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

Abstract

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 Governance (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.

Next-Generation Environmental Regulation: Law, Regulation, and Governance

“…This is particularly true at the domestic level, where substantial pockets of command-and-control regulation are alive and well (and indeed beginning to reform delivery through new technologies, as discussed above; see also De Burca & Scott 2006, Holley 2015.…”

“…One particularly fruitful area of research regarding these issues has focused on whether and how NEG interacts with earlier phases of environmental law. Although a range of possible relationships have been identified (see, e.g., De Burca & Scott 2006, Holley 2015, Shulz & Lueck 2015, at least some of NEG's impact appears to depend on the presence or threat of more conventional forms of law, regulation, and the state (Carrigan & Coglianese 2011, pp. 119-20;De Burca et al 2013;Gunningham 2009b).…”

“…Prominent examples include the establishment of 56 regional natural resource management bodies in Australia (Gunningham 2009a, Holley 2010, collaborative approaches to water management in New Zealand (Holley & Gunningham 2011), and endeavors of multiple agencies and stakeholders addressing competing demands on water resources in the Bay Delta in the United States (Freeman & Farber 2005, Holley 2015.…”

Place‐based collaborative governance: The potential influence of governments

“…Such initiatives may arise in response to local problematic or crisis situations or to fill gaps created by central governments retreating from, or devolving responsibilities to lower levels of government for, the provision of services (Brandsen et al, 2017;Nederhand et al, 2016;Wild River, 2006a). These initiatives may be considered as emerging either from outside the direct authority of government or in the shadow of governmental influence (Edelenbos et al, 2018;Holley, 2016;Igalla et al, 2019;Nederhand et al, 2016Nederhand et al, , 2018. In this context, underpinning community self-managed collaborative governance initiatives is an apparent reluctance to allow central governments to control community agendas and actions (King & Cruickshank, 2012).…”