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New Environmental Govenance

Environmental Crime Seminar
by

Cameron Holley

on 9 September 2017

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Transcript of New Environmental Govenance

photo credit Nasa / Goddard Space Flight Center / Reto Stöckli
The 'New'
Take Home
New Environmental Governance (NEG)
a broad family of innovative modes of public governance defined by a set of principles

Development of NEG
1970s
...and Crime
more than
NRM
Conclusion
toolkit

not a panacea

What is it?
Why is it interesting ?
How does it relate to crime?
When does it work?
Environmental
Governance
1 New Environmental Governance:
'steering’ state, collaboration, participation, deliberation, adaptive and horizontal accountability, 'softer' forms of social control

2 Preventing Environmental Wrongdoing:
regulators increasingly complementing traditional enforcement with new environmental governance approaches

3 Benefits:
enhance environmental performance of potential offenders, reduce costs of enforcement and foster more collaborative/strategic approach to environmental harm

4 Not a substitute/panacea:
success often requires traditional enforcement in the background, sufficient funding, careful design, and consideration of regulatory culture

collaborative
participatory
deliberative
adaptive
‘horizontally’ accountable
brings multiple regulators, private and community actors together to collaborate
not bound by traditional jurisdictional boundaries

creates and governs through new jurisdictions suited to the environmental harm being addressed

government maintains overarching steering role through a framework of general procedural and performance standards
(De Burca 2010; Trubek & Trubek 2010; Karkkainen, 2004; Stewart and Jones, 2003)
power is diffuse – authority is devolved to mix of stakeholders (decisions and implementation)
top-down, command and control, government activity
many successes

BUT

high cost and lack of sufficient knowledge
limited to end of pipe pollution

crosses traditional jurisdictional boundaries
domestic and international

involves multiple stakeholders ( ‘offenders’ and ‘guardians’) (Ayling 2013; Kettl, 2002)


characteristic of ‘neo-liberal’ ideas of governing
eg enrolling multiple knowledge and capacities,

governing at a distance

distinct from
top down government delivered approaches
market/voluntary approaches

(Beeson and Firth, 1998; Braithwaite 2008)
A different way of thinking about and creating arrangements for governing environmental issues than what has gone before
Water Framework Directive in the European Union
Partnership for the Development of Environmental Law in Africa
Standards/certification Marine Stewardship Council and Forest Steward Ship Council
NGOs ‘governing’ through expertise, enforcement, treaties/multilateral environmental agreements
Inter-american tropical tuna commission
Great Lakes in USA/Canada
Chesapeake Bay & Habitat Conservation Plans, USA
Regional water/natural resource management strategies in Australia/New Zealand
Global (environmental) governance and earth system governance

Polycentric governance (Ostrom 2010)
Nodal (Burris, Drahos and Shearing 2005)
New regulatory state, regulatory capitalism (Braithwaite 2008)

Networks
AELERT in Australia
INTERPOL’s National Environmental Security Task Force

(Castells, 2008; Biermann, 2008; Biermann and Pattberg 2008)
(Slaughter 2004; Shepston Overly 2010; Pink 2011; White 2011)
(Trubek & Trubek 2007; Sabel & Zeitlin 2008)
(Kimana 2009)
(Abbott & Snidal 2009; Overdevest & Zeitlin 2012; Schulz 2013 )
(Duffy 2013; Kravchenko 2011)
(de Burca et al 2013)
(Karkkainen 2006)
(Gunningham 2009)
(Wiersema 2008; Orts & Coglianese 2008)
Examples
Theory
other lines of defence/prevention
family, school, church, neighbourhood, ‘environmental’ design


more than the detection, fines/prosecution, and punishment under the law

still important, but…

Control of environmental harm/crime
certainty of punishment?
under resourced regulators
difficult (weak monitoring, crosses borders, multiple regulators, evidence barriers)
culture (laggards), well resourced
Challenges of environmental enforcement/prosecution
the ‘big picture’—the environmental outcomes’
harness non-government institutions and other forms of social control to contribute to preventing offences and enhancing environmental performance
specialised management plans
emphasis on education
the use of economic tools
creation of partnerships with sister agencies, community groups, industry and NGOs
Whole of society responses, partnership at all levels
In many cases, NEG has arisen as a result of environmental crimes and dissatisfaction with outcomes from enforcement

noise, odour, volatile organic compounds, slow court battles, repeated breaches
major chemical spills, discharges from transport, industry , diffuse pollution
local knowledge vital to managing ‘unseen’ harms (enhance monitoring)
resources (reduce costs to enforcement agencies)
forms of social control (peer pressure, social licence)
influence social context and remote causes of crime (building understanding/trust/social capital)
increase buy-in and ownership (reduce conflict, enhance compliance )
(Ayling 2013; Graboksy and Grant 2010; Karkkainen 2001)
Benefits
ASM
Federal (and State) investment > $7billion
regional targets, national priorities, planning and implementation across 56 regions

framework of national objectives and accountability controls (e.g. pollution of reef, biodiversity and coastal environments)

Regional community based not for profit organisations (some regions 100 000s km2)
Federal, state and local regulators

legislative regimes (vegetation management; water quality, world heritage)


bodies formed and sustained, plans developed, outputs, increased understanding/awareness of NRM and limited environmental outcomes









Why?

operational funding/in-kind support (education programs)
economic incentives


‘When you talk to farmers now the difference in attitude compared with say 10 years ago where you had the cane industry in total denial of any environmental impact and now it’s just completely the opposite where they want to be part of the solution. So I think that’s probably our main achievement’
Some success

No incentive to cooperate and share power







Conflicts between regulators and agencies

Limited Reduction in Harms
“[the federal government] think they’ve so much money to run this thing that the state will click and dance. Well it started to click and dance and then it decided well no, get nicked …there’s not enough money…so you had a failed system to start off with”.
“[its a] disintegrated government system....[its] a tragedy because…the whole of government solidarity sort of fell apart”


“these groups are made up of well meaning amateurs who have replaced the local tennis club with this regional group…so the state government is very equivocal about, NRM bodies, I don’t know that they want them really”




“the tension lies in this issue of statutory delivery tools that government has their hands on and the outcome that the community through the regional bodies want to achieve...the partnership and the alliance between regions and legislation, well they haven’t achieved it yet”

Gap
Common characteristics:
groups of water users form a legal entity
allocated a collective water right
objectives for water quantity/quality
management system
monitoring and reporting of performance
telemetry/real time data/audits
regulatory safety net

Local Government Act 2002
Resource Management Act 1991

enhance compliance, reduce monitoring/enforcement costs and encourage best practice/continuous improvement

Enhance stake (reason to deter theft)


Economic benefits for farmers






Improved buy-in stewardship



“its shifting minds away from complying with licences or consents to encouraging ownership of the water, so its no longer the government’s water but its our water, our group owns it and if an individual takes water he is taking our water”
we can smooth out the bumps by pooling our water…letting croppers pump extra around Christmas and dairy farmers extra around winter, you know, getting that bit extra when they really need it”
Improves enforcement/compliance
Incentives to engage and comply
“every member can go in and see what their neighbours are doing and if they go over their entitlements we get very angry...its absolute transparency. The system takes away the risk of abuse”

“if we [the regulator] had gone and done the work of monitoring it would have cost a 1000 hours of our time. Now with the collective providing the data via telemetry it might only cost 50 hours”

"we wanted to stop compliance officers coming in and trying to make an example of us"

“the collective don’t see themselves as the policeman, but you’ll get spanked a few times by your peers and if that doesn’t work then the regulator takes over"
Up front costs for farmers

Wider applicability
farms lack skills/capacity

“ASM works best where people want to be in it and they see a benefit. It’s a waste of time as a regulator trying to get people involved if they don’t give a stuff”

Legitimacy with wider stakeholders (environmental NGOs)

“They see it as putting the fox in charge of the hen house”

Risk of capture (regulator too cozy with groups)

Challenges

can minimise some expenditures
but investment is need
collaboration (transaction costs, gaps in engagement)
training

Successful NEG requires investment (RNRM, ASM)
Carefully designed incentives are crucial to the success of NEG

governments
polluters act like free riders
threat of penalties under traditional regulatory regimes or funding (Ayres & Braithwaite, 1992; Karkkainen, 2003)
hybridity


Design new implementation mechanisms tailored to encouraging NEG

demonstrating effectiveness

specifically legislate that regulators are to collaborate

legislative guidance (e.g. what should be monitored, who should participate, what targets should be set)

Regulatory culture act as a brake on achieving effective NEG
Audited Self Management
Under what conditions can we achieve good NEG?

effective collaboration (vital to cross border/jurisdictional harms)
relationship with traditional enforcement

Methods
8 different NEG examples (regualtors' programs)
Size, scale, issue, design, age, policy context

160+ semi structured interviews – (federal, state, local regulators, citizens, NGOs, potential offenders)
Some questions
Significant praise but still many questions (Head 2009; Orts & Alexander 2010; Paton et al 2004; Lane et al 2009)

Confined to a few institutional examples (limiting generalizability)

Transition is far from complete and takes many different forms (Solomon 2013; de Burca et al 2013 )

Research agenda is still evolving (de Burca et al 2013; Schulz 2013)

There is more that needs to be done to work through the nature, role and significance of the NEG practices and the implications for regulation (Armstrong 2012; Trubek and Trubek, 2010; De Burca and Scott, 2006)
What do we make of NEG?
(Grabosky and Grant 2000)
“[we are] so confused about [our] role in [NEG]…traditionally we were a regulator a stick waving role and now we’re much more touchy feely, but when it comes down to it I think we’re plain scared to leave that regulation role behind because that’s what we see as giving us strength”
Take Home Messages
(Ayling 2013; Spapens 2012)
(Ayling 2013; UN Office of Drugs & Crime 2012)
(Bricknel 2010; Grabosky and Grant 2000)
Cameron Holley
c.holley@unsw.edu.au
Full transcript