Instrument Choice

Instrument Choice

Description

This chapter examines the several different types of environmental regulatory instruments, including command and control requirements, economic incentive systems, and information-based instruments, and their role in international environmental regulation. Research on, and both positive and normative analysis of, environmental regulatory instruments in domestic settings is relatively advanced in the United States and has more recently emerged in Europe and some other regions. In the context of international environmental regulation, there have been a number of studies of regulatory instruments in specific fields, but systematic study of the distinctive issues posed by instrument choice in the international context is still in an early stage. Environmental regulatory instruments provide incentives for actors who cause or contribute to pollution, environmental degradation, and ecosystem stress to change their behaviour in more environmentally protective ways. These actors are producers, resource users, developers, and consumers, including government entities engaged in such activities. These instruments are designed to implement public norms of environmental protection, and redress the limitations of private law, market ordering, and criminal law in securing appropriate behavioural changes on the part of these actors. Regulatory instruments may also serve to promote changes in actors’ perceptions and values, and serve expressive or symbolic functions in affirming environmental and other societal norms. The positive study of regulatory instruments seeks to identify and explain patterns in the development, and use of different instruments to address different types of environmental problems in different institutional settings. Such patterns may be explained, for example, by the instruments’ functional performance, the interests of relevant governmental and non-governmental actors, or sociological influences. From a normative perspective, regulatory instruments can be evaluated in terms of their efficacy in securing environmental protection objectives; their efficiency in achieving protection at the lowest social cost; and their ability to satisfy distributional, equity, and governance values. The subjects of regulation can be broadly divided into three groups: the regulation of products (including their characteristics, use, and disposal); product and process methods (PPMs), including manufacturing, agriculture, and resource extraction; and other forms of natural resource use, development, or consumption. Regulatory programmes may be based on the protection of specific resources, such as wetlands, the atmosphere, or endangered species, against a variety of stresses. Or, they may be stressor-oriented, aimed at controlling specific types of pollution, development, or consumption activities that may affect a variety of resources. There are three basic types of regulatory instruments: command and control measures, economic incentive systems, and information-based approaches. In some regulatory programmes, these instruments may be designed as a means for achieving given environmental quality objectives, for example, the prevention of ‘dangerous concentrations’ of atmospheric greenhouse gases, the maintenance of sustainable wildlife populations, or the achievement of defined limits on aggregate pollution or environmental stresses (such as a phase-down of ozone-depleting substances or preventing a net loss of wetlands). In other cases, including, for example, requirements for the use of best available technologies (BAT) and best environmental practices (BEP), there may be no direct linkage to a specific environmental result. Instruments also differ in the degree of flexibility they allow regulated actors, including whether they specify a given environmental result (for example, a fixed percentage reduction in emissions) while leaving the actor free to choose the means for achieving it or whether they specify the means to be used (for example, the use of designated control technologies). All of these different regulatory instruments must, in order to be effective, be backed up by requirements and arrangements for monitoring compliance and environmental performance; for record keeping, reporting, and publicity; and for enforcement and sanctions. This chapter first describes and compares the three basic types of environmental regulatory instruments, providing brief examples from domestic and international practice. It then examines experience with their use in domestic settings before turning to the distinctive issues posed by instrument choice in the international context, and experience with the use of various different instruments in international environmental regulatory programmes. It concludes with an agenda of issues for future research.

Source Publication

The Oxford Handbook of International Environmental Law

Source Editors/Authors

Jutta Brunnée, Daniel Bodansky, Ellen Hey

Publication Date

2007

Instrument Choice

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