Unpacking the Toolbox: Or Why the Public/Private Divide is Important in EC Environmental Law

Abstract

This paper is a critique of the "new" approach in EC environmental law and policy. That approach conceptualizes EC environmental law as a "toolbox" full of regulatory instruments that are designed to achieve the preordained goal of environmental protection in the most efficient and effective way possible. While the "toolbox" discourse has many features, one of its most important is that it promotes the idea that private actors, private law and market mechanisms should have a central role to play in environmental regulation. This paper unpacks three different aspects of the "toolbox" to illustrate that it is far more complex and problematic than the present discourse suggests. First, the reasons for its promotion are diverse, often contradictory and relate to theories of governance not easily reconcilable. Second, the toolbox discourse underestimates: the physical and socio-political complexity of environmental problems; the problems created by scientific uncertainty; and the difficulties involved in reaching consensus. Finally, the toolbox discourse largely ignores the public law nature of many environmental problems. EC environmental law, rather than being understood as a "toolbox", should be understood in terms of administrative constitutionalism.