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.