英国环境立法的直接调控手段及经济手段的发展(英文)
孙文杰
【全文】
1. Introduction
Perspectives of environmental protection are possibly difficult to attain a common ground of which the use of regulatory instruments should respectively fulfill the requirements of different values, provided that each of them stands on a merely sole point of view. The economic value of environmental protection rests on the assumption that few economic activities would gain the benefits without producing any wastes; the purpose of individuals is maximizing overall benefits as well as maximizing utilities of resource; therefore they are, standing on self-interest, in the best situation for balancing their gains and losses and bargaining with each other in the free market in order to reach an optimal level of pollution---costs of pollution control not exceed the benefits of pollution control. The government intervention would be introduced only where the market fails. Present economic textbooks regard the pollution as an example of market failure where existing common property (e.g. air, river, common land), public goods (consumed without paying), externalities, or missing market. Thus, in the case of pollution, the failed market needs to be regulated by the government intervention. Over the past decades, advocating or using of economic instruments has increased rapidly. On the other hand, the traditional approach of regulatory intervention, so-called ‘command and control’ (CAC) has been the main force combating environmental pollution and existed in a considerable time. Nevertheless its deficiencies have appeared to be obvious, some of them have been cured by the legal system itself and the rests need alternative instruments to answer. To what extend the economic instruments can be used as answers? How does it work with CAC?
As response, this essay will trace the historical development of CAC system in Britain, particularly the perceived failures as well as improvements arising from the inside of CAC system, and then switch to its inherent limitations which could be supplemented by, among other things, economic instruments. The final answer could be the recognized existence that the present environmental protection regime is a combination of a dominant CAC system complemented by a broad range of alternative approaches including economic instruments, self-regulations or voluntary instruments etc. Due to word limit, the latter are not in the scope of discussions.
2. The nature and features of Command and Control
A typical CAC regulation, as one form of social regulations, has a coercive nature and failure to comply may lead to the imposition of penal sanction. Among the sources of environmental law, the private law has been testified lacking sufficient competency either to internalise the externalities of pollution or to conserve the resources for the future generation. Thus the public law is deemed as dominant for protecting environment by means of passing the environmental laws usually based on CAC model. The environmental CAC regulation consists of two important factors that are standards, set by decision-makers as a ‘command’ form, and regulatory agencies, authorized to perform the supervision and ensure the enforcement of standards ultimately through the criminal law, as a ‘control’ form. The key instrument lying in standards is issuing license, for a given industrial activity, which is attached conditions in terms of prescriptions (what one must do) and proscriptions (what one must not do) ; firms must meet the standards when applying for licenses. According to Ogus’s spectrum, environmental standards are divided, from low to high degree of intervention, into three categories namely target, performance and specification standards.
