Next Generation Environmental Law or Echoes of

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Next Generation Environmental Law or Echoes of
1984? Regulating Individuals for Reduced
Environmental Impact

• Presentation to the SLRCs
• Emerging Scholars Network
• Renewing Regulation Colloquium
• 2 July, 2010

Michelle Maloney, PhD Candidate Supervisors Profe
ssor Richard Johnstone Professor Jan McDonald Dr
Chris Butler
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1984

• All pervasive authority
• Thought crime
• Face crime
• Sex crime
• Thought police

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On a less literary note

• Demolition Man (1993)

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How would you regulate this .?

• Lt. Lena Huxley Smoking is not good for you and
  it has been deemed that anything not good for you
  is bad, hence illegal. Alcohol, caffeine,
  contact sports, meat
• John Spartan Are you shittin me?
• Automated fine box on the wall John Spartan you
  are fined 1 credit for violation of the Verbal
  Morality Statute
• John Spartan What the hell is that?
• John Spartan you are fined 1 credit for
  violation of the Verbal Morality Statute
• Lt. Lena Huxley bad language, gasoline,
  uneducational toys and anything spicey. Abortion
  is also illegal, but then again so is pregnancy
  if you dont have a licence.

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This presentation

• Regulating individuals fear and feasibility
• Traditional environmental law and next
  generation environmental law
• Why regulate individuals for reduced
  environmental impact?
• Approaches to regulating individuals for
  environmentally significant behaviour
• Case study summary SEQ drought response
• Conclusions

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First generation environmental law

• Defined by approach and era - the first
  environmental laws across the western world,
  early 70s
• Typically
• Command and control
• Focused on large industrial corporations
  (Vandenbergh, 2004)
• Production laws, dont look at demand (Salzman,
  1997)
• Some condemn command and control for failures
  others say it has borne much of its low hanging
  fruit (Gunningham,2002)

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Natural environment continues to deteriorate

• In 2005, a report compiled by over 2000
  scientists from ninety-five countries concluded
  that
• 60 of global ecosystem services were "being
  degraded or used unsustainably" including fresh
  water, fisheries, air and water purification and
  the regulation of natural hazards and pests.
• (Millennium Ecosystem Assessment, 2005)

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Production and consumption of natural resources
are key issues

• Humankind has consumed more natural resources
  since 1950 than in all previous human history
  (Durning,1992)

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Next Generation environmental law

• Non-traditional or non-command and control
  regulatory measures eg informational regulation
  and economic tools (Stewart, 1993) AND/OR
• Non-industrial sources of environmental pollution
  and degradation, including
• Small to medium sized enterprises (Gunningham,
  2002)
• Growing service economy (Salzman, 1997)
• Agriculture, esp. non-point-source run off
  (Vandenbergh, 2004)
• Individuals and households (Vandenbergh, 2004)
• Our environmental law and institutions are unable
  to handle cumulative effects and setting
  limits to resource exploitation (Guth, 2008)

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Radical new approaches

• Second generation sources of environmental
  pollution and degradation will present a
  significant challenge to environmental policy
  makers over the next twenty years and these
  sources may require radically different
  prescriptions from the first generation command
  and control requirements
• (Vandenbergh, 2001 The Social Meaning of
  Command and Control)

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This presentation

• Regulating individuals fear and feasibility
• Traditional environmental law and next
  generation environmental law
• Why regulate individuals for reduced
  environmental impact?
• Approaches to regulating individuals for
  environmentally significant behaviour
• Case study summary SEQ drought response
• Conclusions

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Definitions

• Individual behaviours
• behaviours that are under the direct,
  substantial control of the individual and that
  are not undertaken in the scope of the
  individuals employment. (Vandenbergh, 2007)
• Regulation
• Regulation encompasses all forms of social
  control, whether intentional or not and whether
  imposed by the state or other social
  institutions. (Morgan Yeung, 2007)
• Command and control
• Economic instruments
• Informational regulation
• Regulation relevant to this discussion
  individuals or households as the regulated entity
• c/f regulation that targets companies or
  organisations in order to influence consumer
  decisions (eg eco-labelling, plastic bag bans)

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Activities in individual private
capacityexamples

• Personal vehicle use
• Fertilising and mowing of lawns
• Household chemical use air emissions, down the
  drain
• ? minute amounts of pollutants, aggregated
  across millions of people significant
  environmental impact
• Water, energy consumption
• Consumption/use and disposal of consumer products
• Recreational activities
• Fuels for motorised sports motorbikes, ski
  jets, boats (emissions, pollution)
• Fishing

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The environmental problem

• Data is not easily obtainable
• the failure to conceive of individuals and
  households as a source category has resulted in a
  virtual wasteland of data regarding the
  contributions of individual behaviour to
  pollutant releases and environmental harms
  (Vandenbergh 2004)
• US data, Vandenbergh, 2004
• Individuals are responsible for 1/3 of all US
  greenhouse gas emissions (larger than many small
  countries total GHG emissions)
• Individuals release
• a third of all the chemicals that cause low level
  ozone and smog
• As much mercury to wastewater, fifty times more
  benzene and
• five times more formaldehyde ? than all large
  industrial sources combined

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Barriers to regulating individuals in
environmental law

• Myths
• Attitudes to individuals created within
  traditional/first generation environmental law
• industry polluters ? individuals and citizens
  victims or champions
• Individuals dont generate enough pollution or
  environmental harm to worry about (Vandenbergh,
  2004)
• Practicalities
• Easier to regulate small number of large
  industrial polluters, than large number of small
  polluters (Vandenbergh 2004)
• Enforcement?
• Ideology
• Division in liberalism between public and private
  spheres ? private domain not acceptable for
  interference by the state
• liberalisms emphasis on individual self interest
  blocks concepts of communal good ? individual and
  corporate property rights block community
  claims on environment protection (Cahn, 1995)

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Liberalism and the regulation of individuals

• Resistance to regulation occurs in all areas
• Regulating individuals/households/private life
  attracts particular vehemence
• Politically and culturally unacceptable
• efforts to detect and ultimately enforce
  against individual activities that usually occur
  at home or in the immediately surrounding area
  would trigger enormous political resistance, as
  they would be seen as an interference with
  individual liberty and an invasion of privacy
• (Babcock 2009, p.124)

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This presentation

• Regulating individuals fear and feasibility
• Traditional environmental law and next
  generation environmental law
• Why regulate individuals for reduced
  environmental impact?
• Approaches to regulating individuals for
  environmentally significant behaviour
• Case study summary SEQ drought response
• Conclusions

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Current approaches for influencing individuals in
the environmental space?

• Leave it to the market
• Eg Green products, eco-labelling
• Voluntary information and education
  (informational regulation)
• Voluntary behaviour change programs
• Eg Qld Dept Environment
• Low Carbon Diet
• Climate Smart Homes
• Leave it to individual choice

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How would we regulate individuals if we wanted to?

• Limits of traditional regulatory scholarship in
  environmental law
• Limited focus on individuals though compliance
  literature has many cross-overs
• Primary focus corporations
• Need to look to new theories and approaches
• But key concepts in regulatory theory are
  analogous to many approaches in literature around
  individual behaviour change
• Smart (Gunningham)
• Responsive (Braithwaite)
• Reflexive (Teubner)

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How to regulate individuals?

• Literature shows two main approaches for
  regulating individuals
• (1) Linking regulatory mechanisms to various
  theories of individual behaviour change, to
  trigger individuals to take up environmentally
  friendly behaviours and/or
• Eg Norm activation theory (Vandenbergh)
• (2) Creating institutional, infrastructural and
  other macro support to enhance individual
  engagement with environmentally favourable
  behaviours
• Eg recycling (Carlson)
• Each approach can be adopted in isolation, but
  most researchers support optimal mixes of both
• Reflecting a smart and responsive approach

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Individual behaviour change

The question what motives underlie peoples
decisions to choose environmentally friendly
behavioural options, has become one of the
central problems of social-environmental
research (Stern, 2005)
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Individual behaviour change

• Requires legal theorists to wade into the muddy
  water of social-psychology (Vandenbergh 2004)
• Plethora of theories for achieving and predicting
  individual behaviour, eg
• Early US linear progression models
• Altruism, empathy and prosocial behaviour models
• Sociological, economic, psychological models
• Social marketing models
• Deliberative and inclusionary processes
  (Kollmuss et al, 2002)

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Vandenberghs personal norm activation theory

• Influential in law/regulation links regulation
  to behaviour change approaches
• Draws on social-psychology literature
  value-belief-norm theory work by Stern
• Government can act as a norm entrepreneur and
  increase individual responsibility to take action
  for environmental benefit
• Use strategic regulatory mechanisms to
• Increase individual understanding about their
  environmental impact
• Form new beliefs about environmental issues and
  their own responsibility
• Trigger personal norms ? new/different,
  environmentally responsible actions
• Eg Individual Toxic Release Inventory to
  assist individuals to benchmark and understand
  their use

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Types of regulation to trigger norms

• Emphasis on informational regulation
• Persuasive information (as opposed to educational
  information)
• Economic incentives
• Rebates, subsidies favoured
• Taxes unpopular (though note London Congestion
  Tax)
• Traditional command and control often seen as not
  compatible with regulating individuals
• Politically unpalatable
• Enforcement difficulties
• (Vandenbergh, Johnson, Carlson,)

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Note Regulation of individuals exists in other
fields

• Existing
• Seat belts
• Drink driving
• Banning young drivers from certain types of
  high powered vehicles
• Child protection
• Indigenous households
• mutual obligation, individual responsibility
• Emerging?
• Obesity
• Junk food

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Why turbo charged cars but not hummers?

• Law and social values does law lead or follow?
  
• Liberalism accepts state regulatory interference
  for direct protection of individual wellbeing
• Seat belts save lives
• Banning young drivers from turbo-charged cars
  saves lives
• (Why cant we ban hummers and 4WDs, save carbon
  and indirectly save lives??)
• Acceptable if the intrusion supports rather than
  takes away from key tenants of ideology -
  property, liberalism, minimal government, rule of
  law (Cotterrell, 1998)
• Lack of value placed on harm to the environment
  (anthropocentric priorities), means currently not
  enough justification to interfere (Cullinan,
  2003)
• Contrast with biocentric worldview, deep ecology,
  earth jurisprudence

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This presentation

• Regulating individuals fear and feasibility
• Traditional environmental law and next
  generation environmental law
• Why regulate individuals for reduced
  environmental impact?
• Approaches to regulating individuals for
  environmentally significant behaviour
• Case study summary SEQ drought response
• Conclusions

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SEQ Drought Response Overview

• Australia is the driest continent on earth
• But until recently urban water supplies plentiful
  and cheap
• Millennium Drought 2000-2008 created critical
  water shortages
• Hit South East Queensland (SEQ) especially hard
• Lead to new institutional, supply and demand
  strategies
• Dramatic changes in water consumption
• 1990s estimated 700 litres per person, per day
  
• Height of the drought (2007) water consumption
  brought down to 140 L pp/pd
• Today 1 year after end of drought, 155 L pp/pd
• How were these changes in water consumption by
  individuals achieved?

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Water use in Brisbane/SEQ

• Unlimited until 1990s
• No restrictions
• 90 households unmetered
• Sprinklers, hoses, pools
• Estimated use 700 litres per person per day
  (Spearitt)
• High by international levels
• Official literature water use 300 litres per
  person per day at the beginning of the drought
• 95 water supply from climate reliant sources -
  dams

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Millennium Drought (2000-2008)

• Worst drought on record
• 2007 - Dam levels supplying Brisbane down to
  16.7 (QWC)
• Responses
• Institutional reform
• (Queensland Water Commission)
• Supply-side
• Demand-side

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Demand management strategies

• Any regulatory, policy, technical, service or
  commercial interaction with customers or
  consumers that aims to minimise the overall
  demand for water (QWC)
• Three main approaches
• Command and control
• Fiscal/economic incentives
• Communication and education

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Regulation water restrictions

• Progressive reduction in what reticulated water
  could be used for
• Covered a range of activities (outdoor water use
  only)
• Gardens and lawns
• Pet and animal care
• Vehicle washing
• Pools and spas
• Level 1 ? most relaxed
• Level 6 ? height of the drought

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Water restrictions progressive deprivation
LEVEL DATE LAWNS GARDENS
Sprinklers Hoses Buckets Sprinklers Hoses Buckets
1 05 May bT bT bA b b bA
2 05 Oct X bT bA X b bA
3 06 June X X bA X X bA
4 06 Nov X X bT X X bT
5 T140 07 May X X X X X bT
6 07 Nov X X X X X bT
High T.170 08 July X X b bT bT b
Medium T.200 09 April bT bT b bT bT b
Perm. T200 09 Dec bT bT b bT bT b
Long Term 200 10 Jul bT bT b bT bT b
X ban T time limited A anytime
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Demand management Legal response - regulations

• Enforcement
• Local Councils
• water patrol officers
• on the spot fines (200, 600 repeat offence,
  1400 for third offence in 2 years)
• dob in neighbour
• Sanctions for high water users ramped up as
  drought worsened
• Research in 2007 found 13 of households
  responsible for 28 residential consumption
• Level 5 restrictions high volume water audit
• Level 6 restrictions enhanced use of sanctions
  warning notices, two tier fines 450 ? 1050

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Demand managementFiscal/economic incentives

• Rebates for water saving measures
• Rainwater tanks
• Washing machines
• Showerheads
• Dual flush toilets
• Pool covers
• Drought tolerant Plants
• Home Water Wise Service
• Licensed plumber water audit water saving
  devices

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Demand management

• Any regulatory, policy, technical, service or
  commercial interaction with customers or
  consumers that aims to minimise the overall
  demand for water (QWC)
• Three main approaches
• Regulation
• Fiscal/economic incentives
• Communication and education

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Demand management Communication

• Message was clear we were in a crisis and could
  run out of water
• Target 140 campaign began June 07
• Rare coordinated response two tiers of
  government State and Local
• Comprehensive message delivery
• High profile advertising TV, newspapers,
  billboard, internet
• Positive press releases every week pat on the
  back dam level update encouragement to
  continue
• Website easy to see dam levels consumption
• Information directly to households from Local
  Councils water rates, public events in local
  parks, festivals
• Promos eg May 2007, QWC mailed out 1million
  shower timers to households in SEQ

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Consistent behaviour change messages

• Limit showers to four minutes or less
• Do one less load of washing a week
• Only use the dishwasher when it's full
• Turn off the tap when brushing teeth or shaving
• Only water gardens with a bucket

Easy to understand logoreminding people about
individual consumption target
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And it worked
Average Residential Consumption Trends 2005 to
2008 (SEQ Councils subject to QWC
Restrictions) QWC Annual Report 08-09
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Long term behaviour change?

• 1 year after drought officially over, still
  using less water than pre-drought
• Persistent changes in behaviour and attitudes
  (personal norms)
• 2008 Survey - SEQ (Queensland Water Commission)
• 86 believed water scarcity permanent
• 2009 Survey Queensland (Qld Office of Govt
  Statistician)
• 94 believed water precious, must be conserved
• when asked if water restrictions negatively
  impacted on their life, 83 disagreed or strongly
  disagreed
• As at 25 June, all of SEQ stillbelow target of
  200Lpp/pd (155 average)
• Permanent plan due this month
• Will be aiming for 200 L pp/pd not 230 litres as
  first predicted

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Reasons for success multiple strategies,
smart reg for individuals?

• Regulation command and control
• Study (Shearer) found correlation between
  tightening of restrictions and decrease in water
  use (compared to areas without restrictions)
• Significance of restrictions demonstrated by
  comparison between Brisbane and the Sunshine
  Coast
• Economic incentives high uptake of water saving
  devices assists ongoing reduced water use
• Communication strategy voluntary targets
• Clear, easily understood actions (4 min showers
  etc)
• Two levels of government working together State
  and Local consistent messages
• People believed we were in a crisis, and could
  run out of water
• Study (Shearer) found correlation between major
  media announcements and decreases in water use

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Lessons from SEQ water

• Fits Vandenberghs model? Regulation triggered
  personal norms and changed behaviour
• Successful use of command and control regulation
  (contrary to much of the literature about norm
  activation)
• Why?
• No discourse about environmental impacts of water
  shortages (Buth)
• Immediate threat to human wellbeing - crisis
• Could be argued water restrictions successful for
  the same reason as seat belts
• Health, safety - self interest
• But what about regulation of environmental impact
  with no direct benefit to our health or safety?
• My next case study recreational fishing quotas

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Conclusions

• Regulating individuals for reduced environmental
  impact is possible
• How is important, but so is will (do we have
  the political will, will we actually regulate?)
• Values may shift in the immediate/medium term,
  making individual regulation more acceptable (and
  necessary)
• As environmental conditions decline, and the
  links between environmental deterioration and
  human wellbeing become more apparent, it may
  become acceptable to regulate in new areas
• An increase in biocentric concern may also
  shift attitudes to whats acceptable to regulate
• Kysar and Vandenberg suggest climate change
  impacts mean intervention may be more acceptable
  than previously thought

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Back to a 1984 future?

• The SEQ drought response demonstrates that a
  world where our individual activities are
  regulated isnt oppressive when whats being
  regulated is important to us
• (But whos us?)

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References

• Babcock H M 2009b Assuming Personal
  Responsibility for Improving the Environment
  Moving Toward a New Social Norm. Harvard
  Environmental Law Review 33, 117.
• Cahn M A 1995 Environmental Deceptions The
  Tension Between Liberalism and Environmental
  Policymaking in the United States. State
  University of New York Press.
• Cotterrell R 1988 Feasible Regulation for
  Democracy and Social Justice. Journal of Law and
  Society 15.
• Cullinan C 2003 Wild Law. Green Books, Totnes,
  Devon, UK.
• Durning A 1992 How Much is Enough? The Consumer
  Society and The Future of the Earth. Worldwatch
  Institute, London.
• Gunningham N, Grabosky P and Sinclair D 1998
  Smart Regulation Designing Environmental Policy.
• Gunningham N and Sinclair D 2002 Leaders and
  Laggards Next Generation Environmental Law.
  Greenleaf Publishing, Sheffield, UK.
• Guth J H 2008 Law for the Ecological Age. Vermont
  Journal of Environmental Law 9, 431-512.
• Henry G and Lyle J 2003 The National Recreational
  and Indigenous Fishing Survey. In FRDC Project
  No.99/158.
• Johnson S M 2009 Is Religion the Environment's
  Last Best Hope? Targeting Change in Individual
  Behaviour Through Personal Norm Activation.
  Journal of Environmental Law and Litigation 24.

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References

• Kollmuss A and Agyeman J 2002 Mind the Gap why
  do people act environmentally and what are the
  barries to pro-environmental behavior.
  Environmental Education Research 8.
• Millennium Ecosystem Assessment 2005 Ecosystems
  and Well-being Synthesis Island Press,
  Washington DC.
• Salzman J 1997 Sustainable Consumption and the
  Law. Environmental Law 27, 1243 - 1293.
• Salzman J 1999 Beyond the Smokestacks
  Environmental Protection in a Service Economy.
  UCLA Law Review 47.
• Stern P 1999 A Values-Belief-Norm Theory of
  Support for Social Movements The Case of
  Environmentalism. 6 Human Ecology Review.
• Vandenbergh M P 2001 The Social Meaning of
  Command and Control. Vermont Environmental Law
  Journal 20, 193.
• Vandenbergh M P 2004 From Smokestack to SUV The
  Individual as Regulated Entity in the New Era of
  Environmental Law. Vanderbuilt Law Review 57, 515
  - 628.
• Vandenbergh M P 2005 Order without Social Norms
  How Personal Norm Activation Can Protect The
  Environment. Northwestern University Law Review
  99.

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