Law and the Regulatory Environment of Waste Management

Abstract

The management of waste, along with a variety of other issues impacting on the environment, has now arrived centre stage in a fast-developing agenda for the environment. In contemporary terms, the critical time-scale for any meaningful examination of the law's policy and technique stretches from the Control of Pollution Act 1974, enacted just after British accession to the European Economic Community, to the present when, at the time of writing, the Environmental Protection Bill is about to be enacted and the Government's promised White Paper on the environment has been published. From this cross-roads there is a very interesting view of progress in the task of managing waste through the law's facilities. It is the task of this case study to map the unfolding of what, hitherto, has been a very traditional 'axis' for the law's approach to waste management. In crude terms that axis has emphasised the (statutory) regulatory environment under Part I of the Control of Pollution Act 1974 and the available common law techniques for the distribution of liabilities. The central question to be asked here is whether this axis can be developed adequately for the purpose of coping with increasing anxieties about the treatment and management of waste. This central question begs a variety of other questions, all of which have to be addressed in this attempt to evaluate the law as an instrument (and perhaps the most important instrument) for the imposition and proper enforcement of responsibilities in the present context. To what extent should economic instruments seek to replace or complement traditional legal regulation here? To what extent should a private law contractual approach seek to supplement traditional public law-based regulatory techniques, where the powers of the regulator are often closely confined by the relevant statutory authority? Is there an effective collaboration between these public law-based regulatory techniques and the private (common) law rules of tort, ensuring a rather more automatic distribution of 'real' liability in the wake of failures to follow the regulatory code? Underlying many of these questions are further questions about the limits of law enforcement in the field of waste management as well as the status and influence of EEC law.