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Knowing how to change - environmental policy learning and transfer
Rolling out climate change policy lessons
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Pass it on. Using and confusing environmental health research
Regional rules, national waves
Whose wild? A human stake in Africa's conservation heritage
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What goes on between regulator and regulated?
Small scale industry and sustainable development in Asia and Africa
Sites for Sore Eyes
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June 1999 Insights Issue #30

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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:

  1. Street-level bureaucrats and the social construction of environmental control. Organization Studies 19/6, 953-974 By Fineman, S. (1998).
  2. The emotions of control: A qualitative exploration of environmental regulation. Human Relations, By Fineman, S. and Sturdy, A. (forthcoming 1999).
  3. 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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