英国环境治理的几种主要方式

 INTRODUCTION
  British pollution control history can be ascended to nineteenth century. As the cradle of the Industrial Revolution, Britain’s position led to the very early development of public controls specifically related to environmental protection. The first national public pollution control agency in the world, Alkali Inspectorate, was established by the Alkali Act 1863 to control atmospheric emissions primarily from the caustic soda industry.In the more than a hundred years, environmental regulation has accomplished a great deal: considerable progress have been made in reducing air and water pollution, cleaning up hazardous wastes. But as conditions improved, the problems with command and control became more obvious. Modern Britain has inherited a far less coherent system of pollution control than many other countries in the long history. Britain’s regulatory style is characterized by flexibility and informality, and summarized as:
  An absence of statutory standards, minimal use of prosecution, a flexible enforcement strategy, considerable administrative discretion, decentralized implementation, close co-operation between regulators and the regulated, and restrictions on the ability of non-industry constituents to participate in the regulatory process. (Vogel’s ‘National styles of regulation ‘)
  Environmental policy appears to be at a crossroad. A new generation of environmental problems has emerged for which the traditional command and control strategy of regulation appears ill equipped to cope. It became harder and harder to achieve environmental improvements.
  For meeting the challenges of new threats to the environment, global environmental problems, and the pressure from EC, the most recently, there are two increasing tendencies, firstly, the command and control regulation shifts away from secretive, flexible, subjective and individualistic approaches, to more open, formal, objective and collective forms of decision-making; and secondly, the tendency for using economic instruments and voluntary instruments to achieve environmental objectives.
  There are two issues will be discussed below, (1) the failings of command and control system and it’s improvement, (2) what extent alternatives such as economic instrument or voluntary measures to be a viable answer to the perceived failings of command and control regulation.
  
  I. Command and control regulation
  Most environmental law falls into a general category of laws known as “command and control.” Such laws typically involve three elements: (1) identification of a type of environmentally harmful activity; (2) imposition of specific conditions or standards on that activity; and (3) prohibition of forms of the activity that fail to comply with the imposed conditions or standards.
  From these three aspects, the command and control regulation will be evaluated below.
  
  (a) Identification of A Type of Environmentally Harmful Activity
  The UK system command and control has been historically reactive and fragmented. Before we begin to talk about the current state of environmental law, we had better review its history briefly. Britain, as the cradle of the industrial revolution, has a long history of industrial pollution. The environmental problems started to cause significant impacts on public health in the nineteenth century and amenity in the mid to late of the nineteenth century. The common law, which was dealt with threats to communal assets and small-scale pollution, was unequal to the task and so the state had to take a more active role in the control of pollution and protection of the environment, and the legislation in the public interest became more and more important. But in these formative years, the legislative changes were reactive, because laws for the control of pollution had often been enacted in response to most severe situations and without any thought for wider development or consolidation of the law, so environmental issues were treated environmental media of air, water and land as separate. For instance, the 1863 Alkali Act required the noxious gases be condensed, which pollute the water, as the replacement method for the disposal of waste. The same reactive and fragmented tendency can be seen more recently, such as the London smog of 1952 last for ten days and was responsible for 4,000 deaths more than usual, the causes of the “states of affairs”, in the nuisance sense of the term, were treated as separate problems: industrial emissions to air; water pollution; smoke from domestic fires and furnaces; and so on. This sectoral and fragmented perception failed to appreciate the integrated nature of environmental problems.
  This is changing rapidly in recent years, integrated pollution control (IPC) under Part 1 of the EPA 1990, which seeks a holistic solution that concentrates on the process in relation to all, and The Pollution Prevention and Control (PPC 2000) regulations bring the European Integrated Pollution Prevention and Control (IPPC) regime into force in the UK. They replace the existing Integrated Pollution Control (IPC) regime on a phased timetable between 2000 and 2007 but apply to new installations with immediate effect.
  As a result, we can see the development of environmental law form a sectoral, reactive stance to a proactive, integrated approach. When the environmental problem is treated integrated, ‘identification of a type of environmentally harmful activity’ as the first step of whole command and control regulation system is now somewhat outdated.
  
  (b) Standards Setting
  British pollution control has a tradition of discretionary, local decision-making and a system based on pragmatism, in which the effects on the environment are balanced with social, economic and political factors. As a result, the environmental standards are differentiated and statutory standards absent.
  The public interest objective of environmental pollution control system is to achieve the socially optimal level of pollution, which should be set at a level at which the total benefits exceed the total costs by the greatest amount, and at which the marginal benefits are equal to the marginal costs.There are a number of different standards in environmental law, but a crude division can be made into those which are set by reference to the target which is being protected (e.g. environmental quality standards) and those which are set by reference to the source of the pollution (e.g. emission standards, process standards, process standards).
  In Britain, at the standard-setting level, the discretion is usually given to the relevant regulatory body. Mainly individualized standards negotiated between firms and regulatory agencies.Parliament rarely sets firm policies and standards in legislation, allowing for these to be defined in delegated legislation or through administrative guidance. For example the environment Agency has discretion over the setting of standards for discharges to water and in the definition of ‘best available techniques not entailing excessive cost’ (BATNEEC).
  The environmental standard-setting power is decentralized by being given to a wide range of bodies and by geographical decentralisation, which lead to incoherent environmental policy with very little uniformity across the country. Firstly, environmental law has been split amongst a number of statutes, as a result, also were the rule and policy-making power and enforcement entrusted to a bewildering array of agencies. (1) There is a range of bodies exercising environmental responsibilities, such as the House of Commons Environmental Audit Committee, the Cabinet Committee on the Environment, Green Ministers Committee, and Greening operations. (2) There are many decisions and policies which have important environmental effects have been made by different departments in central government including the Department of the Environment, Transport and the Regions, the Department of the Ministry of Agriculture, Fisheries and Food, the Department of Trade and Industry, and Treasury.Secondly, local authorities also have wide-ranging environmental protection powers (e.g. air pollution, contaminated land, noise control, town and country planning and environmental health), set and change the standards reference to local environmental quality. The public interest justification for differentiated performance standards is that, as a consequence of geographical and other circumstances, there are often significant variations in the damage costs arising from a particular discharge and in the costs of abating it.Over the years, this decentralisation of power has trended to result in a rather incoherent environmental policy, with very little uniformity across the country.
  The shortcomings of standard-setting in the command and control regulatory system are obviously. First of all, they create no incentives for firms to control discharges or to develop cheaper modes of abatement where the standard is already being met. Secondly, they depend on individual bargaining between the agency and polluters, and thus are vulnerable to manipulation by private interests. Thirdly, the uniform standards are less costly to formulate and administer.
  There is an increasing tendency for standards to be set centrally and a further tendency for them to be set out more explicitly in legislative instruments or formal policy documents. For example, in 1996, the creation of the Environmental Agency brought the main pollution control functions (integrated pollution control, waste management and the regulation of water pollution) under one administrative body for the first time. Furthermore, EC standards are imposed through directives, thus effectively replacing local discretion with central prescription.
  
  (c) Enforcement
  In the command and control regulatory system, failure to comply may lead to the imposition of penal sanctions, if only as a last resort. There are significant numbers of breaches of environmental legislation, but the proportion of prosecutions or other enforcement action is very low. This are some figures for different environmental enforcement agencies including local authority (e.g. only 16 authorities have brought prosecutions for local authority air pollution control (LAAPC) offences in eight years and Clean Air Act 1993 prosecutions form less than 1 percent of the total number of statutory breaches); the Environmental Agency (e.g. the, 270 prosecutions compared with 18,763 pollution incidents in the water sector and 17 prosecutions compared with 825 pollution incidents from IPC progresses) and English Nature (e.g. 15 cases of ‘formal enforcement’ in 1997 with 1 prosecution).Why was the power to prosecution used so sparingly?
  First of all, a wide discretion can be seen at the enforcement stage. There are few statutes which lay down duties to enforce the legislation, or which set out statutory factors to take into account, and usually the decision whether to take action is taken by the regulatory body on the basis of practical and political factors which are not mentioned in the legislation. Secondly, the main styles of enforcement employed by the regulatory bodies include compliance, deterrence, and responsive regulation. The compliance approach is typically characterised the development of flexible relationship between the regulator and the regulated. The amount of discretion given using enforcement powers means that enforce means that enforcement officers can use the informal problem solving rather than being forced to resort to formal sanctions such as prosecution. Thirdly, in most cases environmental enforcement powers operate upon the basis of strict liability, which means that there is no need to prove any negligence or fault on the part of the defendant. Fourthly, the level of criminal penalties used in sentencing for environmental crimes is doubted. The level of fines has traditionally been so low that it is not seen as an effective sanction compared with the profit that was generated from the environmental harmful activities. Lastly, the personnel and funding play an important role, the regulatory agencies need enough resources to pay for the inspection and enforcement.
  Minimal use of prosecution, flexible enforcement strategy eroded the rule of law; considerable administrative discretion created enormous economic waste; close co-operation between regulators and the regulated spawned a pernicious form of factional politics, which are all British approach to environmental enforcement.
  
  It is clearly seen the traditional form of pollution control, command and control regulation, has delivered considerable improvements. However, it can’t meet environmental objectives at lowest cost for large amount of administrative cost, it can’t make polluters pay fully for the effects of their activities and it has not enough economic incentive to encourage the regulated go beyond the lowest standards. The new alternative mechanisms, such as economic instruments and voluntary measures, are adopted with an increasing frequency.
  
  II. Economic Instruments and Voluntary Measures
  
  (a) Economic Instruments (EIs)
  EIs encourage the desired behaviour by financial incentives rather than by legal compulsion. The main feature of an economic instrument is to make clear to polluters the wider cost of their polluting activities. In short, they aim to demonstrate the 'price' of environmental damage and make polluters pay accordingly. Polluters then have a choice between paying that price and taking action to reduce their pollution. Such incentives can be either negative (conduct is legally unconstrained but if a firm chooses to act in an undesired way it must pay a charge) or positive (if a firm chooses to act in a desired way it is awarded a subsidy).
  Forms of EIs are identified as: (1) Charges, as one of the major EIs forms, are most widely used, which have important incentive effects, be levied on the results of pollution or on a process or a product. They can be introduced to achieve four different but not necessarily mutually exclusive purposes: to ensure that polluters pay for environmental costs they impose on society; to fund environmental protection measures or capacity building measures; to introduce incentives to more environmentally benign behavior; and to provide revenue to allow for the reduction of other less efficient taxes. The best example for charges levied on the polluting materials is the landfill tax, which applies to all waste, which is disposed of by way of landfill at a licensed landfill site on or after October 1, 1996, unless the waste is specifically exempt.The charges or taxes are mainly used to cover the administrative cost of operating the regulatory system or to charge for the full environmental cost of an activity. (2) Subsidies, with positive incentives, induce the polluters to reduce undesirable activity by madding payment to them. An activity can be subsidized in many ways. A government may transfer funds to an enterprise, provide preferential tax treatment, supply commodities at below market prices, or restrict competing products to assist a particular activity. (3) Tradable permits, a kind of EIs is based on the idea that allocative efficiency can be achieved by allowing pollution rights to be treated. Both taxes and tradable permits tend to equate the marginal cost of emissions abatement for all affected sources. The difference is that the tax is set by the government, and the level of emissions is determined by the responses of the affected sources; whereas in a tradable permit system, the government determines the overall level of emissions, and permit prices are determined by the market.
  As the above discussed has revealed, advantages of EIs are obvious, especially have more incentives than command and control and more cost-effectiveness. There isno doubt Eis will be adopt on more extended basis on environmental protection in the future, however, although some of the mechanisms are self-making, whilst others, such as most charging schemes, require a regulatory framework and proper policing, so they must be seen as additional to, rather than separate from, regulatory system. Furthermore, Eis looked like less immediate and tough measures adopted to respond to the pollution crisis, and “the polluter pays principle” is also hesitated, the cost for pollution abatement will be transferred to the products, so the customer have to pay indirectly. As regards taxes, governments cannot be trusted to use the proceeds for environmental purpose; and as regards subsides, why should taxpayer support polluters?
  
  
  Voluntary Measures
  Voluntary measures have enjoyed a widespread diffusion and are seen as a response to the need for more flexible means to abate pollution and reduce the administrative burden of environmental regulation.
  Three types of voluntary measures will be focused on below. (1) Environmental management system (EMS). Unlike public regulation, which imposes requirements on organizations from the outside, an EMS consists of a regulatory structure that arises from within an organization. An EMS represents a collection of internal efforts at policymaking, planning, and implementation that yields benefits for the organization as well as potential benefits for society at large.EMSs appear to many to promise improvement in solving environmental problems. When people inside an organization take responsibility for managing environmental improvement, the internal regulatory strategies they adopt will presumably turn out to be less costly and perhaps even more effective than they would be under government-imposed standards. Moreover, when organizations have the flexibility to create their own internal regulatory approaches, they are more likely to innovate and will potentially find solutions that government standard-setters would never have considered. Finally, individuals within organizations may be more likely to see their organization’s own standards as more reasonable and legitimate, which may in turn enhance compliance with socially desirable norms. (2) Private agreements. These agreements are more prevalent in some other countries (particularly the US and the Netherlands) , so we focus on two prevailed forms in the US. (a) Negotiated Agreements. In negotiation agreements, the regulated and regulators negotiate the targets of environmental performance that the regulated will have to reach and/or the means to reach these targets. These agreements are used as substitutes to command and control regulation. (b) Public Voluntary Programs. Participating firms voluntarily agree to adopt environmental standards that have been developed by regulatory agencies. In exchange the regulatory agency provides incentives such as subsidies, technological assistance, or positive effects on the reputation of the participants. These programs complement existing regulation.This mechanism has started to adopt in the UK with an increasing frequency.(3) Information based mechanism. This is a kind of voluntary mechanisms whereby environmental information is made available to the public on wider issues. For example, companies have incorporated information into annual reports, or the eco-labelling, which gives consumers the information about the environmental impacts of goods and products.
  As the “third way” of dealing with environmental problems between command and control regulation and free market instruments, voluntary measures are a kind of effective and sensible environmental protection. However, the disadvantages are also obvious like advantages, firstly, there are problems so-called “free-riders”, means there are no explicit enforcement systems; secondly, lack transparency and accountability; thirdly, standards setting at the lower end without incentive to achieve higher.
  
  
  
  
  
  
  
  
  
  
  
  CONCLUSION
  In a word, for the command and control system, there are numerous criticisms of its ineffectiveness. First of all, sectoral and fragmented perception failed to appreciate the integrated nature of environmental problems. Secondly, there are little incentives for firms to control discharges or to develop cheaper modes of abatement where the standard is already being met. Thirdly, depending on individual bargaining between the agency and polluters, and thus are vulnerable to manipulation by private interests. Fourthly, considerable administrative discretions create enormous economic waste. Lastly, close co-operation between regulators and the regulated spawned a pernicious form of factional politics, and so on. These failings look like to prove the command a control system "appears to have reached the limits of its technical capacity and cost-effectiveness." Much of "the low-hanging fruit has all been picked" after it has achieved significant progress in environmental protection.
  As the alternative mechanisms, economic instruments and voluntary measures provide more choice for environmental protection but they are also not simple panacea for improving the effectiveness of regulation. Most of economic instruments and voluntary measures have to require a regulatory framework and proper policing, so they must be seen as additional to, rather than separate from, regulatory system.
  There is no single best regulatory strategy. What is needed is a wide diversity of regulatory policy instruments which can compliment and reinforce one another, an optimal mix of regulations, one which is likely to yield the greatest improvement in environmental quality at the lowest cost.