Handbook of Environmental Protection and Enforcement

Principles and Practice

Andrew Farmer

• Publisher: Routledge
• Year: 2012
• eBook ISBN: 9781136564345
• Topic: Politics & International Relations
• Subtopic: Ecology
• Index: Politics & International Relations

Environmental Enforcement Authorities (EEAs), sometimes called Environmental Protection Agencies (EPAs), are the regulatory, monitoring and enforcement agencies of national, state/provincial and local governments worldwide responsible for implementing, monitoring and enforcing environmental legislation. This one-of-a-kind, authoritative handbook offers a comprehensive assessment of the principles and best practice of EEAs throughout the world with a focus on Europe, the USA, Canada, Australia, east and south-east Asia and various other OECD, transition and developing countries.

The book assesses structures, expertise and capacity, financing, permitting, monitoring, inspection, enforcement and EEA performance and future directions. It also identifies best practice for creating or improving EEAs. It offers substantial information for industry on the nature of compliance with environmental regulations as well as vital information for professionals, consultants, NGOs and researchers working at the interface between government EEAs and industry.

1

Introduction: The Principles and
Nature of Regulation

Introduction

Environmental protection poses many challenges in today's society, not least taking account of the range of different social, economic and environmental contexts across the world. This book focuses on one critical area to deliver environmental protection – the work of environmental enforcement authorities.

The environmental enforcement authorities addressed here are those that take action to ensure that environmental regulation is implemented. This is focused primarily on the ‘traditional’ command and control regulatory areas of issuing permits, monitoring and inspecting activities and, where appropriate, taking enforcement action. The role of such regulation has changed and the range of alternative approaches has increased. However, it still forms the core of environmental protection activity in most countries.

This type of regulatory activity has a long history. Nonetheless, probably never before has so much effort been given to examining the nature of regulatory regimes and measures to improve the effectiveness and efficiency of the institutions responsible for ensuring regulatory outcomes are met. This is due to new priorities in developed countries, the particular problems that transition countries have in reforming older institutions and development of new institutions in developing countries. This book aims to examine these issues through the range of basic regulatory activities that environmental enforcement authorities undertake.

It is appropriate at this stage for the reader to ask for clarification of what an ‘environmental enforcement authority’ is. For the purposes of this book, the term is used for any governmental body (ministry, agency, local government, etc.) that is responsible for key aspects of regulation, such as permitting or inspection. It does not specifically include other bodies that might be critical for regulation, such as the courts (although some legal capacity issues will be discussed). The focus of the book is also on issues such as control of pollution and regulation of industry. This does not preclude a discussion of wider issues where appropriate, but it does not, for example, consider the management of national parks and regulation of hunting or fisheries, although these might be included within the functions of some of the institutions considered here.

Environmental enforcement authorities vary significantly in their structures, duties and powers. Chapter 2 provides an overview of this variety, setting the context for the issues addressed later in the book. One of the first practical stages in regulation can be the issuing of permits or licences and Chapter 3 discusses what is involved in this, different types of permitting regime and their relationship to other types of instrument. Authorities need to be confident that permit conditions are complied with, so Chapter 4 discusses approaches to monitoring and inspection. If conditions are not complied with, a variety of sanctions might need to be imposed – what these are and how authorities use them are discussed in Chapter 5. Environmental enforcement authorities should also be proactive in supporting businesses to comply and Chapter 6 considers compliance assistance approaches. Chapters 7 and 8 focus on financing and management, addressing a number of capacity development issues. The book concludes with a final chapter on networking – how environmental enforcement authorities can work together to improve their effectiveness.

The book follows a common structure throughout. To illustrate the general discussion of issues, a number of case examples are provided from around the world. These can be used to illustrate usual or best practice, problems that are being faced or simply to demonstrate the variation in practice. These cases are important as it is very easy to interpret a general discussion in the light of one's own national experience – the cases help provide different perspectives.

Each of the following chapters concludes with a series of checklists. These seek to ask some pertinent, practical questions of environmental enforcement authorities based on the issues that have been discussed. They aim to begin the process of examination (where appropriate), although any detailed examination of the work of an environmental enforcement authority would need to draw upon other sources (such as detailed management techniques).

This book, therefore, focuses on the practical. However, one cannot do this effectively without considering the wider context. This is the purpose of this chapter, which begins by examining the nature of regulation and asking whether it is effective. It then structures regulation in the context of the ‘regulatory cycle’ and identifies and discusses the principles that underlie the work of a modern regulatory authority. It also considers further issues such as ‘better regulation’ and their impact on regulatory activities.

The changing face of environmental regulation

Regulation is both an intention (such as rules set out in law) and a process (such as the permitting and inspection activities of an environmental enforcement authority). The nature of environmental regulation has been under increasing examination from both a practitioner and academic perspective for a number of years. The critical questions that have arisen ask how effective and efficient are existing regulatory regimes and what can be done either to make these regimes more effective and efficient or what alternative regimes might be introduced that are better at achieving the desired outcomes.

This debate has been stimulated by a number of factors:

• There has been a changing understanding of the nature of environmental challenges. The problems of large-scale discharge of harmful pollutants have either been controlled in many industrialized countries or the regulatory regimes for tackling these have been firmly developed (Farmer, 1997, 2005a). Focus has shifted to wider issues of continual improvement, resource use, energy efficiency, product quality, etc. This has challenged the instruments available to the regulator and the working methods it employs.
• The accepted economic climate has changed. Globalization is an increasing challenge with companies demanding ‘level playing fields’ of competition, and a neo-liberal agenda is not only increasingly predominant in western Europe and the US, it has also come to dominate practices in some transition economies and others such as in South-east Asia. This has resulted in a number of pressures on regulatory activity, not least a need to justify the cost- effectiveness of action.
• The social context has also changed, with the public demanding greater accountability of public bodies and a greater say in the decisions that are made. Alongside this there is increasing scepticism (and cynicism) of decision makers. Interestingly, in some countries this is combined with a significant mistrust of scientific and technocratic methods of decision making more generally, which can be a particular challenge to environmental enforcement authorities.

Regulation has, historically, developed through the creation of a range of different control systems that have the objective of achieving certain outcomes through changes in the behaviour of those subject to the regulation. Increasingly the concept of a ‘risk society’ has grown, which recognizes that society is surrounded by risks that it, itself, produces. In order to address these risks, various forms of ‘surveillance’ are demanded (termed a ‘surveillance society’ by Lyon, 2001), and failure to manage risks can result in demands for standardized systems of control (Power, 1997). Lidskog et al (2005) argue that ‘the idea behind regulation is not to eradicate risk, but to manage it and draw boundaries for the acceptable’. There is also an increasing scepticism and lack of confidence in regulatory systems due to publicized examples of the failure of regulation to deliver what the public are told it will do (Löfstedt, 2004).

The nature of environmental regulation also cannot be separated from wider developments in the thinking on governance in general. In particular, the nature of the nation state is under scrutiny, driven by international developments, globalization, demands for localized decision making and a questioning of what governments should or should not be involved in. Some have argued that this represents a combination of decentralization and fragmentation of power. For example, some have argued that there is a tendency for deregulation by the State, whereby it is slowly divesting itself of its regulatory systems, either by removing a regulatory regime or by allowing some forms of self-regulation by interest groups (e.g. an industry sector). Importantly, this might not result in fewer rules; rather that they do not emanate from the ‘centre’, but are more diffused through society.

Organizations other than those of the State can be involved in developing and implementing rules. In environmental management examples of this are found with certifiers and verifiers for environmental management systems, or in ecolabelling. As Black (2002) stated, ‘in decentred analyses regulation “happens” in the absence of legal sanction – it is the product of interactions, not of the exercise of the formal, constitutionally recognised authority of government’. From this viewpoint, regulation should not be viewed as a process whereby the government manages the problems perceived by society, but rather that both government and society have problems and solutions and both are mutually interdependent.

While elements of this ‘decentralization’ of regulation have occurred, arguing that this is a fundamental trend for future governance is too extreme (Lidskog et al,2005). Indeed, there are many examples of the nation state exerting increased influence, and a number of recent developments in environmental regulation do not necessarily lead to a view of declining control (the last 20 years, for example, has seen a major increase in traditional environmental regulation in some European countries, much driven by collective action at European Union (EU) level). Indeed, rather than view the State as central to regulation or argue that deregulation is always desirable, some argue that the debate needs to be taken to another level, building on these different processes and understandings (Gunningham and Grabosky, 1998). In other words, there are different threads in society each with their own rule systems. Traditional command and control government-led regulation remains a key part of this. The adoption of alternative policy instruments (e.g. taxes) also reflects a change in the governance landscape. Whether this reflects a retreat or an extension of State influence is a subject of debate (e.g. Jordan et al, 2003).

Command and control regulation is considered to be the preserve of the State as only it is assumed to have the capacity to be effective at ‘commanding’ and ‘controlling’ (Black, 2002). Baldwin (1997) defines command and control regulation as ‘the exercise of influence by imposing standards backed by criminal sanctions… The force of law is used to prohibit certain forms of conduct or to demand positive actions or lay down conditions for entry into a sector.’ The role of the State in command and control regulation can be viewed in different ways (Baldwin and Cave, 1999; Lidskog et al, 2005). One is the ‘normative tradition’. This sees the State operating regulation in order to achieve a common good, that is, a series of publicly agreed desirable outcomes. This assumes that the free market will not deliver these outcomes and assumes that the actors in the process (regulators), with their expert knowledge, can be trusted to deliver the common good (e.g. environmental enforcement authorities delivering environmental protection). In contrast an ‘interest-based’ view of regulation does not see regulation as acting for the interests of society as a whole. Rather, regulation is one of a series of different clashing interests. In this case those with expert knowledge can be found within each of the competing interests. This is particularly evident today in the prominence of the debate over the appropriateness of environmental regulation in relation to the interests of business sustainability.

Command and control regulation depends upon enforcement. However, recourse to legal remedies is seen as inefficient and not cost-effective, particularly in comparison to other approaches, such as education and negotiation (Baldwin, 1997). Indeed, as will be seen in later chapters, regulation based solely on enforcement is very rare. It is usually complemented by other approaches, so that its effectiveness is increased.

It is also important to stress that, in understanding the nature of regulation, it is vital to take account of the widely different social, economic and development contexts of different countries. Across the world the understanding of the role of the State varies as do the expectations of social norms. In transition countries, for example, one response after the rejection of the socialist systems was to question the role of the State as a reaction to years of State control over most aspects of life. Changing circumstances in developing countries also need to be addressed. For example, Jha and Whalley (1999) note that as environmental management systems in developing countries often rely on informal social norms, these systems break down under rapid population growth (such as urban migration). It should also be noted that transplanting western models of legal structures (‘rule of law’ and particularly that the government itself is subject to the rule of law) has often failed in developing countries due to economic issues, corruption, resources, political will and so on. One reason is that, in developing countries, informal means of resolving disputes are often more important than formal ones (Ogus, 2004). Identifying trends in the changing role of regulation must, therefore, note the context in which these trends occur in order to take into account the social (and other) factors that affect these changes.

Adopting approaches other than command and control or making command and control more flexible is part of the changing nature of environmental regulation. Measures such as emissions trading, environmental management systems and negotiated agreements are covered in more detail in Chapter 3.

Does regulation work?

The basis for the work of environmental enforcement authorities is environmental regulation. It is not unreasonable, therefore, to ask whether such regulation works. If it does not work, is this the fault of the regulation itself, the way that it is implemented (by authorities) or the fault of wider problems? In this case what can be done to improve the situation to achieve environmental outcomes? If it does work, it is also important to know why, so that success can be built upon. However, in answering the question, it is necessary to examine it from two perspectives –does regulation work for individual activities, and does regulation work when considered in its overall effect on the activities that are subject to it?

The first part of the question, on individual activities, has a variable answer. There are many companies that comply and have actively changed their practices to meet the objectives of the regulation. However, non-compliance also occurs and, although sanctions might be imposed to encourage future compliance, there still continue to be cases of deliberate ...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• List of Figures, Tables and Cases
• Foreword
• List of Acronyms and Abbreviations
• 1 Introduction: The Principles and Nature of Regulation
• 2 The Nature of Environment Enforcement Authorities
• 3 Permitting
• 4 Monitoring and Inspection
• 5 Action in Response to Non-compliance
• 6 Compliance Promotion
• 7 Financing Environmental Enforcement Authorities
• 8 Management of Environmental Enforcement Authorities
• 9 Networking
• References
• Index