Academic journal article
By Lally, Amy Pesapane
Law and Policy in International Business , Vol. 29, No. 4
Increasingly complex and comprehensive regulations(1) designed to state the end result to be accomplished by industries and then provide for civil, criminal, administrative, and citizen enforcement of those goals have dominated the first three decades of environmental law. While these end-of-the-pipe initiatives have led to substantive, real accomplishments by abating environmental pollution,(2) the limits of these regulations are also being realized. There is a trend toward pollution prevention and market-based approaches to regulation within both non-governmental organizations(3) (NGOs) and the government.
Promulgated by the International Organization for Standardization, with the participation of 50 of its 111 member nations,(4) ISO 1.4000 is a voluntary environmental management and procedural standard. It addresses environmental management from six vantages: environmental management systems, environmental performance evaluations, environmental auditing, life cycle assessments, environmental labeling, and environmental aspects in production standards.(5)
Command and control regulations are still another important tool in environmental law. These strict regulations set the stage for environmentally sound business.(6) But once the obvious problems of dumping and egregious discharges and emissions are curbed, the limits of the command and control regulations arise.(7) The primary concern is that command and control regulations promote adversarial relationships between industry and government and hinder collaborative efforts.(8) There is concern that these regulations are narrow in scope, ignoring the benefits of pollution prevention and "eco-efficiency."(9)
Pollution prevention is a proactive approach(10) that recognizes both the benefits of compliance with existing environmental law combined with performance above and beyond current requirements. In governmental enforcement, "there is continued bipartisan public support for maintaining strong environmental protection laws in the United States" even in the backlash of budget cuts and regulatory reforms.(11) This can be accomplished through the Environmental Protection Agency's (EPA) innovative approaches. In the 1991 Pollution Prevention Strategy,(12) the EPA recognized that industrial commitment and advancement in the area of pollution prevention could properly be considered when rendering decisions on "grants, prioritizing enforcement goals, defining what penalties will be sought for which action, and when negotiating settlements."(13)
Similarly, industry has gravitated toward the effective implementation of pollution prevention strategies.(14) Industry considers the "shareholder value [that] can be created by managing environmental assets and impacts more effectively."(15) As pollution prevention measures become integral to negotiated settlements with the government and are used by the government to reduce fines and liabilities, environmental law in the year 2000 will reflect primary health care and superior compliance rather than emergency surgery and minimum compliance.
The common goal of pollution prevention is shared by both command and control regulations and innovative compliance assurance programs such as ISO 14000. Alone, neither can meet the challenge efficiently. Successfully augmenting existing regulations with compliance assurance programs is the task facing the environmental craftsman.
Businesses today compete in a global marketplace. Environmental regulations or concerns at any point along the spectrum of consumers, suppliers, and producers can have a domino effect. Environmental law is not an elective concern for businesses today, it is a prerequisite.(16) National environmental legal systems throughout the world "differ on theories of liability [that] they apply in environmental law and on the amount of discretion allowed in enforcement."(17) This implicates trade concerns, which mobilizes international governmental organizations. …