Post on 24-Jan-2023
THE USE OF LEGISLATIVE METHODS IN THE CONTROL OF
ENVIRONMENTAL POLLUTION
M. H. BICHIDepartment of Civil Engineering
University of Benin
ABSTRACT
The paper examines the various methods of environmental
pollution control and particularly, the legislative methods.
Various advantages and the problems hindering the smooth
administration of the legislative methods are examined and
analyzed. Steps that would ensure efficient and effective
administration of legislation for the control of environmental
pollution are recommended in the paper.
1.0 INTRODUCTION
1.1 ENVIRONMENTAL CHANGES AND POLLUTION
Even in the absence of man, the natural environment undergoes
continued change. Whereas some of these environmental changes are
irreversible (e.g. eutrophication of a lake), others are cyclic
(e.g. the annual climatic cycle) or transient (e.g. droughts).
Superimposed on natural environmental changes are those
produced by man. Even as a hunter-gatherer, man's use of fire
modified some natural environments. Then with the domestication
of animals and the introduction of agriculture, the effects of his
action become more widespread, especially as large human
settlements come into being. The rate increased with the
development of industry as muscle power was replaced by energy
derived from fossil fuels. Until during the last few decades
human impacts have reached an unprecedented intensity and affect
the whole worlds, due to a vastly increased population and higher
consumption per head.
Man's increasing 'control' of his environment often creates
conflicts between human goals and natural processes. In order to
achieve greater yields or for other purposes, man deflect the
natural flow of energy, by-passes natural processes, severes food
chains, simplifies ecosystems, and uses large energy subsidies to
maintain delicate artificial equilibria. In some cases, of
course, these activities may create surroundings that man
considers desirable, as, for example, aspects of the European
country side, which reflect careful husbandry during many
generations [(Munn, R.E. (1979)]. However, long term maximization
of benefits may sometimes require a penalty of irreversible
environmental degradation.
In many other cases, the activities of man create outright
devastation and degradation in the environment. This affects the
water, land, air and the social environments. According to the US
News and World Report (1970), the world's population explosion has
created an endless cycle of environmental degradation. The report
noted that more people burn fuels to get the energy to feed the
growing population, which in turn demands more and more food,
which calls for more energy, which creates more and more
pollution. Technology has also brought about multiplicity of
technological devices capable of generating noise. The growing
number of noise sources and the increase in noise levels, though
somewhat annoying and not a really hazardous phenomenon, have been
accepted as the price of modern life. However, noise pollution is
now known to be dangerous.
The continued degradation of these various segments of the
environment, therefore, threatens the existence of man, himself,
on earth.
1.2 THE NEED FOR ENVIRONMENTAL POLLUTION CONTROLRoberts (1979) noted that the changes man now conducts with
the environment are on so vastly expanded a scale that
qualitatively new consequences are possible. The reasons given
for this are:
i. Materials are being extracted from the earth's finite stocks
at such a rate, and with such acceleration from year to year,
that exhaustion now threatens.
ii. The scale of industrial activity now affects quite basic
properties of the earth as a medium for life: its air, its
water and even its temperature.
iii. The rate of increase of industrial activities poses the
problem of qualitatively new environmental damage on a global
scale emerging within the life time of a single generation -
and requiring to be solved just as rapidly.
A lot of effort is now being put into packaging and
implementing various plans, programmes, and action with a view to
controlling this degradation of the man's only environment.
1.3 OBJECTIVES OF THE PAPER
The main aim of this paper is to survey the various methods
used in environmental pollution control and, in particular examine
the legislative methods involved.
The paper seeks to particularly identify the various
legislative methods employed, their advantages and the problems
militating against their smooth and effective implementation. The
paper will then suggest some ways out of these problems with a
view to making them more effective.
1.4 SCOPE OF THE PAPER
The scope of this paper will be limited to the examination of
the legislative methods and the mention of other methods of
environmental pollution control will be limited to how they
complement each other in the achievement of the general objective.
2.0 ENVIRONMENTAL POLLUTION CONTROL METHODS
Whereas no single best method of environmental pollution
control exists, several methods exist complementing to each other.
These methods are broadly classified into three: technological,
political/administrative, and legislative. The first two are
reviewed in this section, and the third method is examined in the
next section.
2.1 TECHNOLOGICAL METHODS
Technological methods of environmental pollution control
involves the use of methods, facilities, and techniques that
enables:
i. Making manufacturing and processes more efficient with lower
waste production;
ii. Easy and efficient collection, transportation and find
disposal of the wastes with minimum danger to the
environment;
iii. Treatment of the waste to reduce waste loads and render the
wastes harmless to the environment; and
iv. Recycling of the wastes.
Various methods are employed in the control of pollution in
water, air and land environments. These are briefly outlined
below, according to these three segments of the environment.
2.1.1WATER POLLUTION
The technological methods of water pollution control involve
the design and operation of facilities to restore and maintain the
physical, chemical and biological properties of the water.
The various methods used include:
i. Storage - this reduces dissolved, suspended and settleable
solids; and destroy harmful microorganisms through the use of
ultraviolate radiation in sunlight.
ii. Screening - this removes grits and bigger particles.
iii. Coagulation and flocculation - these aggregates finer
particles and microorganisms into flocs for ease of removal
by sedimentation.
iv. Sedimentation - this removes particles, bacteria, etc by
gravitational settling.
v. Filtration - this removes particles and bacteria by
mechanical straining and surface absorption, and stabilizes
organic materials.
vi. Disinfection - this destroys pathogenic organisms.
2.1.2AIR POLLUTION
Air pollution comprise of particles and gases constituting
nuisance in the air environment, as well as noise nuisance. Noise
pollution can be controlled by use of sound proffing in buildings,
use of muffler to reduce noise, and using smoother surfaces for
better reflection of sound. Air pollution is controlled through
improved design to reduce the amount of waste discharge into the
air, and the use of very tall chimneys to take the gaseous
emissions far away from the community and to allow for safer
dispersal and assimulation of the gaseous emissions into the
atmosphere. Detoxification of toxic emissions also reduce the
dangers to the environment. The US News & World Report (1970)
also identified the following technique step of controlling air
pollution:
i. Removal of dangerous pollutants from automobile exhaust to
prevent photochemical smog;
ii. Limitation on gaseous emissions;
iii. Exhaust re-circulation to route part of exhaust gas back to
the cylinders;
iv. Cleaning exhaust gases by sending them through special
catalytic mufflers before they reach the air;
v. Elimination of the use of gasoline as a fuel for future
automobile engines; and
vi. Finding alternative means of fuelling cars to reduce
pollution.
2.1.3LAND POLLUTION
Technological methods of land pollution control essentially
involve the design and operation of facilities for proper disposal
of solid wastes. The solution to unsanitary dumping of solid
waste, according to the US News & World Report (1970), has been
sanitary landfill. In this method, trash is hauled to unused
area, dumped into open trenches, compacted by bulldozers and then
covered with soil. This eliminates the rat and disease problem,
but the possibility of polluting groundwater remains.
Many other methods are also employed in the management of
solid wastes. These include:
i. Incineration;
ii. Recycling;
iii. Composting; and
iv. Biological oxidation of degradable solids
However, whatever method is used, land for tipping will be
required. The method to be adopted is usually mainly based on
local circumstances and regional considerations.
2.20 POLITICAL/ADMINISTRATIVE METHODS
The successful implementation of any management programme
depends on sound initial planning, correct identification of the
problem, and proper execution of the formulated plans.
There is no single plan or method for this. However, Miller
(1982) has identified several factors which must be considered in
the development of an efficient programme. These include:
i. Establishing the relevant government agency
ii. Giving priorities to problems by seriousness and magnitude
iii. Settling realistic standards
iv. Assessing funding methods and sources
v. Process changes/treatment requirements
vi. Operation and training
vii. Monitoring and surveillance
The first step towards successful management of environmental
problems is the formulation of a sound policy and the
identification of realistic policy objectives. An agency of the
governemnt then requires to be established to implement the
programmes outlined in the policy. This agency, for it to
function effectively, requires the necessary legal and financial
backing. The public then needs to be mobilized to appreciate the
gravity of the problems at hand, and hence participate in the
collective effort to address the problem. The agency then ensures
continuous monitoring and evaluation of the programmes as a
necessary input into any subsequent re-evaluation of the plans
towards improved performacne and better realization of the
formulated objectives.
Several policy instruments are available to governments for
dealing with environmental pollution within the set objectives
institutional framework. According to Fano and Brewster (1992),
some of these policy instruments include:
i. Direct charge on industrial effluents as an incentive to
polluting industries to reduce waste loads.
ii. Subsidies to promote pollution control using tax relates or
paymentsto offset costs of pollution control.
iii. Setting effluent and gaseous emission standards.
iv. Government licenses under which permits will only be issued
to industries/organization using clean processes.
v. Requirement of Environmental Impact Assessment (EIA).
As noted by Millard, R. (1969), the standard and quality of
any environmental control programme depends on good maangement.
This involves the management of resources and personnel. Unless
both the resources and personnel are properly managed, an
otherwise wll formulated plan could end up as a disaster with
little or none of the set objectives achieved. Relevant
legislative provisions are also required to ensure proper
compliance with the laid down policies and programmes.
Legislative methods are examined, in more detail, in the following
sections.
3.0 LEGISLATIVE METHODS
The effective implementation of any environmental management
programme requires the formulation of the necessary legal and
institutional fraemwork. Fano and Brewster (1982) noted that
unless the efforts of environmental management rests on a solid
legal foundation, they are almost certain to fall short of
achieving their objectives. Various international, nationa, and
regional/state/local legislations employed in environmental
management are briefly outlined below:
3.1.0INTERNATIONAL LEGISLATIONS
According to Hamouda (1982), there isvery little information
on existing international waste management law, but there are many
forms of international cooperations in the area of waste
management. This cooperation consists of collaborations among
different nations on a bi- or multi-lateral basis, such as
exchange of information.
The General Assembly of the United Nations (UN), through
resolution 2997 of 15th December, 1972, decided that the Governing
Council of the United Nations Environmental Programme (UNEP)
should 'keep under review the world environmental situation in
order to ensure that emerging environmental problems of wide
international significance receive appropriate and adequate
consideration by governments' UNEP, 1979). However, in terms of
binding international coordination and regulation, interantional
law is, at present, very limited. There is only a number of
international conventions and agreements. These include:
1. International Convention for the protection of pollution of
the sea by oil signed in London and amended in 1963.
2. Declaration of the UN Conference on Human Environment (1972).
The first principle in this declaration states.
Man has the fundamental right to freedom,equality and adequate conditions of life, in an environment of a quality that permits a lifeof dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.
3. Principle 6 states that 'the discharge of toxic or other
substances and the release of heat, in such quantities or
concentration as to exceed the capacity of the environment to
render them harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon
ecosystems'.
4. In principle 22, the following statement is made:
States shall cooperate to develop further the international law regarding liabilityand compensation fro the victims of pollutionand other environmental damage caused by activities within the jurisdiction or controlof such states to areas beyond their jurisdiction.
3.2.0NATIONAL LEGISLATIONS
National legislations on environmental pollution control are
usually designed to regulate waste discharges and degradations of
the country's water, land and air environments. This is usually
achieved through, among others, the following enactments:
i. Water Quality Legislation - aimed at controlling pollution in
rivers, streams, reservoirs and groundwater.
ii. Water Pollution Control Act - aimed at restoring and
maintaining the chemical, physical and biological integrity
of the Nation's waters.
iii. Environmental Protection Agency Acts - this establishes EPA
which sets waste quality criteria, treatment requirements,
effluent limitations, and new source performance standards as
well as monitoring of environmental protection programmes.
iv. Air Pollution Control Act - This sets limitations on
emissions into the atmosphere, and regulate exhaust
discharges from machinery and automobiles, e.g. The German
Federal Commissions Control Law (BImSchG) of March, 1974.
v. Noise Control Acts - this regulates noise pollution.
Perhaps the first legialtive method of pollution control is
through the moral pressures. All example is the voluntary code of
waste disposal practices. In Britain, as far back as 1867, the
law of nuisance was enacted, which forbids constitution of
nuisance. The law defined nuisance as being created when
deleterious things escape into another's land, for example water,
smoke, smells, fumes, gas, noise, vibrations, electricity, disease
germs, animals and vegetation. The law made public or common
nuisance a criminal offence, and defined it as an act or omission
which materially affects the reasonable comfort and convenience of
life of a class of Her Majesty's subjects. (McKnight, et al,
1974).
In Nigeria, item 17, part II of the second schedule to the
1979 constitution empowers the Federal Government to 'make laws
for the Federation or any part thereof with respect to health,
safety and welfare of persons...'. Before the establishment of
the Federal Environmental Protection Agency (FEPA), the defunct
Environmental Planning and Protection Division of the Federal
Ministry of Works & Housing was the body assigned to handle 'all
environmental problems and matters in the country'.
The Koko toxic waste episode of August, 1988 stimulated the
consciousness of government and Nigerians to the gravity of
environmental problems in the country. The harmful wastes
(special criminal) provisions decree of 1988 promulgated in the
wak of Koko toxic waste episode was the first major effort to
criminal liability legislation (Olurontola, 1990). Then FEPA was
established by decree 58 of December 1988. The then head of State
General I.B. Babangida, launched the National Policy on
Environment on 27th November, 1989 in Abuja.
FEPA, in conjunction with industries, sets guidelines for
pollution abatement in May 1990. According to the guidelines
(FEPA, 1990);
i. Collection, transportation, and final disposal of industrial
wastes (from cradle to grave) are the responsibility of the
manufacturer.
ii. No industry shall release toxic substances into the air,
water and land of Nigerian environment.
iii. No new point sources of industrial pollution shall come in
stream without compliance with the provisions of FEPA
guidelines.
iv. Table 1.3 of section 1.2 sets effluent limitations and
gaseous emissions guidelines for specific industries.
v. Table 1.3 of section 1.2 sets effluent limitations and
gaseous emissions guidelines for specific industries.
vi. Section 2.2 sets water quality guidelines for domestic
waters.
vii. Section 3.1 stipulates guidelines for owners of and operators
of facilities that treat, store, or dispose of dangerous
wastes in surface impoundments, waste rites, land treatment
units, or landfills, for the protection of groundwater.
viii.Section 3.8 specifies general groundwater monitoring
requirement for owners and operators to satisfy the provision
in section 3 of the guidelines.
ix. Requirements for specific water impoundments are contained
in section 4.0 of the guidelines.
National legislations are usually supplemented and reinforced
by regional, state and local legislations.
3.30 REGIONAL, STATE AND LOCAL LEGISLATIONS
Regional, state and local legislation for the control of
environmental pollution takes various forms. Whereas some are
primarily designed to control environmental pollution, others are
designed to achieve some other objectives while at the same time
exerting some form of control on environmental pollution in the
area or region. These legislations could be in the form of:
i. Local sanitation laws requiring local authorities to provide
for the collection, transportation and disposal of community
wastes.
ii. Local authority to be compelled by law to provide dust bins,
disposal sites, etc for wastes.
iii. Civil penalties to be imposed on dumping wastes on some other
person's premises or land (i.e. trespassing).
iv. Criminal penalties to be imposed by states or local authority
for unauthorized or improper dumping of wastes or abandonment
of old and scrap vehicles.
v. Public health acts to provide for sanitary inspectors to
ensure conformity with environmental sanitation laws.
4.0 DISCUSSIONS:- PROBLEMS OF ENVIRONMENTAL POLLUTION CONTROL
There is no single best method of environmental pollution
control. Each of the three methods outlined previously has its'
own merits and shortcomings. In this section, the merits and
demerits of the various methods, especially the legislative
method, are discussed.
4.10:TECHNOLOGICAL METHODS
Technology has brought about multiplicity of technological
devices with concomitant environmental problems. Ironically,
technological methods are also relied upon for the solution of
these environmental problems. However, the US News & World Report
(1970) for instance, noted that there is no technological break
through in sight that would suddenly provide a miracle solution to
garbage problems, for example, (in the United States). This is
because by treatment, the waste from can be changed - from solid
to liquid or gas, or vice versa - or energy can be produced. Or
energy can be converted to noise. But the residuals are still
there in one form or another to be discharged into the environment
where they pollute the air, the water or the soil.
Continuous process evaluation and refinement as well as
research into new techniques and methods are therefore the key
technological solutions to existing and new environmental
problems. For instance, use of degradable containers that can be
consumed instead of discarded, has been suggested as a measure to
minimize solid waste problems.
4.20 ADMINISTRATIVE METHODS
The basic advantages and problems in this method are
intertwined into the various management problems in the other
methods. The basic problem, however, is lack of enough political
will to enforce conpliance due to political patronage,
favouratism, nepotism, and administrative laxities. Other related
problems are discussed in the following section.
4.30 LEGISLATIVE METHODS
The application of the law itself constitutes a serious legal
impediment to the implementation of environmental protection laws.
Kite (1980) observed that Environmental protection laws must be
applied to the individual polluters in the light of numerous other
legal constraints.
According to Jenks (1967), law has three aspects. In one
aspect, law is essentially a restrain upon authority rather than
the command of authority; its purpose and function is to limit
rather than to reinforce political and economic power. In other
aspect, much of law is permissible rather than imperative; it does
not consist of commands but of rules for securing the desired
legal consequences, conferring rights, creating obligations, and
attaining other legal results. In this aspect, law is a positive
instrument of cooperation rather than authority. The third
element is that certainly in the law is alien to the function of
law in a dynamic society; the life of the law is a constant
interaction of factors of stability and factors of change.
However, the efficacy of any legal system in dealing with
pollution must be judged by its capability to change or prescribe
the law, to detect non-compliance, and to punish non-compliance
(McKnight, et al, 1974). These aspects are examined below:
4.31 LEGAL PRESCRIPTION
In modern democracies, the keystone in legal prescription is
the parliament which alone possess the ability to impose
obligations on citizens even though it may have delegated that
power in a particular field to the executive. Parliament acts
either by legislating itself, or by approving a bill from the
executive. The initiation of legislative action from the public,
pressure groups, or scientists sometimes only presents a need for
action in principle, without sufficient prior research to suggest
new standards. This failure to produce precise recommendations
often makes it extremely difficult for the politician to act.
In some cases, sufficient pressure is lacking or not exerted
at all on the parliament, because the offender is powerful
politically. According to McKnight, et al, (1974), for instance,
the industrial revolution in Britain) commenced with no
inhibitions whatsoever on the absolute freedom of the
industrialist. He fixed wages, determine the safety (or lack of
it) of working conditions (and the environment). Parliament acted
very slowly to curb such excesses, partly because the overwhelming
force in politics is a lethargic inertia against changing the
status quo and partly because the parliament was exclusively
composed of representatives of the rich agricultural and
manufacturing classes. In this situation, even when legislations
are enacted, there is danger that it would be ignored.
New approaches to legislative prescriptions are therefore
desirable for effective pollution control. Macrary (1989) has
identified the emergence of four general themes which will play a
critical role in the design of future pollution control policy,
and will place demands on those charged with legislative designs.
These are:
i. Anticipation - in which non-reactive mechanisms of control
allow prior identification of future pollution loads and
types.
ii. Integration - is the need to consider the inter-
connections between possible control strategies.
iii. Participation - is the involvement of general public in
decision-making (i.e. public, polluter, and regulatory
agency).
iv. Explicitness - is the extent to which pollution standards
receive overt expressions in legislative instruments.
4.32 EXECUTIVE ADMINISTRATION
Proper execution of any legal prescription on environmental
pollution control requires sound administrative machinery with
adequate authority to act. The two most important aspects of any
executive administration are the ability of the authority to
enforce compliance and to monitor and ensure compliance. McNight,
et al (1974) for instance identified the problem of enforcement of
the public nuisance acts in Britain as being few private
individuals or groups having at their disposal, the means,
financial and technical, to prove the necessary causative links
between interference with their enjoyment of land and operations
of neighbouring factories, quite apart from the costs of bringing
an action.
Bugler (1972) also reported that the industrial super-
corporations who do most of the polluting in Britain are not
prosecuted, adding that between 1920 to 1967, there were only
three prosecutions. El-Gamal (1982) identified three major
problems in the implementation of Environmental Protection laws in
Egypt.
i. The regulations were not applied to the public sector,
industries and inspection was not encouraged or the rules
enforce;
ii. The penalties for not complying with the law were very
lenient.
iii. The ruling that the licenses for any non-complying factory be
withdrawn was not applied because of the fear of hindering
industrial production.
It is observable that these problems also apply to the
situation in Nigeria.
Lamb (1980) also noted the following problems as hindering
the smooth administration of environmental legislation in the
United States.
* Differences in laws between states
* Money-quantity, source, projects to be financed
* Environmental protection law Vs public health laws
* Punishing polluters
* Integrated agriculture
* Quantity/quality planning
* Implementation after planning
* Inter-disciplinary coordination
* Public participation
overlapping authority, according to McNight et al (1974),
also exist in some areas that involved related agencies. Kite
(1980) also noted that inter-agency conflicts, duplication of
responsibilities, land use control by a separate agency, and lack
of control over the whole environment by the agency are additional
administrative problems in environmental management.
4.33 ATTITUDE OF JUDICIAL AUTHORITIES
Inefficient and corrupt judicial authority is the final nail
in the coffin of sound legal environmental management effort.
Carson (1970) noted that the courts, in their approach to what is
euphemistically called 'white collar crime', reflect the soft,
timid approach of the executive administration. While the
executive administration is at all times unwilling to prosecute.
When prosecution are launched, the courts are notoriously lenient.
This attitude of the courts has also been reported by El-Gamal
(1982).
5.0 RECOMMENDATIONS
The efficient and effective realization of any environmental
protection efforts is hinged upon the formulation of realistic
standards, enforceable laws, efficient and effective
administration, and proper monitoring and evaluation. On the
basis of the issues discussed in this paper, the following
recommendations are made with regards to sound and meaningful
legislative environmental pollution control efforts.
1. Realistic and enforceable standards that takes cognizance of
the peculiarities of the socio-political environment should
be evolved.
2. The responsibility for controlling the release of pollutants
by industry and domestic users to the environment should be
shared between central and local governments, each of whom
employing its own inspectors. The calibre of the inspectors
is in no doubt as high as can be obtained at the salaries
paid. It must be noted that such inspectors deal with high-
powered industrialists who are often extremely wealthy, and
the salary differentials are marked. The inspectors should
therefore be adequately renumerated.
3. The executive administration must be efficient and effective
in ensuring that there is compliance with the law, that
violations and non-compliance are detected, and that wrong
doers are brought before the courts for appropriate
punishment. Each law then requires a team of officials for
this purpose, whether they are police, tax inspectors, custom
officials, parking wardens or scientific inspectors. Such
team of officials need to be:
i. Sufficient in number;
ii. Of high calibre;
iii. Independent in mind and operation;
iv. Prepared to prosecute wrong-doers; and
v. Equipped with latest scientific aids to maximize their
efforts and minimize the number employed.
4. There should be proper management of personnel involved in
the environmental pollution control. This must ensure that
the chief officer possesses, according to Flintoff, et al
(1969), the following qualities:
i. Mental quality - adaptable, understanding, and mental vigour.
ii. Moreal - responsible, firm, initiative, loyal, tactful, and
dignified.
iii. General education - have the basic education in environmental
science and management.
iv. Special knowledge of local conditions, practices and
authorities.
v. Experience
In addition, the organization should have a recognizable
ladder of promotion. Each person should know what his job is
and to whom he is responsible. There must be only one
channel of command and direct face-to-face responsibility
should be limited.
5. No system of executive administration will provide an
absolute guarantee against the emission of materials to the
environment. On the other hand, a rationale and adequate
effort support in full by the aids which science and
technology have made available, could lead to a very great
improvement in the behaviour of polluting factories. In
order to provide an effective policing of any anti-pollution
legislation, the following steps are recommended:
i. All new industrial plants constructed must be approved from
the standpoint of view of incorporating maximum anti-
pollutant plant.
ii. Only standards that are incapable of variations should be
set.
iii. Automatic monitoring instruments that are regularly checked
by inspectors should be provided. These should keep the
plant management informed and should also be paralleled by
temper-proof instruments installed by the inspectorate, and
the results read from time to time.
6. International legislation that will be binding on states need
to be evolved to ensure enforceability of environmental
protection laws on a global level.
6.0 CONCLUSION
Legislative method with proper and sound application, is a
very potent weapon in controlling environmental pollution.
However, the ultimate solution to our pollution problems is a
totally closed system. Instead of generating enormous quantities
of waste that pollute the air, water and soil, the process that
make our modern life-style possible must be totally efficient.
They must re-cycle and re-use.
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