International Governance and Law
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International Governance and Law

State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.
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Chapter 7: Environmental Regulation and Non-State Law: The Future Public Policy Agenda

Neil Gunningham


7. Environmental regulation and nonstate law: the future public policy agenda Neil Gunningham 1. INTRODUCTION Over the last decade, considerable thinking has gone into the issue of how to design more efficient and effective regulation. Much of this thinking has been in the field of social regulation and that of environmental regulation in particular. While not all the innovations and insights that have emerged from a radical re-conception of the roles of environmental regulation have broad application to other fields of regulation, nevertheless, many of them do. This chapter draws from the writer’s previous work on this area and seeks to identify some broad themes and insights based around the themes of ‘smart regulation’ and regulatory reconfiguration (see in particular Gunningham and Sinclair 2002, Ch. 9) and their broader connection with non-state law. The chapter reviews the changing role of the regulatory state, and the evolution of a number of next generation policy instruments, intended to overcome, or at least to mitigate, the considerable problems associated with previous policy initiatives, and traditional forms of regulation in particular. The goal is, in the words of the US Environmental Protection Agency (EPA) ‘to adapt, improve and expand the diversity of our environmental strategies’ (ibid) and to address the circumstances not only of laggards but also of leaders. However, policy reform has taken place in what is, in many respects, a hostile political and economic environment. The 1980s and 1990s saw a resurgence of free-market ideology which, assisted by the...

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