Book Reviews: Enforcing Pollution Control Regulation - Strengthening Sanctions and Improving Deterrence


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This is both a significant and timely study. Significant in that the author has extended existing theories of deterrence to encompass the much richer range of sanctions being developed in many contemporary environmental regulatory systems. Timely because the heavy reliance on the criminal law and strict liability offences which has traditionally marked so much of UK regulatory practice is currently being fundamentally re-evaluated. Carolyn Abbot's book will make a valuable contribution to the debates that are bound to follow as regulators, industry, and the wider public come to grips with the new agenda.

Enforcing Pollution Control Regulation begins by examining a number of underlying theories of deterrence developed by legal economists, and notably Gary Becker of the Chicago School. In the late 1960s Becker developed a model that predicted that a firm would comply with the law where the economic benefits of doing so outweighed the benefits of non-compliance. The inducement for compliance was essentially a product of the probability of detection and the amount of any fine. From one perspective, this seemed to be stating the blindingly obvious, though expressed in the complex language of economic formula. But Abbot quite rightly in my view criticises this model as being based on the assumption that individuals and firms are rational actors driven only by the desire to maximise profits. As with much of traditional welfare economics, this is a diminished view of human and corporate behaviour which does not necessarily match what happens in the real world. Other factors such as the need to preserve a corporate image, social norms, and what Abbot describes as the 'hassle' factor of being treated by the regulator as a poor operator all come into play. Becker has been much criticised, but rather than dismissing the approach, Abbot argues that it can be revitalised and extended beyond the world of the criminal law and simple profit maximisation to encompass both a broader mix of regulatory sanctions as well as a wider range of motives for compliance. This is valuable in that it helps to throw light on the complex range of factors involved in securing an effective compliance regime, and how they relate to each other. Saving resources in one area means increasing the emphasis in another if compliance levels are to be maintained.

The bulk of the book then examines and compares the way that three distinct jurisdictions have approach the design of pollution law, the range of sanctions available, and the enforce-ment strategies adopted by the regulatory agencies concerned. England and Wales, Canada, and Australia are the countries examined. A sensible choice in many ways in that the legal styles and culture (despite the federal structures in Canada and Australia) are sufficiently similar to make comparison worthwhile, while the differences are such that the exercise is productive. The enforcement policies in all the jurisdictions emphasis the significance of the criminal law as a deterrent, but generally prosecution is still seen very much as a last resort. A core difference is that in Canada and Australia, the enforcement agencies generally have access to a much richer range of sanctions that those currently available to the Environment Agency in England and Wales, including the use of administrative penalties and enforceable undertakings. The Regulatory Enforcement and Sanctions Act 2008 now provides for ministers to make orders making available these sanctions to regulatory bodies across a broad spectrum, and it currently seems likely that the Environ-ment Agency will be one of the first regulators to acquire these new powers.

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