The Inter-Governmental Relationship on Environmental Protection in Japan: An Analysis of the Pollution Countermeasures Agreement

Abstract

Local governments have developed and utilized the Pollution Countermeasures Agreement (PCA) in order to compensate for their lack of formal legal authority. By concluding a PCA with a local government, a company causing environmental pollution promises to take some measures to prevent the environmental pollution. Compared with regulation based on formal legal rules, the PCA has its own merits such as making it possible to take flexible countermeasures which are well-tailored for a particular company on case-by-case basis. But, in most cases, the agreement between a local government and a regulated company is in fact a “quasi-agreement” in the sense that the regulated company is forced to agree with a local government for fear of the collateral punishment by the local government using legal authorities in policy areas other than environmental protection or the pressure of local public opinion. Therefore, from the conventional legal point of view, the PCA is a questionable policy tool. Nevertheless, many local governments have used this questionable tool, because they have thought that the law is not sacred and inviolable norms but tools which may or may not be useful for the attainment of particular policy goals. According to this instrumental legal consciousness, it is legitimate for a local government to utilize legally questionable policy tools if legal measures are not suitable for particular urgent problems. Local policy making and implementation based on this instrumental legal consciousness shake inter-governmental relationship. The conventional vertical relationship in which the central government had strictly controlled local governments has been gradually replaced by horizontal relationship in which each local government creates its own normative order even if it may contradict with national legal order.