1.3 Regulation of Environmental Behaviour

Objectives

On completing this lesson, it is important to be able to

•   estimate the importance of appropriate ‘environmental behaviour’ in terms of environmental law,

•   discuss the differences between direct and indirect regulation of environmental behaviour.

•   Point out the applicability of the different instruments of environmental politics and law to regulate environmental behaviour

 1.3.1 Instruments to Enforce Environmental Policy (planning)

Environmental policy has developed in the industrialised countries primarily as a reaction to the highly intensive growth of the environment industry at the beginning of the 1970s into special government departments. At first policy confined itself mainly to the activity of the state. Over the years, however, more and more protagonists with any interests in the environment field (so-called ‘stakeholders’) are being called to account on environmental matters. In particular, the responsibility of the producer of (potential) environmental problems is becoming increasingly significant. There is also a need to exert eco-political goals and strategies in other departments, for example, in policy for energy, transport and industry, agriculture, and building and construction. ‘Hard’ eco-political instruments (such as laws and regulations) exist side by side with the ‘soft’ methods of behavioural control (such as education of engineers concerning environmental awareness), for example, in the case of projects that involve many private stakeholders or the public.

Besides environmental law, environmental planning forms are a central set of tools to the extent that environmental policy tries to operate not only as a regulatory but also as a formative instrument. Environmental planning can be regarded as the development of sustainable environmental strategies to facilitate the achievement of regional or sectoral environment protection goals within a certain time-frame, for example, the reduction of CO2 emissions by 25% within the next ten years. In the 1980s the implementation of national environmental plans in Denmark, Netherlands and Finland played a pioneering role in this. We will, therefore, first expand on the possibilities of environmental planning.

To enforce environmental policy principles and objectives two instruments (according to Knopp 2008) are implemented in the legal framework of many states within the EU:

•   Different types of environmental planning

•   Different measures for regulating environmental behaviour

Environmental planning provides an important means of precautionary protection. Planning takes place as a multi-stage process, involving registering the current situation and forecasting future developments; moreover, it has to take into account possible conflicts of interests.

Plans can take the form of laws, statutory regulations, statutes, administrative regulations or administrative acts, each of which has different legal consequences. In addition, environmental planning may involve comprehensive planning or sectoral planning. Two forms of environmental planning are dominant:

•   Comprehensive planning. The task of comprehensive planning is ‘to determine, while exercising foresight, land use for residential, economic and leisure purposes for a certain area, irrespective of any specific project and not limited to any specific sector’ (Knopp 2008: 51);

•   Sectoral planning. By contrast, sectoral planning serves to establish environmental protection plans for specific sectors, chiefly landscape, clean air, noise abatement, water conservation and waste management, all of which require additional enforcement measures.

Another important instrument for enforcing environmental policy demands is environmental impact assessment (EIA). The primary objective of this instrument is ‘to inform the administration comprehensively and in good time about the environmental impacts of environmentally significant projects’ (Knopp 2008: 52). EIA is used to identify, describe and assess all of the direct and indirect impacts of a planned project on the environment, including ecological interactions, in good time, thus allowing precautionary measures to be taken across all media and sectors, and involving the public.

1.3.2 Instruments to Regulate Environmental Behaviour

Environmental behaviour is perhaps the most important target for environmental policy and education. There are various instruments for regulating environmental behaviour, which can be distinguished as direct or indirect forms of regulation:

Direct Regulation of Behaviour

Direct regulation of behaviour pertains to legal measures designed to immediately affect environmental behaviour. The traditional instrument of this type is environmental regulatory law, ‘which originates from police and regulatory law and generally punishes non-compliance by imposing sanctions’ (Knopp 2008: 53). Accordingly, actions with adverse environmental impact are subject to administrative control, which is characterised by legal requirements of notification, registration, licensing, authorisation, approval and other procedures of granting permission to engage in such activity. In addition, direct regulation is also exercised by means of expressly prohibiting or requiring certain behaviour by law.

•   Absolute legal bans (e.g. in Germany under the Federal Nature Protection Act, 2002, §§ 23 [2], 42 [1] and [2]), directly forbid certain behaviour with adverse impact on the environment. However, legislators only rarely employ measures of this type.

•   By contrast permission procedures are the key instrument in current environmental regulatory law in many European states. Projects subject to permission are strictly prohibited without permission. ‘Erecting or operating an installation of environmental significance, using environmental media, or producing and distributing certain products may all be subject to permission’ (Knopp 2008: 54). Thus a permit is a constitutive administrative act in that it grants the applicant the right of lawfully engaging in an otherwise prohibited activity.

•   Environmental law includes a number of so-called environmental obligations, of which basic obligations are of special significance. They impose certain obligations either on everyone or on a certain group of people. Normally, these basic obligations involve preventive and precautionary measures, most notably the conservation of resources (e.g. water or soil). Apart from those basic obligations, there are ‘numerous collateral obligations that may benefit the environment, such as promotion and performance obligations, monitoring and protection obligations, obligations to cooperate and continuously disclose information, organisational obligations and obligations to tolerate certain actions’. (Knopp 2008: 56)

Indirect Regulation of Behaviour

Indirect regulation of behaviour does not rely on norms mandating behaviour, but aims to influence motivation: incentives are provided for environmentally friendly behaviour while leaving discretion to the addressee. The means of indirect regulation behaviour notably include informational instruments, economic instruments, such as levies certificates, and subsidies.

•   Information, appeals and warnings

According to the German Environmental Information Act (1994), providing free access to environmental information is viewed as a means of sharpening the awareness of citizens and public authorities of the need for effectively protecting the environment. These means of raising environmental awareness range from political and moral appeals to warnings, recommendations and other forms of information, such as labels and product and usage information.

•   Levies

The most important means to indirectly regulate behaviour are environmental levies. ‘They place a price tag on the use of the environment and leave it to market participants to decide if and how they will react based on their individual cost–benefit analyses’ (Knopp 2008: 58). In practice, the inability to precisely affect behaviour via environmental levies can pose a problem. If they are set too low, polluters will opt for paying the levy instead of altering behaviour harmful to the environment. If levies are set too high, they may impede economic competitiveness. For instance, the following environmentally relevant charges are being levied in Germany in 2012:

-    Waste water charges

-    Countervailing charges under nature conservation law and forest protection charges in various German States

-    Water abstraction fees in some German States (‘water penny’)

-    Waste transportation charges (consumer law)

Environmental levies may be imposed as taxes, fees and contributions for benefits incurred, and special levies.

• Granting benefits to users of environmentally friendly products

‘Benefits for use’ refers to provisions that relax or lift general limitations imposed on the use of environmentally harmful products in the case of products that comply with standards that, although not required by law, are considered desirable, thus rendering such a product more environmentally friendly than others of the same kind. ‘Although this instrument does not involve financial incentives in the medium and long term, changes in consumer behaviour may be expected that may lead to crowding environmentally more harmful products out of the market’ (Knopp 2008: 60)

• Subsidies

Providing financial assistance is a form of indirect behaviour regulation. Subsidies are monetary or non-monetary benefits granted by the state, without any product or service being provided in return. Subsidies are generally viewed with scepticism, since they are considered to be prone to abuse and to place the cost burden of environmental protection on the general public. In the European Union there has been a tendency to cut back on environmental protection subsidies

• Environmental certificates

The idea of environmental certificates is based on a market-compatible form of quantity control by the state. Certificate-based schemes do not take prices as their starting point but define an admissible level for a certain future use of the environment in quantitative terms, leaving the formation of process up to the market. This instrument has been employed for climate protection under the Kyoto Protocol. The allocated emission allowances grant the holder the right to pollute the environment only to a certain extent. Should the holder pollute the environment to a lesser degree than permitted, the holder may sell the unused pollution allowances to another polluter. ‘Enterprises may thus elect to either reduce emissions from their installations or to acquire additional emission allowances from other enterprises that have been able to reduce emissions at lower cost’ (Knopp 2008: 61). Future experience will show whether this instrument will indeed prove successful in reducing greenhouse gas emissions

Economic instruments are gaining increasing significance as a complement to environmental regulatory law. There is no single answer to the question as to what is actually the ‘proper’ choice of instruments in order to achieve an adequate balance between various environmental user interests, the interests of affected neighbours, the interests of the general public and the protection of the environment. Legislators and administrations are thus ultimately compelled to rely on trial and error to reach an appropriate decision.