June 01, 2012

Federalism in European Environmental Decision Making

Europe’s sovereign debt crisis is sparking much debate over the scope and breadth of the decision-making power of the European Union (EU) in the area of finance. Yet, in certain policy areas such as the environment, the EU already functions as a form of federal government. For example, according to the European Environmental Bureau, more than 80 percent of environmental protection laws in the twenty-seven EU nations now arise from decisions made in Brussels, home to the EU lawmaking bodies collectively referred to as the EU institutions. At the same time, the impact of these laws is such that their consequences are felt far beyond EU borders. Given the far-reaching impact of European environmental protection laws—such as the EU emissions trading system or its chemical legislation regime (REACH)—and the EU’s nearly unrestricted authority to legislate in these matters, it is becoming increasingly important for environmental lawyers and compliance professionals to understand the players, powers, and processes that produce these laws and policies.

This article describes the roles of the European environmental decision-making and judicial institutions and explains how their power is balanced by the broad flexibility of the EU Member States in effectuating and enforcing EU environmental protection laws. Strengths and weaknesses of the system will be highlighted along with trends and developments. Finally, comparisons and contrasts to the role of federalism in the EU and the United States will be made to orient the reader along the way.

At the outset, it is important to have an understanding of the EU decision-making and judicial institutions. The key EU decision-making institutions are the Council of Ministers (representing Member States’ interests), the European Commission (representing the interests of the EU), and the European Parliament (representing EU citizens’ interests). The EU judicial institutions, the Court of Justice, the General Court, and the European Civil Service Tribunal oversee the work of the decision-making institutions and further define the parameters of EU authority with their rulings. The highest instance is the Court of Justice, which is commonly referred to as the European Court of Justice or “ECJ.” It is composed of twenty-seven judges (one from each Member State) and handles matters referred to it by national courts or the General Court (called the Court of First Instance or CFI until December 2009). The judges are assisted by eight “Advocates General” who issue independent, impartial legal opinions before the judges deliberate. The Advocate General’s opinion generally deals with the legal issues more comprehensively than a court judgment, which is limited to the particular matters at hand. Although only advisory, the Advocate General’s opinion is nonetheless influential and followed in the majority of cases.

The EU decision-making and judicial institutions interact within complex machinery that is often confusing even for the initiated and still more puzzling to an outside observer accustomed to the U.S. model of federalism. To begin with, the EU legislature, composed of the Council and the Parliament, does not write or introduce legislation. Second, adoption of the majority of binding EU-level legislation occurs through “nonlegislative” procedures. Third, there is no equivalent to the U.S. Administrative Procedure Act; most decisions are adopted in ad hoc procedures that are not governed by enforceable rules. Finally, the EU does not enforce the legislation it creates; this is left almost exclusively to the Member States. These characteristics of EU decision making reflect the EU’s “learning-by-doing” experiment in shared sovereignty and are explained in further detail below.

The EU institutions were created and derive their power from a series of international treaties agreed to and ratified by all EU Member States. Through these treaties, the Member States enter into an agreement to share sovereignty in certain areas. Amended and updated over time, the most recent is the Treaty of Lisbon, which entered into force on December 1, 2009. The treaties authorize the EU institutions to adopt European legislation according to the fundamental principle of “conferral.” Under this principle, the EU can legislate in certain policy areas explicitly set out in the treaty. In some areas, such as competition, customs, and international trade, only the EU can take action; the Member States relinquished all right to legislate. In other areas such as the environment, energy, and climate change, Member States agreed to share authority with the EU in a rather “lopsided” manner: Member States retain their individual power to legislate but only to the extent that the EU has not already done so. An example of this relationship is the notification of consumer products containing nanomaterials. Currently, France, Belgium, and the Netherlands are in various stages of considering or implementing nanomaterial notification requirements. These systems are not harmonized. Should the EU create an EU-wide notification system, these countries would be required to realign their national legislation approaches with the EU-wide requirements.

“Subsidiarity” and EU Directives:The Polish Challenge to the EU Emission-Trading System

Conferral of legislative power to the EU institutions triggers two other fundamental principles that regulate the use of this power—the principles of “subsidiarity” and “proportionality.” These principles establish that decisions should be made at the most local level possible, that is, nationally or regionally, and that EU action should be limited to the minimum necessary to achieve an objective. These concepts are illustrated by the special nature of a type of European legislative act, the “directive.”

By way of background, the EU produces two primary types of European “legislative acts,” regulations and directives. These are introduced by the European Commission and approved by the European Parliament and the Council of Ministers in the “ordinary legislative procedure,” which is the main legislative procedure by which directives and regulations are adopted. Regulations are what Americans typically regard as laws. They are addressed to all EU Member States and their citizens and take immediate effect; they do not require national legislation to implement. Their main advantage is uniformity. Directives, on the other hand, are addressed to Member States and normally define just the objectives and results to be achieved. A directive does not take effect until it is implemented into a national legal system.

Details not set out in a directive are filled in at the discretion of the Member States. Consequently, Member States retain more autonomy with directives, which makes them the legal act of choice according to the principle of subsidiarity, even though implementation can yield widely varied results. This also helps to explain why EU environmental protection legislation will often begin as a directive. If implementation leads to uneven application across the EU, directives are often revised and reintroduced as regulations. This creates greater regulatory uniformity but also decreases Member State authority over implementation, shifting power to the “federal” or EU level.

Controversy surrounding the legislation that created the EU’s emission-trading system, Directive 2003/87/EC (the ETS Directive) illustrates such a shift in the nucleus of regulatory power. The ETS Directive required each Member State to draft a national allocation plan listing the total number of allowances to be distributed (the cap), the method for allocation and the national operators to be covered by the system for the 2008–2012 trading period. The Member States then submitted the plans to the Commission for evaluation against specific criteria and subsequent acceptance or rejection. In 2006, Poland submitted its national allocation plan with a cap considered too high by the Commission. Using its own data and methodology, the Commission slashed the cap by over a quarter and imposed a ceiling on the number of permitted allowances. In case T-183/07, Poland challenged this decision before the EU’s second highest court, the General Court (formerly known as the Court of First Instance). Arguing that the Directive did not authorize the Commission to substitute Poland’s data with its own or to limit Polish emission allowances, Poland asserted that the Commission overstepped its powers and trespassed on Polish sovereignty.

The Commission countered that it acted within the undisputed authority it derived from the ETS Directive, to “review and reject” national allocation plans. With an argument supported broadly by market analysis, the Commission also warned that annulment of its decision could result in a collapse of the emission-trading market. In December 2008, siding squarely with Poland, the General Court (operating as the Court of First Instance) annulled the Commission’s decision, which the Commission subsequently appealed to the Court of Justice. However, in its judgment issued in case C-504/09 P on March 29, 2012, the Court of Justice upheld the lower court’s ruling and confirmed that the Commission overstepped the boundaries of its authority. Illustrating the importance of the principles of subsidiarity and proportionality, the Court of Justice summarized its conclusions stating that “[i]n an area of shared competences, such as that of environmental protection, it is for the European Union legislature to determine the measures which it considers necessary to achieve the intended objectives, while observing the principles of subsidiarity and proportionality.”

As the ETS Directive did not provide clear or explicit direction on how to create the national allocation plans, it was Poland’s sole right, under the concept of “subsidiarity,” to determine the details. According to both courts, the Commission’s role was limited to reviewing and rejecting national plans and the Commission clearly overstepped its power. With regard to any potential impact on the carbon market, the lower court reasoned in case T-183/07 that even a market collapse could not “justify maintaining the contested decision in force in a community governed by the rule of law [. . .] since that act was adopted in breach of the distribution of powers between the Member States and the Commission, as defined in the Directive.”

The lower court’s initial ruling was a blow to the Commission in its run up to the 2008 Copenhagen Climate Conference. The ETS was the centerpiece of the EU’s climate policy, and the decision threatened to undermine the EU goal to be an effective leader in forging a global agreement on climate change. The fallout from the decision was, however, primarily limited to reputational damage. It had limited practical impact on the Commission’s authority. Indeed, two weeks after the ruling in case T-183/07, the EU Parliament announced adoption of the so-called “20-20-20” climate package. This included the Renewable Energy Directive 2009/28/EC, committing the EU Member States to source 20 percent of their overall energy mix from renewables (including a 10 percent target for transportation fuels) by the year 2020 and Decision No 406/2009/EC on reaching a 20 percent reduction in energy consumption by the year 2020.

Notably, the package also introduced Directive 2009/29/EC, which amended the ETS Directive and abolished national allocation plans. Starting with the third trading period in 2013, Member States will no longer set their own caps; instead, all power over how many allowances a Member State allocates to its national operators shifts to the Commission. Thus, in the end, although Poland won its court case, the Commission ended up with more authority. This legal challenge and the legislative evolution of the EU’s emission-trading system illustrate a general European trend: While the EU courts strictly protect Member State sovereignty, environmental decision-making power is increasingly consolidating at the EU level.

How EU Environmental Laws Are Made

The writing of EU legislation (equivalent to an Act of Congress) illustrates a critical aspect of European federalism: the primacy of the European Commission. Only the Commission can introduce an EU legislative proposal. It should be noted that the word “Commission” covers two different concepts. First, it refers to the College of Commissioners, a body whose twenty-seven members (one for each Member State), or “Commissioners,” are appointed by the president of the European Commission and approved by a majority of the European Parliament; it is this body that sets the agenda and formally approves draft legislative proposals. Second, the word “Commission” also refers to some 40,000 civil servants staffing more than forty different divisions, called Directorates-General (DG). These DGs are loosely akin to the U.S. federal regulatory agencies.

DG Environment, DG Energy, DG Climate Action, DG Trade, and DG Enterprise are particularly important for European environmental decision making. The principle of “collective responsibility,” introduced in Article 1 of the Rules of Procedure of the Commission (C(2000)3614), requires them to work together to coordinate the preparation and implementation of the College of Commissioners’ decisions. In reality, however, the different objectives and legislative powers of the DGs often result in conflicting positions. For example, DG Environment’s precautionary approach towards environmental protection is often perceived to be at odds with DG Enterprise’s mandate to strengthen the EU’s industrial base and DG Trade’s mandate to avoid unnecessary trade restrictions. Moreover, as DGs are concerned with different aspects of the same issue, it is not uncommon to see parallel regulations produced with varied degrees of apparent coordination. Hydraulic fracturing or “fracking” to extract natural gas provides a good example. While DG Environment is conducting studies to assess the impact of the practice on groundwater, DG Climate Action recently launched a call for tender to conduct a study on the climate impact of potential shale gas production in the EU. Meanwhile, DG Environment and the European Chemicals Agency (ECHA) are assessing whether or not substances used in hydraulic fracturing are properly registered under the REACH regime. The extent to which these efforts are coordinated is unclear. Consequently, hydraulic fracturing could be the subject of three different regulatory actions.

Work on a major legislative proposal (equivalent to an Act of Congress) begins in a specific policy unit of a DG that will “own” the matter going forward. Under Article 249 of the Treaty on the Functioning of the EU (the highest, or primary, EU law), the Commission adopts its own rules of procedure. For the most part, these are very general and do not dictate the preparatory work a DG must undertake. Consequently, procedures vary. However, as part of an ongoing “better regulation” strategy the Commission encourages certain common steps. These are set out in guidelines, reports, and discussion papers, which are grouped into thirteen thematic areas on the Commission’s website.

The first step is often to produce a policy-setting “roadmap.” This will generally involve a process termed “public consultation.” This term is used cautiously here because it differs significantly from what in the United States would be considered “public participation” in the legislative process. The Commission conducts “consultation” through online web-forms. Such consultation is encouraged and expected but not strictly required legally. Input is often limited by structure, only one of a number of fixed multiple choice responses will be permitted or space for comment will be limited. As an example, DG Climate Action’s policy unit “B.3” is responsible for aviation and maritime emissions and the international carbon market. The unit opened an online public consultation in mid-January 2012 on “including maritime transport emissions in the EU’s greenhouse gas reduction commitment.” In order to fulfill the consultation’s objective to “gather additional information on the shape of a possible Commission proposal,” the consultation asks questions that require a fixed response, such as “yes,” “no,” or “partially agree.” Those answers may be substantiated with a maximum of 1,000 characters. Those who understand the system know that additional comments can be submitted directly to the relevant DG, but there is no requirement that the Commission take them into account. Finally, the Commission has no obligation to acknowledge or respond to the comments it receives. As a result, European public consultations have been criticized as more of a “tick-the-box” exercise in good governance than a tool for meaningful public participation.

Following completion of the public consultation, the relevant DG typically conducts an “impact assessment,” a process meant to prepare evidence for political decision makers. There are no binding procedural rules dictating when or precisely how an impact assessment should be conducted. Instead, the Commission’s Impact Assessment Guidelines (SEC(2009) 92) explain that “in general, impact assessments are necessary for the most important Commission initiatives and those which will have the most far-reaching impacts.” The Guidelines also indicate that an impact assessment culminates with submission of a report to the Commission’s Impact Assessment Board for consideration. This Board does not have the legal power to “return” unsatisfactory work. Instead, it gives an opinion on the quality of the report and may recommend further work. The legal status of the European impact assessment is unclear. Does internal Commission policy, in the form of the Impact Assessment Guidelines, create a legal requirement to conduct an impact assessment? Can a stakeholder challenge a proposal on the grounds of an inadequate, or missing, impact assessment? Only the EU courts can answer these questions, but according to the Guidelines, impact assessment “supports and does not replace decision-making—the adoption of a policy proposal is always a political decision that is made only by the College” (the twenty-seven members of the College of Commissioners).

After, or in conjunction with, the impact assessment and public consultation, the Commission drafts a legislative proposal. Importantly, in addition to aims and objectives, the proposal sets out the tasks, such as drafting of new legislation (equivalent to U.S. federal regulations) or creation of a new agency, that should be delegated back to itself. In other words, when the Commission drafts legislation for the approval of the Parliament and the Council, it will also propose the scope of its own executive powers (e.g., its own mandate, the duration, and possible termination of such mandate, and whether and how the Council and Parliament may exercise a veto over its exercise of its mandate). Once complete, the impact assessment report and proposal are launched into “Inter-Service Consultation,” an internal process taking roughly six weeks during which concerned DGs can comment on the proposal and raise objections. As this aspect of Commission decision making requires consensus, compromise may be needed. If the DGs do not reach agreement, the issue is elevated to the Commissioners’ cabinets (individual support staff). The cabinets attempt to prepare an agreement for subsequent adoption by the College of Commissioners through a tacit approval process. Thus, the Commissioners themselves debate only controversial proposals. Once adopted, a draft proposal is published in the Official Journal of the European Communities, and an EU legislative proposal is born.

It is important to understand that the Commission considers everything up to this point to be its internal confidential decision-making business, that is, private. However, case T-166/05, in which the lower court annulled a Commission decision refusing access to documents and sound recordings, provides compelling legal arguments and jurisprudence to the contrary. Stakeholders are entitled to the internal documents that support Commission decision making. We expect to see a growing number of legal challenges to that end.

Once a draft proposal leaves the Commission, more transparent lawmaking occurs, generally under the “ordinary legislative procedure.” Simply put, the European Parliament receives the proposal, which is then debated in the relevant committee, such as the Environment Committee, following which it is considered by the Parliament as a whole, which may approve, reject, or amend it. The final proposal is then submitted to the Council, which in turn approves or amends it. If amended, the proposal returns to the Parliament. This cycle continues until final agreement is reached or the proposal is rejected.

Implementing EU Environmental Laws

Enactment of environmental legislation is only the first step; implementation is another, even more complicated, issue. As in the United States, implementation of EU laws is delegated to different agencies (i.e., DGs). However, in contrast to the relatively straightforward and well-defined rulemaking process of the United States, the equivalent EU process is often criticized as complex, opaque, and democratically deficient.

Prior to the Lisbon Treaty, the EU version of federal rulemaking occurred through a procedure collectively described by the Euro-jargon term “comitology.” Although the Lisbon Treaty “reformed” comitology, the term and the procedure remain widely used, and comitology remains a central concept in EU environmental decision making. In comitology, the Commission works with hundreds of committees of national civil servants to reach a qualified majority agreement on federal rules. Once agreed upon by the committee, the Council or Parliament can oppose the proposal on limited grounds.

Committee meetings are considered private, and the names of the national experts are generally not publically available despite jurisprudence, such as T-166/05, condemning such confidentiality. In some processes, interested stakeholders may be permitted to attend all or a part of these meetings. However, this is not considered a public right, and the decision is subject to the discretion of the civil servants in charge of the comitology exercise. Meeting minutes are confidential but should be available upon request. Sanitized public versions are published; however, these can appear anywhere from a few weeks to months after a meeting, rendering their helpfulness limited. The Commission does not generally conduct an impact assessment for the rules it adopts. Therefore, effective advocacy on rulemaking at the EU level requires significant amounts of detective work, patience, and a good network of contacts within the institutions.

According to the changes introduced by the Lisbon Treaty, the specifics for adoption of each federal regulation, or “delegated act,” dealing with sensitive issues such as energy and the environment are to be set out in the EU legal act (akin to an Act of Congress) on a case-by-case basis. There is, however, no binding timeline for how this transition away from comitology will occur, and it is unclear how it will function in practice. What is clear, however, is that stakeholders will need to pay careful attention to the drafting of EU legislative acts in order to understand how the implementing rules will be developed.

Several stakeholders, especially the Parliament, have praised this new system because it introduces the possibility to write greater control over the Commission into each new piece of legislation. This optimism, however, is offset by warnings from veteran EU observers who argue that the Lisbon Treaty shifted even more power to the Commission. They argue that the Parliament and Council do not have the technical expertise or resources to monitor how the Commission delegates power back to itself in every draft legislative proposal.

In our view, these concerns have merit. Serious issues about the transparency and democracy of EU nonlegislative rulemaking existed before the changes introduced by the Lisbon Treaty: the absence of administrative rules, the nearly complete absence of impact assessments, closed meetings, and unavailable documents. In the authors’ opinion, the changes introduced by the Lisbon Treaty did not address these concerns effectively.

Challenging EU Environmental Laws

Some hurdles confront anyone wishing to challenge an EU law or regulation related to environmental protection. Challenges can go either directly to the EU courts or indirectly through reference from a national court to the EU Court of Justice. Before it accepts a case, however, the General Court or the Court of Justice examines three things: whether the decision in question can be subject to judicial review, whether the applicant has standing, and the grounds for review. These courts’ restrictive application of the standing requirements has been a major obstacle, in particular the pre-Lisbon Treaty requirement that a party show itself “directly” and “individually” concerned with an action.

The Lisbon Treaty removed the word “individually” for certain cases, so that a party need only show “direct” concern. However, standing remains a hurdle. This is illustrated by the recent dismissal of an action to annul the placement of a substance on the “Candidate List” of products proposed for additional regulation under the EU REACH chemical regulation. Placement on this list triggers legal obligations for manufacturers or importers who place products containing 0.1 percent of that substance on the EU market. It is also the first step a substance takes on the road to REACH Authorization, which imposes potential restrictions on its use.

After placement of a particular substance on the Candidate List, a major supplier of that substance challenged the decision. However, the General Court dismissed the challenge because the manufacturer did not meet the standing requirements. According to the Court, the Candidate Listing may have affected the manufacturer’s economic situation, but economic impact was not relevant; only individuals whose legal situation is directly affected may challenge a measure. While the Candidate Listing did, in fact, trigger immediate legal obligations to notify ECHA and communicate with customers (under certain conditions), those requirements apply only to manufacturers of products containing the substance, not the substance supplier itself. Consequently, the substance manufacturer did not meet the standing requirements for judicial review.

The standing issue is impacted by other developments. The EU is a signatory of the Aarhus Convention, an international agreement setting out minimum requirements on access to information, public participation, and access to justice in environmental matters. The EU institutions expressly committed to uphold the Convention’s provisions with the adoption of the Aarhus Regulation in 2006, a move enthusiastically welcomed by nongovernmental organizations (NGOs) that hoped to gain access to the EU courts. However, after several failed attempts to claim these Aarhus rights, the NGO “Client Earth” brought a complaint before the Aarhus Convention’s Compliance Committee, arguing that the EU’s application of its standing requirements was out of compliance with Aarhus’ provisions on access to justice.

In its recommendations titled “Findings and Recommendations of the Compliance Committee with Regards to Communication ACCC/C/2008/32 (part 1) Concerning Compliance by the European Union,” adopted on April 14, 2011, the Compliance Committee agreed, stating that the jurisprudence established by the European Court of Justice was “too strict to meet the criteria of the Convention.” Noting the removal by the Lisbon Treaty of the word “individual” from the EU standing provisions, the Committee expressed the hope that the European courts would establish a “new direction” for their jurisprudence by interpreting the standing provisions in a manner compliant with the Aarhus Convention. Overall, the combination of changes in the Lisbon Treaty and compliance with the Aarhus Convention may well prove the tipping point that makes EU courts more accessible to those who wish to challenge EU environmental decision making.

Enforcing EU Environmental Laws

In addition to the Commission’s role in the drafting and adoption of implementing and delegated acts, it has another important function: ensuring that the Member States adopt the appropriate national laws within the prescribed timeframe. If a Member State has been warned and fails to fulfill its obligations, the Commission starts an infringement procedure, which brings the matter before the Court of Justice. The Commission is also responsible for ensuring that the Member States enforce EU legislation correctly. This is a sensitive task, and the Commission proceeds with caution, if at all.

Ongoing debate over the REACH 0.1 percent rule is a good example. Under REACH, importers or manufacturers of a product containing more than 0.1 percent of a Candidate List substance may need to fulfill certain legal obligations. However, the exact method of calculating the 0.1 percent was initially unclear. Was it to be in relation to the overall weight of the entire product? Or in relation to the weight of each product component? After extensive debate and repeated review by the Commission’s legal services, the ECHA adopted guidelines dictating that the 0.1 percent measurement be done against the entire weight of the finished product. This means that in the case of a refrigerator, the substance concentration should be calculated against the weight of the entire refrigerator, instead of in relation to each individual component, such as a door handle.

Several countries, including France, Austria, Belgium, Denmark, Germany, Sweden, and Norway, disagree with this interpretation and have declared that they will apply and enforce the 0.1 percent measurement at the component level. Trade associations representing businesses spanning the EU market have submitted several pleas to the Commission to take action and force the dissenting Member States into compliance. At this point, however, the Commission has not acted, nor does it appear likely to do so. The Commission’s hesitancy underscores another important aspect of EU federalism: the Commission is both master and slave. On the one hand, it exists because of the Member States and requires their cooperation to produce federal legislative acts. On the other hand, the Commission has the responsibility for ensuring that the Member States implement and enforce European law. Consequently, the Commission is more likely to operate covertly through diplomatic channels than to overtly restrict Member State sovereignty and burn political goodwill.

The REACH issue is particularly sensitive as it is driven in part by the desire of the dissenting Member States to offer what is, in their view, a higher degree of health and environmental protection. Consequently, it is the authors’ view that relief in the form of forced Member State compliance is unlikely to come soon. Without intervention from the Commission, only a legal challenge or legislative amendment will provide a definitive interpretation of REACH and harmonized application of its provisions. In the meantime, the Commission is due to issue a report in June 2012 on the need for a review of the REACH Regulation. This could lead to possible amendments in the coming years, including even the adoption of the dissenting Member States’ position. Companies working to comply with REACH must be flexible in their approach, in light of these developments.

The REACH “0.1 percent conflict” highlights the fact that enforcement of EU environmental protection laws remains a Member State power. This results in an uneven landscape of penalties and fines for the same offense across the EU. For example, according to the Commission’s 2010 Study on REACH Penalties, depending on which Member State enforces the rule, failure to fulfill the REACH 0.1 percent notification obligation could be a criminal offense punishable with imprisonment, facility closure, product confiscation, and fines in excess of 1 million euro or simply an administrative offense subject to a 2,000 euro fine (in Greece).

There are indications the EU is moving toward a more harmonized approach to enforcement of environmental law. For example, all Member States recently enacted the national laws, regulations, and administrative provisions necessary to criminalize certain breaches of environmental law, such as illegal waste shipment, as required under Directive 2008/99/EC, the Environmental Crime Directive. In recognition of the increasingly complex rules they are required to enforce, Member States are also active in harmonization initiatives, such as the EU network for the implementation and enforcement of environmental law (IMPEL) and the REACH Forum for exchange of enforcement information.

The extent to which federalism will extend to implementation and enforcement of EU environmental protection laws remains to be seen. Companies that operate across the EU might like to see more harmonized implementation and enforcement of EU environmental protection laws. Yet there remains a need for meaningful changes to the administrative rulemaking process, starting ideally with publically transparent and legally binding administrative standards, both procedural (e.g., in terms of standing) and substantive (e.g., in terms of cross-boundary uniformity). Until this happens, private companies doing business in the EU will continue to look to individual Member States’ implementation and enforcement of EU environmental protection laws to offset the Commission’s largely unchecked rulemaking powers.