2.1 Introduction
To design effective regulation for cumulative environmental problems, we need to understand why it is challenging to deal with them. We can then design a regulatory regime to anticipate and head off these challenges as much as possible. We can also avoid incorporating regulatory features that might entrench or exacerbate these challenges. While laws cannot single-handedly solve cumulative environmental problems, the core premise of this book is that across a wide range of legal areas related to the environment,Footnote 1 rules can supply guiding structures to support governments and others to do so.
As outlined in Chapter 1, key features of cumulative environmental problems are that they (1) are caused by many heterogeneous actors, undertaking (2) diverse activities; (3) involve scientific complexity and unpredictability of the resulting effects, which (4) aggregate over a long period of time; and (5) engage multiple regulatory regimes that may each deal separately with single issues (such as biodiversity or water pollution). This chapter collects insights from diverse disciplinary and interdisciplinary literatures – cognitive science, complex systems, public administration and policy analysis, science and technology studies, ethics, economics, management of common pool resources, and environmental management – to illuminate the key challenges associated with these features.Footnote 2 Synthesizing these challenges produces a “CIRCle Framework” of four key functions that are needed, and that formal rules can deliver, to support action to address cumulative environmental problems: conceptualization, information, regulatory intervention, and coordination. Section 2.2 discusses the difficulties that lead to each Framework function in turn. Section 2.3 synthesizes why these difficulties make formal rules desirable, and the design features they indicate, and presents the CIRCle Framework that results from the preceding analysis.
First, a quick word about method. Since the terminology associated with cumulative effects (here used interchangeably with “cumulative impacts”) varies between disciplines, and relevant knowledge is widely dispersed, finding it is not straightforward. The research for this chapter focused on the five features of cumulative environmental problems set out earlier, as well as the general idea of cumulative impacts or effects and related types of problems, for example, “wicked” and “super wicked” problems, “intractable policy problems,” and collective action problems. These ideas engage vast literatures, far beyond what a single chapter could explore in depth. So, rather than delving deeply, this chapter focuses on key principles and research findings that are most relevant to considering how law could and should address cumulative environmental problems. To this end, references in this chapter skew toward review and synthesis articles and articles that deal with multiple jurisdictions, with original research articles cited mainly for illustrative purposes or because they are seminal contributions. Much other research, and many other disciplines, are relevant and helpful but fall outside the scope of this chapter and are reserved for future work refining the CIRCle Framework. The focus here is distilling implications for law from other disciplines; additional discussion and contributions from legal and regulatory scholarship are discussed in later chapters that each focus on a single CIRCle Framework function.
2.2 Why Is Dealing with Cumulative Effects So Hard? Insights from Outside Law
2.2.1 Conceptualizing the Matter of Concern Threatened by Cumulative Environmental Harm
We begin by asking the simplest questions related to a cumulative environmental problem: cumulative effects on what, or whom? In other words, what do we care about, what is the “matter of concern” to be protected from cumulative environmental harm, or restored, and what do acceptable conditions for it look like? Answering even these initial questions is beset by challenges.
Laws in different jurisdictions legitimately protect diverse things related to the environment – here termed the “matter of concern.” This may be, for example, a natural resource like water as the foundation of a human right, the preservation of “wilderness,” a particular species, or the relationship between an Indigenous group and a place. Across this diversity, insights from environmental impact assessment (“EIA”) literature, cognitive science, economics, political science, and ethics suggest that clearly articulating important dimensions of a matter of concern – conceptualizing it – is not straightforward. Ambiguity, subjectivity, different values held by different actors, and the multiple possible dimensions of a matter of concern all pose challenges. Conceptualization, in turn, affects what information is needed to assess and respond to the problem, which actors are identified as potentially causing harm, and which actors and regulatory regimes are and should be engaged in dealing with the problem.
2.2.1.1 Conceptualizing Key Dimensions of a Matter of Concern: The Roles of Values, Science, and Transparency
EIA literature demonstrates the centrality and also the challenging complexity of conceptualization in terms of the multiple dimensions that are relevant and the subjectivity of decisions about these dimensions, whether decisions occur inside or outside an EIA context. EIA scholars, practitioners, and detailed technical guidelines on EIA generally agree that cumulative effects assessment involves first selecting environmental components as the focus for assessment, defining their boundaries, and defining the baseline conditions against which effects are considered to determine whether they are significant or unacceptable.Footnote 3
These are important insights into the many dimensions of conceptualization that are also relevant outside EIA, but they make selecting these dimensions seem like a purely technical exercise. In reality, these are normative questions involving subjective decisions: Science can guide, but not decide.Footnote 4 Different interest groups will have different views, with variation across institutional, cultural and political settings.Footnote 5 In relation to thresholds of acceptable change to a matter of concern, policy analysis scholars note that even with fulsome scientific information, deciding “how safe is safe” in relation to pollution depends on normative values and diverse criteria, from economic efficiency to equity.Footnote 6 The conflict management literature shows that clarity and transparency about what matters is necessary to understand, recognize, and, if possible, accommodate the different interests involved.Footnote 7
Conceptualizing what we care about raises fundamental questions about links between people and the environment. Variants of EIA have arisen that expressly recognize these links. These variants include cultural impact assessment, health impact assessment, human rights impact assessment, and socioeconomic impact assessment.Footnote 8 Conceptualizing a matter of concern as having economic value can also engage other concepts and regimes, such as natural capital and environmental economic accounting.Footnote 9
Links between people and the environment are consequential because the amount of change to a matter of concern that is deemed unacceptable will depend on why it matters and who plays a role in deciding. The amount and type of acceptable change to a desert oasis, for example, may well be different if it constitutes cultural heritage, as opposed to habitat for an endangered fish.
Equally challenging, complexity science shows that environmental systems are dynamic, whereas much environmental law assumes stationarity.Footnote 10 This underscores the normative nature of deciding a threshold of unacceptable change, because there is no “natural” equilibrium.Footnote 11 In practice, however, time can feature strongly in selecting threshold conditions of acceptable change, and this can have important implications. If conditions of the matter of concern have changed significantly, choosing a temporally earlier set of conditions as the threshold of acceptability will make contemporary conditions appear more degraded.
Articulating spatial boundaries is also a key part of conceptualization, and also not straightforward. EIA practitioners recommend that spatial boundaries for assessment and potential intervention reflect the scale of the matter of concern that receives impacts.Footnote 12 This might be, for example, the spatial distribution of a species, a local community, a transboundary water resource, or the global climate. But there are also trade-offs to consider. Cognitively, if “[p]resented at too large a scale, the problem seems unapproachable and overwhelming; if too small, it is easily dismissed,” whereas a middle way can allow for “small wins.”Footnote 13 Many criteria may apply to selecting a spatial scale: the complexity and time associated with analysis, the number of actors involved, the scalar fit with legal frameworks, economic relevance, and so on.Footnote 14
Ultimately, the subjective nature of these decisions creates a need for transparency. Conceptualizing spatial boundaries, for example, requires transparently considering the implications of different spatial options and trade-offs between options,Footnote 15 given that there may be no natural or objective way to conceptualize them.Footnote 16 More generally, transparency about the rationale for conceptualizing the matter of concern in a particular way also helps to untangle problems of incoherence, discussed next. Transparency of decisions about what and who matter intersects with issues of information necessary to support environmental democracy and accountability, discussed more fully later.Footnote 17
2.2.1.2 Coherence, Changing Values, and the Need for Coordination in Conceptualizing a Matter of Concern
Because conceptualizing cumulative environmental problems involves multiple dimensions, multiple actors, and decisions over potentially long time periods, the way a matter of concern is conceptualized may differ problematically between actors and through time unless it is formalized. Policy design literature refers to conflicting goals as lacking “coherence,”Footnote 18 a term that I adopt here. For example, even within a single watershed, different governments and stakeholders may agree that “drought” is a problem, but have in mind different types of impacts and care about different human and natural systems that may be affected.Footnote 19 Similarly, in the EIA context, practitioners can define the core components of a system differently, including whether sociocultural dimensions of biophysical impacts are even considered.Footnote 20
Incoherent conceptualizations are problematic because they can lead to different methodologies and conclusions about changing conditions and can obstruct effective responses to cumulative environmental problems. At minimum, incoherent conceptualizations can make it “impossible to see the elephant for all of its parts,”Footnote 21 reducing the comparability and usefulness of assessments if their insights cannot be aggregated with others. Incomparable assessments can compound challenges of insufficient data availability for responding to cumulative environmental problems (discussed later in the chapter), given that understanding cumulative effects fundamentally means aggregating the effects of multiple activities. If goals are uncertain or ambiguous, this also reduces the success of cooperative interventions to avoid environmental harm.Footnote 22
Avoiding inadvertent incoherence in conceptualization requires “frame reflection” and construction of a shared narrative that either resolves or can accommodate different value preferences.Footnote 23 This requires some form of interaction between relevant actors, which here is termed coordination, discussed further later on.Footnote 24
Coordination is also required where a conceptualization of what and who matter needs to change due to social or environmental change. Contemporary societies seek to protect many things that were not protected even fifty years ago.Footnote 25 Environmental stressors like climate change may require triage or “directed adaptation” for ecosystems.Footnote 26 Such intentional change requires coordination to review objectives that form part of a conceptualization with stakeholders as part of an adaptive management approach.Footnote 27
2.2.2 Informing Decisions by Understanding Conditions of Matters of Concern, Threats, and Interventions
Considering cumulative effects requires collecting, sharing, and analyzing information about the matter of concern and its current conditions, which activities have affected it and are likely to affect it, and whether those effects would push conditions to become unacceptable. This is easy to say, and more difficult to do.
2.2.2.1 Information Needed to Perceive Incremental Change, Data Shortages, and the Need for Coordination
Cumulative environmental harm can involve slowly shifting environmental conditions that are difficult to discern, even for experienced experts.Footnote 28 This “shifting baseline syndrome” means younger generations may be unaware of past conditions (a sociological phenomenon) and individuals may forget their past experience (a psychological phenomenon).Footnote 29 A lack of environmental data, reduced interaction with the natural world, and reduced knowledge of the natural environment also make it difficult to perceive cumulative environmental harm.Footnote 30 By contrast, perceiving individually large, sudden-onset environmental changes is relatively easy. Empirically, shifting baseline syndrome has been identified in diverse natural resources and geographic contexts, including in relation to fishers in Indonesia, Mexico, and Tanzania; water availability in Alaska; and wildlife in Bolivia.Footnote 31
Shifting baselines are problematic because they can lead to “increased tolerance for progressive environmental degradation.”Footnote 32 At the extreme, change that occurs beyond human perception is beyond human control – it does not even arise as an issue for regulatory intervention.Footnote 33
Perceiving and understanding accumulating harm requires aggregating comparable (interoperable) data about conditions of the matter of concern through time. But long-term data collection can be a low political priority, and aggregating information from multiple sources encounters challenges with comparability. As a result, data availability is often a problem for assessing cumulative effects.Footnote 34 In practice, different agencies of the same government may collect data differently such that it is not interoperable, agencies may lack a mechanism for obtaining data collected by private actors (even research institutions), and no single institution may have the mandate to assemble and interpret the data.Footnote 35
Conversely, coordinating the data-related activities (e.g., collecting, sharing, analyzing) of multiple actors can reduce unnecessary duplication and cost,Footnote 36 making the most of available resources. Environmental management and assessment literature emphasizes the importance of coordinating to form a shared understanding of an environmental problem and to share related information,Footnote 37 and highlights the need for better intergovernmental coordination in assessing cumulative impacts.Footnote 38
2.2.2.2 Costs and Resistance to Data Collection and Sharing
Collecting data about matters of concern and threats to them may involve high costs. This is especially true where a resource is hidden, as in the case of groundwater, or difficult to reach, as for ocean biodiversity. Cumulative impact assessments require significant time, expertise, and cost,Footnote 39 in part, driven by the need for significant data gathering. It can also be more expensive to comprehensively monitor many individually small activities, which may constitute cumulatively significant threats, than a few large ones. Cuts to monitoring budgets, sometimes driven by a short-term focus and misperceptions of wastefulness, can create discontinuities that compromise the value of the data,Footnote 40 and make it difficult or impossible to assess incremental change (trends) over time.Footnote 41
Lower-cost monitoring methods can include citizen science, hybrid government–citizen science programs, or high-tech automated initiatives.Footnote 42 Crowdsourcing data in a way that involves stakeholders may also increase understanding of a problem, but faces challenges in relation to ethics, data quality, data ownership/sharing, and, potentially, exploitation of unremunerated citizen scientists.Footnote 43 Attention to standards for data quality, accessibility, and sharing, and methods for rewarding contributions could help deal with these challenges.Footnote 44
High-tech monitoring methods also raise their own legal issues related to privacy, safety, evidentiary value, and other concerns.Footnote 45 Using technology to monitor individually small activities that are potentially cumulatively significant can encounter resistance because of an assumption that their impacts represent “a drop in the ocean” that does not warrant monitoring. Sometimes monitoring is perceived to threaten individual or community privacy, as in community hostility to wildlife monitoring using camera traps in NepalFootnote 46 and drones in Tanzania.Footnote 47 Monitoring technology has sometimes legitimized military interventions, such that it can produce an atmosphere of fear.Footnote 48
Participatory approaches to deploying monitoring technology may help address community concerns.Footnote 49 Indeed, some argue that with the right safeguards and awareness of “red flags,” technology can empower local populations, and environmental monitoring is increasingly participatory in practice.Footnote 50 Technology can empower those who experience cumulative impacts to advocate for regulatory intervention, from Indigenous paraecologists in Ecuador advocating for “rights of nature”Footnote 51 to community groups in Guatemala using drones in participatory forest monitoring to support community claims against transnational businesses,Footnote 52 to citizen science surveillance programs for invasive species that use low-cost smartphones, image recognition, and machine learning.Footnote 53 Ultimately, any blanket rejection of technology deserves reexamination in light of cumulative environmental problems and the significant benefits technology offers communities in facilitating the collection of information. Without it, cumulative environmental problems may build, unperceived and unaddressed.
Responding to cumulative environmental problems requires not just collecting, but also sharing and aggregating interoperable data associated with multiple and potentially numerous activities to give useful insights into a cumulative problem.Footnote 54 Data for understanding cumulative environmental problems, then, should be “FAIR” – findable, accessible, interoperable (as discussed earlier), and reusable.Footnote 55
Yet, both governments and commercial entities may experience disincentives to sharing information. Regulated entities may also resist sharing information due to concerns that it is commercially sensitive and could give away an advantage to their competitors.Footnote 56 Arguments about trade secrets or intellectual property can be prominent in the case of new technology, for example, allegedly environmentally harmful fluids used in hydraulic fracturing,Footnote 57 and resource analyses that have commercial value, like in oil and gas.Footnote 58 Governments may resist sharing data, preferring to adopt a “what we don’t know won’t hurt us” attitude, or want to avoid public alarm.Footnote 59 Some environmental data may be classified as a state secret (as is soil pollution data in China).Footnote 60 Other reasons include wanting to avoid “arming” opponents to a politically preferred project,Footnote 61 or protecting corrupt government officials who benefit from environmental harms.Footnote 62
Finally, to usefully address cumulative environmental problems, data must also be contextualized by reference to specific matters of concern and their thresholds, rather than numerical values about abstracted environmental conditions. For example, reporting aggregate volumes of withdrawals from a river system, without more, says little about cumulative impacts in terms of stress relative to ecological thresholds and acceptable change. A small aggregate volume might be ecologically insignificant if withdrawn from a large river system, or catastrophic if withdrawn from a small stream in an arid zone. Context matters, but contextualizing data requires analysis, which, as described next, takes work and can be complex.
2.2.2.3 Complexity, Dynamism, Modeling, and Uncertainty
Complexity scholars show that predicting how potentially large numbers of activities will interact and aggregate to affect something is complex, involving deep uncertainty, feedback loops, emergent behavior, complex interactions, and nonlinear responses.Footnote 63 External drivers such as climate change and global economic shifts can combine with internal local-scale drivers like interactions between species to produce continuous change.Footnote 64
This has several important implications. The psychological difficulty of constructing accurate mental models of dynamic systemsFootnote 65 means formal scientific modeling is often needed to understand a complex system and its possible futures. Such models can require substantial data and computing capabilities,Footnote 66 and require significant time, expertise, and cost to undertake,Footnote 67 as well as multiple disciplines.Footnote 68 This is not a new issue. In the 1960s, Colorado lawyers noted the “dramatic possibilities” for efficiently managing large numbers of groundwater withdrawals of “utiliz[ing] the services of a computer,” noting with evident envy that Nevada had such a device.Footnote 69 With improving computing capabilities, the feasibility of cumulative analysis methods further increases.Footnote 70
Even with sophisticated models, it may be necessary to use significant simplifications and assumptions,Footnote 71 and significant uncertainty may be unavoidable due to nonlinearities and indirect effects.Footnote 72 Accordingly, information about predicted futures may best be presented as scenarios or “envelopes” rather than precise predictions,Footnote 73 and there is a need for ongoing adaptive management to counter uncertainties associated with cumulative effects.Footnote 74
In other words, information about cumulative impacts is often complex and unavoidably uncertain. Uncertain information tends to discourage individuals from voluntarily adopting pro-environmental behavior, undermines cooperative solutions to a problem,Footnote 75 and heightens risks that information will not be used to take action.Footnote 76 Empirical research suggests that EIA, an important context for cumulative effects analysis, does not necessarily have a significant effect on decision-making.Footnote 77 Other risks to high-quality data and analysis for informing decision-making include cost cutting, regulatory capture, manipulation by proponents, and political pressure,Footnote 78 all of which underscores the importance of transparency.
Research on “actionable” or usable science suggests at least a partial antidote to this disconnect between information and action: Decision-makers are more likely to use information that is credible (scientifically adequate), salient (relevant to decision-makers’ needs), and legitimate (fair, unbiased, and respectful of stakeholders).Footnote 79 These characteristics can develop through processes to “co-produce” knowledgeFootnote 80 by meaningfully involving stakeholders in genuine deliberation and social learning, as opposed to one-way consultation.Footnote 81 This poses a challenge for cumulative environmental harms, however, which involve many actors. Though not impossible,Footnote 82 initiating and maintaining the involvement of many stakeholders in iterative scientific work can be expensive, time-consuming, and complex.Footnote 83 That is, it requires attention to coordination about information, discussed further later.Footnote 84
For completeness, it is also important to note that complex, multilayered policy settings can produce a need to collect information about the regulatory landscape itself to determine gaps and weaknesses. Even understanding which interventions are available to address diverse threatening activities, and who the relevant regulators are, may be a significant task. But it is critical to evaluating whether existing mechanisms are adequate to deal with threats, or whether change is needed.Footnote 85
2.2.3 Intervening to Protect a Matter of Concern from Cumulative Harm
Even if contributors to cumulative harm, and relevant decision-makers, meaningfully consider information about this harm, it is not a foregone conclusion that they will act to address it. Political factors and a sense of futility can discourage action. Allocating responsibilities to act among many heterogeneous contributors to harm can be ethically ambiguous. Adaptive intervention, needed to deal with uncertainty, strikes diverse challenges. This section addresses each of these issues in turn. Additional issues that arise from legal structures themselves – like the legal silos that produce fragmented, unconnected decision-making, and the cost of interventions – are addressed later in this book.Footnote 86
2.2.3.1 Risk Perception, Futility, and Short-Termism as Barriers to Action
Although they may aggregate to cause serious harm (and putting aside the issue of shifting baselines), individually minor actions are often simply considered less serious than more dramatic single harms, which discourages action to address cumulative harms. People tend to perceive the risks of “acute hazards,” that is, individual “high-energy events, which are usually of a short duration, such as cyclones and floods” differently to chronic hazards or “quiet crises,” that is, “insidious and/or pervasive [hazards], commonly being of low energy and occurring over [longer] periods.”Footnote 87 The latter often simply seem less important.Footnote 88 Cognitively, appreciating the aggregate risk of minor activities needs to overcome automatic assessments that a small impact caused by a familiar activity is not a threat, and relies on judging the effect of aggregating something – a type of thinking that tends not to be done well automatically.Footnote 89 Media reporting can reinforce these cognitive tendencies. While reporters flock to catastrophic environmental accidents (e.g., a supertanker oil spill), individually less dramatic cumulative effects receive little attention (e.g., the cumulatively greater amount of oil discharged annually by ships cleaning their ballast tanks).Footnote 90
A distinct cognitive challenge arises in cases of slowly accumulating harm that will only manifest relatively far in the future. People tend to have “cognitive myopia” and discount future consequences excessively in favor of immediate rewards or avoidance of immediate costs.Footnote 91 Indeed, policy responses that “discount the future irrationally” are considered a key feature of problems that are “super wicked.”Footnote 92
Even where an actor perceives that their activity, even though relatively minor, causes cumulative harm, a sense of futility (“changing my activity would make no difference”) may discourage them from changing course.Footnote 93 Countering this sense of futility is possible with structured effort. It might involve, for example, communicating an ethical duty of collective actionFootnote 94 or emphasizing the symbolic benefits of acting, like “freedom and independence from foreign oil” in the case of adopting lower emission cars.Footnote 95
Decision-making structures that emphasize the short term may reinforce the effects of cognitive myopia and feelings of futility. Decision-makers in democratic political institutions tend to focus on short electoral cycles, though short-termism also varies among nations.Footnote 96 Short-term electoral cycles discourage intervention to deal with slowly accumulating threats that impose short-term costs on constituentsFootnote 97 to create spatially and temporally diffuse benefits. This can affect things such as considering climate change scenarios and long-term planned activities like timber harvesting. Countering short-termism might involve mechanisms to “‘lock[] in’ long-term preferences” to avoid returning to short-term considerations as time progresses;Footnote 98 shortening the perceived temporal distance by describing the cumulative problem as urgent;Footnote 99 or expressly considering the interests of future generations.Footnote 100
2.2.3.2 Allocating Responsibility for Action, Ethical Ambiguity, and the Role of Coordination
Effectively intervening to respond to cumulative environmental harm requires comprehensively considering activities that create harm and determining whether and how to allocate responsibility for preventing or responding to harm among multiple, and potentially many, contributors. There is no single “right” answer. Risk-based cost-benefit analyses and different ethical frameworks, for example, may produce different approaches.Footnote 101 Risk analysts suggest assessing “the relative importance of each nth risk effect, the potential improvement from addressing it and the costs (including delay) of doing so.”Footnote 102 Even this apparently simple approach, however, is more difficult than it seems where there is uncertainty about whether a change will lead to an improvement in the matter of concern – and cumulative impacts can involve multiple sources and kinds of uncertainty associated with multiple interacting risks, leading to compounding uncertainty.Footnote 103
To attribute responsibility to someone who contributes to harm, ethicists tend to rely on some combination of causation, coercion (i.e., whether an actor could have acted in a different way), knowledge of consequences, intentionality, and appreciation of the moral implications of the action.Footnote 104 These factors can all be problematic for cumulative impacts, especially for individually minor impacts. Causation may be difficult to predict or prove due to complex interacting effects, and the causes of a problem may include “background” natural causes and harms with uncertain origins. Individually, small effects may not be controllable in a meaningful way (e.g., using water for basic household needs or harming the environment to undertake basic economic development) or where reducing harm requires resources that someone lacks. Complex, nonlinear systems may mean a contributor does not appreciate or intend the consequences of their action. Cumulative environmental problems can involve the “distributed moral actions” of many individuals, where an individual action is “either not morally charged at all or below a threshold of moral relevance.”Footnote 105 Though the cumulative impact is morally bad, no individual intended it, so intentionality means that no one can be held responsible.Footnote 106
An alternative “ethics without intentionality” would attribute responsibility for the entire environmental harm to each contributor to that harm in proportion to their ability “to avoid the negative outcome,” regardless of their intention, provided the contributors know that they will be held responsible, and are able to learn from, and modify, their behavior.Footnote 107 An alternative, potentially more controversial (in Western cultures) ethic of collective responsibility would address cumulative harms by making an agent or non-agential set of actors responsible for distributed morally negative actions.Footnote 108
Public administration scholars suggest a different solution to allocating responsibility: participatory and collaborative governance (a type of coordination; see later on) makes stakeholders more likely to accept the output of a decision-making process and comply with it if their legitimate representatives are involved, especially where this occurs early, transparently, is based on clear and understandable information, and does not exclude important groups.Footnote 109 In addition, introducing regulation to address cumulative environmental problems itself is considered ethically relatively unproblematic if one accepts that regulation is justifiable if it deters unwanted behavior.Footnote 110
2.2.3.3 Adapting Interventions, Fairness, Path Dependence, and “Single Action Bias”
To cope with their inherent uncertainty, scholars have long prescribed adaptive management (relevantly here, adaptive interventions) for problems caused by diverse and dispersed sources that interact in complex ways,Footnote 111 with the exception of problems involving “extreme existential risks” that are too rare and devastating to learn from.Footnote 112 However, this is confounded by ethical, economic, and psychological barriers to adapting the duties imposed on contributors to harm. Jurisdictions that seek to improve their laws to better deal with cumulative environmental problems are also adapting those laws and will strike similar barriers.
Countering adaptation, fairness can be perceived as requiring finality of decisions, certainty, and respect for settled expectations.Footnote 113 If new information or ideas about what matters or the effectiveness of existing interventions produces new responsibilities or restrictions, and possibly new costs, this can be perceived as unfair and support political obstruction on this basis. On the other hand, shared decision-making (i.e., coordination), transparency, and forms of popular accountability and conflict resolution can help increase legitimacy.Footnote 114
Other factors can also make it difficult to adapt interventions. Path dependence means that past choices constrain future change due to experience, sunk costs, and vested interests.Footnote 115 Adaptive management requires iterative decision-making, but “single action bias” means that psychologically, decision-makers feel less worried after they take an initial action, even where “a portfolio of protective actions might have been advisable.”Footnote 116 Risk aversion in decision-makers and other bureaucratic factors within and between government agencies further discourage adaptive management.Footnote 117
2.2.4 Coordinating among Governments and with Stakeholders
The foregoing discussion has already alluded to the critical role of interactions between governments and stakeholders – those affected by and contributing to a cumulative environmental problem – and between governments engaged in a cumulative environmental problem. I use the generic term “coordination” to describe this interaction, intending it to flexibly embrace interactions of various types, from willing partnerships to dispute resolution among antagonists. Chapter 7 expands on this to cover links between laws that may not involve the direct interaction of actors; hence, I do not use the overarching term “collaboration,” used in some other fields. This section expands on these rationales for coordination and explores barriers to coordination that stem from the inherent nature of cumulative environmental problems.
2.2.4.1 Coordination Is Needed to Respond to Cumulative Environmental Problems
As discussed earlier, the need for coordination arises in relation to conceptualizing the matter of concern because it involves value-rich decisions that often inherently affect people as part of the matter of concern and because coordination is needed to avoid incoherence in subjective decisions about what and who matter. The need for coordination with stakeholders and governments arises in relation to information because they hold knowledge and data that are important to understand the problem, because monitoring small activities can raise concerns that coordination can address, and because involving them creates opportunities for deliberation and learning that can make decisions more likely to be accepted. And the need for coordination arises in relation to intervention to address and head off ethical quandaries, enhance the legitimacy of decisions, and deal with the lack of a clear way to allocate and adapt responsibilities to act to address cumulative harms.
Coordination is also required for wider reasons related to these functions. Theories in the fields of public policy, public administration, and economics that analyze the distribution of regulatory authority in space show that environmental regulatory authority is often layered, overlapping, controversial, and dynamic between levels of government.Footnote 118 This means that intergovernmental coordination is required for sustainable management in general.Footnote 119
Even where relevant regulatory competencies are not formally shared, cumulative environmental problems involve “unavoidable interdependencies” – they concern multiple levels of government simultaneouslyFootnote 120 as well as multiple actors at a single level. This produces a need for coordination. Government actors may be relevant to addressing a cumulative environmental problem because they perform a function that relates to an activity or impact that creates a harm or a benefit to a matter of concern. The cumulative harm may also extend horizontally or vertically across the geographic jurisdiction of multiple governments or governing arrangements, for example, air pollution extending across local, subnational, or national boundaries.
Multilevel governance scholars note that “cumulative outcomes of local phenomena create global problems” and “serious global trends,” such as proliferating infrastructure, pollution, and resource use and their environmental effects.Footnote 121 They argue that cumulative effects counsel higher-level governance “to enhance understanding of a problem” and access scientific information; but, in addition, ensuring finer-grained local understanding of a problem and using legitimate, trusted, and effective local “problem-solving institutions” requires lower-level governance.Footnote 122 In other words, coordination between levels can harness “problem solving synergy” between “the unique governance capacities of local and national actors.”Footnote 123
Conversely, failing to coordinate carries risks: Overlapping regulatory actors may take different approaches to conceptualization, information, and intervention that are mutually undermining or, at minimum, fail to take advantage of potential synergies.Footnote 124 Without attention, concurrent regulatory competencies may result in there being no, or no effective, regulation in important respects. This may occur where one level of government comes to expect that another will act, and ceases its own environmental protection action, posing potential problems where the other level’s regulation contains important omissions.Footnote 125
Sometimes, however, duplication and redundancy provide insurance against agency capture and greater opportunity for policy experimentation and interest group input as a valuable check and balance in a politically controversial area, and a facilitator of innovation.Footnote 126 Indeed, environmental issues may be so complex, interconnected, and disrespectful of territorial boundaries that it would be impossible and undesirable to eliminate duplication.Footnote 127
The passage of time itself produces the need for coordination, since policy layering and drift over time can create incoherent goals between agencies and levels of government.Footnote 128 Allocations of legislative authority over the environment, and the degree to which this authority is exercised by different levels, can also change due to constitutional amendment, shifting judicial interpretation, or negotiation.Footnote 129
The insidious nature of cumulative environmental problems and accompanying risks for maintaining political salience of the problem suggest that there may also be “side benefits” from involving more regulatory actors in coordinated efforts, as “norm sustainers.”Footnote 130 If short-term political factors do not favor continued attention to a cumulative environmental problem by one regulatory actor, others may sustain attention to it. Peer pressure, including from a politically independent actor, may persuade a recalcitrant actor to actFootnote 131 and one actor may step in to compensate for another’s inaction.Footnote 132 Within a single national jurisdiction, this might mean involving more levels of government or involving other bodies that can act as quasi-regulators (a type of coordination). It might also mean allowing more regulators or others to intervene. Empirically, greater coordination between policy officers and political actors can also encourage action to deal with cumulative harms.Footnote 133
2.2.4.2 Barriers to Coordination
Despite this need for coordination, the characteristics of cumulative environmental problems suggest coordination is unlikely to emerge organically among contributors to a problem, nor among the multiple agencies and levels of government relevant to addressing it. I take these in turn.
Cumulative environmental problems lack characteristics that make collective action likely, and have characteristics that discourage collaboration. Common pool resources research has shown that stable self-governance through collective action emerges where the “user group” and boundaries of a resource are clearly defined, monitoring is undertaken in a way that is accountable to resource users, and where most individuals affected by operational rules can participate in modifying them.Footnote 134 This tends to suggest a resource that is relatively small, local scale, and managed by a relatively homogeneous user group.Footnote 135 Collaborative governance literature suggests that dense networks of linked organizations create social capital, relatively balanced power relations, and relationships of trust, which, among other factors, promote the initiation of collaboration, whereas uncertainty and a lack of incentives (like a law requiring collaboration), discourage it.Footnote 136 By contrast, cumulative environmental problems involve larger scales and diverse contributors who do not necessarily or naturally share the same goals.Footnote 137 The problem may even escape the “physical control or even the knowledge of community-based resource management.”Footnote 138 Heterogeneity among stakeholders can increase distrust, making coordination difficult.Footnote 139 The importance of formal rules increases with “larger, more complex, and more prolonged” problemsFootnote 140 – all characteristics of cumulative environmental problems.
Formalizing supportive frameworks for coordination involving stakeholders secures the opportunity for ongoing, iterative engagement.Footnote 141 Indeed, the idea that cumulative environmental problems engage the shared responsibility of multiple actors and the need for a collaborative response between government, different industry sectors, and Indigenous Peoples appears in diverse principles, policies, and guides for cumulative effects assessment.Footnote 142
Effective coordination between different agencies and levels of government to deal with a cumulative environmental problem is similarly unlikely to emerge by itself. Cumulative environmental problems likely lack important features that promote governmental coordination. These features include leaders who perceive that their interests are served by incurring the “high … transaction costs of initiating a collaborative effort,” a starting appreciation of the salience of the issue among all participants,Footnote 143 and a shared set of “policy-core beliefs,” such as common “policy-related values and perceptions about whose welfare counts, the relative authority of governments and markets, the proper roles of the general public, elected officials, civil servants, experts, and the relative seriousness and causes of policy problems.”Footnote 144 Regulators tend to focus on single risks due to “mission-driven agencies, sometimes with narrow legal authority; fragmented institutions, with separate specialized domains … and the omitted voices of those affected.”Footnote 145
While cooperative networks can help better understand the nature of problems and identify and facilitate implementing solutions,Footnote 146 voluntary collaboration is unlikely to arise under conditions where parties have conflicting interests, lack trust and mutual commitment,Footnote 147 or even knowledge of who all the relevant parties are. The nature of cumulative environmental problems makes it more likely that these conditions will occur, partly because of the numbers of government actors involved and the difficulty of even forming relationships in the first place. In addition, where information is power, agencies at a single level of government or between levels of government may “hoard” it.Footnote 148 Collaborative governance also presents the challenge of sustaining participation through time,Footnote 149 which is particularly important where impacts accumulate incrementally. Indeed, the “turbulence” of the public sector can make it hard to sustain collaborative approaches,Footnote 150 and the sheer difficulty and resource intensity of collaboration in this setting leads some scholars to urge public managers: “don’t do it unless you have to.”Footnote 151
2.3 Synthesis: The Need for Rules and Design Features
Collectively, the many disciplinary insights outlined earlier both demonstrate the desirability of a rule-based (regulatory) approach to cumulative environmental problems and inform the design of rules to deal with these problems. This aligns with calls for stronger legal approaches in the cumulative effects assessment literature,Footnote 152 and points to key functions that those rules should support. In relation to coordination in multilevel natural resources contexts, resilience theorists similarly argue that governance should involve explicit written legal requirements, frequent information sharing, adequate local resources, harmonized methods and regulations, and formal structures that build on existing informal networks.Footnote 153
Table 2.1 summarizes the key challenges indicated by the earlier discussion, and how they suggest that rules would be beneficial, as well as the key design features to which they point. These form a starting point for the discussions that each of the CIRCle Framework function chapters (Chapters 4 to 7) continues, developing and illustrating desirable design features.
Table 2.1 Challenges to addressing cumulative environmental problems and implications for regulatory responses
2.4 The CIRCle Framework of Regulatory Functions
The earlier discussion has produced four deductively derived functions for laws to undertake to help address the inherent difficulties posed by cumulative environmental problems. Focusing on legal functions is an established way to analyze and compare laws across diverse jurisdictions and legal subject matters.Footnote 154 It also aligns with existing scholarship that seeks to understand multilevel governance by reference to regulatory functions.Footnote 155 Focusing on functions also facilitates connecting with disciplines and areas of practice that tend to focus on particular functions, say, information in the case of ecology and coordination in the case of multilevel governance scholarship.
Summarizing, then, the “CIRCle” Framework (Figure 2.1) comprises four key legal functions that encompass, respectively, formal mechanisms to support:
(1) Clearly and coherently conceptualizing the matter of concern that is the focus of protection or restoration, including the threshold conditions beyond which effects are unacceptable;
(2) Collecting, sharing, aggregating, and analyzing information about past and present environmental conditions, threats and expected future environmental conditions, taking into account the effects of multiple diverse activities and interpreting the acceptability of their cumulative effects, and the adequacy of interventions to deal with threats;
(3) Intervening to influence the behavior of contributors to cumulative harm to prevent or remedy unacceptable effects, or harness direct state action to do so; and
(4) Coordinating each of the foregoing functions between and across levels of government, and with nongovernment actors, including to resolve disputes.
Legal mechanisms that support these functions might be distributed among different individual laws, so it is necessary to think of the set of relevant laws – here termed the legal “landscape” for responding to cumulative environmental problems – as a whole. Chapter 3 sketches a wide range of areas of law that may be relevant to a cumulative environmental problem.
The CIRCle Framework recognizes that these functions interact with each other (Table 2.1; arrows, Figure 2.1) – they are integrated. The way that a matter of concern is conceptualized should translate into arrangements for collecting and sharing information about it, intervening in response to information that unacceptable cumulative harm to it has occurred or may occur, and coordinating government and nongovernment actors in relation to these things. Chapters 4 to 7 elaborate on links between CIRCle Framework functions.
Risks arise if the landscape of laws omits a function. For example, laws might involve effective coordination between jurisdictions to gather information about cumulative harms to a clearly and coherently conceptualized matter of concern against clearly defined threats. However, these laws may not produce an effective regulatory response if they do not integrate with mechanisms for intervention. Having aggregated information about a matter of concern might fail to protect it from cumulative harm if agencies lack authority to intervene to stop undesirable harm.
Regulatory mechanisms intended to perform the CIRCle Framework functions will have the greatest chance of doing so effectively if they include design features that address important challenges to addressing cumulative environmental problems indicated by diverse disciplines (Table 2.1). Chapters 4–7 elaborate on these design features and illustrate them with legal examples from around the globe.
Challenges related to introducing, implementing, and enforcing laws are highly jurisdiction-specific, reflecting varying conditions related to political structure and function,Footnote 156 funding, and surrounding legal structures to mention a few. Since this makes generalizing legal solutions to these challenges difficult, if not impossible, discussion of functions proceeds by way of diverse examples to illustrate individual functions, and discussion of combinations of mechanisms through case studies (Chapters 8–10).Footnote 157
Finally, a caution and a disclaimer. While formal rules have a unique and important role to play, they are unlikely to be the whole solution to cumulative environmental problems, not least because introducing, implementing, and enforcing them is rarely straightforward, trouble-free, and comprehensive. Cumulative environmental problems are so difficult that many strategies are likely to be necessary to address them.Footnote 158 Focusing on formal rules is also not to discount the importance of nonregulatory actors and the actions of regulatory actors that are not expressly foreseen by legal rules. But formal rules are inescapably part of the picture of addressing cumulative environmental problems – not only as part of the solution but because, without good design, rules may also be part of the problem. Regulations have the potential to reinforce some of the challenges described here, for example, where rules in different places conceptualize shared environmental problems in an incoherent way or provide for interventions that counteract one another. Unless regulatory systems are established with cumulative effects in mind, they may inadvertently facilitate cumulative harm.
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