Linking Law and New Governance: Examining Gaps, Hybrids, and Integration in Water Policy

• Date: 01 January 2016
• Author: Cameron Holley
• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/lapo.12048

Linking Law and New Governance: Examining Gaps,

Hybrids, and Integration in Water Policy

CAMERON HOLLEY

Since the 1980s there have been significant shifts from traditional environmental enforcement

toward networks, cooperation, and more pluralized forms of governance. The most recent

iterations of these new approaches are increasingly characterized as New Environmental Gov-

ernance (NEG). A range of common characteristics that include collaboration, participation,

adaptation, and nonbinding guidelines and agreements define NEG approaches. Despite a

growing NEG literature, it is unclear whether and how NEG can be effectively implemented in the

same policy domain as traditional hard law. This article empirically explores and theorizes the

dynamics of NEG’s interaction with conventional law. It proposes a spectrum of eight possible

interactions between traditional law and NEG approaches, before evaluating three distinct

perspectives, namely, gaps, NEG in the shadow of the law, and integration. It studies these

relationships by empirically evaluating three case studies from Australia, New Zealand, and the

United States that correspond to these interactions. The article explores the strengths and

weaknesses of the three relationships. It finds that a significant barrier to achieving productive

cohesion between law and NEG is the worldview of regulators, who eschew NEG collaboration

as ineffectual or incompatible with hard law. Recommendations are offered on how to better

achieve cohesive implementation between law and NEG.

INTRODUCTION

Traditionally, law has been viewed as the primary mechanism for achieving social change.

Lawmakers have sought to identify desirable environmental and social conditions, and the

practices supposed to lead to them, and have left the rest to implementation and enforce-

ment (von Benda-Beckmann 1989). However, the idea that the law alone can engineer

social change has proven inadequate (ibid.).

Environmental law provides a vivid example of these limits. Initially, governments and

their agents managed environmental problems through implementation and enforcement

of strict rules and standards set out in legislation and treaties (Gunningham 2009).

However, with the rise of neoliberal ideals in the 1980s, governments began to shift their

attention away from this Westphalian vision of state power through hierarchy. Environ-

mental degradation was, in many cases, to be curbed via market-based approaches,

voluntarism, and other light handed policy initiatives such as partnerships and coopera-

tion (Gunningham and Holley 2010). Yet, by the end of the 1990s, continuing ecological

I am grateful for the suggestions of the three peer reviewers, the helpful comments of Neil Gunningham and

Darren Sinclair, the research assistance of Bonnie Perris, Antonia Ross, and Genevieve Wilks, and the valuable

guidance provided by the Editors of Law & Policy. The research was supported under the Australian Research

Council’s Discovery Early Career Researcher Award funding scheme (DE140101216). Some elements of the

article were presented at the ECPR General Conference 2014, Glasgow, Scotland, September 3–6, 2014, and

appear in Holley and Lawson (2015) and Holley (2012, 2015).

Address correspondence to: Cameron Holley, UNSW Australia—Law, Law Building, Sydney, New South

Wales 2052, Australia. Telelphone: +61(2)9385 7476; E-mail: c.holley@unsw.edu.au

LAW & POLICY, Vol. ••, No ••, •• 2015 ISSN 0265–8240

© 2015 The Author

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doi: 10.1111/lapo.12048

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doi: 10.1111/lapo.12048

degradation and increasing complexity of social and environmental problems saw a fresh

shift toward New Environmental Governance (NEG) (Holley, Gunningham, and

Shearing 2012). Although there is no single NEG model (van der Heijden 2015; Holley,

Gunningham, and Shearing 2012; Karkkainen 2004), this approach is commonly identi-

fied by a number of defining characteristics, including collaboration, participation, delib-

erative styles of decision making, and often nonbinding (or soft law) guidelines and

agreements.

Consistent with evolving understandings of NEG, not all these characteristics need be

present for a particular practice or program to fall within this category—indeed there are

very few single institutional forms that fully capture the idea of NEG in its entirety

(Gunningham 2009). However, the more characteristics that are present, the stronger the

claim that they fall within the category of NEG (Holley, Gunningham, and Shearing 2012;

de Búrca and Scott 2006). Broadly, similar shifts toward collaborative and polycentric

styles of governance have been thought about under alternative and distinct theories

(Burris, Kempa, and Shearing 2008; Rhodes 2007; for disambiguation between theories,

see Karkkainen 2004; Parker and Braithwaite 2003). However, in contrast to the wider

new governance literature (e.g., Velluti 2013; Tollefson, Zito, and Gale 2012; de Búrca and

Scott 2006), very few of these theories have focused on environmental and water policy

making, which is the subject of this article (Sabel and Simon 2011).

Environmental protection and water management have in fact been productive spaces

for real-life experimentation with new governance arrangements (van der Heijden 2015;

Holley, Gunningham, and Shearing 2012; Sabel and Simon 2011; Scott and Holder 2006;

Karkkainen 2002). Core reasons for this include the inherent uncertainty and complexity

associated with environmental systems, the tendency for environmental problems to cross

traditional human-defined jurisdictional boundaries, and a growing recognition that envi-

ronmental solutions require behavioral change at multiple levels, including the individual,

corporate, and the state (Holley, Gunningham, and Shearing 2012; Tollefson, Zito, and

Gale 2012). NEG’s characteristics are thought to deliver benefits in these circumstances

where traditional approaches cannot, by deepening collaboration and polycentrism, with

the state no longer necessarily playing the central role in decision making and implemen-

tation (Ostrom 2010; Gunningham 2008; McGinnis 1999). Under such nodal governance

arrangements (Johnston and Shearing 2003), power is diffuse, and sanctions, in the

absence of state or other regulatory mechanisms, involve public shaming and other forms

of informal social control (Gunningham 2008). Deliberative and participatory approaches

are also pursued to change behavior by focusing on internalized drivers and norms,

developed from social context and shared values (Holley and Lawson 2015).

Examples of NEG are increasingly evident across the globe. These include Regional

Natural Resource Management in Australia, which involves wide-reaching government

and nongovernment partnerships through the formation of fifty-six regional bodies to

plan, set priorities, and implement actions to improve resource conditions; Audited Self-

Management in New Zealand, which facilitates collaborative self-managed groups of

farmers to monitor and control the behavior of their members and report to independent

third parties and the regulator on achievement of agreed water outcomes; the California

Delta Plan in the United States, which seeks to facilitate cooperation and coordination

between over 200 affected agencies via a new collaborative regulatory body to provide a

more reliable water supply for California and protect, restore, and enhance the Delta

ecosystem (Frank 2010); and the Water Framework Directive in Europe, which requires

member states to achieve good water status through mixing binding legal rules and

standards with nonbinding forms of cooperation and greater stakeholder participation

(Trubek and Trubek 2007).

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