1. introduction
All regulators have to be responsive, among other things, to the institutional, legal and political contexts within which they operate.Footnote 1 These contextual pressures give rise to particular challenges for those regulators who are seeking to adopt a ‘risk-based’ approach to their policy making and operations.Footnote 2 This article explores how meeting those challenges can impact on regulators who are situated within multi-level, transnational governance structures. It is the story of how a regulator had to move away from its own approach to risk assessment and risk prioritization as a result of a transnational framework of legal and political accountability. It highlights the ways in which external institutional pressures can create ‘policy windows’ that produce change and innovation in regulatory strategy. The narrative also suggests how such pressures can create opportunities for ‘model mongers’ and ‘policy entrepreneurs’ to exploit those policy windows and contribute to processes of organizational learning and regulatory change.
In addition, the article illustrates the challenges that regulators face in regulating low risks when the dominant message of ‘risk-based’ regulatory strategy is that such risks should receive little attention.Footnote 3 Low risk, in the context of risk-based approaches, means low priority. In this case study, however, the regulator was forced to adjust its risk prioritization radically so as to give significant attention to a ‘low risk’. It was driven to do so, moreover, on the basis of a legal and political evaluation of its priorities, rather than a change in the scientific assessment of the risk to the environment. The story recounted below shows how ‘risk-based’ regulation is at its core a managerial, political and legal enterprise as much as an analytical or scientific one.
The article describes the processes that led the Irish Environmental Protection Agency (EPA) to develop a National Inspection Plan (NIP) for domestic waste water treatment systems (DWWTSs), following intervention from European Union (EU) institutions. As indicated, the discussion focuses on two issues: (i) the role of transnational institutional settings in galvanizing regulatory reforms, and (ii) the practical challenges of dealing with lower risks.Footnote 4 It shows how a domestic regulator responded to transnational pressure in two ways: by adjusting its risk priorities and by adding a new dimension to conventional risk regulation strategy. This suggests that, under certain conditions, an effect of transnational legal regimes can be to stimulate the development of more radical, urgent and structured reforms than might otherwise have occurred.
2. stimulating change: the eu’s role in prompting change in ireland’s environmental regulatory approach
In post-millennium Ireland, individual DWWTSs constitute relatively low risks to the environment. On-site DWWTSs (often septic tanks) collect, treat and discharge waste water from almost 500,000 households in Ireland. These domestic systems pose much less of a risk to larger catchment Irish watercourses than urban waste water discharges and diffuse agricultural pollution. If not managed and treated appropriately, however, domestic waste water may contaminate private and public water supplies, ground and surface water, and it may cause harm to both human health and the environment. DWWTSs are lower-risk items but they may cumulate to pose significant risks or may give rise to higher levels of risk because they are sited in sensitive locations.
Because of the relatively low nature of the risk, the Irish authorities had not prioritized or developed a separate strategy for DWWTS regulation. However, DWWTSs are also examples of equipment that are covered by European-level legislation. In October 2009, the European Court of Justice (ECJ) ruled that Ireland had failed to adopt the necessary legislation to comply with Articles 4 and 8 of Directive 75/442/EEC on waste (Waste Framework Directive)Footnote 5 regarding domestic waste waters disposed of in the countryside through septic tanks and other individual waste water treatment systems.Footnote 6 Those articles prescribed that waste was to be disposed of without endangering human health and the environment (Article 4), and that waste disposal establishments were to be subjected to appropriate periodic inspections (Article 8).
In a subsequent case, decided on 19 December 2012,Footnote 7 the Commission asked the ECJ to order Ireland to pay a lump sum of over €5 million, and a daily penalty payment of over €26,000 (as provided for in Article 260 of the Treaty on the Functioning of the European Union (TFEU)Footnote 8). The ECJ agreed that Ireland was still violating EU environmental law with regard to its disposal of domestic waste waters in the countryside through numerous septic tanks and other individual waste water treatment systems. Not all laws and regulations were in place, and an inspection plan remained lacking.
Ireland had claimed that the Commission’s action was premature since the country needed more time to comply with the 2009 judgment. The Court, however, stressed that the importance of an ‘immediate and uniform application of [EU] law’ meant that, after a conviction, the compliance process had to be initiated ‘at once’, and completed ‘as soon as possible’.Footnote 9 It judged that the Commission was entitled to lodge an application 21 months after the delivery of the judgment in the earlier case, even where implementation of that judgment involved complex operational issues.
As for the appropriate penalty payments, the ECJ used its discretion to apply a lesser sanction than that for which the Commission had argued. The Court imposed a lump sum penalty of €2 million and a periodic penalty payment of €12,000 for each day of delay in adopting the measures necessary to ensure full compliance with the judgment in Case C-188/08, with effect from the date on which judgment was delivered in the present case (19 December 2012).
The case attracted significant political and media attention in Ireland.Footnote 10 Moreover, the judgment came just as the ‘troika’ of the International Monetary Fund (IMF), World Bank and European Commission were agreeing a bail-out package for Ireland following the financial crisis. Part of the terms of that bail-out were that the Irish government should move responsibility for water services from local authorities and should impose charges for water services.Footnote 11 It was through this provision that the apparently quite distinct issues of compliance with the EU’s environmental regulations became fused with the much bigger issue of the terms of the agreement for Ireland’s €85 billion bail-out programme from the EU, some EU Member States and the IMF. In order to comply with the legal edicts of the ECJ and the political and economic edicts of the bail-out programme, the Irish government introduced a requirement for owners of septic tanks to register with local authorities, and that registration would incur a charge of €100. A significant political debate ensued, pitching rural inhabitants (the majority of whom have DWWTSs) against urban inhabitants (who are linked to mains sewers and therefore were not required to pay a registration charge, although they do pay other charges).Footnote 12 The fee was subsequently reduced to €50 with a discounted €5 charge for ‘early bird’ registration.
Through the direct action of the ECJ and the indirect action of the ‘troika’, what had been a low risk had, through changes in the legal, economic and subsequently political landscape, become of the highest political salience.
3. the need for a plan: developing epa strategy
The Irish response to the ECJ judgment provides a good example of how policy making at the national level can be radically shaped by its position within a multi-level governance regime, and the impacts of conditionality on national policies. It also illustrates how such interventions can create policy windows which, in turn, can be exploited by policy entrepreneurs to introduce reforms which were formulated earlier in different but related contexts. First described by Kingdon in 1984, ‘policy windows’ are those rare moments in time when politics, policies, and problems converge with the result that an issue moves onto the institutional agenda.Footnote 13 These three streams are often distinct. As described in Cohen, March and Olsen’s ‘garbage can’ model of decision making within organizations, problems and solutions flow through an organization often unconnected in time or space.Footnote 14 In rare moments, however, political attention, problem definitions and policy solutions can converge. Triggers for such convergence can be political when a ‘focusing event’ turns political attention to the issue, as here when intervention by the European Commission and the ECJ required the Irish government to change its policy and practices with regard to a specific element of environmental regulation. The focusing event created the need for a solution to address a problem or issue the nature of which was fully understood (the nature of the risks DWWTSs pose to the environment is well known), pushing what was previously an issue of low political salience high up the political agenda. The ‘window’ was turned into a wide open door when, as noted above, the provisions of the bail-out linked the apparently unconnected issues of septic tank inspections with Ireland’s fiscal and economic position.
The confluence of these events provided both the need and the opportunity for policy change, but the direction that change took was the result of a combination of two further elements. The first was the arrival of policy entrepreneurs who, working quite independently of this particular policy issue, nonetheless characterized the problem in a way that was familiar to policymakers (as one of how to address low risks) and came bearing solutions which purported to address the problem (a regulatory strategy for low risks).Footnote 15 The second was a process of innovation by the regulator in which it took the solutions proposed in a separate research programme and shaped them to fit its own particular needs. That response came in the form of the Water Services (Amendment) Act 2012, which broadly provided for the registration of DWWTSs, the preparation of a National Inspection Plan (NIP) and the remediation of treatment systems that impact on health or the environment.
The remainder of this section describes in more detail how transnational pressures led to a process of organizational learning and innovation at the national level. It sets out the model that was initially proposed and the ways in which it was adapted by the Irish EPA to fit its needs.
In developing the NIP, the Irish EPA drew on a model for regulating lower risks which had been devised by two of the authors for a cross-agency research body, the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER), of which the EPA was a member.Footnote 16 The SNIFFER research outlined the different strategies that the four environmental regulators of the United Kingdom (UK) and the Republic of Ireland used to regulate low risks. It was found that the agencies used three main types of intervention strategy:
• screening and rule-based (such as registration and general binding rules);
• inspection and monitoring (such as traditional on-site visits and reactive investigations); and
• engagement and incentive (such as information campaigns and dialogues with interested parties).Footnote 17
The principal aim of the SNIFFER research was to devise a method of identifying the intervention tools that could control given low risks most cost-effectively. This model provided a strategy for regulating lower risks which focused on the nature of the risk and the nature of the regulatee, and which provided an analytical framework for considering potential regulatory intervention strategies and evaluating their use.
Drawing on the theory of ‘really responsive regulation’, the argument made in the SNIFFER Report was that the regulators of low risks should (and often do) pay attention to five key factors:
• the need to apply combinations of tools to different risks while taking on board interactions between these tools;
• the ways in which the motivations and capacities of different regulatees affect the efficacy of different tools;
• the organizational and political factors that affect regulatory tool use;
• the need to assess regulatory performance in an ongoing manner; and
• the value of being adaptable to changes in regulatory challenges and contexts.Footnote 18
The SNIFFER research devised a ‘best practice’ framework which meets these requirements. It is recognized that a ‘best practice’ framework cannot neatly reconcile public expectations of universal protection with the regulatory reality of prioritization and rationing. It can, however, help regulators to identify those intervention tools that are likely to have the most potential in relation to different risks and contexts. Such a framework can also provide a rational and defensible basis for decisions and can be referred to when strategic choices are subjected to public and political challenge.
3.1. GRID – the Good Regulatory Intervention Design
The framework proposed has at its core a matrix which is called the GRID – the Good Regulatory Intervention Design. The aim of the GRID is to provide a framework for deciding systematically which strategies regulators should adopt, operating on the basis that two key factors should guide those decisions: (i) the nature of the risk, and (ii) the nature of the regulatee.
Nature of the risk: identifying and categorizing low risks
Risk-based regulation, in demanding the ranking of risks on a scale from ‘low’ to ‘high’, assumes that risks are ‘self-presenting’ and that clear-cut distinctions can be made between risk types. But how risks are selected, framed, and categorized for attention is a complex process, involving a mosaic of technical, psychological, cultural, social, political, organizational, and economic concerns.Footnote 19 There is no single and non-contentious way to define and ‘rate’ many risks. In addition, risk-based regulation requires regulators to reconcile three, often incompatible, considerations: ‘technical’ risk assessments, available resources, and their own reputations. The categorization of a site or activity as ‘low risk’ is therefore a complex process, in which the usual cognitive complexities of risk assessment are combined with political and organizational considerations, producing differential assessments both within and between different regulatory organizations. What counts as a ‘low’ risk for one regulator may be seen as a ‘high’ risk by another because of such factors as differences in the overall risk profile of the regulated population or differences in the organizations’ risk tolerances, or indeed available resources to address the risk. In the environmental sector, the types of risk that are commonly referred to as being ‘low’ risk include sites and activities such as point source discharges into water, waste transfer stations, small oil pumping and container sites, DWWTSs, and dry cleaners. However, as research by the first two authors discovered, regulators may agree that such activities are ‘low’ risk, but they can still disagree quite significantly over whether diffuse pollution from agriculture, for example, or peat harvesting, or coal-fired power stations could also be considered ‘low’ risks.
Furthermore, even if the overall categorization is agreed, not all low risks are the same. Risks are conventionally categorized on the basis of two dimensions: probability and impact, with impact often defined as an adverse event of different degrees of tolerability. In the activity of risk governance, however, other dimensions come into play, including the simplicity or complexity of the causal chain between hazard and harm, the degree to which probability and/or impact are known or uncertain, the nature and distribution of the impacts (remediable or irremediable, concentrated or diffused), and the socio-political contestability of the risk.Footnote 20 Different strategies may be appropriate for risks that are known and simple and the impacts of which are remediable or reversible than for those that are uncertain and/or highly contestable the impacts of which are irremediable or irreversible.Footnote 21 Furthermore, risks vary in the degree to which they are stable or volatile, including the extent to which they may accumulate to present an overall higher risk. Risks may also be assessed on an ‘intrinsic’ basis (without mitigation by risk management strategies) or ‘net’ basis (with such mitigation).
The GRID approach provides guidance on strategic choices by focusing primarily on two risk dimensions: (i) risk volatility and propensity to accumulate, and (ii) the degree to which the categorization of those risks as low or high is dependent on the application of risk control measures. The reason for focusing on these two dimensions is that it allows regulators to tailor their strategic interventions to their major concerns about lower risks: whether they are stable or likely to change into higher risks, and whether their lower risk status is dependent on effective risk management by the regulatee.
Regulatees
The second key factor that impacts on the utility of an intervention tool is the nature of the regulatee. Some low-risk intervention strategies work well with highly motivated regulatees who have a high capacity to comply (for example, self-certification systems), but would not prove successful where regulatees are less motivated to comply, and have a low capacity to comply because of limitations in such matters as information about regulatory requirements, resources, systems, and personnel.Footnote 22 Moreover, the attitude and capacity of the regulatee is particularly critical in determining whether a higher risk can, in fact, be classified as a lower ‘net’ risk and for the intervention strategy that should be used.
In combining types of risk and types of regulatee, the GRID offers a framework for identifying potentially useful regulatory tools. The horizontal axis involves a progression in types of low-risk activity – from inherent and stable low risks that require the least intensive interventions on the left, to net low risks that are unstable and which call for more urgent attention on the right. The vertical axis involves a similar ‘progression of intensity’ from those who are well-motivated with a higher capacity to comply at the top to those who are less well-motivated with a lower capacity to comply at the base.
The bare GRID framework is shown in Figure 1.
The GRID framework
The right hand column of the GRID divides intervention tools into three broad types and it also suggests a level of regulatory intensity that might be appropriate in the case of a particular combination of risk and regulatee type. Suggested regulatory intensity refers to the amount of regulatory resources to be applied to a site or activity and to the severity with which any sanctions are applied. Intensity is expressed relatively and is rated ‘high’, ‘medium’, ‘medium-low’, or ‘low’.
Accompanying the GRID (but not set out here) is an Intervention Guide: a list of the various tools or strategies that regulatees commonly have at their disposal,Footnote 23 and an indication of the time frame required for their development in order to aid planning. Each tool is assessed in the Guide against three criteria: (i) its relative effectiveness in different situations and contexts; (ii) the manner and degree to which it could be rendered transparent and justifiable; and (iii) the degree to which it could be dynamic, or able to identify and/or respond to change. The Guide provides a short description of the intervention strategy, some of the risks of using it and how these might be addressed. It also indicates other strategies with which any particular strategy is likely to be compatible, and with which it is not.Footnote 24
In order to use the GRID, regulators must be able to characterize risk-types and regulatee-types accurately. Here regulators face a trade-off between accuracy and resources. The risks at issue are already categorized as being at the lower end of the regulators’ risk spectrum, and thus at the lower end of the resources allocation. It follows that the resources spent in analyzing which ‘box’ each site or activity is to be put in should be less than would be the case if a similar framework is used for high risks. For low risks, the idea is that agencies apply a sector-based approach, but they might see fit to give discretion to regional managers or field officers to deviate from the ‘default’ categorization (subject to justification). Such managers or officers might also be given the tasks of setting ‘review periods’ – the frequencies with which they plan to conduct reviews of strategies for dealing with risks and their categorizations in the particular targeted area. Agencies and relevant staff will then be positioned to think methodically about the intervention tools that they will use in the coming period and to ‘populate’ the GRID’s boxes with the tools that are considered to have potential in relation to different combinations of risk and regulatee type.
So that regulators are able to assess their performance in an ongoing manner and to modify their approaches where necessary, the GRID is accompanied by a Good Regulatory Assessment Framework (GRAF), which provides a step-by-step process for enabling ‘double loop learning’.Footnote 25 GRAF operates on the basis of the same logical framework as the GRID. It asks regulators a series of questions that are designed to evaluate whether the GRID has been used appropriately in their agencies.Footnote 26 Those completing the GRAF are thus asked to score, on a five-point scale, their agency’s performance on such matters as:
• characterizing accurately the types of low risk and regulatee involved in a given low-risk area;
• considering the strengths and weaknesses of the different intervention tools;
• surveying the complete array of intervention options;
• allowing tools to be used with appropriate intensity; and
• assessing and modifying (where appropriate) their agency’s overall performance regarding low-risk sites/activities.
The GRAF’s scoring system is designed to allow managers quickly to pinpoint their areas of strength and weakness in selecting strategies for dealing with low-risk sites and activities. It also asks regulators to consider reasons for poor performance, and offers strategic managers the chance to identify possible improvements and to link reforms to feedback from field-level officers. The conclusions from the GRAF process should then be fed back into the GRID evaluation process, as indicated in Figure 2.
The GRID/GRAF cycle
The GRID/GRAF system perhaps offers greatest potential as a strategic planning tool, primarily at the sector level. Agencies can identify the sets of strategies to be used in particular sectors, and the GRID allows field officers to adjust strategic choices periodically. The system provides a way of designing a sector intervention plan, for example, with concise guidance and a summary of main options for field officers to implement at the sub-sector level. The GRID can be used as part of an annual planning cycle, or a two- to three-year planning cycle over time, or as part of a periodic strategic review.
4. using grid and graf to respond to transnational pressure
The ‘Good Practice Framework’Footnote 27 was central in developing an inspection plan for DWWTSs that would satisfy the requirements of the EU Waste Framework, as set out by the ECJ.Footnote 28 The GRID was used to divide lower-risk sites/activities into four different categories and it is noteworthy that, here, the GRID was used to focus on a single lower-risk activity type.
The problem faced by the Irish EPA in designing a regulatory strategy for DWWTSs was that there are 500,000 such systems, but both the EPA and local governments (who are responsible for inspection in accordance with the EPA’s guidance) are considerably under-resourced. Moreover, in scientific terms, there are far greater environmental risks on which resources need to be spent.
A key requirement, therefore, was to segment the low-risk population so as to develop more nuanced risk categorizations, which would enable the EPA to differentiate between DWWTSs that posed ‘lower’ and ‘higher’ risks, albeit that all of them fell within the EPA’s ‘low risk’ band. The EPA worked with the authors to identify instances where the characteristics of the geology, flora and fauna of the environment coincided with concentrations of DWWTSs in such combinations as to produce higher risks of environmental damage – for example, where they were close to areas of freshwater pearl mussels (Margaritifera margaritifera) or other areas of special interest, or where the structure of the geology was such that there was a greater risk of surface water run-off (caused by clay, for example), or conversely of percolation through to the groundwater (for example, in areas of karst).
The EPA then focused on the nature of the regulatees. Unlike many areas of regulation where the principal targets of regulation are organizations, in this case most of the regulatees were individuals or households. Any regulatory strategy that focused on management systems would therefore be inappropriate in most cases. Moreover, given the initial public resistance to registration of their septic tanks and, in particular, the accompanying charges (noted above), it could not be assumed that there would be a high level of voluntary compliance. However, there were also indications of widespread ignorance of the potential risks to householders themselves from their faulty or non-functioning DWWTSs, suggesting that non-compliance may be based more on a lack of knowledge than a deliberate rejection of the regulatory regime itself.
Recognizing that managing the incentives of households to ensure that their DWWTSs were in place and working properly was critical to the success of the regime, EPA analyses based on the GRID matrix suggested that two particular intervention strategies would have considerable potential to advance the protection of public health and the environment. These were citizen engagement strategies and inspections (see Figure 3). However, inspection resources still needed to be managed and so, following the GRID, the EPA further subdivided the regulated population into two groups: those who showed a propensity to comply by registering their system by the required date (and so paying the registration fee), and those who did not.
The building blocks of the EPA Inspection Plan
The modified GRID matrix was thus used to develop the NIP,Footnote 29 the objective of which was to move to a situation where the majority of homeowners with DWWTSs would know how to ensure that their systems were well-operated and maintained and where they would act voluntarily to achieve this. With respect to implementation on the ground, the building blocks of the implementation plan were engagement strategies and inspections, set out in Figure 3.
4.1. Engagement Strategies
The first strand of the NIP was the planned introduction of a national public awareness campaign to promote best practice relating to the operation and maintenance of DWWTSs. The campaign was to be rolled out prior to inspection, in order to give time for the public education messages to be absorbed by householders and, hopefully, acted on. After several months, the campaign would be supplemented by inspection of a small percentage of the overall number of DWWTSs, identified through the risk analysis process described above.
As part of the engagement strategies, the EPA and local authorities embarked on a number of information campaigns, providing information to owners of DWWTSs regarding their responsibilities and how to operate and maintain their systems in multiple, easy-to-understand formats such as leaflets, workshops, video and web-based ‘frequently asked questions’, interviews on national television and local radio, and advertising campaigns.
The engagement strategies had two main elements: awareness raising and capacity building. Public awareness communications stressed a number of different types of benefit from ensuring that DWWTSs were well maintained. The aim was to promote compliance through motivating individual responsibility, which was in turn created by using a number of different justifications which would resonate with the dominant motivations for compliance: self-interest, social acceptance, and agreement with the normative goals of the policy and/or the processes of implementation.Footnote 30 The arguments used in the public education campaign included self-interest and well-being (clean water is vital for the health and well-being of individuals and families); a sense of social or community obligation (our clean water resource is under threat, we all need to take steps to protect our water), and different normative justifications of the regulatory requirements – for example, by emphasizing economic benefits (the quality of water contributes to economic growth – to food exports, fisheries, tourism) and the need to preserve scarce resources (clean water is an essential resource, one we take for granted but which we cannot afford to any longer), as well as environmental justifications (clean water is essential for the environment).
Communication aimed at capacity building informed owners of the role they could play to protect their health and that of their neighbours and the environment if they took a series of simple steps to properly operate and maintain their system, as well as raising awareness as to the health implications where a treatment system was not working properly. The campaign strove to provide those who are responsible for DWWTSs with authoritative and accessible advice to protect their health and that of their family, neighbours and the environment.
4.2. Inspections
The second strand of the NIP involved the use of risk-based inspections in addition to the monitoring (through proxy inspections) of the water quality standards set out in river basin management plans. In order to provide an evidential basis for risk-based inspection, the Irish EPA developed a method of ranking areas by the risk posed by domestic waste water to both human health and the environment. This risk assessment methodology covered all hydrological and geological settings in Ireland and, accordingly, determined the potential risk posed by treatment systems throughout the country. Each square kilometre of the country was assigned a risk category (low, moderate, high, very high) based on the likelihood of treatment systems in that area presenting a risk to human health or the environment. As a result of this segmentation the EPA identified those areas of highest risk where inspections would be targeted, anticipating that as a result less than 1% of DWWTSs would be inspected. Within those areas, unregistered sites were made the initial target for inspection and registered sites given lower priority.
Proxy inspections, under the plan, involved the use of monitoring, or other tools such as a geographical information system (GIS), to complement individual site inspections. As part of the requirements under the EU Water Framework Directive,Footnote 31 the Irish EPA and local authorities carry out a significant amount of surface water and groundwater sampling. Measurements of proxy outcomes, such as downstream water quality, can offer useful indications of the performance and impacts of DWWTSs. The EPA intends to integrate that information with its geographical analysis of the distribution of DWWTSs to target future systems inspections. The measurements can also trigger immediate remedial action without the necessity for a site inspection.
Overall, the NIP relies on changing behaviour and encouraging recognition by home owners that water and DWWTSs are a health and environment issue. The Irish plan envisages periodic checks to reinforce the message and target inspections in areas in need of greatest protection. Furthermore, the NIP is integrated into the Water Framework Directive River Basin Management Planning to maintain, and where necessary improve, water quality with the aim of providing consequential benefits to public health and the environment.
5. transnationality and the reformulation of risk-based regulation
The above discussion has focused on the actual policies that were developed in relation to DWWTSs but, as noted at the outset, the experience of the Irish EPA also demonstrates how a transnational regime of accountability can reshape a regulatory regime in multiple ways. In particular, it illustrates how transnational pressures may impact on a risk-based regime. In the case of the EPA, the response to the multi-level, transnational governance regime produced two main effects: firstly, the Agency adjusted its own risk priorities and, secondly, it effected a major strategic shift in its approach to risk regulation.
5.1. Adjusting Risk Priorities
Most strikingly, developments in the transnational legal, political, and economic context in which the EPA is situated led it to revise its risk priorities, transforming what had been an issue of relatively low environmental risk and low political and institutional salience to one of low environmental risk but high political and institutional salience. This would be surprising only if the process of setting risk priorities was seen as technical in nature and somehow free from institutional, political and social influences. As has been suggested above, however, it is as clear with lower as with any other risks that such a vision would be mistaken. The categorization of an activity as ‘low risk’ (that is, low priority) may be contested by consumers, local residents, politicians, non-governmental organizations (NGOs), industry, and other regulators in a multi-level governance structure.
In the Irish EPA case there was a transnational divergence of view on the enforcement priority given to the risks presented by DWWTSs. The EPA’s revision of enforcement strategy was not, it should be emphasized, an instance of policy making in the wake of a disaster. With Irish septic tanks there had been no catastrophic pollution incident – merely a political and legal challenge to the exercise of discretion by a Member State’s regulatory agency. As noted above, on-site DWWTSs were, in terms of their environmental impact, low risk. The new attention that was given to DWWTSs was not a case of a low-probability, high-impact environmental risk crystallizing; rather it was a case of an agency’s priorities being challenged within a multi-level governance structure.
This account challenges the notion that risk-based systems provide a ready means for regulators to manage the parameters of their own accountability and for them to indicate with authority which failures have to be accepted and for which harms they may potentially be held to account. The EPA example illustrates that regulatory agencies have a limited ability to withstand the demands that flow from their accountability relationships. It was the EU accountability framework, not the national regulatory framework, that prompted the institution of the new inspection plan. For those who focus their discussions on the national frameworks of regulatory accountability, this is a salutary lesson about the influence that supranational levels of governance can have in shaping the accountability of national regulatory agencies.
The further moral of this particular story is that regulators are not always free to move resources away from lower risks so as to target higher risks more emphatically. The legislative and accountability frameworks under which regulators operate may often require them to regulate activities with a level of priority that would not have been suggested by their own analyses.
5.2. Effecting a Strategic Shift in Risk Regulation
The process of developing a new NIP under the stimulus of the ECJ judgment indicates how the effect of transnational legal requirements can be to change not merely risk priorities but also the nature of strategic thinking in domestic regulatory bodies. Here, those legal requirements prompted more radical strategic reconsiderations than might otherwise have been the case. To make this point it helps to distinguish between different levels of strategic review. The work of Black, Lodge and Thatcher suggests that strategic reviews can contemplate three orders of change. First-order changes involve adjustments to existing processes or tools – as where the X in a RPI-X price cap is altered. Second-order changes involve the adoption of new control mechanisms – as in a move to use fresh tools of intervention. Third-order changes involve paradigm shifts and fundamental transformations in structures, institutional responsibilities or techniques.Footnote 32
The Irish experience with DWWTSs shows how responding to the transnational legal regime prompted a review of intervention methods and a second-order rethinking of strategy – one that involved a new and more structured way of thinking about strategic choices. The move from first-order to second-order strategic review can be said to have been the effect of transnational considerations because the GRID’s attractiveness to regulators lay in its value as a convincing means of responding to the European authorities by demonstrating that an effective inspection plan had been devised. It was, in turn, the use of the GRID that prompted second-order deliberations on strategy. It is uncertain whether such root and branch rethinking of strategic tools would have taken place without the stimulus of transnational law and it is safe to say that, in the absence of such pressure, it would not have been instituted with such urgency.
The described movement, moreover, involved the Irish EPA developing a quite innovative approach to risk-based regulation. The traditional role of risk analysis within risk-based regulation is to allow resources to be targeted at the most serious risks and risk creators. As such, the risk-based approach offers little guidance on the intervention strategies that may have value in dealing with different kinds of risk and risk creator. In the case of the Irish EPA, however, the stimulus of the ECJ led the regulator to devise a risk-based approach to the selection of intervention strategies based on the GRID/GRAF framework. It is arguable, therefore, that the effect of transnational pressure was positive in so far as it prompted the EPA to enhance its strategy in a creative manner and to add a new dimension to traditional risk-based regulation. Such transnational pressure, moreover, added weight to the EPA’s broader efforts to develop a cross-agency ‘better regulation’ agenda.
6. conclusions
Using the GRID and GRAF system to devise a NIP for DWWTSs has shown the role of EU law as a potential stimulus for regulatory change and, more particularly, for collaborations between practitioners and scholars on strategic issues. The above account demonstrates not only the extent to which transnational pressures can shape the very nature of domestic risk evaluations, but also the potential of transnational law to stimulate higher-level, and more urgent, reviews of regulatory strategy than might be the products of domestic regimes on their own.
A number of additional theoretical and practical messages may be drawn from the above discussion. With reference to the theory of risk-based regulation, it is clear that lower-risk activities and sites present operational and legal challenges that cannot be met through policies that target resources at what are in scientific terms the most severe risks. It is, moreover, plain that the distinction between high and low risks is by no means unproblematic. There are many examples of lower risks that are volatile in nature, or may cumulate, or may impact on areas of extreme sensitivity, or may have a political salience that may appear disproportionate to some individuals, experts or agencies.
Enforcement also emerges as an issue that exposes the hidden shallows of traditional risk-based regulatory theory. Much of the above discussion has centred on the challenges of selecting suitable intervention strategies and tools for dealing with lower risks. The GRID/GRAF framework provides an organized method for coming to grips with these issues but it also makes manifest the silence of risk-based theory on these matters. Traditional risk-based regulation contributes something to establishing priorities for regulatory attention but it does not say a good deal about the intervention tools and strategies that may prove useful, nor does it offer a means of checking that strategic choices are being astutely made. Transnational pressure led to the addressing of these issues.
Traditional risk-based analysis, furthermore, has long been held out as a means of justifying regulatory actions, but the above discussion reveals a hole at the centre of this mode of justification. Once it is acknowledged that regulators have to respond to lower risks for a variety of reasons and with varying degrees of intensity, it becomes difficult to sustain the argument that regulators should focus simply on their most important problems and fix them. Regulators have a legal mandate to fulfil and cannot simply ignore lower risks, which after all may quickly transform into high risks should the political context shift.
Finally, the importance of the transnational perspective can be emphasized by repeating that a good deal of credit for the EPA’s use of GRID/GRAF can be put down to supranational frameworks of accountability. It can be claimed that, in the case described, multi-level governance proved capable of triggering high-level strategic reforms and stimulating the addition of a new dimension to traditional risk regulation.
