Reconfiguring Environmental Regulation: The Future Policy Agenda

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 • Policy Implications

3. The shifting regulatory landscape • 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 US TRI) • Industry self-regulation and self-management

5. Reconfiguring regulation: four frameworks • Reflexive and meta-regulation • Civil regulation and participatory governance • Regulatory pluralism/ Smart Regulation • 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. Regulatory Pluralism/Smart Regulation • 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

9. 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

10. Optimal Mixes Involve • - build on strengths and compensate for weaknesses of individual instruments • - build on advantages of engaging broader range of parties • matching tools with particular problem • with the parties best capable of implementing them • with each other

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

12. 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

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

14. 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