Chapter 1 explains how examples used in this chapter were chosen.
Chapter 2 synthesizes key challenges related to regulatory intervention and introduces the CIRCle Framework of regulatory functions for addressing cumulative environmental problems.
Chapter 3 sketches the landscape of laws that may respond to cumulative environmental problems.
Chapter 4 (“Conceptualization”) discusses rules for articulating what and who we want to protect from cumulative impacts (the “matter of concern”), which rules for intervention seek to protect or restore.
Chapter 5 (“Information”) discusses rules for collecting and analyzing data and information needed to inform regulatory intervention.
Chapter 7 (“Coordination”) covers coordinating interventions between levels of government, including involving nongovernment and quasi-government stakeholders.
Each case study (Chapters 8–10) discusses links between intervention and one other CIRCle Framework function.
6.1 Intervention as a Regulatory Function
Rules for regulatory intervention are probably what we come to first when we think about rules. The basic purpose of regulatory intervention is to change the impacts that accumulate to harm something that we care about – a “matter of concern.”Footnote 1 The main argument of this chapter is that regulating cumulative environmental problemsFootnote 2 requires a mix of formal rulesFootnote 3 for intervention, combining different strategies and approaches from across the typologies developed here. The design of this mix should address key challenges (discussed in Chapter 2)Footnote 4 that make dealing with cumulative environmental problems difficult. To start with, these include challenges to perceiving the risks of many individually minor threats, a sense of futility and short-termism that can prevent intervention occurring. Then, even when intervention is on the cards, ethical ambiguity about how to allocate responsibility among many actors can hinder action. Finally, when interventions are in place, arguments about certainty and fairness, path dependence, risk aversion, and single action bias can impede adaptive management of interventions to suit changing circumstances and new information. To this catalog of difficulties, this chapter adds those posed by decision-making structures and interventions themselves, namely, legal silos that produce fragmented decision-making and administrative burdens. Although rules alone cannot solve a cumulative environmental problem, these challenges suggest rules will play an important role.Footnote 5
This chapter exploresFootnote 6 how rules for intervention can vary and the implications of this variation for addressing cumulative environmental problems. Section 6.2 develops a typology of regulatory “strategies” – harm-reducing, harm-offsetting, restoring, and coping – that focuses on how rules seek to change cumulative harm to the matter of concern. Section 6.3 expands a classic regulatory theory typology of “approaches” – regulatory sticks, carrots, and sermons – that focuses on how rules seek to change the activities of contributors to the cumulative harm or restoration (termed “contributors”). To these three approaches, I add “state rescue,” where a state acts directly to address the harm rather than trying to influence others’ behavior. Combining these typologies of strategies and approaches (Section 6.4) produces a matrix of formal rule-based interventions for dealing with cumulative environmental harms. Each individual “intervention” can be characterized by its “strategy” and regulatory “approach.” This matrix helps identify diverse and some underexplored intervention opportunities. Section 6.5 then discusses crosscutting design features for interventions that respond to key challenges posed by cumulative environmental problems and presents examples of legal mechanisms that adopt them. These features involve ensuring that decision-making about individual activities is connected so that it reveals how harm accumulates, that intervention is comprehensive and appropriately enforced, that administrative costs are managed and that interventions can be adaptively changed where necessary, taking account of concerns about fairness. Throughout the chapter, the focus is on applying these ideas to cumulative environmental problems specifically, noting that extensive scholarship deals with design issues for different types of regulatory interventions in general and in relation to broader environmental issues.Footnote 7
As emphasized in earlier chapters, each of the four functions of the CIRCle Framework advanced by this book (conceptualization, information, regulatory intervention and coordination) is needed to respond to cumulative environmental problems, and these functions are interlinked (Figure 2.1 depicts these basic links). Rules for intervening deal with potential or existing unacceptable cumulative harms to a clearly conceptualized matter of concern (Chapter 4), using information about something we care about (the “matter of concern”) and the harms (Chapter 5), in a coordinated way (Chapter 8). Figure 6.1 summarizes these links in a more detailed way that is relevant to rules for intervention, and these links are explored further as the chapter proceeds.Footnote 8
Integration of legal mechanisms for intervention with other CIRCle Framework functions, each necessary for regulating cumulative environmental problems
Figure 6.1 Long description
The interactions are as follows. 1. Regulatory intervention addresses unacceptable change to clearly specified dimensions of conceptualization. 2. Conceptualization drives, directs and influences approaches to regulatory intervention. 3. Regulatory intervention requires producing and sharing, and responds to unacceptable effects revealed by, information. 4. Information justifies, triggers and shapes regulatory intervention. 5. Regulatory intervention shows the need for, and may provide processes for coordination. 6. Coordination facilitates comprehensive and consistent regulatory intervention.
6.2 How Can Rules Affect Aggregate Harm? A Typology of Regulatory Strategies
Our matrix of opportunities for regulatory intervention starts with regulatory strategies. This section develops a four-part typology of strategies by focusing on the matter of concern – what and who we want to protect from cumulative harm, or restore – and how rules try to influence cumulative change to its conditions. This closely links to thresholds of acceptable change that rules for conceptualization can formalize (cumulative threshold conditions lines, Figure 6.2),Footnote 9 supported by rules for information about the condition of the matter of concern relative to the threshold of unacceptable cumulative harm.Footnote 10 In addition to general regulatory literature, the typology of strategies developed here is loosely inspired by frameworks for responding to ecological transformation,Footnote 11 which implicitly address cumulative ecological harm; and prominent critiques of environmental offsets.Footnote 12
Four regulatory intervention strategies to ensure acceptable cumulative effects – reducing harm, offsetting harm, restoring, and coping
Figure 6.2 Long description
It is recommended to use multiple strategies to address unacceptable cumulative harm: strategies include to reduce harm, offset contemporary harm, restore past harm, and cope. Without intervention, cumulative effects exceed acceptable levels. A bar depicts adverse actions 1, 2, and 3, and another bar depicts the cumulative effects of actions 1, 2, and 3. The bars are under cumulative threshold conditions in the situation with intervention.
Considering regulation by centering the matter of concern aligns with cumulative environmental impact analysis.Footnote 13 But focusing on the matter of concern differs from regulatory scholarship that tends to focus on how rules try to change the behavior of regulated parties, which has produced the typology of regulatory approaches discussed later.Footnote 14
In sum, rules can adopt four main strategies to influence cumulative change to a matter of concern: reducing cumulative harm in absolute terms, by reducing or avoiding adverse effects; “neutralizing” or offsetting proposed negative effects by encouraging beneficial actions; restoring (reversing legacy harm that occurred in the past); and employing measures that help a matter of concern cope with change to reduce the harm caused by cumulative impacts without changing the activities that lead to impacts (Figure 6.2). Section 6.2.1 introduces each, and Section 6.2.2 assesses their advantages and disadvantages in addressing cumulative environmental problems.
6.2.1 Harm-Reducing, Offsetting, Restoring, and Coping Strategies
Rules that adopt a harm-reducing strategy seek to directly reduce the absolute level of cumulative harm by preventing or changing actions with adverse effects (“adverse actions”) to reduce or avoid harm (Figure 6.2, top right). This is probably what comes to mind first when we think of rules relating to environmental harm. For example, rules mandate and incentivize farmers to reduce polluted runoff that affects the Great Barrier Reef (“Reef”), prohibit commercial fishing in certain zones, and facilitate controlling harmful invasive starfish.Footnote 15 In each case, the absolute level of harm to the Reef decreases if the rule is effective.
A harm-reducing strategy most clearly links to cumulative impacts if it takes the form of a “performance standard”Footnote 16 that limits cumulative change to a matter of concern. A rule may require polluters to change their behavior to meet ambient air quality standards (cumulative conditions) rather than require them to adopt a specific pollution-reducing technology. The former option adjusts the required behavior to account for increasing numbers of polluters, and pollution; the latter does not. Quantitative limits, a type of performance standard, can apply to traditionally regulated resources (e.g., total water withdrawals, ambient air pollution), as well as emerging issues (e.g., consumption of “domestic primary raw materials”).Footnote 17 Developing quantitative limits is more challenging where it is harder to express in quantitative terms what is important about the matter of concern – a challenge that can arise in the context of biodiversity, for example.Footnote 18
A second strategy is offsetting, or encouraging actions with positive effects to “make room” for adverse actions.Footnote 19 Rather than reducing absolute harm, the aim is usually to achieve or maintain an acceptable net level of harm (Figure 6.2, middle right). This strategy is important where small but cumulatively significant harms cannot be reduced.Footnote 20 Offsetting applies in diverse contexts, such as land use, biodiversity, greenhouse gas emissions, water quality, and water withdrawals,Footnote 21 and can form an important part of cap-and-trade systems.Footnote 22 Offsetting implies that impacts are fungible, which is not always the case, and it will be more difficult and controversial to develop where it is hard to develop quantitative limits.Footnote 23
When the harm occurred in the past, we can distinguish a related third strategy of restoring. This looks similar to offsetting in terms of the end effect (Figure 6.2, middle right), but restoring rules likely target someone other than the original contributor to the impact, who may be long gone or not identifiable. Dedicated nature restoration or “repair” laws are now emerging in diverse jurisdictions,Footnote 24 though they are a long-standing part of nature laws in some places.Footnote 25
As an alternative to focusing on adverse impacts and benefits, a strategy may seek to intervene by helping the matter of concern to cope betterFootnote 26 with the cumulative impacts of adverse actions (Figure 6.2, bottom right). This strategy breaks the link between impacts and harm. Unlike the other strategies, this one allows activities to cause comparatively more impacts without unacceptably harming the matter of concern. In the California groundwater case study,Footnote 27 rules support funding a householder whose well has gone dry to deepen their well to enable them to cope with declining groundwater levels. The result is that agricultural groundwater users can continue pumping even when this causes groundwater levels to decline, because householders can cope with these impacts, maintaining their access to groundwater using deeper wells – though with risks discussed later.
For completeness, it is worth noting a final possible response to a problem: reconceptualizing the matter of concern to accept greater cumulative change. Rather than being an intervention tool, this relates to conceptualization. It may require changing legal rules about “what matters”Footnote 28 to accept more degraded conditions or to pursue novel conditions. Making reconceptualization too easy, though, especially where this can occur on a project-by-project basis, poses the critical risk of “shifting baselines”Footnote 29 and inadvertently increasing cumulative impacts. Adapting conceptualizations – and the importance of not conflating this with intervention – are addressed in Chapter 4 (Conceptualization). The remainder of this chapter discusses regulatory intervention using reducing, offsetting, restoring, and coping strategies.
6.2.2 Assessing Regulatory Strategies
The legal, economic, political, social, and physical feasibility of each strategy will vary with the jurisdiction and matter of concern. However, we can make some general observations about likely drawbacks of different strategies by considering two factors – how reliably a strategy changes cumulative environmental outcomes (“outcome reliability”) and the degree to which a strategy burdens contributors to the harm (“regulatory burden”) – and how they can be addressed. These factors are likely to influence political and social feasibility – a key challenge to regulating cumulative environmental problems.Footnote 30
A harm-reducing strategy most reliably controls cumulative harms because it prevents adverse impacts in the first place (Figure 6.2, top right). It avoids the well-recognized risks that a beneficial action will not adequately counter adverse effects (i.e., nonequivalence),Footnote 31 uncertainty about whether measures to increase coping capacity will work,Footnote 32 and risks that offsetting, restoring, or coping measures might fail or might work initially but fail with time (as where wildfire affects a forest planted for carbon credits).Footnote 33 Even high-fungibility contexts such as carbon offsets can involve “durability risks” or “risks of reversal.”Footnote 34 Some regulatory regimes recognize that incomplete offsetting is sometimes inevitable – a planted forest gains ecological function only over time – and require “overcompensation” for “interim losses.”Footnote 35 Another common way to reduce risk is to allow offsetting only after impacts have been avoided and reduced as much as possible.Footnote 36 An important question for implementation is whether this avoids the risk that the mere fact that offsets are available might shut out the more reliable, but burdensome, strategy of reducing harm (i.e., “mitigation deterrence”).Footnote 37 The severity of these risks related to offsetting, restoring, and coping strategies can vary with context and deserve careful consideration. Helping a small community cope with declining groundwater in California’s Central Valley by drilling deeper wells using existing technology produces more reliable outcomes than helping the spatially extensive Great Barrier Reef cope better with climate heating using novel shading infrastructure.Footnote 38
To avoid unintended harms related to offsetting, restoring, and coping strategies, it is especially important to appropriately conceptualize the matter of concern. Firstly, conceptualization may “lock in” ongoing cumulative effects if a goal that forms part of the conceptualization, for example, “no net loss,” is expressed relative to a “presumed trajectory of ‘background’ decline,” rather than relative to a stable set of conditions.Footnote 39 Secondly, offsetting might simply not be feasible in some situations, for example, where demand for offsets exceeds supply,Footnote 40 which could create pressure to allow offsets that do not benefit the matter of concern as originally conceptualized (i.e., nonequivalence). A finite supply of offsets raises the need for rules about enabling equitable access to offsets among proponents of activities that would require them for their activities to proceed.Footnote 41
Offsetting, restoring, or facilitating coping related to one matter of concern may also harm another thing that is not formally recognized to “matter” in a particular context. If a rule adopts ecosystem services, which benefit people, as a matter of concern, an offset strategy may allow harm to biodiversity that offers no readily identifiable benefits to people.Footnote 42 Related to this, environmental offsets without adequate safeguards may also harm people through, for example, direct and indirect impacts on Indigenous rights.Footnote 43 A funding scheme for well deepening will not increase the coping capacity of ecosystems affected by declining groundwater, or of well owners who experience barriers accessing the scheme.Footnote 44 To avoid harming other matters of concern, regimes for offsetting, restoring, or coping that are directed at one cumulative environmental problem (e.g., carbon offsets) might require safeguards in the form of, for example, no negative impact on the matter of concern at the heart of another cumulative environmental problem or social values (e.g., carbon offsets that do not harm biodiversity or traditional access to land).Footnote 45 Designing these safeguards requires coordination across regulators responsible for dealing with these different problems.Footnote 46 If well-designed, offsetting and restoring may have co-benefits for other matters of concern, say, community development benefits, and coordination can help structure regulatory systems to create synergies between offset regimes for different matters of concern.Footnote 47
Considering how strategies burden contributors reveals trade-offs between these burdens and outcome reliability. Requiring a contributor to change their operations to reduce their impacts (a harm-reducing strategy) likely burdens them more than if they operated as normal, on condition that they fund riskier measures to neutralize their impacts (harm-offsetting) or on condition that they act to increase the coping capacity of a matter of concern. But different ways of requiring harm reduction can change burdens on contributors and may make it easier for them to reduce harm. Performance standards, for example, allow greater flexibility and reduce cost compared to reducing harm using a specified technology that applies universally to contributors.Footnote 48 If a cumulative environmental problem has more numerous and diverse contributors, it will logically be easier to reduce aggregate harm if one contributor can pay another to offset, compared to a problem involving fewer, more homogeneous contributors: offsets will reduce costs more in the first situation (which has the characteristics of a cumulative environmental problem) than in the second. Depending on how the matter of concern is conceptualized, spatially diverse contributors to the same environmental problem may allow for selecting an offset location to increase environmental benefits.Footnote 49
Administrative burdens to government, on the other hand, are less easy to generalize within and across different strategies. Different types of harm-reducing strategies may entail different costs for contributors to harm and regulators. For example, performance standards that refer to cumulative harm arguably best reflect cumulative impacts, and may reduce costs for contributors, but enforcing them may cost regulators more than enforcing technology standards (e.g., continuous pollution monitoring vs confirming the installation of specified technology).Footnote 50 Scientific uncertainty will also influence administrative cost. If there is uncertainty about what activities cause harm, or whether an offsetting or coping strategy will work, justifying a strategy may require research and more intensive monitoring to verify the outcome,Footnote 51 increasing administrative burdens. Since legal regimes are not traditionally established to facilitate environment-related coping, relative to other strategies, more regulatory barriers may obstruct rules for coping.Footnote 52
6.3 How Can Rules Influence Behavior that Has Cumulative Effects? A Typology of Regulatory Approaches
While regulatory strategies focus on how rules affect cumulative harm relative to a level of acceptable conditions, regulatory approaches focus on contributors to the harm, and how rules try to change their behavior. Regulatory theorists have developed many ways of classifying regulatory approaches, none of which is universally accepted.Footnote 53 Section 6.3.1 uses the simple framework of mandatory “sticks,” incentive-based “carrots,” and information-based “sermons,”Footnote 54 adding an option that sidesteps influencing the behavior of contributors in favor of the state directly taking action (“state rescue”) (Figure 6.3). A further important adjustment reflects this book’s focus on formal rules: Each approach is based on enforceable rules.Footnote 55 Since regulatory theoryFootnote 56 says little directly about cumulative effects, Section 6.3.2 applies a cumulative environmental harm lens to analyze, from first principles, the advantages and disadvantages of each approach. It argues that cumulative environmental problems magnify known theoretical weaknesses of each approach and that no single regulatory approach is universally best suited to dealing with cumulative environmental problems.
Four regulatory intervention approaches to change behavior or use direct state action – sticks, carrots, sermons, and state rescue
Figure 6.3 Long description
The approaches are explained under Stick, Carrot, Sermon, and State Rescue. Stick, mandate changed behavior. Carrot, use incentive or disincentive to change behavior. Sermon, provide information to change behavior. State rescue, act directly to address harm.
Designing an approach to intervention based on the categories discussed in this section depends on and links with rules for information about which actions affect the matter of concern, and are likely to do so in the future. Choosing between regulatory approaches requires information about the many heterogeneous contributors to the problem: their diverse activities; motivations; capacities to change their behavior; and the palatability to them of different regulatory approaches under different conditions.Footnote 57 In addition, coordinating actors that design and implement rules for intervention, as well as those subject to them, and affected communities, has numerous potential benefits. It can reveal the types of information just discussed, promote regulatory consistency, avoid inefficient duplication in rules, and may reveal potentially antagonistic or counterproductive rules.Footnote 58
6.3.1 Regulatory Sticks, Carrots, Sermons, and State Rescue
The historically dominant (and enduringly popularFootnote 59) approach to environmental governance is the regulatory stick used to “command and control.” Traditionally, this approach involves imposing precisely specified and uniformly applied, court-enforceable obligations to control environmentally harmful behavior, supported by penalties for noncompliance.Footnote 60 Regimes might license polluting emissions, and perhaps allow licenses to be traded; prohibit or restrict specified activities or land uses in certain areas or in general; or allocate rights to access a natural resource such as water, fish, or timber.
Regulatory “carrots” use rules to incentivize behavior changes to alter environmental impacts, offering either material or symbolic incentives.Footnote 61 Rule-based subsidies, grants, and even government procurement rules reward those who undertake activities aligned with policy goals. Payments to farmers may encourage extensive pastoralism to preserve grasslands.Footnote 62 Legal rules can support conservation easements accompanied by tax benefits,Footnote 63 or confer formalized awards or other forms of praise.Footnote 64 Conversely, taxes, charges, or levies (for simplicity, “levies”) direct behavior by making less harmful options cheaper, in a relative sense, consistently with the polluter pays principleFootnote 65 (I exclude charges that raise revenue without being designed to influence behavior). As discussed here, mandatory levies are not “sticks” because they do not directly mandate a change in the behavior that causes relevant harm – the contributor could pay the levy and continue their normal behavior.
Understood broadly, regulatory carrots can also encourage desired behavior in other ways. Management-based regulation obliges contributors to write plans rather than achieve substantive goals, which tends to encourage leading firms, though not laggards, to exceed minimum performance.Footnote 66 Other rules can support infrastructure that encourages behavioral change, for example, rules to promote electric vehicle charging infrastructure to encourage take-up of electric rather than gasoline vehicles.Footnote 67 Some rules pair a carrot with a stick, for example, reducing license fees for regulated activities that exceed a minimum regulatory standard.Footnote 68
Regulatory sermons involve rules that require the state or contributors to provide information that aims to change the behavior of the information provider or receivers.Footnote 69 Such rules include requiring a state entity to run training or educational programs to persuade participants to change environmentally adverse behavior; or rules related to consumer-directed environmental information about products, including environmental certification schemesFootnote 70 or public-facing pollution information.Footnote 71 There is growing global enthusiasm for mandatory and voluntary “environmental, social, governance” reporting and “environmental accounting” by firms and governmental units.Footnote 72 These systems recognize and publicize the economic importance of environmental assets, indirectly encouraging their protection.
Other regulatory sermons echo environmental impact assessment (EIA): The Taskforce on Nature-Related Financial Disclosures recommends that firms disclose their impacts on specific ecosystems and species, including cumulative impacts.Footnote 73 Under some circumstances, this approach may have binding force through company directors’ duties.Footnote 74 Some “carrots” support “sermons,” for example, incentives to provide public information about toxic releases.Footnote 75
Finally, in some situations, rules may provide for the state to parachute in a solution to cumulative environmental harm without trying to influence the behavior of the contributors – here termed “state rescue.” That is, the activities that cause impacts still happen, but the state adopts a strategy that affects the overall level of harm that results. In practice, this can be important to address harm from legacy activities that continue to cause impacts long after they have ceased being “active,” or to address the impacts of activities that must continue, where the contributor lacks the capacity to change their behavior. Rules might, for example, provide for the state to remediate pollution from an abandoned mine site.Footnote 76 More controversially, rules might provide for the state to undertake geoengineering to remove carbon dioxideFootnote 77 if regulatory approaches to influencing the behavior of greenhouse polluters fail.
6.3.2 Assessing Regulatory Approaches
Regulatory literature finds clear differences in how reliably sticks, carrots, and sermons achieve policy goals, and their regulatory cost, which is influenced by how flexibly they apply to heterogeneous regulated entities.Footnote 78 This section applies a cumulative environmental harm lens to these issues, assessing the advantages and disadvantages of each approach from this perspective.
Regulatory sticks are traditionally perceived as rigid and inefficient, imposing uniform obligations (e.g., technology standards)Footnote 79 on entities with varying costs of compliance.Footnote 80 However, they offer certainty for regulated entitiesFootnote 81 and relatively high outcome reliability if well enforced. In practice, though, regulatory sticks can be more flexible than they appear due to “pervasive” negotiation between regulators and regulated entities.Footnote 82 This not only reduces burdens for diverse contributors with the resources to negotiate but may also make enforcement more variable and affect the reliability of environmental outcomes.
Contemporary “sticks” use design features that do a better job of accommodating the diverse contributors typical of cumulative environmental problems.Footnote 83 Performance-based or outcomes-based regulation increases flexibility and reduces costs for contributorsFootnote 84 by letting them choose how they achieve preset goals, sometimes through collaborating with other contributors.Footnote 85 However, the fact that obligations vary may make monitoring and enforcing performance more burdensome.Footnote 86 Reliability also decreases if standards are loosely specified (which increases decision-makers’ discretion), or if performance is specified as averages across multiple sitesFootnote 87 (which may inadvertently cause significant localized cumulative harm).Footnote 88
Regulatory carrots and sermons tend to be more palatable to governments and regulated entities than regulatory sticks because accepting an incentive and changing behavior in response to a levy or information is voluntary.Footnote 89 Nonetheless, participants must still expend effort to understand the rules. The state may also bear significant burdens in designing, monitoring, and enforcing the regime to ensure that participants deliver incentivized benefits, pay levies, and provide accurate information.Footnote 90 However, information-based instruments may cost less to administer than sticks or carrots.Footnote 91 The state generally pays for incentives, the costs of which are inefficient if recipients would have acted in the desired way anyway,Footnote 92 but gains revenue from levies.
However, carrots and sermons are also theoretically less reliable than well-enforced regulatory sticks because their voluntariness means they may cause fewer contributors to change their behavior than needed to ensure cumulative harm is acceptable.Footnote 93 Among diverse contributors, some will lack interest, willingness, or capacity to respond to monetary or, probably to a greater extent, information-based motivations.Footnote 94 Sometimes, individual nonparticipant “holdouts” in incentive schemes may significantly reduce outcome reliability if they compromise goals that depend on high participation in specific spatial areas for ecological reasons, such as habitat corridors.Footnote 95
State rescue emerges with quite a different report card. Since it does not try to change contributors’ behavior, it does not represent a burden for them, but it does for the state – and perhaps a significant one. Reliability-wise, the same considerations do not arise as for the other approaches because state rescue does not depend on the actions of non-state contributors. Rather, outcome reliability suffers if there are gaps or weaknesses in the capability of the state to deliver the “rescue” solution. This might happen because of overstretched budgets, changes in political appetite to act, and the like. Depending entirely on state rescue also means relying entirely on the state to deal with potential increases in cumulative harms from contributors, which are not subject to intervention in a direct way.
Overall, well-enforced regulatory sticks provide greater scope reliably to change the behavior of heterogeneous contributors to cumulative environmental harm, in exchange for imposing higher burdens on some of them and confronting potentially higher associated political and social barriers. The voluntariness of carrots and sermons involves lower burdens for contributors, who retain the option of not changing their behavior, but for the same reason, these approaches produce less reliable outcomes. State rescue removes burdens from contributors to the problem and places it on the state, exposing reliable outcomes to risks from politics and government budgets rather than contributors’ failure to act. This high-level assessment of reliability is naturally premised on important assumptions about enforcement and acceptability. These factors need to be considered in a local context, perhaps including, as discussed earlier, harnessing coordination with stakeholders representing regulated entities and affected communities.Footnote 96
6.4 Mixing Regulatory Interventions for Cumulative Environmental Problems
Real-world regulatory interventions are more complex than an individual strategy or approach, firstly, because a single mechanism for intervention combines both elements, and secondly, because addressing a cumulative environmental problem likely requires more than one type of intervention. This section discusses each of these issues in turn.
6.4.1 A Matrix of Strategies and Approaches
Combining regulatory strategies (Section 6.2) and approaches (Section 6.3) produces a matrix of theoretical modes of regulatory interventions. Table 6.1 gives corresponding examples, showing that sticks, carrots, and sermons are each flexible enough to accommodate the full range of harm-reducing, offsetting, restoring, and coping strategies. State rescue may apply to the last three approaches (since, as conceived here, state rescue involves the state acting in respect of others’ harms; if the state directly causes harm, it is a contributor, and rules that adopt any of the four approaches could apply). However, the relative difficulty of finding examples that pursue some forms of coping strategy and sermon approach (Table 6.1) suggests anecdotally that these categories are less developed.
Key: Arrows indicate the direction in which the intervention approach or strategy tends to involve (all else being equal) more reliable outcomes, less voluntariness, and a higher burden for contributors to harm
a Waste Management Regulations Order No. 15 of 2018 (Vanuatu) s 2.
b Rebecca Nelson, “Breaking Backs and Boiling Frogs: Warnings from a Dialogue between Federal Water Law and Environmental Law” (2019) 42 University of New South Wales Law Journal 1179–1214, 1209–1210.
c Canadian Environmental Protection Act 1999 (Canada) ss 46–50; Government of Canada, “National Pollutant Release Inventory” (n.d.) www.canada.ca/en/services/environment/pollution-waste-management/national-pollutant-release-inventory.html, archived at https://perma.cc/WC2A-8S9M. See also Johnston Edwards and Walker, “An Overview of Canada’s National Pollutant Release Inventory Program.”
d See generally, Sonter and others, “Offsetting Impacts.”
e National Environment Act 2019 (Uganda) ss 115, 122 (2)(d), 179 (2)(c).
f J. B. Ruhl and James Salzman, “No Net Loss? The Past, Present, and Future of Wetlands Mitigation Banking” (2022) 73 Case Western Reserve Law Review 411–439, 420–422, 428–429.
g Clean Energy Regulatory (Australia), “Corporate Emissions Reduction Transparency Report 2023” (2024) https://cer.gov.au/markets/reports-and-data/corporate-emissions-reduction-transparency-report/corporate-emissions-0, archived at https://perma.cc/CU53-TU9Y.
h Jose David Henao Casas and others, “Managed Aquifer Recharge as a Low-Regret Measure for Climate Change Adaptation: Insights from Los Arenales, Spain” (2022) 14:3703 Water 1–22. This is formally facilitated under a royal decree: ibid 4. Another example is state provision of coral-friendly public vessel moorings on the Great Barrier Reef to reduce damage from anchoring: Minister for the Environment and the Great Barrier Reef, Minister for Science and Minister for Multicultural Affairs, “New Moorings Enhance Protection for the Great Barrier Reef” (Media statement, November 16, 2023) https://statements.qld.gov.au/statements/99162, archived at https://perma.cc/3NNE-G9PV.
i 土壌汚染対策法 [Soil Contamination Countermeasures Act] 2002 (Japan), as amended, art. 7(1); Miho Ishimaki, “Soil Protection Law in Japan” in Harald Ginzky and others (eds), International Yearbook of Soil Law and Policy 2022 (Springer 2024) 227–242, 237–238. Obligations to remediate others’ pollution may also be imposed under negotiated conditions of water pollution discharge permits in the US: e.g., Rhett Larson, “Orphaned Pollution” (2013) 45 Arizona State Law Journal 991–1032, 1001–1004.
j EU Nature Restoration Law 2024, art. 11.
k Phil Cryle and others, Practical Guidance Notes for Urban Ecosystem Accounting: A Draft Report by Working Group on Urban Ecosystem Accounting in Australia, Prepared for the Interjurisdictional Environmental-Economic Accounting Steering Committee (2021) 70, www.dcceew.gov.au/sites/default/files/documents/practical-guidance-notes-urban-ecosystem-accounting.pdf, archived at https://perma.cc/52D2-PR2Y.
l See Footnote n 76.
m Water Act 2000 (Queensland) s 409; see Rebecca Nelson, “Regulating Cumulative Impacts in Groundwater Systems: Global Lessons from the Australian Experience” in Cameron Holley and Darren Sinclair (eds), Reforming Water Law and Governance: From Stagnation to Innovation in Australia (Springer 2018) 237–256, 246–248.
n Department for Environment, Food and Rural Affairs (UK), “Environmental Land Management (ELM) Update: How Government Will Pay for Land-Based Environment and Climate Goods and Services” (2023) www.gov.uk/government/publications/environmental-land-management-update-how-government-will-pay-for-land-based-environment-and-climate-goods-and-services/environmental-land-management-elm-update-how-government-will-pay-for-land-based-environment-and-climate-goods-and-services, archived at https://perma.cc/QFD8-2C3R.
o Marco Heredia and Beatriz Corral, “Climate Governance and Federalism in Mexico” in Alan Fenna, Sébastien Jodoin and Joana Setzer (eds), Climate Governance and Federalism: A Forum of Federations Comparative Policy Analysis (CUP 2023) 218–240, 228.
p Geronimo Gussmann and Jochen Hinkel, “A Framework for Assessing the Potential Effectiveness of Adaptation Policies: Coastal Risks and Sea-Level Rise in the Maldives” (2021) 115 Environmental Science and Policy 35–42, 39–40; Environment Protection and Preservation Act of Maldives 1993 (Maldives) s 3 (providing for guidelines); Guidelines for Climate Risk Resilient Coastal Protection in the Maldives (2015) www.environment.gov.mv/v2/en/download/13722, archived at https://perma.cc/GR3W-KW5G.
Overall, this matrix suggests that more modes of intervening are available to address cumulative environmental problems than are commonly recognized, and that some common concepts and categories contain more diverse ways of intervening than is first apparent. Take “market-based mechanisms.” The term can refer to diverse things: a water rights market that allows governments to “buy back” rights to reduce aggregate consumptive withdrawals to sustainable levels (reducing harm);Footnote 97 permits that allow “trading” of protected habitat for habitat that will be harmed by a development (offsetting harm);Footnote 98 and a project condition that requires a project proponent to pay into a fund to develop heat-tolerant coral (coping).Footnote 99 Each provides economic incentives to contributors, and is likely to be more politically palatable than a regulatory stick alone. However, the merits of a market in regulating a cumulative environmental problem cannot be assessed without understanding how the market is used to change cumulative harm – the strategy. For the reasons discussed earlier, the harm-reducing strategy of the water rights market will more reliably achieve the desired aggregate outcome than the harm-offsetting strategy of habitat trading or the coping strategy of developing heat-tolerant coral. The matrix, then, allows for a more nuanced view of the risks of a particular intervention in addressing cumulative environmental problems.
The matrix also demonstrates how the choice of regulatory approach and strategy can exacerbate risks where both the approach and the strategy attract the same type of risk. This helps highlight when regulatory designers should pay special attention to making sure that a rule includes features to help combat the challenges that arise. Take burdens to contributors. The combination of regulatory approach and regulatory strategy can exacerbate these burdens (highest at upper left side, Table 6.1). In this case, regulatory designers have comparatively higher need to consider ways to reduce costs to ensure a rule is politically and socially palatable.
Conversely, consider risks associated with reliably addressing cumulative impacts, that is, risks to outcome reliability (highest at lower right side, Table 6.1). Rules that take a carrot approach, for example, entail a relatively high risk to outcome reliability in influencing the behavior of contributors. A rule that sought to incentivize an unproven coping strategy would compound this risk with the further risk that even successful behavior change would not result in the desired ultimate effect – that the matter of concern could cope with higher cumulative impacts without experiencing unacceptable harm. Here, regulatory designers have comparatively higher need to use rules for intervening adaptivelyFootnote 100 to deal with these risks. Another way to address these realizations of heightened risk is to use a mix of regulatory interventions, so that mechanisms that are highly risky on one parameter are balanced by less-risky regulatory options – the topic to which we now move.
6.4.2 The Need for a Mix of Regulatory Interventions
Over two decades of scholarship argues that “policy mixes” offer flexibility and backup where one approach proves less effective, and help to accommodate conditions of uncertainty, complexity, and different types of target actors.Footnote 101 As suggested earlier, this rationale also supports using a mix of interventions that adopt different regulatory approaches and strategies to address cumulative environmental problems, for which these conditions are prominent.
Cumulative environmental problems have characteristics that inherently suggest a mix of regulatory interventions, either used concurrently or adaptively in sequence,Footnote 102 is likely to be more effective than a single strategy and approach. Firstly, contributors are heterogeneous, with different motivations, capacities to change behavior, and types of impact. This changes their receptivity to different regulatory designs. Individual petrol vehicle drivers, cattle farmers, and coal-burning electricity generators all produce greenhouse gas emissions, but their diversity requires different regulatory designs. A single rule or even type of rule could not conceivably address the many types of impact that affect the Great Barrier Reef: water pollution, climate change, growth in invasive species, direct damage to habitat and fauna from vessels, and so on.Footnote 103
Secondly, from a pragmatic view, cumulative environmental problems will inevitably involve a mix of interventions. These problems tend to engage multiple levels of government,Footnote 104 and even single levels of government often use multiple regulatory approaches, creating a regulatory mix across levels.Footnote 105 Reform costs and path dependence mean it will rarely be possible to engage in a regulatory “revolution” to wipe clean an existing regulatory slate and start again.Footnote 106 Regulatory mixes are also often inevitable as a result of “policy layering” over time,Footnote 107 so improving how they perform is critical. This highlights the value of being aware of potential weaknesses of each approach in a cumulative context and designing regulation in a way that combats these weaknesses. Combining interventions from the same corner of the matrix risks compounding disadvantages, whereas selecting interventions from across the matrix provides for counteracting risks.
Thirdly, theories of “smart regulation” and “new environmental governance” suggest that complex, dynamic environmental problems with low availability of centralized knowledgeFootnote 108 benefit from engaging nongovernment regulatory actors and adaptively escalating to more interventionist approaches as needed.Footnote 109 This requires multiple regulatory approaches, both to allow for escalation and because different types of interventions will suit different nongovernment regulatory actors. Coordination with nongovernment actors is discussed in more detail in a later chapter.Footnote 110
Finally, a mix of interventions can help address some key reasons why it is hard to deal with cumulative environmental problems.Footnote 111 Voluntary measures can surmount political and social to regulatory sticks, the ethical ambiguity of dealing with individually small actions, and causal uncertainty. Combining voluntary approaches with backup “sticks” helps reduce reliability risks of voluntary approaches. Combining strategies can help avoid similar problems. In the Murray-Darling Basin, Australia, legal rules support a harm-reducing strategy, whereby governments “buy back” water rights from farmers to reduce aggregate water withdrawals to an “environmentally sustainable level of take.”Footnote 112 Farmers lobbied to add a less burdensome but more costly coping strategy, now implemented through rules for artificially watering wetlands and using infrastructure to help ecosystems cope with less water.Footnote 113
At the same time, as for other types of problems, mixes of interventions to deal with cumulative environmental problems must be designed with potential antagonistic effects in mind.Footnote 114 This issue is addressed further in Chapter 7 (Coordination).
Though compelling arguments support using a mix of regulatory interventions to regulate cumulative environmental problems, existing literature provides little guidance on designing them to deal with these problems, and calls for empirical testing.Footnote 115 Chapters 9 and 10 examine the way that combinations of regulatory interventions address case studies of cumulative environmental problems in Australia (the Great Barrier Reef) and Italy (Alpine grasslands).
6.5 Crosscutting Design Features
Even a mix of carefully chosen interventions may strike significant challenges in addressing cumulative environmental problems. The effectiveness of tools for dealing with cumulative impacts can be compromised by various challenges – disconnected decision-making and legal silos, loopholes in coverage, excessive cost to administer, and difficulty adapting to changed circumstances.Footnote 116 This section takes up the issue of design features that cut across regulatory strategies and approaches to address these challenges.
Each section starts with a reflection on connections between the relevant challenge and the matrix of interventions advanced earlier, and then illustrates the diversity of potential regulatory design solutions with real-world examples.
6.5.1 Connected Decision-Making
To the already significant list of challenges related to intervention discussed in Chapter 2, law itself adds another: fragmented decision-making and laws that consider sectors, impacts, and actions in isolation, unconnected to the effects of other actions that aggregate to affect the same matter of concern. Scholars and governments alike frequently observe that environment-related law comprises “hard, impermeable, organizational and institutional silos that prevent coordination or integration of laws and policies across systems and scales,” or complaints to that effect, across diverse jurisdictions.Footnote 117 This is a key problem for addressing cumulative impacts: Taking a blinkered view of individual impacts in isolation does not reveal their cumulative context, and misrepresents their significance to decision-makers and the public.Footnote 118
Legal mechanisms can “connect” decision-making about an individual action to other relevant actions in three key ways: requiring consideration of cumulative environmental principles (“principles”), applying aggregate limits and targets for impact (“limits”) that will take effect immediately or in the future,Footnote 119 or using comprehensive management plans and strategic assessments (“plans”) that assess how multiple existing and new impacts accumulate in a region.Footnote 120 Limits should relate to the cumulative threshold conditions for the matter of concern,Footnote 121 ensuring that this threshold is not crossed. Rules should also connect across impact types relevant to a matter of concern. Where the matter of concern is the ecological health of a water resource, carefully managing river flows but ignoring problematic invasive species will not produce the desired result.Footnote 122 Making these connections across impact types is feasible using principles and plans, but more difficult for limits unless the limit uses an index that aggregates different kinds of impacts, such as cultural health indices, cumulative exposure maps for ecosystems, or environmental justice index maps.Footnote 123 Table 6.2 gives illustrative examples of these “connecting” tools across different regulatory approaches.
a California Statutes 2012 ch 830 (SB 535) §§ 2–4; California Strategic Growth Council, Transformative Climate Communities Program Round 5 Final Program Guidelines FY 2022–2023 (2023), 9, 13, 31, https://sgc.ca.gov/grant-programs/tcc/docs/20240906-TCC_Round_5_Guidelines.pdf, archived at https://perma.cc/77MT-A5WQ. See also Chapter 10 Footnote note 92 and accompanying text.
b See generally, Lauren Zeise and Jared Blumenfeld, CalEnviroScreen 4.0 (California Environmental Protection Agency 2021) https://oehha.ca.gov/media/downloads/calenviroscreen/report/calenviroscreen40reportf2021.pdf, archived at https://perma.cc/8YG9-FXCQ. See also Section 8.3.2.2.
c Freja Nygaard Rasmussen and others, “Embodied Carbon in Building Regulation – Development and Implementation in Finland, Sweden and Denmark” in Rahman Azari and Alice Moncaster (eds), The Routledge Handbook of Embodied Carbon in the Built Environment (Routledge 2023) 85–102, 87; Minister of Social Affairs and Housing (Denmark), “New Agreement Sets Ambitious Climate Requirements for New Construction” (Press release, May 30, 2024) www.sm.dk/nyheder/nyhedsarkiv/2024/maj/ny-aftale-stiller-ambitioese-klimakrav-til-nyt-byggeri, archived at https://perma.cc/84BZ-8GE8.
d Environmental Management and Co-ordination Act 1999 Cap. 387, as amended (Kenya), ss 9(2)(q), (r); Gordana Petrovska Dojchinovska and Alex Lyons, “Natural Resources Management in Kenya (Water and Forest): Centralised Policies, Between Exclusion and Participation of the Local Population” in Marie-Aude Fouéré, Marie-Emmanuelle Pommerolle and Christian Thibon (eds), Kenya in Motion 2000–2020 (AfricaE, 2021) 223–248, 231–234.
e For issues relevant to proportionality assessment, see Grant Huscroft, Bradley W. Miller and Grégoire Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014).
f See note Footnote b to Table 6.1 and accompanying text in table.
g See generally, Nelson, “Challenges to Improved Integrated Management.”
h Ainhoa González, “Strategic Environmental Assessment of Spatial Land-Use Plans” in Thomas B. Fischer and Ainhoa González (eds), Handbook on Strategic Environmental Assessment (Edward Elgar 2021) 142–163, 158–159; see generally, Chiara Bragagnolo and Davide Geneletti, “Dealing with Land Use Decisions in Uncertain Contexts: A Method to Support Strategic Environmental Assessment of Spatial Plans” (2014) 57 Journal of Environmental Planning and Management 50–77.
Specificity and clarity are key to these approaches. Principles need policy guidance to encourage effective implementation and to constrain administrative discretion to avoid inconsistent approaches between individual decisions,Footnote 124 supported by adequate public sector capacity. Clearer and more specific limits provide greater certainty, for example, quantitatively rather than qualitatively expressed limits (though the former have the disadvantage of requiring intentional amendment to adapt to new circumstances). Notably, unlike targets for impacts, targets for positive actions (which adopt an offsetting or restoring strategy), without more, do not directly address cumulative harm because negative impacts may continue growing. Targets for renewable energy sources,Footnote 125 in contrast to regulatory carbon budgets,Footnote 126 demonstrate this difference.
To ensure that limits and plans influence and link individual actions, rather than “stay on the shelf,”Footnote 127 rules should apply limits and plans to project approvals,Footnote 128 or risk them being used inconsistently or overlooked entirely in the context of new projects.Footnote 129 Conversely, approval processes for individual projects should trigger the formulation of a limit or plan where the process reveals potentially unacceptable accumulating harm (two-way influence termed “tiering”).Footnote 130
6.5.2 Comprehensiveness: Regulatory Coverage and Enforcement
To avoid the risk of unregulated, cumulative harm, a set of regulatory interventions must comprehensively – that is, without “gaps” in regulatory coverage – consider all activities capable of causing cumulatively significant impacts to a matter of concern. Gaps can stem from how the coverage of a regulatory intervention is specified, and how it is enforced. Imagine that activities in categories A, B, C, and D accumulate to harm a matter of concern. A rule may be specified, or interpreted, to apply only to categories A and B, allowing category C and D activities to cause unregulated cumulative impacts (a “gap by omission”). Or, the rule may be specified to apply to all activities other than category D activities, which are intentionally exempt (a “gap by exemption”). Finally, inadequate enforcement and inadequate response to voluntary tools may mean that some activities in one or more categories may cause cumulatively significant impacts in practice, even if many rules are in place. The discussion that follows considers regulatory design solutions to each of these types of gaps. Coordination mechanisms are necessary to deal with gaps that would emerge because a regulator lacks jurisdiction to cover all relevant impacts; I address this separately later in the book.Footnote 131
6.5.2.1 Gaps by Omission
Gaps by omission arise in many ways. Rules may cover only specific sectors or types of actions, only some types of relevant impacts, or only direct human activities and not other impacts or “background effects” that are difficult to attribute to individual actors, such as invasive species and wildfire.Footnote 132 Limits that are expressed per person do not prevent overshoot of a cumulative target caused by population growth. Interventions may apply to actions above specified size thresholds, missing the cumulative impacts of smaller actions, for example, laws that require EIA for “intensive rearing of poultry … with more than … 60 000 places for hens”Footnote 133 Most significantly, individual rules or an entire area of law (like land use planning) may apply only to new activities, overlooking the ongoing impacts of existing activities. Table 6.3 sets out examples of diverse ways to avoid and reduce gaps by omission. In each case, the mechanism is specified in a way that is intended to apply more broadly than is common for laws of that type, but this can, in turn, raise challenges with implementation and enforcement.Footnote 134
a Directive 2014/52/EU of the European Parliament and Council of April 16, 2014, amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1, art. 4(3), annex III point 3(g). For a similar approach, see Decree on Environmental Impact Assessment No. 112/PM 2010 (Lao People’s Democratic Republic) art. 6(2), noting that this approach is no longer adopted in the decree currently in force, Decree on Environmental Impact Assessment No. 329 of 2022 (Lao People's Democratic Republic), which nonetheless requires cumulative impact assessment: arts. 3(9), 22(4), 23(7).
b Nelson and Shirley, “Latent Potential,” 16.
c Environment Protection Act 2017 (Victoria) s 25(1).
d See generally, Bruce Lindsay, Dru Marsh and Rebecca Nelson, “Conceptualising and Activating Knowledge in Environmental Protection Law” (2023) 46 Melbourne University Law Review 422–466.
e Footnote Ibid 426.
f Wildlife Conservation Act 2009, as revised 2022, Cap. 283 R.E. 2022 (Tanzania) ss 31–34.
g Ministry of Natural Resources and Tourism (Tanzania), National Wildlife Management Areas Strategy 2023–2033 (n.d.) 10–11, 22–24, https://maliasili.go.tz/assets/pdfs/DOC-20230601-WA0038_230705_135553_compressed.pdf, last accessed March 19, 2025, archived at https://perma.cc/725H-KFQ4.
6.5.2.2 Gaps by Exemption and Derogation
Regulatory mechanisms also create gaps through express exemptions, which are also termed waivers or carve-outs, or derogations from rules that would otherwise apply. These may be thought necessary because an impact is small or low risk;Footnote 135 or socially desirable or necessary (e.g., small-scale agriculture,Footnote 136 military activities in the national interest,Footnote 137 activities intended to produce environmental benefits or adapt to climate change,Footnote 138 or activities undertaken during emergenciesFootnote 139). Rule makers may want to avoid burdening long-established activities, producing “grandfathering” exemptions that may apply to diverse impacts (e.g., exempting existing power plants from new air pollution standardsFootnote 140 or existing building construction from environment-related requirementsFootnote 141). Relevant to all regulatory approaches, another motivation for exempting activities is to reduce administrative and enforcement costs for regulators.Footnote 142
Rules can reduce the risk of excluded activities having cumulatively significant impacts in diverse ways. The first is simply removing the exemption so that the “regular” intervention applies to at least some formerly excluded activities, perhaps adding an element (extra time to comply, one-off compensation) to reduce the burden. A variation is to simplify a regulatory process to “reduce red tape”. However, global experience simplifying EIA alerts us to the dangers of “ultra-simplification” removing public participation requirements in a way that affects the basic requirements of EIA,Footnote 143 and relying on inadequate impact assessments that fail to prevent cumulative environmental impacts.Footnote 144 An alternative is to maintain the exemption and deal with the resulting cumulative impacts in other ways, either through state rescue or incentivizing action from others, using a coping strategy, or focusing on data collection as an interim measure, to inform future intervention (Table 6.4).
a Constitution of the Republic of South Africa 1996, s 27(1)(b); Water Services Act 108 of 1997 (South Africa) ss 2(a), 3, 5; Andrea Szabó, “The Value of Free Water: Analyzing South Africa’s Free Basic Water Policy” (2015) 83 Econometrica 1913–1961, 1913, 1914.
b E.g., Utah Code § 73-5-15(4)(a)(iii), (c) (regarding state regulation of withdrawals pursuant to voluntary arrangements between water users).
c Great Barrier Reef Marine Park Regulations 2019 (Australia) s 117(2)(j); Great Barrier Reef Marine Park Zoning Plan 2003 (Australia) s 2.2.4(l)(iii); regarding offsets for seagrass damage, see generally, Ma, Rhodes and Maron, “The Consequences of Coastal Offsets.”
d New Jersey Admin. Code § 7:1C-9.2; New Jersey Department of Environmental Protection, “Environmental Justice Rules Frequently Asked Questions” (2023) 18–19, https://dep.nj.gov/wp-content/uploads/ej/docs/ej-rule-frequently-asked-questions.pdf, archived at https://perma.cc/ZYW7-D97M.
e E.g., Nisga’a Nation Harvest Agreement between Canada, British Columbia and the Nisga’a Nation, May 11, 2000, art. 2, available at Government of Canada, “Nisga’a Harvest Agreement” (May 11, 2000) www.rcaanc-cirnac.gc.ca/eng/1100100031747/1543410863980, archived at https://perma.cc/97AU-NT8C.
f E.g., City of Adelaide, “Noise Management Incentives” (n.d.) www.cityofadelaide.com.au/about-council/grants-sponsorship-incentives/noise-management-incentives, last accessed March 19, 2025, archived at https://perma.cc/CLF6-RMFH. This is sometimes framed as integrating consideration of the victims of the problem: Ruth Wiedemann and Karin Ingold, “Solving Cross-Sectoral Policy Problems: Adding a Cross-Sectoral Dimension to Assess Policy Performance” (2022) 24 Journal of Environmental Policy and Planning 526–539, 530.
g Seychelles Fishing Authority, National Plan of Action for the Conservation and Management of Sharks 2016–2020 (2016) 68, https://mofbe.gov.sc/wp-content/uploads/2021/09/National-Plan-of-Action-for-the-Conservation-and-Management-of-Sharks-2016-2020-3.pdf, archived at https://perma.cc/7XW9-VPLA; identified international obligations include those under the United Nations Convention on the Law of the Sea, December 10, 1982, Montego Bay, in force November 16, 1994, 1833 U.N.T.S. 396), among other laws: ibid 93.
6.5.2.3 Implementation and Enforcement Gaps
Even if a regulatory mechanism is comprehensive in its coverage on paper, gaps in implementation – lower than desirable take-up of voluntary tools and noncompliance – can create a comprehensiveness challenge. This creates risks of uncontrolled cumulative harm. Under incentive- and information-based interventions (regulatory carrots and sermons), gaps arise where small contributors face barriers to accessing a scheme, including lack of awareness and insufficient resources to engage with complex regimes.Footnote 145 In this case, the impacts of their activities are not covered in practice even though they are eligible to participate. This may also be the case for state rescue mechanisms aimed at communities that must apply for them, but face barriers to doing so.Footnote 146 Regulatory interventions may include express mechanisms to address this by reducing administrative barriers to entry. The current EU Common Agricultural Policy, which provides subsidies to small farmers that are linked to environmental conditions, expressly requires member states to plan to reduce burdens for farmers.Footnote 147
Risks of noncompliance affect not just regulatory sticks (e.g., enforcing conditions of a pollution authorization) but also regulatory carrots (e.g., enforcing conditions of a stewardship payment) and regulatory sermons (e.g., ensuring the accuracy of information about impacts provided to regulators or the public). While the focus of this book is regulatory design, this section touches on enforcement briefly and narrowly, drawing out selected issues that are pronounced for cumulative environmental problems and that pose regulatory design issues.
Since cumulative environmental problems involve numerous, diverse contributors, they can stretch enforcement resources.Footnote 148 Some common strategies for responding to this will not necessarily suit cumulative environmental problems. For example, relying on third-party enforcement will be difficult if causation is hard to prove, there are numerous activities, and the third party is resource-poor. Guiding discretion to best use scarce resources using “risk-based” enforcement principlesFootnote 149 can be problematic if principles focus solely on an individual contributor’s risk of noncompliance and overlook the cumulative risk of noncompliance to a matter of concern. Enforcement discretion can also be a challenge because cumulative environmental problems are relatively hard to perceive, more diffuse, and require engagement with scientific complexity,Footnote 150 and so are more likely to “fly under the radar” of regulators. Providing regulators with information and training geared to these challenges is one possible solution. Rules can address these enforcement problems by using cumulative impact principles directly or indirectly to guide regulatory discretion, facilitating enforcement by relatively resource-rich third parties, or providing for automatic enforcement for categories of contributors that are numerous and homogeneous (Table 6.5).
a Section 8.3.2.2, Footnote notes 95–Footnote 98 and accompanying text.
b Texas Water Code § 36.3011 and 30 Texas Administrative Code § 293.23.
c Nebraska Laws 1975 (LB 577), s 12.
d Nelson and Shirley, “Latent Potential,” 163.
e Lydia Slobodian, “Shifting the Burden of Wildlife Protection: The Role of Extraterritorial Jurisdiction in Implementing CITES” in Marie-Claire Cordonier Segger, David Andrew Wardell and Alexandra Harrington (eds), CITES as a Tool for Sustainable Development (CUP 2023) 49–78, 66.
f Air Pollution Control (Vehicle Design Standards) (Emission) Regulations 1992, Cap. 311 sub. leg. J, as amended (Hong Kong SAR); Legislative Council Panel on Environmental Affairs (Hong Kong SAR), Improvement of Roadside Air Quality, LC Paper No. CB(1)(949/16-17(03) (2017) [9]–[12] www.legco.gov.hk/yr16-17/english/panels/ea/papers/ea20170522cb1-949-3-e.pdf, archived at https://perma.cc/4E6H-ZUQ2; Environmental Protection Department (Hong Kong SAR), “Strengthened Emissions Control for Petrol and LPG Vehicles” (n.d.) www.epd.gov.hk/epd/english/environmentinhk/air/guide_ref/remote_sensing_Petrol_n_LPG.html#Vehicle%20Emissions%20Standard, last accessed March 19, 2025, archived at https://perma.cc/P5ER-PSY5. See also the discussion of information and technology in Section 5.3.2.
g See Waste Management Regulations Order No. 15 of 2018 (Vanuatu) s 2.
6.5.3 Administrative Cost and Using Cumulative Impact Concepts to Reduce It
In addition to burdens on regulated parties,Footnote 151 administrative costs to government can be a significant challenge to regulating problems that involve many different actors. Considering alternatives among regulatory sticks, carrots, sermons, and state rescue may reveal ways to reduce administrative costs, though the choice may trade off more reliable outcomes.Footnote 152 One solution is to design rules so that a single regulatory decision influences multiple activities – a sort of regulatory “economy of scale” (Table 6.6). These mechanisms carry benefits for regulating cumulative impacts beyond reducing administrative cost. They promote connected decision-makingFootnote 153 by considering many contributors at once. They may also make it easier to manage adaptively,Footnote 154 since a single decision can modify requirements that apply to multiple contributors, for example, reducing the “cap” in a cap-and-trade system.Footnote 155
a Coglianese, “Limits of Performance-Based Regulation,” 540. Note that other elements of the bubble policy, and some of its fine details, made it controversial and uncertain for firms, and ultimately take-up was not high: see generally, Halvorson, “Deflated Dreams.”
b 33 C.F.R. Ch. II Pt. 330, 40 C.F.R. § 122.28(a).
c U.S. Army Corps of Engineers, “Reissuance and Modification of Nationwide Permits,” 2762.
d Ibid 2751.
e 40 C.F.R. § 122.28(b)(2).
f 40 C.F.R. § 122.28(b)(3)(i)(A), (G).
g See generally, Volker Diegmann and others, Dynamisches umweltsensitives Verkehrsmanagement (Bundesanstalt für Straßenwesen, 2020) https://bast.opus.hbz-nrw.de/frontdoor/index/index/docId/2335 (report in German, summary in English), archived at https://perma.cc/WX96-ZHD9.
h See generally, Schmalensee and Stavins, “Lessons Learned.”
i Footnote Ibid 64.
Conversely, issues of scale and participation present risks. Cumulative performance standards that apply to large areas may inadvertently allow “hotspots” of cumulative impact that are locally significant.Footnote 156 The alternative, considering the impacts of sources of harm individually, though, would increase uncertainty for participants and costs for regulators.Footnote 157 A lower cost but lower precision option to prevent hotspots is to use trading zones (Table 6.6). The types of “bulk” regulatory mechanisms included in Table 6.6 also tend to restrict public participation requirementsFootnote 158 to the single “aggregated” decision rather than inviting comment about individual impacts (e.g., decision to issue multisource permit, decision to set trading rules within a cap). This suggests the need for more frequent review to guard against unintended consequences.Footnote 159
6.5.4 Adaptive Intervention to Respond to Accumulating Impacts
Regulating cumulative environmental problems inherently requires adapting rulesFootnote 160 for intervening and adapting how they apply to individual contributors when actual or predicted cumulative impacts approach maximum acceptable levels (“intervening adaptively,” for short).Footnote 161 Contributors to the problem or their activities may change, introducing new impacts or types of impacts; and scientific complexity and unpredictability mean new information about the matter of concern or the harm will likely emerge with time. This need to adapt environment-related rules is well-established, pointing to regulatory design for flexibility and iterative evaluation, including “provisional decision making, monitoring, and adjustment.”Footnote 162 Here, then, the focus is exploring implications and options in the cumulative impact context.
Intervening adaptively in anticipation of serious cumulative impacts finds support in diverse formulationsFootnote 163 of the precautionary principle. Notably, this principle appears in legislation,Footnote 164 policy guidance,Footnote 165 and judicial decisions dealing with cumulative impacts.Footnote 166 In its original form, the principle facilitates preventive regulatory intervention without conclusive proof about the cause-and-effect relationship between pollution and harm.Footnote 167 More broadly, the principle holds that scientific uncertainty should not justify postponing preventive action in the case of potential serious environmental harm. Uncertainty about precise effects does not preclude regulatory measures, and early actions are “provisional and should be updated over time in light of learning.”Footnote 168
Intervening adaptively can mean either changing how an administrative decision applies to an entity (Section 6.5.4.1); or changing an element of an existing rule, or introducing a new rule to the mix (Section 6.5.4.2). Adapting may be triggered by actual or predicted cumulative impacts approaching maximum acceptable levels (i.e., cumulative threshold conditionsFootnote 169).
6.5.4.1 Adapting an Administrative Decision
Some areas of law and some regulatory approachesFootnote 170 provide more scope for adapting administrative decisions in response to cumulative effects than others. EIA laws focus resources and scrutiny at the proposal stage,Footnote 171 including predicting cumulative effects, rather than follow up once an activity commences,Footnote 172 which would allow for adaptation. By contrast, “decentralized behavior-coordinating mechanisms” such as markets involve iterative decision-making by individual actors,Footnote 173 and inherent scope for contributors to change their impacts. Regulatory sermons are also inherently adaptive in that regularly provided information about impacts changes with time. The focus of this section is therefore adapting mandatory regulatory approaches (“regulatory sticks”), which tend to strike prominent barriers to adaptation.Footnote 174
Rules can help address concerns that changes unfairly frustrate regulated parties’ “legitimate expectations”Footnote 175 by forewarning them of the potential need to adapt,Footnote 176 and using transparent, predetermined triggers for adaptation. Table 6.7 sets out examples of rules that facilitate adapting individual decisions in response to concerns about cumulative impacts, with key variables being how frequently change is anticipated to occur, and the parties that may trigger the review that leads to adaptation.
a Water Act 1989 (Victoria) ss 33AC, 64GB. For an explanation of the place of seasonal determinations in Victoria’s water allocation system, see Department of Energy, Environment and Climate Action (Victoria), “How Is Water Managed?” (n.d.) https://accounts.water.vic.gov.au/water-explained/how-is-water-managed/, last accessed March 20, 2025, archived at https://perma.cc/27YC-42RR.
b Water Resources Act 2013, ch 72:03 (Malawi) ss 61, 62. It is unclear whether this provision is implemented. Water law in Western Australia also provides for renewable, time-limited water licenses, guided by water allocation plans: Rights in Water and Irrigation Act 1914 (Western Australia) s 5C, Sch. 1, cll. 7(2), 22; Quantum Management Consulting and Assurance, Report for the Economic Regulation Authority Inquiry into Water Resource Management and Planning Charges, Department of Water’s Processes (2010) 32, www.erawa.com.au/inquiries/completed-inquiries/2009-inquiry-into-water-resource-management-and-planning-charges, archived at https://perma.cc/8RPS-LYVC.
c 33 C.F.R. § 330.6(b).
d 33 C.F.R. §§ 330.1(d), 330.5. See also US Army Corps of Engineers, “Reissuance and Modification of Nationwide Permits,” 2751.
e Ibid 2755.
f Ley sobre Bases Generales del Medio Ambiente, Ley No. 19300 [Law on the General Bases of the Environment, Law No. 19300], 1994, as amended, art. 25 quinquies; Kay Bergamini and Cristian Pérez, “Environmental Impact Assessment Follow-up Institutional and Regulatory Frameworks: Lights and Shadows of the Chilean Experience” (2022) 40 Impact Assessment and Project Appraisal 423–436, 429.
g Oregon Revised Statutes §§ 390.835(9)(g), 390.835(12).
As well as positively facilitating adaptation (Table 6.7), regulatory mechanisms should avoid elements that impede adaptation, keeping in mind the characteristics of the relevant cumulative environmental problem. For example, where there is uncertainty about precisely how impacts aggregate to cause harm,Footnote 177 rules for adapting a decision should avoid requiring conclusive proof of a causal link between a specific activity and a harm. Instead, they could simply require adaptation in response to an indicator of cumulative environmental effect (e.g., ambient air quality);Footnote 178 frame a regulatory requirement around avoiding risk, rather than an actual effect (e.g., a general environmental duty);Footnote 179 or apply a presumption about a causal link.Footnote 180
6.5.4.2 Adapting a Regulatory Intervention or Regulatory Mix
Larger-scale adaptation occurs by changing the rules, or the set of rules, themselves. Increasing impacts may require adjusting a performance standard to keep cumulative impacts acceptable. New rules might be needed to improve regulatory “comprehensiveness” to cover previously unregulated activities,Footnote 181 or respond to a realization that a riskier regulatory intervention has not effectively addressed cumulative impacts.Footnote 182 Adopting rules for this kind of adaptation usefully forewarns the public of possible future change, potentially reducing concerns about legitimate expectations and fairness. Openly flagging different trajectories of intervention might also, perhaps, reduce the effects of path dependence.
Scholars have advanced general ways in which law can facilitate adaptation, while ensuring appropriate stability, such as formally allowing for ad hoc or recurring amendment, relying on inherently evolutionary forms of law like the common law, and using more easily changed standards and delegated powers.Footnote 183 Table 6.8 directs this question to the situation of cumulative environmental problems, giving examples of mechanisms for adapting rules in response to cumulative impacts.
a Arizona Revised Statutes § 45-439. See generally, “Active Management Area’” Arizona Department of Water Resources (US), “AMAs 101” (n.d.) www.azwater.gov/sites/default/files/2025-02/AMA101_2025.pdf, last accessed March 19, 2025, archived at https://perma.cc/BJS9-BA5G.
b Water Act 2007 (Australia) s 22(1) items 3, 5; Basin Plan 2012 (Australia) chapter 4.
c CAP Regulation arts. 141–143.
d Ibid preamble (30).
e Ibid annexes I, XIV; EU CAP Network, “EU level CAP Evaluation Framework” (n.d.) https://eu-cap-network.ec.europa.eu/support/evaluation/evaluation-framework_en#paragraph-8970, last accessed March 19, 2025, archived at https://perma.cc/ML8Z-CM9Z.
f E.g., “water quality,” “greenhouse gas emissions from agriculture,” “percentage of species and habitats of Community interest related to agriculture with stable or increasing trends”: ibid annex I, indicators C.37, C.39, C.44.
g See Environment Protection Act 2017 (Victoria) s 25(1); Lindsay, Marsh and Nelson, “Conceptualising and Activating Knowledge,” 443; and Diegmann and others, Dynamisches umweltsensitives Verkehrsmanagement. Note that the Queensland duty is supported by codes of practice that require active change: Environmental Protection Act 1994 (Queensland) ss 319, 551; see also Queensland Government, “Environmental Codes of Practice for Industry” (n.d.) www.business.qld.gov.au/running-business/environment/industry-codes, last accessed March 19, 2025, archived at https://perma.cc/A9NS-SYJW.
6.6 Conclusion
Diverse rules can influence cumulative impacts. In analyzing rules for intervention, it helps to consider the strategy employed by a rule (harm-reducing, harm-offsetting, restoring, and coping), which focuses on how the rule seeks to change harm to the matter of concern; and the rule’s approach (stick, carrot, sermon, or state rescue), which focuses on how the rule seeks to change the behavior of contributors to the harm – or avoid the need to do this by relying on the state. Combining these two dimensions produces a matrix of rule types, some of which seem less used than others, presenting options for further developments. Some combinations give rules characteristics that compound weaknesses such as burdens on contributors to harm or riskiness of the outcome. This points to issues that need attention in regulatory design. No single type of rule will be universally effective to address all aspects of a cumulative environmental problem.
A major way of dealing with the weaknesses of certain types of rules for intervention is to use a mix of rules so that some can compensate for the weaknesses of others. A mix is also necessary to accommodate heterogeneous contributors to the cumulative environmental harm and the multiple levels of government, with different powers and capacities, that are inevitably involved.
In designing rules for intervention, key issues are ensuring connected decision-making so that individual actions are not considered in isolation; comprehensiveness, so that few or no actions that could cause cumulatively significant impact are unaddressed; manageable costs associated with intervention; and adaptive interventions, so that the rules and their implementation can change as impacts accumulate or new circumstances arise. Numerous examples from around the world illustrate how rules can be designed with these challenges in mind. Inevitably, tensions arise in balancing different objectives for intervention rules and in bridging what is desirable and what is possible in designing a rule. Chapters 9 and 10 examine some key issues discussed here in case studies of interventions to address cumulative environmental problems in Australia and Italy.
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