Command and control regulation

Command and control regulation (also referred to as direct regulation) refers to a set of rules created by a public agency to prohibit certain behaviours, which can be enforced through criminal law. This form of regulation, which represents a ‘sustained and focused control exercised by a public agency over activities that are valued by a community’ can be applied in multiple areas but below it is discussed as a method of prohibiting or restricting environmentally harmful activities .
Most commonly, command and control regulation involves legislation-making and the setting and application of environmental standards which are then monitored and enforced by the regulatory agency, who have the power to use sanctions in response to non-compliance. Environmental standards refer to uniform requirements on broad categories of activities to achieve specific environmental goals; these standards can relate to emissions, concentration of substances in an ambient medium, processes, product standards and so on. This ‘rules-and-deterrence’ model represents a top-down process which relies heavily on technical expertise of scientists, lawyers and administrative experts.
Command and control was popularised in industrial societies with the ‘soar to importance’ of environmental issues from the late 1960s. It was used to respond to ‘first-generation’ environmental problems, most obviously pollution from industrial sources. Many studies into its performance since have found that it has been effective in decreasing the release of pollution, including common air and water pollutants as well as the elimination of substances such as lead, mercury, PCB and phosphorus. In the modern day it remains the primary tool for environmental protection.

Strengths of Command and Control
* Predictability of Outcomes Direct regulation makes a requirement of regulated bodies and once this requirement is in place compliance is very likely. This gives its implementation desirable predictability. This is incredibly important in some instances, for example where there are acute environmental dangers such as a threat to the public or the loss of a species or habitat.
* Uniformity The structure of command and control, specifically the application of uniform standards provides advantages. Firstly, when a system has uniform standards opportunities for manipulative behaviour by regulated bodies become rare as the bureaucratic system is transparent. Uniformity has also proven helpful in reducing the risk of environmental ‘forum shopping’ especially for the USA, which without standardisation would have experienced a relocation of industry to states with the least stringent environmental regulations.
* Clear Understanding of Responsibility Regulation creates a clear understanding in two senses. Firstly, requirements are clearly specified so that regulated bodies can avoid being in breach of them. Secondly, it creates a clear ideological understanding, specified behaviour is undesirable and there is a moral imperative to avoid it.
* Adaptability New legislation and standards can be created in order to tackle new environmental problems, often categories can simply be expanded to include a new threat. This has been questioned by some, who feel that although adaptation can take place it is slow due to the legislative process, and difficult as regulatory authorities have to monitor quickly evolving technical developments to facilitate it.
* Public Accountability The fact that a public agency is given responsibility for ensuring compliance of regulated bodies and achievement of environmental goals means that they become accountable for this, something which is desirable in a process which aims to protect common good
* Competitiveness Michael Porter is among those who assert that if standards are well-designed they need not constrain and can enhance competitiveness. It is argued that often pollution control improves process efficiency and final product, as pollution represents wasted resources.
Reasons for Reliance on Command and Control
The strengths of command and control discussed are not solely responsible for our reliance on it. We must see the popularity of direct regulation as a result of the political, social and ideological context in which it exists.
Regulation to Avoid Disruption
Command and control is a form of regulation which acknowledges the dominant position of economy, and does not pit itself against it. Although it does alter behaviour it aims to do so on a low level, without having to manipulate the economy or society a great deal. Rather than attempting to channel societies activities or tackle wider issues command and control simply reacts to environmental problems, a path of little resistance.
Views on the Causes of Pollution
The continued reliance on command and control hinges partly on the fact that often environmental protection and corporate behaviour are seen as a zero-sum game. In other words it is assumed that private economic interests inherently conflict with broader social interests. Corporations are viewed, as they were by Becker, as ‘amoral calculators’ who act only in their own self interest. This view of the corporation means that command and control is needed in order to act as a force to protect public or collective goods, in this case to prevent negative externalities of pollution inflicting a social cost on the people. Indeed many of those who object to attempts to alter our reliance on command and control view it as an excuse for regulated firms to escape the ties of environmental regulation and undermine its work. Jordan et. al. emphasise this as the reason for strong support of command and control regulation of large polluters in Germany, Finland and Austria.
Bureaucratic Rationality
Reliance on a public agency to control environmental harm is an expression of belief in public administration and bureaucratic rationality, as first expressed by Weber. Weber forwarded such bureaucratic organisations as the only way to find rational solutions to new problems especially problems of governance. Weber's rational bureaucracy model promotes a public agency which expands and grows more sophisticated in line with the complexity of the task it faces, aiming to control behaviour through a system of rules as has been the case with environment agencies, a pattern which has been common in public management.
Policy Incrementalism
This is the simple idea that responses to problems in the form of policy are not born independently, but are influenced by responses to similar problems which have come before. To quote Lindblom ‘most of us approach policy problems within a framework given by our view of a chain of successive policy choice’. Command and control has become the default mode of environmental regulation. This trend is supported by an administration staffed by people with experience in direct regulation and an antipathy towards altered practice. Once command and control regulation is established it continues to expand making society more and more reliant upon it. This idea is explored by Bardach and Kagan who see the role of the regulator as inherently risk averse, meaning that they proliferate regulation based on problems ‘that might occur’. In addition to this, industry often looks for loopholes in regulation leading to yet more regulation, a game of regulatory cat and mouse.
Weaknesses of Command and Control
* Inefficiency Probably the most frequent criticism of command and control is that it is an inefficient method by which to control pollution. The first reason being that uniform standards being imposed on regulated bodies fail to take account of differences in marginal abatement costs, which means that an unnecessarily high private cost is imposed for a certain level of pollution reduction. Portney’s research repeatedly concluded that pollution reduction goals could be achieved two to fourteen times more efficiently if command and control regulation was replaced with a market-based approach. Although economic efficiency is a valid concern when it comes to environmental legislation some such as Zellmer feel that critics of command and control focus too strongly on efficiency which neglects other goals such as effectiveness, predictability, sustainability and provision of environmental justice.
* Costly to Administer Claims of inefficiency are also levelled at the system of command and control as its bureaucracy needs to employ many experts. It is also seen as intensive once standards are set compliance needs to be monitored almost continually. This point has been highly disputed by those who support command and control. ‘Empirical’ evidence which supports the idea that command and control is more costly to administer than other instruments is often based on simulations or predictive studies, which underestimate the actual costs of implementing such instruments in our political and legal context.
* Discourages Innovation The setting of uniform standards is accused of being a process which fails to promote, and even quash the desire of industry to find innovative ways to tackle pollution. Often direct regulation prescribes technology, meaning that companies have no incentive to invest in research and development. Even where technology is not prescribed the bureaucracy of the system means that regulated bodies shy away from innovating to avoid the lengthy permitting process, a phenomenon known as the ‘compliance imperative'. The dichotomous nature of command and control compliance also means that once a body meets environmental standards they have very little motivation to invest in further innovation. Particularly criticised is regulation which requires adoption of Best Available Technology for pollution control, a system which means that companies have an active interest in no new technology being developed, as this would mean further investment on their part. Others have argued that in fact command and control has a history of necessitation innovation, or ‘technology forcing', an example being the innovation of suitable replacements for CFCs after they were outlawed. This type of innovation however is necessary but does not seem to lead to continuous improvement over time.
* Discourages Cooperation The top-down approach taken by direct regulation is conducive to an antagonistic relationship between regulator and regulated bodies. This means that expertise possessed in the private sector which could help to unearth win-win strategies for environmental protection are lost. Traditional enforcement can also lead to defiance and resistance from those it interacts with; Andersen describes the response of US ranchers to federal endangered species legislation as ‘shoot, shovel, and shut up’. This atmosphere of mutual distrust also leads to legal challenges, which further inflate administrative costs to the regulator. It could be questioned however whether this is a weakness of command and control itself, or whether it is a product of the pre-existing relationships; command and control regulation in Japan is well received, arguably due to traditionally strong links between industry and government.
* Inflexibility Command and control, while reasonably effective at controlling single media, point-source pollution, is inept at dealing with more diffuse environmental problems. Rejeski and Salzman refer to the global, networked and deconstructed nature of production and so pollution, the dynamism of which stretches the capacity of direct forms of state regulation. In sum, ‘the world is too complex and dynamic to be managed within traditional conceptions of law, bureaucracy and the state’. In addition environmental protection no longer refers only to pollution control, but to tackling broader issues of global warming, loss of biodiversity, use of resources such as energy and water, and intergenerational equity, problems of a different nature to those that command and control was designed to tackle.
Drivers for Change
Throughout the 1980s and 90s there has been an increasing discourse advocating a move away from command and control in favour of New Environmental Policy Instruments (NEPIs) such as economic instruments, voluntary agreements and informational devices. Advocates for the use of NEPIs included industry, and more recently environmental groups and green parties something which significantly boosted their credibility. This pressure for change was further bolstered by recession of the 1990s which induced governments to oblige industry requests in order to protect them from the threat of becoming uncompetitive due to regulatory inefficiency. Politically, ‘deregulation’ was a slogan of the 1980s. Although shifts from command and control to NEPIs does not represent deregulation, a step from implementation by command to implementation through market mechanisms and negotiation was seen as a step in the right direction. NEPIs gained vocal advocates such Bill Clinton, his initiative ‘Reinvent environmental regulation’ emphasises the need for regulation to utilise the capacity of business to develop effective solutions to environmental problems. Meanwhile the growing popularity of sustainable development and the ‘government to governance’ shift further appeared to confirm that command and control did not represent the future of environmental regulation.
Sustainable Development and Command and Control
The concept of sustainable development was popularised in the 1980s and has become a major policy focus. It has a forward-looking focus, and points to a need for the marriage of social, economic and environmental concerns in order to allow present and future generations to meet their needs. The nature of command and control, as a reactive ‘problem solving’ approach, which as already outlined does little to alter the underlying structures or functioning of our economy and society is insufficient to direct us towards a sustainable future. This is especially true as achieving sustainable development is not an environmental goal so much as a lifestyle transition. Sustainable development will need to be promoted at a variety of scales and levels, and include changes in values and attitudes as well as behaviour, a feat which the top-down, information powered command and control process is not equipped for.
‘Governance’ and Command and Control
In response to emergence of global environmental problems and economic globalisation regulation of the environment has experienced a shift, from government to governance. Many would see this shift to governance as equating to a decline in the importance of command and control regulation in favour of different forms of regulation. After all, according to Stoker ‘the essence of governance is its focus on governing mechanisms which do not rest on recourse to the authority and sanctions of the government’. Richard and Smith support this view saying that ‘government’ is bureaucracy, legislation, regulation and force while ‘governance’ is represented by NEPIs. As governance involves interactions between actors more than a hierarchical set of relations the state would be one such actor but would no longer exist as the director of environmental protection.
Empirical evidence as conducted by Jordan et. al. (11) helps to clarify whether indeed this shift to governance has lead command and control to be antiquated. What they find is that despite the proliferation of NEPIs, their use increased 50% across OECD countries between 1989 and 1995 alone, uptake has been ‘highly differentiated across jurisdictions’. In addition, they assert that despite the ‘frenzy' around NEPIs they did not observe a wholesale replacement of command and control, but rather NEPIs being used to supplement current regulation or tackle new environmental problems. This indicates that what we should expect from governance is not an abandonment of command and control, that would be to ‘throw the baby out with the bath water’(19). Although it is likely we will see a change in the way the state operates, for the reasons outlined, reliance on command and control will not be unravelled quickly, there will be less of a regulation revolution and more of a shift down the spectrum between government and governance.
Summary
Command and control is a much maligned mode of regulation. However, it has been instrumental in reducing levels of pollution in modern states due to its various strengths. Command and control was created in a context which has now altered vastly meaning that it is ill-suited to tackle some of the diffuse environmental problems we face. It has already and could further be adapted to overcome some of its restrictive qualities. Where this is not possible NEPIs may offer a viable solution.

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