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Environmental Protection Through E-Regulation: Critical and Empirical Perspectives


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Sometimes the most commonplace and uninteresting tools demand close attention because their mundane nature means that their role is misunderstood. The use of computer technology by government – specifically, by environmental regulators – is one such instance. Information and communications technology (ICT) is increasingly deployed in bureaucratic and regulatory processes throughout the developed world; as in commerce and industry, software code and databases are becoming the invisible ‘glue’ that interconnects the various actors in the regulatory system and weaves an invisible web of control between decision-makers, regulated entities and ordinary citizens. Nonetheless, this topic has received only disconnected academic attention, perhaps because there is little that seems intrinsically interesting about a database.

The issues which ICT raises are not always obvious but nonetheless significant if we are to make the best use of these new tools without unwittingly sacrificing important principles. There is now a substantial body of literature on regulation and ICT. However, this focuses on either ‘information’ or ‘communications’, rarely on both together or on the use of ICT for regulation rather than something to be regulated. There are few theoretical or practical perspectives on the role of ICT in environmental regulation. This paper applies both in combination, developing a values-based, analytical and empirically grounded framework in order to contextualise the use of ICT as a regulatory tool.

The ever-increasing deployment of ICT in homes and offices, the built environment and the world at large creates significant opportunities for achieving better environmental outcomes but this new and poorly-understood development also raises questions about the proper operation of the rule of law by an increasingly computerised state. This research explores how the widespread implementation of ICT is altering power relationships in the system of environmental regulation. It asks to what extent this new capability of large-scale information capture leads to more or less control on the part of regulators, whether existing balances and imbalances of power are altered by these new tools (even when they are seen as neutral) and what happens when the ‘glue’ hardens and installed technology makes policy change difficult.

The paper critically reviews the operation of the rule of law in digitised government. It combines theoretical perspectives from sociology, chiefly actor-network theory, with insights from semi-structured interviews with staff in regulatory agencies, non-governmental agencies and regulated entities, to build a thematic network model of how the use of ICT for information-gathering, as a means of control and as a conduit for communications is perceived by practitioners of environmental regulation. It uses this to sketch the contours of a new field of study, ‘e-regulation’, centred around the core values of the

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Environmental Protection Through E-Regulation: Critical and Empirical Perspectives

  1. 1. Environmental Protection Through E-Regulation: Critical and Empirical Perspectives Using a Rule of Law Analysis Rónán Kennedy PhD student, Faculty of Laws, Image: European Space Agency
  2. 2. Overview • Background: ICT and environmental regulation • ICT in Regulation: Rule of Law issues • Findings from empirical research • Conclusions and recommendations
  3. 3. Benefits of ICT for ER New modes of regulation Improved resource efficiency Increased effectiveness
  4. 4. Applications of ICT Information gathering Remote sensing and satellite imaging Waste management Land-use change Fisheries protection Remote harvest reporting Vessel monitoring systems
  5. 5. Applications of ICT Analysis and modelling Support for compliance and enforcement e.g. MARPOL, Kyoto Protocol Managing markets for intangible property e.g. water rights, emissions trading
  6. 6. Applications of ICT Information dissemination and ‘reflexive’ regulation Envirofacts ( Toxics Release Inventory ( Scorecard (
  7. 7. Applications of ICT ‘Smart’ goods, services and processes: Smart logistics Smart buildings Smart grids and smart meters Smart products
  8. 8. Law and ICT: Unpacking the Relationships • What are the consequences of the widespread use of ICT by regulators? • The computer as an invisible and unstudied tool • ICT as ‘frozen institutional discourse’ • Example: Tamil Nadu land registry
  9. 9. E-Regulation Cannot simply re-use private sector experiences New research topic: “The use of ICT within regulators and those who deal with them, such as NGOs, as an integral part of the process of measurement, assessment and feedback which is central to regulation.”
  10. 10. Benefits of E- Regulation Benefits: cheaper, more, quicker, better, new Improvements: Better informed More targeted More iterative More transparent and democratic
  11. 11. Difficulties with E-Regulation ICT not neutral or deterministic Impact on existing imbalances? Disempowering external actors Brake on change: Institutional Organisational Procedural
  12. 12. ICT and Legal Processes Legal processes neither simple nor linear Not easily modelled by logic or expert systems Risk of destructive feedback cycle ICT as embedded and entrenched infrastructure
  13. 13. Rule of Law  ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (Lord Bingham)  Essential elements (Venice Commission):  Legality  Legal certainty  Prohibition of arbitrariness  Access to justice before independent and impartial courts  Respect for human rights  Non-discrimination and equality before the law
  14. 14. ICT and the Rule of Law  Preserving regulatory discretion while ensuring fairness  ‘Ambient Law’  Dangers of digital decision-making  Closed, inflexible, unaccountable systems  Containing assumptions, biases, mistakes
  15. 15. Querying the Myths of E-Government  Formalising practices and knowledge is difficult  ICT can be a brake on reform  People can resist ICT-driven change  Need to ‘Get It Right First Time’
  16. 16. “Get It Right First Time” Awareness of ICT and power relationships Design principles: Flexibility Rule of law Human rights Open, re-usable data
  17. 17. Configuring the Networked State  Open source code  Increasing digital literacy  ‘Governance on the Inside’