How to Use Voluntary, Self-Regulatory and Alternative Environmental Compliance Tools: Some Lessons Learned

A number of alternative environmental enforcement tools are available that may be used to enhance the environmental enforcement effort in South Africa. Current debate focuses on which tools work effectively and the reasons for their success. The debate is however dominated by issues concerning policy challenges, such as the adoption of alternative tools and necessary arrangements to ensure these tools contribute to overall environmental enforcement performance. In order to contribute to the debate and stimulate further debate, this article offers a typology of alternative enforcement tool categories, lists the generally argued benefits and disadvantages of both command and control approaches and alternative enforcement tools, offers framework conditions for the successful adoption and use of some of the enforcement tools, and explores empirical and other evidence to determine whether environmental management systems are adequately able to drive sustained and consistent legal compliance. A South African case study is also presented to illustrate the manner in which a combination of alternative enforcement tools may be integrated with command and control tools to ensure consistent and sustained legal compliance.


Introduction
This article explores the way "alternative" environmental enforcement tools may be used to complement and support classical command and control tools in order to improve the overall environmental enforcement effort. The objective is not to list and discuss the alternative enforcement tools available and used in South Africa, as this information is readily available in the literature. 1 The debate has shifted from what may be available to an enquiry into the demonstrated enforcement performance and effectiveness of these tools in an attempt to answer the question "do they work and deliver?". A second focus is to understand the framework conditions required to ensure performance and effectiveness to answer the question "why does what work?" A third issue that dominates the debate focuses on the policy challenges of environmental authorities across the world on the way in which to deal with two issues: (a) the official policy on the adoption and use of alternative enforcement tools; and (b) the most effective arrangements to ensure that such adopted tools do indeed contribute effectively and efficiently to the overall environmental enforcement effort.
In an attempt to stimulate debate on the fundamental questions posed regarding the adoption and use of alternative enforcement tools, four sub-themes and a case study are explored in this article. A generic typology of "new" or alternative enforcement tool categories is offered to set the scene. Secondly, the generally argued benefits 50/189 Creating a typology of alternative compliance tools is almost impossible, as the portfolio of available alternative environmental enforcement tools is complex, interlinked, hybridised and ever changing. All attempts to combine such a diverse portfolio of alternative enforcement tools into a comprehensive model with exclusive categories will of necessity be ad hoc and arbitrary. 5 Environmental enforcement tools are classified for the purpose of this article into the following broad categories: 6 classical command and control-based instruments; 7 and three loosely defined categories of alternative enforcement tools, namely, marketbased instruments, 8 civil-based instruments, 9 and agreement-or commitment-based instruments. 10 The latter two may range from entirely voluntary commitments such as the adoption and use of voluntary tools such as ISO 14001-based EMSs, to voluntary agreements that may also have enforceable elements, that is, enforceable agreements and commitments such as environmental cooperation agreements provided for in terms of Chapter 8 of the National Environmental Management Act. 11 An enforceable commitment is another voluntary enforcement tool, where the regulated entity internalises the enforcement processes that were traditionally the domain of the regulator.
These voluntary enforcement tools may be directed by either very broad-based strategic principles that drive behaviour such as the United Nations Global Compact 12 and the Ceres Principles, 13 amongst others, or the adoption and use of 5 Gunningham and Grabowsky Smart Regulation 38. 6 The objective of this article is to explore the performance potential, as well as the conditions required for performance of alternative enforcement tools. The objective is not to discuss the characteristics of the four enforcement tool categories, nor is the objective to list all the types or permutations of alternative enforcement tools available per category. See Nel and Du Plessis 2001 SAJELP 1-38 for lists of tools per enforcement category. 7 Command and control-based tools should cover the entire legal enforcement loop, ranging from policy to legislation, pollution or environmental degradation standards, and the full range of command and control instruments, as well as the political will and institutional capacity to drive enforcement and prosecution. 8 Fiscal or economic tools use market-based incentive-directed or disincentive-directed measures to direct the desired behaviour. 9 Civil-based instruments include all measures to empower, inform, educate and co-opt civil society to be involved in the enforcement process. 10 Nel and Le Roux "Municipalities as the regulator and regulated". See also Nel andDu Plessis 2001 SAJELP. 11 107 of 1998hereafter NEMA. 12 Hereafter UNGC. UNGC 2008 http://bit.ly/BOPtK. Launched in 2000, the UNGC is a policy and a practical framework for companies that are committed to sustainability and responsible business practices. As a leadership initiative endorsed by chief executives, UNGC seeks to align 51/189 generic requirements that are widely recognised. 14 Often voluntary enforcement tools are not based on any guideline or requirement, as the regulated are free to design all the solutions and the level of performance themselves. Environmental management plans 15 that are not verified are cases in point.
Adherence to these tools may also be entirely voluntary, that is, performance is never verified by anybody, while others may need to be regularly verified by independent and competent third parties. These verifiers may also again be either entirely independent, such as accredited certification bodies providing assurance of conformity, or even enforcement agencies themselves, public watchdog bodies 16 or enforcement surrogates 17 appointed by the regulated. Agreement-and commitmentbased enforcement measures may also range from commitments by a single organisational unit 18 to commitments made by or on behalf of business sectoral 19 groups.
In reality, any of the tools loosely classified into any category may have characteristics of any one or any combination of any of the other categories as well, as alternative tools are increasingly hybridised. The adoption and use of many agreement-and civil-based environmental enforcement tools are also routinely specified as conditions of environmental authorisations. That some of these business operations and strategies around the world with ten universally accepted principles in the areas of labour, human rights, the environment and anti-corruption. 13 Ceres 2007 http://bit.ly/hXaiRR. Founded in 1989, Ceres is a national network of investors, environmental organisations and other public interest groups working with companies and investors to address sustainability challenges. Ceres introduced the vision of integrating sustainability into capital markets for the health of the planet and its people, and achieved remarkable results in the past two decades such as the launch of the Global Reporting Initiative (hereafter GRI) and the Ceres Principles, a ten-point code of corporate environmental conduct to be publicly endorsed by companies as an environmental mission statement or ethic. 14 Such as ISO 14001-based requirements for EMSs. 15 Hereafter EMPs. 16 Watchdog bodies may be community based or non-governmental based organisations, or they may be statutorily appointed civil-based watchdog bodies such as environmental liaison bodies. 17 Environmental enforcement surrogates may, amongst others, include environmental liaison officers or environmental control officers. 18 A typical example of a voluntary commitment made by a single operating unit is the adoption and use of a voluntary enforcement tool such as a formalised EMS based on ISO 14001 and the informal adoption of an EMP. Environmental management systems may also be certified by an accredited body, they may be recognised by a second party, or they may be self-declared, without any second-or third-party verification. 19 Typical sectoral responses include, amongst others, the chemical sector's Responsible Care, the forestry sector's FSC and the banking sector's Equator Principles.

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agreement-and civil-based tools are indeed specified as conditions of command and control-based tools does not make them less "agreement" or "civil" based.
Du Plessis and Nel refer to the legal mandate to adopt and use alternative environmental enforcement tools in South Africa, 20 and many of these hybridised alternative enforcement tools are increasingly being provided for in terms of permit or licence conditions. Command and control instruments such as authorisations increasingly adopt and use agreement-and commitment-based enforcement instruments or techniques to drive and direct the environmental enforcement effort.

Advantages and disadvantages of command and control and alternative enforcement tools
A fundamental characteristic of all the environmental enforcement categories and tools is that no one enforcement category or tool offers a one-size-fits-all solution to enforcement challenges. Every tool or category of tools has particular strengths and weaknesses characterised by very specific elements relating to enforcement performance. See Table 1 for a generic list of the strengths and weaknesses of the command and control category tools and Table 2 for the strengths and weaknesses of some alternative enforcement tools. As argued in the introduction to this article, the debate on alternative environmental enforcement tools tends to focus on finding empirical evidence to answer the question as to whether these tools do indeed contribute to the environmental enforcement effort. Reference is made later in this article to the research findings of important studies that aim to empirically establish whether alternative enforcement tools indeed contribute effectively to the environmental enforcement effort.

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The first insight is that no one tool or category of enforcement tools offers a comprehensive solution to environmental enforcement challenges. The learning point is that to ensure an effective and efficient environmental enforcement regime, a series of tools needs to be selected, adopted and used in order to harness the synergies offered by both their differential performance and their failure potentialities.
The differential performance and failure argument is supported by the redundancy hypothesis posited by Taylor, 21 who argued that where two or more elements or subsystems function independently of one another to achieve the same or similar objective, duplication and overlap significantly reduce the probability that both systems would fail at the same time and in the same area. Should one of the subsystems fail, the other may succeed.
The second insight is that there is no universal cocktail or broad portfolio of tools that guarantees successful environmental enforcement for all situations. The selection, adoption and use of the correct or optimum mix of enforcement tools to suit specific conditions and requirements are essential to ensure an efficient and effective enforcement regime. Knowledge of the potential performance and failure modes, as well as the strengths and weaknesses of all the types of environmental enforcement tools is imperative to design a portfolio that will be efficient and effective in offering an improved capability to drive sustained and reliable environmental enforcement.
A third insight is that the efficient and effective deployment of mixed portfolios of enforcement tools is also dependent on both the number and independence of the role-players involved. A relatively valid generalisation is that the greater the number of role-players involved and the greater the independence amongst them, the better the performance potential of the environmental enforcement effort will be.

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act, and they may have or may lack the information or resources to do so, while civil society groups may or may not have a mandate to act, but they may have the information or resources and the willingness to act. A strengthened relationship amongst various interest groups is a powerful mechanism to drive compliance by addressing the weaknesses inherent in single or disjointed interests. The environmental enforcement effort may also be enhanced where more than one enforcement agency is involved, despite the inefficiencies of duplication and overlap.
The fourth insight is that cognisance should be taken of complex process sequences in selecting, adopting and using enforcement tools. Three process sequences offer significant challenges to effective and sustained enforcement processes: the project cycle 23 (see Figure 1; from Nel and Kotzé); 24 the product cycle; 25   A fifth insight is that enforcement tools should be selected to cover the PDCA phases of the Deming Management Cycle, 27 as no one tool performs equally well across the entire PDCA management cycle. In order to enhance the classical PDCA model, two elements are added: criteria and standards, as well as reporting and communication tools (see Table 3, from Du Plessis and Nel). 28

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The sixth insight is that a combination of enforcement tools selected from the four generic groups of tools, that is, command and control tools, market-based tools, agreement-or commitment-based tools, as well as civil-based tools, offers improved environmental enforcement capability when compared with the adoption and use of a single, stand-alone, environmental enforcement tool. 35 The seventh insight is that the South African environmental governance and hence enforcement dispensation is fragmented horizontally amongst the three spheres of government and vertically amongst the environmental medium specific line functions operating within the three spheres of government. 36 The enforcement effort is therefore also fragmented mostly along environmental media lines, while significant duplication and overlap of both the governing and enforcement efforts are commonplace. It was argued earlier in this section that the duplication and overlapping of enforcement mandates may, in some instances, indeed be desirable from a sustained enforcement delivery perspective. The concern is a fragmented landscape of environmental enforcement where enforcement has been stepped up by some agencies, while others either do nothing or only pay lip-service to their mandates to enforce the legislation over which they have jurisdiction. The efficient and effective environmental enforcement landscape in South Africa is therefore biased to specific mandates, environmental media and even business sectors.
The eighth insight is that command and control tools remain the principal driver of compliance by organisations. It is therefore imperative that all portfolios of compliance-based tools be based on a sound command and control regime.
Alternative enforcement tools used as stand-alone instruments generally fail to deliver on enforcement and compliance expectations in the absence of a sound command and control base. At present, it is also too early to demonstrate convincingly that recent experiments 37 with incentive-based, trade-off programmes 35 See Gunningham and Grabowsky Smart Regulation. 36 Nel and Du Plessis 2004 SAPL 181-190. See also Kotzé et al 2007 SAJELP 57-81 and Kotzé Legal Framework. 37 Du Plessis and Nel "Driving compliance". See references to some trade-off initiatives. The general notion is that regulated entities are offered relaxations and or waivers of command and control requirements should they adopt and sustainably conform to agreed requirements.

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between command and control tools and voluntary tools do indeed deliver more efficient and effective environmental enforcement.
The performance of the celebrated voluntary enforcement tools, namely, the independently certified EMSs, which are based on the ISO 14001 standard, is explored in the following section with the view to illustrating the concerns associated with an over-reliance on a single instrument to drive environmental compliance.

Performance of environmental management systems as a voluntary enforcement tool
The case of EMS is used to explore its ability as a largely stand-alone, 38 voluntary environmental enforcement tool that may deliver legal compliance on a sustainable basis consistently and reliably. Worldwide, there are two programmes for EMSs.

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arguably be part of any internal and external audit programme. Failure to ensure and demonstrate compliance with applicable legal requirements therefore constitutes a significant system failure.
The standard also requires that the organisation identify and provide all staff with access to applicable environmental laws. The standard tasks the organisation to determine the manner in which these applicable legal requirements apply to its operations; that is, the organisation must establish and document the applicable legal requirements and the implications of these for its operations. These explicit requirements regarding environmental law are followed by a much weaker requirement that the organisation shall consider 42 only these legal requirements when establishing its objectives, targets, and the management plan in particular and the EMS in general. The general interpretation of these requirements is that the organisation shall make voluntary arrangements that may be tempered by financial, operational and or business requirements, to become compliant where noncompliance is evident and to maintain a state of self-enforced compliance voluntarily by means of management-system requirements such as objectives, targets and management plans. Implementation of these legal compliance commitments is to be achieved by means of operational-control arrangements, where legal requirements should be used to define operational criteria for specific operations.
Consistent conformity to these arrangements is to be verified by means of a plethora of ISO 14001:2004 checking arrangements such as monitoring and measurement, and verification of compliance with applicable legal requirements, non-conformity and corrective and preventive action, as well as internal and external third-party audits.
These inherent weaknesses of ISO 14001:2004-based management systems are exacerbated by the fact that organisations are not forced to publicly report their state of legal compliance, while a generally accepted perspective is that certification 42 Use of the word "consider" in standards generally indicates some degree of discretion available to an organisation. The duty to "consider" does not imply that the organisation shall demonstrate anything in addition to its having "considered".

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auditors need only to verify that an organisation conforms to the procedural requirements of the standards and not the actual state of legal compliance per se.
At the time of writing, the actual competence of EMS auditors to be able to confirm that all of the procedural legal requirements are satisfactorily planned, implemented, maintained and verified by the audited is a hotly debated concern.
Anecdotal evidence from around the globe appears to suggest that confidence is

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inspectors of the environmental regulator. They should not provide "statements" or "declarations" of legal compliance.
There is, however, no simple and quick solution to remedy the failure of ISO 14001:2004 to function as an effective and efficient voluntary compliance tool. The factors that may require redress could include the following: (a) The requirements of ISO 14001:2004 need to be strengthened to explicitly require demonstrated legal compliance as a prerequisite for certification, should international consensus be reached to strengthen the legal compliance requirements of both the ISO 14001 standard and the rules that govern certification. (b) National accreditation bodies need to require that certification bodies actively confirm sustained legal compliance during certification and surveillance audits and that demonstration of sustained legal compliance be a critical requirement to achieve certification or to retain certification, instead of the current focus of certification bodies on verifying conformity to procedural requirements of the standard. (c) Certification auditors should demonstrate that they are indeed competent 51 to judge whether all applicable legal requirements have been met and whether the organisation is indeed compliant. (d) Legislation needs to be adopted to require that all bodies offering EMScertification services in South Africa be accredited by SANAS, regardless of international accreditation and the multi-lateral agreements that may exist between countries. (e) Legislation must be adopted requiring that only Southern African Auditor and Training Certification Association-certified 52 EMS auditors be used to conduct certification audits. (f) The SAATCA must ensure that a SANAS-accredited certification scheme for EMS auditors in line with the IPC's competence-based requirements is operational and able to rigorously examine and certify competent EMS auditors.

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compliance-based tools that are embedded in a sound command and control framework that promises prosecution, should the voluntary-based tools fail to deliver sustained compliance.

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Use of multiple compliance tools: The Mooirivier Mall case study This case study illustrates the manner in which and extent to which voluntary, command and control-based, and civil-based compliance enforcement tools were integrated into a seamless portfolio of enforcement tools designed to deliver sustained, reliable and demonstrable legal compliance throughout the life cycle of the project.
The fact that the adoption and use of these alternative enforcement tools are indeed mandated by command and control-based authorisations issued in terms of national legislation is immaterial, as they fundamentally retain an agreement-and civil-based character. One of the insights offered in this article is that a command and control basis for the adoption and use of such tools is indeed desirable.

Planning instruments: Mandatory environmental authorisations and processes as command and control instruments
During the planning phase of a large-scale development, numerous authorisations, including environmental authorisations, need to be obtained in order to legally develop and operate. The Mooirivier Mall development was identified at the initiation phase of the project as an activity that may have significant detrimental effects on the environment in terms of Section 21 of the Environment Conservation Act. 56 A mandatory environmental impact assessment 57 process was therefore followed to obtain the required record of decision 58 from the North-West Province's Department 54 Holm Jordaan Group "Urban design" 35-44. 55 Wessels and Mkhari "Environmental management training" 4-6. Historically, the EIA follow-up process has received little attention from governing agents and it is argued that this fatal flaw may be a significant contributor to failures of the South African enforcement process. A critical lesson learnt in the case study was to design and plan for the adoption and use of post-decision enforcement instruments in the pre-decision stage of the EIA process. Another lesson learnt is that it is essential to ensure the successful handover of environmental authorities, duties and responsibilities by role-players of the pre-decision stage to relevant roleplayers of the post-decision stage of the project in order to ensure continuity concerning governance, design, site preparation, construction, and so forth.
The following section of the case study briefly explains the role of EMPs as enforcement instruments. 66 The planning and design phase is also termed the pre-decision stage of an EIA process. 67 See also the argument made in S 4 of the article. 68 Better known as EIA follow-up, as part of the EIA process.
69/189 69 The Department of Minerals and Energy also requires that an EMP be drafted and implemented as a prerequisite for a mining permit and that an environmental management programme be developed and implemented as a prerequisite for a mining right. 70 The EMP includes critical site-specific principles that must be adhered to throughout the project life cycle. A lesson learnt during the project is that the legal requirements are often not sufficiently flexible to deal with dynamic site-specific situations. However, the principles are clear and the objectives could not easily be challenged by violators. 71 A method statement is a letter of intent specifying the details of the activities of the planned works to be undertaken (including the manner in which and the location of the works). It also specifies the estimated time-frame for the activity and must be signed off by the person undertaking the task, as well as the relevant approving authority. 72 Ideally, the entire workforceincluding top managementshould undergo an environmental awareness training course to understand the manner in which they may play a role in achieving the objectives specified in the EMP. 73 Monitoring in EIA refers to repetitive measurement undertaken primarily to address uncertainty in environmental impact predictions. Each specific project must select its own portfolio of monitoring and measurement instruments. 74 Non-governmental groups and/or civil society may have the will and resources and could, therefore, become involved in enforcement by detecting non-compliance, negotiating with violators, commenting on government enforcement actions and, where the law allows, taking legal action against a violator for non-compliance or against government for not enforcing the requirements. 75 Monitoring committees are excellent voluntary agreement instruments and serve as a vital communication platform for post-decision enforcement role-players. 76 There are numerous reasons that society in general does not comply with legal requirements.

Implementation, checking and reporting instruments and the role of the environmental management plan
The United States Environmental Protection Agency (hereafter US EPA) 1992 http://bit.ly/dYEjb8 1-16 lists economics, social/moral, personal, management and technical elements as the main barriers to compliance and factors encouraging non-compliance. An interesting debate raised by the US EPA is that in any regulatory situation some people will comply voluntarily, some will not comply, and some will comply only if they see that others receive a sanction by not complying. This change in behaviour to avoid sanction is called deterrence. 77 Various types of formal and informal violation responses exist, including formal mechanisms such as civil or criminal proceedings and informal mechanisms such as telephone calls, inspections, warning letters and notices of violations, fines and suspension of work. 78 A fine is a typical example of a market-based disincentive instrument that gives authority to an elected person to issue a monetary penalty to violators. The designated environmental management authority in a development should be able to impose fines on any violators for any contraventions of the EMP. 79 Non-compliance with the conditions of the EMP constitutes a breach of contract, as the EMP is a contractual condition to be adhered to on the Mooirivier Mall development site. The EMP states that the project engineer has the power to remove from site any person who is in contravention of the EMP and, if necessary, the project engineer can suspend part or all of the works, as required. 80 Refer to S 4, which discusses the framework conditions to direct the selection and use of alternative enforcement tools.

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The second lesson, as discussed in Section 6.3, is that an innovative cocktail of sitespecific environmental enforcement tools must be selected in order to ensure independent subsystem duplication and overlap.
The third lesson is that these instruments should be supported by a mandatory command and control instrument such as the EMP for ensuring legal deterrence. On a construction site, as elsewhere, command and control instruments and hence the fear of prosecution remain the principal enforcement drivers. 81 The fourth lesson is that the greater the number of role-players involved in enforcement, the greater the likelihood of a successful enforcement effort is.
However, the role-players, including the different line functions and spheres of government and civil society, must be offered a unified communication platform, such as a monitoring committee, in order to ensure maximum enforcement potential.
The final lesson learnt from the case study is that cognisance must be taken of the

Conclusion
It is argued and demonstrated by means of the lessons learnt both from the Mooirivier Mall case study and the distillation of generic imperatives to define framework conditions for the successful adoption and use of alternative enforcement tools that an ensemble of environmental enforcement instruments should be carefully and innovatively selected, adopted and used to ensure and drive successful 81 Also see the discussion in S 6.3. 82 This lesson jointly encapsulates the fourth, fifth and sixth insights discussed in S 4. 83 See also Ss 6.2 and 6.3 of the article.