Environmental Protection and Command and Control Regulation - Essay Example

Environmental Protection and Command and Control Regulation Introduction This study examines the use of Command and Control (CAC) in enforcement of environmental regulations and various styles of enforcement. Environmental command and control is the traditional approach for regulating environmental pollution and the most common method across the industrialized countries (Abbot, 2009). It involves prescription on the nature of control, the command imposition of the sanctions to back the command, and the controls. The standards and targets are centrally imposed and enforced by the use of sanctions in case of non-compliance. The implementation of environmental regulations and controls are intended to minimize the adverse effects of human activities on the environment (Abbot, 2006). However, most companies and individuals are unlikely to comply with the environmental obligations without credible enforcement of the established commands and controls. Rational for Environmental Regulation According to Baldwin, Cave and Lodge, (2012), the way in which regulations work is principal concerns to the government, citizens, industries and the consumers. The government has the responsibility to enforce environmental regulations and controls. During the enforcement of environmental regulatory policies the government must act in the best interest the public. This implies that in case of conflict of interest between an individual or industry and the implementation of government policies the government should pursue the interests of the public and without regard for the individual or an organization (Abbot, 2005). Therefore, the government should have a real course for regulation in order to pursue that course effectively. The government has various reasons for enforcing environmental regulations and controls as discussed in below. Firstly, the issue of market failure has been stated in Baldwin et al (2012) a cause for government involvement in environmental protection. Market failure is the inadequacy of free or unregulated market to produce behaviour or characteristics that reflect the interest of the public. In some instances market failure could imply inefficient or missing market. An example is where the public cannot enjoy peace because of a noise emanating from a bar in the neighbourhood. Another incident of market failure is the existence of monopolies in the market (Baldwin et al., 2012). This refers to a market characterised by a single seller, in case of absence of substitute products or where existence of natural barriers hinder other interested plays from joining the market. The existence of monopoly could disadvantage the customers because of high prices or missing goods as monopolists exercise their powers to control either the price or supply of commodities in the market. The effect is as a result of lack of competition in the market. Therefore, the government intervention is justified in order to correct the problem of market failure in the interest of the public (Abbot, 2006). In addition, the government will regulate production activities in order to protect the environment against over-exploitation by monopolists because of lack of incentives to protect the resources. With government regulation producers are obliged to safeguard the resources or pay huge fines for non-compliance. Furthermore, the government may decide to revoke the licences of those organizations found non-complying with the environmental regulations and controls. Also, the government intervention is essential to correct information asymmetry in the market. Inadequate market information interferes with proper functionality of the market because inadequately informed customers are unable to evaluate the products of other manufacturers (Bell, McGillivray & Pedersen, 2013). This may be the case very expensive products such as drugs which only the manufacturer holds information about them because others cannot afford to pay for the cost of acquiring that information. Consequently, consumers can be easily deceived in such a market with information asymmetry. In this case consumers may end buying products oblivious of the adverse effects they may cause to the environment and to the users. For example, through disclosure of information about the products consumers become aware about adverse effects of excessive fuel consumption to the environment, the environmental advantages of using energy saving bulbs or fuel efficient cars, etc. (Bell et al., 2013). Therefore, government regulation is essential in order to minimize information asymmetry and promote competitiveness hence increase environmental safety. Additionally, there is an issue of externalities or spill-overs whereby economists believes the commodity price does not reveal the actual cost of manufacturing products to the public and consequently it results to overconsumption (Abbot, 2006). This is because the manufacturers try to keep the cost borne by consumers low by dumping pollutants related with the production process to the environment such as the river, air, etc. The cost of products to the consumer becomes lower that the actual cost since manufacturers fails to include the price of cleaning the environment. In this regard, government intervention is inevitable in order to charge the manufacturers the cost of cleaning the environment in form of taxation and court penalties in case of non-compliance with environmental regulations and controls. Furthermore, there is an issue of public goods and moral hazard whereby some commodities known as public goods such as security and defence may have mutual benefits and are required by everybody (Bell et al., 2013). Irrespective of who pays for these goods and services it is not possible to prevent other from accessing them hence the issue of free riders comes up. The issue of moral hazard emerges because some people other than those who pays for the goods over consumes the goods regardless of the consequences such over-consumption may have on the environment or the cost it may impose on the society (Abbot, 2006). Therefore, government regulation is inevitable in order to minimize moral hazard and reduce environmental impact resulting from over-consumption. Another reason for government regulations include need for planning to ensure sustainable management of resources in satisfying consumer needs. This is because if the market is left unprotected producers have a tendency of focusing on satisfaction of the present generation without regard for the future generation (Sentencing Advisory Panel, 2000). Therefore, government regulation becomes essential in order to control the utilization of resources in order to meet the needs of present and the future generations. However, this implies the producers must be careful about the production processes and engage environmental friendly processes through government regulations and controls. Other reasons for government regulations includes the needs for rational and coordinated business performances, strategy for rationing and distribution of scarce resources to the citizens, and promoting equal bargaining power between various stakeholders in order to uphold the welfare of all the people (Sentencing Advisory Panel, 2000). The implementation of CAC is conducted by the government or other bodies with power to regulate the activities of individuals and businesses in order to mitigate environmental effects of such activities (Environment Agency Enforcement). The implementation of such regulations is advocated only when such implementation has the potential to benefit the society. This is whereby the elimination or minimization of pollutants can be associated with tangible benefits flowing to the public. Therefore, implementation of CAC has some economic gains to the public or can eliminate detriment that the public would otherwise face if the regulations were not implemented. CAC is government strategy to safeguard society from adverse effects of activities of other individuals or the public (Baldwin et al., 2012). Therefore, CAC is beneficial when the government can evaluate the detrimental effects of certain activities and ensure that the cost of implementing such controls does not outweigh the detriments caused to the society. Furthermore, CAC plays critical role in implementation of government policies regulating the activities of individuals and businesses. This strategy is very crucial where the Marginal Abatement Cost curves (MAC curve is uniform across all the firms being regulated and the government can determine the MAC curve of such firms (Baldwin et al., 2012). Key features of command and control regulation According to Bell et al., (2013), the framework of environmental protection originated with the establishment of Environmental Protection Agency (EPA) that contains several features of environmental regulation. The fundamentals of environmental regulations are established on a method of command and control. The EPA stipulates various requirements for environmental protection and ensures their implementations by the respective industries through inspection facilities and establishing procedure for punishing the offenders who fail to meet those requirements. The approach of command and control issues prescriptive regulations. It may stipulate the equipment for controlling pollution (known as Best Available Technology) which must utilized by facilities in respective industry (Park, 2013). Alternatively, the regulation may give an allowance for permitted discharge levels for a specific waste product. During the implementation process of this regulation industries apply “end-of-pipe pollution control equipment” (Bell et al., 2013). It is worth noting that implementation of command and control measures as means to improve production process as a strategy for protecting the environment from industrial pollution involves limited incentives. Another feature of environmental regulation is that it allows the application of distinct rules, licenses and execution process for controlling water, air and land emissions (Baldwin et al., 2012). This implies that the controls do not focus on the industry as a single when assessing its impact on the environment. Instead, it examines various compartments and evaluates the impact of such compartment to the environment as a separate potential media of pollutant. 3. Strengths and Weaknesses of Command and Control Regulation The government implements command and control environmental regulations as a policy instrument aimed at achieving various goals (Bell et al., 2013). However, critics have argued that sometimes command and control does not meet the expectations of the government and the public due to existence of flaws in the implementation process and other limiting factors. Strength of CAC CAC can be perceived as one of the most efficient tools the government can use to limit the adverse of effects of industrial of individual activities. This is because individuals and corporations engage in business activities that sometime can cause devastating effects on the environment if not put under control (Better Regulation Executive Final Report, 2006). However, the government can minimize these effects but putting controls on such activities in through taxation and licensing requirements. For example, dealing with mining can deplete the mineral reserve completely and pollute the air indiscriminately if the government does not intervene. However, the implementation of CAC enables the government to limit such behaviour by imposing stringent licensing requirements and setting out other requirements which the individuals and corporation must adhere to. Furthermore, the can impose penalty for non-compliance with the CAC requirements. Additionally, there is a government tendency to respond quickly and decisively in response to environmental concerns. This is usually the case when the government is soliciting favour for re-election by the citizens (Bell et al., 2013). In this case the government tends to take advantage of the CAC to control environment degradation in order to win the favour of the voters as the most efficient government. Since the implementation of the CAC is more of a political decision the government can use it as an opportunity to regulate the activities of a few individuals in order to protect the majority. Weaknesses Implementation of CAC depicts direct government intervention to achieve desired outcome. However, some critics have argued that this strategy is more problematic compared with market-based strategies (Baldwin et al., 2012). This view discloses various weaknesses of CAC as an environmental protection strategy. For example, government can be influenced by economically powers and desire to be re-elected. This may occur where the relationship between regulator and the party being regulated yield reverse effects and consequently compromises the interests of the public. This could be the cases especially considering that the business entities are involved in funding political candidates (Baldwin et al., 2012). Therefore, when the relationship between the two parties become very intimate it is likely to undermine the public interests because the regulator does not want to offend the regulated. The outcome of such relationship is that the regulator turns into a protector of the regulated. Also, implementation CAC involves direct government intervention on the activities of individuals and the industries. Critics argue that government intervention results to inefficiency of the market and should be avoided by any means (Park, 2013). The role of the government is to establish policies that promote competition among the players and improve performance of businesses. Instead, the government should encourage market-based strategies to promote market equilibrium between satisfaction of needs of the people and the utilization of resources. Therefore, the implementation of CAC experiences conflicts from the economists thus compelling the government to experience dilemma between implementation and promote economic efficiencies by promoting free market. This implies the government should be cautious in order to avoid over-regulations hence promote health competition. The enforcement of CAC involves use of public resources. The setting of strategies and regulation process is complicated and may involve huge resources. For instance, the process of prosecuting an offender is tedious and consumes time and money whereas the anticipated outcome is low or uncertain. To some extent this can create hostility with the local community who have been depending on the company for products and services hence if apprehension leads to closure of the company the community may become hostile in reaction to anticipated shortage of services and products. Furthermore, there is no recognized means of assessing the efficiency of regulations (Better Regulation Executive Final Report, 2006). Those involved in the implementation of government policies may pursue personal interest at the expense of public resources. Therefore, these strategies experience much criticism in relation to their cost effectiveness and efficiency in terms of cost against outcome. This posits weaknesses since it is not easy to determine whether the government is achieving its objectives and how effective they can achieve this goal. Different ‘styles’ of enforcing CAC and the factors that may influence the design of an effective enforcement strategy The enforcement of environmental regulations involves any mechanism that could be utilized to ensure compliance with the legal requirements envisaged in the environmental protection. This may involve the use of third party or regulators information, threats of persecution or action, private obligations, etc. (Park, 2013). The enforcement agencies exercise a lot of power in the policing of environmental regulations and controls. The powers include that of ensuring compliance with the policies, determining and implementing measures to deal with environmental degradation, prosecution of offenders, etc. The environmental regulations enforcement agencies apply variety of styles to ensure their implementations. These enforcement bodies include the police, statutory agencies and non-governmental organizations among others. According to Bell et al., (2013), there is huge gap between the episodes of potential breaches of environmental regulations and legal enforcement activities. They further claim that such differences are as a result of the enforcement styles applied. Considering that the purpose of enforcing environmental regulations is to protect human or the environment against any harm as a result of deliberate activities of human and businesses the enforcement agencies use various styles (Richardson, 2006). These styles aim at detecting the offenders and punishing them or preventing them correct their behaviour towards the environment. The styles of enforcement include; 1. Sanctioning This is a confrontational method involves punishing the environmental polluters. The enforcers may impose punishment for every environmental offence (Abbot, 2005). The focus of this approach is to prevent future destruction of the environment by serving as a deterrent factor to the offenders. 2. Cooperative/compliance/conciliatory This style entails establishment of mutual relationship between the polluter and the enforcement agency whereby the agency acts as an advisor to the polluter. The two parties develop mutual respect for each other that compels the polluter to comply with the requirements of environmental laws (Abbot, 2009). However, to some extent the relationship might turn unfriendly and the regulator sets requirements such as preferred equipment or process and demands the polluter to comply with those requirements within a given time frame. 3. Responsive regulation Practice depends on whether the polluter is complying with the requirements or not complying. For example, the non-compliance by the polluter will cause the enforcement agency to adjust the implementation strategies from friendly to formal application of rules (Baldwin et al., 2012). To the extreme extent the regulator may have to revoke the licence of the operators. Enforcement style of the Environment Agency This refers to the practical approach used by the regulators when enforcing the environmental laws. The enforcement approaches focus on relationship between the regulators and polluters. The law of enforces view the motives and conducts of the offenders before deciding on the most appropriate style to apply when enforcing the law. For example, where the regulators perceive offenders attitude as based on individual interest rather than the interest of environment hence their tendency to disobey the law in order to favour their personal interests they may use severe preventive styles of enforcement. 1. Capture theory This theory is based on the premise that close relationship between enforcers of the environmental laws and the parties being regulated result to “capture of interest of the regulator” and consequent disregard of public or environmental interests. There are various reasons for the occurrence of capture of interest such as political interests, difference in social classes whereby those regulated are professional or middle class people while the person experiencing adverse effects of pollution are from working class or lower class (Baldwin et al., 2012). Furthermore, the regulators associate with industries or businesses being regulated because they may have worked for them previously. An example of capture theory can be demonstrated in the approach of Alkali Inspectorate to the public disclosure of pollution information. The company favoured private company by withholding information on pollution against the duty of disclosure of information that information to the public. A case of failure of cooperation can be cited in a case where a scrap metal dealer notified the Environmental Agency that his business was excused from licensing requirement under waste management. However, on visiting the site the Agency officer informed the dealer that his activity was actually unlawful. However, instead of prosecuting him he gave him guidelines on what he should do to comply with the environmental laws. The officer gave an impression that they would not prosecute the dealer if he commenced the work within a specified duration (Baldwin et al., 2012). The dealer was later prosecuted because he did not commence the work within specified time. Furthermore, he tried to defend himself by claiming the Agency officer had agreed he would never prosecute him. However, the court held that there no such intention and that the agency officer had warned that the dealer about illegality of his conduct. This case implies that an enforcement Agency cannot be estopped from prosecuting an offender who fails to adhere to the law after they have been given an allowance of time to do so (Better Regulation Executive Final Report, 2006). However, the officer has to balance between compliance with the environmental laws and the need for fairness to those being persecuted without restraining their power to enforce laws. 2. British approach This approach provides room for flexibility between regulators and the regulated. It enables the regulator to apply informal strategies rather than formal approach and is more focused on compliance with the environmental regulations instead of use of sanctions and prosecutions to the offenders (Woods & Macrory, 2003). It focuses on self-regulation and deliberate compliance with the environmental regulations by the offenders, and the exercise of discretionary power rather than mandatory enforcement by the Agency (DEFRA, 2006). Therefore, British enforcement style does not involve application of uniform process by the enforcing agencies. Instead, various agencies use different strategy hence it is dependent on the relationship between the regulator and regulator. Because of the flexibility offered by the British style it is apparent that this approach is skewed in compliance with the environmental regulations by the regulated (Abbot, 2005). For example, there is wide various on the enforcement of regulations across countries. In England and Wales there is less reliance on prosecution partly because of lack of effective policies on its implementation and partly because of lack of competent law enforcers. Use and effectiveness of administrative and criminal penalties The role of environmental law enforcement agency is to establish guidelines on requirements for environmental protection. Also, they establish procedure for punishing the offenders who fail comply with the requirements. The prosecution of offenders of environmental regulations is considered as the last resort (Baldwin et al., 2012). This means all other approaches should be tried to promote cooperation and encourage compliance without attracting tedious and costly prosecution process. However, criminal penalty is unavoidable because not all the regulated parties demonstrate interest or concern to comply with the law. Just as aforementioned the state apply criminal penalty when all other approaches have failed. The criminal code defines the acts against the environment that can be regarded as criminal in order to safeguard and promote high quality of lives (Bell et al., 2013). Unlike administrative standards criminal penalties seems more effective in ensuring compliance with the laws because they force and threaten the offenders as a result of severe consequences in case of non-compliance. Consequently, the states are encouraged to apply criminal punishments in the circumstances where the acts of the offender have significant adverse consequences on the environment. The administrative standards involve cooperating with the regulated and issuing them with guidelines on requirements in order to protect the environment. From time to time the Agency makes visit to ensure adherence with the policy guidelines and can assist the regulated on how they can achieve compliance (Bell et al., 2013). This process may take time since the regulator aims at changing the attitude of the regulated into environmental conscious they tend to give more time to change gradually. However, in case of non-compliance the regulator can impose sanctions such as withdraw or deny the party the operating license. On the other hand, implementation of criminal penalty is aimed stopping the activity prohibited by the law and make the offender to face legal consequences for their conducts. The regulator sets standards of operation by the regulated with condition that violation of such standards would attract legal consequences (DEFRA, 2010). The prosecution process involves the agent gathering evidence of the offence and presenting it to the court or any other body conducting the trial of the offender. The prosecutor relates the conducts of the offender with the laws prohibiting such conducts and suggests the legal consequences for such an offence. The goal is to prove the damage of the offender to the environment and make them face charges for the offence. The decision of the criminal charges may attract fine, jail term, discontinuation of the activity resulting to environmental damages or a combination two or more of these consequences (House of Commons, 2004). Key changes made by the Regulatory Enforcement and Sanctions Act 2008 Regulatory Enforcement and Sanctions Act 2008 is a legislative Act of United Kingdom (UK) intended to ensure more compliance, consistency and effective regulations of environmental law by the across local authorities and national government (DEFRA, 2010). The Act protects the society against pollution and ensures clean air, safety of the medicines and the right of workers. Additionally, the Act promotes fair business competition without compromising the safety of the consumers or the public. The Act brought various changes in the implementation procedure of the environmental regulations. For example, it requires the regulators to conduct review of their activities periodically and get rid of all irrelevant burdens on the regulated by maintaining their regulations at minimum. Also, it establishes Primary Authority Scheme to allow business operating across one local authority areas decide the authority they would submit to for the purpose of regulation (Bell et al., 2013). Finally, the Act establishes four additional civil penalties that the regulator can impose on business. The legislation helped reduce the administrative cost of enforcing environmental laws, and streamlined assessment and enforcement procedure. In a nutshell, the introduction of the Act resulted to improved competence, efficiency and creation of value for money. Critically analyse proposals for reforming criminal sentencing options The principle concerns of prosecuting the environmental offenders are to protect the environment and the public against dangerous activities of the offender. This penalty imposed on the offender should prevent the offender from repeating in their criminal activities and deter the future would-be criminals from engaging in similar acts (Baldwin et al., 2012). However, the cost of imposing penalty to the offender should not exceed the anticipated benefits of protecting the environment and the public. In addition, the reform policies should be fair and applied uniformly and consistently to all offences of the same magnitude (DEFRA, 2006). Also, the sentences imposed on the offenders should be sensible and realistic in order to encourage the offender change their behaviour. Conclusion The use of Command and Control in enforcing environmental regulations can be effective if applied appropriately. The application of various environmental protection measures aims to achieve various goals such as protecting the environment and the public. However, the objectives may not be achieved effectively because of other limitations pertinent to the regulators and the nature of activities involved. Therefore, regulators aim at achieving the balance between the cost and benefit of implementing those environmental laws. List of References Abbot, C. 2006, “Environmental Command Regulation” in B.J. Richardson and S. Wood (Eds), Environmental Law for Sustainability, Oxford; Hart Publishing. Abbot, C. 2005, ‘The Enforcement of Pollution Control Laws in England and Wales: A Case for Reform?’ 22(1) Environmental and Planning Law Journal 68. Abbot, C 2009, “The Regulatory Enforcement and Sanctions Act 2008” Environmental Law Review 38 Baldwin, R., Cave, M. & Lodge, M, 2012, Understanding Regulation: theory, strategy, and of practice. New York: Oxford University Press. Pp. 15-21. Bell, S.,  McGillivray, D., Pedersen, Ole , 2013, Environmental Law, OUP Oxford. Pp281-298 Better Regulation Executive Final Report, November 2006, Regulatory Justice: Making Sanctions Effective. http://www.berr.gov.uk/files/file44593.pdf DEFRA, October 2006, Review of Enforcement of Environmental Regulation: Report of Conclusions. Available at http://webarchive.nationalarchives.gov.uk/20080305115859/http://www.defra.gov.uk/enviro nment/ enforcement/report.htm DEFRA, February 2010, Fairer and Better Environmental Enforcement: Summary of Responses and Government Response. http://archive.defra.gov.uk/environment/policy/enforcement/pdf/summary-reponses.pdf Environment Agency Enforcement, Available at http://www.environment- agency.gov.uk/business/regulation/31851.aspx House of Commons May 12th 2004, Environmental Audit Committee Sixth Report, Environmental Crime and the Courts, HC 126. House of Commons, February 8th 2005, Environmental Audit Committee Second Report, Corporate Environmental Crime, HC 136. Park, P 2013, International Law for Energy and the Environment, Second Edition, CRC Press. Pp. 404. Richardson, B. J. 2006, Environmental Law for Sustainability: A Reader. Hart Pub. Pp.487. Sentencing Advisory Panel, 31st March 2000, Environmental Offences: The Panel’s Advice to the Court of Appeal. Woods, M & Macrory, R. 2003, Environmental Civil Penalties – A More Proportionate Response to Breach? (UCL,) Read More