5.1. From the Environmental Protection Act of 1973 to that of
1991
The first Environmental Protection Act from 1973 was primarily aimed at industry1. At the beginning of the 1970s, the whole of the Western world viewed continued, uncontrolled industrial growth as a threat to mankind’s survival.
In this part of the book I will therefore outline the fundamental concepts of the Danish Environmental Protection Act, and explain how it has evolved through 20 years of practice.
The basic idea of how to regulate Danish industry was copied from Sweden. In essence, the idea is that one draws up a list of the most polluting branches and then stipulates individualized requirements for the various enterprises. When the draft of the Danish Environmental Protection Act was formulated in 1972, Sweden had already had an environmental protection Act for several years.
Political progress towards the adoption of the Environmental Protection Act in 1973 was characterized by thorough negotiation between the government and industry. As a consequence, industry accepted the new regulations.
5.1.1. The strategy for combating pollution:
With the new Act, industry was to be subject to individualized environmental requirements. On paper this was nothing new there had previously been rules that polluting enterprises had to have environmental authorization. However, the rules were administered by collegiate bodies comprised of civil servants with other high positions. The collegiate bodies did not have their own personnel and they did not receive many consent applications; moreover, when they did receive one, the case was considered on the applicant’s premises. That which was decidedly new about the 1973 Environmental Protection Act was that an effective administrative apparatus was built up consisting of several hundred full-time employees: This comprised an Environmental Protection Agency as the national administrative element, and technical administrative divisions in the counties and municipalities as the implementory element. Without this apparatus, the new rules would just be an ineffectual gesture.
Right from the start, Denmark has cherished the Polluter Pays Principle (PPP). The principle is in harmony with what the EC recommended to Member States in 19752, and is in fact one shared by Western countries. As far as concerns the Environmental Protection Act, the principle means that environmental requirements can be imposed upon enterprises, and that they have to pay whatever costs these entail theoretically, environmental requirements could even force an enterprise to close completely. Thus although the Danish Constitution protects the rights of private ownership, the State can if so warranted out of regard for health or the environment restrict freedom of action. The PPP currently applies to all of Danish industry without exception.
However, the PPP only stipulates that the polluter shall pay the costs of meeting the environmental requirements, and not how the environmental requirements are to be determined. In Denmark and other Western countries, the view rapidly developed that requirements to new enterprises should be determined according to what can be achieved utilizing the best available techniques (BAT). Under Danish rules BAT is defined as "that technology which is technically feasible and financially attainable for the enterprise in question".
In practice, the Danish interpretation of the BAT concept is close to the German "Stand der Technik", i.e. that the first step should be to investigate the possibilities for using less harmful substances and for organizing production such that emissions are as few as possible, as well as that BAT shall be used to treat the inevitable emissions. While BAT means techniques that are financially attainable for the type of enterprise in question, it is of course also a requirement that the emissions do not cause harm to man, animals or plants.
The environmental requirements imposed on industry are determined by individual rulings; in practice, however, it is not necessary to determine what is BAT in every single case. The majority of cases are encompassed by the Danish EPA’s Guidelines, and the requirements stipulated in them are usually considered as reflecting what can be achieved using BAT.
The Danish EPA Guidelines thus play an important role in this system. The Guidelines are arrived at after thorough consensus-like negotiations with the involved parties. The Danish EPA and the highest body of appeal - the Environmental Board of Appeals - attach considerable importance to the Guidelines. The argumentation has therefore to be very convincing if the Guidelines are to be departed from in a specific case. However, even though the Guidelines are followed very closely, there is still some room for flexibility, something that would be missing if the same general rules were applied to everyone.
As a safeguard against too excessive individual rulings, industry saw to it that a special provision was included in the 1973 Environmental Protection Act4 stipulating that rulings should take into consideration the individual enterprise’s economy and importance to society. However, this provision came to be the subject of considerable debate. Opponents viewed it as a significant barrier to the attainment of reasonable progress on the environmental front. This was perhaps an exaggeration or an incorrect diagnosis. The provision has only been cited in a few rulings, and can have influenced the negotiations in some others. Nevertheless, the congruity provision became a symbol of the lack of progress.
In 1986 it was dropped. Consideration has now to be given only to the nature of the surrounding environment and the impact of the pollution on it. In connection with the amendment to the Act, it was emphasized that the doctrine of proportionality espoused in administrative law should be respected no matter what: One cannot demand of an enterprise that it defrays considerable costs for additional pollution-limiting measures if the environmental benefits will be modest and are not environmentally necessary. The difference from the previous situation is that an enterprise that causes serious pollution is always liable to defray the cost of reasonable environmental improvements. It cannot excuse itself on the grounds that its economy is poor, and that many jobs are at risk. BAT - especially the criterion "financially attainable" - and the doctrine of proportionality modify the differences, though: Evaluation of economic possibilities still plays a major role.
The environmental quality of the specific surroundings is of course taken into account when stipulating environmental requirements in individual rulings. As far as concerns the aquatic environment, attempts have been made for many years to make recipient quality planning a significant instrument, i.e. that environmental quality objectives are set for water bodies that receive waste water (the "recipients"). The idea was that the polluter should be made to treat effluents to such an extent that the objectives could be met. In practice, however, this was too complicated to give satisfactory results. With the introduction of the Action Plan on the Aquatic Environment in 1987, recipient quality planning was superseded by BAT: The minimum standard demanded with respect to both major industrial outfalls and municipal sewage treatment plants was treatment according to BAT principles. It is still possible to impose more stringent consent conditions on the basis of water body quality objectives. However, the municipal councils have so far been given political assurance that requirements exceeding those in the Action Plan on the Aquatic Environment will not be imposed before 1995.
The idea of imposing requirements as to or based on the environmental quality of the surroundings will be examined in detail in Chapter 11. In respect of pollution from Danish industry, however, the results so far achieved are almost certainly attributable to the implementation of the BAT principle.
Discussions at international meetings concerning thinning of the ozone layer and the greenhouse effect have led to widespread support for the precautionary principle5: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The precautionary principle is ensconced in the 1991 Environmental Protection Act, and it shall be applied when stipulating rules and guide levels. However, the environmental authorities may not invoke the principle in individual specific cases.
5.1.2. From dilution to treatment to cleaner technology:
In the first years following the introduction of the 1973 Environmental Protection Act, pollution often tended to be viewed solely as a problem of too great concentrations in relation to the immediate surroundings: If it was air pollution, e.g. with sulphur dioxide, the solution was a smokestack high enough to ensure appropriate dilution. If it was the discharge of trade effluent to a watercourse by a large enterprise, the effluent could instead be led to the sea via an outfall so long that it reached out to the offshore current streams. At that time the sea was considered a "robust recipient" with sea water being viewed as a natural treatment plant that could metabolize all substances that were not environmentally hazardous.
At no time has dilution policy been absolute, however, environmental requirements based on treatment having also been imposed right from the start.
In the beginning of the 1980s the Nordic countries succeeded in persuading the surrounding world that acid rain caused by SO2 emissions really was an environmental problem. In Denmark we had to admit that because of the prevailing southwesterly wind, Danish SO2 emissions made a significant contribution to Sweden’s problem. Since 1985, Denmark has therefore started to implement SO2 abatement techniques.
In the mid 1980’s experts began more and more to doubt whether the sea could tolerate the effluents. A serious episode of oxygen deficit in 1986 decided the matter once and for all. No one speaks of the sea as a robust recipient any longer. All enterprises that discharge effluents into the sea have to treat the effluents in accordance with the BAT principle.
However, treatment has the limitation that one environmental problem, e.g. polluted trade effluent, is often converted to another environmental problem in the form of waste from the treatment process - in this example, sewage sludge. Cleaner technology is based on the concept that manufacturing can be undertaken in such a way that less waste is produced, and that this is advantageous for both the environment and the enterprise. The idea is actually as old as the environmental debate, but it is only with recent year’s technological development that examples have been forthcoming in large numbers.
The vision of cleaner technology is one that is shared internationally. This also applies to the extension of the principle that goes further than the individual producer and evaluates the whole of a product’s life cycle from raw material via production and consumption to waste - from cradle to grave . As yet, cradle-to-grave or life cycle considerations have not been incorporated as environmental requirements. However, the tool - life cycle analysis - is being developed, both in Denmark and in other industrial nations. It will not be easy to convert life cycle analyses to environmental requirements, though: many goods are imported and in the case of imported goods much of the environmental impact occurs in countries other than Denmark.
In connection with the concept of cleaner technology we should examine the concept of environmental auditing. EC Regulation 1836/93 on eco-management and audit introduced a voluntary scheme that entered into force in 1995. In the course of a few years the first Danish enterprises are expected to have been audited. The environmental audit only comprises the enterprise that requested it, but the system includes that suppliers also have to live up to certain requirements on the environmental front. Some Danish enterprises are already aiming for certification of their environmental management under BS 7750, which is based on the same ideas as the Regulation. Interest among well-run Danish enterprises to promote themselves with the aid of environmental management seems to be rather great.
An example of the practical use of the "cradle to grave" concept is the EC eco-labelling scheme. The rules about eco-labelling are stipulated in Regulation 880/1992, and the criteria pertaining for the first products have already been published10. The idea of the eco-label is that consumers should demand goods whose environmental correctness is documented by the EC eco-label. If EC consumers react in the same way as did Swedish consumers to the corresponding Nordic eco-label (which is in use in Sweden, Norway, Finland and Iceland), the eco-label could have a considerable impact on the turnover of goods.
5.1.3. From complaints by neighbours to global environmental problems:
The system whereby individual rulings are made is based on the acknowledgement that enterprises differ. At the same time, however, it is good at balancing the relationship between an enterprise and its neighbours. It was after all neighbours who were the most obvious victims of pollution.
The 1973 Environmental Protection Act was formulated - whether that was the intention or not - such that neighbours were able to greatly influence the efforts of the authorities. Cases were brought before the authorities from two sources; either from neighbours, who complained about an enterprise, or from an enterprise, which required an environmental consent. Once the consent had been issued there was also the possibility that neighbours would complain to the body of 1st appeal.
In practice it was mainly noise and odour problems that gave rise to complaints from neighbours, i.e., purely local problems.
On this background some of the so-called green organizations managed to fight their way to achieving the right of complaint in 198211. They could quite rightly refer to the fact that in contrast to neighbours, they would attend to general public interests in protecting the environment. Extension of the right of complaint thus also contributed to a shift in emphasis towards greater interest for the problems that threaten the ecological balance.
Since then, however, both national and international problems with maintaining the ecological balance have become much more apparent. At the national level, the episodes of oxygen deficit and the Action Plan on the Aquatic Environment have refocussed the centre of attention away from the neighbours of enterprises. At the international level, terms like acidification, the ozone layer and the greenhouse effect have become well-understood. The 1987 Brundtland Report12 also contributed to bringing home the international problems to the Danish public.
5.1.4. The 1991 Environmental Protection Act - Continuity:
In 1989 the Minister for the Environment lay before Parliament a package of 4 basic environmental Acts - the Environmental Protection Act, the Town and Country Planning Act, the Nature Protection Act and the Watercourse Act. The Minister had preferred to completely rewrite the laws instead of just undertaking partial amendments like her predecessors had done.
The Environmental Protection Act did not give rise to any major political difficulties. To a very great extent it was founded on the previous law and on notions that met with broad acceptance. The most far reaching of these was the idea that all existing enterprises should undergo an approval procedure (see section 5.2.2). However, every one, including industry, agreed that this was a reasonable requirement. The aspect that caused the Minister for the Environment the greatest difficulty was the provision making it possible to enter into binding agreements (see section 4.4.5.) - the problem was that the local politicians felt that they had been put out of play.
The 1991 Environmental Protection Act was adopted by a large parliamentary majority and entered into force on 1 January 1992.
It has been important for the course of events from 1973 to the present
that the major lines in environmental policy have had support and approval of nearly all
the parliamentary parties.