Environmental Protection Through E-Regulation: Critical and Empirical Perspectives Using a Rule of Law Analysis

Rónán KennedyPhD student, Faculty of

Laws, University College London

Image: European Space Agency

Overview

• Background: ICT and environmental regulation

• ICT in Regulation: Rule of Law issues

• Findings from empirical research

• Conclusions and recommendations

Benefits of ICT for ER

New modes of regulation

Improved resource efficiency

Increased effectiveness

Applications of ICT

Information gathering

Remote sensing and satellite imaging

Waste management

Land-use change

Fisheries protection

Remote harvest reporting

Vessel monitoring systems

Applications of ICT

Analysis and modelling

Support for compliance and enforcement

e.g. MARPOL, Kyoto Protocol

Managing markets for intangible property

e.g. water rights, emissions trading

Applications of ICT

Information dissemination and ‘reflexive’ regulation

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

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

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

Applications of ICT

‘Smart’ goods, services and processes:

Smart logistics

Smart buildings

Smart grids and smart meters

Smart products

Law and ICT: Unpacking the Relationships

• What are the consequences of the widespread use of ICT by regulators?

• The computer as an invisible and unstudied tool

• ICT as ‘frozen institutional discourse’

• Example: Tamil Nadu land registry

E-Regulation

Cannot simply re-use private sector experiences

New research topic: “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.”

Benefits of E-RegulationBenefits: cheaper, more, quicker, better, new

Improvements:

Better informed

More targeted

More iterative

More transparent and democratic

Difficulties with E-RegulationICT not neutral or deterministic

Impact on existing imbalances?

Disempowering external actors

Brake on change:

Institutional

Organisational

Procedural

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

Rule of Law ‘all persons and authorities within the state, whether

public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (Lord Bingham)

Essential elements (Venice Commission): Legality

Legal certainty

Prohibition of arbitrariness

Access to justice before independent and impartial courts

Respect for human rights

Non-discrimination and equality before the law

ICT and the Rule of Law

Preserving regulatory discretion while ensuring fairness

‘Ambient Law’

Dangers of digital decision-making

Closed, inflexible, unaccountable systems

Containing assumptions, biases, mistakes

Querying the Myths of E-Government

Formalising practices and knowledge is difficult

ICT can be a brake on reform

People can resist ICT-driven change

Need to ‘Get It Right First Time’

“Get It Right First Time”Awareness of ICT and power relationships

Design principles:

Flexibility

Rule of law

Human rights

Open, re-usable data

Configuring the Networked State

Open source code

Increasing digital literacy

‘Governance on the Inside’