In the sociology of law it is readily acknowledged that if you as a private person have a certain problem and want to have it addressed, you better make sure that others see the same situation as problematic as well. This dynamic is called ‘from private problem to public issue’. This dynamic forms the corner stone of constructivist theories of social problems. Situations are not objectively problematic, but they are defined as such by claims makers, who promote their assessment of the situation. These claims makers will have to convince others that the situation in question indeed is problematic. If they manage to convince enough others and if these others have enough access to the media, experts and regulatory circles, the situation might indeed become a national social problem that becomes a subject for regulation and state intervention.
In this article this simple theory of problem construction is used to explain the behaviour of state actors in the supra-national legal order of the European Union. European policy making is characterised by a leader/laggard dynamic, which means that some states push environmental policy forward, demand ambitious pro environmental regulation and make sure stringent targets and norms are set. Other states, states known as ‘laggards’ try to thwart these ambitious strategies because they fear they will jeopardise their economic situation, or they do not wish to incur costs by having to adapt their own regulation to new European norms. Whereas in the 1990s it was still more or less assumed that the position on scale of leader or laggard was more or less fixed – some states always leading, some states always behind – currently it is accepted that the spectrum is much more volatile than that. At times states unexpectedly take the lead in a certain area and at other times, progressive environmental states suddenly apply the brakes. The reason for such behaviour is little known or researched.
Might it be that states act as claims makers on certain files in which they have a domestic problem, which they hope to solve by involving the European legislator? There are numerous reasons that it may be helpful to involve the European Union. If a constituency feels strongly about a certain environmental problem they will demand legislation, but setting high standards on your own industry harms their competitiveness vis a vis states that operate in a more lenient environment. Moreover, the constituency might also demand action from a state to convince other countries in Europe that a certain problem needs to be tackled. Conversely, states might have a problem with European regulation that harms their own industry specifically or that leads to other complications in the national arena. They moght subsequently act as laggards trying to convince the European legislator to water down norms or other regulation.
The history of European air quality regulation acts as a test case to see if this argument has some explanatory value. The case is interesting because the UK acted as a champion for air quality regulation and the Netherlands acted in this case as a laggard. This is contrary to the usual view of the Netherlands as a front runner and the UK as a country at times called ‘the dirty man of Europe’. Indeed national problems may explain the unexpected posturing of the two countries. In the UK upheaval occurred over spates of asthma in the early 1990s on which exhaust fumes on cars were blamed. This led to pressure on the then conservative government to come up with a strong comprehensive strategy to clean the air. After the UK drafted this strategy, it made conscious efforts to export it to the European arena.
The Netherlands in turn was bothered by the new strict air quality norms. Here a new problem emerged, not with air quality as such but because the norms caused building projects to be halted by the courts because the air was not sufficiently clean. The government blamed the tight norms from Brussels and subsequently, politicians demanded that the Netherlands would lobby to get the norms adjusted downwards. They indeed did and found themselves in the camp of the laggards.
If it is indeed true that states, just like people export their problems to the European arena in order to solve them there, an interesting process becomes discernible which is termed a process of amplification. Problems that are only national or local in character start to acquire a European dimension. Many countries were not especially worried about air pollution in the 1990s, yet they acquired European regulation through the involvement of relatively few actors, many of which from the UK. Likewise many European countries were not especially bothered by the stringent norms and found a way to meet them or otherwise deal with them. The efforts of the Netherlands to fundamentally change the norms were unsuccessful but their opposition at least contributed to the standards not being tightened further. Problems that do not have a European dimension may acquire them through the efforts of states that act as claims makers, allowing for problems to have more influence on policy making than is warranted by their relative severity.