera
Economic Consulting for France (2003); and for the United Kingdom: http://www.cbi.org.
uk/ndbs/press.nsf/0363c1f07c6ca12a8025671c00381cc7/4be57c2fbf8ccb9a80256d720034c158?
OpenDocument
10. Personal communication with a representative of DG Enterprise.
11. See: http://www.bundesregierung.de/Anlage609401/GemeinsamerþBriefþvonþChirac,þSchr%
F6derþundþBlairþ-þenglischeþVersioin.pdf
12. See: http://europa.eu.int/comm/enterprise/reach/docs/reach/memo_of_underst_on_ia-2004_
03_03.pdf
13. Costs for SMEs will be reduced by the British-Hungarian proposal ‘One Substance – One
Registration’ (http://www.defra.gov.uk/environment/chemicals/pdf/osor-proposal.pdf), which
is generally supported by most actors.
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