Environmental law is normally aimed at regulating the activities of private as well as public actors so to avoid or reduce damages to the environment. This is often done by forbidding or at least discouraging some conducts, seen as harmful. A strict legal approach is normally oriented to the value of certainty, with regard to such aspects as the interpretation and enforcement of norms, the relationships between actors, their expectations towards the legal system. The legalistic way of thinking is non probabilistic, non causal and non scientific (when judged by the standard of post-positivist empirical science). Another feature of a legalistic approach is often that norms are seen as specifications of general principles, and that they must be applied irrespective of their actual consequences. A third feature of a traditional view of environmental law is that such regulation is typically the outcome of top-down decisions. A fourth feature is that coercion, justified by the pursuit of the public interest as defined by general principles, will be the main policy instrument. It is easy to see that such features - that I have intentionally depicted in a stylized and extreme form - are strongly at odds with what is required by contemporary policy analysis, as well as by the concept of governance. Applied policy analysis asks decision-makers to evaluate ex ante, in itinere and ex post the policies adopted, with regard to both their ability to reach intended results, and their costs, other benefits, side effects (on the public budget, on the addressees whose activities are directly regulated, on groups which are indirectly affected and the society at large). In this perspective, therefore, the goals of a given policy will not be seen in isolation, as absolute imperatives, but will be systematically referred to, and weighted against, other publicly relevant goals and interests. Sustainability, then, does not relate only to environmental aspects, but also to the impact of public action on other sub-systems, such as the economy, public administration, cultural reproduction, political relationships at the various levels of government. Regulation in general, and environmental regulation especially, should itself be economically, administratively, culturally and politically sustainable. This does not mean that any time that a given economic, social or political actor disagrees with a given environmental measure this policy must be stopped or distorted so to accommodate in any case conflicting interests. Environmental regulation normally inflicts concentrated costs on specific addressees. These possess financial and influence resources that they can mobilize, and have as well a strong incentive to organize themselves in defense of the status quo. Always asking for the complete satisfaction of such interests in practice would mean that incisive policies would never be adopted or implemented. However, given that environmental regulation is necessary, and that normally it must impose some costs, a sound application of policy analysis compels to look for the less costly regulatory option, which at the same time produces the desired outcome.The chapter sketches the actual working of environmental policies in the Italian context, also with regard to a specific example (the precautionary principle). Then it is shown how regulatory impact assessment (RIA) can be a fruitful tool to improve environmental policies.
|Stato di pubblicazione||Published - 2005|