RCEP's prescription on environmental standards for a new millenium

Traditional ways of setting environmental standards no longer command public confidence, according to the Royal Commission on Environmental Pollution (RCEP). Its latest report, though advocating a continuing central role for rigorous analysis of environmental problems, proposes revisions in the presentation of scientific findings and risk assessments. But its most important recommendations are that innovative methods of eliciting people's values must be used to integrate public concerns into the policy-making process from the outset, backed by greater transparency and accountability at every stage. 1

A recent review by two North American authors of international trends in the approaches used to assess and manage environmental risks identified a number of "dramatic changes" in their form and emphasis. 2The reviewers took seven representative frameworks from the US, Canada, the UK, Netherlands, Australia and New Zealand in an attempt to identify common themes, differences in approach and conceptual innovations. Although all seven maintain an important role for science, several emerging trends were identified - and three in particular stood out.

  • The authors saw a trend "toward the development of more inclusive processes, less dominated by technocratic practice, which ask those affected by risk to participate in the selection of risk management options capable of meeting multiple social goals."

  • Shifting views about the relative importance of science and of "stakeholder inputs" are being reflected in changes in emphasis between risk assessment and risk management. "Environmental risk," the authors say, "has evolved to become less an issue focused on determining quantitative estimates and more an issue focused on balancing social interests to achieve consensus. Part of that consensus involves risk minimization."

  • The authors also detected a lesser role for quantification in risk characterisation - and ascribe this to "growing concerns about abilities to accurately estimate risk given data inadequacies and difficulties with extrapolation."

    Their overall verdict was that recent innovations "point to greater social participation in the conduct, interpretation and use of risk assessment/management analyses. This is because technical analysis and command-and-control regulation have either failed to deal satisfactorily with environmental problems or, in suggesting solutions, have created conflict with other valued social objectives."

    Set in this international context, the RCEP's new report can be seen as a further manifestation of a prevailing unease that traditional approaches to assessing and managing environmental risks no longer command general assent.

    "For environmental policies to be successful, people must have confidence in the way they are being protected against risks," said RCEP Chairman Sir Tom Blundell at the report's launch. "That is best achieved if they are involved at every stage. Controversies over the last few years in this and related fields show clearly that governments, industry, the public and scientists all need a much better understanding of the relationship between policies, science and values."

    The report ranges widely across the components of the standard-setting process, covering the role of science; technology assessment; economic appraisal; risk assessment; the merits of regulation, economic instruments and voluntary action in achieving environmental targets; and, perhaps most innovatively, ways in which people's values can and should be articulated and integrated into the policy-making process.

    The report's contribution to the debate is uneven in quality across these themes. But its overall message is that there is a need for some far-reaching reforms in the procedures used to set environmental standards.

    Public trust eroded
    The changing nature of environmental concerns is one of the major challenges for environmental policy. Increasingly, that challenge has become one of preventing damage which may be global in scale, averting damage some way into the future, or addressing risks of great potential significance but subject to high uncertainty - a current example being endocrine-disrupting chemicals.

    The RCEP is adamant that changes in the social context in which standards are set have not dispensed with the need for "dispassionate and rigorous investigation of a presumed hazard." However, it notes, the conclusions of such investigations are now less readily accepted.

    "Environmental regulation has become more and more dependent on the advice of scientists. Govern-ments justify their action or inaction by appealing to the authority of science. Yet the changed character of environmental concerns has highlighted the extent to which there are uncertainties in scientific assessments, and the scope for different perceptions of the issues involved.

    "In some cases the interpretations and reassurances originally offered by governments have been shown to be mistaken when the findings from later studies are received or unexpected consequences emerge. This has eroded trust in environmental regulation, which has also been undermined by the scope for evidence to be interpreted in different ways."

    Science, uncertainty and vested interest
    The RCEP stresses that scientific understanding "must remain the essential basis for environmental standards." But it also notes that little attention has been devoted to examining what constitutes "sound science" - officially paraded over the years as a keynote of UK environmental policy, and demanded by business interests.

    In exploring this issue, the RCEP observes that, even within established regulatory procedures, there are "major sources of uncertainty" in the conclusions reached about effects on human health and the environment, as well as about the pathways of substances in the environment.

    In situations of high uncertainty, the impartiality of official procedures is a critical issue, the report says. "Judgements can be swayed, perhaps imperceptibly, by one or another kind of vested interest. One much remarked upon, and criticised, feature of regulatory science in the past has been the extent to which experts in an industry, the contract laboratories carrying out the standard tests for it and the regulatory body itself have functioned in some instances as a largely closed community."

    The report also notes that decisions on environmental standards cannot be taken simply on scientific evidence. Judgement and values come into play on aspects such as appropriate safety margins, decisions on whether to release a substance or on use of the environment's assimilative capacity, or the degree of precaution required. A "clear dividing line" must be drawn, it says, between analyses of the scientific evidence and consideration of ethical and social issues in such decisions.

    "Scoping" stage
    The report also makes it clear that the first stage in the decision-making process should be to define the nature of the problem, frame questions and formulate policy aims.

    The importance of this initial stage can be illustrated by the Brent Spar affair - a classic case where a narrow definition of a problem came badly unstuck. The essential question for Shell and the Department of Trade and Industry was to find a location where the oil storage installation could be dumped without causing predictable significant environmental impacts.

    Kept out of the reckoning were the public acceptability of using the sea for disposal of industrial waste, the precedent that the dumping operation would set for other offshore installations, and the comparative costs and environmental impacts of other reuse and disposal options.

    As well as advocating this preliminary "scoping" stage, the RCEP sets out guidelines for the presentation of scientific assessments. Transparency is regarded as crucial, especially in making clear where uncertainties lie and the assumptions used in dealing with them, such as application of safety factors. Candour about the range of possible interpretations of the evidence is also vital.

    The report also urges regular review of environmental standards so that new insights can be incorporated, as well as more proactive use of research to resolve uncertainties.

    Finally, the RCEP recommends that, in order to "prevent development of new understanding being restricted by established regulatory procedures, vested interests or small closed communities of experts, publicly funded programmes of environmental research should include provision for independent investigation and inquiry."

    Technology assessment
    The report strikes a similar note in its chapter on the role of technology appraisal in standard-setting. "Too often in the past," it says, "decisions about setting environmental standards have been driven by assessments of practicability which were produced by those with a vested interest in avoiding change and were unduly pessimistic about technological possibilities."

    In future, the RCEP argues, "it is essential that, as happens with new substances, the environmental implications of technological developments should be assessed before they are applied on a wide scale, and that appropriate forms of regulation should be in place." Its clear preference is for such assessments to be carried out on a life-cycle basis.

    Unfortunately, the RCEP did not go on to spell out coherently to which technologies it believes this prescription should apply, who should carry out such assessments and on what statutory or other basis, and what form of regulation it considers "appropriate".

    This is no trivial matter. As the direct environmental impacts of manufacturing processes are brought under tighter control, the relative importance of consumer goods in damaging the environment is increasing.

    A case in point is digital TV, whose standby power consumption is projected to create a demand for electricity in the UK equivalent to the output of a fair-sized gas-fired power station within ten years (see p 24 ). This will make greenhouse gas targets harder to meet - but the technology has not needed to clear any environmental hurdles, and it is not clear whether the RCEP believes that such products should do so.

    That said, the report does make two important recommendations. First, it says that regulation of industrial activities "should in future be informed by a life cycle perspective. If necessary, there should be changes in legislation so that the full potential for that can be realised."

    The Government's attention is currently on implementing the EC Directive on integrated pollution prevention and control (see pp 28-29 ), which will extend the issues covered in permits to energy and raw material consumption. Implementation of the RCEP's recommendation, if it happens at all, will have to wait till later.

    Secondly, the report recommends that the principle of "comparative assessment" should be "introduced into all regulatory procedures for the marketing and use of chemicals, including those covering reactants and intermediates." The principle was incorporated in legislation for the first time this year in the EC Directive on biocides, which provides for chemicals to be withdrawn if less hazardous but equally efficacious substitutes are available (ENDS Report 280, pp 46-47 ). But it is deeply unpopular with the chemical industry, and likely to prove difficult to apply in practice to anything but narrow applications.

    The chapter closes by acknowledging a "fundamental conceptual and methodological problem" with all methods of comparing technological options - that of weighing the significance of different kinds of environmental impacts which are not directly "commensurable" with each other.

    The problem is familiar to practitioners of life-cycle analysis and regulators who have attempted to apply the "best practicable environmental option" concept to industrial processes. But the RCEP passes round it, noting that the problem involves judgements, and "such judgements involve questions of values", with which it deals later.

    Division on economic appraisal
    The report has little to contribute to the debate on the role of economic appraisal in decisions on environmental standards. While concluding that economic appraisal, together with formal techniques such as multi-criteria analysis, "should be regarded as an aid to making decisions," the RCEP's members were apparently unable to reach a consensus on the merits of techniques which place money values on the environment - mirroring the same lack of consensus outside.

    While some environmental economists claim to be able to place robust money values on most, if not all, features of the environment, the report points out that different studies of the same issue have produced widely different valuations of costs and benefits - one example being the environmental and social costs of road transport. Changes in a critical assumption can also lead to markedly different implications for policy - a case in point being the recent controversy over the "non-use" value of the river Kennet in the context of a decision on water abstraction (ENDS Report 278, pp 16-18 ).

    The central problem for the more ambitious claims made for economic valuation methods is that both the validity and ethical acceptability of treating features of the environment as if they are tradable remain in dispute - and no amount of methodological development will surmount that.

    The RCEP missed a trick in not looking in any depth at Whitehall's approach to assessing the costs and benefits of new regulatory proposals.

    As introduced by the previous Government, this placed overwhelming emphasis on anticipated short-term costs to industries directly affected. Industry's capacity to devise innovative ways of complying which cost less than originally anticipated, now proven in numerous case studies; the prospects of business opportunities and jobs for the environmental technology industry or suppliers of alternative products; and the benefits of new measures - both to the environment and in some cases to businesses such as water companies - did not feature at all.

    Practice in preparing compliance cost assessments - now rebranded as regulatory impact assessments - has become more balanced under the new Government. But it is still skewed towards interests who make the most noise.

    Bad news for BNFL, HSE on risks
    In its chapter on risk assessment, the RCEP makes a point of rejecting a submission to its inquiry from British Nuclear Fuels that environmental standards should be set by relating them to risks in other contexts.

    The report also underlines the limitations of the "tolerability of risk" approach used by the Health and Safety Executive in regulating nuclear plants and hazardous installations. This is based on estimates of the probability of an individual dying in any one year, with different thresholds of "acceptability" or "tolerability" used to determine whether expenditure on further risk reduction measures is justifiable. The approach is being used increasingly by Government Departments in other fields.

    As in its chapter on science, the RCEP contends that gaps in scientific understanding often leave major uncertainties in risk assessments. "At some points in the assessment," it notes, "scientific evidence is likely to be inconclusive, at other points, entirely lacking. In the absence of data, working assumptions are usually needed to cope with variability of populations and exposures, weaknesses in toxicity assessments, uncertainty about responses, and lack of knowledge about other data, including the effects of mixtures of chemicals.

    "Inevitably the assumptions used are those of the practitioners making the assessment. These assumptions may be widely shared amongst the expert community but they cannot realistically be said to yield objective assessments. Other people, making different but equally valid assumptions, may produce substantially different estimates of risk."

    Moreover, the RCEP says, even if it were possible accurately to estimate risk probabilities, "that probability may not by itself be an appropriate basis for reaching a judgement about the tolerability of the human activities" concerned.

    In taking this line the RCEP makes three critical points. First, "risks arise out of different social contexts and therefore have different social meanings." Risks incurred voluntarily are generally regarded quite differently to those encountered involuntarily.

    Second, people's perception of risks is strongly coloured by whether they see benefits from the activities causing the risks, and to whom those benefits accrue.

    Thirdly, risks may be unevenly distributed. They may be higher for children or pregnant women, or concentrated in a small area, or liable to fall on future generations.

    On this last point, the RCEP notes that decisions on environmental standards "may well turn on this kind of distributional issue, which can be determined only by making value judgements. The commitment to sustainable development strengthens the need for a comprehensive assessment of risks, and emphasises temporal and equity factors which have previously been less prominent."

    Presenting risk assessments
    As with its recommendations on the presentation of scientific findings, the RCEP stresses that risk assessment reports should identify the limitations and uncertainties in risk estimates. The distribution of risks among localities, age groups or occupations, as well as the perceptions of risks and their tolerability to "relevant" groups, should also be presented.

    Comparisons between risks are generally inadvisable, the RCEP believes. Making them between risks "which the public does not perceive as comparable can undermine the credibility of regulators and governments. Risk assessments cannot establish a relationship on any objective basis between risks of different types or between risks imposed on different groups of people, because to do so raises value questions."

    Choosing from mix of instruments
    Before exploring how those value questions might be addressed, the report examines the instruments which can be used to achieve environmental standards. In doing so, it questions whether direct regulation of industry should continue to play as prominent a role.

    The RCEP perceives a number of drawbacks in direct regulation. For instance, enforcement bodies may be subject to "regulatory capture" by the industries they regulate. Or inspectors, while perhaps as well informed as companies about technology, "cannot be as informed about other aspects of the business which may be relevant."

    The latter difficulty, however, applies to other instruments with equal force. A topical example is provided by the Marshall report on energy use in business, which identified the asymmetry of knowledge between regulators and companies about technical and economic opportunities for improving industrial energy efficiency as a serious obstacle to the early introduction of emission trading for carbon dioxide (ENDS Report 285, pp 17-22 ). Civil servants are likely to be at the same disadvantage in negotiating the "sectoral sustainability strategies" on which the Government is keen (ENDS Report 285, p 3 ).

    Disregarding these difficulties, the RCEP suggests that there are "considerable attractions" in self-regulation and economic instruments "which seek to internalise environmental considerations within the decision procedures of potential polluters." But it does not take the argument too far, proposing that they should be complementary to, rather than a substitute for, direct regulation.

    Moreover, the RCEP's advocacy of alternative instruments comes with a sting in the tail. On environmental management systems, for instance, it recommends that "in due course all firms above a certain size might be required to operate such systems, in a form which requires regular publication of information about their environmental performance." Likewise, it suggests that "it may well be that, perhaps through amendments of the Companies Acts," formal reporting obligations should be placed on companies.

    Basic questions also arise about how transparency and accountability can be achieved with negotiated agreements, the report notes. Rather scrabbling round for solutions, it suggests that legislation on public access to environmental information should be supplemented by publication of "much more information" about firms' releases to the environment. Sanctions would also need to be in place to deal with free riders and firms which fail to meet their obligations under an agreement. These are important questions for the new "sustainability strategies", whose status in these respects remains obscure.

    Overall, the RCEP advises that the choice between available instruments should be made in particular cases according to the strategy which would be most effective in influencing behaviour. Crucially, it stresses that "to ensure transparency and openness, self-regulation and use of economic instruments should take place within the framework of clear published targets for environmental quality set by government after taking into account all relevant considerations and on the basis of wide participation of all relevant interests." This is a long way from the Government's current approach.

    Making room for values
    The report's most radical thinking is reserved for its penultimate chapter, which addresses how people's values should be articulated and taken into account in the policy-making process. To this end, "less familiar" approaches - actually, approaches scarcely tried in the UK - will, the RCEP believes, be needed alongside existing procedures for public participation and consultation.

    Explaining the reasoning behind this, the RCEP notes that environmental values, like others, "are not necessarily preformed or fixed but, for many people, emerge out of debate, discussion and challenge, as they encounter new facts, insights and judgements contributed by others." Moreover, individuals hold other values which influence the way in which they pursue environmental values.

    In perhaps its most important paragraph, the report continues: "Because there are different reasons for valuing the environment, and because this range of environmental values is part of a much wider set of commitments, there are many situations in which values are competing with each other, and there may, therefore, be difficulty in choosing the right course of action. As such dilemmas occur even for individuals, they are bound to be a significant feature of societies made up of individuals with contrasted backgrounds and sets of commitments.

    "In such circumstances, finding the best way forward involves considering a range of policy options and identifying the one which comes closest to satisfying the values relevant to a particular decision...As well as facilitating the emergence of values, processes of debate and discussion may be vital in resolving such situations of competition between values, both for individuals and for communities. In this way they may be able to play an important role in creating or identifying policy choices which will command wide support."

    The report goes on to draw a key distinction between people's values and the interests of stakeholders. The stakeholder model, used increasingly in attempts to resolve environmental disputes, places the emphasis "on negotiation between interested parties with the aim of reaching an expedient compromise." This is quite different from enabling people in their role as citizens to articulate their values about the environment, the RCEP notes.

    Polls, juries and focus groups
    Established ways of seeking public views on environmental matters include opinion polls, consultation exercises, public inquiries and parliamentary procedures. All of these will continue to have their place, but the report recommends that governments should use more direct methods to elicit people's values and take them into account in policy formulation.

    Two ingredients are regarded as crucial for these "less familiar" approaches. One is the opportunity for interaction and debate. The second is involvement of the public "at the earliest stage possible in setting standards and developing policies" rather than consultation on already developed proposals.

    "Openness at this framing stage," the report says, "allows people to question assumptions about the character of environmental issues and the scientific understanding upon which analysis is based. Framing of the issues to be subjected to scientific and technical assessment needs to be more socially intelligent."

    Four methods of eliciting people's values are proposed - focus groups, citizens' juries, consensus conferences and deliberative polls. The first three have already been used in seeking views on genetically modified crops - bringing some discomfiting results for biotechnology businesses and officialdom (ENDS Report 283, pp 18-30 ).

    The "less familiar" approaches need not be used for all decisions on environmental standards, the report notes. But they may be helpful, and indeed a precondition of progress, for "highly contentious" issues such as radioactive discharges or genetically modified organisms.

    The RCEP urges the Department of the Environ-ment, Transport and the Regions, working with other Departments, should consider how the new methods might be incorporated into standard-setting procedures, and draw up a code of practice on their use. For a recommendation so central to its thinking, this does not appear as well focused or strongly argue as it might have been to elicit the desired reaction from Whitehall.

    The report closes by setting out a standard-setting procedure crystallised from its earlier chapters. The keynotes are openness and transparency at each step, taking people's values into consideration from the earliest "framing" stage, and a clear separation between scientific and other analyses and decision-making. General practice in all these areas is currently deficient, the RCEP believes.

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