Frans Oosterhuis, 2012 EEEN forum, Leuven, 9 February 2012 Evaluating environmental law and policy in The Netherlands: experiences from the ‘STEM’ programme

2 STEM: Structural Evaluation of Environmental Law  Programme funded by Ministry of Environment,  35 projects  Consortium of 4 partners: Amsterdam Centre for Environmental Law and Sustainability METRO Institute for Transnational Legal Research

3 STEM’s objectives  Contribute to knowledge on the extent to which legislation can help to protect the environment  Contribute to quality improvement in environmental legislation (effectiveness, efficiency, feasibility, enforceability, legitimacy...)

4 Three example projects  Allocation of GHG emission allowances under the EU ETS  Implementation of the IPPC Directive in NL  Research obligations in environmental permits

5 Allocation of GHG emission allowances under the EU ETS

6  First trading period ( ): Member States had much freedom in applying allocation criteria  NL has been rather generous to avoid competitive disadvantage for energy intensive industry  Consequence: Kyoto targets had to be reached largely by other means  Windfall profits for trading sector (especially electricity industry)

7 Implementation of the IPPC Directive in NL  IPPC: a potentially powerful instrument

8 Implementation of the IPPC Directive in NL  Objective of the IPPC Directive: “to achieve a high level of protection of the environment taken as a whole.”  Directive has a broad scope, but how broad?  Balancing between harmonized, general standards and case-specific considerations  Local authorities struggling with BAT and BREFs  Limited room for other instruments (e.g. NO x trading)

9 Research obligations in environmental permits  Dutch environmental law allows authorities to impose a research obligation in a permit  In theory: an instrument to ‘go beyond BAT’ (aiming at a higher level of environmental protection than the other permit conditions provide for)  In practice: an instrument to facilitate the granting of a permit even though there are still information gaps

10 Achievement of STEM’s objectives (1)  Contributing to knowledge on the extent to which legislation can help to protect the environment only partly achieved: >many projects focused on legislation as an ‘enabling framework’; not on concrete environmental results nevertheless useful insights gained, e.g.: >reducing information obligations has led to lower costs, but also to less effective environmental protection >legislation needs to take into account the uncertainty of risks

11 Achievement of STEM’s objectives (2)  Contributing to quality improvement in environmental legislation achieved on several aspects, e.g.: >legitimacy (a.o. compatibility with EU law) >effectiveness and efficiency (a.o. need for criteria to measure these) >subsidiarity and proportionality (a.o. need for new legislation) >feasibility and enforceability (a.o. extent to which local authorities are able to put permit requirements into practice) >simplicity, clarity, accessibility (a.o. recommendations to facilitate insight in complex laws)

12 Limited impact from STEM evaluations...  Policy/law makers not always interested in external suggestions for improvement  Political priorities more important than scientific, objective assessments  Current priorities in Dutch environmental policy: do no more than what ‘Brussels’ tells us to do reduce administrative burdens and squeezing regulation

13...but (structural) evaluation is still important:  indispensible if we want ‘evidence based’ environmental policy  may provide lessons for other policy areas as well  reduces the risk that failures and inefficiencies remain invisible

14 Some suggestions for future evaluations  Do not over-evaluate (cost; policy continuity)  Prioritize  Use a checklist to determine evaluation criteria  Methodological diversity and multidisciplinarity

15 Thank you for your attention  You can find all STEM reports on: (but unfortunately only in Dutch...)