The New Environmental Governance

Cameron Holley, Neil Gunningham, Clifford Shearing

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781849714105
• eBook ISBN: 9781134075690
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

A bold and profoundly new way of governing environmental problems is palpable around the globe and aims to overcome the limitations of the interventionist state and its market alternative to offer more effective and legitimate solutions to today's most pressing environmental problems. The 'new environmental governance' (NEG) emphasises a host of novel characteristics including participation, collaboration, deliberation, learning and adaptation and 'new' forms of accountability. While these unique features have generated significant praise from legal and governance scholars, there have been very few systematic evaluations of NEG in practice, and it is still unclear whether NEG will in fact 'work', and if so, when and how. This book offers one of the most rigorous research investigations into cutting edge trends in environmental governance to date. Focusing its inquiry around some of the most central, controversial and/or under researched characteristics of NEG, the book offers fresh insights into the conditions under which we can best achieve successful collaboration, effective learning and adaptation, meaningful participatory and deliberative governance and effective forms of accountability. The book synthesizes its findings to identify seven key pillars of 'good' NEG that are central to its success and will provide useful guidance for policymakers and scholars seeking to apply new governance to a wide range of environmental and non-environmental policy contexts. The book also advances our understanding of State governance and will be a valuable reference for scholars, researchers and students working in law and regulation studies - especially in the field of environmental law.

1

Introduction

Thomas Hobbes’ classic text first published in 1651 has, as its frontispiece, an image of a benign giant, a Leviathan, made up of the bodies of people (Hobbes, 1651). He stands over a landscape that he rules on behalf of the people who make up his body. In his left hand he carries a crosier that symbolizes his legitimacy as a ruler. In his right is a sword that symbolizes his ability to overcome resistance to his rule. This is a powerful image of governance, and it is one that has inspired people in the West (or what is now increasingly being called the ‘Global North’) ever since.

For Hobbes, ‘good governance’ is conceived of as rule by a single sovereign who represents ‘the people’ – a ruler who has exclusive jurisdiction over a unified territory. Although this image has never constituted an entirely satisfactory empirical account of the realities of governance – either in Europe or elsewhere – it has provided a powerful way of imagining good governance. As such it has provided inspiration and a benchmark, setting out what governments should strive to realize.

Such was still the case when, in the 1970s, governments, confronted by increasingly visible ecological degradation, and strident public demands for environmental protection, sought to determine their response. By this time, a modern version of the Leviathan – state power through hierarchy – had become dominant in the Western world (for a recent review of the governance literature see Burris et al, 2005, pp30–58). So it seemed natural to Western governments to address environmental degradation, such as air and water pollution, by establishing environmental protection agencies, applying what has come to be known as ‘command and control’ regulation.

This approach, with its Hobbesian resonances, was based on the idea that governments would command through law by establishing a variety of environmental targets expressed in prescriptive standards – for example, vehicle and factory emission standards. Government agencies were then authorized to ‘control’ those whose behaviours were to be modified, by monitoring their compliance and imposing penalties where standards were breached (Gunningham et al, 1998, pp3–7, 343–448).

Command and control, at least in some circumstances, proved to be relatively effective in regulating large industries, and a number of impressive gains were recorded in halting and reducing cases of severe environmental degradation (Cole and Grossman, 1999, pp888 and 893; Durant et al, 2004b, pp644–645). However, as might be expected, command and control approaches have had a number of significant limitations. For example, this adversarial form of governance, characterized by stick-waving government agencies (or in Australia, those with very small twigs), very often encouraged counterproductive resistance from both individuals and businesses. Furthermore, its centralized nature and emphasis on detailed and uniform rules has also been widely criticized as costly, cumbersome and inefficient, because this approach is by definition insensitive to local conditions (Ackerman and Stewart, 1985, pp1335–1336; Stewart, 2001, p61; Lazarus, 2004, pp67–98; Karkkainen, 2006b, p293).

These problems are exacerbated when seeking to manage human activities that have an impact on large-scale and complex environmental systems. These activities typically involve multiple sets of actors who are acting across large scales. Governing these activities requires, it is argued, much more holistic, integrated and at the same time localized ecosystem-level approaches that are inimical to centralized and fragmented command and control mechanisms (Karkkainen, 2002/2003; Freeman and Farber, 2005, pp806–814). As a consequence of these and similar criticisms of command and control approaches, there were increasing calls for alternative governance approaches that are less centralized, more inclusive and less autocratic. In response, environmental governance began to shift away from the state-centred, hierarchical style of traditional regulation toward an array of decentralized approaches.

One of the earliest, and most often touted of these alternatives, was market-based instruments (Freeman and Farber, 2005, pp814–819). From the 1980s onwards, neo-liberal economists, in particular, increasingly entered the public domain, suggesting that Adam Smith’s vision of an ‘invisible hand’ would, if allowed to manifest, lead rational, self-maximizing individuals to promote ‘public interests’ without the need for heavy-handed government intervention (Smith, 1776). Markets, if properly constituted, it was argued, would overcome the limitations of command and control strategies (Gray, 1998, pp25–26). They would do so by integrating widely dispersed capacities located away from political centres so as to improve governance (and environmental) outcomes.

The standard refrain from those working within this governance paradigm was that environment degradation was occurring as a consequence of a failure of markets to value environmental endowments properly (Cutting and Cahoon, 2005, p55; Roma, 2006, p534). As no price was emerging in markets that would put a value on resource scarcity, markets as they were presently constituted were failing to fulfil a fundamental governance function, namely, providing an appropriate rationing of scarce assets. What was needed was the creation of market signals that would place a value on and charge appositely for the use of scarce resources. For example, under a market-based approach, a government might establish the amount of pollution that a particular environment could assimilate and then allocate rights to those emissions – while allowing ‘the market’ to determine the price of these rights (Stavins and Whitehead, 1997; Gunningham and Sinclair, 2002).

A variety of government-supported, market-based instruments subsequently emerged, such as ‘cap and trade’ schemes, along with a variety of subsidies and, to a lesser extent, pollution taxes (Gunningham et al, 1998, pp69–83). Prominent market-based instruments introduced to address point-source pollution included the acid rain, sulphur dioxide trading scheme developed in the USA (Stavins, 1998) and the load-based licensing scheme developed in Australia (New South Wales Environmental Protection Agency, 2001). Economic incentive-based schemes have also been used to address more complex ‘second generation’ issues, such as urban air pollution (Western Australia Department of Environment and Conservation, 2006). Related subsidy and other market approaches, such as land acquisitions and payments, have also been employed, particularly in Europe (Farrier, 1995, pp399–405; Curnow and Fitzgerald, 2006).

Yet, despite some successes, many market-inspired approaches have proved to be less environmentally effective than command and control approaches (Howes et al, 1997, ch 9; Gunningham et al, 1998, pp69–83; Blackman and Harrington, 2000, p32; Freeman and Farber, 2005, pp815–819). Furthermore, market-based instruments tend to operate at the margins of environmental governance – used only to address environmental issues in a limited number of contexts (Farrier and Whelan, 2004). In part, this is because of the difficulty market approaches can face in identifying tradable units (i.e., fungible commodities) when dealing with complex problems. In addition, efficiency benefits are often undermined by a variety of practical and contextual difficulties faced by governments who seek to develop and rely on market mechanisms. Indeed, despite their claims to knowledge mobilization, many market instruments share with command and control a requirement for centralized planning and knowledge, such as setting the right level for a tax, charge or even for capping levels, which can often be difficult for policymakers in the absence of an existing market reference (Sabel et al, 1999, pp2–3; Freeman and Farber, 2005, pp815–819). In summary, market-based approaches, like command and control regulation, suffer from limitations and provide only partial answers to the range of environmental challenges facing society, particularly those of a complex nature.

Recognizing this, environmental policymakers, during the 1990s, began to search for governance instruments that overcame some of the limitations of earlier approaches and that would be better suited to contemporary challenges. Some have experimented with business-led voluntary approaches (Segerson and Dawson, 2001) or education and informational strategies, such as product labelling and corporate reporting (Weil et al, 2006, p156). While the former has achieved limited success, it is unlikely to make a substantial contribution as a stand-alone approach, given its demonstrated failure to achieve acceptable levels of industry-wide compliance, particularly where the gap between the private interests of business (not least, making a profit) and the public interest in environmental protection is substantial (Gunningham and Sinclair, 2002, pp145–148 and 155; Freeman and Farber, 2005, pp831–832). Information-based strategies, too, have limitations, operating successfully mainly to the extent that they are complements of traditional regulation (which facilitates the collection and dissemination of accurate information) (Stewart, 2001, pp141–143), rather than being of themselves a stand-alone approach (as with the Toxic Release Inventory in the USA) (Fung and O’Rourke, 2000).

More recently, and particularly in the last decade, policymakers and theorists have increasingly focused on a very different form of governance, involving collaboration between stakeholders to an extent that would have been unimaginable some years before. Commonly referred to as the ‘new environmental governance’ (hereafter NEG) this enterprise involves collaboration between a diversity of private, public and non-government stakeholders who, acting together towards commonly agreed (or mutually negotiated) goals, hope to achieve far more collectively, than individually. It relies heavily upon participatory dialogue and deliberation, devolved and decentralized decision-making, flexibility (rather than uniformity), inclusiveness, knowledge generation and processes of learning, transparency and institutionalized consensus-building practices (see, generally, De Burca and Scott, 2006; Trubek and Trubek, 2006/2007).

We might equally describe this initiative as one of ‘polycentric governance’ (McGinnis, 1999), with decision-making involving the totality of interactions between public and private actors, and the state no longer necessarily playing the central role in decision-making. For example, a variety of non-state actors may assume administrative, regulatory, managerial and mediating functions previously undertaken by the state. As such, this polycentric vision conceives of many centres of decision-making and action that are formally independent of each other, but that can function either independently, or constitute an interdependent system of relations (Ostrom et al, 1961; Ostrom, 2010, p643).

Certainly, the shift to the NEG has to some extent been shaped by unique, country/political influences (Holzinger et al, 2006, p409; De Burca, 2010, pp227–232), but generally speaking it has come about because of the perceived capacity of NEG to deliver effectiveness and/or legitimacy in circumstances where traditional approaches cannot. For example, prescriptive regulatory standards – and even caps/taxes in some market-based instruments – depend upon a degree of centralized knowledge (e.g., in order to set suitable standards) that is often not available. In contrast, the sort of collaborative, participatory and deliberative approaches contemplated by NEG are said to lead to problem solving that is inclusive of local circumstances and able to capitalize on the unique local and other knowledges and capacities of multiple public and private actors. Direct involvement of these actors in deliberative styles of governance can also foster stakeholder ownership and buy-in and can give greater voice to marginalized interests (as contrasted to an exclusive reliance on science in prescriptive regulation or on price and competition in markets).

Processes, such as learning and adaptation, meanwhile, are thought to ensure that NEG copes better with the dynamism, uncertainty and complexity of environmental problems than either traditional prescriptive regulation (which can easily ossify, freezing standards at a particular point in time) or many market-based approaches (where significant post-hoc programme corrections to pollution levels and permits set from the centre become very difficult without undermining the security of ownership rights on which the market itself depends) (Orts, 1995, p1238; Sabel et al, 1999, p3; Durant et al, 2004a, p4; Lobel, 2004b, p502). Collaborative approaches may also help to leverage government expenditure by mobilizing the resources of others in implementation, monitoring and enforcement roles.

Much of the focus in reshaping governance, particularly in relation to challenges involving global public goods and major free-rider problems, has been on designing and implementing new systems of global governance (Stiglitz, 2002; Castells, 2008; Okereke et al, 2009). In the absence of world government, this necessarily involves developing strategies and governance mechanisms to encourage cooperation between nation states with regard to protecting and sustaining the services that the Earth provides, not least, a stable climate. At international and global levels, this new approach is coming to be termed ‘Earth systems governance’ (Biermann, 2008).

But there has also been increasing interest in environmental governance initiatives at regional and local scales, and in integrating governance between different scales (for reviews, see Burris et al, 2008, and Hooghe and Marks, 2001). This interest in multi-scale and multi-level environmental governance (Rauschmayer et al, 2009) has directed attention to experimentation that has been taking place in response to a host of threats, which human action has caused primarily at the regional or local rather than the global level: challenges such as biodiversity, natural resource management and the depletion of fisheries. Increasingly, the response to such challenges has been through the pursuit of cooperative and collaborative governance arrangements, directed at mitigating environmental degradation and improving natural resource management at these lower levels and at integrating initiatives at different levels.

It is within this agenda, and with an interest in promoting collaborative and multi-scale environmental governance that this book is situated. Its particular focus is on how to imagine and promote effective collaborative governance mechanisms at various scales, and whether, to what extent, and in what ways to blend polycentric elements with state-centric governance understandings and practices so as to better govern human impacts on the environment.

This last question is an important one. The move to collaborative governance and polycentricity has not resulted in the unicentric vision of the Leviathan being relinquished, but rather in the development of approaches that seek to relate these two ideals of governance in a variety of ways. The mainstream of NEG developments has taken place, not divorced from, but rather within the shadow of state governance (see Galanter, 1981, pp1–47 for an early discussion of hybridity and the shadow of state law), and has emerged as states have sought to find better ways of responding to governance challenges and thus to govern better in terms of efficiency, effectiveness and legitimacy (Loader, 2000). This Hobbesian and Westphalian shadow has given these explorations a particular colour, as those developing governance innovations have sought to reconcile various state-centric ideals, institutional arrangements, and ways of governing, with more polycentric ones (see Osborne and Gaebler, 1993 for an influential discussion on neo-liberal thinking). We return to the implications of hybridity between different forms of governance, and the specific relationship between hierarchy and collaborative governance, in the final chapter.

In the remainder of this chapter we frame our analysis by outlining the context, focus and aims of the study.

Context – What is New Governance?

In this book we understand governance very simply to mean the intentional shaping of the flow of events so as to realize desired public goods (Parker and Braithwaite, 2003, p119). This is distinct from the concept of ‘government’, which we define as a political authority/state auspice (Bayley and Shearing, 2001). Our particular concern is with an emerging and innovative form of governance being developed under state auspices, which seeks to shape the flow of human events so as to facilitate the more effective and legitimate provision of ecological services (for a general discussion in the context of debates over democracy see Dryzek, 2009; for an even broader philosophical discussion see Latour, 2004). Hence, what in the literature has come to be termed ‘the new governance’ or ‘the new environmental governance’ (Karkkainen, 2004a; Cohen, 2008; Head, 2009; Lockwood et al, 2010; NeJaime, 2009, pp330–337; De Burca, 2010). This literature argues that what is ‘new’ about this governance is a shift in emphasis away from traditional approaches that have typically involved representative democracy, singular authority, centralized and hierarchical commands, rigidity, and uniform regulatory rules. In contrast, the new governance involves a series of innovative experiments intended to develop forms of public governance that are ‘less rigid, less prescriptive, less committed to uniform outcomes, and less hierarchical in nature’ (De Burca and Scott, 2006, p2; see also Karkkainen, 2004a, p472; Walker, 2006, pp21–22).

These governance experiments are often depicted in terms of the key characteristics that they exhibit: characteristics that are thought of as remedying the perceived pathologies in conventional forms of environmental regulation (Karkkainen, 2004a, pp473–474 and 496; Lobel, 2004a, pp371–404; De Burca and Scott, 2006, p3). Although there is little agreement on a single set of characteristics that offer a definitive ‘new governance model’, some of the most common characteristics identified by researchers internationally are forms of governance that are open-textured, participatory, collaborative, deliberative, flexible, integrative, multi-level, adaptive (Karkkainen, 2004a, pp473–474 and 485–489; Lobel, 2004b, pp502–503; Walker, 2006, p22; De Burca, 2010, p235; Trubek and Trubek, 2010) and (at least according to some NEG theories) involve ‘new’ forms and mechanisms of accountability (Freeman, 1997, p30; Holley, 2010).

Commentators on NEG agree that not all of these characteristics need to be present for a particular programme to fall under this sign, and indeed, as a matter of fact, there are very few, if any, examples that do so. However, the more characteristics that are present, the stronger the argument that the programme can be classified as ‘new governance’ (De Burca and Scott, 2006, p3; Gunningham, 2009, p146).

It is, of course, easy to overstate the novelty of these characteristics identified in NEG. Forms of multiparty collaboration, for example, have had a long history (Head, 1997). Like most claims to ‘newness’ the existence of NEG is a matter of degree and emphasis (McDonald, 2004, p221). What is clear, however, is that when new governance programmes are compared with established approaches, NEG represents at the very least a ‘new’ trend in environmental governance (De Burca and Scott, 2006, pp1–2).

For completeness, we should note that while subsequent chapters of this book will interrogate the new governance as it plays out in the environmental arena, the new governance has many dimensions, spans many spheres of social policy and is being applied across a variety of governance domains. Take, for example, the development of collaborative govern...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Tables and Boxes
• List of Government Statutes and Agreements
• List of Abbreviations
• Preface
• 1. Introduction
• 2. The Programmes – Aspiring to New Environmental Governance
• 3. Collaboration
• 4. Participatory and Deliberative
• 5. Accountability and Learning
• 6. Sustaining Collaboration
• 7. Conclusion
• Appendix: Methods
• References
• Index