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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

Reconfiguring Environmental Regulation: The Future Policy Agenda

Neil Gunningham

Regulatory Institutions Network

Australian National University

reconfiguring regulation
Reconfiguring Regulation
  • Overview of the regulatory landscape
  • Frameworks for understanding regulatory reconfiguration
  • Role of ‘Smart Regulation” and regulatory pluralism
  • Policy Implications
the shifting regulatory landscape
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
diverse second generation instruments emerge
Diverse ‘second generation’ instruments emerge
  • Reinventing Environmental Regulation (USA)
  • Negotiated Agreements (Western Europe)
  • Informational Regulation (eg Indonesia)
  • Industry self-regulation and self-management
reconfiguring regulation four frameworks
Reconfiguring regulation: four frameworks
  • Reflexive and meta-regulation
  • Civil regulation and participatory governance
  • Regulatory pluralism
  • Explaining corporate environmental behavior: the license perspective
the role of meta regulation
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

Continual Improvement

Commitment &


Review and




Measurement &


Environmental Management System Model

civil regulation and participatory governance
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
regulatory pluralism and smart regulation the issue
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
smart regulation
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
1 design comprehensive policy mixes

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

optimal mixes involve
Optimal Mixes Involve
  • matching tools with particular problem
  • with the parties best capable of implementing them
  • with each other
  • Environmental Improvement Plans
  • Beyond Compliance: Two Track Regulation
  • Institute of Nuclear Power Operations
  • Car Body Shops
  • Regulating Horticulture

Number of


Fast Follower

Team Player








Higher Courts


Fines and other

punitive action

Breach of Trust

Two Track





Third Parties




the license model
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
different frameworks invoke different policy prescriptions
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)
different frameworks are appropriate to different contexts
Different frameworks are appropriate to different contexts
  • Large reputation sensitive companies vs SMEs
  • Integrated catchment management
  • Major Hazard Facilities
  • Diffuse source pollution
  • Pulp mills
the future
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