Occasional Paper 2010/3

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Bringing the 'R' word back: regulation, environment protection and NRM

Environmental regulation has had a chequered path since the birth of the US Environmental Protection Agency in 1970, the enactment of the Victorian Environment Protection Act in the same year, and the launch of the first European environmental policy in 1972. Today, over two decades of neo-liberalism has ensured that regulation is no longer centre stage and that markets, voluntarism, and other ‘light handed’ policy initiatives play a greater role in curbing environmental degradation.

Whether the failings of free markets and ‘soft’ policy instruments exposed by the financial crisis will result in a broader rethinking about the appropriate roles of markets, regulation and governance remains to be seen. Will we, for example, see a new era of ‘social capitalism’ involving substantial government intervention and regulation, as Prime Minister Rudd has advocated?

This ASSA roundtable focused on two important areas of environment protection: the ‘brown’ issue of pollution control; and the ‘green’ issue of natural resource management (NRM). It brought together policy practitioners, academic social scientists and others directly involved in the regulatory process and asked, amongst other questions:

  • Is regulation simply one instrument amongst others in the environmental regulator’s toolkit or should it play a more central role than it has in recent years?
  • What sorts of instruments and policy mixes are likely to work best in terms of effectiveness, efficiency, equity and political acceptability?
  • To what extent should the state steer rather than row, and harness the capacities of second and third parties rather than regulating directly?
  • What is the role of new collaborative forms of governance facilitating local communities and other stakeholders to engage in ‘on the ground’ decision-making subject to central government oversight?
  • Are the changes introduced by the present Federal Government, with regard to collaborative NRM, having a positive or negative impact?

The roundtable particularly examined the roles of environmental policy, regulation and governance. It sought a better understanding of what has worked and why, and to identify which particular architectures and policy mixes are most suited to deal with particular types of environmental problems.

The basic arguments explored in the roundtable are set out in this paper by the authors (which draws on a much longer and more fully referenced article by Neil Gunningham to which readers are referred1). The selected comments of participants are provided at the end of each section. This format preserves coherence of argument and approach, while ensuring that the invaluable contribution of each participant is fully represented.

As is customary with ASSA events, the roundtable was conducted in accordance with Chatham House rules and so individual contributions are not attributed. Nevertheless it was the rich diversity of insights and wisdom brought to the event by each participant that made it both distinctive and worthwhile. The participants are listed on page 25. We thank them all and the anonymous reviewers of this paper.

About the Authors

Professor Neil Gunningham has degrees in law and criminology from Sheffield University, UK, is a Barrister and Solicitor (ACT) and holds a PhD from ANU. Initially trained in law, his subsequent post-graduate work was in interdisciplinary social science, and for the last fifteen years he has applied that training in the areas of safety, health and environment, with a focus on regulation and governance. He joined RegNet in January 2002 and is co-director of the National Research Centre for Occupational Health and Safety Regulation. Previously he was Foundation Director of the Australian Centre for Environmental Law at ANU, and Visiting and Senior Fulbright Scholar at the Center for the Study of Law and Society, University of California, Berkeley.

Dr Cameron Holley is a legal scholar and social scientist currently employed as a Postdoctoral Research Associate at the Regulatory Institutions Network (RegNet) of the ANU. His research interests cover a wide range in the field of environmental law and governance, including regulatory theory, accountability and democratic participation in governance regimes, fostering and sustaining collaborative approaches to managing the environment, learning and adaptation in environmental and natural resources law, and governance trends in point source pollution regulation and natural resource management.

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