Teaching Policy Instrument Choice in Environmental Law: The Five P's
Salzman, James, Duke Environmental Law & Policy Forum
Difficult choices lie at the heart of environmental law and policy. Should we reduce emissions of greenhouse gases? Should we protect a local population of endangered plants? Should we limit the catch in a fishery that seems in danger of collapsing? And if we take these actions, how much should we reduce the activity? Answering these questions is fascinating but no easy matter. It requires consideration of scientific, economic, legal, and political issues, not to mention the trade-offs that inevitably arise.
And even if we can agree that emissions of a particular pollutant are too high, that grazing levels of the local commons must be reduced, or that a local endangered species requires greater protection, a fundamental choice still remains: We need to decide how best to achieve these goals.
Put another way, even if we agree on our starting point and end point, we still need to determine which path should take us there. Reliance on regulatory mandates? Market instruments? Pilot projects or information generation? Implementing environmental policy is where the rubber meets the road, and it has provided some of the most innovative policy instruments in all of American law.
While environmental law may appear dauntingly complex, and on occasion truly is, it turns out that understanding instrument choice can be straightforward. Perhaps surprisingly, there are only five basic policy instruments in play, and these can be effectively taught through a simple framework known as "The Five P's."
Just as a complex sonata can be reduced to a small number of white and black piano keys, so can students' mastery of the Five P's allow them to identify the potential range of policy instruments at work in any statute. Despite their application across a dizzying range of situations, the basic environmental policy tools remain the same.
The "Five P's" include Prescriptive Regulation, Property Rights, Penalties, Payments, and Persuasion. There will rarely be one best tool for a particular situation, and much of the challenge in instrument choice lies in identifying each instrument's particular advantages and disadvantages.
The DELPF editors have kindly invited me to set out the Five P's as a teaching tool for other instructors to consider. Easy to remember, over the years it has proven a user-friendly and effective approach in the classroom. In the sections below, I use the well-known Tragedy of the Commons as a shared example. (1)
1. PRESCRIPTIVE REGULATION (2)
Prescriptive regulations mandate what parties can and cannot do--Thou Shalt or Thou Shalt Not. This is both the most direct and the most common form of environmental law. In the context of overgrazing the commons, for example, the government might limit the number of sheep that may graze, or restrict grazing to a particular season or period of time.
We see prescriptive regulations at all levels of environmental governance--from hunting permits at the local level (3) and effluent limits under the Clean Water Act at the national level (4) to restrictions on foreign commerce in endangered species under the Convention on International Trade in Endangered Species. (5)
Also referred to as command-and-control regulation, prescriptive regulation can be very effective in mandating uniform compliance across all actors, preventing problems of hold-outs, free riders, and collective action. If implemented across a broad geographic area, it can also prevent a "race to the bottom," in which regulated parties seek jurisdictions with less stringent requirements. (6)
There is considerable debate, however, over the efficiency of prescriptive regulations. (7) Economists, for example, often criticize them as inefficient and unwieldy. They argue that this approach provides little incentive for innovation because once the regulated party has satisfied the necessary requirement, the law creates no incentive to reduce harmful activities further. …