Regulatory mechanisms are some of the methods or techniques that will be used to ensure that policy principles are applied and that action is taken to reach specified objectives.
The debate around regulatory approaches has become polarised and labels such as 'strict-liability' and 'self-regulation' are used to characterise the viewpoints of different sectors. In drafting the Green Paper it became evident that, in order to avoid the dangers of extreme positions, it was best not to use these labels. Instead we have attempted to devise a balanced and holistic package of mechanisms to ensure that regulation takes place in a consistent and effective manner.
Implementation and enforcement of environmental legislation, standards, policies and principles needs to be strengthened and the limitations of the traditional command and control approach overcome. Government will do this by means of a balanced and comprehensive approach. The emphasis will be on efficient environmental management to prevent environmental harm rather than retroactive punishment involving costly and time consuming litigation. However, where transgressions continue to occur and reactive regulation becomes necessary, it will be severe.
The balanced approach will comprise the following elements:
Mechanisms used to regulate the environment will be most effective where government applies them in a consistent, fair and equitable manner. In order to achieve this the regulatory system will be based on the following seven premises:
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This criterion has two interpretations
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The purpose of proactive regulation is to ensure that environmental consequences are determined, considered and integrated into decision making before negative impacts occur. Policy principles and objectives must be incorporated into environmental decision making. Government will use two measures to achieve this:
Integrated environmental management and planning will be prerequisites for government approval of all activities likely to have an adverse effect on the environment. The purpose of this requirement is to give decision makers adequate information detailing the possible adverse environmental effects of the activity, as well as possible policies, programmes and alternatives. The process adopted to achieve this must ensure the participation of stakeholders and their ability to influence decision making. Tools that may be used in securing integrated environmental management and planning include:
Under the Interim Constitution everyone has, amongst other rights, a right of access to:
Information on the state of the environment and activities with an adverse or damaging effect on it is essential for effective environmental management, protection and coordination. It is an integral part of ensuring the implementation of environmental standards and legislation. The availability and accessibility of such information allows for prevention and mitigation. It also facilitates compliance monitoring and successful participation by interested parties. Information may influence consumer behaviour and raise public and business awareness, encouraging the prioritisation of environmental issues and compliance.
Action to promote the accessibility of information will include the following and other relevant techniques:
Compliance mechanisms offer alternatives for achieving adherence to legislation and standards before resorting to prosecution and litigation. Mechanisms will therefore be set up that encourage stakeholders to comply with set standards, principles and objectives. Three methods are proposed to assist in securing compliance:
Economic instruments try to ensure that full environmental costs are accounted for in private economic decision making.
Government will develop a system of economic instruments which may include:
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Many sectors are concerned that tradeable pollution permits may compound those negative impacts already experienced by disadvantaged communities. |
Private sector environmental audits and audits of projects undertaken by government and parastatals will become mandatory as capacity and resources become available. Audits will serve a dual purpose namely:
Government will be entitled to enter into transparent covenants where the aim is to improve existing minimum standards. Covenants will be specific to sectors, will be limited to a specific time period and will seek methods of achieving sustainable development regarding issues not yet covered by legislation. They will provide a method of furthering environmental protection. Such agreements may also be considered for the purposes of pilot projects, for example, in the case of cleaner technology. In no instance shall such agreements contain provisions that are less environmentally friendly than existing legislation and standards.
Covenants may also be used in specific situations where stricter standards are needed to protect the environment, but where it would not be appropriate to amend national minimum standards.
Covenants will be entered into in accordance with participatory principles and all stakeholders will be involved in determining their contents.
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Voluntary instruments, covenants and other tools An alternative view is that covenants should be freely available as a regulatory alternative, provided they do not compromise minimum standards. In addition, voluntary regulatory mechanisms should be used to achieve significant benefits beyond legal requirements and in areas where legal approaches are limited or less effective. Existing examples of such voluntary instruments include:
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Government will develop uniform and consistent administrative control procedures. They must provide for good administration, rapid results and should include:
Reactive regulation will be used where the above mentioned mechanisms cannot be used to secure compliance or have not been successful and illegal conduct occurs. Reactive regulation will adopt the following premises:
Traditionally, offences committed in terms of environmental legislation have not been viewed as crimes, or moral wrongs. However, in order to secure sustainable use of environmental resources and protect the well-being of citizens, this perception must change. Therefore punishment of environmental crimes will reflect the gravity with which the degradation and abuse of the environment is considered.
In the past, relatively few prosecutions have been initiated against transgressors and they have met with limited success. Government will cooperate with the relevant state organs, and in particular, the Department of Justice, to ensure that prosecutions are initiated promptly, and processed quickly.
They shall also cooperate in adopting measures to make prosecutions more effective. Such measures will include:
Fines Historically, legislation has stipulated maximum fines for environmental offences. There has also been a large discrepancy in fines between different legislation. To redress this problem, government will cooperate with the Department of Justice to establish a method of determining fines linked to cost of living standards and the cost of the offence to the environment in accordance with the trend in the Department of Justice. Environmental legislation will set out a system for determining a fine commensurate with a crime, rather than setting specific fines.
Prison sentences There has also been a difficulty in imposing prison sentences on transgressors. Government will similarly cooperate with the Department of Justice in establishing a sentencing formulae for transgressors which will identify the likely punishment for an offence with certainty and less discretion. For example, a repeat offender will automatically be subject to the imprisonment sentence plus x years. Certain offences will carry mandatory prison sentences.
Alternative sanctions Government will also explore the feasibility and desirability of alternative sanctions, for example, community service, the ability of the court to seize the assets used to commit the crime, a penalty based on the value derived to the accused by the transgression, withdrawal of permits/ licenses.
Compensation and remediation In addition to the possible imposition of fines and imprisonment, the Government will ensure that mechanisms are put in place to allow for compensation and remediation. This would include clean up costs/ remediation as well as compensation of victims. This will relieve victims, often poor people, of the burden of litigation costs. It will also reduce the pressure on the justice system by eliminating the duplication of trials resulting from criminal and civil cases.
As far as possible, Government will emphasise the use of secondary, rather than primary criminal sanctions. Primary criminal sanctions are used when an activity harmful to the environment is itself the basis of legal action. For example polluting the air. Secondary sanction means that legal action is taken on the basis of failure to comply with administrative controls. For example, the offense originates from the failure to obtain a permit to emit substances into the air, or to comply with the conditions of a permit or notice of abatement.
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Liability must be appropriate to the crime. Example It will be appropriate in many instances to impose strict liability on industries for clean up costs and non-compliance, whereas strict liability for the failure of an informal community which does not have access to electricity to comply with air pollution legislation would be unjust. An alternate view holds that double standards should not be introduced on principle. The judiciary should be allowed to use its discretion to decide individual cases on their merits. |