Next Generation Environmental Law or
Echoes of ‘1984’? Regulating Individuals for
Reduced Environmental Impact
Presentation to the SLRC’s
Emerging Scholars Network
‘Renewing Regulation’ Colloquium
2 July, 2010
Michelle Maloney, PhD Candidate
Supervisors:
Professor Richard Johnstone
Professor Jan McDonald
Dr Chris Butler
1984
All pervasive authority
Thought crime
Face crime
Sex 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

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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)



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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 ecolabelling, 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




Practicalities

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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)
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



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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
Individual behaviour change


Requires legal theorists to ‘wade into
the muddy water of socialpsychology’ (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


Economic incentives



Persuasive information (as opposed to educational
information)
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

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Seat belts save lives
Banning young drivers from turbocharged 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

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
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
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:





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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
X = ban
T = time limited
A = anytime
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
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:

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
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
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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)


2009 Survey – Queensland (Qld Office of Govt
Statistician)

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86% believed water scarcity permanent
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 200L
pp/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


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


Successful use of command and control regulation
(contrary to much of the literature about norm
activation)
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


Values may shift in the immediate/medium term,
making individual regulation more acceptable (and
necessary)



How is important, but so is ‘will’ (do we have the political
will, will we actually regulate?)
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
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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.