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Although EPA 1990 represents a clear departure from the traditional medium-by-medium approach, it was argued very difficult to implement in practice. The ENDS Reports 1993, 1995 revealed that the HMIP failed to force operators to address fundamental requirements of the EPA 1990 because of the difficulties resting on information delivering, lacks of transparency and absent legal definition of BPEO. Problems appear to continue. Another report published in May 2000 cited the comments on the works of the EA, the inheritor of HMIP, ‘still has many improvements to make before it can be considered to be an effective, fair and independent regulator’. Regardless of those comments, we should understand that the shift, from traditional approach towards formalized standards, centralized regulations and integrated enforcement, has become a readiness to meet the new environmental challenge in an international level, the compliance of the EC law or international protocols and the acceptability of alternative instruments.
4. Alternative instruments: the needs for answers from the outside of CAC
We have seen that the CAC system has been well improved through self-remolding, reached a more effective level on aspects of legislation and enforcement. The history has proved the great achievement of the CAC system in either clear air or sanitary drinking water. While examining the features of CAC, we could find some problems seem to be left open for the answers from the outside of CAC. Elements of a CAC model appear that issuing license as permitting pollution (under the given conditions), setting standards as seeking an optimal pollution level, enforcing through the criminal punishment as penalizing the behavior of lawbreaking more than remedying the environmental damages. Hence the pollution still remains around the permitted level.
Firstly, if a firm has met the CAC standards, it would unwillingly spend one more penny on the further abatement of pollution. In other words, the abatement of pollution likely relies on the development of techniques but firms prefer the cheapest techniques, which could only fulfill the conditions of BATNEEC, rather than the most effective techniques for further abatements. The CAC system leaves no incentive for firms to develop the newer technology and participate to the benefits of further abatements. Secondly, where newer techniques favoring abatements emerge, the statutory standards in the CAC system, with an inherent nature of stability of law, are impossible to be changed quickly to cater for the changing of situations. Some firms would like to choose the new techniques for long-term investments, but they get no benefit from the further abatements beyond the standard. The inflexibility of CAC leaves rooms for ‘free-riding’ to other firms in the case of a target standard could be met through their opponents’ endeavors without any efforts by themselves. Thirdly, the numerous costs of administrations and prosecutions could not be automatically compensated by CAC. Although the criminal fines could remedy the costs in some cases, these remedies only occur where the state wins the case, and the certain sum of fine, merely resulting from the separate cases, could not cover the whole amount of costs. Moreover, under a licensed pollution, there is no access to the compensation of those costs. In effect, these costs are imposed on the entire taxpayers. Fourthly, while CAC permits a firm to pollute under the give conditions, the pollutants lead the public to bear the suffering of environmental damages namely the social costs of environmental depravation. The CAC has powers to limit, suspend and arrest polluting activity or even force firms to clean up in order to maintain the pollution at a permitted level. During a certain time, neither the CAC has power to abate the licensed pollution, nor should the firms necessarily be diligent in investment to obtain a better environment beyond the permitted level. Here, the negative externalities of pollution remain permanently unsolved.
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