Hoover Daily Report

The EU's 'Non-Regression' Gambit

via Wall Street Journal Europe
Friday, November 11, 2011

On Sept. 29, European parliamentarians adopted a resolution calling for next June's United Nations Conference on Sustainable Development in Rio de Janeiro to demand that all nations adhere to the "principle of non-regression." In a nutshell, the claim is that international law forbids nations to amend or repeal laws designed to protect the environment.

Most of the European Parliament's nonbinding resolution is a catalog of the usual appeals for green this and sustainable that, backed by such mind-bending assertions as the scarcity of resources is a "new and emerging problem," and "that a green economy must be focused on decoupling economic activity from resource use." But wait, hasn't resource scarcity been the central theme of economic history? And exactly how will the green economy get by without resources?

The resolution also reiterates the well-trod "precautionary principle." That's the idea that the burden is on developers to prove their projects are without risk to the environment, rather than on environmentalists to prove environmental costs of development will exceed the benefits. If adhered to, the precautionary principle is like a trump card that can be played to stop almost any project. It's the card that author Bill McKibben and his merry band of Keystone pipeline protesters want Barack Obama to play, notwithstanding the U.S. State Department's carefully considered conclusion that the environmental risks of the pipeline are extremely low in relation to significant economic benefits.

But having a trump card is not enough for the European Parliament. They also claim it is illegal to reverse any government action taken for the purpose of protecting the environment. They want to carve in stone existing environmental regulations, apparently without regard to whether regulations have actually achieved their purposes, and without regard for competing human goals.

How do they propose to create this one-way regulatory ratchet? By insisting that nations are obliged to comply with the "principle of non-regression." According to the International Union for the Conservation of Nature, "the principle of non-regression is an international law principle . . . requiring that norms which have already been adopted by states not be revised, if this implies going backward on the subject of standards of protection."

Michel Prieur, a professor of environmental law and leading advocate for application of non-regression to environmental protections, argues that the principle is justified because the purpose of environmental law is to protect, not regulate, the environment. Environmental law must therefore be an exception to the presumption that legislators can always change the law, he has argued.

Give the good professor credit for chutzpah, if not logic. Though it seems a hard case to make in a democracy, who wouldn't want to have their favorite laws exempt from future legislative reversal or amendment? Between the precautionary principle and the principle of non-regression, environmentalists have a way to permanently secure their agenda. And they have convinced the European Parliament to sign on, notwithstanding the indisputable costs of regulatory compliance and the desperate fiscal condition of several European governments.

But we should not be surprised. Something resembling the non-regression principle explains the riots in Athens and the staunch resistance to reforming an unsustainable welfare state across most of Europe. Never mind, for example, that 20% of Italy's population is 65 or older while nearly one in three young adults is unemployed. (The comparable numbers are 13% and one in five in the United States.) It seems many in Europe will sooner bankrupt their governments than agree to a little regression in their entitlements.

The European Parliament is apparently blind to the obvious and direct link between their financial and economic crises and their demand that all nations be forbidden by international law to amend or repeal environmental laws. Environmental regulation is no different than any other type of regulation. If the costs of regulation exceed the benefits, the regulation makes no sense. And regulations that once made sense may later prove counter-productive.

There's no mystery why the principle of non-regression is so appealing to many environmentalists. It would exempt existing environmental regulations from review, reform and repeal, even if the costs have proven to be greater than the benefits. The mystery is why the parliament of an economically struggling continent would agree.

Mr. Huffman, dean emeritus of Lewis & Clark Law School, is a member of the Hoover Institution's task force on Property Rights, Freedom and Prosperity.