Private Control of Public Regulation: A Smart Mix? The Case of Greenhouse Gas Emission Reductions in the EU
J. van Erp, M. Faure, M. Müller, A. Nollkaemper and N. Philipsen (eds.), Smart Mixes of Environmental Governance, Cambridge University Press, 2018.
33 Pages Posted: 15 Mar 2018 Last revised: 1 Dec 2018
Date Written: December 12, 2017
This paper discusses from a legal perspective the role of private actors for controlling compliance with public law greenhouse emission reduction obligations. Compliance is generally the Achilles heel of environmental law. Traditionally, the governments set standards and control compliance. Within the EU, however, the EU legislator is experimenting with involving self-control and verification procedures in view of determining compliance by industries with public law regulations. It does so by introducing in its regulation a mix of governmental and private action in view of effectively reducing greenhouse gas emissions. Moreover, in EU law, the public is given wide access to environmental information held by the government, which may also be beneficial, or at least to some extent helpful, for controlling compliance with set rules. In other words, civil society has some means to control governmental action, and, in this vein, the question arises to what extent these rules also apply to information held by the verifier.
The ultimate aim of the contribution is to answer the question of how the (experimental) mix of governmental and private action for regulating the reduction of greenhouse gas emissions is designed in view of enabling transparency that is seen as a crucial element for reaching effectiveness: to what extent can civil society know about how industries are regulated and controlled, also in view of the fact that private actors (verifiers) have got the task to check compliance? This issue of transparency is chosen since, generally, public control (particularly action by Environmental NGO’s) is seen as an effective tool to stimulate ambitious environmental regulatory action (although in this respect, also more research needs to be done on the effectiveness and legitimacy of ENGO action). The concluding section will summarize the findings by pointing at potential problems with transparency caused by the choice of using private actors for checking compliance with public standards.
Keywords: Access to environmental information, compliance, verification, emissions trading, private actors, ENGOs, greenhouse gas emissions
JEL Classification: K3, K32
Suggested Citation: Suggested Citation