The challenges of climate disruption, biodiversity loss, plastic pollution - and (too) many more - are too often conceptualised as single ‘issues’ to resolve through regulatory solutions, rather than recognising that we are now in a new era, requiring a new approach.
We argue that, broadly speaking, regulatory efforts to limit or reverse negative impacts on the environment have failed. There are fundamental problems with the design of regulation – and redesign can - and must - be part of the solution.
Regulation failure
As Jacint Jordana, David Levi-Faur and Xavier Fernández-i-Marín have eloquently demonstrated, regulation has proliferated as a key tool promising to rein in the damage done by industrial – and increasingly post industrial - capitalism, global colonialism and competitive markets. At the same time, regulation is premised on the virtues of those markets. Regulation, it is argued, is only necessary when market competition fails. Ecological damage is seen as but one externality (amongst many) able to be tamed through appropriate (but not too intrusive) regulation. Regulation has an instrumentally rational character. One problem at a time – the market will do the rest. The reality of ecological damage suggests otherwise – namely that market failure is the rule rather than the exception and instrumentally rational regulation woefully ill-equipped to ameliorate that damage. Expecting regulation to reverse this damage requires wilful blindness to the deep rooted and fundamental failure both of markets and of regulation.
Regulation fails to recognise capitalism’s dependence on, and destruction of, Earth’s increasingly vulnerable ecosystems. Regulation and governance, writ large, must be re-orientated to recognise the utter dependence of our societies, our economies, and even our governance systems, on soil, on water, pollinators, trace minerals, and the whole host of more than human, multi-species, other than human webs and entanglements that make up Earth’s bountiful ecosystems. At the most basic level, everything we have built and operate depends on a stable climate, which is being radically reshaped by climate disruption. This reorientated regulation we call ecologically responsive regulation. It provides both analysis of the problems with regulation as currently conceived and provides an alternative guide for regulation consistent with tackling the ecological crises we now face.
The instrumental – one problem at a time – character to regulation, combined with the assumption that competitive markets will do the heavy lifting in reducing harm, creates proliferation, contradiction and confusion. It results in multiple regulatory regimes which compete for attention. This has a particularly negative impact on small businesses, including those that genuinely aim to thrive by producing new business models that meet a human need or desire while also protecting, restoring or rebuilding healthy social and ecological systems. Smaller and genuinely ‘innovative’ enterprises often find it difficult to fit their model into compliance with multiple overlapping regulatory regimes all built on the template of larger and legacy businesses. Further, larger, better resourced firms can adapt to incremental regulatory reform by making small and largely inconsequential adjustments to their business model while continuing to contribute to ecological destruction under cover of good citizenship. Multiple overlapping regimes requiring attention privilege large, industrial businesses with bureaucratic management systems at the expense of genuine alternatives. For example, smaller, agro-ecological mixed farms may find it punishing to comply with multiple food safety, labour and environmental laws predicated on a model of industrial agriculture that favours industrial monoculture crop and animal agriculture.
This ‘instrumentally rational’ approach to regulating business has been severely criticised. The most vocal critics are those that push for significant deregulation (slashing red or ‘green’ tape) to allow greater innovation, entrepreneurial flair and accumulation of wealth. Criticism of instrumental regulation is warranted, but the analysis of both the problem (regulation constrains economic growth) and the desired goal (enhancing productivity and growth) stubbornly ignores the ecological crises we face.
Improved regulation: responsive, plural and networked
Instrumentally rational regulation is not the sole lens for regulatory governance. An alternative paradigm, responsive regulation, encourages regulatory regimes to be more responsive to the range of individuals and communities who are affected by harmful business behaviour. The social, political, and economic environment that surrounds a particular business, industry or economic sphere often includes multiple agents and influences that could smartly be harnessed to leverage improved business behaviour. Some of these influences can be directly brought into regulatory regimes, such as empowering consumers, unions or civil society organisations to play a direct role in standard setting, or in additional monitoring of business adherence to regulatory standards. Others can act independently from government oversight in various private regimes involving multiple stakeholders and different accreditation systems.
For example, environmental regulation protecting local suburban creeks can simultaneously involve a range of controls on local industry: direct command and control environmental regimes, various forms of civil society monitoring and third party certification for environmental sustainability. Responsively rational regulation shows how plural actors can create networks that pushes and pulls business activity into line with environmental standards that can ameliorate ecological damage.
Yet, neither instrumental nor responsively rational regulation envisions regulation’s fundamental goal as to bring economic activity within the capacity of local, regional and planetary eco systems.
Ecologically responsive regulation
Ecologically responsive regulation recognises our fundamental reliance on and connection to Earth. Further, that non-human animals, plants, microbes and more (our ecosystem) also ‘regulate’ and shape business activity. It is essential, then, that our ecosystem is protected. To do this, ecologically rational regulation draws on both instrumental and responsive regulation whilst charting a path that can ensure regulation becomes part of the solution to ecological crisis rather than part of the problem. Ecologically responsive regulation rests on key principles to guide regulatory reform. These include:
Tackling industrial monocultures. As industries have turned to monocultures, ecosystems are degraded, and multiple vulnerabilities emerge. Monoculture is the domination of a single mode of production, or technology, or type of food, fruit or vegetable. Monocultures reshape ecosystems and increase our vulnerability. This is well illustrated by current food systems that are dominated by factory farming, mass production and selection of a few plant and animal species for human consumption. Ecological problems emerge (with soil, waste, cruelty and human ill-health). Monocultures create a haven for specific (and problematic) animals, plants and microbes to thrive (such as Panama disease wiping out production of monocultures of Gros Michel bananas in the 1950s).
Encouraging diversity, human and ecological wellbeing. Ecosystems thrive on diversity. Regulatory regimes must promote behaviour premised on diversity and ecological health. Regulation should not ‘pick winners’ but ought to promote diversity and competition between businesses that are pursuing and achieving ecologically sustainable goals. It should facilitate businesses that are achieving those goals to ensure they do not remain in the minority – niche businesses serving few consumers. At the same time, regulation must hold all business accountable (in particular large businesses) in ensuring they cannot hide behind measures best understood as ‘greenwashing’.
Redirecting finance and redefining corporate purpose. Profit-oriented businesses and the financial markets that fund them predominantly fuel overconsumption that in turn fuels ecological destruction. ‘Green’ approaches to finance and ‘triple bottom line’ approaches to business activity remain insufficient to stem current levels of ecological destruction. Alongside ecologically responsive regulation targeting production there needs to be ecologically responsive regulatory approaches to radically redirect both finance and corporate purpose to align with ecologically sustainable business activity.
’Once upon a time’ as historian Sunil Amrith points out ‘all history was environmental history’. The current environmental crises – and failures of instrumental regulation - remind us again that all human action is ultimately environmental, and that all regulation and governance – even corporations law - is therefore in the end environmental regulation and governance. The priority of ecological health means we cannot focus on one business harm at a time. The practice of ecological regulation must conceptualise economic and social life as grounded in ecological systems. Once the poor cousin in economic and social trade-offs, the Earth itself no longer allows such indulgence. Regulation has to be embedded in a foundation of planetary boundaries and better understand interconnected problems and interconnected solutions. These challenges are social as well as ecological. Inequality (including unequal access to ecologically desirable technologies and consumer goods) generates division, resentment and risks political backlash, deepening ecological crises. We cannot afford this outcome.
This series of blog posts is dedicated to identifying and discussing regulatory approaches that can address the ecological crisis we face and deal with more than one problem at a time. Ecologically responsive regulation presents a fundamental shift in the purpose of regulation. It faces many hurdles – but offers a better chance of ensuring we can pull back from breaching the planet’s ecological boundaries