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June 1999 Insights Issue #30
Back to Insights #30
When regulator meets regulated
Environmental legislation has grown in breadth and depth, especially
in Europe and North America, where it is aimed at forcing environmental
protection standards on industry. That, at least, is the theory. Legal
instruments are only as good as those who apply and police them and
industrial managers are unlikely to be passive recipients of even
legally enforceable requirements. It is at this interface between
regulator and regulated that mandatory environmental policy stands or
falls. What actually happens there? And what are the policy
implications? University of Bath researchers probed the UK situation.
They conclude that politics never lies far beneath the surface.
Regimes of environmental regulation vary in style from
command-and-control to relatively hands-off. The prevailing UK approach
is somewhere between the two. Regulatory philosophy seeks to encourage
industry to put its own house in order, but applies sanctions such as
prosecutions, fines and withdrawal of permits to operate if they fail or
default. Officials included in the Bath study worked for the Environment
Agency of England and Wales, a payroll of some 9,500 people who regulate
over 2000 industrial processes on waste disposal, water quality and
industrial emissions. The study tracked a cross section of 82 Agency
staff as they went about their regulatory work. All the inspectors were
interviewed and some were monitored as they carried out their
inspections.
The study's focus was on how regulatory standards were determined and
policed in the field, and the effect of organisational and political
pressures on inspectors. Findings suggest that regulation is a complex
social and emotional arena rife with tensions and conflicts, not least:
- A tendency for regulators to see fairness in environmental control
as a matter for negotiation rather than an absolute value. Many feel
uneasy in the face of powerful corporations with ample capacity to
contest their views or prescriptions, so they often resort to
persuasion and bluff to reach agreement - which may or may not
result in the best environmental protection.
- Debatable legislative rubrics, such as Best Available Techniques
Not Entailing Excessive Cost (BATNEEC). These are intended to help
determine optimum, cost-effective, pollution control yet often fail
to do so. Many inspectors were inclined to create their own moral
league table of industrial operators, deciding what degree of
control they merit and who the 'villains' are.
- Drawbacks to powers of prosecution. Resorting to litigation was
frequently regarded as a failure properly to regulate, a breakdown
in the preferred collaborative style and a complicating factor for
future relations with the firm in question. There was also
reluctance to prosecute smaller companies facing insolvency. Yet not
to prosecute worked against the grain of Agency and Government
policy to be demonstrably tough on polluters.
- Superior resources at industry's disposal. Inspectors feared being
outplayed in courts-of-law and had little faith in courts delivering
punishments to fit the environmental crime.
The study also highlighted a fair degree of mutual capture between
regulator and regulated. It was in neither party's interest to fall out
and industrial managers preferred to avoid legal confrontation. So deals
were done, though less for the sake of environmental security than of
how regulation could be seen to be done by means of technical
compromises. Key policy lessons not only for UK regulators but for all
with environmental duty of care, were:
- Effectiveness of environmental rules reflects the commitment of
the institutions (legal, governmental, industrial and economic) that
buttress them and policy should allow for this
- Pollution is regarded by many industries as an 'externality', or
not their problem. This attitude needs to be tackled through
concerted educational programmes
- More tightly drafted laws might spare regulatory agents some of
the ambiguities of control but would also invite industry
resistance. Hence some culture-sensitive balance must be struck that
ultimately guarantees environmental improvements.
- Legal influences on industrial pollution may not be ideal, but
they are likely to be more potent than any other intervention. They
should therefore be strengthened, as should the knowledge and skills
of regulatory agents and of 'court officials' who brief the
legislators.
Stephen Fineman
School of Management
University of Bath
Bath
BA2 7AY
UK
Tel: +44 (0) 1225 826377
Fax: +44 (0) 1225 826377
Email: S.Fineman@bath.ac.uk
See also:
- Street-level bureaucrats and the social construction of
environmental control. Organization Studies 19/6, 953-974 By
Fineman, S. (1998).
- The emotions of control: A qualitative exploration of
environmental regulation. Human Relations, By Fineman, S. and
Sturdy, A. (forthcoming 1999).
- Enforcing the environment: regularory realities. Business strategy
and the Environment By Fineman, S. (forthcoming 1999).
Other related links:
ESRC Global
Environmental Change Programme
Search ELDIS for
sources on Environmental Law |
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