The predominantly "passive" barriers, including apathy or skepticism on the part of potential industry and co-implementer participants, were addressed in the previous section by identifying program elements which, properly understood and promoted, can be turned into incentives and tangible benefits. This section will concentrate on "active" barriers. We will consider the case against sector-based programs, and will attempt to integrate that point of view into a strategic synthesis which both recognizes the limitations of the sector approach and takes advantage of its capabilities.
Interestingly enough, the most active resistance to the sector-based approach would not come from individuals who are unsympathetic with its objectives. On the contrary, the most convincing opposition would come from those who feel they have a better way to accomplish the same purpose. Two paradigms, often associated with the early days of environmental protection, are discussed below. They will be designated:
The situation is complicated by the fact that these older paradigms have been responsible for much of the progress in environmental protection to date, and that they are still arguably the most potent drivers of change on industry's part.
According to command-and-control, acceptable standards and practices are spelled out, and the regulated community is required to conform to them. The rules are unequivocal, and the standards are uniform. The strategy works well when
There is no inherent inconsistency between a sector approach and a command-and-control orientation. Indeed, the industrial wastewater pretreatment standards specified under the venerable Clean Water Act of 1972 are based on a "categorical" classification following essentially along sector lines. (In addition, the Resource Conservation and Recovery Act of 1976 classifies certain solid wastes as hazardous based on their having been generated as a result of specific industrial processes. This often has the effect of being a sector-based regulation in practice, since some processes are associated almost exclusively with specific sectors. The scheme outlined in this document distinguishes between sector-based and process-based regulation, but in practice, RCRA regulations are often applied, and debated, on a sector basis.) Command-and-control advocates would have no hesitation about commanding and controlling on a sector basis.
Instead, the latent discord between the command-and-control mindset and the types of sector-based programs set forth here stems from certain ancillary characteristics which have become associated with the sector approach, rather than simply from the division of the regulated community into sectors. The characteristics in question include:
Since the disagreement concerns means rather than ends, the most effective way to surmount this barrier is to demonstrate that the proposed means have in fact achieved results that command-and-control has not. The interim deliverables proposed in Section 3 would be applicable toward that end. It should also be recognized that some sectors are, perhaps for historical reasons, not ready for the types of sector-based programs envisioned here, and a command-and-control approach may be more appropriate, at least in the near term. In such cases, proponents of the sector-based approach might make more progress by recognizing the applicability of command-and-control until the groundwork for a more participatory relationship has been established.
The "control" half of command-and-control refers to the implementation of the "command" half. Environmental enforcement policy has evolved into a framework that is generally less rigid and arbitrary than the regulatory mindset that the "command-and-control" designation typically indicates. This discussion will therefore avoid that somewhat disparaging term, and will instead refer to the modern version of enforcement policy simply as the "enforcement paradigm".
If command-and-control epitomizes a military metaphor, the enforcement paradigm is more akin to policing. Command-and-control rules are orders to be obeyed or boundary lines to be respected. The enforcement mindset treats rules as portions of a civil code, and compliance as avoiding infractions of the code. In practice, command-and-control tends to be applied to the rule-writing and permitting end of the regulatory process, while the enforcement paradigm represents one approach to the implementation end.
According to the enforcement paradigm, voluntary compliance with the rules is reinforced by vigorous prosecution of infractions, and by making examples of selected violations. Because the current regulatory system depends to a large degree on self-reporting, paperwork violations are considered as serious as emissions violations. Enforcers measure success in terms of the number of violations discovered and successfully prosecuted. But effective enforcers understand that a perception of fairness on the part of the regulated community can be as helpful in eliciting compliance as a perception of toughness. Environmental enforcement is, on the federal level at least (and undoubtedly in most states and localities as well), generally characterized by respect for due process.
The divergence between the enforcement approach and the assumptions underlying the types of sector-based programs outlined here stems in part from two different attitudes toward the regulated community. To the enforcer, the regulated entity, however well-intentioned, is under many pressures besides environmental concerns, and needs constant supervision to ensure compliance. The sector-based programs in this document view regulated companies as potential partners who are inclined toward environmental improvement, and who are willing to put some work into making environmental improvement economically feasible.
These divergent outlooks lead to different prescriptions for the optimal regulatory system. The enforcement approach is reactive, rather than preventive in nature, and would consider avoidance of violations to be primarily the responsibility of the regulated community. In contrast, many sector-based programs try to accomplish the same purpose by modifying regulatory requirements and creating incentives to make compliance as painless as possible, working in concert with the regulated entities. Dealing with the regulated community as partners in a common environmental protection enterprise would seem an inconsistent concept to the enforcement frame of mind, and support for programs based on that premise would be tempered by considerable skepticism.
The different approaches do not blend well. Enforcement actions tend to undermine the trust needed for collaborative efforts. Similarly, establishing a basis for collaboration can create expectations that make enforcement actions seem unfair to participants. Is there any realistic strategy that can keep the enforcement approach and these collaborative sector-based approaches from working at cross purposes?
There is one particularly promising opportunity for cooperation which, on the face of it, would seem to be a natural way for enforcement and collaborative approaches to reinforce each other. Ideally, enforcers should have the ability to use information developed in collaborative programs for targeting their efforts.
Not all enforcement actions are equally effective. Making examples of companies acting in good faith over relatively minor infractions leads as much to cynicism and minimal compliance as to overall improvement. Significantly for this document, this assessment has been found to be true among state and local government co-implementers as well as industry. Several of the co-implementers who provided input for this study commented forcefully on the corrosive effect of inappropriate enforcement actions on sector-based initiatives with which they were involved.
On the other hand, well-targeted enforcement actions can actually benefit collaborative programs, and can help establish an atmosphere within which sector-based initiatives can flourish. In many sectors, companies that cut corners on environmental compliance costs can put economic pressure on their more responsible competitors. In such cases lax enforcement can result in a significant disincentive to invest in environmental quality (even when longer term returns on the investment can be demonstrated). Legitimate companies will applaud vigorous enforcement against "rogue" operators, as will co-implementers. While participation in sector-based collaborative programs can never be allowed to become a shield against appropriate enforcement, willingness to participate in such programs should be a valuable piece of information for enforcers as they choose how to target their actions most effectively.
How has this potential synergy fared in practice? Conversations with representatives of both enforcement-oriented and collaboration-oriented programs suggest that there remain significant cultural barriers interfering with this potential alliance. From the enforcement viewpoint, we have an opinion which can be summarized approximately as follows. "We have sunk a lot of money into these "beyond compliance" programs, but go into a typical facility, even in sectors with active programs, and you will find plenty of examples of significant noncompliance. What are we buying with all those resources?" The following counterbalancing points may be raised on the other side of the issue:
Both viewpoints make sense on their own terms. How can sector-based programs best address the potentially formidable barrier posed by this divergence?
It may be that the crux of the divergence is a consequence of two different ways of measuring success. With the enforcement approach, the unit of measure for performance is the violation prosecuted, not the impact abated. From this point of view, the enforcement paradigm is output-driven, rather than outcome-driven (see the discussion on Measurement in Section 3). Proponents of sector-based collaboration should promote the development of a regulatory framework that distinguishes between two cases:
Case 1. Sectors in which a significant number of companies are actively pursuing environmental improvement with a collaborative approach: The greatest potential for environmental benefit will result from stimulating capabilities within the sector itself to develop better processes and practices. Jeopardizing this potential by inappropriate enforcement actions can be considered an "opportunity cost". (An opportunity cost associated with a decision is the value of what we have to forego by making that decision.) For sectors in which collaboration can be shown to be resulting in documented environmental improvement, the outcome benefit of taking an enforcement approach with the sector would have to outweigh the opportunity cost of undermining the basis of the collaboration.
Case 2. Sectors where there is little hope of industry-led improvement, and little inclination to explore collaborative programs: In the near term, the enforcement approach may indeed be the most effective way to mitigate environmental impact. Proponents of a collaborative approach would be better advised to concentrate on the long, slow process of building the basis for trust, even while the regulatory process remains adversarial. (One premise of the Environmental Roadmapping Initiative is that an industry-led environmental roadmapping effort may represent a good way to begin.)
Thus the key to surmounting this barrier, and for that matter the most powerful argument supporting the sector-based approach in general, is the cost-benefit approach to environmental protection. Helping to establish the tools, the understanding, and the network of individuals needed to support cost-benefit environmental analysis may be the best contribution that sector-based programs can make toward clearing the road ahead.