The New Collaborative Environmental Governance: The Localization of Regulation
| Published date | 01 March 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00461.x |
| Date | 01 March 2009 |
| Author | Neil Gunningham |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 1, MARCH 2009
ISSN: 0263-323X, pp. 145±66
The New Collaborative Environmental Governance:
The Localization of Regulation
Neil Gunningham*
This article examines the new collaborative environmental govern-
ance, an enterprise that involves collaboration between a diversity of
private, public, and non-government stakeholders who, acting together
towards commonly agreed goals, hope to achieve far more collectively,
than individually. Such an approach appears to blur the familiar sharp
boundaries that separate `the state' from civil society, yet we still know
very little about exactly what this blurring of public and private adds
up to, and what its implications are. This new form of governance is
examined through the lens of three Australian case studies. Each of
these studies involves participatory dialogue, flexibility, inclusiveness,
transparency, institutionalized consensus-building practices, and, at
least to some extent, a shift from hierarchy to heterarchy. The paper
examines the relationships between new and old governance, the
architecture of these new initiatives, the role of the state, and the
importance of negotiating in `the shadow of hierarchy'.
I. INTRODUCTION
The `new governance' has many dimensions and spans many spheres of
social policy. One of the most important of these spheres, and one where
there has been more policy experimentation than most, is that of
environmental protection and natural resource management.
145
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*Regulatory Institutions Network and Fenner School of Environment and
Society, Australian National University, Canberra, ACT 0200 Australia, and
Cardiff Law School, Cardiff University, Law Building, Museum Avenue,
Cardiff CF10 3AX, Wales
Neil.Gunningham@anu.edu.au GunninghamN@cardiff.ac.uk
Iamgrateful for the comments of Darren Sinclair and Geoff Lawrence and of my
collaborators on the broader project of which this is a part, Cameron Holley and Clifford
Shearing. I am also indebted to an Australian Research Council Discovery Grant, without
which the empirical work for this project would not have been possible.
Precisely what is meant by `the new governance' as it relates to environ-
ment, or indeed to other social issues, is a moot point. As de Bu
Ârca and Scott
point out,
1
the term is defined more by what it is not, than by what it is. And
where it is defined, this is often done in such broad terms that it does little to
narrow the scope of inquiry or to identify what is distinctive about this form
of governance.
For present purposes, `new governance' in the context of environmental
protection will be treated as involving a cluster of characteristics: partici-
patory dialogue and deliberation, devolved decision-making, flexibility
rather than uniformity, inclusiveness, transparency, institutionalized
consensus-building practices, and a shift from hierarchy to heterarchy. Not
all these characteristics need to be present for a particular experiment to be
regarded as involving new environmental governance, but the more charac-
teristics that are present, and the stronger the form in which they are present,
the greater is the claim to be regarded as falling within this category.
Such a definition is consistent with the broad spirit of the new governance
literature which recognizes that a shift is taking place in the role of the nation
state, which has moved substantially away from top-down command-and-
control regulation to a much more decentralized and consensual approach
which seeks to coordinate at multiple levels, and which is distinctively
polycentric.
2
This approach, in turn, provides greater scope for non-state
actors to assume administrative, regulatory, managerial, and mediating
functions previously undertaken by the state.
Normatively, new governance is claimed to be more responsive, legiti-
mate, and effective than top-down approaches because deliberation,
cooperation, and learning at local level may lead to responses which better
take account of local circumstances, build on local knowledge and capacities,
and result in greater stakeholder ownership and `buy in'. It is also, arguably,
better able to transcend jurisdictional boundaries than traditional approaches.
Little is known about the preconditions for the success of new collabora-
tive environmental governance initiatives. Many scholars are concerned that
collaborative initiatives in the United States of America are producing
disappointing results but have only limited data as to why this might be so.
3
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1G.de Bu
Ârca and J. Scott (eds.), Law and New Governance in the EU and the US
(2006).
2D.Trubek and L. Trubek, `The coexistence of New Governance and Legal
Regulation: Complementarity or Rivalry?' (2005) 542 (paper presented at Annual
Meeting of Research Committee on Sociology of Law).
3T.Abel and M. Stephan, `The Limits of Civic Environmentalism' (2000) 44 Am.
Behavioral Scientist 614±28; C.W. Thomas, `Habitat Conservation Planning' in
Deepening Democracy: Institutional Innovations in Empowered Participatory
Governance,eds. A. Fung and E. Wright (2003); A. Camacho, `Can Regulation
Evolve? Lessons from a Study in Maladaptive Management' (2007) 55 UCLA Law
Rev. 293±358; M. Lubell, `Collaborative Environmental Institutions: All Talk and No
Action?' (2004) 23 J. of Policy Analysis and Management 549±73.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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