Regulation is not an entirely new phenomenon. Concern about environmental pollution is reflected in a statute of Richard II (1388), which prohibited the throwing of garbage in rivers near towns and in the proclamation of Elizabeth I prohibiting the burning of sea coal in London. The modern history of regulation, however, really begins in the early years of the nineteenth century with the Health and Morals of Apprentices Act 1802. This was followed by a whole string of measures in the middle of that century concerned with setting a minimum age for employment in factories, limiting the working hours of women and children, and regulating other aspects of health and safety such as ventilation, temperature, fire precautions and so forth. At present the most important legislation is contained in the Health and Safety at Work Act 1974 which established a new enforcing body, the Health and Safety Executive (HSE).
The mid-nineteenth century also saw the introduction of measures to control atmospheric pollution. The Alkali Act 1863 controlled the emission of hydrochloric acid during alkali manufacturing. As time passed the scope of legislation widened to include other ‘noxious or offensive gases’ (1906), and ‘dark smoke’ (1956 and 1968). Present UK legislation is consolidated in the Control of Pollution Act1974.
The Health and Safety at Work Act 1974 contains five specific duties of employers covering such matters as the safety of plant, the storage and transport of articles and substances, the provision of information and training about matters of safety, the creation of a safe working environment, and the provision of suitable means of access and exit. Yet these duties, which amount to a general exhortation to operate a safe enterprise, are to be discharged only ‘so far as is reasonably practicable’.
In the case of environmental pollution, the Health and Safety at Work Act places the firm under an obligation to prevent emissions to the atmosphere of noxious or offensive substances by the use of ‘the best practicable means’ (BPM). The Control of Pollution Act 1974 makes it an offence to cause ‘any poisonous, noxious or polluting matter’ to enter a river or other specified waters without authorization. ‘Discharge consents’ may lay down conditions concerning the nature, temperature, rate, volume, place and time of discharge, etc.
Pollution of the atmosphere from ‘scheduled processes’ is controlled by the Environment Agency (EA). The EA was established by the Environment Act 1995 and took over the responsibilities of Her Majesty's Inspectorate of Pollution (HMIP) as well as the National Rivers Authority and other environmental statutory bodies. Emissions from non-scheduled processes are controlled by local authorities under the Clean Air Acts 1956 and 1968. Since 1987 HMIP granted, on behalf of the Secretary of State, consents for discharges by water authorities. Individual firms apply to the water authorities for consents for the emission of trade effluents. The Radiochemical Inspectorate and the Hazardous Waste Inspectorate were also integrated into HMIP and hence into the EA.
Recent years have therefore seen changes in the administration of pollution policy and this appears to be continuing. The purpose of setting up HMIP in 1987 was to move away from a system in which the regulatory authorities ‘specialized’ in a particular medium – air, water, land, radioactive substances, etc. – to one of integrated pollution control. The Environmental Protection Act (1990) was designed to give effect to this new regime. Prescribed processes are regulated centrally and require an authorization from the EA which considers all the environmental implications. Other less polluting processes are regulated by local authorities. Authorizations attach conditions with the objective (among others) of ensuring the use of ‘the best available techniques not entailing excessive cost’ (BATNEEC).
Use of words such as ‘reasonably practicable’ or ‘best practical’ or even ‘not excessive’ implies considerable discretion on the part of regulators. There is an implicit cost–benefit test involved in the use of the word ‘reasonable’. An investment in safety equipment which has an imperceptible effect on the probability of a serious accident but which involves highly costly reorganization of a firm's production operations would presumably not be reasonable. Because both the benefits and the costs of safety investments are uncertain, however, and because the information which is available will not necessarily be equally available to both regulator and regulated, the opportunity to bargain over the implementation of the legislation is clear. Similarly, the cost of reducing pollution can only be excessive relative to some unstated criterion or set of criteria which it is possible to discuss. Before looking at the enforcement problems of environmental regulations, it will be useful to consider the forces which produce a demand for such regulation.
