Environment improvement Plans: Facilitative regulation in practice

Environmental and Planning Law Journal

Volumn 23, Issue 6, 2006, Pages 448-464

  Holley, Cameron ^a   Gunningham, Neil ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67650147874     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (95)

1. For discussions of the changing nature of environmental regulation.
2. "National Symposium on Second Generation Environmental Policy and the Law" (2001) 29(1) Capital University Law Review 1.
3. The New South Wales Department of Environment and Conservation has placed less emphasis on the role of civil society and more on economic instruments.
4. NSW EPA, Load-based Licensing - A Fairer System that Rewards Cleaner Industry (NSW EPA, 2001).
5. NSW DEC, Hunter River Salinity Trading Scheme (NSW DEC), available online at http://www.epa.nsw.gov.au/licensing/hrsts/index.htm (viewed 10 February 2006).
6. Forms of facilitative regulation include neighbourhood environment improvement plans, accredited licensing, sustainability covenants and cleaner production.
7. VEPA website at http://www.epa.vic.gov.au (viewed 9 February 2006).
8. The Wisconsin Green Tier Initiative online at http://dnr.wi.gov/org/caer/cea/environmental (viewed 6 February 2006) and the "reinventing environmental regulation" strategy in the United States.
9. Gunningham N and Sinclair D, Leaders and Laggards (Greenleaf Publishing, 2002) Ch 6.
10. Environment Protection Authority, Victoria, Guidelines for the Preparation of Environment Improvement Plans (Publication 739, VEPA, 2002) p 1.
11. In South Australia the EIP is exclusively limited to bipartite relationships between the regulator and enterprise; Environment Protection Act 1993 (SA), ss 44, 54.
12. Environmental Protection Act 1986 (WA), s 62A; Western Australia, Department of the Environment, Environmental Improvement Plans - Explanatory Document Western Australian Model (WA DOE, 2004).
13. Environmental Protection Act 1994 (Qld), Ch 7, Pt 3 regarding Environmental Management Programs; Environmental Management and Pollution Control Act 1994 (Tas) Pt 3, Div 7 regarding Environmental Improvement Programmes.
14. Wills I and Fritschy S, "Industry-community-regulator Consultation in Improving Environmental Performance in Victoria" (2001) 8 Australian Journal of Environmental Management 158.
15. Gunningham and Sinclair, n 4, Ch 8.
16. The authors conducted 27 semi-structured interviews with community, industry, local government and VEPA participants involved in eight ongoing EIPs. These EIPs were selected to represent as close as practicably possible the seven different VEPA jurisdictional units that divide Victoria. In addition to the eight sample EIPs, the VEPA respondents provided the authors with data on over 20 different EIPs that they had had past and/or present experience with. The authors note that they were assisted by VEPA in their selection of the eight EIPs.
17. Meek T, Environment Improvement Plans - Going Beyond Compliance to Achieve Sustainability (paper presented to the 13th World Clean Air and Environmental Protection Congress and Exhibition, 22-27 August 2004, London) p 2.
18. Wills and Fritschy, n 9 at 158-159; Meek, n 12.
19. Wills and Fritschy, n 9 at 159; Meek, n 12, pp 2-3.
20. Meek, n 12, pp 2-3.
21. Robinson B, Cleaner Production - Pathways for the Future (paper presented to the Asia Pacific Cleaner Production Roundtable, Brisbane, April 1999) p 7.
22. Meek, n 12, p 4; Gunningham and Sinclair, n 4, p 159.
23. Gunningham N and Johnstone R, Regulating Workplace Safety (Oxford University Press, 1998) Ch 2-3.
24. Parker C, The Open Corporation (Cambridge University Press, 2002).
25. Environment Protection Authority, Victoria, Environment Improvement Plans - An Overview (Publication 938, VEPA, 2004) p 2.
26. The authors note that although the EIP is designed to involve a collaborative approach to regulation, the EIP guidelines recognise that involving the community in the EIP process may be impractical where there are no community members or non-government groups interested in or impacted upon by the environmental performance of a participating industry. In these circumstances the guidelines allow an EIP to be negotiated between VEPA and the enterprise without direct collaboration with other stakeholders. Nevertheless, as discussed below, such bipartite EIPs are unusual and most EIPs involve some form of direct community involvement; Environment Protection Authority, Victoria, n 5, pp 2,10.
27. Karkkainen B, "Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism" (2001/2002) 21 Va Envtl L J 189.
28. Shapiro S, "Administrative Law After the Counter-reformation: Restoring Faith in Pragmatic Government" (2000) 48 U Kan L Rev 689 at 729-730.
29. Cohen J and Sabel C, "Directly-Deliberative Polyarchy" (1997) 3(4) European Law Journal 313 at 326.
30. Karkkainen B, "Information-forcing Regulation and Environmental Governance" in De Burca G and Scott J (eds) Law and New Governance in the EU and the US (Hart Publishing, 2006) p 294.
31. Shapiro, n 22 at 732-733.
32. Freeman J, "Collaborative Governance in the Administrative State" (1997) 45 UCLA L Rev 1 at 8-18.
33. Environment Protection Authority, Victoria, n 19, pp 2, 3; Environment Protection Authority, Victoria, n 5, p 10.
34. Weil D, Fung A, Graham M and Fagotto E, "The Effectiveness of Regulatory Disclosure Policies" (2006) 25(1) Journal of Policy Analysis and Management 155 at 156.
35. Case D "Corporate Environmental Reporting as Informational Regulation: A Law And Economics Perspective" (2005) 76 U Colo L Rev 379 at 383.
36. Environment Protection Act 1970 (Vic), s 31C(6).
37. Gunningham and Sinclair, n 4, p 163.
38. In these cases the contents of an EIP will be tailored to the issues of the particular development and will include an emphasis on site operating conditions; Environment Protection Authority, Victoria, n 5, p 1.
39. Environment Protection Act 1970 (Vic), s 20(6)(b); Environment Protection Authority, Victoria, n 5, p 1.
40. State Environment Protection Policy (Air Quality Management) 2001 (Vic), Cl 20; State Environment Protection Policy (Control Of Noise From Commerce, Industry And Trade) No N-1 1989 (Vic), Cll 17A - 17G; State Environment Protection Policy (Prevention And Management Of Contamination Of Land) 2002 (Vic), Cl 17.
41. Environment Protection Authority, Victoria, n 5, pp 2, 13; Environment Protection Authority, Victoria, n 19, p 2.
42. EPA Officer, 2005; Gunningham and Sinclair, n 4, p 163.
43. Meek, n 12, p 4.
44. Environment Protection Act 1970 (Vic), ss 26A - 26E; Environment Protection Authority, Victoria, Accredited Licensee System Guidelines for Applicants (Publication 424.1, VEPA, 2006).
45. Environment Protection Act 1970 (Vic), s 26B(2)(c).
46. Gunningham and Sinclair, n 4, pp 171-174.
47. The number of accredited licensees was based on statistics obtained from EPA. Estimate of total licences based on most recent published figures of VEPA licence numbers; Environment Protection Authority, Victoria, Annual Report 2002-2003 Compliance Report (Publication 919, VEPA, 2003) p 2.
48. Environment Protection Authority, Victoria, Guidelines for Running Community Liaison Committees (Publication 740,VEPA, 2001).
49. Environment Protection Authority, Victoria, n 39, pp 2-3.
50. Environment Protection Authority, Victoria, n 39, pp 2-3; Environment Protection Authority, Victoria, n 19, p 3.
51. Environment Protection Authority, Victoria, n 39, p 3.
52. Environment Protection Authority, Victoria, n 39, p 3.
53. For instance organising an initial meeting or contacting neighbours directly to see if they would be interested in meeting with the industry to develop an EIP; Environment Protection Authority, Victoria, n 19, p 1.
54. Environment Protection Authority, Victoria, n 39, pp 1, 3, 5; Environment Protection Authority, Victoria, n 5, p 10.
55. Total EIP numbers based on statistics obtained from VEPA.
56. These related to: improving the communication between the senior management on the one hand and the community and VEPA on the other; and achieving necessary levels of community interest.
57. Gunningham and Sinclair, n 4, pp 179-184.
58. Five of the eight EIP processes studied were between their second and fourth iterations of plans, whilst the remaining three had completed and were implementing their first plan.
59. Wills and Fritschy, n 9 at 158, 159.
60. The exceptions being those industries which already had good relations with the local community due to their minimal impact on the local area.
61. This was generally because industry performed well and had little impact on the local area.
62. This finding corresponds to Gunningham and Sinclair, n 4, p 169.
63. This finding corresponds to Gunningham and Sinclair, n 4, p 177.
64. Willing enterprises included those better performing companies (who had minimal impact on their local area), as well as firms who, despite some initial anger from local stakeholders regarding their environmental performance, readily embraced the EIP process to try and develop better relationships with local stakeholders and improve environmental performance.
65. It is likely that such problems with generating participation led the VEPA to recognise that EIPs do not necessarily have to involve the community, noting that "where there is little public interest in, or concern with, activities, then simply informing the community of the EIP and making it available may be all that is required"; Environment Protection Authority, Victoria, n 5, p 10.
66. Here the authors' findings resonate with the international literature on collaborative environmental initiatives, which suggests that "crisis" is a common precondition of collaborative efforts in environmental management.
67. Selin S and Chavez D, "Developing a Collaborative Model for Environmental Planning and Management" (1995) 19(2) Environmental Management 189 at 191.
68. Curtis A, "Landcare: Approaching the Limits of Volunteer Action" (2000) 6 Australian Journal of Environmental Management 26.
69. Curtis A and Lockwood M, "Landcare and Catchment Management in Australia: Lessons for State-sponsored Community Participation" (2000) 13 Society and Natural Resources 61.
70. These findings correspond with those of Wills and Fritschy, n 9 at 163.
71. Note that the most recent VEPA guidelines acknowledge the likelihood of this fact, stating: "it is important to recognise from the outset a truly representative group is not possible". Environment Protection Authority, Victoria, n 19, p 3.
72. Guningham and Sinclair note the potential of this danger; Gunningham and Sinclair, n 4, p 177.
73. Environment Protection Authority, Victoria, n 5, p 2.
74. Conley A and Moote M, "Evaluating Collaborative Natural Resource Management" (2003) 16 Society and Natural Resources 371 at 377.
75. Gunningham and Sinclair, n 4, p 176.
76. Gaines S, "Reflexive Law As A Legal Paradigm For Sustainable Development" (2002-2003) 10 Buff Envtl L J 1 at 20.
77. This is consistent with Gunningham and Sinclair, n 4, p 177.
78. Shearing C and Wood J, "Governing Security for Common Goods" (2003) 31 International Journal of the Sociology of Law 205.
79. Fung A and Wright E, "Countervailing power in Empowered Participatory Governance" in Fung A and Wright E (eds) Deepening Democracy (Verso Press, 2003) pp 265-266.
80. Johnston L and Shearing C, Governing Security Explorations in Policing and Justice (Routledge, 2003) p 154.
81. Karkkainen, n 21. The authors' proposal also draws on ideas from the theory of democratic experimentalism; see Cohen and Sabel, n 23.
82. Dorf M and Sabel C, "A Constitution of Democratic Experimentalism" (1998) 98 Colum L Rev 267.
83. Karkkainen B, "Toward Ecological Sustainable Democracy?" in Fung A and Wright E, (eds) Deepening Democracy (Verso Press, 2003) p 221.
84. Cohen and Sabel, n 23.
85. Shapiro, n 22 at 701.
86. VEPA have already recognised this point to a degree. See eg Environment Protection Authority, Victoria, n 5, p 10 noting that "Where there is little public interest in, or concern with, activities, then simply informing the community of the EIP and making it available may be all that is required [of industry]".
87. One circumstance where continuing an EIP process may be accordingly justified would be if a major plant upgrade or development was planned.
88. Case, n 26 at 438-439.
89. Fung A and O'Rourke D, "Reinventing Environmental Regulation from the Grassroots Up: Explaining and Expanding the Success of the Toxics Release Inventory" (2000) 25(2) Environmental Management 115 at 118.
90. Weil et al, n 26 at 161, 164.
91. Sunstein C, "Informational Regulation and Informational Standing: Akins and Beyond" (1999) 147 U Pa L Rev 613 at 626-629.
92. Generally discussion of informational regulation Gunningham and Sinclair, n 4, p 127.
93. Parker, n 18, pp 275-288.
94. Irvin R and Stansbury J, "Citizen Participation in Decision Making: Is it Worth the Effort?" (2004) 64(1) Public Administration Review 55 at 58.
95. Fung A and Wright E, "Thinking about Empowered Participatory Governance" in Fung A and Wright E, (eds) Deepening Democracy (Verso Press, 2003) p 38.