Command and Control in the United States

Command and Control in Environmental Law

A name given to the most common method of pollution control in the United States. Limits for pollutant discharge are set, either by regulation or on an individual basis, then incorporated into individual permits. If the requirements of the permit are not met, enforcement follows.

When environmental law first appeared, command and control seemed to be the only approach available. Facing an array of serious environmental problems, the government elected to make standards fairly uniform throughout the nation. Public participation in the regulatory process was limited to commenting after the regulations were proposed or when a permit was being considered. Some people maintain that the command and control approach is still the only viable option.

Still, the environment continues to have problems, so experimental approaches are finding their way into the statutes, and only time will reveal whether they succeed in advancing a cleaner environment [see Clean Air Act Amendments of 1990].

Negotiated rulemaking is an experiment with the beginning phase of command and control. The idea is to get people representing industry, government, and the public involved earlier in the process when the Environmental Protection Agency (EPA) is considering a regulation. Though certain designated participants become official members, other people may attend and make comments as well.

Once the EPA decides, based on the committee’s work, that a rule is necessary, the committee members work together to write it. Because the composition of the committee is so broad, this process is long and difficult and results in regulations that are not totally satisfactory to anyone. But such is the nature of negotiation.

Another approach being tested is market based, incorporated into the Clean Air Act Amendments of 1990. Under this system, units of permitted pollution are considered assets that can be marketed. The holder of a permit may sell excess units to another business that needs them. At the extreme, a permit could be issued that would be fully transferrable, as opposed to belonging solely to a named permittee. It is too early to see the impact of this new strategy. Many praise it; many condemn it as a license to pollute.
Based on “Environment and the Law. A Dictionary”.