Environmental Law, Sociology Of

Regulatory Agency Enforcement Styles

One major research focus has been the determinants of variation in regulatory “enforcement styles.” Environmental regulators are subject to intense political pressures, reflecting two contrasting viewpoints. One pictures regulation as a legal process: regulations are viewed as authoritative legal norms, whose violation demands punishment. The second pictures regulation as a social process, aimed at stimulating cooperative government-business problem-solving—which suggests a remediative response to violations.

The remediative model reflects the fact that regulatory programs are designed primarily to prevent rather than to punish harm. Regulations seek to prohibit not all pollution but only pollution above levels that are demonstrably harmful to human health or ecosystems. Those determinations require case-by-case administrative judgments based on particular contextual factors. As Philip Selznick put it, the primary social function of administration is not to determine “the legal coordinates of a situation” in light of preestablished legal rules, but “to get the work of society done,” to refashion “human or other resources so that a particular outcome will be achieved” (1969: 14–16). Effective regulation, in this perspective, requires dialogue between regulators and officials in regulated facilities and whatever blend of rules and exhortation, threat and education, and toughness and compromise will best induce enterprises to cooperate. To do so, regulatory officials must be granted considerable discretion in implementing general regulatory standards.

Some regulatory violations, however—such as intentional fraud, lying to law enforcement and other governmental officials, and reckless disregard for the health and safety of others—are clearly criminal in nature. In addition, as detailed sociolegal studies have shown, there are always a considerable number of regulated entities, or harried subunit supervisors, who are inclined to cut corners on compliance to save time and money. Thus, in the hands of gullible, overly busy, or politically influenced regulatory officials, a cooperationseeking enforcement style can degenerate into dangerous laxity.

Regulatory advocacy groups and many enforcement officials, therefore, argue that to deter opportunism by regulated businesses, it is dangerous to grant regulatory field offices discretion to use their own, potentially corruptible judgment. Effective regulation requires specific legal rules, strictly enforced. In consequence, regulatory enforcement styles vary between legalistic enforcement and discretionary judgment, between agencies and inspectors quick to use or threaten legal sanctions and those inclined to emphasize education and persuasion.

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