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Subsidiarity as a scaling device in global environmental

governance? Lesson drawing from EU policy making

David Benson1, Andrew Jordan2 and Irene Lorenzoni2

Abstract

Global governance entails normative and practical judgements over the appropriate level of

action in response to complex, cross scale problems. In this respect, the federal principle of

subsidiarity (Jordan and Jeppesen 2000; Benson and Jordan 2008a, 2011a, 2014a,b) could

provide an effective ‘scaling device’ in determining task allocation between institutional

levels, particularly the national and international. On this basis, subsidiarity could

theoretically help diffuse inter-state sovereignty conflicts surrounding, for example, the

current impasse in global climate governance. Yet on further analysis, historical evidence

from one leading multi-lateral institutional context – namely the European Union - suggests

that the use of subsidiarity for this purpose provides a caveat emptor for effective

environmental governance at the global level. While subsidiarity, in the EU context, legally

dictates that action be taken at the lowest appropriate level (Benson and Jordan 2014b), in

reality environmental policy tasks have become progressively, and sometimes contentiously,

concentrated within European institutions (see Jordan et al. 2010). This process both

underlines the conceptual malleability of the EU’s subsidiarity principle and its irreducibly

normative characteristics (Benson and Jordan 2014b). In terms of ‘lesson drawing’ (Benson

and Jordan 2011b) for global environmental governance, we therefore seek guidance from

alternative federal theoretical arguments to suggest that subsidiarity could nonetheless

provide a principled means of mediating inter-state conflict. Rather than an essentially ‘zero-

sum’ conception of task allocation, as is evident in EU constitutional frameworks, our

analysis indicates that subsidiarity could be re-interpreted for the international context to

guide more flexible, cooperative forms of functional task-sharing between levels (Benson and

Jordan 2011a); thereby partly addressing national sovereignty concerns.

1 Environment and Sustainability Institute and the Department of Politics, University of Exeter. 2 School of Environmental Sciences, University of East Anglia.

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1. Introduction

Global governance, by its very nature, entails both normative and practical judgements over

the appropriate institutional level (or ‘scale’) of action in response to complex, transnational

problems. Multiple conflicts are historically evident in the development of global governance

over the appropriateness and effectiveness of international level interventions in areas of

perceived national state sovereignty. For example, international relations authors write of the

inherent global ‘security dilemma’ in the international system caused by the lack of effective

supranational authorities, thereby forcing states to compete for power and reducing the scope

for cooperation on security issues (Rittberger et al. 2012: 16). This global collective action

problem is evident in many other areas of contemporary concern such as international

banking crises, corporate tax evasion, illegal migration and organised crime. Paradoxically

and somewhat ironically, in such situations where states resist the global re-scaling of

sovereign powers, their (sovereign) ability to act against these destabilising threats to their

authority is diminished due to the transboundary nature of these processes. This powerful

contradiction, what might be termed the cooperation dilemma, is also evident in another high

profile area of global governance, namely the environment.

Multiple conflicts have ensued over the need for, and practical implementation thereby, of

global interventions on the environment. As we go on to discuss below, the rationale for

global environmental governance is well established, with international level ‘regime’3

development dating back many decades. But while there are some examples of effective

global environmental regimes, such as the 1987 Montreal Protocol on reducing atmospheric

ozone damaging chemicals4, that have secured the cooperation of states, others have proved

the focus of conflict and/or entail ineffective implementation. Most notable examples of the

latter include the suite of major environmental regimes that emanated from the United

Nation’s 1992 Rio Earth Summit, which featured agreements on preventing biodiversity loss,

water resource degradation, desertification and deforestation (see Sands and Peel 2012).

Perhaps the most high profile exemplar concerns negotiations on the UN Framework

Convention on Climate Change Kyoto Protocol, which has witnessed acrimonious

3 Here we refer to the work of Krasner (1983: 1) who defines a regime as ‘principles, norms, rules, and decision-

making procedures around which actor expectations converge in a given-issue area’. 4 The Protocol is attached to the 1985 Vienna Convention for the Protection of the Ozone Layer. It obliges the

global phase out of CFC chemicals that damage the atmospheric ozone layer. To this extent, it has proved successful in reducing CFC usage, although other ozone damaging chemicals are still in use globally.

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disagreements between states over responsibilities for greenhouse gas emissions reductions.

The result of such conflict has been institutional breakdown within global environmental

governance, poor implementation and little effective resolution of these significant threats to

sustainable development. We might then ask what is the appropriate scale of action in

response to such problems and how might associated sovereignty issues be overcome?

Little normative guidance is seemingly provided by traditional International Relations (IR)

theory to the ‘appropriateness’ question. For their part, IR theorists have mainly been

concerned with understanding the scope for cooperation when debating regime formation

(Baldwin 1993; Hasenclever et al. 1997). Realists argue that the anarchic nature of the

international system structures states to compete to maximise their power (for example,

Waltz 1979). On this view, international regimes are difficult to formulate since self-

maximising states are concerned only with the relative gains derived from cooperation,

making agreement problematic. The issue of the appropriateness of acting at specific scales is

not readily addressed since, by default, realism would automatically prioritise – or at least

predict - action at the national scale unless certain powerful or hegemonic states force

cooperation5. Neoliberal theorists meanwhile suggest that rational state self-interest under

conditions of international anarchy can be overcome through the establishment of strong,

cooperative institutions (regimes) that increase trust and transparency (for example, Keohane

1993; Keohane and Nye 1977). Although the exponential growth in international regimes in

the past few decades would support this view, such a focus on cooperation within

institutional formation arguably tells us little about how regimes should allocate powers in

respect of these institutions. Indeed, one evident feature of mainstream IR theory generally is

that it is primarily focused on empirically analysing how power is exercised within the state-

led international system not the appropriate scale at which it should normatively be situated.

That said, some scholars have examined the notion of scale within global environmental

governance. For one, O’Neill (2009) examines the effectiveness of international scale

environmental governance, providing indicative criteria for measuring its success. Drawing

on conceptual arguments originally developed in political geography, some authors have also

normatively argued that the scale of institutions must provide coherent ‘fit’ with the extent of

environmental problems to be effective (Young 2002; see also Gupta 2008). In this respect,

5 For example, Mearsheimer (2001).

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essentially ‘global’ problems should - logically - be addressed through global level

institutional solutions, while ‘national’ scale problems with limited transboundary impacts

should be reserved for state government action. Environmental problems, however, rarely

conform to such neat delineations, making such simplistic interpretations of scale misleading

(Benson and Jordan 2014a). For example, climate change is evidently a global scale problem,

normatively requiring global institutions for governing responses, but the sources of climate

emissions are simultaneously international, national, regional, local and individual,

suggesting ultimate responsibility for reducing them should in some way be shared. New

ways of analysing scale within global environmental governance are therefore required that

reflect this complexity but also embed notions of justice and equity.

Another means of addressing this situation could then be to draw on federalism theory and

more specifically the federal principle of subsidiarity, since it explicitly (and normatively)

determines the appropriate and effective divisions of powers within multiple levels of

governance (Follesdal 1998). Federalism is both a means of sharing powers between groups

or jurisdictions in multi-level systems of governance6 and also a theoretical approach for

normatively determining such allocations (Benson and Jordan 2008a; 2014). Multiple federal

theories abound (see Karmis and Norman 2005; Burgess 2006), each with their own distinct

perspective on multi-level power sharing but a critical commonality to all is the principle of

subsidiarity, which determines where power should be located, i.e. a ‘scaling device’. While

philosophical notions of federal power sharing are as old as history, the first elaboration of

subsidiarity is generally regarded to have been forwarded by Johannes Althusius in Politica

Methodice Digesta (1614). Here, subsidiarity was conceived in terms of sovereignty vested in

lower levels or federal ‘sub units’ rather than centralised authorities, providing a presumption

for decision-making at these levels (Follesdal 1998: 200-201). In contrast, Christian

Democratic Ideology (Van Kersbergen and Verbeek 1994) or Catholic Personalism (Follesdal

1998) provides a different view of state-society relations. Under such arguments, state

intervention is ‘justified only when the public good is threatened’ (Van Kersbergen and

Verbeek 1994: 223): hence providing conditions under which central scaling of powers is

warranted. Consequently, two significant interpretations of subsidiarity are evident, one

providing an emphasis on lower level scaling, the other allowing centralisation under specific

circumstances.

6 Different definitions of federalism are evident but generally it is understood to involve shared powers, at the federal level, combined with devolved powers in federal sub-units (Elazar 1987, Burgess 2005).

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Subsidiarity has since, most (in)famously, been employed as a scaling device within the

European Union (EU) multi-level governance system and, theoretically, has specific

applications to environmental governance due to the inherently cross-scale or transboundary

nature of such problems (Golub 1996; Jordan and Jeppesen 2000; Benson and Jordan 2008a,

2011a, 2014a,b). As discussed below, it was precisely these characteristics that led the EU to

originally adopt subsidiarity as a key constitutional-legal principle for determining first the

extent of its environmental competences and then EU powers more generally. Despite

ongoing state-level challenges to the deployment of subsidiarity by EU institutions, it

nonetheless still remains the main de jure legal mechanism for this purpose (Benson and

Jordan 2008a; 2014a,b). In addition, over this period the EU has assembled an innovative

environmental acquis communautaire that coordinates policy for 28 Member States and

provides potential lessons for other political systems (Jordan and Adelle 2012). On this basis,

subsidiarity may well have applications to resolving conflicts over environmental scale in

other multi-level contexts, such as global governance.

The aim of this paper is therefore to explore the scope for ‘lesson drawing’ (Benson and

Jordan 2011b) from the EU for global governance. Subsidiarity could theoretically help

diffuse inter-state sovereignty conflicts on the environment surrounding, for example, the

current impasse in global climate governance. However, the EU’s experience of the use of

subsidiarity for this purpose provides a significant caveat emptor for effective governance at

the global level. As we go on to discuss, the de facto operationalisation of the subsidiarity

principle in EU environmental policy-making has sometimes engendered more conflicts than

it has resolved; presenting question marks over its efficacy as a scaling device for global

governance.

In meeting this aim, our paper is structured around several objectives. Firstly, it seeks to

provide an overview of the development of global environmental governance, from its

earliest beginnings in the 1960s, through the era of ‘sustainable development’ in the 1990s,

towards a period of partial fragmentation and conflict in the 2000s. Secondly, it seeks to

explain how the EU has sought to overcome such conflicts within its regional form of multi-

level governance using the subsidiarity principle as a scaling device, focussing on successes

and failures. Thirdly, the case of climate policy is used to illustrate key points. Finally, the

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paper discusses the scope for utilising subsidiarity within global governance to resolve inter-

state conflicts.

2. Global environmental (non)governance

Although there has been much discussion on the nature of contemporary global

environmental governance (Speth and Haas 2006; Biermann and Pattberg 2012) and its

specific sectoral aspects, there are few systematic overviews of its development since the

1960s. In one example, Connelly et al. (2012) chart its evolution in terms of several

sequential stages since the 1960s. These phases appear to conform to semi-distinct discursive

framings that span several decades from an early emphasis on environmental quality, then on

sustainable development and, finally, a more reactive period of partial institutional

disintegration where global competitiveness is now negatively shaping responses.

Global environmental governance is not new and has its modern origins in the era of

environmentalism in the late 1960s. To this point, a few recognisable ‘environmental’

regimes had been agreed but their objectives were generally not protecting the environment,

as in the case of the 1959 Antarctic Treaty that more reflected Cold War superpower

concerns over eliminating atomic weapons testing in the region. This situation began to

change as a wave of environmentalism swept western countries in response to a litany of

chronic problems, from chemical pollution to species extinction. International agreements

were first reached on reducing oil pollution from marine activities. Activists in the USA then

proposed a global Earth Day at a UNESCO conference in 1969, resulting in an inaugural

event in 1970 that celebrated peace and environmental protection. As environmental issues

became more prominent in national policy-making7, the need to take a more global

perspective on the transboundary nature of problems emerged. The United Nations

subsequently staged a Conference on the Human Environment in Stockholm in 1972 to

discuss this issue. While developing countries were more concerned with promoting

economic development, the conference nonetheless resulted in agreement on establishing the

United Nations Environment Programme (UNEP) and closer cooperation between all states.

Thereafter an expansion in issue specific regime formation occurred, primarily under UN

auspices, aimed at improving environmental quality. Notable examples include the 1972 Oslo

7 The USA was the first country to enshrine the environment as an objective of national government when Congress passed the National Environmental Policy Act (NEPA) in 1969.

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and London Conventions on preventing dumping of wastes at sea, the 1973 MARPOL

Convention8, the UN Convention on the Law of the Sea (UNCLOS), UNEP’s Regional Seas

Programme, the 1973 Convention on the International Trade in Endangered Species (CITES);

and the UN Economic Commission for Europe (UNECE) 1979 Convention on Long-range

Transboundary Air Pollution. This rapid emergence of global governance eventually became

challenged by demands for a more holistic approach as policy makers became aware of the

wider interconnectedness environmental problems.

This era can be traced back to the establishment by the UN General Assembly of the World

Commission on Sustainable Development (WCED) in 1983. Chaired by Gro Haarland

Brundtland, the Norwegian Prime Minister, the WCED was given the remit of examining

how environmental protection could be better integrated into global developmental strategies

via international cooperation. In its seminal output, the so-called Brundtland Report9 in 1987,

the WCED identified a role for sustainable development10 which combined environmental,

social and economic objectives, also recommending greater international institutional

expansion to coordinate state cooperation. Adopted by the UN General Assembly, the

Brundtland Report was to prove hugely influential at both national and international levels. It

informed preparations for the 1992 United Nations Conference on Environment and

Development (UNCED) in Rio de Janeiro. The ‘Earth Summit’ as it became known was

notable for several outputs, including the Rio Declaration which was signed by many

governments, Agenda 21 that comprised multiple policy action points, and its association

with a range of new global regimes. These agreements reflected the holistic nature of

sustainable development and sought to address complex ‘cross cutting’ environmental issues

such as biodiversity loss, deforestation, desertification and transboundary water conflicts.

Perhaps the most well-known regime to emerge during this era was the United Nations

Framework Convention on Climate Change (UNFCCC). Scientific evidence on the global

threats faced from rising greenhouse gas emissions led governments to sign the Convention

in 1992 as part of the Rio process. Here, they collectively pledged to reduce their emissions,

subsequently making binding legal commitments in the 1997 Kyoto Protocol. By the end of

the 1990s, however, this second wave of global environmental governance was in trouble as

8 The International Convention for the Prevention of Pollution from Ships or MARPOL was signed in London. 9 Its official title was ‘Our Common Future’ (WCED 1987). 10 This term was originally coined by the International Union for the Conservation of Nature in its 1980 World Conservation Strategy.

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the discourse of sustainable development ran up against the twin forces of intensifying

economic globalization and resistance from state governments.

Although sustainable development continued to drive global responses into the early 2000s,

the period since has witnessed the partial reversal of many of these gains in global

environmental governance. In their review of national sustainable development strategies,

Lafferty and Meadowcroft (2000) note that few governments had met their pledges made in

Rio. There was a growing recognition worldwide that sustainable development could not be

achieved by governments acting alone, given the vast expansion in global economic activity

occurring in response to ongoing trade (neo)liberalisation. The follow up Rio +10 UN

Conference, held in 1992 in Johannesburg, reflected this perception, with the main outcome

of the negotiations being the ‘public-private partnerships’ agreed between governments and

business for addressing critical environmental issues. Beyond this point, global

environmental governance has arguably stalled, leading some scholars to question the notion

of sustainable development as a viable global governance option (see Benson and Craig

2014). While some of the earlier single issue environmental regimes have proved relatively

successful, for example the Montreal Protocol, many of the pledges signed at the Rio

UNCED remain unfulfilled as critical concerns have emerged over state sovereignty and

differential responsibilities in tackling chronic environmental problems. As Park et al. (2008:

preface) conclude ‘[m]ore than 20 years after the Brundtland report… we have yet to secure

the basis for a serious approach to global governance’. While some have argued for

modifying or reforming institutional architectures to include, for example, greater

engagement with markets and non-state actors (see for example, Newell and Paterson 2010;

Biermann et al. 2010), issues of state sovereignty remain unresolved in many areas of

environmental governance.

Nowhere is this ambiguity more apparent than in the UNFCCC process. The ‘story’ of the

Kyoto Protocol, signed in 1997, could be considered something of a high point in inter-state

climate policy cooperation. It successfully secured the agreement of developed countries to

reduce their greenhouse gas emissions, albeit by very modest amounts, but the non-

ratification of Kyoto by the USA, a major emitter, and its subsequent withdrawal from the

process in 2001, fatally undermined the regime given that other large emitting states such as

China and India were not obliged by Kyoto to reduce their pollution. Subsequent attempts by

the UN to secure a follow up agreement that would extend emissions reductions and include

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all major polluters failed spectacularly in 2009 at the ill-fated Copenhagen Conference

(Connelly et al. 2012). One major sticking point has since been the inability or unwillingness

of leading states to relinquish their sovereign rights to pollute, meaning effective cooperation

remains illusive. Despite ongoing negotiations, at this point no further agreement has been

reached, leaving global governance effectively reliant on a mixture of state voluntary pledges

for mitigating emissions.

A conclusion from this situation may be that climate change and other complex

environmental issues may be too divisive to coherently address through international scale

cooperation, given their implications for state sovereignty. Realist theorists may point to the

self-maximising tendencies of states under conditions of global anarchy as an obvious

impediment but, critically, some environmental regimes have proved successful thereby

undermining such pessimism. As neoliberals would argue, where sufficiently strong and

widely supported institutions can be established, the rationale for state sovereignty conflicts

can be reduced, providing incentives for cooperation in the face of global environmental

threats. Moreover, there are models of effective inter-state environmental governance that can

be examined for potential lesson drawing on diffusing state sovereignty concerns, most

notably the European Union.

Since the 1970s, the EU has progressively, although as discussed below sometimes

contentiously, constructed a broad ranging environmental acquis communautaire of legal

measures that now coordinate action between 28 Member States (Jordan and Adelle 2012).

Despite periodic conflicts between national governments and EU institutions over the re-

allocations of environmental powers to the European scale, what is remarkable is the

generally high levels of support the acquis enjoys in Member States, particularly amongst the

public11. As we discuss in the next section, a central guiding mechanism – in theory – for

achieving this regulatory expansion has been subsidiarity, which is also now a core principle

for all EU policy-making. This principle may have particular resonance for global

governance too as the Rio UNCED’s Agenda 21 implored policy makers to consider the

appropriate scale of action in addressing environmental problems. In this case, what if

anything can be learnt from the EU’s experience with subsidiarity for normatively

determining scale in global environmental governance?

11 Eurobarometer polls regularly suggest that EU citizens think that environmental policy is one area where the EU does have added value to national level decision-making (Jordan et al. 2013).

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3. EU subsidiarity

In Europe, similar conflicts over the scale of environmental governance emerged shortly after

the European Economic Community (EEC) decided to introduce its own environmental

policy in 1972. Drawing inspiration from the environmental protection discourse that had

emerged at the global level, EEC heads of state instructed the European Commission to draft

an Environmental Action Programme (EAP), subsequently published in 1973. Even at this

point, the Commission was mindful of potential scale conflicts that could emerge, stating

that:

‘In each different category of pollution, it is necessary to establish the level of action

(local, regional, national, Community, international) that befits the type of pollution

and the geographical zone to be protected should be sought.’ (Official Journal of the

European Communities 1973: 8)

Although primarily a general statement of future intent, the EAP nonetheless formed the

inspiration for the introduction of a series of environmental measures throughout the 1970s

and early 1980s. Most notably these included directives on waste management, air quality,

nature protection and water quality. Despite the tacit agreement of national governments,

even at this stage arguments were surfacing over the appropriateness, and more saliently the

costs, of EEC intervention and the need for states to implement measures. Particular issues

surrounded the harmonised standard-setting approach of water legislation, which lacked

sensitivity to localised conditions thereby imposing differential abatement costs on states.

Conflicts then occurred over poor implementation of these measures between the European

Commission and national governments such as the UK (Benson and Jordan 2014a). Matters

came to a head in the early 1980s, after attempts by the West Germany to ‘upload’ its

stringent domestic air emissions legislation to the European level via the Large Combustion

Plant Directive proposal (Weale et al. 2000). Bitter disputes then occurred between national

blocs of countries operating in the European Council which were only finally resolved by the

adoption of a watered down Directive in 1986 (Böhmer-Christiansen and Skea 1991).

As such conflicts threatened to undermine the EEC’s plans for a single harmonized market,

which required uniform environmental standards to prevent inter-state competition,

subsidiarity was introduced as a legal scaling device to diffuse them. The Single European

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Act (SEA) 1986, which amended the EEC’s founding Treaty of Rome 1957, therefore

included a section in Article 130r12 that obliged the Community only to:

‘… take action relating to the environment to the extent to which the objectives

referred to in paragraph I can be attained better at Community level than at the level

of the individual Member States.’ (Official Journal of the European Communities

1986: 18)

This conception therefore provided a role for EEC intervention but only where conditions

justified it, i.e. where Community action had added value. Although seemingly offering an

objective test for European level action, in reality this mechanism did not immediately lead to

any real debate on environmental scaling let alone prevent the upward allocation of

environmental powers (Golub 1996). The imperatives of securing the single market by 1992

led the EEC to introduce further environmental measures on the basis of their importance to

this project. Pushback from national governments finally occurred in the early 1990s, as

negotiations over further European integration started. Some Member States such as the UK

resisted what they perceived as the covert federalisation of the EEC in areas such as the

environment13. To this effect, they demanded that the subsidiarity principle be inserted into

the opening section of the Treaty on European Union (TEU) 199214 to provide a potential

brake lever on EU expansion. Thereafter, subsidiarity became a core legal principle for all

EU policy making – in theory at least.

As part of the contentious negotiations on the TEU, several governments15 invoked

subsidiarity to demand the repatriation of a so-called ‘hit-list’ of different European

measures, including several environmental directives (Jordan 2000; Benson and Jordan

2014a). Governments also compelled the European Commission to introduce ‘Better

Regulation’ subsidiarity tests and annual reporting that provided a clear justification for

action at the European scale. These measures appeared to pacify national concerns, allowing

even further expansion of EU powers. In reality, few environmental measures were repealed

12 This Article created a new legal power for the EEC to intervene in environmental policy making as the original Treaty of Rome did not contain this competence. 13

Again, water policy was one area of contention, particularly after the EEC attempted to introduce a number of expensive pollution remediation measures (Benson and Jordan 2014b). 14 More commonly known as the Maastricht Treaty, it created the European Union. The opening section contains the core principles of EU policy making. 15 At the 1992 Edinburgh Council Summit.

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during this period, with some actually strengthened over time (see Wurzel 2002). This messy

period of re-scaling of environmental powers continued well into the 2000s, even though

conflicts between the EU and national governments did not entirely subside. Better

Regulation was utilised by some governments, acting with business interests, to challenge the

introduction of the EU’s broad, cross-cutting environmental Thematic Strategies16 during the

mid-2000s, leading to some becoming weakened before being adopted.

Subsidiarity still remains the key constitutional-legal principle for determining the scale of

actions in the EU. After the failed EU Constitutional Treaty, sunk by national referenda in

2005, European institutions re-drafted many of its proposed measures into the Lisbon (or

Reform) Treaty, signed in 2007 and finally ratified in 2009. A new definition of subsidiarity

was consequently inserted into the text which interprets subsidiarity as meaning:

‘… in areas which do not fall within its exclusive competence, the Union shall act

only if and in so far as the objectives of the proposed action cannot be sufficiently

achieved by the Member States, either at central level or at regional and local level,

but can rather, by reason of the scale or effects of the proposed action, be better

achieved at Union level.’ (Council of the European Union 2007: 24)

At this point in time, it would appear that the question of where to scale environmental policy

in the EU multi-level governance system appears largely settled. The empirical evidence

would suggest that the environment is one area ‘better’ addressed at the EU level. Certainly,

the acquis ranks as one the most impressive bodies of policies and legislative acts for

protecting the environment in the world, numbering several hundred instruments covering

issues from air quality to zoo animal welfare (IEEP 2010). The Lisbon Treaty itself provided

for few new environmental measures, suggesting that policy in this area has almost reached

the natural limits of its expansion (Benson and Jordan 2008b), although the acquis continues

to grow inexorably into the parallel climate-energy sector (Jordan et al. 2010; Benson and

Russel 2014). Moreover, despite variable implementation (Jordan and Tosun 2012) and

pertinent question marks over its effectiveness (Jordan and Adelle 2012), EU environmental

policy does enjoy significant popularity amongst most national governments and high

16 Rather than focus on single issue problems, the Thematic Strategies take a sector wide approach to coordinate policy action in areas such as pesticides, soil erosion, waste, natural resources and the urban environment. The Strategies help implement the EU’s broader Sustainable Development Strategy (SDS), adopted in 2001.

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numbers of European citizens. On this basis, subsidiarity, after a somewhat difficult

introduction, appears to have provided a significant scaling device for diffusing inter-state

conflicts.

4. Discussion and conclusions: subsidiarity re-interpreted?

Subsidiarity could then, potentially, provide an important ‘scaling device’ for other multi-

level political systems including global environmental governance, particularly in contested

areas such as climate change, but an evident caveat emptor applies. This observation stems

from the way that EU subsidiarity has been applied in practice, which we could interpret

through the lens of federalism theories.

In the EU context, subsidiarity legally dictates that action be taken at the lowest appropriate

level but in reality environmental policy tasks have become progressively, and sometimes

contentiously, concentrated within European institutions (see Jordan and Adelle 2012). This

process underlines the conceptual malleability of the EU’s subsidiarity principle (Benson and

Jordan 2014a,b). For much of its early history, subsidiarity was therefore employed by EU

institutions to justify the upward allocation of environmental powers as a ‘double-edged

sword’ rather than providing an automatic presumption in favour of lower level decision-

making (Benson and Jordan 2014a). As such, this interpretation would more conform to a

Catholic Personalism rather than an Althusius conception, which is perhaps unsurprising

given the nature of the Jacques Delors led European Commission of the time. His preferences

for building a socially responsive ‘people’s Europe’ to counterbalance externalities from the

single market allegedly stemmed from a background of studying catholic social theory (Van

Kersbergen and Verbeek 1994; Benson and Jordan 2014b). Environmental policy along with

other non-economic interventions, were seen as very much within the remit of European

institutions.

But in the period after the TEU, the EU’s approach to environmental policy making began to

visibly change. This conception of subisdiarity ran counter to interpretations placed upon it

by UK and German politicians of the time, who viewed the principle much more in terms of

its potential to counter upward re-scaling of powers through a presumption on lower (i.e.

state) level action (Van Kersbergen and Verbeek 1994). While ultimately, this Althusius-type

perception failed to prevent the growth of the environmental acquis, or even lead to the

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repatriation of powers, it did appear to change the long term nature of EU scaling. Much

more use has been made since of ‘new environmental policy instruments’ (Jordan et al.

2003)17 and framework directives that, while still presenting harmonised objectives setting at

the EU level, provide a greater role for Member States and non-state actor networks in

formulation and implementation. One major example of this change is the EU Water

Framework Directive (2000). Introduced as a response to the contentious harmonised

standard-setting approach of early water legislation, it obliges Member States to set water

quality objectives for individual river basins within the context of European Commission

steering. The scale of response is now shared to a much greater extent, reflecting the multi-

scale nature of water management problems. From a federal theoretical perspective, these

approaches reflect cooperative federalism conceptions of subsidiarity (Benson and Jordan

2011a; 2014b). Here, rather than a ‘zero-sum’ split of powers between the EU and Member

States, with the former dictating standards and the latter shouldering the burden of

implementation, these responsibilities are shared much more flexibly along functional lines.

In the Water Framework Directive, national governments work with the Commission, each

other and non-state actors to develop the water quality objectives, thereby reducing the scope

for conflict (Benson et al. 2014). In this way, later environmental measures such as the

Thematic Strategies were more based on the establishment of EU level agreed objectives,

rather than uniform, centrally determined standard-setting, combined with significant latitude

for Member States in implementation. The Urban Thematic Strategy (2006), for example,

was introduced under the Open Method of Coordination, a governance mechanism based on

EU policy coordination, benchmarking and mutual learning between states. The Marine

Strategy Framework Directive (2008) also adopts a more cooperative approach to protecting

oceanic resources through shared objectives-setting and inter-state coordinating institutions

based at a regional, ecosystem scale. The critical question that remains is whether this form

of cooperative scaling has led to tangible environmental outcomes, as it remains too early to

tell the effects on the ground with some measures.18

In terms of ‘lesson drawing’ (Benson and Jordan 2011b) for global governance, we therefore

could seek guidance from alternative federal theoretical arguments to suggest that

17 The EU has experimented with many non-regulatory approaches such as voluntary instruments, informational mechanisms and market based instruments such as emissions trading schemes. 18 The Water Framework Directive has an initial implementation phase that finishes in 2015. Initial research suggests that it has largely led to successful institutional reorganisation of water governance but that impacts on water quality cannot yet be fully determined (for example, Benson et al. 2014).

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subsidiarity could nonetheless provide a principled means of mediating inter-state conflict –

if suitably reconfigured. Rather than an essentially ‘zero-sum’ conception of task allocation,

as evident in early EU environmental policy-making, our analysis indicates that subsidiarity

could be re-interpreted for the international context to guide more flexible, cooperative forms

of functional task-sharing between levels (Benson and Jordan 2011a); thereby partly

addressing national sovereignty concerns. These approaches are perhaps more amenable to

the types of complex, cross-cutting sustainable development issues such as water resource

protection, biodiversity loss, deforestation and climate change than single issue

environmental protection measures, where strong international institutions, as neoliberal

would suggest, are optimal.

For example, the current UNFCCC process is proving somewhat intractable due to the

perceived need to include all major emitters in legally binding emissions reduction targets set

at the international scale. Securing a binding global deal linked to long term emissions

reductions may prove difficult to formulate since, as realists would point out, states are

concerned with maintaining sovereignty under conditions of global anarchy. However, a

cooperative federalism interpretation of subsidiarity would suggest that agreement is more

likely if greater flexibility in implementing emissions reductions is promoted through

providing an emphasis on state-level policy innovation and horizontal lesson drawing under

the auspices of UN steering. In fact, evidence suggests that states themselves are beginning to

adopt this form of global governance, primarily in response to intransigence and inaction

within the UNFCCC process. Scholars are noting the recent emergence of multiple national

climate policy innovations (Townshend et al. 2013; Jordan and Huitema 2014) which some

argue may provide significant opportunities for lesson drawing and transfer of practice

(Benson and Lorenzoni 2014). Again, a critical issue here is the effectiveness of these

measures in practice.

A significant caveat emptor, however, from the EU’s experience is that subsidiarity can be

subject to discursive framing due to its inherently normative characteristics (Benson and

Jordan 2014a,b). On one hand, its ‘all things to everyone’ conceptual malleability means that

it can help mediate sovereignty concerns between states through providing a potential brake

on re-scaling. However, on the other hand, without suitable institutional framing, it can be

discursively reconstructed to justify almost any form of scaling between levels. As discussed,

in the case of EU environmental policy, subsidiarity has primarily been constructed to mean

16

European level scaling, although its de facto application has subtly altered through time to

mean a greater sharing of powers. While subsidiarity therefore has significant potential as a

scaling device to diffuse conflicts within global environmental governance, particularly

through its ability to pacify national sovereignty anxieties, it can also be just as much a

powerful tool for promoting state inaction as it is for securing state cooperation. In this sense,

any debates on its potential usage should focus not only on definitions but also its

institutional framing to ensure effective governance in practice.

17

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