1. FACULTY OF LAW, UNIVERSITY OF OSLO The principle of integration and its dilemmas Hans Chr. Bugge Professor of Environmental Law University of Oslo

2. FACULTY OF LAW, UNIVERSITY OF OSLO The “principle of integration” is at the core of sustainable development. The “narrow” understanding: Integration of all environmental effects when considering a new project (the EU Directive on integrated pollution prevention and control – “IPPC-directive”). The “broad” understanding: Integration of environmental/sustainable development objectives into the development process, and thus into the policy definition and implementation of various economic and social sectors.

3. FACULTY OF LAW, UNIVERSITY OF OSLO Rio declaration principle 4 “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”

4. FACULTY OF LAW, UNIVERSITY OF OSLO The Treaty of the European Community article 6 “Environmental protection requirements must be integrated into the definition and implementation of (all) Community policies and activities (referred to in Article 3), in particular with a view to promoting sustainable development.”

5. FACULTY OF LAW, UNIVERSITY OF OSLO One of the ”roots” of the principle: The 1987 ”Brundtland report” The report defines sustainable development and lists seven “strategic imperatives” to achieve it, including: - “merging environment and economics in decision making”.

6. FACULTY OF LAW, UNIVERSITY OF OSLO Brundtland contd. “…Approaches to environmental policy can be broadly characterized in two ways. One … reflects an approach to environmental policy, laws, and institutions that focuses on environmental effects. The second reflects an approach concentrating on the policies that are the sources of those effects. These two approaches represent distinctively different ways of looking both at the issues and at the institutions to manage them.”

7. FACULTY OF LAW, UNIVERSITY OF OSLO “Sustainable development objectives should be incorporated in the terms of reference of those cabinet and legislative committees dealing with national economic policy and planning as well as those dealing with key sectoral and international policies. ….the major central economic and sectoral agencies of governments should now be made directly responsible and fully accountable for ensuring that their policies, programmes, and budgets support development that is ecologically as well as economically sustainable.”

8. FACULTY OF LAW, UNIVERSITY OF OSLO What does this mean? Not only that environmental issues and effects must be assessed and taken into account by sector authorities. The objective and content of important policies in reality must be modified in substance in order to ensure long term environmental protection and sustainable development.

9. FACULTY OF LAW, UNIVERSITY OF OSLO The two dimensions of environmental policy integration: “Horizontal integration”: across social and economic policy sectors “Vertical integration”: at all levels within each sector

10. FACULTY OF LAW, UNIVERSITY OF OSLO Some fundamental problems Integration of environmental objectives and considerations requires that sector authorities work with objectives, issues and problems which they do not necessarily know much about they do not identify with which may be (seen as) contrary to what they see as their primary task and “mission” which are often also (seen as) against the interests of “their” corresponding private sector.

11. FACULTY OF LAW, UNIVERSITY OF OSLO ”The dilemma” Sustainable development requires that each economic and social sector is “directly responsible and fully accountable” for ensuring ecological sustainability of its policy and measures, But……

12. FACULTY OF LAW, UNIVERSITY OF OSLO …how can this be achieved if and when environmental protection and long term sustainability is perceived as contrary to the objective and “paradigm” of the sector? the environmentally sound and the preferable solutions in the long term are often not (seen as) neither cost-effective (in the narrow sense) nor in its interest by the sector itself and the sector authority?

13. FACULTY OF LAW, UNIVERSITY OF OSLO..and…how can we avoid fragmentation and ensure consistency in environmental management, when: responsibility for “the environment” rests with numerous different sector institutions and authorities, with “mixed feelings”, and all valuing and weighing environmental issues differently, authority is also divided between several levels of government, including local government with considerable independence and self- determination – seen as an important value in itself.

14. FACULTY OF LAW, UNIVERSITY OF OSLO These problems are real and must be thoroughly addressed in the discussion and development of environmental law and sustainable development law. They require that we broaden the concept and perspectives of environmental law to also cover fundamental issues of constitutional law, property law, and important parts of economic law/sector law,

15. FACULTY OF LAW, UNIVERSITY OF OSLO Can this problem of ”the tilted playing field” be overcome? How can environmental sustainability become an important part of the sector ”paradigm”, terms of reference and fundamental goals … instead of being seen, too often as something to oppose, circumvent, or avoid?

16. FACULTY OF LAW, UNIVERSITY OF OSLO We have to critically study and assess sector legislation and decision-making, How is it constructed in the perspective of environmental sustainability? What are the positive incentives, the policy guidelines, and the legal framework for exercising sector authority to this effect? Is this a question of law, or of economics, technology, politics…..?

17. FACULTY OF LAW, UNIVERSITY OF OSLO ”This is a question of political will and priorities…”, but what can law do? How can international law and constitutional law serve this purpose? How to ensure that environmental objectives are on an equal legal footing with sector objectives, and fully integrated in sector policies? How to ensure, through legal means, consistency across sectors and levels of authority? How to ensure “accountability”?

18. FACULTY OF LAW, UNIVERSITY OF OSLO Integration through international environmental law States’ obligations in environmental treaties must be translated into obligations for all relevant sectors, and not only for the environmental sectors and authorities in the narrow sense. It is a role for environmental lawyers to clarify the meaning of these obligations to various sectors.

19. FACULTY OF LAW, UNIVERSITY OF OSLO Integration through constitutional law Many states have sustainable development and/or protection of the environment laid down in their constitution, as obligation for the state and/or rights for the citizens. It is a role for environmental lawyers to give these rules real meaning across economic and social sectors.

20. FACULTY OF LAW, UNIVERSITY OF OSLO How to legally strengthen environmental protection in sector legislation? Procedural rules: identify and remove formal loopholes and other weaknesses in EIA and SEA systems, and strengthen the link between the assessment and the substantive decision. Substantial rules: sector legislation must “internalize” the objective of sustainability, and clarify what this implies. It must include proper incentives to this effect, and lay down necessary legal obligations and frames for decisions.

21. FACULTY OF LAW, UNIVERSITY OF OSLO Develop new and more consistent ways to value environmental goods and services, and internalize such valuing requirement in sector legislation. Strengthen environmental quality norms and the ecosystem approach as a guiding legal concept Strengthen the legal status of comprehensive, cross-sectoral spatial planning systems.

22. FACULTY OF LAW, UNIVERSITY OF OSLO How to ensure “accountability”? An open, transparent public administration, and participation are essential elements, but not enough. Access to courts, in particular for environmental interest groups is essential, but usually not enough. Strong environmental protection authorities are still very important and necessary – not an ”either/or”, but not enough. Are ”independent” institutions such as ”environmental auditors”, ”ombudsman for future generations” realistic alternatives, or are they ”contrary to democracy”?

23. FACULTY OF LAW, UNIVERSITY OF OSLO Conclusion The principle of (sectoral) integration is a key to sustainable development. But at this stage it may often rather be a part of the problem than a part of the solution. The development of environmental law should focus on this challenge: How sector law could be further developed and applied in order to support the objective of sustainable development.

24. FACULTY OF LAW, UNIVERSITY OF OSLO Thank you!

25. FACULTY OF LAW, UNIVERSITY OF OSLO