The Impact-based Regulatory Strategy in Environmental Law: Hallmark of Effectiveness or Pitfall for Legitimacy?

Abstract

EU environmental law increasingly adopts an impact-based regulatory strategy that places biophysical sciences in a significant role not only in designing regulation but also in interpreting and implementing the law. While crucial for the effectiveness of environmental law, such a regulatory strategy creates challenges for the legitimacy of EU environmental law. This article traces the shift from a behaviour-based to impact-based regulation in this context and analyses the latter in light of Lon L. Fuller’s eight classic criteria for the rule of law to expose the legitimacy challenges. Focusing on the EU Water Framework Directive and the Land-use Change and Forestry Regulation, this study shows that EU environmental law suffers from serious shortcomings in securing legal legitimacy and concludes by highlighting how this may be improved going forward.

1. Introduction

Humanity has long pushed the boundaries of the Earth’s carrying capacity.¹ Traditionally, environmental law has sought to curb the human impact on the environment, and it has been remarkably effective in addressing straightforward and point-source problems, such as ozone depletion and mitigation of industrial pollution across the globe.² The global environmental challenges environmental law faces today, however, are different from the problems tackled in the past.³ The contemporary challenges are complex in the sense that their scientific basis (ie, the status of the environment and human impact on it) is more difficult to establish due to environmental systems having nonlinear properties as their tipping points are unknown.⁴ Moreover, these complex environmental challenges are deeply rooted in the modern way of life, and societal structures, meaning that the regulation of such challenges is bound to produce trade-offs and contestation.⁵ Ultimately, this presents a major challenge: how can environmental law be effective where the scientific basis contains uncertainty and is often not unanimous, and the social dimensions of regulating environmental problems entail significant trade-offs?

Traditionally, environmental law’s response to such complexity has been to establish legal goals for protecting and reaching a certain status, or quality of the environment, as well as to implore environmental scientists in various contexts to forge an ever-more nuanced understanding of the environment’s biophysical dynamics, and the human pressures and impact, on the environment.⁶ This has resulted in instruments, such as the EU Water Framework Directive (WFD),⁷ which establishes binding goals on the target status of the aquatic environment, sets up knowledge production and planning processes and requires iterative permitting of activities affecting the environmental status to implement the goals. Scientific knowledge produced in various implementation processes, such as the ones referred to in the WFD, have been crucial in paving the way for more effective environmental law.⁸

This is not to overlook the fact that the role of scientific knowledge in the implementation of the law can vary considerably depending on the regulatory strategy informing the legal instruments. Here, drawing on Carol Rose’s distinction, we identify two main strategies in relying on environmental law to protect the environment. The first is a behaviour-based strategy, in which the thrust of the law is regulating the activities of Member States, companies and individuals, for instance, by permitting, banning or limiting them.⁹ Such examples include wastewater treatment and other technologies used to limit environmentally harmful emissions. In this strategy, scientific knowledge plays an important role in the phase of legislative drafting, for example, in setting targets, but a lesser role in interpreting and implementing the laws. The second is an impact-based strategy, in which the law seeks to regulate environmental quality in various media (eg, air, water or soil).¹⁰ According to this strategy, legal obligations of Member States, companies and individuals hinge on biophysical scientific knowledge about the status of the environment, human pressures on that status, and scientifically established means for mitigating the pressures. Scientific knowledge not only affects legislative drafting—as in the behaviour-based strategy—but also comes to play a significant role in most of what has been conventionally labelled ‘legal interpretation’ or ‘legal reasoning’. As we explain in more detail in Section 2, this means that open-ended legal provisions require considerable scientific input for interpreting what the law requires. Yet, as we argue, such a strategy may easily overlook environmental law’s legitimacy.

In this article, our focus is on EU environmental law, in which a substantial body of law has shifted, or is in the process of shifting from behaviour-based, to impact-based regulation. We examine this shift in the context of two regulatory instruments where the science-dependent nature of the impact-based strategy is particularly pronounced: the WFD and the Land Use, Land-Use Change and Forestry (LULUCF) Regulation.¹¹ Other examples, such as the EU’s chemicals regulation, are also useful,¹² but the expertise of the authors is within the water and climate sector, hence our particular scope of analysis. To unearth and critically study the challenges to legal legitimacy posed by, and embedded in, the impact-based regulatory strategy, we use Lon L. Fuller’s theory of legal legitimacy as a methodological framework.¹³ This is because Fuller’s work on the fundamental elements on what makes law and legal systems legitimate can help environmental lawyers and legal scholars articulate much of the uneasiness felt about impact-based regulation.

While our focus is on the legitimacy of the impact-based strategy, we also discuss the behaviour-based strategy to demonstrate the extensive shift in the EU’s regulatory approach to environmental problems. It should also be noted that whilst we discuss the legitimacy issues on a theoretical level, our focus is on EU environmental law and its implementation in specific substance areas in Finland. This approach, albeit limited in sectoral and geographical scope, allows us to effectively pinpoint the specific legitimacy challenges that the impact-based regulatory strategy invites. Consequently, our purpose is not to generalise about the Finnish experiences but rather to exemplify the legal implications of the EU’s regulatory strategy preference, which will inevitably have legal implications beyond Finland. We also recognise that whilst there are opportunities to build and support the legitimacy of EU legal instruments (eg, with participatory rights and Member State discretion)¹⁴, our interest is elsewhere: on the legitimacy challenges invited by the EU’s chosen impact-based regulatory strategy.

The structure of the article is as follows. Section 2 lays the groundwork for discussing environmental law’s effectiveness and the role of scientific knowledge in it. The discussion goes on to illustrate an analytical distinction between behaviour-based and impact-based strategies for designing legislation and establish that the EU has adopted, or is fast adopting, an impact-based regulatory strategy in a wide range of environmental sectors. We maintain that these developments are pursued to secure the effectiveness of EU environmental law but, at the same time, this strategy suffers from legitimacy-related concerns. Following this, Section 3 begins with a brief discussion of legitimacy and continues by unpacking Fuller’s eight criteria for legal legitimacy. Section 4 applies the criteria to provide a critical analysis of the legal legitimacy of WFD and the LULUCF Regulation, as implemented in Finland. Section 5 takes stock of the article’s arguments, and sets out the conclusions.

2. Environmental Law’s Effectiveness and the Increasing Role of Natural Scientific Knowledge

2.1 Why Does Law Need Natural Science for Securing Effectiveness?

The convergence of science and environmental law is largely—albeit not exclusively—driven by the promise of effectiveness.¹⁵ In simple terms, effectiveness refers to the capacity for a legal instrument to deliver on its goals. Effectiveness in turn is heavily affected by the chosen regulatory strategy. A regulatory strategy explains how the instrument is intended to change the social and/or ecological system it seeks to regulate.¹⁶

Particularly natural sciences have played a prominent role in the evolution of environmental legal instruments and their regulatory strategies.¹⁷ Scientific knowledge is ‘imported’ into law to ‘guide and illuminate policy’ and, at the same time, law ‘exports’ its problems to be solved by scientific experts.¹⁸ The role of science is acknowledged as a precondition for the proper functioning of law and regulatory strategies, policies included. Angelo, for example, explains that ‘[e]nvironmental law was born out of the new scientific understandings of ecology in the mid-twentieth century’¹⁹, and hence ‘no good’ environmental law and policy can emerge if not taking full account of and implementing sound scientific advice.²⁰

Science is, however, not a coherent monolithic institution. In this article, we recognise that scientific knowledge pertaining to the biophysical environment is produced in various scientific disciplines with distinct theoretical and methodological traditions. Moreover, scientific knowledge is produced by various actors ranging from university academics to state research units and corporate consultants. Science is also broken into different groupings of science and its representatives (eg, from modellers to natural scientists and from remote sensing to policy experts). These groups not only stand in different relationships with each other but also bring together somewhat different understandings of what the object of their research is about. The interactions between the groupings are also conditioned by the differing understandings.²¹ Recognising this, we use science and scientific knowledge as rather broad catch-all terms to signify knowledge that seeks to understand and unpack the functioning of the biophysical environment, whether it be a water body or a patch of forest.

The reliance on biophysical sciences in environmental law is thus justified: science possesses almost an exclusive capacity to monitor and map biophysical complexity and to help manage uncertainty and risk related to them.²² Moreover, such science can prompt regulatory processes by flagging gaps in the current legal frameworks.²³ The deep interaction between biophysical sciences and environmental law is particularly pronounced when dealing with systemic pressures, such as those impairing water and climate systems.²⁴ To manage these environmental problems effectively, policy responses need to be both verified by the scientific community and adapted to the best scientific knowledge. This implies that laws and regulations should be—as far as socially and economically feasible—based on the best available science.²⁵

Although biophysical sciences provide law with invaluable knowledge input, the relationship between science, policymaking and law is anything but straightforward.²⁶ Problems emerge in applying this scientific knowledge to policy and legal decision-making in situations where the lines of demarcation of societal authority between the two are blurred. Scientific institutions do not typically have a formal role in law-making or adjudication.²⁷ Under the rule of law and the separation of powers doctrine, it is the exclusive right of the legislator to exercise legislative discretion to draft and pass laws, and the exclusive authority of the executive and judicial branches to interpret, implement and enforce them.²⁸ Science is not mentioned as a key institution under these doctrines. Despite its lack of formal institutional status in legislative, administrative and judicial processes, science plays a role in all three branches of government.²⁹ Traditionally, the role of science is more pronounced in legislative processes than in administrative and judicial ones,³⁰ but even this role has been approached with some scepticism.³¹

Next, the article discusses how biophysical sciences are claiming an increasingly prominent role in environmental law, namely that only people with such scientific expertise have full capacity to influence the implementation and interpretation of legal instruments after they gain the force of law.³² This argument is unpacked in more detail in Section 4 with examples, but before that we explain how the role of biophysical science differs considerably depending on the regulatory strategies adopted in legal instruments. The two regulatory strategies discussed are behaviour-based and impact-based strategies.

2.2 The Way We Should Act: The Behaviour-based Strategy and a Limited Role for Biophysical Sciences

In providing a more analytical picture of the role of science in the focal regulatory strategies, we begin by explaining the choices that a policymaker, such as the EU Parliament, Council and the Commission³³, has at its disposal when regulating environmental protection. In doing so, we seek to provide a systematised picture of alternative regulatory strategies and their theoretical underpinnings.³⁴

With any normative question—be it moral or legal—there are two main answers: deontological and consequentialist.³⁵ The deontological approach is that normative questions should be answered by establishing rules that categorically guide behaviour despite the consequences.³⁶ Science may define the kind of behaviour that is unwanted in light of biophysical dynamics and help formulate the behavioural rules, but once the rules are established, it becomes a bystander in implementing and interpreting the law. The consequentialist approach is different: it establishes looser principles or standards the content of which ultimately hinges on a contextual analysis of the consequences of a given decision.³⁷ With this shift from regulating human behaviour to regulating the consequences of human activities, science gains a key role not only in setting the rules but also implementing and interpreting them. This observation is explained with examples in the following.

In the context of environmental law, the deontological approach would recognise a certain societal dynamic (eg, water pollution caused by an industrial activity) and if the political community deems the dynamic unwanted, it will seek to establish rules regulating the activity of states, companies and individuals to curb such pollution. To this end, behavioural rules may, for instance, ban the use of certain chemicals in industrial processes, establish technological requirements for purifying wastewater to a certain standard, and so on. The deontological approach seeks to regulate the behaviour of states, companies and individuals, for which reason it has also been dubbed a behaviour-based strategy for regulating environmentally harmful human activity.³⁸

The best available technology (BAT) requirement is a good example of a behaviour-based strategy at work. Here scientific, policy and industrial stakeholders are on a relatively even footing to influence the content of the technological requirements. BAT requirements come in many shapes and sizes, but a typical feature is that the approach places legal significance on environmentally sound action or behaviour and by doing so severs the causal link between behaviour (here: the use of a certain emission treatment technology) and improvement in environmental quality (impact).³⁹ What this means in principle is that if a legal instrument adopts a behaviour-based strategy exclusively, and notwithstanding other legal requirements, the operator (state, company or individual) being regulated does not need to worry about whether its/her actions produce the desired environmental outcome. The only question of legal significance is whether the regulated party conforms to the prescribed behaviour (eg, adopts a legally sufficient emission treatment technology⁴⁰).

In the behaviour-based strategy, science informs the regulator of an environmental problem (eg, water pollution), providing suggestions for measures to mitigate the problem (eg, new waste water purification technologies) and monitoring the environment (eg, water quality) so that these behavioural rules can be enforced.⁴¹ If science points to ineffective BAT, this will in an ideal world lead to a re-evaluation of the existing BAT. Our point, however, is that the implementation and interpretation of such behavioural rules (here: BAT), do not rely on science to any considerable degree. Biophysical sciences play a significant role in helping the regulator set the behavioural BAT requirement in law, or in guidance documents related to it, but not in interpreting what the BAT requires in specific circumstances concerning, eg, the permitting of a pulp mill. With such a strategy, it is easy to maintain, at least on paper, a strict separation of the societal roles played by scientific actors, on the one hand, and by policy and legal actors (legislators, administrative authorities, courts) on the other. Science provides information, and policy and legal actors make normative decisions on how to act based on that information.⁴²

The upshot of the behaviour-based regulatory strategy is that the rules established are predictable and rather easy to enforce. Such rules have been effective, particularly in curbing point-source emissions into the environment, which are relatively straightforward to measure, monitor and control.⁴³ The main drawback of the behaviour-based strategy lies in the disconnect between the required behaviour (eg, BAT) and the desired environmental status (and the related biophysical sciences), which is at the heart of all environmental policy in one way or another.⁴⁴ From an ecological perspective, the severed link between science and law may result in excessively stringent or loose behavioural requirements (such as BAT) depending on the ecological status of the environment and the pressures on that status. Moreover, the behaviour-based strategy is often blind to social-ecological circumstances. In some cases, behaviour-based regulation has led to a disproportionate regulatory burden on actors who have a high cost of compliance compared to other actors causing similar or larger negative environmental impact.⁴⁵

2.3 What We Would Like to Achieve: The Impact-based Strategy and the Key Role of Biophysical Sciences

The second, impact-based regulatory strategy has close connections to consequentialist ethics and focuses on the impact of norms rather than on the prescribed behaviour. Continuing with the water pollution example from the previous subsection, an impact-based regulatory strategy embarks from the acknowledgement that there is pollution, and that it is an environmental and a societal problem, but seeks to regulate the environmental status of waters instead of directly regulating the behaviour of polluting actors. With such an impact-based strategy, the law requires states, companies and individuals, depending on the context, to take whatever measures necessary to reach the desired societal outcome individually and collectively (eg, a certain environmental status or level of quality). Such a regulatory strategy does not establish universally applicable rules on behaviour, but rather context-specific rules on impacts that depend heavily on biophysical expertise for their elucidation.

In Europe, the impact-based strategy has been discussed under the banner of ‘programmatic approach’⁴⁶ or ‘obligations of result’⁴⁷. In this approach, the law establishes binding goals for environmental quality (eg, remaining within maximum allowable concentrations of chemicals in the water as required by the WFD; maintaining a particular species diversity as required by the EU Habitats Directive⁴⁸), which are coupled with scientific indicators for establishing baseline conditions, a science-based planning scheme to recognise key pressures and measures for improving environmental quality in pursuit of the goals.⁴⁹ Such a regulatory strategy focuses explicitly on the change in the environment brought about by specific mitigation measures. In short, the impact-based strategy requires science to establish baselines, identify the sources of environmental impact, set ecologically safe limits within which emissions should be kept and provide tools for measuring and monitoring that mitigation measures are making a difference. Science is also in a key role in interpreting the legal requirements stemming from a legal instrument adopting an impact-based strategy.

To exemplify the impact-based strategy, one may consider a permitting process of a new pulp mill: the mill’s environmental (pollution control) permit depends on the current ecological condition of the lake into which the project would release its waste waters, and how the ecological functioning of the lake is likely to change with the proposed project and in the light of other natural and human pressures on the lake as illustrated by the environmental impact assessments.⁵⁰ These questions, decisive legally, are essentially biophysical scientific questions.⁵¹ In an archetypical example of an impact-based regulatory strategy, biophysical scientists are the most authoritative experts for establishing what is required from states, companies and individuals by the law in such circumstances.⁵² What is peculiar here is that, unlike the behavioural-based strategy where science provides input for determining the legal-behavioural requirements (eg, BAT), in the impact-based strategy it is the scientific environmental impact assessments collected in the course of the legal proceedings that are decisive for interpreting the legal obligations in concrete cases.

A key strength of the impact-based approach is its adaptivity to new scientific knowledge on the progress towards the established goals and the most effective measures.⁵³ However, the impact-based regulatory strategy also entails several difficulties. Insufficient or conflicted scientific basis, unintended consequences and the resulting uncertainty undermining the effectiveness of specific mitigation measures are examples of challenges that can impair the impact-based approach.⁵⁴ There are also problems related to evaluating the cumulative impact of multiple uses or substances (eg, the cumulative impact of small phosphorus emissions to waters), and the impact of interacting uses or substances (eg, interaction of highway traffic noise and mining site noise on protected species).⁵⁵ Moreover, even when there is sufficient scientific knowledge on the environmental status and human impact on it, there may be a lack of predictability and permanence (eg, the constant evolution of science versus the nature of law as an institution to protect stable functioning and development of societies); inequality (eg, obligations depend entirely on the characteristics of the natural environment, for instance, whether the focal ecosystems can or cannot withstand a certain pollutant) and a lack of legitimacy (eg, science seemingly turning a blind eye to social factors in protecting wolves in rural areas, where they may pose a threat to livestock).⁵⁶

Before moving on to analysing the legitimacy of the impact-based regulatory strategy, the following subsection will justify—with examples—the authors’ claim that the EU has shifted, quite extensively, to impact-based regulation to secure the effectiveness of environmental policy goals.

2.4 The Hegemony of Impact-based Regulation in the EU

The EU is legally committed to regulating environmental quality.⁵⁷ Moreover, the EU environmental law contains several examples of instruments where the impact-based regulatory strategy has been applied in practice and operationalised through rules on environmental quality, as discussed next.

Take the Habitats Directive, as an example. It obliges the Member States to take measures to reach or maintain a ‘favourable conservation status’ of natural habitats and species in Europe to achieve the biodiversity goals set in the Directive.⁵⁸ The ‘favourable conservation status’ is a legal concept that ‘must be understood and applied by scientists’.⁵⁹ The definition contains ‘several aspects that can lead to misinterpretation, forming the core of controversies’ in relation to whether or not the Directive’s key legal requirement—reaching or maintaining favourable conservation status—is met. In essence, defining and achieving favourable conservation status of habitats and species requires considerable scientific input. The Commission introduced a proposal for EU Nature Restoration Law⁶⁰ that would establish legally binding goals requiring that Member States reach a good status of biodiversity by a set deadline and implement extensive restoration measures. The Regulation, in tandem with the existing Habitats Directive, would also lay down rules prohibiting the overall deterioration of biodiversity and requiring Member States to prevent and offset, on a wide scale, harm to the biodiversity of habitats and species.⁶¹

Concerning air quality, the Air Quality Directive⁶² relies on key concepts such as limit values, target values, alert thresholds and critical levels. They all refer to values that can be determined only by science, and the Directive makes a direct reference to levels fixed ‘on the basis of scientific knowledge’.⁶³ Furthermore, in the climate sector, the European Climate Law requires the EU and its Member States to achieve an EU-wide legally binding climate-neutrality objective by 2050 through collective measures.⁶⁴ The trajectory for achieving climate neutrality would need to consider, among other criteria, the ‘best available and most recent scientific evidence’.⁶⁵ However, the article has not been tested by the Court of Justice of the European Union as of yet and the future will show such a norm will be read by the Court.

In the water sector, the WFD requires all EU Member States to reach Good Ecological Status of all inland freshwaters and groundwaters, transitional waters and coastal waters by 2015, or if exemptions are used, requiring them to do so by 2027 at the latest.⁶⁶ All the waters mentioned are simultaneously regulated by the non-deterioration clause, which requires the Member States to implement all the necessary measures to prevent the further deterioration of their water bodies.⁶⁷ In Weser, the Court of Justice of the European Union declared that the environmental goals of the Directive are legally binding on the Member States and also in relation to the permitting of individual projects.⁶⁸ Good status and the non-deterioration clauses are evaluated against ‘excellent status’, which refers to waters with only minor human impact, a classification based on a range of specific, scientifically determined ecological quality elements.⁶⁹ The evaluation and classification of rivers, for instance, is based on biological criteria on the composition and abundance of aquatic flora; the composition and abundance of benthic invertebrate fauna; and the composition, abundance and age structure of fish fauna.⁷⁰ Supporting criteria for status evaluation and classification include hydro-morphological parameters (eg, quantity and dynamics of water flow, river continuity and structure of the river bed), as well as physico-chemical criteria (eg, salinity, nutrients and specific pollutants, such as heavy metals).⁷¹ The implementation and interpretation of all these criteria for determining the past, current and future status of waters is heavily dependent on biophysical sciences spanning hydrology, biology, ecotoxicology and ecology.

Finally, the current LULUCF Regulation contributes to meeting the EU’s overarching GHG emission reduction target.⁷² The LULUCF Regulation’s key legal commitment is that GHG emissions may not exceed removals within the LULUCF sector (the no-debit rule).⁷³ The Regulation lays down a detailed accounting framework⁷⁴ for calculating emissions and removals from different land use categories, such as managed forest land, to comply with the no-debit rule. Managed forest land is the most important accounting category under the Regulation. The accounting of carbon balances for managed forest land is geared towards what are known as forest reference levels (FRLs), which are based on an extrapolation of forest management practices as documented in the set reference period and on other criteria laid down in the LULUCF Regulation.⁷⁵ In practice, the Regulation’s accounting rules, and especially the rules on FRLs, are highly technical and complicated.⁷⁶ To understand their normative content, the rules must be read carefully in the dynamic regulatory context of the rest of the provision, other relevant articles, recitals and annexes of the LULUCF Regulation.⁷⁷ The Regulation provides very little EU-level guidance for the interpretation of many technical details and, for example, the choice of modelling tools for the Member States; that is, the Member States are responsible for producing their own FRLs. The implementation and interpretation of the key provisions, such as the rules on FRLs, are placed in the hands of biophysical scientists, who are the sole actors capable of understanding and applying the rules and achieving the results that will satisfy the requirements set by the Regulation. Hence the key interpretation of the rules is not done by legal professionals, but by scientific experts.

All in all, terms such as ‘favourable conservation status’, ‘carbon neutrality’, ‘good ecological status’ or ‘Forest Reference Levels’ are terms geared towards reaching a desired environmental outcome; in other words, they are exponents of the impact-based regulatory strategy. These examples of sectoral EU environmental legislation not only demonstrate how the impact-based regulatory strategy manifests itself but also aptly highlight the biophysical science-dependent architecture of these legal rules. In our view, the examples show how the impact-based regulatory strategy has come to characterise EU environmental law and accorded biophysical scientific knowledge a decisive role in implementing and interpreting the legal instruments and obligations established therein. In the next section, we turn to how the impact-based regulatory strategy adopted by the EU challenges fundamental notions of legal legitimacy.

3. Evaluation Criteria for the Analysis of Legal Legitimacy

3.1 Legitimacy, but What Kind?

Our argument is that an impact-based regulatory strategy, in a search for greater effectiveness, risks undermining the legitimacy of law in relying heavily on science for the elucidation of legal obligations. That said, effectiveness and legitimacy are intertwined concepts; they are both features of the desired outcome, and hence we cannot have one without the other. Legitimacy is, in principle, a matter of justification—how we accept and justify authority. In fact, public policies derive much of their legitimacy from their problem-solving character; that is, as described in Section 2.1, the concept of legitimacy is inherently interlinked with the concept of effectiveness.⁷⁸ Bearing this in mind, we can start digging deeper into what legitimacy entails from a legal perspective.

One of the key difficulties for studying legitimacy on a more detailed level is that everyone seems to have their own understanding of the concept. Any efforts to that end readily evoke questions such as whether the study of legitimacy should be about retribution, distribution or process.⁷⁹ Another way of describing the same or similar dimensions of legitimacy is to ask whether one is interested in the given inputs to a process (input legitimacy, eg, participation in legislative, administrative or judicial processes), or in the outputs of a process (output legitimacy, ie, the substantive content and the societal outcomes of the focal processes).⁸⁰

While the above perspectives are valuable in studying the legitimacy of law and legal instruments, our interest lies primarily in whether the legal obligations arising from law (in our case, EU environmental law) adopting an impact-based regulatory strategy can be considered legitimate from the law’s internal perspective. We base our substantive analysis of legitimacy on the famous rule of law paradigm produced by Lon L. Fuller in the 1960s.⁸¹ We believe that Fuller’s theory captures the essence of what law’s legitimacy entails. Fuller’s theory has, however, attracted surprisingly little attention in environmental legal scholarship despite its usefulness in analysing law’s legitimacy.⁸²

3.2 Fuller’s ‘Eight Ways to Fail to Make a Law’ as a Method for Analysing the Legitimacy of Legal Instruments

In 1958, two legal scholars, H. L. A. Hart and Lon L. Fuller, were occupied with the question of what makes legal systems and instruments valid.⁸³ Fuller argued that law and morality cannot be separated, contrary to Hart’s contention. At a minimum, legal systems, to be considered law at all, need to offer some level of protection to people.⁸⁴ Fuller later fine-tuned his argument on (the rule of) law in his pioneering The Morality of Law.⁸⁵ We argue that Fuller’s account and criteria for the rule of law can be understood as a theory of law’s internal legitimacy and applied as a method for analysing environmental law’s legitimacy. So far, environmental law’s legitimacy has invited surprisingly little discussion from the law’s internal perspective.⁸⁶ In our view, Fuller’s theory is particularly valuable as it explains and reveals the key legitimacy challenges of the impact-based regulatory strategy and allows us to open new perspectives into studying the legitimacy of environmental law.

Fuller’s main argument in Morality of Law can be summarised by saying that law as a policy instrument fails to provide legally legitimate rules and standards for human behaviour unless it fulfils the following conditions:

1. 1) There is a need to have some kind of rules to guide the actions of states, companies and individuals;

2. 2) Rules need to be made public to those that/who are regulated;

3. 3) Rules cannot be applied retroactively, that is, to events preceding the adoption of the rule;

4. 4) Rules must be understandable to the states, companies and individuals that are regulated;

5. 5) Rules cannot contain contradictions with other rules;

6. 6) Rules cannot require the impossible from the regulated parties (ie, legal requirements must be feasible to implement);

7. 7) Rules cannot change constantly;

8. 8) Rules must be applied as they are announced (ie, the legal text should convey the legal norm clearly, and implementing and enforcing public authorities should generally stick to the letter of the law).

Fuller’s conditions have attracted wide support in the legal community as they resonate with some of the most foundational aspects of developed legal systems and the rule of law.⁸⁷ What is interesting in the case of the EU’s documented impact-based regulatory strategy, however, is that much of the current EU environmental law fails to meet Fuller’s legitimacy conditions; it is a body of law heavily based on input from biophysical sciences, and these sciences struggle to meet Fuller’s conditions, as we explain in the next section by using the EU WFD and LULUCF regulation, and their implementation in Finland, as examples.

4. Law’s Self-understanding of Legitimacy in the Context of the WFD and LULUCF

4.1 Prelude: WFD and LULUCF Provisions under Scrutiny for Legal Legitimacy

The following subsections discuss how Fuller’s eight legitimacy criteria play out in the substantive framework of the WFD and the LULUCF Regulation. To be able to pinpoint the legitimacy challenges related to the science-intensive provisions of the two legal instruments, the instruments are discussed in the context of their implementation in Finland. Our specific focus is on two key legal provisions: Article 4 of the WFD and Article 8 of the LULUCF Regulation. The reason why we have chosen these two provisions under detailed scrutiny is that these articles establish the central gateway for science to mingle with the implementation of these provisions.

As noted in Section 2, Article 4 of the WFD stipulates that the Member States are required to reach Good Ecological Status of waters by 2015 (or 2027 at the latest if they are granted exemptions), and that they cannot allow the status of waters to deteriorate. Furthermore, under Article 11, Member States are required to establish permitting systems and other safeguards to implement the required outcomes of Article 4. A key question in complying with the Directive is whether Member States can account for and manage the cumulative human impact on water status. In Finland, the key challenge in this regard is nutrient (nitrogen and phosphorus) emissions from various sources, such as agriculture, municipal sewage plants and industrial operations such as pulp mills.⁸⁸ Most notably, the forestry sector (particularly the ditching of peatland forests and the felling of wood) has thus far remained exempt from most regulatory controls, as the best available science has indicated that the sector plays only a minor role in the nutrient problem.⁸⁹ This omission has recently drawn increasing scientific criticism as scientific analyses establishing the current ecological status and drivers of waters de facto determine whether or not Finland is obliged under WFD Articles 4 and 11 to establish regulatory controls for forest management with an aquatic impact, or not. In this way, legal questions concerning the interpretation of the articles invite—and largely depend on—scientific answers as to whether and how much forestry affects water quality.

Similar scrutiny can be directed at the LULUCF Regulation. The carbon balance accounting approach introduced in the Regulation has been described as ‘science based’.⁹⁰ For example, Article 8(1) establishes a straightforward legal requirement that the Member States must account for the emissions and removals from the category ‘managed forest land’. As briefly explained above, this relies on FRLs, country-level benchmarks for the carbon balances from managed forest land. Member States proceeded to calculate their respective FRLs and proposed them to the European Commission for its technical assessment and final adoption.⁹¹ Article 8(5) of the Regulation states that the Member States’ FRLs ‘shall be based on the continuation of sustainable forest management practice, as documented in the period from 2000 to 2009 with regard to dynamic age-related forest characteristics in national forests, using the best available data’.⁹² Furthermore, FRLs need to take into account the future ‘impact of dynamic age-related forest characteristics’ and may ‘not unduly constrain forest management intensity as a core element of sustainable forest management practice, with the aim of maintaining or strengthening long-term carbon sinks’.⁹³ This highly technical legal provision puts legal expertise in the backseat and de facto calls for full input from scientific knowledge for its implementation and interpretation. Furthermore, Article 8(5) not only necessitates inputs from science but is also accompanied by a level scientific uncertainty only scientists can assess. National scenarios show that forest carbon removals in Finland may vary by as much as double the level of current national GHG emissions combined (excluding the LULUCF sector).⁹⁴ Yet, these removals are also subject to relatively significant uncertainties. For example, in 2019, the uncertainty in net carbon sink in managed forest land in Finland was estimated to vary from −31% to +35% and in harvested wood products as much as ±47%.⁹⁵ This amounts to significant scientific uncertainty. On balance, scientific expertise is key in the way these carbon balances are accounted for and how these uncertainties are acknowledged in measuring compliance with the Regulation’s no-debit rule (see Section 2.4).

In the following subsections, we apply Fuller’s legal legitimacy criteria to the focal WFD and LULUCF provisions. The exercise requires us to simplify many of the nuances involved in the provisions’ national implementation. However, in forcing to the surface the currently hidden deficits in legitimacy—our aim—justifies this sacrifice of detail. Our argument is that the WFD and the LULUCF provisions under scrutiny rely heavily on science for legal-interpretive input, and consequently, if science cannot live up to Fuller’s eight criteria, this is a direct challenge for the legal instruments’ legitimacy.

4.2 Need for Rules and the Requirement to Make Them Public (Criteria 1 and 2)

Fuller’s first criterion states that there need to be rules to guide action, and the second criterion that such rules be made public. WFD Article 4 requiring good ecological status of waters and banning deterioration of ecological quality in conjunction with the Article 11 obligations to have national permit systems and other controls on human emissions in place, can be understood to check this box. But upon closer scrutiny one can see that the specific obligations stemming from Article 4 considering, say, permitting a new pulp mill, depend heavily on the scientific classification of the water body affected as well as on the scientific monitoring data and models to help understand the environmental impacts of the proposed activity.⁹⁶ Whether a project can receive a permit is to a very significant extent dependent on how it will affect water quality in the light of the latest and best available monitoring data and scientific models. More importantly for the present analysis, there are hardly any legal rules setting out how the monitoring data or the models for that matter are produced.⁹⁷ In fact, official estimates for nutrient exports from forest land to waters in Finland are typically produced in projects commissioned by the Government of Finland.⁹⁸

However, the estimates produced by different projects may conflict sharply depending on the selection criteria for empirical data, calculation methods applied and models.⁹⁹ Moreover, in a consideration problematic from the perspective of the second criterion, in particular, the production of nutrient export estimates may not be transparent. Even the description of the data may be insufficient for the researchers’ peers to replicate the study.¹⁰⁰ There may be ‘black boxes’ and such complex manoeuvres in the calculation procedures in the conducted research that laypersons and even peers cannot evaluate them. What is more, it may be found afterwards that the description of some of the calculation procedures—such as the selection of data—in producing the official estimates was false.¹⁰¹ Concluding on the first and second criteria in the WFD context, one can say that there are rules in place (Articles 4 and 11), but rules regulating the production of scientific knowledge are lacking or are not necessarily being followed properly. Moreover, not all the methods or rules informing knowledge production are made public, or those made public cannot stand up to serious scientific scrutiny.

The first and second criteria resonate equally loud and clear in the context of the LULUCF Regulation. The LULUCF Regulation sets general principles in Article 8(5) and criteria and guidance for setting FRLs in Annex IV Part A and B.¹⁰² These include certain rules for models applied to determine and propose an FRL. It is required that the model applied be able to reproduce historical data from the National Greenhouse Gas Inventory. In this respect, the models applied must be consistent with the GHG inventory methods. However, this is as far as the provision goes in providing rules for guiding action—the substantive content of the rule. The question of what methods to deploy in accounting and which modelling assumptions to use in the calculations rests almost solely with substantive and interpretative inputs from the scientific community. The lack of transparency in the alternative models applied to calculate FRLs presents a particular problem in implementing Article 8(5) of the Regulation. Furthermore, the data used for modelling is not publicly available, which makes it difficult to assess whether choosing different approaches to model the continuation and intensity of forest management practices from a given reference period would have changed the FRL for Finland. If there is no access to the models, data or assumptions, it is difficult for experts to understand and validate the results the models generate. Hence, the LULUCF Regulation falls short of meeting the criterion on ‘guiding action’. In addition, while Article 8(5) and the FRLs are legally binding rules per se and ‘made public’,¹⁰³ one could also argue that there are no rules that could be ‘made public’ in the sense of Fuller’s criterion: there are no comprehensive rules guiding how the FRLs should be set and the data used in the calculating FRLs is not available to the public. Hence Article 8, and paragraph 5 specifically, also falter in the light of the second criterion.

4.3 Retroactivity and Understandability (Criteria 3 and 4)

Regarding Fuller’s third criterion (no retroactivity), the Commission has frequently stated that if it is to reach the good ecological status objectives of the WFD, Finland needs to review, for instance, its existing hydropower licenses to introduce fishways and redistribute the environmental flows of rivers in order to help restore migratory fish stocks (most importantly, salmon, trout and eel).¹⁰⁴ The review of permits, by definition, requires the retroactive application of WFD requirements to hydropower permits that were issued decades before the adoption of the Directive.¹⁰⁵ While this may be considered legitimate for reaching the ecological goals of the Directive, the requirement fails to meet the third condition of legal legitimacy, that is, that rules may not be applied retroactively.

Article 8(5) of the LULUCF Regulation requires that the calculation of the projected future sink, that is, the FRL against which the size of the actual future sink is measured, is based on an extrapolation of the forest management practices as they were documented in the reference period. This is the period from 2000 to 2009, and therefore the FRL requires accounting and modelling that replicates past forest management and practices. Similarly, as noted above in the context of this criterion and the WFD, the forward-looking extrapolation required by the FRL approach is justified given the modalities of such a calculation method. However, one easily sees that the determination of a country’s FRL fails to comply with Fuller’s third criterion (no retroactivity).

Furthermore, the fact that Article 8(5) requires the modelling of past activities has led to problems with accuracy and transparency in the Regulation’s application. These concerns were figured out in the initial FRL proposal by Finland with regard to the extrapolation of forest management as it was documented in the reference period and to the ability of the model applied to replicate historical forest management and carbon balances.¹⁰⁶ Based on the information provided by Finland in its revised national forestry accounting plans (NFAPs)¹⁰⁷, there is an unexplained development between the reference period and the first commitment period regarding standing tree stocks per hectare (decreasing) and loggings per hectare (increasing) in forests classified as mature. This lapse in accuracy undercuts the requirement of ‘continuation of sustainable forest management practice, as documented in the period from 2000 to 2009’, set in Article 8(5) of the Regulation. In addition, the ex-post calibration of the model applied to replicate the historical carbon balances has brought to the fore new transparency and potential accuracy issues, whose importance for FRLs has not been analysed. The NFAPs and the proposed FRLs were reviewed by the expert group set by the European Commission under the LULUCF Regulation.¹⁰⁸ The group cited several shortcomings in accuracy and transparency, indicating that these issues are still unresolved.¹⁰⁹

The fourth legitimacy criterion requires that rules need to be understandable. While one may argue that WFD Article 4, which establishes the good ecological status requirement and the no-deterioration rule, is clear on its surface, it becomes quite unclear when the requirement and rule are applied to specific cases. As discussed above in the context of the first and the second criteria, in the case of Finland the nutrient export estimates reported per Article 4 are produced in projects commissioned by the government, projects whose results can, in fact, be very contradictory and thus a source of significant scientific uncertainty. For example, the calculation of nutrient exports has traditionally assumed that forestry has only short-term impacts on exports, whereby estimates have suggested that forestry has very little influence on nutrient exports.¹¹⁰ There is increasing evidence, however, showing that nutrient exports from forestry-drained peatlands are not only persistently higher than from undrained, pristine peatlands, but may even be increasing over time since drainage began.¹¹¹ This scientific incoherence and disagreement over results persists to date and proves how the ‘science’ is obscure in its answers.¹¹² What is clear, though, is that Article 4 is very hard to understand without the requisite science to explain the biological, hydro-morphological and physico-chemical components that combine to ecological status, which in turn has strong legal implications. What is also clear is that due to the strong reliance on science in the impact-based regulatory strategy, these scientific obscurities also transmit to the law’s legitimacy.

Article 8 of the LULUCF Regulation is similarly impossible to implement and interpret without scientific knowledge spanning modelling methodologies, accounting inflows and outflows of carbon in the land use sector, or the use of documented historical data versus assumptions in accounting. To further highlight the nexus between science and law, natural scientists serve legal experts with a best estimate—the FRL—which is a result of meticulous accounting and modelling work. However, Member States’ FRLs are not directly comparable, because FRLs can be calculated using a variety of various modelling methods and GHG inventory data. Hence, Member States’ FRLs entail persistent inconsistencies, significant uncertainties and sometimes disagreement within the EU Member States and between the Member States and the Commission. In calculating the FRL, the estimates for the forest carbon sinks are highly sensitive to the data and underlying assumptions used in the modelling.¹¹³ This means that FRLs are susceptible to changes in key modelling assumptions and different assumptions have different impacts on the results.¹¹⁴ Significantly, what legal experts see at the end of the day when considering FRLs is a single number; they are more or less blind to the underlying scientific jargon. While the experts understand the normative relevance of the FRL, neither they nor anyone outside the group of scientific experts who produce FRLs, can understand the substantive science-intensive content of the relevant provision.

4.4 No Contradictions and Impossible Requirements (Criteria 5 and 6)

The fifth criterion (ie, rules cannot conflict) can have a dual meaning here. On the one hand, we can think of a situation in which WFD Article 4 conflicts with other rules of EU law, or with those of national law. An example would be where the EU treaties and national constitutional provisions establish a right to property and protection of legitimate interests.¹¹⁵ The ambitious ecological goals established in Article 4 may impinge on such rights. A second, perhaps even more interesting conflict might arise between different scientific data sets and models seeking to describe the status of a water body or the different anthropogenic pressures on it. We have discussed above how scientific models may contradict each other in efforts to determine whether once-drained forestlands are or are not a significant and increasing source of nutrient emissions.¹¹⁶ Because obligations stemming from Article 4 hinge on scientific knowledge, we have a conflict between sets of results that prevents ascertaining what exactly WFD Article 4 (coupled with Article 11 on permitting and other measures) requires from forest management having an impact on the ecological quality of waters.

The LULUCF Regulation has brought to light contradictions that relate to the EU’s legislative competences. The EU does not have a common forest policy, and consequently, the Regulation does not apply to forest policies or forestry per se but to an accounting of emissions and removals from land subject to the instrument.¹¹⁷ However, as is true of EU environmental policy more generally, the Regulation probably has a direct and distinct impact on both forests and forest policies in the EU Member States.¹¹⁸ Although the EU’s legislative competence in the field of environmental (and climate) policy is clear,¹¹⁹ the clash between LULUCF policy and national forest policy has caused some Member States—such as Finland—to question the scope of the EU’s legislative competences.¹²⁰ This juxtaposition offers weighty considerations in the context of the fifth criterion.

In evaluating the sixth criterion (ie, rules cannot require the impossible), it is well established in the research covering the implementation of the WFD that the ecological characteristics of different water bodies (lakes, rivers and coastal waters) have been under significant human pressure for decades, if not centuries, meaning that there are legacy loads in waters (eg, nutrients emitted into waters in the past and causing internal loading). Such legacy loads and their internal pressure on the ecological status of waters are typically among the most significant pressures in any given water body, the coastal water bodies of the Baltic Sea being a good illustration.¹²¹ Given that climate change will in all likelihood increase water temperature and nutrient runoff due to increased precipitation, it is unlikely that the good ecological status required by Article 4 would be reached in all EU water bodies by 2027—even if all current anthropogenic nutrient and other pressures on waters stopped today.¹²² Consequently, the WFD may require—by establishing such a strict deadline and high level of ecological ambition—the impossible from many Member States, regional authorities and industrial actors.

The LULUCF Regulation, for its part, affords several points that make it possible to argue that the legislation’s central rules will struggle to meet the sixth criterion. With most nations making unduly slow progress in achieving carbon emissions reductions,¹²³ ever greater attention is being paid to carbon emissions and removals from the LULUCF sector. As the land use sector, especially forests, provide both carbon sinks and biomass for energy, the sector and carbon accounting rules will play a salient role in the EU climate and energy framework in the future. It should be noted here that the European Climate Law¹²⁴ sets a net GHG emission reduction target—emissions after subtracting removals—not only to an emission reduction target.¹²⁵ In other words, the LULUCF Regulation is but one, albeit important, legal instrument in implementing the EU’s climate targets. With accounting rules at the heart of the LULUCF Regulation, it is asking a lot, if not the impossible, of Member States to demonstrate their compliance using the FRL, shown above to be an unreliable benchmark, and to comply with the regulation on carbon sinks, also fraught with uncertainties.

4.5 No Constant Changes to Rules and Applying the Rules as They Are Announced (Criteria 7 and 8)

Regarding the seventh criterion (ie, rules cannot change constantly), the WFD Article 4 requires science to elaborate on what ‘the good status requirement and the no-deterioration rule’ require in specific permitting and other instances. What is curious, however, is that science, by nature, is evolutionary and defeasible. The knowledge about the status of waters, their ecological trends, and the impact of different human activities on the status is changing, not least due to the changing climate.¹²⁶ As the implementation—and interpretation—of WFD Article 4 hinges on scientific knowledge, the obligations for forest management and drainage will face changes when we know more about the impact of those activities on the ecological status of waters. In short, as science is constantly changing, so will the specific legal obligations stemming from WFD Article 4, as they depend on science for elucidation.

The LULUCF Regulation in turn contains a strong review clause, which gives the Commission the competence to uphold the legislation’s requirements by reviewing its overall performance. The Commission is obliged to monitor compliance with the no-debit rule and keep the Regulation under review, ‘taking into account, inter alia, international developments and efforts undertaken to achieve the long-term objectives of the Paris Agreement’.¹²⁷ The LULUCF Regulation is, in fact, not intended to be a static legal instrument, but more of a temporary legal framework that is integrated with the global climate regime and consequently open to review and revision.¹²⁸ In other words, scientific developments can directly influence the normative content of the legislation; with the prospect of change thus inbuilt, the Regulation fails to comply with the seventh criterion.

The final criterion, that rules are to be applied as they are announced, is also curious in the context of the WFD. First, this is so because when the WFD was adopted in 2000, and transposed into national legislation shortly thereafter, many thought that it would only provide a procedural framework for monitoring the ecological status of waters and establishing planning processes and measures to guide Member States towards the good water status.¹²⁹ This was also the understanding of the Government of Finland when it introduced the national legislation to implement the WFD.¹³⁰ This all changed with the CJEU’s ruling in Weser, in which the court declared that WFD Article 4 is legally binding and Member State authorities cannot allow permits for new activities that might deteriorate water quality or jeopardise achieving good status.¹³¹ One may argue that the Court was indeed applying Article 4 differently to how it was announced, especially given that the Directive was initially proposed only as a (mostly procedural) framework for achieving the good status of waters. Second, even if the above does not hold true, once again the key role that science plays in elucidating Article 4 presents a challenge: if science is constantly evolving and the requirements stemming from WFD Article 4 are always contextual (ie, dependent on the specific ecological characteristics of a water body and new trends driven by climate change), how can one ever say that Article 4 is applied as it is announced? Thus, the criterion seems to have no meaning in the context of the WFD, as the legal content of the rules relies on constantly evolving science.

In the context of the LULUCF Regulation, the inability of legal experts to understand or fully interpret the science-packed provisions prompts similar concerns to those detailed above. Given the dynamic normative context of the Regulation, the clear adherence to inputs from science, as well as the temporal dimensions of the Regulation’s key rules (the forward-looking FRLs, compliance periods and the possibility of additional revisions), it is very likely that the Regulation’s rules are not being ‘applied as they are announced’. What is more, following the EU’s Green Deal¹³² and the legislative reform prompted by the Growth Strategy¹³³ the Regulation will be revised within the next few years. Hence, Regulation is destined to fail the eighth criterion, for much the same reason as it did the seventh.

As Section 4 has shown, both the WFD and the LULUCF Regulation have serious legal legitimacy challenges in the light of all of Fuller’s eight criteria. To be sure, these legal instruments are geared to achieving their respective goals effectively, but they do not embody the established principles of how law and legal instruments should operate. Our argument can now be stated in full: EU environmental laws are impact-based, as shown in Section 2. Impact-based regulatory strategies rely heavily on science to help implement and interpret the legal obligations established in the focal instruments. This means that if the law abides by specific legitimacy criteria, science should also do so. However, science does not, and cannot. This realisation presents an array of legal legitimacy challenges which contemporary EU environmental law—and legal instruments adopting similar regulatory strategies elsewhere—must confront.

5. Conclusion and a Way Forward

In this article, we have argued that EU environmental law is moving toward an impact-based regulatory strategy where the law seeks to regulate environmental status, in other words, all cumulative human impacts on the different environmental media. In our view, this shift is a broader phenomenon in EU law, but the domains we have chosen for detailed scrutiny here demonstrate this shift particularly well. Such a strategy is built upon consequentialist ethics, in which the core question of normative assessment (ie, whether some human activity should be allowed or not) revolves around whether the activity has negative consequences on established normative goals, principles or rules. In the context of environmental law, an impact-based regulatory strategy places biophysical sciences (understood in this article as a collective but not coherent institution) in a highlighted role due to its almost exclusive capacity to analyse and evaluate the characteristics of ecological systems and the human impact on them. In the context of our two examples, the WFD and the LULUCF Regulation, the pronounced role of biophysical sciences shifts considerable societal power to scientific institutions not only in drafting and changing legislation but also in implementing and interpreting the law. Ultimately, knowing what the law requires becomes a natural scientific question about the environment and the human impact on it.

The shift to an impact-based strategy in (EU) environmental law is understandable considering that the EU legislature wishes to secure the effectiveness of legal instrumentation in reaching environmental goals. The previously dominant strategy of regulating behaviour has been historically effective—at least in single instances¹³⁴—in regulating point-source emissions but lacks the legal teeth to regulate cumulative emissions emanating from numerous sources.

Yet, an impact-based strategy gives rise to considerable challenges where the legitimacy of legal instruments is concerned. In this article, we have used Lon L. Fuller’s eight criteria, established in his Morality of Law, as an analytical lens to help elucidate the robustness of the impact-based strategy regarding legitimacy. To trace the legitimacy challenges, we focused our analysis on the implementation of two instruments of EU environmental law in Finland. Such a targeted focus enabled both a detailed application of Fuller’s criteria and an elaborate scrutiny of the distinct legitimacy concerns. According to Fuller, the law needs to contain rules that are public, are not applied retroactively, are understandable, are not in contradiction with each other, do not require the impossible, do not change constantly and are applied as they are announced. Our argument is that the current EU environmental law generally, and the WFD and the LULUCF Regulation specifically, do not and cannot fulfil these eight criteria by design. As understanding the legal requirements of the WFD and the LULUCF Regulation requires biophysical scientific expertise, the eight legitimacy criteria are tightly associated with the production of scientific knowledge. But production of the knowledge required by the WFD and LULUCF Regulation does not, and one could venture, cannot comply with the eight criteria. On balance, there are important legitimacy deficits, as illustrated by Fuller’s eight criteria, at the core of EU environmental law.

The key question going forward is, what would be a better alternative to the current impact-based strategy? If impact-based regulation is essential for effective environmental legal instruments, how can we ensure their legitimacy? And who should act after the problem has been recognised—the EU legislature, scientific institutions or some other actor or institution?

Such deliberations require fuller answers than what can be provided in any meaningful detail here, but in our view, the legitimacy challenges highlighted in this article call for broader recognition of how biophysical sciences and the related knowledge production processes operate, and what kind of science it invites. First, this means that the criteria for ‘legitimate’ science are, and will be, somewhat different to those for ‘legitimate’ law. Taking just one example from our analysis, legitimate science always changes with new knowledge, but legal requirements on Member States, individuals and companies cannot change if the law is to be legitimate. However, this statement invites the broader question of whether a more dynamic approach, capable of evolving faster to respond to complex environmental challenges environmental law faces today, would be necessary.

Second, the impact-based regulatory strategy would merit a broader inquiry into whether and how social goals and obligations and social scientific insight related to them could be more integrated in EU environmental law alongside with the ecological goals and obligations. Participatory processes and Member State discretion are important in securing such social aspirations but if the social considerations overall are left at the fringe of EU regulatory instruments and their regulatory strategy, these instruments will continue to have legitimacy challenges. Therefore, the interface between participatory processes and knowledge production would merit more research.

FUNDING

Niko Soininen’s work was funded by BlueAdapt (312650) project of the Strategic Research Council of Finland and Sushydro (332189) project of the Academy of Finland. Sampo Soimakallio’s work was funded by SuCCESs (341312) project of the Academy of Finland.

Footnotes