Next Generation Environmental Law or Echoes of ‘1984’? Regulating Individuals for Reduced Environmental Impact

1. 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

2. All pervasive authority Thought crime Face crime Sex crime Thought police 1984

5. ‘Demolition Man’ (1993) On a less literary note …

6. 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.”

7. 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

8. 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) ‘First generation’ environmental law

9. 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) Natural environment continues to deteriorate

10. “Humankind has consumed more natural resources since 1950 than in all previous human history” (Durning,1992) Production and consumption of natural resources are key issues

11. ‘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)

12. 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)

13. 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

14. 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) • 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 eco-labelling, plastic bag bans)

15. 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

16. 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

17. Barriers to regulating individuals in environmental law • Myths • 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) • Practicalities • 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)

18. 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)

19. 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

20. ‘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 Current approaches for influencing individuals in the environmental space?

21. How would we regulate individuals if we wanted to? • Limits of traditional regulatory scholarship in environmental law • 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)

22. 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

23. Individual behaviour change “The question: what motives underlie people’s decisions to choose environmentally friendly behavioural options, has become one of the central problems of social-environmental research” (Stern, 2005)

24. Individual behaviour change • Requires legal theorists to ‘wade into the muddy water of social-psychology’ (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)

25. 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

26. Types of regulation to ‘trigger’ norms • Emphasis on informational regulation • Persuasive information (as opposed to educational information) • Economic incentives • 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,)

27. 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 Note: Regulation of individuals exists in other fields

28. Law and social values – does law lead or follow? Liberalism accepts state regulatory interference for direct protection of individual wellbeing Seat belts save lives Banning young drivers from turbo-charged 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 Why turbo charged cars but not hummers?

29. 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

30. SEQ Drought Response: Overview • 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?

31. Water use in Brisbane/SEQ • Unlimited until 1990’s: • 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

32. Worst drought on record 2007 - Dam levels supplying Brisbane down to 16.7% (QWC) Responses: Institutional reform (Queensland Water Commission) Supply-side Demand-side Millennium Drought (2000-2008)

33. 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

34. 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

35. Water restrictions – ‘progressive deprivation’ X = ban T = time limited A = anytime

36. 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

37. Rebates for water saving measures: 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:Fiscal/economic incentives

38. 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

39. 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

40. 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 Consistent behaviour change messages Easy to understand ‘logo’reminding people about individual consumption target

41. And it worked … Average Residential Consumption Trends 2005 to 2008 (SEQ Councils subject to QWC Restrictions) QWC Annual Report 08-09

42. 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) • 86% believed water scarcity permanent • 2009 Survey – Queensland (Qld Office of Govt Statistician) • 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 stillbelow target of 200Lpp/pd (155 average) • Permanent ‘plan’ due this month • Will be aiming for 200 L pp/pd not 230 litres as first predicted

43. 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

44. Lessons from SEQ water • Fits Vandenbergh’s model? Regulation triggered personal norms and changed behaviour • Successful use of command and control regulation (contrary to much of the literature about norm activation) • 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 • 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

45. Conclusions • Regulating individuals for reduced environmental impact is possible • How is important, but so is ‘will’ (do we have the political will, will we actually regulate?) • Values may shift in the immediate/medium term, making individual regulation more acceptable (and necessary) • 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

46. 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’?) Back to a ‘1984’ future?

47. 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.

48. References • 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.