244 Public Administration Review • March | April 2014

Commentary

Suzanne Y. Mattei has 30 years of

experience in environmental law and policy.

Prior to her current role as head of a health

consumer rights organization, she served

as regional director for the New York State

Department of Environmental Conservation.

In her previous positions in government and

in nonprofi t organizations, she participated

in multiple permit proceedings, rulemak-

ings, and legislative hearings, including

testifying by invitation before Congress

regarding the health impacts of Ground

Zero contamination on 9/11 responders.

E-mail: smattei@nyc.rr.com

The analysis presented in “Voluntary Regulations and Innovation: Th e Case of ISO 14001” by Sijeong Lim and Aseem

Prakash supports the premise that voluntary par-ticipation in ISO 14001 promotes technological innovation. Th e authors argue less successfully that requiring companies to install a particular type of pollution control technology hinders them from researching and fi nding ways to curb pollution through process changes or new technologies, and they do not address whether the public would be better protected under enforceable approaches to environmental protection. Placing such a policy discussion in a broader context that analyzes the existing fl exibility within current regulatory schemes, the rights of the public, and the practical challenges faced by regulatory agencies, would be a helpful next step for the authors’ inquiry.

ISO 14001 is a valuable tool. It requires adoption of management policies and specifi c environmental

Suzanne Y. MatteiNew Yorkers for Patient & Family Empowerment, Inc.

targets, with third-party auditing to confi rm achieve-ment of objectives. Th e positive reinforcement of ISO 14001 accreditation and the potential “loss of face” that would occur if the facility lost that status moti-vate and incentivize commitment to these goals. Th e authors emphasize that third-party monitoring and reporting are key to the success of ISO 14001. Th is is consistent with the premise that “what gets measured gets addressed.”

Th e article off ers interesting evidence that the volun-tary ISO 14001 approach promotes innovation. Th e study examines the performance of 79 countries, using 14 years of data, to correlate voluntary ISO 14001 par-ticipation with environmental patent applications. Th e study controls for potentially confounding factors such as the level of economic development, the size of the economy, and political and institutional factors that can infl uence innovation. Th e analysis concludes that those who participated in ISO 14001 had an increased number of environmental patent applications.

Voluntary Innovations versus Enforceable Rights

Voluntary Innovations versus Enforceable Rights 245

While the data and analysis presented provide important support for participation in ISO 14001, they do not lead inexorably to the conclusion that ISO 14001 should replace ground-fl oor enforce-able standards for air and water quality. Th e article variously appears to advocate for more fl exible regulations and for replacing enforceable regulations with voluntary compliance. Both the existence of fl exibility within current regulatory schemes and the consequences of removing (or failing to establish) public rights to enforceable standards deserve more nuanced discussion.

Further research might take note of the fact that many laws pejoratively characterized as “command and control” actually provide signifi cant latitude. Indeed, what triggers the “control” requirement often is the level of emissions expected. Under such laws, a facility can design its industrial process to reduce its pollution below regulatory levels. Using cleaner fuel, for exam-ple, can avert the requirement of installing certain types of air pollution control technology.

Th e authors might also give more attention in the future to the “variance” process. Many environmental regulatory systems allow an applicant to apply for a variance from a requirement if it can demonstrate to the regulatory agency that it can address the statutory objectives another way. Th us, a facility that would produce pollutants at levels exceeding the regulatory threshold can often still obtain fl exibility to control that pollution using an eff ective alternative technology.

A more disturbing question, which the authors do not explore, is whether a facility that is already in existence, emitting pollutants, should be allowed to remain uncontrolled while its researchers tinker with new ideas for pollution reduction. Th e voluntary ISO 14001 program does not establish enforceable rights for the aff ected community. Indeed, the study acknowledges that about 10 percent of its country-year observations did not have a single fi rm participat-ing in ISO 14001. Yet the authors do not address the impacts of delays in controlling pollution.

While praising the increase in patent applications, the study does not discuss the public’s voice in regulatory

processes or the impacts of failures in technologies. Th ese two matters are interrelated because claims made by proponents of new technologies do not always hold up under public scrutiny. Public par-ticipation in a regulatory permit process allows that scrutiny to take place before the permit is granted. Otherwise, the public has no meaningful way to ques-tion and challenge claims regarding a facility’s techno-logical controls. A company may choose to “listen” to such concerns, but the aff ected public has no right to challenge decisions.

While arguing the benefi ts of voluntary programs for regulatory agencies, the authors recognize that the evidence that such programs help “focus” agency enforcement is “not conclusive,” and, in fact, more analysis is needed of the preventive benefi ts of regulation. If a permit requires specifi c odor control technology, for example, and an agency inspector fi nds a failure in that system, the agency can order corrective action without waiting for an off ensive smell to develop and become pervasive in the com-munity. Otherwise, it must document the odor. Th is means waiting for complaints or sending out staff to stand in the community, in various locations and at various hours, sniffi ng. Tracking an intermittent odor plume in a “built environment,” where ground-level air patterns are aff ected by buildings, can be diffi cult. Many resources will be expended, and the community will be plagued by odors until a “case” is established and prosecuted. Preventive enforcement is often more effi cient and eff ective.

Th is analysis by Lim and Prakash eff ectively supports the premise that setting goals, establishing manage-ment tools to achieve them, allowing third-party monitoring, and predicating the prestige of ISO 14000 accreditation on carrying out those commit-ments will spur innovation. Making the argument that enforceable regulatory requirements hinder innovation, however, requires much more extensive fact-fi nding and nuanced analysis. Perhaps most important, any discussion of how to approach pollu-tion control must take into account the potential for technology failure, the need for enforcement, and the rights of the public to escape avoidable exposure to harmful pollution.

Public Administration Review,

Vol. 74, Iss. 2, pp. 244–245. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12205.