Enforcing environmental regulation

Journal of Environmental Law

Volumn 23, Issue 2, 2011, Pages 169-201

  Gunningham, Neil ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

Best practice; Compliance; Enforcement; Environment; Inspection; Regulation

Indexed keywords

BEST MANAGEMENT PRACTICE; COMPLIANCE; ENVIRONMENTAL LEGISLATION; LAW ENFORCEMENT; LEGISLATIVE IMPLEMENTATION; RESOURCE ALLOCATION;

EID: 79960099133     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqr006     Document Type: Article

References (139)

1. This is a theme that has been pursued on a number of occasions within the pages of the JEL
2. See for example, R Mushal, 'Reflections upon American Environmental Enforcement Experience as it may relate to Post -Hampton Developments in England and Wales' (2007) 19 JEL 201
3. C Abbot, 'The Regulatory Enforcement of Pollution Control Laws: The Australian Experience' (2005) 17 JEL 161
4. J Black, 'Risk-Based Regulation: Choices, Practices and Lessons Being Learned' in Risk and Regulatory Policy: Improving the Governance of Risk (OECD Paris 2010) 187
5. P Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement ('The Hampton Review' 2005)
6. Statutory Code of Practice for Regulators (Department of Business Enterprise and Regulatory Reform 2007) accessed 20 March 2011.
7. See generally, Risk and Regulatory Policy: Improving the Governance of Risk (OECD 2010)
8. See J Black and R Baldwin, 'Really Responsive Risk-Based Regulation' (2010) 32 Law & Pol'y 181
9. Black, 'Managing Regulatory Risks and Defining the Parameters of Blame: The Case of the Australian Prudential Regulation Authority' (2006) 28 Law & Pol'y 1
10. J Black, 'The Emergence of Risk-Based Regulation and the New Public Risk Management in the United Kingdom' [2005] PL 512
11. See generally, Black and Baldwin (n 6)
12. See eg Ensuring Environmental Compliance: Trends and Good Practices (OECD Paris 2009) 13
13. See Section 2 below
14. For overviews, see M Cave, R Baldwin and M Lodge (eds) The Oxford Handbook of Regulation, (OUP 2010)
15. C Parker and V Nielsen, (eds), Explaining Compliance (Edward Elgar 2011)
16. Compare eg J Black 'Talking About Regulation' [1998] PL 77
17. P May and S Winter 'Reconsidering Styles of Regulatory Enforcement: Patterns in Danish Agro-Environmental Inspection' (2000) 22 Law & Pol'y 143
18. M Pautz, 'Trust Between Regulators and the Regulated: A Case Study of Environmental Inspectors and Facility Personnel in Virginia' (2009) 37 Pol'y & Pol 1047
19. Three other strategies; Just Deserts, Restorative Justice and 'Really Responsive Regulation' might arguably have also been included. However, 'Just Deserts' (whose main aim is to punish non-compliance in a way that is proportional and just) is by definition not appropriate as a 'core' intervention strategy because changing behaviour to achieve compliance is not the main aim of this strategy. Restorative Justice (the aim of which in the environmental context is to give the offender a chance to proactively put things right) by its nature can only be used in conjunction with other regulatory approaches, not in isolation, since it only becomes relevant at a stage subsequent to a regulatory breach. Finally, 'Really Responsive Regulation' seeks to theorise beyond intervention strategy to matters such as the operating and cognitive environment of organisations, the institutional environment, the different logics of regulatory tools and to changes in these elements.
20. See generally, P May and S Winter, ch 10: Regulatory Enforcement Styles and Compliance, in Parker and Nielsen (n 10) for a review of different enforcement strategies and styles
21. MK Sparrow, Imposing Duties: Government's Changing Approach to Compliance (Praeger Publishers 1994) ix
22. C Rechtschaffen and D Markell, 'Reinventing Environmental Enforcement and the State/ Federal Relationship' in D Zaelke, D Kaniaru and E Kruzikova (eds), Making Law Work: Environmental Compliance and Sustainable Development (Vol 1, Cameron May 2005) 158
23. Office of Enforcement, 'Principles of Environmental Enforcement' (US EPA 1992) 7.1.
24. R Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press 2003)
25. See generally, US Environment Protection Agency, 'Enforcement' accessed 30 July 2010.
26. Kagan (n 17)
27. US Environmental Protection Agency, 'Criminal Enforcement' accessed 15 August 2010.
28. Outreach for present purposes includes education and information dissemination, usually targeted at small and medium sized enterprises
29. See generally, N Gunningham and D Sinclair, Leaders and Laggards (Greenleaf Publishing Limited 2002) ch 6
30. See generally, D Fiorino, The New Environmental Regulation (MIT Press 2006) ch 1
31. Fiorino (n 23) 9
32. 'OECD Environmental Performance Reviews: United States 2005' (OECD, Paris) 16
33. Department of the Environment, Water, Heritage and the Arts, 'Compliance and Enforcement Policy' (December 2009) 5
34. Department of the Environment, Water, Heritage and the Arts (n 26)
35. Z Lipman, 'An Evaluation of Compliance and Enforcement Mechanisms in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and their Application by the Commonwealth' (2010) 27 EPLJ 98
36. EPA, 'Compliance Framework' (EPA Victoria 2009) 3
37. EPA (n 29) 6
38. Abbot (n 1) 165
39. These are similar to (but not identical to) what Yeung elaborates as the constitutional principles which she argues should underpin enforcement, based on the constitutional values of liberal, democratic legal systems
40. See K Yeung, Securing Compliance. A Principled Approach (Hart Publishing 2004).
41. Florida Department of Environmental Protection, 'Compliance and Enforcement' (2009) accessed 2 August 2010.
42. Florida Department of Environmental Protection 'Enforcement in Action' (2009) accessed 9 August 2010.
43. This message 'may be in the form of penalties that hit the pocketbook, compensation required for damages, or implementation of "in-kind" projects that prevent pollution or otherwise enhance the environment. In all cases, ensuring that the violator fixes the problem and comes back into compliance is the first objective' Florida Department of Environment Protection (n 33).
44. See 'Compliance and Enforcement' Florida Department of Environment Protection (n 33)
45. See A Van Der Schraaf, 'Incentive Framework to Comply with Regulations' (Paper for the OECD Conference on Economic Aspects of Environmental Compliance Assurance, Paris, December 2004)
46. See Van Der Schraaf (n 37) 5. The Table of 11 is applied mainly to deciding in advance what sort of interventions to take in relation to particular obligations and groups of companies. But it may also be applied to individual cases.
47. Department of Environment and Conservation, 'Enforcement and Prosecution Policy' (Western Australia 2008) 2
48. Environment Protection Authority, 'Compliance and Enforcement Statement' (South Australia 2009) accessed 30 August 2010.
49. See Department of Primary Industries, Water and Environment, 'Enforcement Policy' (Tasmania 2004) 2
50. See Department of Environment, Water, Heritage and the Arts, 'Compliance and Enforcement Policy' (2009) 8
51. UK Environment Agency, 'Compliance and Enforcement Policy Guidance' accessed 11 July 2010.
52. UK Environment Agency, 'Enforcement and Prosecution Policy' (7 August 2008) oc No EAS/8001/1/1, 3
53. Note, shortly before going to press, the Environment Agency announced that from 2011, it will use a new enforcement and sanctions policy to guide it in its enforcement and prosecution decisions. The new policy documents consist of: An Enforcement and Sanctions Statement, which sets out a high-level view of the EA's approach to enforcement; Enforcement and Sanctions Guidance, which explains how the EA will make decisions about enforcement; Enforcement and Sanctions Offence Response Options, which lists the sanctions (including civil sanctions where appropriate) and responses available for offences regulated by the EA.
54. D Stott, 'Environmental Enforcement in the UK' (2009) 11 J Env Mon 470 (emphasis added)
55. M Sparrow, The Regulatory Craft (Brookings Institute 2000)
56. The Better Regulation Office, 'Guide to Better Regulation' (Department of Premier and Cabinet, New South Wales Government 2008) see particularly Principle 3, accessed 30 August 2010.
57. The Better Regulation Office, 'Risk-based Compliance' (Department of Premier and Cabinet, New South Wales Government 2008) accessed 3 Sept 2010.
58. Department of Environment, Climate Change and Water, 'Native Vegetation: Compliance and Enforcement Strategy' (New South Wales Government 2009) 5
59. Department of Environment, Climate Change and Water, 'Native Vegetation: Compliance and Enforcement Strategy' (New South Wales Government 2009) 7
60. I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (OUP 1992)
61. The Environment Protection Authority, 'General Environment Protection Policy' (Department of Territory and Municipal Services, Canberra 2007) 3
62. Department of Natural Resources, Environment and the Arts, 'Compliance Guidelines' (Northern Territory Government, undated)
63. The Environment Protection Authority, 'General Environment Protection Policy' (Department of Territory and Municipal Services, Canberra 2007) 3
64. Note, however, that this approach is adopted for guidance only and serious cases may justify immediate application of a strict approach to enforcement
65. Ayres and Braithwaite (n 53)
66. Department of Natural Resources, Environment and the Arts (n 54) 2
67. The enforcement pyramid (Ayres and Braithwaite n 53) that involves advisory and persuasive measures at the bottom, mild administrative sanctions in the middle, and punitive sanctions at the top, is intended to assist in determining what enforcement tools to use in any given case. According to its proponents, regulators should begin by assuming virtue (to which they should respond by offering cooperation and information), but when their expectations are disappointed, they respond with progressively punitive and deterrent oriented strategies until the regulated group conforms.
68. Environmental Protection Authority (n 42) s 3.3.
69. The Better Regulation Office (n 50)
70. EPA Victoria, 'Enforcement Policy' (Publication 384.3, July 2006).
71. EPA Victoria, 'Compliance Framework' (Dec 2009)
72. R Kagan and J Scholz, 'The Criminology of the Corporation and Regulatory Enforcement Styles' in K Hawkins and J Thomas (eds), Enforcing Regulation (Kluwer-Nijhoff 1984)
73. J Braithwaite and T Makkai, 'Testing An Expected Utility Model of Corporate Deviance' (1991) 25 L & Soc'y Rev 7
74. E Bardach and R Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Temple University Press 1992)
75. N Gunningham, 'Prosecution for OHS Offences: Deterrent or Disincentive?' (2007) 29 Syd LR 359
76. S Simpson, Corporate Crime and Social Control (Cambridge University Press 2002) ch 2
77. Braithwaite and Makkai (n 66) 35
78. See for example, N Gunningham, 'Negotiated Non-Compliance: A Case Study of Regulatory Failure' (1987) 9 Law & Pol'y 69
79. S Shapiro and R Rabinowitz, 'Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA' (1997) 14 Admin L Rev 713
80. May and Winter (n 13)
81. See V Nielsen and V Lehmann, 'Are Regulators Responsive?' (2006) 28 Law and Pol'y 395
82. J Black, 'Managing Discretion' paper presented at the Australian Law Reform Commission Conference on Penalties: Policy and Practice in Government Regulation, (Sydney, June 2001) 20
83. R Johnstone, 'From Fiction to Fact- Rethinking OHS Enforcement', National Research Centre for Occupational Health and Safety Regulation, Working Paper 11 (2003) 11: accessed 20 July 2010.
84. For reviews, see R Baldwin and J Black, 'Really Responsive Regulation' (2008) 71 MLR 59
85. N Lehman and C Parker, 'Testing Responsive Regulation in Regulatory Enforcement' (2009) 3 Reg & Gov'ce 376
86. See also, P Mascini and EV Wijk, 'Responsive Regulation at the Dutch Food and Consumer Product Safety Authority: An Empirical Assessment of Assumptions Underlying the Theory' (2009) 3 Reg & Gov'ce 27
87. See Nielsen and Lehmann (n 73)
88. Black and Baldwin (n 6) 189-190 (emphasis added)
89. Black, 2006 (n 6) 16
90. J Black, 'The Development of Risk-Based Regulation in Financial Services: Just "Modelling Through"?' in J Black, M Lodge and M Thatcher (eds), Regulatory Innovation: A Comparative Analysis (Edward Elgar 2005) 156
91. See in particular, two early and classic studies: K Hawkins, Environment and Enforcement (Oxford University Press 1984)
92. B Hutter, Compliance, Regulation and the Environment (Clarendon Press 1997)
93. Although space precludes further examination, as my colleague Liz Bluff has pointed out to me, intervention strategies themselves are of three broad types. Advice and Persuasion, and Rules and Deterrence are mechanisms in themselves and they also define the type of mechanisms the regulator will use in most, if not all, circumstances. Responsive Regulation, the risk-based strategy and the Criteria Strategy are different ways to determine which mechanisms the regulator will use in responding to a particular regulatee (from a range of mechanisms from Advice and Persuasion to more deterrent measures (which may be set out in a pyramid)). Smart Regulation and Meta-Regulation are ways to extend the capacity of the regulator to enforce by harnessing third parties and/or the regulated entity themselves. But the regulator may still use its range of enforcement mechanisms within the framework of Smart Regulation or Meta-Regulation.
94. See N Gunningham, P Grabosky and D Sinclair, Smart Regulation: Designing Environmental Policy, (Oxford University Press 1998)
95. See for example, W Huisman and J Van Erp, 'Smart Regulation and Enforcement of Illegal Disposal of Electric Waste' (2010) 9 Criminology & Pub Pol'y 579
96. C Tollefson
97. M Howlett and J Rayner, '(Not so) "Smart Regulation"? Canadian Shellfish Aquaculture Policy and The Evolution of Instrument Choice for Industrial Development' (2004) 28 Marine Pol'y 171
98. See eg Huisman and Van Erp (n 84); see also the various case studies in N Gunningham and D Sinclair (n 22)
99. For an example of the latter, see Gunningham and Sinclair (n 22)
100. Gunningham, Grabosky and Sinclair (n 83) ch 6
101. On Meta-Regulation generally, see in particular C Parker, The Open Corporation: Effective Self-Regulation and Democracy (CUP 2002)
102. For a review of the 'safety case' literature see N Gunningham, 'Designing OHS Standards: Process, Safety Case and Best Practice' (2007) 2 Pol'y and Prac in H'lth and Saf'y 3
103. N Gunningham and D Sinclair, 'Organizational Trust and the Limits of Management-Based Regulation' (2009) 43 L & Soc'y Rev 865
104. For a review see N Gunningham, Mine Safety: Law, Regulation and Policy (Federation Press 2007) ch 3
105. Meta-Regulation's image has been tarnished by its failure (as applied in the UK by the Financial Services Authority) to address the failings that led to the Global Financial Crisis. This, however, may be more a lesson about how to handle systemic risk and the dangers of 'light handed' regulation than about inherent defects in Meta-Regulation. See generally Black and Baldwin (n 6).
106. I am grateful to an anonymous referee for making precisely this point
107. Hampton (n 3)
108. See UK Environment Agency (n 45)
109. Risk and Regulatory Policy: Improving the Governance of Risk (OECD 2009) 215 accessed 22 March 2011 (emphasis added).
110. Black and Baldwin (n 6)
111. See also J Braithwaite 'Meta Risk Management and Responsive: Regulation for Tax System Integrity' (2003) 25 Law & Pol'y 1
112. Braithwaite (n 100)
113. Hampton (n 3)
114. H Van de Bunt, J Van Erp and K Van Wingerde, 'Hoe Stefig is de Pyramid van Braithwaite? (How Strong is Braithwaite's Pyramid?)' (2009) 49 Tijdschrift voor Criminologies 225 (arguing that almost every department in the Netherlands has implemented Responsive Regulation in their strategy)
115. I am grateful to Christine Parker for her insights in writing this section
116. Although a Criteria Strategy might claim that its listed criteria for decision making could address different circumstances and motivations (though they do not provide any mechanism for doing so), Responsive Regulation that its enforcement pyramid takes account of different motivations (they do, but still as part of a single escalatory strategy) and Smart Regulation that different instruments and actors need to be harnessed in different situations (a more credible claim, but none of the sample agencies had embraced Smart Regulation)
117. V Braithwaite, Defiance in Taxation and Governance: Resisting and Dismissing Authority in a Democracy (Edward Elgar 2009)
118. J Braithwaite, T Makkai and V Braithwaite, Regulating Aged Care: Ritualism and the New Pyramid (Edward Elgar 2007)
119. See also, the typology set out in N Gunningham, R Kagan and D Thornton, Shades of Green: Business, Regulation and Environment (Stanford UP 2003)
120. See Black 2006 (n 6)
121. See eg the Wisconsin Green Tier Model (Wisconsin Department of Natural Resources 2000)
122. See Gunningham, Kagan and Thornton (n 106)
123. See Gunningham and Sinclair (n 22) chs 6-9
124. For a more developed argument as to how best to regulate SMEs, see Gunningham and Sinclair (n 22) ch 2
125. As to variation in the actions of inspectors see R Kagan, 'Regulatory Enforcement' in DH Rosenbloom and RD Schwartz (eds), Handbook of Regulation and Administrative Law (Marcel Decker 1994) 383
126. Mascini and Wijk (n 77); and May and Winter (n 13)
127. Compare eg Black (n 11); May and Winter (n 13); Pautz (n 11)
128. May and Winter (n 13)
129. E Bardach and R Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Temple University Press 1992)
130. For example, the UK Health and Safety Executive, Enforcement Management Model accessed 5 Oct 2010.
131. The Guidelines determine sentences based primarily on two factors: the conduct associated with the offence (the offence conduct, which produces the offence level); and the defendant's criminal history (the criminal history category). The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offence level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant.
132. See United States Sentencing Committee, 2010 Federal Sentencing Guidelines Manual and Supplement (2010) accessed 5 April 2011, Ch 5.
133. Regulatory Failures and Regulatory Solutions: A Characteristic Analysis of the Aftermath of a Disaster
134. It's All About Risk Isn't It? Science, Politics, Public Opinion and Regulatory Reform
135. Stott (n 47) (emphasis added)
136. Similarly, see what Fels refers to the constraints imposed by 'the authorizing environment: what may be done'
137. A Fels, 'A Model of Antitrust Regulatory Strategy' (2010) 41 Loy U Chi L J 519
138. See eg UK Environment Agency (n 46) 2. However, in judicial review terms, while public authorities will be expected to follow their policies, they normally are also expected not to follow them blindly.
139. A Hayes, 'Making Things Stick: Enforcement and Compliance' (1998) 14 Ox Rev Econ Pol'y 61