1.1 Introduction
Environmental regulation has an important role in achieving a clean, healthy and sustainable environment. It protects people, animals and plants from damaging actions and harmful chemicals. It ensures that we use our resources including energy, and manage our wastes, in a more sustainable way. Environmental regulation can set the minimum requirements for an activity or impact and can create a level playing field between operators, sectors and countries. It can encourage innovation and new technologies as well as curtail unacceptable behaviours.
Environmental regulation can take many forms, from the enforcement of a numerical limit or standard (a driving comparison is the speed limit) to operational controls (the tachograph in the cab), to voluntary initiatives (fitting a speed limiter) and agreements (buying a different vehicle). The success of these actions is usually only as good as the quality/competency of the operator (or driver) and the enforcement authority. If the amount of monitoring or the number of enforcers is reduced, non-compliance tends to increase. In any activity, while the majority will comply because of the regulations, there is always a small number who will try to avoid the regulations. It is important that the regulatory tools are kept under review to ensure that they are achieving their objectives in the most cost-effective way and keeping ahead of the changing world.
In an uncertain world, one certainty is change. Our environment is continually changing because of natural processes and human interventions. Over the past 150 years we have seen radical changes to industrial and business practices, materials used, wastes and pollutants produced. We have improved our understanding of the causes, effects and consequences of environmental damage but we still face surprises and are slow to adjust to the threats, ranging from climate change to managing our waste. Our environmental regulation and practices in the UK and Europe have often struggled to keep up with all these changes, occasionally making significant steps but usually being slow to evolve, for example, in responding to the need to tackle climate change. The public, governments and businesses can have differing perceptions and priorities, but when they converge, commitment and change can be quicker, for example, the introduction of a carrier bag charge (UK Parliament 2015).
The vote to leave the European Union (EU) has the potential to have a dramatic impact on environmental regulation. We will need to ensure the continuation of the hard-won Europe-wide baseline for environmental protection on the likes of waste, habitats or air quality and maintain alliances with European regulators, operators and policy makers. We will also need to ensure that environmental protection, climate change and sustainability measures are not lost or diluted in the rush to negotiate new trade agreements around the globe.
This book focuses on the environmental regulation of businesses, more than on individuals. This chapter provides a snapshot of where we are now, the lessons and experiences from the past and, most importantly, pointers as to the future of environmental regulation and practice. Subsequent chapters address the balancing of the benefits and burden of environmental regulations and the drive for deregulation, better regulation and self-regulation.
1.2 Overview of the Regulatory Landscape
We all need regulations, whether they are controls on the manufacturing of toys to avoid injury to children or on car drivers to avoid accidents. We all tend to push at the requirements of these regulations until they are enforced. In 2015, over 1.2 million UK drivers attended speed awareness courses for having exceeded the speed limit (National Driver Offender Retraining Scheme 2016), and according to the Royal Automobile Club (RAC) foundation, the transport policy and research organisation, three-quarters of a million fixed penalty notices were issued for speeding in 2014. Despite knowing the reasons for and benefits of road safety regulation we continue to push the boundaries.
National UK laws were developed to address issues across the country and more recent national legislation has been in response to global or regional international agreements. The EU has increasingly been the primary source of environmental regulation legislation with member states transposing it into national law.
Under the Ordinary Legislative Procedure (European Council 2016), the Commission submits a proposal to the European Parliament (EP) and Council of Ministers (Council) who either approve or amend it. If the EP and Council cannot reach an agreement on the proposed amendments, both can amend the proposal a second time. If they still cannot reach an agreement they enter into negotiations. Following the conclusion of these negotiations, both institutions can vote either in favour or against the proposal.
There have been regular complaints of āgold plating ā of EU legislation made in some countries while other countries have been accused of a lack of legislation or poor enforcement (Davidson 2006; Gerda Falkner et al. 2004). In the UK and across Europe, there is a drive for deregulation, modern regulation or better regulation (European Commission 2016). In parallel, there has been a significant drive to cut costs and expenditure. This has resulted in the development of new approaches to the achievement of environmental outcomes, the reduction in some levels of inspection and enforcement and the loss of significant amounts of guidance . It is debatable whether we have yet seen all the benefits and savings to regulated activities, the public or the environment (Hjerp et al. 2010).
There is significant confusion and uncertainty in the public and business mind as to what is āenvironmental regulationā. It includes:
EU directives (which require national states to implement in their own legislation (transposition))
EU regulations (which apply directly to a member state without the need for national legislation)
EU decisions (which have direct effect but only relating to a specific person or entity)
UK primary and secondary legislation
local authority laws
Many also use the words āenvironmental regulationā to embrace the guidance and agreements between regulators, industry, industry bodies and third parties. Some regulations contain clearly defined limits with details on how they are applied. Others contain requirements such as the use of ābest available techniques (BAT)ā in the EU industrial emissions directive (IED), which require greater clarification. The EUās BAT reference documents (BREF) and UK guidance give BAT-associated emission levels (BAT-AEL) . Subsequent sections provide further details on this directive.
Because of this complex mix of regulation and guidance , much of the enforcement and enforceability of environmental regulation is dependent on a common understanding between a company and their regulator. In many cases, this is dependent on the understanding of the individual officer and their business/industrial counterpart. As a result, there can be resistance by an industry or an individual company to changes in their respective regulator and charges of regulatory capture by third parties. The regulatory bodies address this issue by ensuring that there is movement of regulatory staff, the use of local and national regulatory teams and robust procedures for monitoring, inspection and enforcement.
With increasing restrictions on resources and the very diverse range of activities and environmental impacts regulated, it is increasingly difficult to achieve site-specific expertise and flexible regulation. For large businesses and across industry sectors, a dedicated regulator account manager may have oversight of the working relationship. For industrial processes, a cost-benefit analysis is used to determine what the regulator considers BAT . If the costs are disproportionate to environmental benefits, the IED allows authorities to disregard BAT-AELs when setting permit conditions.
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