Jean Monnet Center at NYU School of Law


5. New Approaches in Implementing and Enforcing Environmental Policy and Law - Adiministrative Reform and Innovation in Environmental Law and Policy

"Ten years from now, the environmental policy community may wake up and realise that they missed the Information revolution."23

A study by Borins on innovation reveals that innovation does not occur primarily in response to crisis or external factors, but to internal problems in organisations, administrations, etc.24 Politicians, scientists, interest groups or agency heads are not the initiators of innovations, but mainly public servants (middle managers).25 These findings suggest that the traditional model of public sector bureaucracy may be inappropriate, and that research on innovative approaches to implementation should start in public administration.

Indeed, in recent years, public administration bodies such as the European Commission, the national environment ministries, the national environmental agencies or the US Environmental Protection Agency (EPA) have all been active in finding and testing innovative approaches to implementation and enforcement of environmental law.

All these administrations have - as a consequence of the growing legal activity at all governmental levels, encompassing an ever-larger number of firms and targets for regulation - started to modify implementation and enforcement styles from formalistic actions to impose sanctions for environmental violations to a perspective that views enforcement as only one item on an ever-enlarging menu of governmental actions to achieve compliance.
Five conceptual explanations can be offered for this change.26.

  1. Expansion of regulatory activity and growing complexity
  2. Growing environmental awareness
  3. Growing impact of environmental law
  4. Changing environmental problems
  5. Changing patterns of public administration

5.1 Expansion in regulatory activity and growing complexity

Regulation in the field of European environmental law has grown enormously since the late 1960s. In the academic field, much confusion reigned as to the exact number of environmental legal acts and the right method to calculate the "environmental acquis" (Should executive acts also be included?, should only legal acts based on Art. 175 be counted? What about amended acts?). Most observers estimate the "environmental acquis" at approximately 250 legal acts, but estimations can reach more than 500 directives in effect and new ones being imposed at a rate of about 100 per year27 (the latter figure probably being much too high).
Whatever is the right figure; regulation has grown, and so has concern about regulatory failure and criticism concerning the inefficiencies of regulatory and command-and-control approaches:

Another critical factor that affects compliance is the government's administrative capacity. Regulatory bodies need to have sufficient administrative, scientific and legal resources to issue rules and regulations and to monitor their enforcement but as the number of environmental laws has grown, the capacity of public administrations to administer them has often lagged behind.

Another structural explanation for shortcomings in implementation derives its analysis from the explosive expansion in the scope of environmental oversight in the late 1980s. Pollution laws, for instance, have imposed obligations upon hundreds of thousands of car owners and on thousands of small businesses. Thousands of communities and literally millions of people were made subject to recycling requirements intended to reduce the flow of garbage to landfills. Thousands of municipalities facilities were brought into a system of setting up, maintaining, improving and operating requirements for urban waste water systems. Agricultural operations were made subject to regulations to improve nutrient management. Construction sites, facilities without piped wastewater effluent discharges and many other locations became responsible for dealing with requirements for non-point-source discharges.

The original view that environmental degradation could be solved by changing the behaviour of a few, easily identified and large-volume polluters has given way to a new perception that the environmental universe is more diffuse and atomistic. More importantly, this universe is not inhabited solely (or even primarily) by organisations with the ability to comprehend complex regulatory requirements or absorb huge costs in complying with them. Small businesses, without benefit of engineering or other expert skills, struggle to understand hundreds of regulations and thousands of pages of technical requirements. Permit applications must often be prepared by teams of costly experts. Popular - and judicial - support for any fines may be scarce, for example, for small businesses that could better invest the resources for compliance efforts.

Environmental regulators have thus become increasingly aware that numerous structural reasons may account for one or more members of a regulated community failing to comply with relevant requirements. There is a growing recognition that enforcement responses may be effective in some cases but not by far in all. Enforcement may be absolutely appropriate - and necessary - to respond to sophisticated entities that are knowingly violating the law, but it may be counterproductive in encouraging compliance by persons being brought into a regulated system for the first time. The movement away from exclusive reliance on such command-and-control solutions reflects a conscious effort by regulators to enlarge their toolbox by adding other mechanisms to respond to the varied causes of non-compliance.

5.2 Growing environmental awareness (!?)

The second commonly offered explanation for preferring other measures in addition to traditional enforcement responses stems from a belief that societal norms and values have undergone a fundamental transformation.28 The public is demonstrating constant support for environmental protection, and business leaders increasingly see environmental protection as an important value. Today's business leaders grew up during decades when their culture supported protection of the environment as an inherently positive goal. Accordingly, the argument goes, they bring a fundamentally different attitude to environmental regulations, and their obligation to meet them, than their predecessors who made decisions and ran facilities at the dawn of the environmental age.
The normative rationale commonly offered for a broader compliance approach to environmental regulation is thus ultimately based on the belief that regulators and regulatees now share - perhaps for the first time - the same goals and value systems. Non-compliance today, one may argue, should more appropriately be regarded as a breakdown in communication or understanding and not an implicit challenge to the underlying regulatory philosophy. A number of business leaders today are said to want to do the right things for the right reasons, and should be given every opportunity (and aid) to demonstrate this. The logical consequence of this view is that: enforcement responses are no longer necessary in all instances; they should be reserved for intentional wrongdoing, or repeated wrongdoing by those who are in fact capable of compliance.

Clearly, this second explanation has some drawbacks: is a high level of environmental awareness a constant variable? In the 1990s, environmental protection seemed to rank less high in government's priorities than it had in the 1980s. Environmental awareness among citizens even dropped in the later 1990s. In the United States, for example, environmental protection became a mid-level political issue and ranked below education, health care, crime, social security and roughly equal with gun control and tax reduction29. It is not clear why business should not change its behaviour, too, so a return to strong enforcement policies cannot be excluded.

5.3 Growing Impact of environmental law on public management

Environmental policy and law is changing public management.30. The very nature of environmental protection creates challenges which are particular to environmental as distinct from other legal fields. It changes purchase practices, the operation of public and private organisations, wastewater collection and treatment, the operation of hospital, land use planning, road maintenance, water supply and delivery, the operation of airports, daily consumption patterns, etc.

Just as environmental law is actively changing, environmental management is undergoing alteration. Environmental protection has to take account of complex inter-dependencies and inter-relationships between the environmental media (air, water, soil) and biodiversity: unless care is taken, action to protect one medium will adversely affect another. Climatic, seasonal and geographical variations in environmental conditions have to be borne in mind (an approach which may be sound in one part of the Community may not be sound in another). Constantly changing states of knowledge and scientific evidence have to be taken on board (often implying a need for significant and urgent innovations, adaptations and changes of approach). Because of the potentially very serious consequences of a lack of foresight, environmental law has to an important extent to be based, both in formulation and interpretation, on preventive and precautionary principles rather than on a curative approach. Because it touches everyone, it has to involve a comprehensive set of actors, from government, industry and enterprise to the general public, often implying a very difficult balancing exercise. Because it relates to general interests in which there is often not a proprietary stake (clean air and water, a healthy biodiversity), it has to envisage methods of ensuring its effectiveness other than those which are adequate in other fields of law.

In Contemporary Regulatory Policy Eisner, Worsham and Ringquist mention environmental regulation as the most technically complex area of regulatory policy.31 Consider for example the task of setting safe exposure levels for various water pollutants; assessing (positive or negative?) human health effects of pesticides; designing techniques to safely treat and dispose of hazardous chemicals; monitoring emissions from hundreds of thousands of pollution sources; and projecting the global atmospheric consequences of increased emissions of chlorofluorocarbons, etc. Each of these tasks requires knowledge at the forefront of law, politics, chemistry, physics, epidemiology, etc. "Furthermore, these environmental problems must be addressed without seriously disrupting the existing system of private property rights or compromising economic performance, which requires considerable economic and legal skills. Finally, the reliance of environmental regulation upon scientific knowledge and technical expertise is increasing as targeted environmental problem themselves become more complex."32

The above-mentioned changing external factors and an unstable environment require new solutions and new instruments, in both the field of environmental policy and law.

5.4 Environmental problems at the beginning of the twenty-first century

Since the 1970s only the easy victories have been won. Environmental pollution problems were obvious, and by implementing technical solutions and regulatory mandates and by focusing on "end-of-the-pipe" pollution from large industrial and municipal sources, some improvements were achieved. The public is mainly interested in public-health issues. Questions of loss of biodiversity, etc. do not rank high on political agendas, since they do not directly affect human survival. Since we have learned that life in an artificial surrounding (is nature in the Netherlands "nature" or "artificial and cultivated nature", or both?) is possible to some extent, the fact that our population is living longer and healthier gives the false impression that things are not as bad as dramatic scenarios occasionally tell us.

Environmental debates have lost a lot of the ideological character which they had even 10 years ago. This is a positive development since rational discussion can only serve the objective of developing a rational policy.

Many environmental problems are invisible, not clearly predictable and show their effects only in the long run. New problems (such as climate change and urban environmental problems) are emerging and old problems (such as nature protection) have not yet been solved. Overall, the state of the environment (despite some improvements) is still deteriorating (especially in the field of soil, waste and water policy). It is no longer sufficient to focus only on controlling pollution. We face new problems arising from non-point sources, the loss of biological diversity, the management of computer trash and the fight against global climate change which are much more difficult to monitor and to manage. Genetic engineering, global trade and e-commerce are revolutionising the ways we live and work. The rapid development of new information technologies also present new opportunities and challenges.

Despite the fact that the regulatory state has been successful in tackling a number of environmental problems (especially in the area of air pollution - not CO2!!) a very complex problem now concerns the fight against climate change, for which the classical regulatory instruments seem insufficient. This problem needs concentrated efforts since it touches questions of air pollution, energy consumption, transport policy and life-style. Climate change requires efforts to integrate environmental policy considerations into the definition and implementation of other policies (Art. 6 of the EC Treaty), representing a major challenge for policy-makers and regulators.

The role and tasks of public administration in the field of environmental policy still remain unclear, and confusion reigns as to the most effective policy style and distribution of competences. What tasks should be decentralised, what delegated to other (public or semi-public) bodies and what privatised? Because of the lack of clear concepts probably no administration is more fragmented than in the environmental sector, where regulatory approaches range from hierarchical to decentralised. The different instruments applied for the same problems range from detailed and legally binding regulatory instruments in one country (or region) to flexible non-binding convenants in others.

5.5 Changing patterns of public administration in the twenty-first century

Besides the above-mentioned preconditions and changes inherent in the environmental field, a number of other, external factors contribute to the changing climate in implementing and enforcing environmental policies. The 1990s revealed four important developments which directly affect the nature, efficiency and effectiveness of environmental policy and law:33

(a) The internationalisation of public administration

As regards the internationalisation of environmental policy and law we can differentiate between:

Since the beginning of the 1990s the European Union (and with it the Member States) has increasingly been involved in the negotiation and ratification of international treaties. The implementation of European environmental law no longer concerns difficulties in implementing European directives but more often the implementation of international treaties and mixed agreements. The implementation of international treaties adds another complexity to the already existing problems of environmental directives. By 1992, when countries gathered to deal with the global environment at the United Nation Conference in Rio, there already more than 900 international legal instruments (mostly binding) that were either fully directed to environmental protection or had more than one important provision addressing the issue.34 Since 1992 the number of international agreements has further increased, and with it the question of compatibility between environmental and free-trade agreements (mostly under the -World Trade Organisation, WTO). We have also witnessed an extraordinary emergency of new networks dealing with implementation and enforcement issues. On the European level, INTERPOL and its Working Party on Environmental Crime were founded in 1992. The Environmental Network on Implementation and Enforcement (IMPEL) was created in the same period, followed by the Accession States IMPEL (AC-IMPEL). These networks are themselves a part of a global network (the International Network for Environmental Compliance and Enforcement, INECE). In the "Americas" a network was created between Canada, Mexico and the United States (the North American Commission for Environmental Cooperation, NACEC). The G-8 group also started to work on enforcement issues after 1997.

The internationalisation of enforcement issues and the emergence of networks is so important because the growing international trade poses new challenges to classical enforcement methods. One example in the shipment sector may illustrate this: in the shipment sector,

increasing global trade, mechanized transport with containerized shipping, and a high priority assigned to keeping shipments moving, make it more difficult than ever to have meaningful inspections of material intended for export or import. To the extent that Customs Services focused on illegal trade, most resources and technology were devoted to investigating incoming shipments, not those intended for export. Even then, only a small percentage of incoming traffic is actually inspected at the border. In the modern era, it is not uncommon for shipments to be loaded in a container in the middle of America, sent by trucks or rail to ports in California, and then packed on ships which are underway without the container being opened or its contents inspected. Many of these containers are never opened until they reach their final destination, perhaps in the middle of China. With more international trade, and relatively fewer opportunities for meaningful inspection, the potential for those to abuse the system by sending illegal substances increases. Thus, it is more important than ever that all levels of government work effectively together to detect and respond to suspect shipments. These different law enforcement agencies must integrate or at least coordinate their data, intelligence and technology, and build capacity by developing routine mechanisms for cooperative operations. Moreover, these domestic agencies must establish a network with their law enforcement counterparts in other nations, particularly their most frequent trading partners, to facilitate international investigations. Otherwise, there is small deterrent to those who would export waste illegally to avoid the costs associated with disposing of it in an environmentally sound manner at home35 .

From a national perspective, "Internationalisation" was for a long time identified with "Europeanisation" - e.g. the growing importance of the European "acquis". Member States had to adapt their administrations to the requirements of European law, and European policies were more and more perceived as internal rather than foreign affairs.

Being a member of the European Union thus meant continuously building capacities for the changing "acquis"36 which involved substantial investments in human resources and organisational development within the line ministries that had EU-related responsibilities for different policy sectors. This assumption is underlined by Schout's findings in his analysis of the Dutch Ministry of Economic Affairs: "the intensification of European Integration has led to more than a temporary increase in workload and has in fact resulted in a change in environment affecting all parts of the Ministry."37 Equally important - according to Metcalfe - was the development of organisational capacities and the development of interorganisational capacities. "European policies are often interdependent ... Taking account of interdependence requires coordination. Ministries must work together in the process of formulating national interests on a regular basis."38

The capacities needed in different policies are of various kinds. "Managing European affairs requires the development of an increasingly complex network of links extending outwards to the EU institutions and inwards to the domestic administration."39 Although public administrations in the EU states are old structures, they have continuously responded to new conditions including membership of the Union, which is itself evolving.

The growing importance of the Union thus imposed a severe burden on the administrations of the new Member States, and it is more and likely that the growing importance of other international organisations (especially the WTO) will impose further burdens. It is, therefore likely that national administrations will increasingly "feel" the organisational, human, political and financial impact of this development. Are these administrations ready to face these fundamental changes? And what changes will actually be required? Are major organisational changes to be demanded within ministries?

According to Schout: "Change - or the need for change - is difficult to identify and structures may be slow to adapt due to the stabilizing forces of institutions".40 The ongoing process of European integration, and in particular the major developments of the 1990s, have raised important questions for academics and for those responsible for Europeanisation activities. Questions which have to be faced include: Has the momentum of European integration really created major changes in the environments in which ministries operate?41 Is the assumption correct that the new Member States will be ready to adapt their administrative and political structures and mechanisms after joining the Union? Hanf and Soetendorp remind us that - in the past - "governmental adjustments were made in an incremental way, building upon traditions and arrangements that were already in place".42 In handling the new requirements of EU membership, "governmental adaptation was a series of ad hoc responses to emerging problems and demands. Also in the case of Ireland and Denmark, Europeanisation was more a process of gradual adaptation instead of a dramatic break with the past43." Or as Metcalfe puts it: "Reform in government often starts with high expectations and ends in disarray and disappointment. One reason, often quoted, is bureaucratic resistance to change."44

Having the capacities to effectively implement and enforce Community environmental law depends last but not least on the capability of public administrations to cope with the changing patterns of the modern world. Managing the implementation of European law means the ability to manage on a national level the growing impact of international environmental law on national legal, organisational and administrative systems.

(b) Administrative reform and New Public Management

The second development is the changing nature of the state, public administration and regulation. The classical Weberian-type of public administration is often perceived as being outmoded since it is seen as being too inflexible, too hierarchical, too intransparent, not cost-efficient and not citizen-oriented.45 Financial pressures, political deficits and demographic changes in particular put pressure on governments to come up with reforms. Since the mid-1990s the New Public Management (NPM) approach offered an alternative managerial paradigm for the public sector. In the EU Member States this led to attempts to reform the state and the public administration (or in US terms, to "reinvent the state") according to private sector management styles. Whether or not countries willing and eager to subscribe to NPM ideas, public administration is everywhere seen more and more as a field of management than of law. It is sometimes astonishing how much optimism is invested in the potential of management and administrative reform measures.46 This does not mean that reform measures are everywhere the same nor do they produce everywhere the expected outcomes.47 However, in some states values such as efficiency, economy and effectiveness rank as high as the rule of law. This new understanding of the role of public administration could more and more challenge the role (and the case-law) of the ECJ, since the Court naturally has a very formalistic understanding of the duties of the Member States. Trends towards more flexibility might thus conflict with legal requirements to implement in time, completely, correctly and precisely. At the heart of NPM is the belief that governments should be result- rather than process-oriented. Legislative oversight should therefore focus on performance rather than procedural regularity. To achieve results, NPM advocates argue, public administration should make better use of market-like competition in the provision of goods and services. This may be accomplished through privatisation, reorganised agencies, the development and implementation of new incentives, market-based instruments and deregulation. More flexibility and efficiency should colour the response to changing situations, new technologies and customer demands. NPM also opposes hierarchy and embraces employee "empowerment". NPM is probably so popular because it promises to create governments that "work better and cost less". It responds citizens' growing distrust in the public sector and promises better services and more transparency.

The impact of NPM measures on environmental policy and law is an area which has not yet been well researched. First results show that privatisation may have positive or negative effects. The introduction of market-based instruments - if accomplished at all - show mixed results. The effect of the reorganisation of ministries and environmental authorities and the setting up of agencies in some Member States have not yet been analysed fully.

(c) Decentralisation and deconcentration

In recent years, political scientists, business school professors, management consultants and technology gurus have all stressed the virtues of decentralisation and delegation, in both the private and public sector. The main reason for criticism of hierarchical forms of organisation was that authoritarian and hierarchical states and firms have failed: according to Fukuyama "they cannot deal with the informational requirements of the increasingly complex world they inhabit. It is no accident that hierarchies have gotten into troubles at the time that societies around the world have been making the transition from industrial to high-tech, information-based forms of production."48 On the European level, strong resistance against the (feared) emergence of a European super-state started at the European Summit in Edinburgh in 1992 and the outcome was the introduction of the principle of subsidiarity in the Treaty of Maastricht. On the national level, the process started earlier: when the European Economic Community (EEC) was created in 1957, Germany was the only federal state and Italy had just started reforms to regionalise the state structure. The Netherlands, France, Belgium and Luxembourg were centralised states. With the beginning of the new millennium virtually no Member State can any longer be characterised as centralised. Even former centralised states like Greece, Ireland and the United Kingdom have accomplished or are in the process of decentralising or deconcentrating important powers that formerly belonged to the central government.

Decentralisation and delegation has many advantages but entails new problems as well: coordinating the activities of all the players in a decentralised landscape and producing accountability and legitimacy of decentralised and delegated actors. Another difficulty is to define the limits of decentralisation, since any form of organisation requires at least a minimum of hierarchy as well. The process of decentralisation and deconcentration in the Member States has without any doubt brought new complexities to the transposition of Community environmental law. Evidence is as yet lacking as to whether the application and the enforcement of Community environmental law can be improved through these measures. In the past very little research was done to explore the question whether there was a trade-off between increased legal complexities and improved compliance on the local level.

One solution might be to coordinate highly decentralised structures in networks,49 a form of order that emerges as the "result of the interactions of decentralised actors, without being created by any centralised authority".50 However, networks also have some major disadvantages. First, there is a striking lack of precision in the use of the term "network" among the experts. Second, the term is a fashionable buzzword way and it is not immediately clear what is so new about it (since networks have always existed). Third, networks are commonly understood to be different from hierarchies, but it is often not clear how they differ from markets. Fourth, "it is highly doubtful that formal hierarchies are about to go away anytime soon. To the extent that networks become important, they will exist in conjunction with formal hierarchies."51 In the European environmental policy, new networks have emerged (for example the IMPEL Network) in cooperation with the DG-Environment. Despite initial difficulties, the process of coordination has improved over the years.

On the national level, things are much more complicated since centralisation, decentralisation, deconcentration, agency-building and the emergence of new networks differ from Member State to Member State. One of the most difficult issues in the field of environmental policy and law is to define the right mix of centralisation, decentralisation, network-building and privatisation. Solutions have to be defined in a cultural context and differ from country to country.

(d) The introduction of new technologies

The fourth development is the development of information technologies and developments to forms of electronic governance.52 Technological progress is and has always been ambivalent. But "Over the next three decades computer power will grow astonishingly, by a factor of about a million. Computers will become so powerful, easy to use, and ubiquitous that they will change our lives utterly. In this era of amazing change we will face a huge challenge of design:"53 how to make the digital revolution serve our needs.54 The computerisation of offices together with the development of the Internet and e-mail, the installation of more sophisticated satellites, and the installation of faster and cheaper data systems have made it possible for more information to be accessed and evaluated even more quickly and cheaply. This ongoing process of "computerisation" is changing the role and structure of public administrations as well as communication structures and behaviour patterns. The rapid flow of information will permeate organisations: more regulation, information and reporting requirements will be transported electronically. Satellites will assume more and more functions in monitoring and controlling environmental pollution and environmental crime. Computer technologies and further digitalisation presage enormous progress in environmental forecasting, environmental reporting, data management, benchmarking, environmental information and communication. Industries and companies will probably become smaller55 (despite the present trend towards to conglomeration) and social and economic relationships will change (in the United States in 2005, "the percentage of workers employed in industry will fall below 20 per cent, the lowest level since 1850"56).

The current paradox is that - while we have new technology to hand - we do not yet have the design skills to apply it more effectively in the environmental sector. Or, to put it differently: "What's scarce are the good ideas" like that from the Environmental Crime Prevention Programme (ECPP), an intergovernmental organisation devoted to environmental security, high-tech monitoring and earth observation based in Naples. "This organisation analyses historical satellite images from Telespazio's Fucino Space Center. The satellite pictures showed a small lake outside of Naples disappearing over time. Subsequent investigation established that the lake had been illegally filled with waste by organized crime."57

Very few experts in the field of environmental policy and law have developed expertise in information technologies. The knowledge "barrier" between lawyers and political scientists and "IT-experts" is astonishing and communication rather poor. Even fewer experts have explores the potential of the Internet for environmental policy. In the waste sector, for example, the ports of Rotterdam and Hong Kong have agreed to exploit the Internet for international environmental crime, including the transmission of pictures of suspect containers with their ID numbers. Both cities have encouraged the expanded use of this model in all of the G-8 and other nations that were able to implement this type of communication between ports. They have agreed further to pursue common analysis of compliance data and law-enforcement information nationally and begun to build options for shared access and link internationally linked analysis, such as the system being developed by the Carabinieri's specialised unit in a governmental initiative funded with the support of the European Commission.58

If environmental administration and law is in constant flux and needs to adapt to new circumstances and changing patterns, how does this affect the implementation of environmental policies?

Comparing enforcement styles is difficult. Both, the states in the United States and the Member States in the Union function as laboratories for reform, but a clear overview of tendencies, successes and failures is lacking. The fact that the European Commission - compared with the EPA in Washington - appears to be much more reluctant to implement new implementation methods and instruments should be interpreted structurally. The first reason is the size of the DG-Environment (the DG-Environment has approximately 450 employees whereas the EPA has approximately 18,000 of whom 6,000 work in the headquarter in Washington).59 The second reason is that the competences of the European Commission are more restricted to monitoring the implementation of environmental law in the Member States from headquarter in Brussels. Direct interventions in national permitting, inspection, reporting or information systems are prohibited, since these tasks fall within the responsibilities of the national administrations.

An innovative approach60 towards environmental law and policy has been undertaken by the US Environmental Protection Agency (EPA). Since 1995, the EPA has launched, under the so-called "Reinvention Strategy" 59 reinvention initiatives. All these efforts concentrate on five principles:

  1. Better environmental information: the EPA committed itself to improve information, facilitate information, offer citizens the right to know on industrial pollution, facilitate reporting requirements and improve data systems. The overall objective of this policy is to place almost all environmental quality data on the Internet in a format easy accessible by the public.
  2. Stronger partnerships: this approach aims at including all stakeholders in the early formulation of programmes and policies. The hope is to build cooperative rather than adversarial relationships with stakeholders.
  3. Flexibility for better results: here, the EPA waives many of the technical production standards imposed upon industry and allows the private sector to reduce pollution however they see fit, as long as the objectives and goals are achieved (as would be attained under traditional regulations)
  4. Getting to compliance - and beyond: the EPA has initiated a number of compliance assistance and compliance incentive projects which aim at motivating the private sector to implement environmental regulations more efficiently.
  5. Less regulatory burden: here, the general goal is to consolidate regulations, improve the quality of the regulations and reduce paperwork

While a number of the so-called "reinvention principles" have been tested in the United States, others have also been used by the EU Member States and the European Commission for a number of years (for example the principle of partnership). Among a number of innovations one may differentiate between voluntary and binding approaches. On the voluntary end of the continuum are methods such as trying to "create a culture of compliance" among the regulated community by offering rewards for particular progressive companies, providing compliance help-desk centres for companies and technical support (to help regulated parties learn what they need to do to comply, and how to do it) or involving the public in enforcement issues through new information policies. At the legally binding end of the continuum the European Commission has significantly increased its enforcement programme by threatening the Member States with financial fines in case of non-compliance (Table 1).61

Table 1: The compliance continuum

Innovation areas

Individual projects

Improving the quality of regulations

· Consolidate and simplify requirements
· Write regulations in "plain English."
· Regulatory impact assessments

Facilitating permitting

· Streamline approval processes
· Harmonise requirements across programmes
· Develop multimedia and facility-wide permits
· Environmental permitting Clearinghouses
· Multi-media permitting

Increasing Flexibility

· Testing innovative approaches with the private sector
· Rewarding leaders

Offering compliance assistance and incentives

· Use market-based incentives to encourage pollution prevention and increase operational flexibility.
· Compliance incentives for small business (incentives for auditing, disclosure and correction)
· Incentives as a consequence of on-site visit assistance
· Establishment of small business compliance assistance centres
· environmental leadership programme
· guidebooks, hot-lines, training

Improving environmental information

· Right to access to environmental information
· Improving environmental information
· Environmental forecasting
· Public electronic access
· Easier information access
· Environmental accounting

Strengthening partnerships

· Stakeholder involvement
· Partnership programmes
· Regulatory negotiation and consensus-based rulemaking

Environmental management systems (EMS)

· Promoting the use of EMS
· Training of firms and public authorities
· Sponsoring training on EMS

Benchmarking and Performance Measurement

· Comparing experiences
· Exchanging information
· Introduction of quality competition
· Development of performance and enforcement indicators

Reducing formal (reporting and paperwork) requirements

· Improving reporting
· Reduction of paperwork burden
· Electronic data transfer

23 Rejeski, D., "Electronic Impact", in The Environmental Forum, No. 4 1999, p.32.

24 Borins, S., "What Border? Public Management Innovation in the United States and Canada", in Journal of Policy Analysis Management, Vol. 19, No. 1/2000, p.55.

25 Borins (2000, n. 15), pp. 53-54.

26 See the reasons for the change of the enforcement paradigma: The Commission for Environmental Cooperation (CEC), Voluntary Measures to Ensure Environmental Compliance, A Review and Analysis of North American Initiatives, 1998 (

27 See Vogel and Kessler, "How Compliance Happens and Doesn't Happen Domestically", in Brown Weiss, E. and Jacobsen, H.K., Engaging Countries, Strengthening Compliance with International Environmental Accords, Cambridge, MA 1998, p. 22.

28 Vogel and Kessler, 1998, p.14

29 The Gallup Poll Monthly, April 2000, p.12.

30 Rosenbloom, D.H. and O'Leary, R., Public Administration and Law, 2nd edn., New York, Basel and Hong Kong, 1997, p.87.

31 Eisner, M.E., Worsham, J. and Ringquist, E.J., Contemporary Regulatory Policy, London, 2000, pp. 135, 275

32 Ibid, p. 135.

33 One might suggest that demographic trends and individualisation should be added to this list. We believe, however, that these trends do not directly affect implementation of environmental policies and law.

34 Jacobsen, H.K./Brown Weiss, E.B., A Framework for Analysis, in: Brown Weiss, E./Jacobsen, H.K. (Editors), Engaging Countries, Cambridge, MA, Footnote 20), p. 1.

35 Penders, M.J., "Cooperative Criminal Law Enforcement to Protect the Environment - Recent International Developments, The United States Experience, and a Case Study: Project Exodus Asia" paper presented at the Cancun-Conference, Mexico, 7-10 October 1998.

36 Drumbl, M.A., "Does Sharing Know Its Limits?, Thoughts on Implementing International Environmental Agreements: A Review of National Environmental Policies, A Comparative Study of Capacity-Building", Virginia Environmental Law Journal, pp. 281-305.

37 A. Schout, Internal Management of External Relations, Maastricht, 1999, p. 4.

38 L. Metcalfe, "Meeting the Challenges of Accession", OECD, Preparing Public Administrations for the European Administrative Space, SIGMA Papers, No. 23, 1998, p. 58.

39 Metcalfe (1998, n. 31), p. 44.

40 Schout (1999), p. 24.

41 Schout (1999, Acknowledgements).

42 Hanf, K. and Soetendorp, B., "Conclusion: The Nature of National Adaptation to European Integration", in Adapting to European Integration, London and New York, 1998, p.186.

43 Ibid.

44 Metcalfe (1998, n. 31), p. 53.

45 See De Vries, M.S., "Toward a Historical-Comparative Perspective on Bureaucracies", International Review of Public Administration. Vol. 4, 1999, pp.55-69.

46 "Without wishing to deny the evident truth of changing conditions for government, we do wish to register a profound scepticism concerning what one might term the `history is dead, everything is new' school of management thought. On the contrary, as governments have geared up to tackle the problems of the late twentieth century, the record shows ... many examples of old constraints ... in new clothes". Pollit, C. and Brouckaert, G., Public Management Reform: A Comparative Analysis, Oxford, 2000, p. 150.

47 "The gaps between rhetorics and actions, and between the view from top and the experience at the grassroots are frequently so wide as to provoke scepticism or ... cynism". Pollit and Bouckaert (2000, n. 39), p. 188-189.

48 Fukuyama, F., The Great Disruption, New York, 1999, p. 195.

49 A network can coexist with a formal hierarchy but is based on shared informal norms, not a formal authority relationship.

50 Fukuyama (1999, n. 41), p. 197.

51 Fukuyama (1999, n. 41), pp. 199, 202.

52 See Reinermann, H., "Der Oeffentliche Sektor im Internet", Speyerer Forschungsberichte, No. 206, Speyer, 2000.

53 Joy, J., "Design for the Digital Revolution", Fortune, Special Edition, March 2000, p. F-10.

54 One could add here the revolution taking place in biotechnology, but this development may serve the implementation of environmental policies less well.

55 Coy, P., "The Creative Economy", Business Week, Special Issue, 21-28 August 2000, p. 82.

56 Ibid. , p. 78.

57 Penders, M., paper presented to the G-8 Lyon Group Law Enforcement Project on Environmental Crime, Naples February 2000, p.6.

58 Penders, ibid.

59 United States Office of Personnel Management, Federal Civilian Workforce, Statistics, Employment and Trends, Washington, May 2000. The figures for the DG-Environment were received informally.

60 The notion of "innovation" is by its nature very vague. However, our understanding of innovative approaches follows a very pragmatic understanding since we will analyse approaches (inventions) which have been applied in practice (innovations) (mostly by civil servants) but are not fully evaluated. We will distinguish between invention, the creation of a new idea, and innovation, the adoption of an existing idea for the first time by a given organisation.

61 See also: Markell, D.L., "States as Innovators: It's Time for a New Look to our `Laboratories of Democracy' in the Effort to Improve our Approach to Environmental Regulation, Albany Law Review, Vol. 58, 1994, p. 390.



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