The effectiveness of environmental regulation

Most would accept that, for the most part, commerce and industry are unlikely to modify their behaviour for the benefit of the environment without societal pressures to do so by incentives and/or disincentives - "carrots and sticks". These may range from exposure of a company's performance to the public (for example, the Environment Agency's "Hall of Shame" and freedom of access to environmental information); from stakeholder demand for information in annual reports and formal environmental reports; by economic instruments such as taxes and incentives and also by environmental regulation.

Many commentators, especially environmental lawyers, regard environmental regulation as the bedrock of environmental protection. They would criticise other methods as being slow to take effect and open to obfuscation. In the case of economic instruments, they would argue that taxes would have to be swingeingly large to change behaviour, inequitable (penalising the less well-off) and anti-competitive, especially internationally: there is now some suggestion that the Government is to backtrack on the fuel escalator and the climate change levy on the grounds that it has the potential for making the UK uncompetitive. This conundrum, by the way, goes to the heart of the principle of Sustainable Development: unless competitive nations each work to the same agenda of prioritising environmental protection, GDP will dominate.

Lawyers would argue that environmental regulation, setting clear rules and procedures set against standards and policies set by Government is more equitable, directly effective and if, as now is the case, regulations implement international conventions and laws, they are more likely to be less anti-competitive internationally.

They would argue that the strict liability system of environmental offences in the UK - giving little or no weight to arguments by the defendant that the polluting incident was a mistake or accident - provides a clear and transparent system of controlling and changing behaviour for the benefit of environmental protection.

The problem with this view is that the enforcement of environmental regulation is dependent upon the effectiveness of the relevant regulatory authority, which itself is subject to so many pressures: Government policy, lack of resources, a wide range of responsibilities leading to lack of focus and an inherited culture of encouraging and educating their "customers" - an extraordinary name for those being regulated: the opinion still seems to prevail that a prosecution should be seen as an indication that the relationship with the polluter has broken down.

Resources are an enormous problem for the regulators, especially the Environment Agency. The cost of bringing a prosecution and collating enough technical evidence to the level of "beyond reasonable doubt" (since environmental offences are also criminal offences in this country) a high level of resources is required. It is inevitable therefore that the Environment Agency will exercise discretion and apply cost-benefit analysis to any potential Court action. The Agency's enforcement code reflects this.

To date, the Agency's task has not been aided by the attitude of the Courts, where the generally low level of fines for polluting incidents and lack of consistency has roused public concern. The Government has now referred sentencing of certain environmental offences to the Sentencing Advisory Panel which is now embarked upon a public consultation process. SAP appears to be of the opinion that it would be desirable for the Court of Appeal to issue guidelines relating to a specific number of environmental offences. This support will certainly make the Environment Agency more confident but the question of resources still remains a problem. Fines collected by the Courts go to the Treasury and not to the regulator.

The truth is that instruments used for environmental protection are subject to political will and public acceptability. A mixture of instruments is probably necessary, but with environmental law and regulation at its heart. What is clear however, is that our environment will only be protected and given its rightful place within the principle of Sustainable Development if measures to stop unacceptable behaviour (such as environmental regulation) are matched by other methods to encourage good behaviour. For example, subsidies for pollution abatement equipment and integration of approved forms of transport - a true "carrot and stick" approach.

For further information on this issue, please contact Pamela Castle at [email protected] or on (+44) (0)20 7367 3000.