Techniques of Knowing in Administration: Co‐production, Models, and Conservation Law
| Published date | 01 September 2018 |
| Author | Maria Lee,Yvonne Rydin,Simon Lock,Lucy Natarajan |
| DOI | http://doi.org/10.1111/jols.12122 |
| Date | 01 September 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 3, SEPTEMBER 2018
ISSN: 0263-323X, pp. 427±56
Techniques of Knowing in Administration: Co-production,
Models, and Conservation Law
Maria Lee,* Lucy Natarajan,* Simon Lock,* and
Yvonne Rydin*
Law frequently demands the production, so metimes effortful, of
adequate knowledge for decision making. This article explores the
challenging epistemic demands made by nature conservation law
during planning law approval processes for major offshore wind farms.
It explores this area through the prism of co-production: not only are
`science' and `facts' socially and legally constructed, but in addition,
scientific and factual findings shape society, and law and governance.
Models are used in planning law to assess whether bird deaths
associated with a proposed wind farm will have an adverse effect on
the integrity of a protected site. As much as providing an accurate
factual representation of the impact of a wind farm on biodiversity, the
models contribute to the very possibility of governing the impact of
these novel infrastructure developments on biodiversity.
INTRODUCTION
Law frequently makes challenging epistemic demands of administrative
decision making, insisting on the production of adequate knowledge in
circumstances where time is short and empirical data sparse. Conditions are
imposed that can ostensibly be met only by finding facts and making
predictions, underpinned by sources of legitimacy that are sometimes barely
available: objective expertise and high-quality science. Planning decisions
on large wind farm projects provide a significant case study of these issues.
427
*University College London, Gower Street, London WC1E 6BT, England
maria.lee@ucl.ac.uk
We would like to thank participants in our February 2017 UCL workshop on modelling
for renewable energy. We are extremely grateful to Liz Fisher and Andrew Lang for their
incisive comments on an earlier draft, and to the journal's referees. This article was
supported by ESRC funding (Award number 164522), `Evidence, Publics and Decision-
Making for Major Wind Infrastructure'.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The ways in which knowledge is constructed and asserted in the `evidence
deficient area' of the ornithological impacts of offshore wind farms
1
is both
striking and intriguing. Computer modelling of the impact of the wind farms
on birds is often central to the legality of a decision, as well as to the broader
social justification of the decision. Discussion and debate around the models
is an important feature of the process, as different actors strive to know
enough to make lawful decisions.
The models routinely used in legal processes are hugely varied, from
computer simulations of the entire climate system, to less complicated
modelling of smaller systems.
2
The `collision risk models' that we focus on
here are a relatively simple model that attempts to simulate the number of
birds that will collide with a proposed wind farm, and reach a conclusion on
the effect of those deaths on the bird population at a protected habitat.
3
Our purpose is not to criticize the use of the models, or to open up the
particular black boxes being introduced into the decision-making process,
although these could be productive lines of inquiry. Instead, we examine this
area through the prism of Sheila Jasanoff's `idiom' of `co-production'.
4
We
outline co-production in the section following this introduction, and illustrate
it more richly in the detailed examination of our case study, taking seriously
the proposition that knowledge and society (or facts and law) mutually
constitute and shape each other, in the process of governing.
Nature conservation legislation requires in principle that a proposed wind
farm be denied consent unless it can be `ascertained that it will not adversely
affect the integrity' of protected sites.
5
As discussed further below, this
potentially rich notion of `integrity' is reduced rather swiftly (we are not
suggesting improperly) to separate discrete nature conservation issues, such
as the disturbance of particular species of fish or sea mammals during
construction or operation. Of these issues, the implications of the collision of
protected birds with the proposed wind farm are especially instructive for
current purposes, and a prominent feature of the decisions. An abstract legal
428
1 Examining Authority Report and Recommendations, Hornsea Project One (2014)
(Hornsea One) para. 5.177. See documents discussed in this article at
infrastructure.planninginspectorate.gov.uk/>.
2 N. Oreskes, `The role of quantitative models in science' in Models in Ecosystem
Science, eds. C.D. Canham et al. (2003); D.A. Farber, `Modelling Climate Change
and Its Impacts: Law, Policy and Science' (2008) 86 Texas Law Rev. 1655; W.
Wagner et al., `Misunderstanding Models in Environmental and Public Health
Regulation' (2010) 18 NYU Environmental Law J. 293.
3 See B. Band, Using a Collision Risk Model to Assess Bird Collision Risks for
Offshore Windfarms (2012).
4 As an `idiom', co-production is not a `fully fledged theory', but `a way of
interpreting and accounting for complex phenomena': S. Jasanoff, `The Idiom of
Co-production' in States of Knowledge: The Co-Production of Science and Social
Order, ed. S. Jasanoff (2004) 3.
5 Council Directive 1992/43 on the conservation of natural habitats and of wild fauna
and flora [1992] OJ L206/7 (Habitats Directive).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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