Beyond Deterrence: Compliance and Enforcement in the Context of Sustainable Development
| Author | LeRoy C. Paddock |
| Profession | Associate Dean for Environmental Law Studies, The George Washington University Law School |
| Pages | 121-157 |
121
Chapter 5:
Beyond Deterrence:
Compliance and Enforcement
in the Context of
Sustainable Development
LeRoy C. Paddock*
Regulation is the most direct and predictable mechanism for control-
ling environmental behavior. Strong compliance and enforcement
programs that punish v iolators and deter violations by others are, of
course, essential to any successful regulatory system. It is increasingly clear,
though, that regulation cannot by itself produce the behavioral changes
needed to achieve sustainable environmental outcomes. e nature of envi-
ronmental challenges has undergone such a fundamental change that the
existing regulatory-focused system of environmental governance will not be
able by itself to ensure healthy air, clean water, a stable climate, safe drinking
water, vital ecosystems, a nd continuing biodiversity. Rather, environmental
sustainability will require that the regulatory system be supplemented and
supported through better alignment of economic drivers with environmental
goals and by changes in societal values. Enforcement ocials must play a
signicant part in this eort by both better understa nding what motivates
environmental behavior and how these motivations can be leveraged through
the compliance and enforcement process to produce environmental gains, as
well as to prevent environmental losses.
Klaus Bosselmann and David Grinlinton obser ve in their book Environ-
mental Law for a Sustainable Society1:
1 K B D G, E L A S S (New
Zealand Centre for Environmental Law 2002). e theologian omas Berry obser ved in his book
T G W: O W I F (Bell Tower 1999): “e Great Work now, as we
move into a new millennium, is to carry out the transition from a period of human devastation of
* Associate Dean for Environmental Law Studies, e George Washington University Law School. e
author is especially appreciative for the work of Loni Silva on the values and social marketing aspects
of this article. e author is also grateful to Anna Binau for her assistance with this article.
122 Next Generation Environmental Compliance and Enforcement
e notion of “susta inability” is more t han a catchy phr ase for an improved
environmental protection s trategy. Many commentators have linked sustain-
ability to fu ndamental concepts such as freedom, justice and equity. ere is
a widespread perception today that sustainability must inform future devel-
opment of society i n much t he same way as fre edom and equity informed
its present development. Only a sustainable societ y, capable of working with
nature, not again st it, will have a chance of surviva l.2
Prof. John Dernbach in Agenda for a Sustainable America notes, “sustain-
able development requires action by governments at all levels but cannot be
achieved by government alone. All segments of American society—indi-
viduals, nongovernmental organizations, businesses, the scientic and tech-
nological community, educational institutions, religious organizations and
families—need to play an active and constructive role.”3 is will require con-
tinuing eorts to create stronger economic signals supporting more sustain-
able behavior and to build societal values supporting sustainable outcomes.
Forty years after the dawn of the modern age of environmental law, the
nature of environmental challenge s has undergone such a fundamental
change that the system of environmental governance must be reimagined to
ensure healthy air, clean water, a stable climate, safe drinking water, vital eco-
systems, a nd continuing biodiversity. As Prof. J.B. Ruhl has observed, “the
environment operates in a state of highly complicated, organized disorder.
Indeed, scientists are beginning to understand that the disorder—the chaos
that is inherent in the environment—is its means of sustainability.”4 Based
on this more sophisticated understa nding of the nature of complex environ-
mental systems, Ruhl asks: “Is it an accident that sustainable development,
adaptive management, and biodiversity were unheard of in the environmen-
tal policy debates of twenty [now thirty] years ago . . . ?”5 He answers: “I
think not. Rather, the evolution of environmental law has led us to this point
precisely because these three concepts are related and because they a re con-
sistent with the vision of law as a complex adaptive system.”6
In ma ny ways, existing environmental regu latory a nd enforcement pro-
grams are designed to function in exactly the opposite way. Our environ-
mental laws tend to focu s on specic pollutants discharged from specic
the Earth to a period when humans would be present on the planet in a mutually benecial man-
ner.” Id. at 2.
2 B, supra note 1, at viii.
3 J D, A S A 28 (ELI Press 2009).
4 J.B. Ruhl, inking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environ-
ment by Making a Mess of Environmental Law, 34 H. L. R. 933, 935 (1997-1998).
5 Id. at 1,000.
6 Id.
Beyond Deterrence 123
facilities. ese facilities are regulated through facility-specic permits and
subject to facility-specic inspections and enforcement actions. is situa-
tion does not describe a “complex, adaptive system”; instead, it reveals a sys-
tem designed to deal with older, narrowly dened environmental problems
of a limited range of pollutants emanating from large point sources. Today,
we understand our environmental problems involve facilities large and small,
and indeed, indiv idual conduct. We also increasingly understand that envi-
ronmental problems often occur at an ecosystem scale and that most existing
laws are ill-suited to resolving ecosystem-scale problems. We know, too, that
unregulated or only lightly regulated act ivities also contribute in important
ways to ecosystem damage, whether it be estuarine degradation, habitat loss,
or climate instability. Ruhl’s analysis supports the idea that relying solely on
traditional regulatory approaches will not get us where we need to go. While
compliance and enforcement programs are a necessary part of any eort to
achieve sustainable environmental outcomes, simply enforcing regulations in
their current form is not sucient to achieve these outcomes.7
Certainly, we wa nt our compliance programs to help organizations meet
regulatory requirements and our enforcement programs to deter as many
violations as possible. But because compliance with existing environmen-
tal regu lations is not sucient to achieve the larger goal of su stainability, it
is important for those working on compliance and enforcement programs
to think about how they might leverage their work to inuence “internal”8
economic drivers of environmental behavior and help build societal values
that help achieve results beyond compliance. Enforcement programs have,
for some time, supported eorts that are designed to prevent pollution,
encourage the development of better environmental management systems,
and promote environmental auditing, all of which can have an impact on
7 Researchers since the early 1990s have examined the idea of “responsive regulation,” which posits that
“by working more creatively with the interplay between private and public regulation, government and
citizens can design better policy solutions.” I A J B, R R-
: T D D 4 (Oxford Univ. Press 1992). One more-recent
manifestation of this approach is “risk-based regulation.” Julia Black and Robert Baldwin assert that
“it is best to regulate in a way that is responsive to regulated rms’ behavior, attitudes, and culture;
institutional environments; interactions of controls; regulatory performance; and change.” Julia Black
& Robert Baldwin, Really Responsive Risk-Based Regulation, 32 L P’ 181, 211 (2010); see also
O E C-O D, I G
R (2010).
8 is article posits two types of economic drivers that can aect organizational environmental behavior.
External economic drivers include taxes, fees, and subsidies imposed or provided by government.
Internal economic drivers, in contrast, encompass a wide range of monetized and nonmonetized
factors that may have an impact on the viability of an organization, such as reputation, supply chain
requirements, employee and community relations, access to markets, product dierentiation, and
government relations.
To continue reading
Request your trial