ENVIRONMENTAL POLICY
(p. 77). The British, because they are ‘reluctant to adopt rules and regula-
tions with which they cannot guarantee compliance’ (ibid.), draft regulations
that allow officials to negotiate specific arrangements with firms that will
be accepted by their superiors and the courts. Consequently, government
officials seek to ‘persuade’ industrial and farming interests of the need to
modify their behaviour and, when laws are broken, officials usually choose
not to prosecute. By contrast, in the USA there is a greater willingness to
resort to the courts to prosecute polluters and enforce compliance. Yet the
existence of a strongly legalistic administrative culture does not necessar-
ily imply that laws will be enforced rigidly with frequent recourse to judi-
cial action. In Austria, for example, producer interests are often accommo-
dated so that criminal courts play a negligible role, allowing most polluters
either to go unpunished or to pay insignificant fines, although one out-
come of Europeanisation is a shift away from this consensual style (Lauber
2004 ).
The concept of regulatory style inevitably involves some generalisation
and should be applied advisedly. Vogel’s characterisation of the USA as for-
malistic and confrontational was based primarily on a study of just two
policy areas, air pollution and land use, although subsequent studies con-
firm his broad findings (Fiorino 2004 : 396–401). If the idea of a regulatory
style has some resonance, one obvious question arises: which regulatory
style produces the best environmental outcomes?
The main criticism of the British style is that its extreme flexibility allows
thepolluter to escape a tight regulatory embrace. The preference for admin-
istrative discretion over judicial interpretation, the bureaucratic obsession
forsecrecy and the way secret site-level negotiations between polluter and
inspector remain at the heart of industrial pollution control, create the
perfect conditions for ‘regulatory capture’ (Skea and Smith 1998 : 268). The
widely used concepts of ‘best practicable means’ (BPM) of controlling pollu-
tion and ‘best available technique not entailing excessive costs’ (BATNEEC)
have ensured that regulatory authorities are sensitive to the economic and
practical constraints that businesses face. Put differently, British regula-
tors have accepted too readily the standards and practices of the regulated
(Richardson et al. 1983 ).
So, does a more formalistic regulatory style provide better protection for
the environment? Vogel ( 1986 : 23), whilst not claiming that British envi-
ronmental controls were particularly effective, argued that the emphasis
on voluntary compliance had proved no less effective than the more adver-
sarial and legalistic approach adopted by American policymakers. Although
American standards were higher, the level of compliance was much lower,
resulting in a serious implementation deficit. Industries complained that
they could not afford to implement strict emission standards. The EPA,
constrained by limited resources, frequently took only the most obvious
and gross violators to court. This more conflictual style generated bad
feeling between the enforcement agencies and industry, which, in turn,