Next Generation Environmental Law or Echoes of ‘1984’? Regulating Individuals for Reduced Environmental Impact Presentation to the SLRC’s Emerging Scholars.

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

Presentation to the SLRC’s Emerging Scholars Network‘Renewing Regulation’ Colloquium2 July, 2010

Michelle Maloney, PhD CandidateSupervisors:

Professor Richard JohnstoneProfessor Jan McDonald

Dr Chris Butler

1984

All pervasive authority

Thought crimeFace crimeSex crime

Thought police

On a less literary note …

‘Demolition Man’ (1993)

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 don’t have a licence.”

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

‘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, don’t look at demand (Salzman, 1997)

Some condemn command and control for failures; others say it has “borne much of it’s low hanging fruit” (Gunningham,2002)

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)

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)

‘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)

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)

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

Definitions Individual behaviours

“… behaviours that are under the direct, substantial control of the individual and that are not undertaken in the scope of the individual’s 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)

Activities in individual ‘private capacity’:examples

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

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

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 don’t 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

liberalism’s emphasis on individual self interest blocks concepts of communal good individual and corporate property rights ‘block’ community claims on environment protection (Cahn, 1995)

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)

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

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

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)

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

Individual behaviour change

“The question: what motives underlie people’s decisions to choose environmentally friendly behavioural options, has become one of the

central problems of social-environmental research” (Stern, 2005)

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)

Vandenbergh’s 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

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,)

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

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 can’t 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

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

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

1990’s – 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?

Water use in Brisbane/SEQ

Unlimited until 1990’s: 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

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

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

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

Water restrictions – ‘progressive deprivation’

LEVEL DATE LAWNS GARDENS

Sprinklers Hoses Buckets Sprinklers Hoses Buckets

1 05 May T T A A

2 05 Oct X T A X A

3 06 June X X A X X A

4 06 Nov X X T X X T

5 *T140

07 May X X X X X T

6 07 Nov X X X X X T

High**T.170

08 July X X T T

MediumT.200

09 April T T T T

Perm.T200

09 Dec T T T T

LongTerm200

10 Jul T T T T

X = banT = time limitedA = anytime

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

Demand management:Fiscal/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

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

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

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 ‘logo’reminding people about

individual consumption target

And it worked …

Average Residential Consumption Trends 2005 to 2008 (SEQ Councils subject to QWC Restrictions)

QWC Annual Report 08-09

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 still

below 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

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

Lessons from SEQ water

Fits Vandenbergh’s 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

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 what’s acceptable to regulate

Kysar and Vandenberg suggest climate change impacts mean intervention may be more acceptable than previously thought

Back to a ‘1984’ future?

The SEQ drought response demonstrates that a world where our individual activities are regulated isn’t oppressive when what’s being regulated is important to us(But who’s ‘us’?)

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.

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.