Critically analyse this statement.

The environmental traditional approach had the characteristic of being free from regulatory standards with very few prosecution and enforcement powers. Unlike the modern approach from the 1970s, the standards were set locally. The shift in approach was a consequence of unmet expectations and due to the EC Directives which favour uniform nationally set standards followed by formal powers of prosecution. Moreover, since the last decade, criticisms arose against the ‘command-and-control’ approach which proved to be costly and formal with hints of discretion abuse. Therefore, a new system with other instruments was again set to adapt to the new world and to combat further pollution rise.

Comparing the British regulatory system with the rule-oriented rigid standards of the USA, Vogel classifies the English system as flexible and informal. The 1986 statement hints on the readiness of the UK environmental protection activists to accept a less imposing approach to allow other instruments to work alongside the administrative regulations, if they prove to be more successful maintaining a sustainable development. Characterising the British regulation as ‘command-and-control’ can be misleading but the term is still used in this essay as an antithesis to the flexible instruments. As we enter the 21st century, although the regulatory controls have proved useful, a new approach is essential; as a result, there is a set of regulatory tool kit available today. The government intends to use regulations alongside alternative tools with public involvement which will henceforth play a more important role in decision-making.

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Direct regulations entail the clear prohibition of harmful activities to protect the environment. Unfortunately, polluters with an administrative permit can evade criminal penalties. The rules to be adhered to are laid down in legislation or in a set of requirements published by the regulator effecting certainty with stability (characteristics of the rule of law); and in some cases the registration holds the requirement of a ‘Duty of Care’ which further demands the regulator’s (Environmental Agency) inspection. The regulation-regime being permit-based minimises the adverse effects of pollution in an effective and distinct manner. The drawbacks are that permits giving a limited right to pollute, draw an inflexible and expensive system which lead to higher emissions, around 6% more than under other standard policy.

Nevertheless, it is to be noted that with the involvement of the Environment Agency and other controllers, classic regulation has a long successful history for, since the industrial revolution our air, beaches, rivers and drinking water have been the cleanest. Viewing regulations as successful and doubting the need for other instruments is a common reaction. In the United States, Kraft and Vig are determined that the environment would be worse today if the government had not enacted the policies during the 1970s and 1980s. Failing to recycle correctly, has proven to have the potency of prosecution when the case of Donna Challice came up with the possibility of a �1,000 fine under section 46 of the Environmental Protection Act 1990. Clearly, the modern method with the capacity of prosecution does act as a deterrent and draws the distinct lines of what is unlawful and blurs the need to adopt other tools to control.

No doubt, there are new challenges coming up. Society is changing: people want mobility, choice and personal services which regulations do not always satisfy. At the same time, there is the demand for a legal framework. The world is more complex, attitudes and expectations have shifted, and our classic environmental regulatory model must respond and not impede innovation. Although there have been reductions in emissions of lead, sulphur oxides and volatile organic compounds, there has been an increase in nitrogen oxide and carbon-dioxide, the main contributor to global warming. The debate of adopting instruments to render the fight against pollution more prosperous is common; however, the most successful option is to design the regulations in a more beneficial manner. Since the use of new numerous tools can lead to more burden and less clarity, improvements from the efforts of Better Regulation Task Force report ‘Less is More: reducing burdens, improving outcome’  are appreciated. The target of ‘red tape’ is to reduce the number of paper work by 25 per cent by 2009 to furnish a more competent regulatory control.

The poor definition of waste in the Waste Framework Directive has spawned endless case law; in Meeston Technical Services v Warwichshire CC10, there was doubt of whether the substances cold be classified as waste. The key to good legislation and regulatory control is flexibility and clarity. In cases other than emission standards and product standards, it is impracticable to hold one person or company responsible for a breach. Establishing responsibility for pollution is a difficult task for the pollution can be dated a long time ago when it was not yet unlawful. Consequently, delays are caused in bringing UK legislation into force. The US government in 2006 argued that regulatory controls on emissions would damage the economy and therefore refused to sign the Kyoto Treaty. Instead, Bush proposed ‘better’ non-regulatory technology to limit emissions. Inspection and monitoring of compliance are essential for an effective regulation but can be very costly and difficult. The obstacles lead to infrequent and inconsistent supervision and hence lead to a failure of implementing the controlling legislation to the optimal.13 Direct regulation continues to have an essential role in securing protection of the environment, except in certain cases, where the conditions do not always apply and other instruments need to be considered.

Implementing the IPPC Directive ‘Best Available Technique’, the UK adopts a flexible and cooperative strategy allowing a balance to be made and allows the regulators to apply the most effective assemblage. The approach shows the shift from a rigid regulation to giving more discretion to the regulators, including the government, local authority or environment agency, to choose the most practicable subjective alternative. Applied with regulations, the BAT brings the ‘command-and-control’ a step forward with flexibility and personalisation. Where a standard is set at European or international level, it should be set in a form that allows as much discretion about the methods of implementing it. Even though discretion has proved beneficial, it also creates tension between the regulators and the regulated.

Environmental principles are based on the ‘prevention is better than cure’ principle. However, the regulations fail to adapt the traditional approach and instead tackle only the acute problematic issues that exist and hence the framework of the regulations is not always planned, ending in a fragmented varying system. Although the use of the old regulations is still essential, other instruments are primordial for the achievement of the ‘modern’ environmental goals. Environmental policy aims to discourage polluting activities. Economic instruments, contrary to rigid regulations limit the cost of environmental protection resources by allowing consumers to make their choice about their actions; to either buy cheaper environment-friendly or higher-priced polluting items. The OECD(Organization for Economic Cooperation and Development) has identified five categories of economic instruments used in environmental protection: namely, charges, subsidies, deposit or refund schemes, the creation of a market in pollution credits, and enforcement incentives. It will be wrong to assume that economic instruments can replace regulations. Charges require the regulatory framework with the proper policing to achieve the objective of deterring pollution.

Since the last decade, there has been an increasing use of instruments other than administrative regulation. Hence, the debate of whether to adopt those instruments or rejecting the old system of regulation is outdated; there is now common agreement that a combination of all is competent. These include the use of economic instruments and self-regulation which require the legal framework to operate. The issue is to find the correct blend of instruments to provide the most effective results. The complete eradication of regulations is definitely the wrong attitude. Financial and economic instruments only reinforce the effect of direct regulation and vice versa.

It has been recognized by the OECD in 1991 that economic instruments provide ‘more flexibility, efficiency and cost-effectiveness’ than regulations.16 Economic instruments for packaging wastes were first introduced by the UK and German governments not to by-pass the direct regulations but to raise money from the investment of producers in new recovery and recycling infrastructure.17 The Producer Responsibility Obligations (Packaging Waste) Regulations for example, excludes the responsibility of returning re-used packaging at several times. Hence, there seems to be a bent towards a combination of both regulations and economic instruments for the fight against pollution. Businesses can choose to reduce financial liability of recycling charges by following the incentives available. The deposit refund system allows the individual to choose whether to return the product and get the deposit tagged on the polluting product refunded.

Self-regulation allows individuals to govern their own behavior and the rules are enforced and administered by themselves. Introduced as a theoretical ‘reflexive law’ in the 1980s, self-regulation today, though rarely used, allows a more flexible self-organization. The drawbacks of self-regulation over command-and-control are that it is not legally-binding, therefore not enforceable. Furthermore, the lack of public involvement in UK informal agreements, has given doubt to the adoption of a self-regulation control. Another economic instrument includes subsidies. As Kamien and colleagues point out, the drawback with subsidy program is: the possibility of firms increasing their emission levels prior to the imposition of a subsidy and reducing the need to higher subsidy payments.

Taxes are increasingly being used in OECD countries for environmental purposes and this trend of market-based system of valuation to pollution is likely to continue. The tax system including emission charge is being adapted to benefit the environmental-friendly consumers, by reducing VAT on energy-efficient light-bulbs and unleaded petrol. Taxes cannot work in isolation, but can be used effectively with other tools to create a balanced policy package which takes account of economic as well as environmental objectives. An alternative is the removal from sale of all high-energy light bulbs in Britain. The government has negotiated to achieve the goal by 2011 by changing to low-energy fluorescent bulbs. Landfill taxes are paid when waste is disposed using a landfill site (the standard rate for 2007/2008 being 24 per tonne). Ideally, the proceeds from the landfill tax can be used to fund the clean-up closed landfill sites; an advantageous point over the prosecutions from command-and-control which encompass expensive processes.

Since the past decade, more attention is paid to emissions trading as an alternative to the rigid regulation. Trading schemes, an example of market instruments, also require regulatory regimes to describe and prescribe the boundaries and mechanisms of operation. Trading schemes need to be carefully tailored to suit the particular environmental objectives and almost always need to be supported by a permit scheme to ensure protection of the local environment. Participants covered by the scheme enjoy flexibility for they can choose either to operate within their allowance, to buy extra allowances in the market to cover any excess above their initial allowance, or to sell surplus allowances if they perform better than their initial allocation. Clearly trading provides cost incentives to participants who employ cleaner technologies, because they will be able to sell surplus allowances. This can help to offset investment costs and may give firms with lower environmental impacts a competitive advantage which the command-and-control approach fails to achieve. However, unfairness can prevail as businesses which lack information and resources, can fail to optimise trading decisions.

Flexible and innovative voluntary agreements can achieve higher commitment from the parties involved than an imposed requirement. Unfortunately, as Aat Peterse from the Brussels-based pressure group Transport ; Environment exclaimed: ‘voluntary targets are clearly not working and the industry is failing miserably to meet them. Without compulsory targets, these promises will not be met.’22 Indeed, voluntary agreements cannot be successful if used as a substitute for classic regulation; they are futile unless effective penalties are in place to deal with under-performance.

Education and advice is vital to raise awareness, and it can deliver significant impacts on the environmental outcomes which regulation is designed to secure. NetRegs provides free environmental guidance for small businesses in the UK. It aids SMEs to understand what needs to be done to comply with environmental legislation and protect the environment, showing the most efficient ways available to use.2Though this type of education may influence individuals to good practice, there is often the need to set up substantial resources. Another way is through self-assessment tool which helps individuals find out what need to be done to comply with environmental legislation. It is anonymous and after completing the questions, environmental guidance that is relevant to the business is received. The Conservative Government White Paper26 acknowledges the need for the public to access information not only to feel their part of responsibility to the environment but also to exert pressure on the regulators.

The Environmental Information Regulations 2004 gives access to British government and other public sector to receive information on the environment informally. After all, it is a right for individuals to obtain environmental information under the Aarhus Convention, unless there are good reasons to keep it confidential. The boosting of shared-responsibility approach from the Fifth Environmental Action Programme29 is being continuously stimulated as a replacement to the old conventional regulations. The instruments seem to have influenced the absolute regulations’ approach. Furthermore, since regulation on its own has not been able to eradicate environmental protection, the Pope suggests that a ‘moral’ obligation has to be adopted in order to feel the duty to protect creation. As a result, the Vatican has been able to successfully become a carbon-neutral state without any legal framework, showing the potency of a free command-and-control system.

Businesses that actively manage their environmental impacts under the Environmental Management Systems (EMSs) can, in some circumstances, deliver cost savings from waste and resource use minimisation and can avoid the cost associated with pollution incidents. Unlike imposed regulations, being voluntary the standards cannot always be guaranteed although the Environment Agency’s continuous scrutiny strives to maintain the requirements of ISO14001. Another online solution to Environmental control is E4e-manager which guides members about how to manage their obligations at a cost of 97 monthly. Yet, once again smaller companies may not have the adequate resources to implement and maintain the certified EMSs.

Conventional regulations do not always specify the outcome, but the process. The 21st century demands a system which provides maximum clarity on outcomes, giving more flexibility in process and in choice. Though there are signs of progress, it will take some time to achieve the exact desired balance between the certainty under regulatory framework and the flexibility of the tools. Since it has been concluded that the regulation cannot be removed, further efforts need to be put to upgrade transparency, accountability and proportionality. Since, regulations alone have not achieved the goal until now; this 21st century should optimise the combination of revised regulations and instruments.

References:

1 D Vogel, National Styles of Regulation (Ithaca: Cornell University Press, 1986).

2 Royal Commission on Environmental Pollution: 21st Report: Setting Environmental Standards Cm 4053, 1998, para 6.34.

3 A Ross and J Rowan-Robinson, ‘Behind closed doors: The use of agreements in the UK to protect the environment’, (1999) Env LR 1 2 (82)

4 J Freeman and C D Kolstad, Lessons from Twenty Years of Experience, (USA, Oxford University Press 2006), p.149

5 Sir J Harman, ‘Environmental Regulation in the 21st Century’ (2004) 6 ELR 141.

6 M E Kraft and N J Vig, ‘Environmental Policy from the 1970s to 2000: An Overview’, in N J Vig and M E Kraft, (4th edition) Environmental Policy: New Directions for the Twenty-First Century, (Washington, DC: CQ Press, 2000).

7 M McCarthy, ‘Mother faces trial for falling down on her recycling efforts’, The Independent, 18 May 2006.

8 D J Fiorino, New Environmental Regulation, ( USA: MIT Press, 2006), p 65.

9 A BRTF report to the Prime Minister, March 2005, http://www.brc.gov.uk/upload/assets/www.brc.gov.uk/lessismore.pdf , accessed on 18th November

10 [1995] Env LR 380

11 Opcit No. 5, para 6.35.

12 Andrew Buncombe, ‘Bush faces legal action over global warming’, Truth Out Online, ;http://www.truthoutorg/cgi-bin/artman/exec/view.cgi/66/24164; Accessed on 20th November 2007

13 Opcit No. 5, para 6.37.

14 S Bell and D McGillivray, Environmental Law (6th edn New York, Oxford University Press Inc. 2006), p. 257.

15 Taxation and the Environment: Complementary Policies, (OECD, 1993).

16 How to apply Economic Instruments. (OECD, Paris, 1991).

17I Bailey, New Environmental Policy Instruments in the European Union (UK: Ashgate Publishing Ltd, 2003), p.118.

18 2007 S.I. 2007/871

19 B Greenwood, Looking Ahead: Environmental Regulation-A future, in A E Boyle Environmental Regulation and Economic Growth, (Oxford: Clarendon Press, 1994)

20 N L Kamien, Schwartz, and T Dolbear, ‘Asymmetry Between Bribes and Charges’, 322. Water Resources Research, 1966.

21 B Russel, ‘Benn announces phasing out of all high-energy bulbs’, The Independent Online, 28 September 2007, ;http://independent.co.uk/uk/politics/article3007123.ece;, Accessed on 15th November 2007

22 C Milmo, ‘Car makers failing on emissions targets’, The Independent Online, 22 April 2006, ;http://environment.independent.co.uk/article359448.ece;, Accessed on 15th November 2007.

23 Sir J Harman, ‘Environmental Regulation in the 21st Century’ (2004) 6 ELR 141.

24 NetRegs, Environmental guidance for business, ;http://www.netregs.gov.uk/netregs/?lang=_e; accessed on 17th November 2007.

25Assess your environmental compliance, ;http://www.businesslink.gov.uk/bdotg/action/layer?topicId=1079438165;r.li=1079507200;r.l1=1079068363;tc=000KW0227810958; accessed on 17th November 2007.

26 The Conservative Government White Paper, This Common Inheritance, Cmnd 1200 (1990) para. 1.20.

27 S.I 2004 No. 3391.

28 The Aarhus Convention, ;http://ec.europa.eu/environment/aarhus/; accessed on 22nd November 2007.

29 Towards sustainability, the European Community Programme of policy and action in relation to the environment and sustainable development, 1993, ;http://ec.europa.eu/environment/env-act5/5eap.pdf; accessed on 25th November 2007.

30 J Macintyre, ‘Pope to make climate action a moral obligation’, 22 September 2007, ;http://news.independent.co.uk/europe/article2987811.ece; accessed on 15th November 2007

31 Living Environmental Management and Performance, ;http://remas.ewindows.eu.org/index.htm; accessed on 22nd November 2007.

32 Online environmental manager,

;http://www.e4e-manager.co.uk/default.aspx?intContentID=1; accessed on 25th November 2007.

33 Sir J Harman, ‘Environmental Regulation in the 21st Century’ (2004) 6 ELR 14.

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