From government towards governance? Exploring the role of soft policy instruments.
Wurzel, Rudiger K.W. ; Zito, Anthony ; Jordan, Andrew 等
1 Introduction
Germany has often been portrayed as a high regulatory state (e.g.
Heritier, Knill and Mingers 1996) which has traditionally relied heavily
on 'command-and-control' regulations that stipulate the best
available technology (BAT--Stand der Technik) (e.g. Weale 1992b; Wurzel
2002). Knill (2001: 135-163) has argued that the German environmental
policy system is characterised by a "static core" that gives
preference to interventionist approaches and regulatory rules which
"are highly specified and leave comparatively little flexibility
and discretion for the administration". At first sight Germany
therefore seems an unlikely country for the wide use of voluntary
agreements and EMAS which are widely considered as relatively flexible
"soft" policy instruments.
However, cooperation between governmental and societal actors has
been an early goal of German modern-day environmental policy. The
relatively ambitious 1971 Environmental Programme stipulated already the
cooperation principle (Kooperationsprinzip) together with the polluter
pays principle (Verursacherprinzip) and the precautionary principle
(Vorsorgeprinzip) (e.g. Hartkopf and Bohne 1983; Muller 1986). According
to Hartkopf and Bohne (1983: 114) the cooperation principle is
particularly pertinent for the environmental policy sector
"[b]ecause in hardly any other policy sector are state and societal
actors as much dependent on each other as in environmental policy".
The cooperation principle was meant to encourage cooperation between
governmental and societal actors for the following two main reasons.
First, to make easier the implementation of consensually adopted
environmental policy measures; second, to allow governmental actors to
utilise more easily societal knowledge including the know-how of
corporate actors on issues relevant for environmental policy measures
(Kloepfer 2004: 198-199). However, in practice corporate actors were
often highly reluctant to cooperate voluntarily with governmental actors
on the adoption of ambitious environmental policy measures.
Most German voluntary agreements were therefore adopted in
"the shadow of the law" (Scharpf 1994; see also Lees 2005:
222; Wurzel et al. 2003) or in "the shadow of hierarchy" (e.g.
Heritier and Lehmkuhl 2008; Toller 2008a). More often than not they
constituted an attempt by corporate actors to pre-empt government
legislation by offering a voluntary agreement instead. Environmental
voluntary agreements therefore resembled a form of "regulated
self-regulation" (Paterson 1989: 284) that fitted well the wider
social market economy (soziale Marktwirtschaft) doctrine which long has
been a central action guiding principle for the Federal Republic of
Germany (FRG). It also suited Germany's moderately active policy
style which usually relies heavily on consensus and consultation (Dyson
1982, 1992; Weale 1992). Importantly the traditional German policy style
exhibited some corporatist features because most post Second World War
German governments have consulted closely both employer groups and
unions. However, it is also strongly informed by ordo-liberal ideas
according to which the state determines merely the framework conditions
(Ordnungspolitik) within which market forces reign. Emphasizing both
ordo-liberal and state interventionist ideas, Germany's managed
capitalist system developed into a social market economy (Dyson 1982,
1992; Dyson and Goetz 2003; Dyson and Padgett 2005). By contrast,
attempts to develop the social market economy doctrine further into a
"social and ecological market economy" (soziale und
okologische Marktwirtschaft) were less successful.
The social market economy doctrine has been open for both the
adoption of traditional command-and-control regulation (which reflected
state intervention) and voluntary agreements (which emphasize
self-regulation although they are usually adopted in the "shadow of
the law"). Importantly, out of those political parties which have
formed (coalition) governments in Germany, it has been the Social
Democratic Party (Sozialdemokratische Partei Deutschlands--SPD) and the
Green Party (Bundnis 90/Die Grunen Alliance 90/The Greens) which have
emphasized more strongly the need for interventionist environmental
policy measures while the Christian Democratic Party (Christlich
Demokratische Union--CDU), Christian Social Union (Christlich Soziale
Union--CSU) and in particular the Liberal Party (Freiheitliche Partei
Deutschlands--FDP) have overall stressed more often the importance of
voluntary agreements (for more details see the contribution by Toller in
this issue).
Our article uses environmental policy instruments as empirical
touchstones for assessing the alleged shift from traditional government,
which is said to consist primarily of hierarchical top-down "
command-and-control" regulations, towards new modes of governance
that rely more strongly on societal self-organisation. This article
assesses whether the use of "soft" policy instruments (such as
voluntary agreements and eco-management and audit schemes) can be used
as a measure for a deeper underlying change from (environmental)
government towards (environmental) governance. It does so by analysing
whether "soft" tools are increasingly replacing
"hard" policy instruments (i.e. traditional regulation) in
German environmental policy. The empirical findings in this article are
based on interviews which we carried out for a larger research project
between 2001-2011 (1). It proceeds as follows. The next section puts
forward a threefold differentiation of environmental policy instruments.
Ann assessment of the role which voluntary agreements play in German and
EU environmental policy is presented next. The following section
analyses the uptake of EMAS and ISO 14001. The conclusion summarises the
main findings and argues that 'soft' policy instruments (such
as voluntary agreements and EMAS) have not replaced 'hard'
policy instruments (i.e. traditional regulation). Instead they have
supplemented traditional regulation which itself has evolved (i.e.
become "smarter") by, for example, granting lighter touch
regulation requirements for EMAS certified companies.
Studying Policy Instruments
Policy instruments have been studied since at least the
Enlightenment era (Hood 2007: 128). German Polizeywissenschaft already
focused on the effectiveness of different policy tools and their
interplay (e.g. Hood 2007: 1; Maier 1980). Much of the contemporary
literature has also strongly focused on the effectiveness and efficiency
of particular policy instruments although there are notable exceptions
(see also Toller's contribution in this issue). For a long time the
selection of policy instruments was portrayed largely as a politically
neutral technical choice although there are some important exceptions
(e.g. Hood 1983; Majone 1976). The only important criteria for the
selection of policy instruments seemed to be their effectiveness and
efficiency as regards the implementation of government policies. Lawyers
often stressed the need for effectiveness and thus usually showed a high
affinity with regulations while economists tended to emphasize the
importance of efficiency and thus usually favoured market-based
instruments.
However, the narrow focus on effectiveness and efficiency as the
exclusive selection criteria for policy instrument choices has been
challenged more recently (e.g. Bahr 2010; Bocher and Toller, 2007; Hood
2007; Jordan, Wurzel and Zito 2005, 2007). Lascoumes and le Gales (2007:
11) have argued that "[p]ublic policy instrumentation reveals a
(fairly explicit) theorisation of the relationship between the governing
and the governed. In this sense, it can be argued that every public
policy instrument constitutes a condensed and finalized form of
knowledge about social control and ways of exercising it".
Different German environmental policy actors have pushed for the
adoption of certain types of policy instruments; this was done to
achieve political objectives rather than merely technical environmental
goals.
The fact that the main German political parties have somewhat
different policy instrument preferences has already been flagged up
above. Importantly, different government departments have also shown
relatively distinct preferences for certain environmental policy
instrument types. The ministries responsible for environmental
issues--the Interior Ministry (from 1969-86) and the Environment
Ministry (since 1986)--initially showed a strong preference for
traditional environmental regulation while the Economics Ministry often
favoured voluntary agreements over state interventionist regulation. On
environmental policy issues Interior/Environmental Ministry officials
and Economics Ministry officials have often perceived themselves as
natural enemies (naturliche Feinde) (see Wurzel 2002, 2008b) which
frequently pushed for the adoption of different policy instruments. The
Interior/Environment Ministries has generally favoured traditional
regulation over voluntary agreements while the Economics Ministry has
often shown a preference for voluntary agreements over traditional
regulation.
Party political and departmental preferences are more complicated
in respect to market-based instruments. Eco-taxes have been always been
supported by the Green Party and, although to a lesser degree, the SPD.
Some prominent CDU/CSU politicians and FDP politicians have also
supported the use of eco-taxes in German and/or on EU environmental
policy. For example, Klaus Topfer (CDU), who headed the Environment
Ministry from 1987-94, strongly pushed for market-based instruments
including an ecological tax reform which, however, was resisted by
Chancellor Helmut Kohl (CDU) who preferred EU-wide eco-taxes instead.
Emissions trading in general and the EU's emission trading scheme
(EU ETS) in particular was initially strongly opposed by all German
political parties. The Green Party was first to perform a U-turn by
supporting a relatively ambitious EU ETS; it was followed somewhat
reluctantly by the other main political parties (see Wurzel 2008a).
In this article we differentiate between the following three main
types of environmental policy instruments: (1) voluntary instruments
(including voluntary agreements and eco-management and audit schemes),
(2) market-based instruments (e.g. eco-taxes and emissions trading) and
(3) regulatory instruments (i.e. regulation). Elsewhere we have provided
a more detailed explanation and justification for our relatively
parsimonious threefold typology (see Wurzel, Zito and Jordan 2013); our
typology is not entirely free of ambiguities because it can be difficult
to establish the exact demarcation between different types of policy
instruments. Due to space constraints we primarily focus on voluntary
instruments (including voluntary agreements and eco-management and audit
schemes) although reference will also be made to regulatory and
market-based instruments.
The threefold policy instrument categorisation in Table 1 resembles
similar typologies which have been put forward by, for example, Bahr
(2010) and Bemelmans-Videc, Rist and Vedung (1997) (for more details,
see Wurzel, Zito and Jordan 2013). In their influential book Carrots,
Sticks and Sermons: Policy Instruments and Their Evaluation,
Bemelmans-Videc and colleagues' focused primarily on the nature of
constraint which a particular type of policy instrument exerts within a
particular institutional and/or sectoral context: regulations
("sticks") are highly choice constraining, economic
instruments ("carrots") are moderately choice constraining and
informational instruments ("sermons") are hardly choice
constraining. Bemelmans-Videc and colleagues' threefold
classification broadly fits our threefold typology which locates
voluntary instruments at the 'soft' end and regulations at the
"hard" end of the "soft-hard" policy instrument
dimension.
In order to be able to understand fully the function of one
particular type of environmental policy instrument it is important to
assess its role within the context of the wider policy instrument tool
box that exists in a particular political system at a given point in
time (Jordan, Wurzel and Zito 2005, 2007; Wurzel, Zito and Jordan 2013).
Like all EU member states, Germany is strongly influenced by EU laws and
policies; this is the case in particular in environmental policy (e.g.
Heritier, Mingers and Knill 1996; Knill 2001; Toller 2008; Wurzel 2002,
2004). Clearly member state environmental policies no longer can be
understood without taking into account also EU environmental policy. In
order to be able to assess the roles and functions of voluntary
agreements and eco-management and audit schemes in Germany, it is
therefore important to analyse also developments at the EU level.
From Government towards Governance?
Since the 1990s there has been an upsurge in scholarly interest in
governance and its associated new modes of governance (e.g. Benz et al.
2007; Heritier and Rhodes 2011a; Heritier and Lehmkuhl 2008; Lascoumes
and Le Gales 2007; Kassim and Le Gales 2010; Kooiman 1993a, 2003; Rhodes
1996; Risse and Lehmkuhl 2007; Rosenau and Czempiel 1992). Schuppert
(2008:14) has calculated that publications on governance rose by a
factor of about 20 between 1990-2003. Although there is little agreement
about the exact meaning of the term governance, the overwhelming
majority of contemporary governance studies argues that governance is
associated with governments' declining ability to steer societal
actors in a hierarchical top-down fashion through
"command-and-control" regulation (e.g. Pierre and Peters 2000:
83-91; Genschel and Zangel 2007; Rhodes 1996; Schuppert and Zurn 2008).
The contemporary governance literature therefore differs from the
traditional literature which often treated governance and government as
synonymous terms (see Mayntz 2008: 45; Wurzel, Zito, Jordan 2013; Zurn
2008). Finer's (1970) seminal Comparative Government constitutes
one important example for the interchangeable use of the terms
governance and government. Palumbo alluded to the fact that more
recently "political analysts have all come to perceive governance
as a departure from traditional, state-centred styles of governing"
(Palumbo 2010: xiv). Much of the contemporary governance literature has
emphasized a strong dichotomy between government and governance. If the
"strong state" characterised the extreme form of government in
the era of "big government" (Pierre and Peters 2000: 25), then
the equally extreme form of governance assumes that society can no
longer be influenced, let alone steered, by top-down government
intervention (e.g. Luhmann 1984; Rhodes 1996). In other words,
traditional tools of government (i.e. 'command-and-control'
regulation) are said to have been supplanted by less interventionist and
softer modes of governance (such as voluntary agreements and
eco-management and audit schemes).
Environmental policy is a particularly suitable policy sector for a
critical analysis of the alleged rise of new modes of governance because
it has been widely perceived as inherently regulatory in nature (e.g.
Weale 1992: 154-182). Moreover, Germany has been widely characterised as
a high regulatory state (e.g. Heritier, Knill and Mingers, 1996). If new
modes of governance (such as voluntary agreements and eco-management and
audit schemes) have supplanted traditional government tools (i.e.
"command-and-control" regulation) even in German environmental
policy then this would constitute very strong empirical evidence for the
alleged shift from government towards governance.
Many governance scholars have claimed that societies in highly
developed liberal democracies are evolving from hierarchical top-down
government structures to new modes of governance which rely strongly on
self-governance by societal actors. Kooiman (2003: 45) has pointed out
that "[t]he variety of instruments used in governance is almost
unlimited and will vary from 'soft' ones such as information
and advice to 'hard' ones such as taxes and regulations".
There is no universally accepted categorisation of environmental policy
instruments although our above mentioned threefold categorisation, which
differentiates between (1) voluntary, (2) market-based and (3)
regulatory instruments, is widely accepted. Voluntary agreements and
EMAS are usually perceived as "soft" policy instruments while
traditional regulations constitute "hard" policy instruments.
Voluntary agreements and informational instruments (such as EMAS) are
relatively "soft" policy instruments because the degree of
coerciveness which they exert is low (although, as will be explained
below, voluntary agreements are often adopted in "the shadow of the
law").
Voluntary Agreements
There is a considerable degree of terminological confusion about
voluntary agreements. Faber (2001: 38-39) provides a list of more than
12 different German terms which can be found in the existing literature
on voluntary agreements including freiwillige Vereinbarungen (voluntary
agreements), Selbstverpflichtungen (self-commitments) and Absprachen
(agreements). Borkey and Leveque (1998: 4) list the following English
and French terms which have been used interchangeably for the term
voluntary agreements: "self-regulation, voluntary initiatives,
voluntary codes, environmental charters, voluntary accords,...
co-regulation, covenants, negotiated environmental agreements, accords
de branche, programme cooperative e volontari". In order to avoid
comparing apples with pears it is therefore important to use the
clearest possible definition for a policy instrument which comes in many
shapes and forms.
The OECD (1994: 4) has defined voluntary agreements very widely as
"voluntary commitments of the industry undertaken in order to
pursue actions leading to the improvement of the environment". The
EU Commission has described voluntary agreements more narrowly as
"agreements between industry and public authorities on the
achievement of environmental objectives" (CEC 1996a: 5). The
European Environmental Agency (EEA) has defined voluntary agreements
more narrowly as "covering only those commitments undertaken by
firms and sector associations, which are the result of negotiations with
public authorities and/or explicitly recognised by the authorities"
(EEA 1997a: 11). Our article relies on the EEA definition.
Table 2 lists the total number of voluntary agreements for the then
15 member states of the EU. The data in Table 2 refers to the mid-1990s
which constituted a high point in the adoption for voluntary agreements
in many EU member states. Despite some moderate discrepancies between
the data from the EEA and the Commission, it becomes clear that the
Netherlands and Germany adopted by far the largest total numbers of
domestic voluntary agreements in the EU-15 in the mid-1990s. However, if
one draws up a ranking order of voluntary agreements based on per capita
figures, then Germany ends up with approximately 1.5 voluntary
agreements--well behind Austria (8.3) and the Netherlands (6.5) (Wurzel,
Zito and Jordan 2013: 108).
A key characteristic which all German (and Austrian) voluntary
agreements share is the fact that they are legally non-binding (e.g.
Bocher and Toller 2007; Toller 2012; UBA 1999; Wurzel et al. 2003). This
stands in marked contrast to the Netherlands which, from about the early
1990s onwards, adopted primarily so-called covenants (convenants in
Dutch) which are negotiated agreements that are legally binding and, at
least theoretically, enforceable through the courts. Furthermore, unlike
the Dutch convenants most German voluntary agreements did not stipulate
requirements for monitoring by third parties although there are
important exceptions which include most of the more recent climate
change voluntary agreements.
Early Pioneer Running Out of Steam
Germany (together with the Netherlands) is one of the early
pioneers for voluntary agreements in environmental policy.
Health-related concerns about car emissions, particularly in large
cities, led the Association of the German Automobile Industry (Verband
der deutschen Automobilindustrie VDA) to propose a voluntary agreement
to reduce carbon monoxide emissions from automobiles in the early 1960s
(Wurzel 2002).
German environmental NGOs have generally been highly critical about
the use of voluntary agreements and demanded increased transparency,
better monitoring and the use of legal sanctions in cases of
non-compliance for existing voluntary agreements (e.g. Oko-Institut
1998). Other critics have asserted that voluntary agreements can lead to
collusion between industry and government, or even regulatory capture
(e.g. OECD 1999, 2003). Within the context of the cooperation principle,
Bohne and Hartkopf (1983: 114) already warned that cooperation should
not lead to collaboration between governmental and societal actor while
emphasizing that it is the state's task to protect the environment
(similar Kloepfer 2004: 198). Despite these concerns, German
environmental policy witnessed a surge in voluntary agreements in the
early 1990s. One important reason for the steep rise of voluntary
agreements was the fact that a Centre-Right (CDU/CSUFDP) government
adopted a coalition agreement in 1992 which gave preference to voluntary
agreements over regulation (UBA 1999: 30; see also the contribution by
Toller in this issue). A Red-Green SPD-Greens Party coalition
government, elected in 1998, showed strong scepticism to voluntary
agreements. Initially it accepted a relatively diverse range of
voluntary agreements including the renewal of a revised climate change
voluntary agreement in 2000. However, Environment Minister Jurgen
Trittin (Green Party), who headed the Environment Ministry from
1997-2005, showed little enthusiasm for voluntary agreements and
preferred instead either regulation or market-based instruments.
Importantly, the return of another Centre-Right (CDU/CSU-FDP)
coalition government in 2009 did not lead to a revival of voluntary
agreements in Germany. Industry still favours voluntary agreements while
environmental NGOs remain opposed. There are multifaceted reasons for
why voluntary agreements have gone out of fashion in Germany (for more
details see the Toller contribution in this issue). One important reason
is the adoption of the domestic ecological tax reform (Okosteuerreform)
in 1999 and the setting up of the EU ETS, which covers most industrial
sources for carbon dioxide emissions, in 2003. The ecological tax reform
and the EU ETS have left little room for German voluntary agreements in
climate change policy, which used to be a particularly dynamic
sub-sector for the adoption voluntary agreements.
German voluntary agreements often govern products; they have been
frequently used in the energy and waste sectors. Normally industry
agrees voluntarily the phasing out of certain pollutants and/or the
reduction in energy use in order to pre-empt government regulation. Many
of the voluntary agreements in the transport sector either stipulated
goals that were more ambitious than existing EU laws or focused on the
early compliance with EU environmental standards such as the
introduction of unleaded petrol and low sulphur petrol ahead of the
designated deadline.
The publicly most well-known voluntary agreements concern the
reduction of greenhouse gas emissions. The Federal Association for
German Industry (Bundesverband fur deutsche Industrie--BDI) and sectoral
industry umbrella groups agreed climate change voluntary agreements with
the federal government in 1995, 1996 and 2000. However, the 1995
voluntary agreement was widely seen as vague and lacking in ambition. It
was therefore supplemented by another, more ambitious, voluntary
agreement in 1996 which in turn was updated in 2000. The climate change
voluntary agreements have been frequently cited by industry as evidence
that voluntary agreements could work even when they involve a large
number of actors and complex policy problems. The climate change
voluntary agreements were put forward not only to avoid government
regulation (i.e. in "the shadow of the law") but also to
escape significant eco-taxes. The public visibility of the voluntary
climate agreements at a time of high public environmental awareness
prevented industry from withdrawing from the voluntary climate
agreements when the Red-Green (SPD-Green Party) coalition government
adopted an ecological tax reform in 1999.
The interest in voluntary agreements extended beyond the federal
level as can be seen from the fact that the states (Lander) also adopted
a substantial number of this policy instrument. The Bavarian
environmental pact (Umweltpakt Bayern) is one of the most notable Land
voluntary agreements. It consists of several voluntary agreements which
were negotiated by the Bavarian state government and the regional
industry umbrella organizations (UBA 1999). The Bavarian Prime Minister,
Edmund Stoiber, highlighted the Bavarian pact as a model for the rest of
Germany during his unsuccessful bid to become German chancellor in 2002
(ENDS Daily 29.7.2002).
Industry generally views voluntary agreements as a viable
alternative to traditional regulation while Environment Ministry and
Federal Environment Agency (Umweltbundesamt--UBA) officials tend to
perceive them at best as supplementary tools. In Germany there is a long
tradition of state-society agreements which, as was mentioned already
above, fit under the rubric of "regulated self-regulation"
(Paterson 1989: 284). The number of environmental voluntary agreements
adopted in Germany slowed down drastically in the early 2000s. One
Environment Agency official (Interview 2010) even argued that
"something like a roll back of voluntary agreements" had
occurred since the late 1990s. Voluntary agreements have not completely
disappeared from the German environmental policy toolbox although their
adoption rate has slowed down drastically.
Importantly, as one senior German Environment Ministry official
explained (Interview 2008), there has also been a change in the nature
of the voluntary agreements adopted in the 2000s. The sparse number of
newly adopted German voluntary agreements relate in particular to large
public events such as the football World Cup in 2006 and Church
conventions (Kirchentage). The main goal of these new sub-types of
voluntary agreement is the "greening of events" (Interview
2008) rather than the reduction or phasing out of harmful substances
which was the classic goal of traditional voluntary agreements.
The European Union's Inability to Make Wide Use of Voluntary
Agreements
The EU seriously considered the adoption of voluntary agreements
only from the late 1980s onwards; by the 1990s increased demands for
less EU legislation were driven by debates about the principle of
subsidiarity and increased competition resulting from globalisation
(Holzinger, Knill and Schafer 2006; Kramer 2001: 80). Moreover, the
emergence of new policy problems (e.g. climate change) and paradigms
(e.g. sustainable development) did not lend themselves easily to
traditional regulatory solutions which made voluntary agreements more
attractive as possible policy instrument within the EU's
environmental policy toolbox (Mol, Lauber and Liefferink 2000; Jordan,
Wurzel and Zito 2003).
In 1996, the Commission declared a desire to promote
"effective and acceptable" voluntary agreements as a means of
supplementing traditional regulation (CEC 1996). However, the
Commission's 2002 Communication toned down this ambition when
stating that "the European Commission intends to recognise and make
use of environmental agreements at Community level [merely] on a
selective case-by-case basis. Since the instrument will not necessarily
be the most appropriate in all circumstances" (CEC 2002b: 13).
The voluntary agreements by the European, Japanese and Korean
automobile industries to reduce carbon dioxide (C[O.sub.2]) emissions
from passenger cars constitutes the most important and well known
EU-wide voluntary agreement. In 1999, the association of the European
automobile industry (ACEA) and the European Commission agreed a
voluntary agreement on the reduction of C[O.sub.2] emissions from
passenger cars after arduous negotiations (Interview, Commission
officials, 2002; EEB 2000). The Commission kept the Environmental
Council and the EP, which had demanded ambitious targets, informed about
the negotiations. The voluntary agreement set a C[O.sub.2] emission
reduction target of 140g/km (which amounted to a reduction of
approximately 25 per cent) by 2008. Environmental groups criticised what
they regarded as an unambitious reduction target (EEB 2000; Taschner
1998). In 2000, the Japanese and Korean automobile industry associations
(JAMA and KAMA respectively) put forward a voluntary agreement which
used the same reduction target by 2009.
However, in 2007 the Commission concluded that "the voluntary
approach has delivered a solid C[O.sub.2] reduction but has not been as
successful as hoped. Given the slower than expected progress to date,
the 120g C[O.sub.2]/km target will not be met by 2012 without additional
measures" (CEC 2007a). The Commission therefore proposed binding EU
legislation for a cut of C[O.sub.2] emissions from new passenger cars to
120g C[O.sub.2]/km by 2015 which was later adopted by the EU and Council
(Council of the European Union 2009b). Following fierce lobbying by the
European car industry in general and the German car industry in
particular, the German Chancellor, Angela Merkel, and the French
President, Nicolas Sarkozy, secured more flexible implementation rules
and less severe fines in cases of non-implementation than the Commission
had proposed (e.g. Suddeutsche Zeitung 17.5.2010).
Between 1998 and 2004, only two EU-wide voluntary agreements were
adopted in addition to the voluntary agreement on C[O.sub.2] emissions
with the automobile industry. By 2011 there were only 14 EU-wide
voluntary agreements. German voluntary agreements were therefore not
replaced to any significant degree by EU-wide voluntary agreements.
Legitimacy, transparency and free rider concerns explain why the
uptake of voluntary agreement has remained extremely low on the EU
level. Voluntary agreements have to be adopted outside the formal EU
decisionmaking procedures and thus leave the Council and in particular
the EP on the sidelines. The EP repeatedly criticised the
Commission's desire to increase the usage of EU-wide voluntary
agreements which have also been opposed by environmental groups (EEB
2000; Taschner 1998). Importantly, European industry has largely failed
to accept the Commission's repeated invitations to negotiate
EU-wide voluntary agreements.
Concerns about free-riders, who may gain a competitive advantage
within the Single European Market by failing to implement voluntary
agreements, transparency issues and the incompatibility of competing
national models such as non-binding German (and Austrian) voluntary
agreements and legally binding Dutch covenants--have greatly inhibited
efforts by in particular the European Commission to increase EU-wide
voluntary agreements.
Voluntary agreements have not been thrown out altogether from the
EU's policy instrument tool box. However, since the 2000s,
voluntary agreements and EMAS constitute the 'third pillar'
for altering societal behaviour (CEC 2007a) rather than an alternative
to traditional regulation (and market-based instruments).
Environmental Management Schemes
The idea for EMAS originates from the US in the 1970s. In the
1980s, corporate interest in auditing spread to Europe, facilitated by
the International Chamber of Commerce (Malek and Toller 2001: 43). The
EU's EMAS defines eco-management and audit as 'that part of
the overall management system which includes the organizational
structure, responsibilities, practices, processes and resources for
determining and implementing the environmental policy' (Council of
the European Communities 1993: 2). The EMAS expects participant
organisations constantly to review their environmental impact, create a
management system that is accredited by independent environment
verifiers, and carry out regular audits (CEC 2001a; Malek and Toller
2001). The EMAS (EMAS I) originally came into force in 1995; it has been
revised in 2001 (EMAS II) and 2010 (EMAS III).
The EU's EMAS and the ISO 14001 standard aim to encourage
industry to adopt procedures and processes for reviewing their
environmental impact. Although their specific requirements differ, EMAS
and ISO 14001 both oblige companies to audit the environmental impact of
their activities, establish internal environmental monitoring schemes
and reduce the negative environmental impact of their activities.
Companies registered for EMAS and/or ISO 14001 must provide regular
public environmental audit and management statements which they then can
use in their public relations material. For reasons which will be
explained below, EMAS III incorporated parts of the ISO 14001
requirements to make EMAS more attractive especially for companies which
operate globally. EMAS is not widely known outside Europe while ISO
14001 is a globally recognised standard which is used in more than 150
countries (with China, which also has a few EMAS registrations, having
by far the largest total number of ISO 14001 registrations).
Although the EU's EMAS and the ISO's 14001 are voluntary
policy instruments, market and public pressure may push corporate actors
to participate to avoid losing out to competitors. However, for this to
happen EMAS needs to be recognised widely by corporations and the
general public. The EU regulations establishing EMAS require member
states to publicise the scheme and to educate the public about it.
However, these requirements have remained very vague. After the revision
of EMAS I in 2001, the German government spent significant resources to
promote EMAS II. Notable German personalities from politics (including
the Environment Minister, Economics Minister, President of the UBA and
the President of the EP to name only a few) and other walks of life
endorsed EMAS on the website of the German EMAS Advisory Board
(Umweltgutachterausschufi UGA) (UGA 2007).
During the EU negotiations which led to the adoption of EMAS I,
Germany was initially opposed to the scheme. One reason was that EMAS I
reflected core characteristics of the British Standard (BS) 7750,
although it also incorporated proposals from other member states
including Germany. Compared to BS 7750, EMAS I had, however stronger
requirements to reduce continually the environmental impact and demanded
a wider range of information about the environmental performance (Wenk
1995: 6-7).
The German government initially opposed the adoption of EMAS I in
the Council of Ministers. German officials insisted that substantive
measures of environmental performance had to be written into the EMAS
regulation. Environment Ministry and UBA officials were concerned that
procedural EU environmental measures (such as EMAS) might lead to a
watering down of German substantive standards which were derived from
the BAT principle. When faced with the growing support from other member
states for EMAS, Germany held out for the principle of economic viable
application of best available technology (a somewhat weakened form of
BAT), which became part of the ultimate compromise (Taschner 1998: 220).
German policy-makers and corporations were even more critical of
the US influence on the international standard being created in the ISO.
They saw the resulting ISO 14001 standard as far too lenient (Taschner
1998: 222; Zito and Egan 1998). Compared to EMAS I, ISO 14001 was
clearly less demanding in terms of its requirements for environmental
statements and performance improvements (Interviews 2008; Taschner
1998).
Despite the German government's initially strong resistance
during the EMAS I adoption phase, German companies (together with
Austrian companies) soon recorded the highest number of EMAS
registrations. The implementation of EMAS I caused a heated debate in
Germany about who should be responsible for accrediting the third party
auditors and the registration of firms. Given the scheme's
voluntary nature, industrial associations resisted having the UBA act in
both of these roles (Malek et al. 2001: 107-108). In 1995 both sides
finally agreed that the regional chambers of commerce (Industrie--und
Handelskammern) would serve as a registration body and the German
Accreditation and Admission Association (Deutsche Akkreditierungs--und
Zulassungsgesellschaft fur Umweltgutachter GmbH--DAU), which is owned by
the industry associations but overseen by a mixture of stakeholders
(including NGOs, trade unions and government), would accredit the
auditors. This compromise enshrined the role of industry associations to
implement EMAS.
In 2001, the EU revised EMAS I to (1) widen its scope; (2) address
significant indirect environmental effects; (3) put greater emphasis on
public reporting; and, (4) adopt a new logo (Haigh 2012). EMAS II
reflected the fierce competition which ISO 14001 increasingly posed to
the EU's eco-management and audit system. One core aim of the 2001
revision was to make EMAS II more easily compatible with the ISO 14001
without, however, watering down its more stringent requirements. The
2001 revision, which became operational in 2004, made it possible for
public organisations (in addition to private actors) to participate in
EMAS. In Germany, the UBA became the first public authority to register
for EMAS. Nowadays most federal ministries and agencies as well as many
state (Lander) ministries and agencies are registered for EMAS.
In 1997, a Commission Decision (97/265/EC) had already formally
recognized the ISO's 14001 as fulfilling part of the EMAS
requirements for industrial sites. This recognition, together with the
2001 revision, temporarily breathed new life into the EU's
eco-management and audit system. Although the EU and the German
government, amongst other member governments, promoted the fact that
EMAS I and II were more environmentally ambitious, ISO 14001 continued
to outstrip EMAS even in Europe. This can be seen from Table 3 which
charts the uptake of EMAS certifications compared to ISO 14001
certifications in Germany and the EU as a whole.
Table 4 shows that Germany had the highest total number of EMAS
registrations out of all EU member states. However, it ranked only at
number four as regards the number of EMAS registered organisations per
inhabitants.
Importantly ISO 14001 remained accepted as partial fulfilment of
EMAS III. The so-called EN ISO 14001: 2004 environmental management
system requirements are an integral part of EMAS III (Annex II of EMAS
III). EMAS requires a verification of the environmental management
scheme, continuous improvement of environmental performance and public
reporting as well as participation. For the European Commission and
other supporters of EMAS, ISO 14001 has been seen as a possible stepping
stone for EMAS. However, in practice an increasing number of European
corporations have migrated from the environmentally more ambitious EMAS
to the environmentally less demanding ISO 14001 scheme; this trend is
also discernible in Germany. The decline in EMAS registrations by
corporate actors has not been compensated for by large government
organisations (e.g. ministries and agencies) and other public actors
(such as church organisations) starting to register for EMAS as soon as
it was opened to public actors.
As can be seen from Table 3, in 1997 518 German companies had
registered for EMAS; eight years later there were almost 2,000 sites in
Germany registered with EMAS. There was therefore almost a fourfold
increase in EMAS registrations in Germany between 1997 and 2005. In 1997
more than five times as many organisations had registered for EMAS
compared to ISO 14001. However, by 2013 merely 1,286 sites were
registered for EMAS in Germany. This constitutes a decline of 617 sites
between 2007 and 2013.
The main reason for the decline of EMAS registrations in Germany is
that corporations increasingly adopted the ISO 14001 scheme instead of
EMAS. Over time an increasing number of corporations in Germany and
other member states have shown a clear preference for ISO 14001 over
EMAS, leading the Commission to contemplate means of boosting incentives
and allowing non-EU or EU-associated organisations to join. By 2005, the
ISO's 14,001 certifications substantially outstripped EMAS
registrations in Germany and Austria which have had the highest number
of registrations since EMAS I became operational in 1995.
Neither the two revisions to EMAS I nor the above mentioned public
relations campaigns have been able to stem the trend that corporate
actors leave the more ambitious EMAS for less demanding but globally
more widely recognised ISO 14001. The fact that large public actors
(such as ministries, agencies and the churches) have increasingly used
EMAS has not compensated for the haemorrhage caused to the scheme by
corporate actors deserting it for ISO 14001. Importantly the German
federal government has amended important existing environmental
legislation (such as the Federal Air Quality
Ordinance--Bundes-Immissionsschutzgesetz--BimSchG) to allow for lighter
touch implementation and monitoring by state (Lander) authorities for
EMAS registered corporations (UGA 2012). However, many Lander
governments have failed to make use of it in practice because they do
not trust EMAS or do not want to transfer state competences to
independent environmental verifiers (Interview 2013).
Voluntary agreements and EMAS as analytical touchstones for the
putative shift from government towards governance
As was shown above, no full scale replacement of traditional
regulation with voluntary agreements and EMAS took place in either
Germany or on the EU level. Instead, traditional tools of government
(i.e. regulations) have been supplemented rather than supplanted with
new modes of governance (e.g. voluntary agreements and EMAS).
Importantly, voluntary agreements have usually been adopted only in the
"shadow of the law" or the "shadow of hierarchy" in
Germany. Because it had failed to achieve its objectives, the EU's
flagship voluntary agreement on the reduction of carbon dioxide
emissions from cars was supplanted by EU regulation in 2009. The
adoption of voluntary agreements ran out of steam in Germany in the late
1990s and failed to take off in the EU.
Equally significant, EMAS has been combined with traditional
regulation and market-based instruments in Germany where light touch
inspection regimes and/or reduced eco-tax charges were granted to those
EMAS registered firms which adopted energy management plans to reduce
their energy consumption. One of the drivers for this combination of
different types of policy instruments (i.e. EMAS, regulatory tools and
eco-taxes), if
not fusion, was the attempt to stem the haemorrhage of EMAS
registrations to ISO 14001, which is an environmentally less ambitious
eco-audit and management scheme. Nevertheless, since at least the early
2000s EMAS has been increasingly supplemented, if not supplanted, by
such an even "softer" policy instrument (i.e. ISO 14001
registrations) while voluntary agreements have been replaced by
traditional regulation and/or market-based instruments. In order to
arrive at a more fine-grained analysis of the interaction between
"soft" and "hard" policy instruments and underlying
government-governance dynamics, it is useful to make use of the
institutionalist explanation of change offered by Streeck and Thelen
(2005). They have identified the following five analytical categories
for assessing gradual transformative institutional change: (1)
displacement (i.e. slowly rising salience of subordinate change relative
to dominant institutions); (2) layering (i.e. new policy elements are
attached to existing institutions, gradually changing their status and
structure); (3) drift (i.e. neglect of institutional maintenance
resulting in slippage in institutional practice on the ground); (4)
conversion (i.e. the utilization of old institutions to new purposes);
and (5) exhaustion (gradual erosion of institutions over time). We argue
that these five analytical categories for institutional change can also
be used to highlight policy instrument development over time.
Neither voluntary agreements nor EMAS have permanently displaced
traditional regulation. Instead, there has been a layering of these soft
policy instruments with other policy instruments from the existing
policy instrument toolboxes in both Germany and the EU where traditional
regulation has remained dominant. Significantly, displacement seems to
have occurred with regard to the EMAS which has been deserted by
corporate actors in favour of the ISO14001. Policy instrument exhaustion
has affected voluntary agreements in Germany, but interestingly not
regulation. The adoption rate of voluntary agreements has been in steep
decline in Germany since the late 1990s, suggesting a considerable
degree of drift or even exhaustion. The introduction of the ecological
tax reform in Germany and the ETS at the EU level rendered obsolete the
various climate change voluntary agreements which German industry had
put forward. The adoption of these market-based instruments greatly
constrained the adoption of new voluntary instruments in German climate
change policy.
Our empirical findings suggest that a layering of existing policy
instruments (or instrument mixes) is the most likely form of incremental
transformational policy instrument change that has taken place in German
environmental policy since the early 1970s. In this context it is
interesting to know that, in the late 1990s, the European Commission
seriously considered the possibility of merging the EMAS with the
flagging European eco-label scheme which we have not been able to
discuss in this article (see Wurzel, Zito and Jordan 2013). To a much
lesser extent, conversion (i.e. the redeployment of "old"
policy instruments to new purposes) also took place when traditional
regulations supplanted voluntary agreements (as was the case for the
reduction voluntary agreement for C[O.sub.2] emissions from cars which
was replaced by EU legislation in 2009).
The big challenge confronting policy makers is to produce policy
instrument mixes which simultaneously solve environmental problems while
being conducive to economic development and fitting the institutional
context of the wider political system (Rengeling and Hof 2001).
Elsewhere we have tried to explain the significant transformation of
both traditional regulatory instruments and "new" policy
instruments in the environmental policy sector in different European
countries and at the EU level (see Wurzel, Zito and Jordan 2013).
Conclusion
If voluntary agreements and EMAS constitute analytical touchstones
for governance, then there appears to have been no wholesale uniform
shift from government to governance in Germany. In the 1990s, almost
two-thirds of all EU-wide voluntary agreements adopted in the EU could
be found in Germany and the Netherlands (CEC 2002; Wurzel, Zito and
Jordan, 2013). However, since the early 2000s, the enthusiasm for
voluntary agreements has decreased drastically in Germany (see also the
contribution by Toller in this volume; Wurzel, Zito and Jordan 2013).
The use of voluntary agreements theoretically provides an empirical
example of the putative shift from government towards governance.
However, voluntary agreements have not replaced traditional regulation
in Germany. Indeed, the strong regulatory framework found in Germany
(and Austria) is essential to understanding the relatively high adoption
rate of voluntary agreements until the late 1990s. In Germany,
governments have frequently announced their intention to adopt
regulation as threat inducements towards targeted corporate actors which
subsequently offered voluntary agreements to pre-empt legislation. In
other words, German (and Austrian) voluntary agreements have often been
adopted in the "shadow of the law" or "shadow of
hierarchy". As was mentioned above, the governance hypothesis would
expect a replacement process to occur in which voluntary instruments
take on a more important role in the environmental sector. However, this
article has detailed significant constraints which have prevented the
wider adoption of voluntary agreements which has come to a halt in
Germany and never really took off on the EU level.
The institutional context explains differences in approach to
voluntary agreement design and usage, but not always to the uptake in
the first place. The consensus-based policy style found in Germany
partly helps to explain the move towards voluntary agreements. In
Germany (and Austria), constitutional constraints prevented the adoption
of legally binding voluntary agreements such as the Dutch covenants.
Changes in government coalitions have also had an important impact
on the adoption of voluntary agreements. Centre-Right coalition
governments in Germany (as well as in Austria and the Netherlands)
perceived voluntary agreements as attractive tools to respond to
increased competition from the Single European Market and globalisation
(see Wurzel, Zito and Jordan 2013). Centre-Left/Green coalition
governments were less enthusiastic about voluntary agreements. The role
of political parties in government tends to get little attention in the
policy instrument literature although there are notable exceptions (e.g.
Mol, Lauber and Liefferink 2000; see also the contribution by Toller in
this issue). The degree to which the selection of policy instruments by
member states and the EU is constrained by global developments (such as
the adoption of the Kyoto Protocol) would also deserve greater scholarly
attention.
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Rudiger K.W. Wurzel, University of Hull
Anthony Zito, Newcastle University
Andrew Jordan, University of East Anglia
(1) This article is based on research which was carried out for a
much larger project on new environmental policy instruments (NEPIs) in
Germany, Austria, the Netherlands, United Kingdom and European Union for
which we initially received funding from the Economic and Social
Research Council (ESRC) (grant number L216252013). Additional research
was subsequently undertaken in Germany with the help of grants from the
Anglo-German Foundation (project number 1493) and the British Academy
(reference number SG-46048). Interviews were carried out with a wide
range of governmental and societal actors in Germany (as well as in
Austria, the Netherlands, United Kingdom and in Brussels) between
2001-12.
Table 1: Environmental policy instrument types
Types of environmental policy Important examples
instrument
(1) Voluntary instruments Voluntary agreements and
eco-management and audit schemes
(2) Market-based instruments Eco-taxes and emissions trading
schemes
(3) Regulatory instruments Regulation (including traditional
'command-and-control' regulation and
innovative smart regulation)
Table 2: Voluntary Agreements in the European Union's Member
States in the Mid-1990s
Member states Number of VAs according Number of VAs according
to the EEA to the Commission
Netherlands 107 >100
Germany 93 c.80
Austria 20 25
Denmark 16 16
Italy 11 11
Portugal 10 10
Sweden 11 13
United Kingdom 9 8
France 8 n/a
Greece 7 0
Belgium 6 14
Spain 6 6
Luxembourg 5 5
Finland 2 >2
Ireland 1 1
Total for EU-15 312 >234
EU-wide VAs n/a 12
Sources: Adapted from EEA (1997: 25-36), CEC (1996: 23-30) and
Wurzel, Zito and Jordan (2013: 108).
Table 3: Organisations Registered with EMAS Compared to ISO 14001
Certifications
EMAS ISO EMAS ISO EMAS ISO
1997 1997 2005 2005 2010 2010
No. No. of No. No. of No. of No. of
of org. org. of org. org. org. org.
Germany 518 100 2,049 4,440 1,408 6,001
EU total n/a n/a 3,093 19,998 4,347 45,946 (*)
(*) The figure refers to 2007.
Table 4: Top Five Member States for EMAS Uptake in 2010
Total number of EMAS registered Number of EMAS registered
organisations in 2010 organisations per million
inhabitants in 2010
(1) Germany: 1,408 (1) Denmark: 42.9
(2) Spain: 1,227 (2) Austria: 30.48
(3) Italy: 1,025 (3) Spain: 25.1
(4) Austria: 250 (4) Germany: 16.91
(5) Denmark: 91 (5) Italy; 16.3
Source: Adapted from /ec.europa.eu/environment/emas/documents/
articles_en.htm (accessed 22.4.2013) and Wurzel, Zito and
Jordan (2013).
