by Carolyn Abbot. Oxford: Hart Publishing, 2009. 314pp. Hardback. £40.00/$80.00. ISBN: 9781841139258.
Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University Edwardsville. Email: ddegarm [at] siue.edu.
When dealing with environmental issues, most scholars scrutinize monitoring and enforcement issues to determine how to regulate pollution and to determine whether existing pollution control regulation is effective. In ENFORCING POLLUTION CONTROL REGULATION: STRENGTHENING SANCTIONS AND IMPROVING DETERRENCE, Carolyn Abbot focuses on the challenges of enforcing pollution control regulation rather than on its necessity or desirability. Pollution control regulation in this context refers to regulation that limits the discharge of environmental pollutants into the air, water, and/or land.
Abbot employs an economic model based on Gary Becker’s “Deterrence Model” to examine the enforcement issue. The underlying assumption of the “Deterrence Model” states humans act in rational and utility maximizing ways. Abbot expands on Becker’s model to examine the cost-effectiveness of different sanctions and penalties in promoting compliance with pollution control regulation. More specifically, Abbot compares the effectiveness of different enforcement mechanisms, such as apprehension and conviction or severity of sanction, in eliciting desirable behavior in the regulatory realm. Abbot examines pollution control enforcement strategies and sanctions in Australia, Canada, and England and Wales to analyze the application of cost-effective enforcement. The application of this model provides important observations about enforcing pollution control regulation.
In Chapter 1, “Environment, Enforcement and Deterrence,” Abbot details the parameters of her study. Abbot draws on existing theory to examine desirable levels of compliance and enforcement. She then familiarizes her audience with various regulatory mechanisms, drawing specific attention to “command and control” techniques that are most often used to regulate emissions and industrial processes. Knowledge about these regulatory instruments is important to understanding government strategies designed to limit environmental harm. She also discusses important concepts such as compliance, enforcement, penalties and sanctions. Abbot then turns to the issue of enforcement, examining it from both the public and regulatory perspectives. Finally, Abbot provides an overview of Becker’s “Deterrence Model” and the ability of such a model to provide a cost-effectiveness analysis as a way of assessing different enforcement strategies and penalties.
In Chapter 2, “A Theoretical Framework of Enforcement and Compliance,” Abbot [*846] introduces more comprehensively, and modifies, Becker’s “Deterrence Model” Becker, a renowned economist and Nobel Laureate, asserts that individuals and firms comply with the law because of the risks and consequences of getting caught if they do not. Abbot expands the underpinnings of this model to specifically address issues of regulatory control absent from Becker’s original work. This expanded framework allows one to assess the cost-effectiveness of different enforcement mechanisms in achieving compliance with pollution control regulations. This expanded framework reveals that regulators use a range of formal and informal enforcement mechanisms including informal warnings, administrative penalties and notices, and civil sanctions to encourage desirable behavior. According to Abbot, the expanded framework provides a good analytical tool and provides a more realistic approach to regulatory enforcement. The expanded version of the “Deterrence Model” forms the primary tool of analysis for the remainder of the book.
In Chapter 3, “Environmental Enforcement Strategies,” Abbot examines the links between different enforcement styles and the deterrence doctrine. The deterrence framework is based largely on the assumption that regulated entities are rational economic actors whose primary aim is to maximize profits. Therefore, deterrence enforcement strategies emphasize both punishment and the need for mechanisms to ensure that amoral subjects find it in their best interest to comply with the law. It is clear, according to Abbot, that if less formalistic and more persuasive enforcement strategies are used, they must be backed up by real and credible deterrence threats. It is this threat that underpins enforcement strategies more generally and is most closely linked to the simple deterrence model discussed in Chapter 2.
Chapter 4, “The Regulatory Landscape,” provides an overview of the environmental regulatory landscape in Canada, Australia and England and Wales. Environmental protection and pollution control issues rank high on the political agendas of these states. To test her cost-effectiveness model, Abbot focuses on the aforementioned countries’ institutional and legislative frameworks to determine how these governments pursue environmental protection goals and enhance the impact of penalties for nonconformist behavior. She further examines the influence of economic and political pressures on the ability of environmental regulators to secure compliance with pollution control regulations. Her study reveals that in the cases of Canada, Australia and England and Wales environmental responsibilities are spread across several layers of government. Despite variations in the way that these governments are organized to address pollution control regulations, “command and control” regulation is at core of the legislative framework of each country.
Abbot studies the enforcement approach of the countries’ environmental regulators in Chapter 5, “Environmental Enforcement Strategies in Australia, Canada, and England and Wales.” She discovers that while formal enforcement responses such as criminal prosecution and administrative notices are important in pursuing regulatory compliance, they are typically seen as mechanisms of last [*847] resort. Instead, regulators more often than not resort to informal mechanisms to bring about compliance
In Chapter 6, “Criminalising Polluting Behavior: Models of Liability and Deterrence,” Abbot analyzes the role of criminal law in deterring noncompliant members of the regulated community. She investigates those features of criminal law which under the deterrence framework may affect a government’s ability to deter unlawful behavior. She discusses the appropriate role of liability in the case of pollution control offenses. In England and Wales a strict liability approach is used, while pollution control offenses in Australia and Canada reflect a range of approaches from fault-based to absolute liability.
The effectiveness of criminal and civil sanctions are explored in Chapter 7, “Judicial Sanctions and Deterrence.” Abbot examines the range of criminal penalties that can be imposed by the courts following conviction. She also explores the extent to which criminal sentencing options can deter individuals and corporations from committing environmental crimes. She then examines their applicability to the deterrence framework. She explores the gamut of penalties including conventional criminal sanctions such as fines and imprisonment to alternatives such as adverse publicity orders, environmental audit orders, and environmental service orders. According to Abbot, Australia and Canada have a set of tools at their disposal which, when used, may counter difficulties of using fines to deter undesirable behavior, while conferring incidental benefits on society. In England and Wales, the development of alternative sentencing options is on the horizon.
The influence of administrative sanctions and mechanisms on compliance is explored in Chapter 8, “Administrative Sanctions and Deterrence.” Abbot determines that mechanisms such as statutory notices and monetary administrative penalties are cost-effective and flexible approaches to enforcement because they can be delivered without turning to the criminal courts for resolution. Furthermore, they send strong deterrence signals, and as such are a crucial component of any pollution control enforcement toolbox.
In the “Conclusion,” or Chapter 9, Abbot summarizes her efforts of applying the expanded deterrence model to the issue of pollution control enforcement. She concludes that this study confirms her assertion that it is important to find cost-effective processes and sanctions that maximize the deterrent effect of enforcement mechanisms. She also confirms that the expanded deterrence framework provides valuable insights into the question of how to enforce pollution control
ENFORCING POLLUTION CONTROL REGULATION: STRENGTHENING SANCTIONS AND IMPROVING DETERRENCE takes a sophisticated look at the issue of pollution control regulation. It combines elements from the literature on law and economics to provide an innovative study. As regulation and enforcement take on increasing importance in the environmental policy realm, I applaud Abbot’s effort to take a fresh look at this important topic. While contributing to [*848] existing literature and studies in this area, the book’s value goes beyond a “mere” contribution. It illustrates how an economic analysis, such as the expanded deterrence model, can provide valuable insights about pollution control regulation. First, it provides a comparison of the effectiveness of different enforcement mechanisms in encouraging compliant behavior. Second, it reveals important insights about the best ways to go about enforcing pollution control regulation. Third, it provides a wonderful comparative analysis of pollution control regulation in Canada, Australia, and England and Wales, where environmental concerns are near the top of the political agendas of these states. Finally, Abbot’s expanded deterrence model is a valuable analytical tool. It provides a methodologically rigorous way to evaluate cost-effectiveness enforcement. This book would be of great interest to those involved in environmental policymaking or regulation at both the national and international levels. It would also appeal to public law scholars.
The book is well written and presents a very compelling argument for using economic analyses of pollution control regulation to find better ways to induce compliance. The book would be wonderful addition to graduate courses focused on environmental regulation and enforcement. Although Canada, Australia, England and Wales are the focus of the book, the information gleaned from this text could certainly provide the basis for a more comprehensive study among a greater number of cases. This is one of the most innovative and refreshing books I have read on international environmental law in quite some time. ENFORCING POLLUTION CONTROL REGULATION: STRENGTHENING SANCTIONS AND IMPROVING DETERRENCE is a must read for anyone interested in this subject.
© Copyright 2009 by the author, Denise DeGarmo.