The rise and fall of voluntary agreements in German environmental policy.

Author:Toller, Annette Elisabeth
 
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1 Introduction

For decades, voluntary agreements have been regarded as "an element of a distinctly 'German' policy mix" (Lees 2007, p. 175). Indeed, in the 1980s and early 1990s, Germany had the largest number of such agreements (more than 100 altogether), even when compared to the Netherlands, which also made extensive use of such environmental agreements in Europe (e.g., Immerzeel-Brand 2002, p. 385; Glasbergen 1999). The reasons for the use of these instruments, however, are a matter of dispute: whereas some regard the use of such agreements as a response to the growing problems associated with the use of traditional, regulatory means of regulation (the "better regulation" hypothesis), others consider agreements to be the result of a bad deal made possible by growing business power during periods of globalisation (the power-centred hypothesis).

This article makes two arguments. First, although voluntary agreements were indeed a relevant element of the German environmental policy mix in the 1980s and early 1990s, their use was nearly completely discontinued in the new century. Second, when seeking out the causes of both the high use of voluntary agreements in the 1980s and 1990s and their more recent abrupt abandonment, neither the explanations based on functional arguments nor those based on the power of business can account for the developments observed. Instead, institutions (in particular European law and its effect on national policy decisions) and actors (in particular their party-political positions towards policy instruments) play a major role.

The article is based on an extensive theory-driven empirical study on the use of voluntary agreements in German environmental policy from the 1970s to the mid-2000s, covering both the macro-level and the meso-level, as reflected by 13 in-depth qualitative case studies (Toller 2012a). The article proceeds as follows: In chapter 2, I describe the general use patterns of voluntary environmental agreements in Germany and briefly summarise my case studies. In chapter 3, I first discuss the common explanations for the use of voluntary agreements in additional detail (3.1) and then present my findings, which are based on the approach of policy processes driven by momentum (3.2, see Bocher & Toller 2012b). Actors (driven by party politics) and institutions (European Union law) play a major role in explaining the use of voluntary agreements, whereas the roles of functionality (as expressed in the "better regulation" hypothesis) and business power (as expressed in the power-centred hypothesis) are moderate.

However, two caveats must be noted. First, for reasons of space, the article cannot account for all of the causal factors involved (see Toller 2012a, pp. 227-375). Second, the article only examines the use of voluntary agreements in Germany and its driving forces. It does not address the ecological effects, efficiency or merits or demerits of these instruments or what effect it has on the state to cooperate with societal actors.

2 Voluntary Agreements in Germany: Patterns of Use

2.1 Characteristics

To begin with a definition, voluntary agreements, (1) as used in Germany, are agreements between businesses (usually represented by business associations, sometimes by major companies) and the federal government (usually represented by the Ministry for the Environment, although other ministries or agencies and even the Chancellery may also be involved) to accomplish environmental objectives. (2) In contrast to the Netherlands, where such agreements can be private legal contracts, voluntary agreements in Germany are gentlemen's agreements only and are thus not legally binding. There used to be a strong tendency on the part of industry and the government to call such agreements industry self-obligations, (3) suggesting that they were the result of unilateral activity by business. However, in the majority of the cases, these self-obligations were the result of intense bilateral negotiations between business and government often came about under a more or less credible threat of hierarchical intervention--the famous "shadow of hierarchy" (Toller 2008c). Whereas these written agreements were formerly unilateral self-obligations on the part of business (while the government's pledge not to intervene so long as business complied with self-obligations remained implicit), more recent agreements entailed explicit obligations on the part of both parties and were signed by both (Toller 2012a, pp. 44-46). The bilateral character of the instrument is also an element of a definition based on a report by Mol and colleagues (2000): accordingly, voluntary agreements are characterised by a low degree of force (as opposed to statutory obligation) and a high degree of interaction between societal and governmental actors (as opposed to pure self-regulation).

In contrast to the Netherlands, where voluntary agreements are rooted in an overall governmental strategy to encourage business to become more proactively involved in environmental protection, voluntary agreements in Germany are adopted on a case-by-case basis (Toller 2008a), usually after the government has presented a proposal for a statutory regulation and a business association has reacted to this proposal by suggesting a voluntary regulation. This prelude is typically followed by negotiations over the regulatory substance of the agreement, which is finally either announced by the business and accepted by the government or signed by both parties.

Although voluntary agreements are often criticised for their tendency to bypass the appropriate legislative process and thus add to an overall tendency of deparliamentarisation (e.g., Rose-Ackerman 1995, p. 133; Porter & Ronit 2006, p. 49), in most of the cases under closer scrutiny here, the suggested regulatory alternative has been an executive ordinance in which Parliament would not have been formally involved (Toller 2012a, p. 68). However, the German Bundestag in most cases has discussed the issues at stake. In addition, voluntary regulations are not always an alternative to statutory regulation but rather can be combined with statutory regulation in various and interesting ways (Toller 2012a, pp. 69-72).

2.2 Macro-level Perspective: Patterns of Use

Although many publications label voluntary agreements as "new" policy instruments (e.g., Ingram 1999; Aggeri 1999; Grimeaud 2004; Jordan et al. 2005), at least in Germany, they are not new at all. Rather, this type of agreement dates back to the early days of environmental policy itself: the late 1960s and early 1970s.

If we consider the sheer number of voluntary agreements adopted each year, as displayed in figure 1, we can identify three phases: In a warm-up-phase from the late 1960s until roughly 1983, voluntary agreements were established and--with the exception of 1980--up to two agreements were adopted annually. The heyday of voluntary agreements was a long period from 1984 to 2001, when several agreements were adopted each year, with notable peaks in 1986 (14 agreements) and 1995 (ten agreements). From 2002 on, we observe a decline, with only four agreements adopted in total.

[FIGURE 1 OMITTED]

2.3 Meso-level Perspective: 13 Case Studies

To better understand why voluntary agreements were adopted (instead of statutory agreements), I analysed the adoption of such agreements using 13 cases studies. A case does not cover one agreement alone but rather a regulatory course of varying duration (the longest course spanned 28 years), in many cases including more than one agreement (see more on the research design in Toller 2012a, pp. 90-93). The case studies come from four fields: health protection, pollution regulation, waste management policy and climate protection. I selected the most interesting and complex cases addressing relevant ecological problems in each of the four fields.

For reasons of space, I can only present the core data on the case studies here (see table 1); all data on the policy processes can be found elsewhere (Toller 2012a, pp. 90-201). The results of these case studies are presented in chapter 3 (see, also, Toller 2012c).

Adopting a regulatory course perspective reveals aspects that cannot be observed in macro-data (figure 1) or case studies that focus on a particular case but neglect factors present before or after the adoption of the agreement. Whereas figure 1 only presents the number of newly adopted agreements each year (and the corresponding number of legislative acts), by studying regulatory courses, we can evaluate the "fate" of an agreement. In most cases, agreements are replaced by statutory regulation over time. However, whether this is the case (as is often assumed) because agreements were unsuccessful (rarely the case) or in spite of their success and for other reasons (more often the case) cannot be derived from the data presented here. This question is addressed in the following chapters.

3 Driving Forces

What is striking about the literature on voluntary agreements is that contributions tend either to be descriptive or to address questions of success or failure while remaining rather uninterested in why voluntary agreements are used at all (see Toller 2011, p. 503). If authors are interested, they generally employ implicit assumptions rather than systematically testing different hypotheses. Two broad lines of argumentation in the existing literature are presented below.

3.1 Popular Explanations: Better Regulation vs. Business Power

The first group of arguments, which I subsume under the better-regulation hypothesis, draws on the entire corpus of criticism concerning the numerous deficiencies of traditional regulatory policy instruments. Regulatory law is intrinsically inflexible and simple, and it requires complete information, which the government does not have, or in some cases, this information does not (yet) even exist (Black 2001, p. 107). The law is unable to adapt to all of the...

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