Implementing Environmental Law
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Implementing Environmental Law

  • The IUCN Academy of Environmental Law series

Edited by Paul Martin and Amanda Kennedy

At the Rio +20 conference attention was focused upon the variable effectiveness of a large range of international instruments. The IUCN too has recently began to focus upon the effectiveness of legal arrangements for environmental governance. Both of these developments are representative of an increasing awareness that legal environmental governance arrangements frequently fail to achieve the desired outcomes, or give rise to perverse and unexpected effects. The reasons why this may be so include issues such as the limited commitment of the responsible government or its agents, issues of corruption or incapacity, problems arising from the choice of the governance instrument, or the design of the law. This book tackles the challenges of implementation of environmental law, drawing upon the expertise of an international cast of contributors and investigations across a range of jurisdictions.
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Chapter 3: Putting the train of environmental protection on track: Nova Scotia’s experiment in using legislation to strengthen environmental governance

Meinhard Doelle and William Lahey

Extract

In a 2008 article entitled ‘A Train Without Tracks’, Annecoos Wiersema argues that new governance approaches to environmental challenges lack substantive direction. New governance approaches have focused on process and on engaging non-state actors in the design and implementation of responses to the environmental challenges we face. There are many good reasons to engage non-state actors through effective processes, including: the complexity of the challenges; the social license that is associated with transparency and public engagement in decision-making; the role that collaboration with non-state actors can play in compensating for limited government resources and expertise; and the improved compliance that is expected with laws and broader policies that are developed through collaborative processes. Wiersema, however, argues that this shift of focus from substance to process has come at a price. Using the image of a train without tracks, Wiersema makes the point that a focus on process, without clear environmental goals against which the results of these process-oriented approaches to governance can be measured, risks compromising the very purpose of environmental governance. Governance, at best, becomes a consensus building process among non-state actors with a diverse range of interests. At its worst, the process moves environmental protection toward the lowest common denominator. It can even become a rationale for government inaction, and a tool for those resistant to effective environmental regulation. The definition and achievement of environmental objectives is left too much to the interests, capacity and commitment of self-interested non-state participants.

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