Environmental Engineering Reference
In-Depth Information
thus locking users into the standard and retarding
future innovation.
De jure standards are considered formal stan-
dards because they are created by law in legisla-
tion, regulations, or are set in tribunals such as by
court precedents. These are principled standards
imposing mandatory requirements with the force
of command and are created by a legitimate au-
thority. Typical examples include de jure standards
from the U.S. Environmental Protection Agency
(EPA) and the Occupational Safety and Health
Administration (OSHA). Similar programs are
present in most industrialized nations. Occa-
sionally, accredited nongovernmental bodies set
standards that eventually become de jure standards
when government officially recognizes or adopts
them. For example, building codes are developed
by industry but are then frequently adopted by
provincial or local governments to guide building
construction. Building codes have had substantial
environmental impact.
Many pollution and emissions standards
are de jure because de facto, consortia, or VCS
standards might not provide adequate protection,
failing under public policy scrutiny. Consider the
2010 BP Deepwater Horizon oil spill in which the
oil industry itself set many of the standards for
wellhead blowout protection, emergency response
and spill cleanup procedures. Under U.S. admin-
istrative law, that the incident will likely cause to
be adopted by other nations, regulatory agencies
must develop de jure standards internally if VCSs
are impractical, fail to serve the agency's program
needs, are infeasible, would likely be inadequate,
ineffectual, or inefficient, or are inconsistent with
the agency's mission. Thus, government de jure
standards are more appropriate if the enabling
legislation requires regulatory decisions not
solely influenced by direct pressure from the in-
dustry regulated. Under rules of the U.S. Office
of Management and Budget (OMB), regulatory
agencies must exercise standards-setting judgment
independent of regulated entities where the regula-
setting the level of protection; and balancing risk,
cost, and availability of technology in establishing
regulatory standards” (OMB A-119 1998). Thus,
U.S. law would likely prohibit a regulatory agency
from adopting de facto or VCS standard in safety
and environmental protection situations because
the enabling statute would require standards to
be stricter than prevailing industry best practice.
Nevertheless, environmental standards apart from
de jure emissions limits, such as in certification,
metrology, monitoring and environmental man-
agement, are likely valid if arising de facto or
when developed in VCS venues. Consider how
the hydraulic mining innovation became a more
effective version of placer-style individual “pan-
ning for gold” to become the de facto standard for
large-scale gold extraction during the nineteenth
century's California Gold Rush (D.A. Smith 1987).
Eventually, environmentalists discovered that this
method had such a devastating effect downstream
on watercourse users and agricultural interests,
that de jure standards were developed, initially
under court precedent, to minimize these negative
externalities (Woodruff v. N.Bloomfield Gravel
Mining 1884).
Voluntary consensus standards (VCS) can
anticipate compliant products or services (Cargill
1989). VCSs are frequently created ex ante in not-
for-profit, non-governmental venues, sometimes
organized as ad hoc consortia but also as more
enduring voluntary consensus standards bodies
(VCSB). Among the participants in VCS stan-
dardization there may be included: the primary
industry, its upstream suppliers and downstream
users, government regulators, and various national
delegations. The breadth of affected parties argu-
ably makes VCS standardization processes into a
hybrid form combining both de jure and de facto
characteristics. As discussed, below, increasingly,
VCS process rules include at least a minimum of
political participation checks and balances. These
are required in the U.S. and in some international
standardization venues, such as the ISO. However,
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