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Reconfiguring Environmental Regulation: The Future Policy Agenda

Reconfiguring Environmental Regulation: The Future Policy Agenda. Neil Gunningham Regulatory Institutions Network Australian National University. Reconfiguring Regulation. Overview of the regulatory landscape Frameworks for understanding regulatory reconfiguration

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Reconfiguring Environmental Regulation: The Future Policy Agenda

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  1. Reconfiguring Environmental Regulation: The Future Policy Agenda Neil Gunningham Regulatory Institutions Network Australian National University

  2. Reconfiguring Regulation • Overview of the regulatory landscape • Frameworks for understanding regulatory reconfiguration • Role of ‘Smart Regulation” and regulatory pluralism • Policy Implications

  3. The shifting regulatory landscape • First generation problems reduced but second generation far more challenging • The contracting state • Increasing power and sophistication of NGOs • Increasing interest of commercial third parties in environmental issues • The changing roles of business

  4. Diverse ‘second generation’ instruments emerge • Reinventing Environmental Regulation (USA) • Negotiated Agreements (Western Europe) • Informational Regulation (eg Indonesia) • Industry self-regulation and self-management

  5. Reconfiguring regulation: four frameworks • Reflexive and meta-regulation • Civil regulation and participatory governance • Regulatory pluralism • Explaining corporate environmental behavior: the license perspective

  6. The role of Meta Regulation • Recognises the limitations of the state to deal with complex environmental issues • Focus on procedures rather than prescribing behaviour • State shifts to meta-regulation and meta-risk management - Government monitoring of self-monitoring, or the regulation of self-regulation - To monitor and seek to re-make the risk management systems of regulatees • Enforcement means refusing accreditation

  7. Continual Improvement Commitment & Policy Review and Improvement Planning Implementation Measurement & Evaluation Environmental Management System Model

  8. Civil regulation and participatory governance • organisations of civil society set standards for business behaviour • Mechanisms include direct action, consumer boycotts, certification programs, partnerships • State role to empower civil society

  9. Regulatory Pluralism and Smart Regulation: The issue • Market failure/government failure • A diversity of “next generation” instruments, but how do we select between them? • One size does not fit all: eg size and sector matter

  10. Smart Regulation • Solutions require: • broader range of strategies, • tailored to broader range of motivations, • harnessing broader range of social actors • Recognises roles of ISO, supply-chain pressure, commercial institutions,financial markets, peer and NGO pressure • ‘steering not rowing”: harnessing capacities of markets,civil society and other institutions

  11. 1. Design comprehensive policy mixes - build on strengths and compensate for weaknesses of individual instruments - build on advantages of engaging broader range of parties But note - practical limits/regulatory overload - limited public resources - not all combinations are complementary

  12. Optimal Mixes Involve • matching tools with particular problem • with the parties best capable of implementing them • with each other

  13. Examples • Environmental Improvement Plans • Beyond Compliance: Two Track Regulation • Institute of Nuclear Power Operations • Car Body Shops • Regulating Horticulture

  14. Number of Organisations Fast Follower Team Player Compliance Seeker Polluter Key Player Leader

  15. Higher Courts Incapacitation Fines and other punitive action Breach of Trust Two Track Partnership

  16. H Coercion Third Parties L Government Business

  17. The ‘license model’ • Views businesses as constrained by a multi-faceted ‘licence to operate’ • Corporate behaviour explained by interactions between regulatory, social and economic licences - Efficiency and effectiveness of technology based command and control • The importance of Social Licence: underpinned by Informational regulation, and empowering NGOs and communities • Management style as the perceptual filter through which management interprets its license conditions

  18. Different frameworks invoke different policy prescriptions • Strengthen internal reflection and self-control (reflexive regulation) • Introduce a plethora of instruments that and allow the state to steer not row (regulatory pluralism) • Empower the institutions of civil society to make corporations more accountable (civil regulation) • Exploit points of leverage provided by different strands of firms licence to operate (licence model)

  19. Different frameworks are appropriate to different contexts • Large reputation sensitive companies vs SMEs • Integrated catchment management • Major Hazard Facilities • Diffuse source pollution • Pulp mills

  20. The future? • The contracting state – contracts vs criminal law (Sust Covenants) • Corporate shaming (informational regulation) • Economic instruments and market signals (Load Based Licenses) • Processes and systems – ‘locking in continuous improvement’ (Meta Regulation, EIPs , Regulatory Flexibility) • Harnessing second and third parties as surrogate enforcers • The role of Government- steering not rowing? • Traditional enforcement

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