PAPER 2: THE OPTIONS OF LOCAL AUTHORITIES FOR ADDRESSING CLIMATE CHANGE AND ENERGY ADDRESSING CLIMATE CHANGE AND ENERGY

ENVIRONMENTAL REGULATION OF COMPANIES

6.1. PAPER 2: THE OPTIONS OF LOCAL AUTHORITIES FOR ADDRESSING CLIMATE CHANGE AND ENERGY ADDRESSING CLIMATE CHANGE AND ENERGY

EFFICIENCY THROUGH ENVIRONMENTAL REGULATION

OF COMPANIES

The options of local authorities for addressing climate change and energy efﬁciency through environmental regulation of companies

Kasper Dirckinck-Holmfeld^*

Department of Development and Planning, Aalborg University, A.C. Meyers Vænge 15, DK-2450 Copenhagen SV, Denmark

a r t i c l e i n f o

Environmental regulation of companies is sometimes in the literature characterised as a successive broadening of focus and policy instruments: from applying command-and-control mechanism to get companies to clean and/or dilute local pollutants through end-of-pipe solutions; towards applying various means to inﬂuence and facilitate companies to act proactively in preventing pollution through cleaner production, waste prevention and resource efﬁciency.

This understanding is contested in this article. The article documents instead a gap in respect to the local authorities actual execution of the direct regulation of companies in Denmark. The practice of the local competent authorities is found to primarily still target local environmental concerns by command-and-control means.

The objective of the article is to analyse this discrepancy between the overall representation of reg-ulatory trends and the actual practices of local authorities in Denmark. The overall constraints that local authorities encounter are investigated in respect to: 1) Addressing energy efﬁciency and reduction of GHG emissions through juridical requirements in permits and injunctions, and 2) Facilitating and pro-moting reductions of energy consumption and GHG emissions during inspections.

The assessment is based on the triangulation of different data: a) qualitative interviews with envi-ronmental ofﬁcers from seven local authorities taking part in a EU lifeþproject, Carbon 20; b) a documentary review of political documents and evaluations of the Danish regulations; as well as c) an interview and subsequent correspondence with an employee at the Danish Environmental Protection Agency.

1. Introduction

The environmental regulation of companies is often charac-terised as evolving through a successive broadening of policy approach and focus eboth internationally and speciﬁcally in Denmark (Jørgensen, 2009; Keijzers, 2000; Klemmensen et al., 2007; Kørnøv et al., 2007; Long, 2001; Remmen, 2001; Schroll, 1997):

"From applying command-and-control mechanisms to enforce companies to clean and/or dilute local pollutants through end-of-pipe solutions,

"Towards using various means to inﬂuence and facilitate com-panies to act proactively to prevent pollutions through cleaner

production solutions, waste prevention, resource efﬁciency, etc., and also targeting global impacts such as climate change.

This understanding is contested in this article. A discrepancy exists between this representation and the actual execution of direct environmental regulation of companies in Denmarkeat least as performed by the local authorities (the municipalities), who have jurisdiction over the majority of smaller and medium-sized companies in Denmark.

Up to the millennium, Denmark was in general viewed to be heading this transition. Cleaner technology was included in the guiding principles of the law (Environmental Protection Act) and comprehensive cleaner technology programmes supported several diverse activities for a broader uptake of cleaner technologies, environmental management and even cleaner productsealso the local authorities active participation in this.

Petersen et al. (2007)argue, however, that a signiﬁcant breach in the overall environmental policy arose around the millennium.

*Tel.:þ45 60 86 89 65.

E-mail address:kadir@plan.aau.dk.

Journal of Cleaner Production

j o u r n a l h o m e p a g e :w w w . e l s e v i e r . c o m / l o c a t e / j c l e p r o

http://dx.doi.org/10.1016/j.jclepro.2014.12.067

terms of both lower the“burdens”for companies and streamlining the administrative resources used (Petersen et al., 2007; Remmen, 2001; Røpke, 1997; Schroll, 1997).

A renewed analysis of the speciﬁc regulatory framework for the direct regulation of companies is presented in this article in light of this breach around the millennium.

The point of departure is taken in the tree year“Green City”

project, Carbon 20. Carbon 20 speciﬁcally addressed the role of the local authorities in inﬂuencing companies to reduce energy con-sumption and GHG emissions (http://www.carbon20.dk/

carbon20InEnglish/). During theﬁrst year, the options of the local authorities for addressing energy and GHG emission as part of their direct regulation of companies were discussed repeatedly. These discussions revealed a discrepancy between the principles of focussing on pollution prevention and global environmental con-cerns, and the actual focus of the local authorities.

J€anicke (2008)has from an Ecological Modernisation perspec-tive characterised such discrepancies as an implementation gap. He explained such by resistance from the“old”industrial “modern-isation losers” (J€anicke, 2008). Mortensen (2000) as well as Jørgensen and Lauridsen (2007)have provided a supplementary explanation to such gap. They speciﬁcally point out that the regu-latory framework is a blurred mixture of different regimes and understandings (Mortensen, 2000; Jørgensen and Lauridsen, 2007).

In 2012, a“Business Committee on Green Transition”appointed by the environmental minister equallyﬁnd that the Danish regulation is blurred in terms of being inconsistence to the overall EU regu-latory set-up (Erhvervspanelet for Grøn Omstilling, 2012).

This article supplements the above perspectives through a closer, detailed analysis of local ofﬁcers possibilities for addressing reduction of energy and GHG emissions within the Danish regu-latory framework for the direct regulation of companies. The de-parture for this analyse is a question of why such an

“implementation gap”still exists in Denmark almost 25 years after pollution prevention was included as the core guiding principles of the Danish Environmental Protection Act.

Next section is a presentation of the method applied. In Section 3the academic discussions of the change towards pollution pre-vention strategies is presented together with an update on the Danish overall regulatory framework on direct regulation of com-panies. Section4is a presentation of the mainﬁndings from 3 separate analyses carried out on respective: interviews of local environmental ofﬁcers, documentary review, and interview and correspondence with ofﬁcers in Danish EPA. These three analyses are combined in Section5into one assessment on options and constraints for competent authorities to address energy and climate within the Danish regulatory framework. Section6is the overall conclusions.

2. Methods

The point of departure for this article is a EU supported LifeþProject,“Carbon 20”. The project was initiated and carried out primarily by seven Danish municipalities forming the collabo-ration Green Cities, where each municipality has committed itself to reduce the GHG emissions of the municipality by 20%. As element to achieve such, the Carbon 20 project concerns specif-ically the participating municipalities' attempt to inﬂuence energy and GHG reduction amongst local companies (see more onhttp://

www.carbon20.dk/carbon20InEnglish/).

The author has participated in the project, and has been

During theﬁrst year, the municipal ofﬁcers' possibilities for addressing energy and GHG emissions as part of their direct regulation of the local companies were discussed repeatedly. In the ﬁrst monitoring report in 2011 this issue was therefore addressed speciﬁcally and interviews with ofﬁcers from the seven munici-palities were conducted.

The focus of this article is on the municipal ofﬁcers' perceptions of possibilities and constraints. The emphasis is therefore on how the regulatory framework is understood by the local ofﬁcers, who actually are the ones implementing the regulation. How the regu-lation was formulated and the reregu-lations between the national and EU level are only brieﬂy touched upon in the article.

Furthermore, the discussion focuses on enlarging the environ-mental regulation and enforcement towards energy and climate change. In prolongation, the discussions in the Carbon 20 project and in other municipalities have also expanded into addressing other sustainability concerns and efforts to work across traditional profes-sional boundaries. This is out of scope for this article, but is addressed in other parts of my PhD thesis (Dirckinck-Holmfeld and NN, 2015).

For the purpose of this article a total of 15 local ofﬁcers were interviewed from the seven municipalities. At four municipalities, these interviews were conducted as a focus group interview with some of the involved environmental ofﬁcers in the municipality (between two and six ofﬁcers). In the rest of the municipalities, the interviews were single interviews with the environmental ofﬁcer in charge of the Carbon 20 project locally. The interviews were structured around predeﬁned themes and possible guiding ques-tions. The questions asked included both overall open-ended questions, but also some more speciﬁc questions to get the ofﬁ-cers to respond on certain topics and explain earlier answers.

Supplementing the data from these interviews, a parallel desk study has been conducted of several Danish political documents on the topic in respect to two aspects: Firstly, an assessment of pri-mary legal texts (acts and orders), administrative guidelines and overall presentation in respect to the update of the overall regu-latory framework. Secondly, an assessment of policy documents, political agreements, committees recommendations, as well as different evolutions of the scheme carried out during the last de-cadeseseveral on behalf of or supported by Danish EPA. This latter review of these recommendations and evaluations etc. form a second analysis of judgements on the possibilities to address cleaner technologies, waste prevention, resources and energy etc.

during direct regulation of the companies.

Finally, an interview with an employee at the Danish Environ-mental Protection Agency (Danish EPA) was conducted in order to have his view on the overall frames and comments on the view of the local environmental ofﬁcers as well as insight of possible near future changes within the regulatory set-up. This interview sub-sequently led to correspondence with the interviewee and his colleagues from the Danish EPA, including the juridical units. This correspondence speciﬁcally concerned the possibilities for addressing energy as a topic under a new requirement to carry out inspection campaigns.

Theﬁndings of this article are thus based on a triangulation of the data input. This relates both to: applying different methods, as well as applying two different perspectives of respective the local ofﬁcers and perspectives of Danish EPA. Three interrelated analyses are carried out in respect to these data:

"Analysis of the interviews with local ofﬁcers participating in the Carbon 20 project on their perceptions of possibilities and constraints for addressing energy and GHG emission as part of

pollution prevention etc., as well as

!Analysis of the interview with an ofﬁcer in the central admin-istration of the Danish Environmental Protection Agency (EPA) and the subsequent correspondence with him and other colleagues.

The result of these are presented as three separate subsections (Section4) and then combined in an integrated assessment (Sec-tion5). The next section sets the scene for these analyses by pre-senting the Danish regulation in light of this “new” pollution prevention regulatory approach.

3. The Danish regulatory framework and pollution prevention strategies

The purpose of this section is to set the scene in respect to the Danish regulatory framework and the concept of pollution pre-vention. The section includes: 1) A short presentations of both Danish and other academic writing on the suggested enlargement of the regulatory approach towards pollution prevention etc., and 2) An overall presentation of the Danish regulatory framework for the direct environmental regulation of companies.

3.1. Pollution prevention on the agenda calling for a new regulatory approach

In the 1970s, environmental problems were regarded as the unfortunate side effects of economic growth. Environmental reg-ulations focused on damage control: on repairing and setting limits to harmful activity, end-of-pipe cleaning and diluting technologies, and clean up strategies. In other words, business-as-usual plus some add-on technologies (e.g. treatment plant or building the chimney higher) were regarded as being appropriate (Smink, 2002). To a certain extent, these public environmental regulations have been successful in the reduction of environmental problems:

air and water quality improved signiﬁcantly, smog levels were reduced and the visible pollution of surface waters has largely disappeared in western regulated countries (Keijzers, 2000).

These preliminary regulatory means, however, in many ways proved to be insufﬁcient. Diluting only worked to a certain extent and for particular pollutants, whereas some cleaning technologies moved the pollutant from one media to another (Klemmensen et al., 2007; Long, 2001; Røpke, 1997).

Relying on add-on technologies and solutions has further led to additional costs for the companies and thereby contributed to a general perception of a latent conﬂict between economic growth and environmental protection, whereas environmental regulation is viewed as hampering private economic development (Klemmensen et al., 2007).

This view has been contested through the years by concepts such as 3M's Pollution Prevention Pays (dating back to 1975), UNEP on Cleaner Production (from 1989) and World Council on Sustain-able Business Development's (WCSBD) on eco-efﬁciency (1992) (Klemmensen et al., 2007). All these concepts emphasises that win-win possibilities could exist between environmental and economic gains (or a double dividend as termed byPorter and van der Linde, 1995) if environmental considerations are integrated into the production processes and business strategies and not added on in an ad-hoc manner (Klemmensen et al., 2007).

In prolongation of such altered understandings with concepts of cleaner production and pollution prevention, several scholars call for and see a change in regulatory approaches towards, what have

variety of means that inspire companies to improve their envi-ronmental performance through such integrated technologies, as contrast to rigid command-and-control of inﬂexible norms and standards pointing at speciﬁc end-of-pipe technologies (Ayres and Braithwaite, 1992; J€anicke, 2008; Klemmensen et al., 2007; Porter and van der Linde, 1995; Remmen, 1997; Van Gossum et al., 2010).

Already in 1997 Røpke conceptualised this as a successive evolvement of the environmental regulations through several development stages (Røpke, 1997):

1. Diluting in terms of“the long pipes politics”

2. Cleaning in terms of politics centred on controlling the pollut-ants, which however mainly results in transferring the pollutant to other media.

3. Prevention in terms of politics promoting the recycling and application of cleaner technology and environmental manage-ment systems inside production processes.

4. Extended prevention in terms of policies directed at encour-aging pollution prevention throughout the whole lifecycle of products.

3.2. The Danish regulatory frameworkeinclusion of pollution prevention

Around the millennium, several Danish academic contributions suggested that Danish regulation was well on track towards implementing such pollution prevention regulatory strategies (Remmen, 2001; Schroll, 1997).Røpke (1997), for example, argued that Denmark was somewhere in the transition from stage two to three in the above presented general conceptualisation of the development of the environmental regulation, but also that Denmark already had some preliminary focus on lifecycle consid-erations of stage 4 (Røpke, 1997).Petersen et al. (2007)showed however that a signiﬁcant change had occurred around the mil-lennium. A change of government allowed for a growing perception that environmental problems were exaggerated and/or resolved.

Focus was put on streamlining the regulatory framework in terms of both administrative resources spent as well as lower the “bur-dens”of companies (Petersen et al., 2007). This subsection in-troducesﬁrst the 1990s adaptations pointing towards pollution prevention. It than highlights the updates made since the millennium.

During the 1990s several aspects of the Danish regulatory pointed at an enlarged focus on pollution prevention:

Denmark adapted in 1991 the Environmental Protection Act to include pollution prevention, waste minimisation, the efﬁcient use of resources and cleaner technology (later BAT (Best Available Technology)) as the basic principles for the administration of the act and carried out a series of different activities centred on such ideas (Moe, 2000). This was prior to EU's directive on Integrated Pollution Prevention and Control (IPPC) of 1996.

Similarly the Danish government implemented from 1987 to 2002 a series of cleaner technology programmes supporting the development of new technologies, concepts and tools for imple-menting pollution prevention including also a product lifecycle perspective. Originally, the idea was to link this development of the cleaner technologies to a periodic update of regulatory norms and standards. Such a clear link was never established. Instead cleaner technologies should be addressed as part of the permitting process (Andersen and Jørgensen, 1995; Environmental Protection Agency, 1993; Kromann et al., 1996; Ministry of Environment, 2010;

ronmental management systems (EMS) as a supplement to their direct regulation of companies, including: Publiceprivate networks promoting and facilitating implementation and providing input to EMS schemes, as well as periodic action plans for implementing cleaner technology as part of permit conditions for companies (Bauer et al., 1998; Forman and Jørgensen, 2004; Kromann et al., 1996).

The inspection was also altered from a reactive to an active in-spection; meaning proactively visits to companies rather than just reacting at complaints or other indications of non-compliance. A minimum frequency was introduced along a fee related to speciﬁc categories of companies. The scope was further broadened from solely monitoring and enforcing compliance to also promote environmental improvement beyond compliance. The ﬁrst in-spection guide (1995) further suggested to prioritise inin-spections using a differentiated approach by adapting regulatory instruments and inspection strategies to the speciﬁc situation of the company acting either: to agree on action plan and promote EMS towards environmental proactive companies; seek negotiated agreements (backed by potential more concrete measures) on needed changes and potentially promote EMS for ordinaryﬁrms; and adopting a ﬁrm authority role in the case of companies reluctant to take action themselves.Nielsen et al. (1994)have conceptualised such differ-entiation as acting either as: policeman towards the reluctant companies, as salesman towards the ordinaryﬁrms and dialogue partner for the proactive companies (Environmental Protection Agency, 1995; Moe, 2000; Nielsen et al., 1994).

Since the millennium, some adjustments of the overall regula-tory framework have been implemented. As a response to pressure from the Danish Federation of Industries, a committee was appointed to streamline the regulation (Ministry of Environment, 2002, 2003). Based on its recommendations, two central changes have subsequently been implemented:

1. The permitting scheme was adjusted in 2005 by the establish-ment of“a simpliﬁed permitting scheme”for the majority of companies previously subject to permits. The companies under the simpliﬁed scheme do, in contrast to companies requiring a full permit, no longer have to justify that they have imple-mented BAT or cleaner technologies. Several of the applicable conditions deﬁning BAT levels are for these companies formu-lated as general standard conditions that the competent au-thorities are obliged to use in the individual permits. None of these norms address the input side of resources, energy, waste prevention etc. (Christensen et al., 2006; Ministry of Environment, 2006, 2011).

2. The concept of differentiation in respect to inspection was altered along with a change to charge fees by the hour instead of aﬁxed amount. The differentiation was reframed from a concept centred on meeting different companies with different ap-proaches, towards emphasising differentiating the frequency with which different types of companies should be visitede releasing those companies showing a good compliance history and having implemented an EMS according to either EMAS, ISO 14001 or equivalent (Christensen and Bauer, 2004; Ministry of Environment, 2007, 2011).

An update of the inspection guide (Christensen et al., 2006) still suggests that local authorities should apply both an“authority role”

of stipulating, checking and enforcing norms, as well as a“catalyst role”of motivating companies to go beyond compliance. The guide does, however, emphasise that the cost of this catalyst role, con-trary to the authority role, cannot be recovered from the businesses

updates here relates to the inspection scheme. Denmark has now implemented a speciﬁc statutory order (Ministry of Environment, 2013) on the inspection and enforcement activities instead of relying on agreements and guidelines. This regulation obliges the competent authorities to both carry out inspections at a minimum

In document Aalborg Universitet PUBLIC PRIVATE COLLABORATION ON CLIMATE CHANGE MITIGATION A LOCAL GOVERNANCE PERSPECTIVE Dirckinck-Holmfeld, Kasper (Sider 155-167)