Governing Climate Change: Towards a New Paradigm for Risk Regulation

Date01 November 2011
Published date01 November 2011
AuthorVeerle Heyvaert
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00874.x
THE
MODERN LAW REVIEW
Volume 74 November 2011 No 6
Governing Climate Change:
Towards a New Paradigm for Risk Regulation
Veerle Heyvaert*
This article argues that the ascent of climate change on the EU regulatory agenda signals a new
era of risk regulation and calls for the establishment of a new paradigm for risk regulation. Climate
change is altering the EU’s conception of environmental risks and its design of regulatory
responses.In contrast to conventional risk regulation, climate change regulation must prioritise the
risks of business-as-usual over the risks of change, must target systemic change instead of stability,
and must favour the virtues of integration and orchestration over those of individualisation and
compartmentalisation.There is an important role for risk regulation scholarship to analyse this shift
and its consequences for regulation, such as the relocation of legitimacy needs and the emergence
of new risks of regulatory failure. Such an enterprise would both reinvigorate risk regulation
scholarship and offer a vital contribution to the European Union as it tackles the momentous
challenge of climate change governance.
INTRODUCTION
The European Union has a well-established reputation as the world’s most
forceful advocate for the adoption of internationally binding climate change
commitments.The EU has moreover chosen to lead by example and has adopted
an impressively diverse arsenal of regulatory measures that together aim to reduce
its own carbon footprint by at least 20 per cent by 2020.
This article analyses the core features of the regulatory approach as it emerges
out of the sprawling body of climate change legislation and argues that they
constitute a signif‌icant, in many ways radical, departure from the EU’s conven-
tional approach to environmental regulation. Until now, the EU’s legal response
to environmental and health problems, from biodiversity loss to chemical toxicity,
has been heavily dominated by the risk regulation paradigm.The risk regulation
paradigm sets the tone for how the EU as a regulatory authority conceptualises
the environmental impacts of human activity, for the articulation of its regulatory
mandate and for the design and implementation of regulatory strategies in
fulf‌ilment of this mandate. The analysis will show that, while climate change
is unequivocally recognised as a major environmental risk, it is a risk that is
differently understood from those that form the traditional subject of EU risk
*London School of Economics.I thank Rob Baldwin, Jonathan Golub and two anonymous refereesfor
comments on earlier drafts. Any mistakes are mine.
© 2011The Author.The Modern Law Review © 2011 The Modern Law ReviewLimited. (2011) 74(6) MLR 817–844
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
regulation. Consequently,climate change as a regulatory challenge makes differ-
ent demands of the EU as a regulator: climate change regulation must target
systemic change rather than stabilisation, and regulatory strateg ies must facilitate
integration and orchestration over itemisation and compartmentalisation. The
climate change regulatory regime will also display different vulnerabilities from
those that characterise EU risk regulation, calling for a rethink of the function
and variety of EU legitimation strategies.
The outcomes of the analysis have fundamental implications for the study
and practice of risk regulation. Scholars in the area are confronted with the
reality that the established risk regulation paradigm is of limited use to under-
stand and guide regulatory efforts to control the most important environmental
risk of our time. If scholarship is to play a constructive role in supporting the
EU regulatory enterprise, it needs to develop a new paradigm for a new era of
risk regulation. Enhanced awareness within EU regulatory circles of the par-
ticular nature and needs of climate change regulation can be a pivotal asset
towards the further development and implementation of a regulatory regime
that offers the best chance of effectiveness and minimises the risks of regulatory
failure.
The f‌irst section of this contribution sets out the general features of the
established risk regulation paradigm.We then move into the analytical heart of
the article by examining, f‌irstly, how risk regulation operates in practice in the
European Union and, secondly, by comparing and contrasting the discourse,
agenda, and strategies of EU risk regulation to those that characterise EU climate
change regulation. The f‌inal section assesses the outcomes of the preceding
analysis. It draws attention to regulatory blind spots that are likely to develop as
a consequence of insuff‌icient awareness of the particular context of EU climate
change regulation, and discusses the risk that the EU might revert to tried and
tested risk regulatory strategies, which have functioned reasonably well in the past
but would be ineffective in the battle against climate change. On a positive note,
the assessment identif‌ies scope for synergy and mutual learning between con-
ventional risk regulation and climate change regulation,arguing that experiences
gained in one area could be productively deployed in the other. The article
concludes with a plea for the further articulation of a new risk regulation
paradigm that adequately ref‌lects the character and scale of the environmental
risks that society faces today.
THE RISK REGULATION PARADIGM
Risk regulation has become such a staple of contemporary law and policy that it
barely needs an introduction. In order to discern the distinctive features of EU
risk regulation, however, as well as the particularities of risk within the climate
change f‌ield, it is useful f‌irst to contemplate, in general terms, what we mean
when we talk about ‘risk’ as a catalyst for regulation, what the agenda is of risk
regulation, and how regulation seeks to achieve its targets.
We qualify a particular situation or activity as a risk when we are aware of the
possibility of undesirable consequences.To gauge the seriousness of the risk, we
in the f‌irst place take into account the likelihood of negative impacts and the
Governing Climate Change
© 2011 TheAuthor.The Moder n Law Review© 2011 The Modern Law Review Limited.
818 (2011) 74(6) MLR 817–844

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