Compliance, Deterrence and Beyond
Forthcoming in Compliance and Enforcement in Environmental Law, 2015, (Lee Paddock ed) Edward Elgar Publishers.
13 Pages Posted: 20 Aug 2015
Date Written: 2015
Effective enforcement is vital to the successful implementation of social legislation, and legislation that is not enforced, rarely fulfils its social objectives. This paper examines the question of how the enforcement task might best be conducted to achieve policy outcomes that are effective (in terms of reducing the incidence of social harm) and efficient (in doing so at least cost to both duty holders and regulators), while also maintaining community confidence. It begins by examining the two strategies that historically dominated the debate about enforcement strategy. First, the question of “regulatory style”; and second, whether it is more appropriate for regulators to “punish or persuade”. Recognising the deficiencies of the dichotomy between the two, the paper goes on to explore more recent approaches that have proved increasingly influential on the policy debate. These approaches include Ayres and Braithwaite’s arguments in favour of “Responsive Regulation”, which are taken further by “Smart Regulation”. The latter recognises the benefits of an escalating response up an enforcement pyramid but also argues that government should harness second and third parties (both commercial and non-commercial) as surrogate regulators and that regulation and enforcement should be designed using a number of different instruments implemented by a number of parties, and not necessarily by government alone.
Keywords: Climate Law, energy law and policy, risk regulation and policy
JEL Classification: K23, K32, Q48
Suggested Citation: Suggested Citation