Pendulum swing in environmental regulation: A case study of coal seam gas New South Wales

Abstract

Conflict about resource sector developments is never far from media headlines. This is not surprising given the nature of the land use change and impact involved, and the potential and actual effects on communities. Stuck in the middle are environmental regulators plying the tools of their trade in a dynamic context with pressure to reduce resources, cut red tape and relax regulatory requirements on one hand, and reduce risk and prevent harm on the other. This battle of perspectives often sees pendulum swings in regulatory practice. The environmental regulation of coal seam gas in New South Wales, Australia, provides a contemporary case study to examine pendulum swing through the analysis of documents and key informant interviews with senior regulators and policy makers. While the concept of pendulum swing has been evident in both literature and practice for some time the extent to which regulators proactively manage it, and the extent to which an understanding of the dimensions of community concern informs reactive responses, is unclear. Regulatory practice in western democracies has seen a high level of congruence around the key concepts of responsive regulation and risk based regulation. Regulatory practice involves the deployment of a range of regulatory tools, processes, procedures and policies. However, regulatory practice is not static and responds to changes in political and community expectations. A significant change in a regulatory regime in response to changes in political and community expectations is described within the theoretical framework of regulatory practice as a pendulum swing. Regulatory pendulum swing can be described as change along an axis of various regulatory styles or approaches between two extremes, command and control regulation to cooperative regulation. Pendulum swing has three primary causes: deregulation; regulatory maturation; and regulatory failure. The former is a tenet of economic policy in western democracies. Regulatory maturation is an ideal optimisation of regulatory practice between the extremes. Regulatory failure may be considered as either chronic or acute. Failure can be observed where community trust in the efficacy of the regulatory regime has been eroded to the extent where significant change to that regime is generated. The choice and nature of the regulatory tools and policy deployed in response to regulatory failure can be observed through the dimensions of community trust, or regulatory trust, such as expertise, stewardship, and transparency.