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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 l.jpg

Reconfiguring Environmental Regulation: The Future Policy Agenda

Neil Gunningham

Regulatory Institutions Network

Australian National University

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Reconfiguring Regulation Agenda

  • Overview of the regulatory landscape

  • Frameworks for understanding regulatory reconfiguration

  • Role of ‘Smart Regulation” and regulatory pluralism

  • Policy Implications

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The shifting regulatory landscape Agenda

  • 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

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Diverse ‘second generation’ instruments emerge Agenda

  • Reinventing Environmental Regulation (USA)

  • Negotiated Agreements (Western Europe)

  • Informational Regulation (eg Indonesia)

  • Industry self-regulation and self-management

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Reconfiguring regulation: four frameworks Agenda

  • Reflexive and meta-regulation

  • Civil regulation and participatory governance

  • Regulatory pluralism

  • Explaining corporate environmental behavior: the license perspective

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The role of Meta Regulation Agenda

  • 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

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Continual Improvement Agenda

Commitment &


Review and




Measurement &


Environmental Management System Model

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Civil regulation and participatory governance Agenda

  • organisations of civil society set standards for business behaviour

  • Mechanisms include direct action, consumer boycotts, certification programs, partnerships

  • State role to empower civil society

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Regulatory Pluralism and Smart Regulation: The issue Agenda

  • 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

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Smart Regulation Agenda

  • 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

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1. Design comprehensive policy mixes Agenda

- 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

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Optimal Mixes Involve Agenda

  • matching tools with particular problem

  • with the parties best capable of implementing them

  • with each other

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Examples Agenda

  • Environmental Improvement Plans

  • Beyond Compliance: Two Track Regulation

  • Institute of Nuclear Power Operations

  • Car Body Shops

  • Regulating Horticulture

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Number of Agenda


Fast Follower

Team Player







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Higher Courts Agenda


Fines and other

punitive action

Breach of Trust

Two Track


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H Agenda


Third Parties




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The ‘license model’ Agenda

  • 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

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Different frameworks invoke different policy prescriptions Agenda

  • 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)

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Different frameworks are appropriate to different contexts Agenda

  • Large reputation sensitive companies vs SMEs

  • Integrated catchment management

  • Major Hazard Facilities

  • Diffuse source pollution

  • Pulp mills

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The future? Agenda

  • 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