Industrial pollution is often seen as a problem that can be solved with new regulations, stricter standards or better enforcement. However, historical research shows that pollution is rarely the result of a single wrong decision or one moment of failure. In their recent publication The Price of Prosperity? A Historical Account of Regulating Industrial Pollution in the Netherlands , Lieselot Bisschop, Professor of Public and Private Interests, and Karin van Wingerde, Professor of Corporate Crime and Governance, both affiliated with Erasmus School of Law, show that industrial pollution in the Netherlands is the result of structural long-term interactions between government and industry. In their comparative case study on Hoogovens/Tata Steel and DuPont/Chemours, they analyse how pollution was able to develop over decades, persist and ultimately be considered "normal".
According to Bisschop and Van Wingerde, industrial pollution cannot be viewed as a series of isolated incidents, but rather as a slow and cumulative process. The researchers explain that industrial installations often active for decades, continuously emitting harmful substances during that period. However, the consequences are not always immediately visible, but accumulate in the air, water and soil and might only manifest themselves much later in the form of damage to health and the environment. The researchers emphasise that this slow nature makes it difficult to intervene in a timely and effective manner: "Pollution often takes place within the limits of a permit. As a result, there is no clear breaking point at which action can be taken. What was once considered acceptable becomes the norm for future policy. As a result, old decisions continue to drive the regulatory system and real change becomes increasingly difficult."
Tata Steel and Chemours show similar patterns
To illustrate industrial pollution, Bisschop and Van Wingerde analyse two Dutch industries that have been the subject of social and political debate for decades. Tata Steel, founded as Hoogovens, has been operating in IJmuiden since 1918 and has grown into one of the largest industrial complexes in Europe. Early on, there were concerns about dust, smoke and health risks for local residents. Nevertheless, the company was given room to expand, partly because of its economic importance and employment opportunities in the region.
The researchers see a similar pattern at Chemours, formerly DuPont, in Dordrecht. A site where fluorochemicals have been produced since the 1960s. Although concerns about the harmfulness of these substances arose early on within the American parent company, these signals reached the government only to a limited extent. Regulation lagged behind for a long time and intervention only followed much later, especially when social and political pressure increased. Both cases show a long-standing intertwining of government and industry.
Five recurring patterns in regulation
Based on their historical analysis, Bisschop and Van Wingerde identify five recurring patterns that together explain why industrial pollution has proven to be so persistent, and continue to hamper environmental monitoring to this day. The first pattern is knowledge asymmetry. Governments were heavily dependent on information provided by companies themselves for their supervision. Thanks to their technical expertise, companies had an information advantage, which meant that risks were not always identified fully or timely. Related to this, the researchers describe regulatory co-design: a form of collaboration in which companies are not only the subject of regulation, but also actively contribute to timelines and conditions for permits. "In the early years of environmental legislation, when rules were still being developed, this collaboration was seen as pragmatic and necessary. In the long term, however, it reinforced the government’s dependence on industrial expertise," according to Bisschop and Van Wingerde.
In the 1980s, this was reinforced by economic dependence. In times of economic downturn and high unemployment, industrial interests often took precedence over environmental and health concerns. Governments were reluctant to enforce regulations for fear of joband investment losses, and even actively facilitated the expansion of industry. The following decades were characterised by fragmentation in supervision and enforcement: although supervision improved, the responsibility and expertise of the various authorities were fragmented across sub-aspects, such as air, water or soil, without an integrated picture of the total environmental damage and risks.
In recent decades, we have entered a period of juridification, a situation in which conflicts are increasingly being taken into legal proceedings, often leading to consultations getting stuck and delays in decision-making on solutions. Together, these patterns create a persistent status quo.
"Lawful but awful": pollution within the law
In their research, Bisschop and Van Wingerde show that in both cases it takes years - sometimes decades - before the seriousness of the environmentaland health damage and risks actually leads to changes in policy and regulations. In this context, they refer to "lawful but awful": activities are permitted by licences and regulations, but nevertheless cause serious damage. The researchers explain that regulation is not only about enforcement, but also about the standards and values laid down in permits. When existing emissions are taken as the starting point for new rules, this creates a path that is difficult to deviate from. This was reinforced by the persistent information asymmetry between industry and regulators and the intertwining of legal and illegal harmful business activities.
Leading to the emergence of so-called permission regimes: administrative and legal structures that normalise and protect pollution. "This is not necessarily intentional, because sometimes the regulator is misled. But there are examples where the government, like industry, takes a more active role in maintaining the status quo. This explains why fundamental changes often only take place after years of social pressure and legal battles," according to Bisschop and Van Wingerde.
A new perspective is needed for change
In their conclusion, Bisschop and Van Wingerde argue for greater historical awareness in the regulation of the industry. According to the researchers, policymakers and regulators need to better understand how current systems have been shaped by past choices. Without that insight, reforms will remain limited and pollution will continue to be incorporated into existing structures. In addition, the researchers emphasise the importance of transparent considerations between economic interests and interests of health and the living environment: "Effective regulation requires not only new rules, but also a review of the underlying administrative and legal logic. This prevents industrial pollution from gradually being seen as "normal", and makes it increasingly difficult to seek accountability and implement reforms."
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