Introduction

This chapter examines a phenomenon ‘so ubiquitous that we take it for granted: something that is legally mandated fails to happen. Deadlines are missed, standards are ignored or fudged, enforcement misfires.’ Simply putting the law in place does not lead by straight cause and effect to an improved or protected environment. Policy analysts and lawyers can misconceive the relationship between law and policy in the environmental arena, either seeing law as an ‘output’ of the policy process, or seeing policy as a precursor to law. This is nowhere clearer than in implementation and enforcement; policy decisions exercise a continuing and profound influence on the relationship between ‘law on the books’ and ‘law on the ground’.

Enforcement is what happens when regulated bodies fall short of full compliance with environmental law, but the question of ‘compliance’ is not straightforward. The definition of compliance is rarely obvious, but will be subject to discretion: think, for example, of the discussion of ‘best practicable means’ in Chapter 9 (pp. 359–62), and of the values inherent in much technical activity in Chapter 1 (pp. 40–7). In addition, it is rare in environmental law for there to be a moment at which compliance can be said to be ‘complete’: ‘The state of compliance is continuously changing. New companies are created and others go out of business, new technology or industries are introduced, markets shift, operational practices change and regulatory provisions are amended or updated.’