information and communications technology for environmental regulation: critical perspectives

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Information and Communications Technology and Environmental Regulation: Critical Perspectives Rónán Kennedy School of Law, National University of Ireland Galway [email protected] Image: European Space Agency

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From online booksellers highlighting interesting items, social networking sites encouraging users to divulge personal information and auction sites using reputation-based systems to reassure consumers entering into transactions with strangers, computers can, and do, change human behaviour and have changed society in dramatic ways. There is, as a result, a considerable interest in the use of information and communications technology (ICT) for environmental regulation (ER). However, while there is now a substantial body of literature on regulation and ICT, this focuses on either the regulation of information (such as data protection) or the regulation of communications (such as freedom of speech online). It is also predominantly concerned with ICT as something to be regulated, rather than on the use of ICT for regulation (e-regulation). This presentation attempts to fill this gap.

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Page 1: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Information and Communications

Technology and Environmental

Regulation: Critical Perspectives Rónán Kennedy

School of Law, National University of Ireland

Galway [email protected]

Image: European Space Agency

Page 2: Information and Communications Technology for Environmental Regulation: Critical Perspectives

ICTs and Behaviour Change Reducing complex behaviours to simple tasks

Guiding users through a process or experience

Providing content tailored to individuals

Suggesting behaviour at opportune moments

Eliminating tedium of tracking

Observing the behaviour of others

Providing positive reinforcement

Page 3: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Benefits of ICT for ER

New modes of regulation

Improved resource efficiency

Increased effectiveness

Page 4: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Applications of ICT

Information gathering

Remote sensors

Waste management

Land-use change

Fisheries protection

Remote harvest reporting

Vessel monitoring systems

Page 5: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Applications of ICT

Analysis and modelling

Support for compliance and enforcement

MARPOL, Kyoto Protocol

Managing markets for intangible property

Water rights, emissions trading

Page 6: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Applications of ICT

Information dissemination and ‘reflexive’ regulation

Environmental Monitoring for Public Access and

Community Tracking (EMPACT)

Envirofacts (http://www.epa.gov/enviro/)

Scorecard (http://scorecard.goodguide.com)

Toxics Release Inventory (http://www.epa.gov/TRI/)

Google Carbon Footprint Calculator

Page 7: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Applications of ICT

‘Smart’ goods, services and processes:

Smart logistics

Smart buildings

Smart grids and smart meters

Smart products

Page 8: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Disclosure as a Regulatory Tool

Public distribution of information as a driver for

change (‘reflexive’ regulation)

History:

1930s: financial regulation

1960s/70s: environmental law, health and safety

Now: widely used

Page 9: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Rationales for Disclosure

Signal to stock markets

Social impact (‘naming and shaming’)

Benchmarking against peers

Faster regulatory response

Overcoming individual bounded rationality

Page 10: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Difficulties with Disclosure Replicating the weaknesses of command-and-control

Strategic reporting and gaming the system

Accuracy of information

Intractable individual habits

Unpredictable results

Difficulties in analysing cost/benefit

Muddying the rule of law

Page 11: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Improving Disclosure-Based Regimes

Standardised methods and metrics

Making behaviour change a norm

Use as an element of or alternative to conventional

regulation?

Page 12: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Information in Environmental Regulation

Often flawed and incomplete

ICT expanding the scope and span of control?

Measurement often imprecise

Costs difficult to estimate

Methodologies rarely produce useful figures

More information is not necessarily better

Page 13: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Science in the Regulatory Process

Contested role:

Objective truth or uncertain knowledge?

Challenged as product of ideology

‘Post-normal science’

Law and science: incompatible cultures?

Page 14: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Models in the Policy-Making Process

Fundamental to constructing policy context:

Catalyst for policy

Structure for regulatory decision-making

Mechanism for collaboration

Often codified in software

Page 15: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Difficulties with Models

Scientific literacy of audience?

Accuracy and currency of models?

Data: Accurate? Verifiable? Consistent?

Over-optimistic or over-simplistic use

Models as proxy for real debate

Risk of manipulation

Page 16: Information and Communications Technology for Environmental Regulation: Critical Perspectives

E-government Perspectives

Focus on the citizens as consumer

Sees government activity as single step decision-

making

Significant gap in research on “e-regulation”

Page 17: Information and Communications Technology for Environmental Regulation: Critical Perspectives

E-Regulation

“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.”

Cannot simply re-use private sector experiences

Page 18: Information and Communications Technology for Environmental Regulation: Critical Perspectives

ICT and Regulation

Benefits: cheaper, more, quicker, better, new

Improvements:

Better informed

More targeted

More iterative

More transparent and democratic

Page 19: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Difficulties with E-Regulation ICT not neutral or deterministic

Impact on existing imbalances?

Disempowering external actors

Brake on change:

Institutional

Organisational

Procedural

Page 20: Information and Communications Technology for Environmental Regulation: Critical Perspectives

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

Page 21: Information and Communications Technology for Environmental Regulation: Critical Perspectives

Recommendations

Design principles:

Flexibility

Rule of law

Human rights

Open, re-usable data