Environmental regulation and institutional change for

Working Paper. No part of this paper is to be reproduced without the prior permission of the authors.

Environmental regulation and institutional change for social change

Elizabeth A. Kirk* and Alison D. Reeves** * School of Law, University of Dundee ** Geography, School of Social and Environmental Sciences, University of Dundee

Abstract

Environmental regulatory bodies are required to adopt new roles and tackle new issues as understandings of environmental problems develop. One new demand is for these bodies to facilitate societal change to mitigate environmental harm. However, resource constraints limit their ability to adapt to the new demands and cause them to employ regulatory science (Jasanoff, 1995) to address these issues. The constraints also lead them to implement change incrementally by building upon historical practices. The result is that the required institutional and social changes that were deemed necessary to effectively tackle environmental harm are pushed further into the future. Some of the mechanisms that may be used to support more rapid adoption of the changes needed within regulatory bodies already exist, such as, public participation, but they are primarily designed to address risk and uncertainty in decision making. It is suggested that they can also be used to facilitate institutional change (a process that may be deemed uncertain or risky), for example, by supporting norm entrepreneurs (change agents) within the regulatory bodies.

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Introduction

Previous work has demonstrated that policy punctuation points (Baumgartner and Jones, 1991), which introduce legislation requiring a radical change in regulatory approaches or the adoption of new roles by regulators, do not always immediately result in the radical change in approaches anticipated (Kirk et al., 2007). Instead such legislation is implemented incrementally with changes bolted on to existing practices. Incremental implementation has been explained in terms of path dependency (Arthur, 1989; 1994; Collins, 1985; Connor and Dovers, 2004; Liebowitz and Margolis, 1994; North, 1990; Woerdman, 2004) demonstrating that resource constraints magnify the impact of imperfect information in the regulatory market place (Kirk et al., 2007; Reeves et al., 2007). This paper explores mechanisms that may engender a more dynamic change in regulatory practices when such punctuation points occur.

The Need for and Barriers to Cultural Change

Regulatory bodies face periods of significant cultural change, particularly so when new legislation which demands a change in their culture is adopted. This can be seen clearly in relation to environmental regulation where post normal science (Funtowicz and Ravetz, 1993) highlights the necessity for society to respond to current environmental risk by changing its behaviour and where current scientific understandings emphasise that effective environmental regulation requires holistic approaches, drawing on physical and social sciences and law, to be taken to regulation. The effect of such regulation should be to facilitate change in society; both in the way society interacts with its environment and in the way decisions about

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such interaction are made. Thus, although it was once assumed that risks from pollution could be addressed by technical, end of pipe, solutions, now science highlights the need to change operational and land use management practices to prevent pollution. These practices include set aside of agricultural areas for flood management, recycling or reducing consumption rather than dumping products in landfill and potentially include changes in the positioning, management and type of industrial plants acceptable to society. All of these changes would impact upon current economic and social practices if adopted and would require adaptation on the part of society. These scientific understandings have to some extent been accepted and incorporated within law, with implementation of these laws falling to existing regulatory bodies. In effect environmental regulators are being required to ensure that the social change, identified by science as necessary to address current environmental risks, occurs through the implementation and enforcement of environmental regulation. This means that existing institutions must take on a new role and tackle problems they are ill equipped to address and so change within these institutions is necessary. An example of legislation requiring such changes is the Water Framework Directive (WFD) (2000/60/EEC).1 It requires new approaches to be taken when tackling environmental problems and has been transposed into national laws through legislation such as the Water Environment and Water Services Act 2003. The WFD’s primary objective of sustainable water use2 requires the lead agency and its partners to take a holistic approach to regulation taking full account of all related social, economic and environmental factors through the application of “sustainability science” (Kates et al., 2001). In so doing the Directive points to where society needs to modify its behaviour or interactions with the environment and places a requirement for cultural change on the regulatory bodies charged with implementing it.3

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The WFD also requires regulators to engage a wider community in decision making (Reeves et al., 2007). This latter is expressly called for in Article 46 of the WFD which aims to guarantee “the participation of the general public including users of water in the establishment and updating of river basin management plans”, and to ensure the provision of “proper information of planned measures”, with a “view to the involvement of the general public before final decisions on the necessary measures are adopted”. In so doing this directive, in common with other legislation adopted post the 1998 Aarhus Convention on Public Participation and Access to Information, (for example, the new EU Floods Directive and EU Marine Strategy Directive) aims to regenerate democratic decision making, to improve the procedural legitimacy of decision making and to improve the substantive outcomes of decision making. It ought also, one assumes, engender greater responsibility for the environment in both stakeholders and the general public involved in decision making.

These sorts of objective represent a considerable shift from traditional environmental regulation which focussed more on end of pipe technical solutions to pollution4 and went hand in hand with government by technocracy (Fischer, 2000; Garcia Perez and Groome, 2000; Hirst, 1997) with government deferring “to a technocratic elite, who mediate between science and society” (Carter, 2001; Fischer, 2000). Though more recent legislation has introduced the half way house of management approaches to pollution problems to the legislative framework as seen in the requirements to apply standards such as Best Available Techniques,5 and Integrated Pollution Control,6 such regulation still relied on implementation and decision making by the technocratic bureaucracy. This shift, in short requires relevant regulatory bodies to “adopt a new

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normative framework” (Connor and Dovers, 2004; Kirk et al., 2007) so changing their internal culture and, in this context, embracing those aspects of holistic approaches to regulation and participatory decision making that are novel to them.

Such processes of change, as we have shown elsewhere, prove problematic to regulatory bodies working within both financial constraints and constraints on time (Kirk et al., 2007) which force them to employ regulatory science (Jasanoff, 1995) rather than strong science (Marsden and Mackay, 2001) in developing responses to regulatory problems. In part the problems facing regulatory bodies can be explained by:

“Weberian theories of bureaucracy (Weber, 1947; 1968; Feldman, 1991), which predict that such change is unlikely because of the insistence of our systems on formal rationality which creates an `iron cage' restraining change. If change is to be effected through the adoption of new approaches they must prove their worth yet, as path dependency shows, the costs of acquiring the information necessary to satisfy the formal rationality of our system restrict the possibility of this happening. Thus new approaches may be adopted incrementally, as a bolt-on to existing practices. Institutional change is restricted, then, not just because the system is wedded to formal rationality, but because the costs of proving that the adoption of radically new approaches would be justified are too great under current conditions.” (Kirk et al., 2007 at 253)

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In particular resource constraints may make filling gaps in knowledge and expertise through the employment of additional staff problematic and may make the adoption of new skills and processes by existing staff difficult. These restraints may force individuals within the regulatory agency to fall back on existing understandings and disciplinary commitments to make ‘satisficing’ decisions in the implementation of regulation (Simon, 1957; Kirk et al., 2007). The effect is incrementalism (Lindblom, 1959) in decision making as the regulators are constrained in the implementation choices they make by the limited knowledge, understanding and information available to them and so implement the new approach by bolting parts of it on to existing practices.

Thus, although regulators may recognise the need for cultural change both within their institutions and within society more broadly, they face barriers which prevent them from progressing quickly in this area. For example, the Scottish Environment Protection Agency (SEPA) recognised the need to adopt more holistic approaches to its work, but found that the move to such a wide perspective was constrained by both cultural and organizational barriers such as competition between the multiple disciplines within SEPA (Sherlock et al., 2002; 2002a). The situation was exacerbated by competition for resources which meant different disciplines within the regulatory body competing for scarce resources from funding organizations and from within their own institution: leading to little incentive for cooperation. (Blackstock, et al., 2005). The net effect is that the generation and implementation of new regulatory mechanisms is limited by path dependency, leading to incrementalism in the implementation of new approaches even where one would anticipate a sudden or rapid change.

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Various mechanisms to overcome these restraints and so promote cultural change have been proposed in the literature and some put into practice. The promotion of dialogue between interested parties, the use of norm entrepreneurs to promote cultural change, the use of public participation in decision making where competing values come into play (Renn, et al., 1991; Lynn, 1990) and the use of Participatory Action Research (PAR) have all been suggested as ways to support cultural change. We look at their relationships and propose how they may be effectively combined to assist regulatory bodies. In particular we argue that support for norm entrepreneurs within regulatory bodies is essential in introducing cultural change and that this can be and to some extent is being provided through two mechanisms: public participation in decision making and PAR. These mechanisms are not designed, however, as support mechanisms for norm entrepreneurs and as such opportunities for improvement in their use exist.

The Role of Norm Entrepreneurs

As noted above regulatory bodies, such as SEPA are generally aware of the bounded rationality (Simon, 1957) of their decision making and of the need to find ways around this issue. Their attempts, however, tend to result in incrementalism in implementing new approaches. However, there is scope for various mechanisms to be used to encourage more radical departures in approach in line with the requirements of new regulation. The theory of path dependency indicates where relevant opportunities arise (Kirk et al., 2007). They arise at the choice points when new information is required, where the bounded rationality of decision makers is evident. Path dependency also hints at how these problems might be addressed, by finding

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ways of reducing the relative weight of switching costs (Woerdman, 2004 within the regulatory process. If one considers what these choice points represent, a potential mechanism for reducing such costs can be found. Where, as in the cases discussed in this paper, the choice points, represent the requirement to apply new approaches in regulation, what is being asked of the regulator is that they adopt new norms of behaviour. Thus the issue is one of education and promotion of new norms which must gain credence within the regulatory body. Sunstein (1996) argues that in such cases change can be prompted by creating a ‘norm cascade’ by which adoption of the new norm promoted by the law becomes more and more rapid until it is accepted as the new norm of behaviour by all (Sunstein, 1996; Lessig, 1996; Picker, 1997; Edmunson, 2002) so changing the ‘image’ (Baumgartner and Jones, 1991) of the issue (in this case a holistic approach to regulation) within the agency and ensuring its rapid implementation. One way of promoting the norm cascade is to provide support to those individuals who first grasp and promote the new norm within the regulatory agency (‘norm entrepreneurs’) until the tipping point is reached and the norm becomes accepted as obligatory (Sunstein, 1996). As Edmunson (2002) demonstrates, the tipping point which leads then to norm cascades (the rapid adoption of new norms of behaviour) is reached when one third of actors follow the new norm. Hence, providing support to those actors who are first to embrace the new norm may assist them to educate others and so reach the tipping point more quickly.

That individuals can act as norm entrepreneurs and have either a positive or negative influence on organisations has been demonstrated in practice. Sarfaty (2005), for example, discusses the positive and negative influences of interest groups on implementation of indigenous rights norms by the World Bank. Levine (1986),

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discusses the potential influence of “Special Masters” (individuals appointed to oversee the implementation of court orders) in institutional reform litigation, noting the positive impact that these individuals may have on institutional change. Faigman (2001-02) examines the role of individuals in ensuring that scientific evidence is properly used and considered in court, drawing out their role in ensuring that a change in legal cultural towards the use of science was achieved. Writers such as Sunstein (2006) and Kysar and Suizman (2002-03) examine the mechanisms by which views become more entrenched and point to where progress may be made using dialogue to bring those with competing world views or interests closer to agreement.

It would be possible then to rely on these individuals alone to promote change within the regulatory body if such change were necessary. Indeed there is evidence of the existence of norm entrepreneurs in regulatory bodies, for example, within SEPA, however, they work hard to get new cultures adopted and the process of change is incremental (Kirk et al., 2004). This process could be accelerated by providing support to those regulators and scientists who grasp new legal standards first. The key question is how might this be achieved? The answer is the judicious employment of public participation and PAR to support norm entrepreneurs.

Supporting Norm Entrepreneurs

An analogy is drawn from international legal theory to explain how supporting norm entrepreneurs through the use of public participation and PAR might operate. Koh (1998-99) describes the process by which both governments and international organisations internalise and adopt new norms and become obedient to them (the

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transnational legal process) so implementing international law. The system he describes is roughly analogous to the system national regulatory bodies go through in internalising new norms. For example, Koh (op cit) explains the four possible reasons for individuals to behave in a particular way: coincidence, conformity, compliance, obedience/internalization. In the context of this paper the equivalent is to ensure that all relevant individuals within the regulatory agency reach the stage of internalization/obedience to new norms rather than there simply being a coincidence between the behaviour of some and the norm, or internalization of the norm by a few, but not the majority.

Koh (op cit) notes that the most effective way to get individuals to behave in a particular way is to get them to believe in what they are doing for example, for people to worship they need to think of themselves as religious. One of the issues that faces those trying to accelerate the adoption of new cultural norms is the need to shift individual attitudes. For example, the adoption of holistic approaches to environmental regulation requires people to move from thinking of themselves as, for example, a biologist or a regulator to thinking of themselves as a part of a larger decision making process. Individuals may then feel that their authority or status is being undermined (Sherlock, et al., 2004). In tackling this shift in mentality then individuals must be persuaded to think of their self interest differently. This is what has been done for example in persuading individuals to wear seatbelts.

Koh (op cit) argues in effect that a process of interactions between states and others may lead ultimately to the internalisation of norms. Equally a process of interaction between the regulatory body and its employees and external agents may lead to the

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gradual internalisation of new norms within the regulatory body. Those processes may involve the regulatory body and its employees engaging through PAR or public participation with external agents. The process would of course be strengthened by the ever present threat of judicial review of actions if the participatory and decision making processes are not conducted properly.

Koh (op cit) suggests “six key agents in the transnational legal process: (1) transnational norm entrepreneurs; (2) governmental norm sponsors; (3) transnational issue networks; (4) interpretive communities and law-declaring fora; (5) bureaucratic compliance procedures; and (6) issue linkages.” How then might these translate into the process of norm internalisation in a regulatory agency? Transnational norm entrepreneurs are individuals unconnected to government who raise awareness of a new issue. In the scenario considered here the equivalent is likely to be external actors such as academics or interest groups who/which raise awareness of a particular issue. Koh’s governmental norm sponsors are those individuals working within the State government who support the norm. In this scenario they may be equated with norm entrepreneurs/change agents within the regulatory body – indeed Koh notes that in the scenarios he describes often the norm sponsors become norm entrepreneurs. Koh’s transnational issue networks are issue specific epistemic communities consisting in part of the first two types of agent. It is questionable whether these exist within the regulatory bodies considered here, indeed this paper rests on the premise that these networks are lacking and need to be fostered and that PAR may provide a mechanism for fostering them. Interpretative communities and law declaring fora are the sites at which these individuals interact and where the norms can be developed, tested and interpreted. Koh discusses courts etc in this context: in relation to cultural

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change within regulatory bodies similar fora may include decision making processes involving stakeholder or public participation. Bureaucratic compliance procedures are the processes by which habitual compliance with an international norm are maintained once that norm has been clarified. In relation to regulatory the equivalent process is likely judicial review of decision making. Issue Linkages are where links are drawn between different issues and habits formed across those issues to ensure compliance, such links may be drawn in any regulatory process.

All of these agents exist to some extent within the existing regulatory structure, but strengthening certain areas and the relationships between them could lead to more effective or efficient cultural change when needed. In particular the relationship between the first four - (1) academics or interest groups (2) norm entrepreneurs or change agents (3) issue networks and (4) interpretive communities and law-declaring fora - could fruitfully be strengthened.

Interpretive communities and Public Participation

One of the key issues in cultural change is the need to develop new cultural norms. Under traditional regulation decision were taken by the technocratic elite and the development of new cultural norms fell to them. The modern shift to more inclusive decision making through participatory mechanisms provide opportunities to create new interpretive communities and law creating fora which may help in the development of new norms. Public participation is deemed particularly useful where decisions concern risk because it aims at discourse and deliberation of difficult issues so enabling a range of values to be aired and taken into account thus aiding problem

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solving. (Indeed these benefits are part of the justification for the adoption of the Aarhus Convention (Lee and Abbot, 2003).) It may then prove particularly apposite in the context of institutional change where we encounter both risk and the need to solve complex problems, such as implementing legislation which requires requires a change to the way the agency does business for example through demanding a holistic approach to be taken to problem solving.

In addition, those faced with solving these complex problems may not posses the skills or knowledge necessary to provide the optimum solution. Employing public participation may then help address some gaps in knowledge and understanding and in so doing provide indirect support to those norm entrepreneurs operating within the agency.

“Participation might improve the quality of decisions by input from a wide range of participants, who either have specific expertise, or can provide useful information on matters such as public fears and values. The indeterminate nature of decisions in the environmental sphere, which arises both out of the inherently political nature of the decisions and from scientific and technical uncertainties that need to be resolved by the exercise of judgement, emphasises the potential contribution of public participation to the quality of final decisions. A commitment to participation is embedded in the rhetoric of sustainable development, where objective criteria by which to make decisions are elusive, and indeed the very meaning of the term is contentious” (Lee and Abbot, 2003).

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In addition, if what norm entrepreneurs need for success is for others to follow in the adoption of particular norms of behaviour, public participation may help by creating at least the mirage of an epistemic community with shared values and understandings. The norm entrepreneur who finds themselves in the minority in their organisation may find a community within the participatory process sharing values. Indeed public participation is in essence a response to the recognised weaknesses of governance by technocracies. It is a response to the need to create a broader community of decision makers. In particular its benefits are recognised in relation to the implementation of inter alia holistic approaches to regulation. That recognition can be seen in, for example, the European Union’s Sixth Framework Programme projects on Science and Society (EU, 2002) and in for example legislation on Environmental Impact Assessment which requires the active involvement of interested parties from the very beginning of the regulatory process.7 It is also reflected in the burgeoning legislation following the adoption of the Aarhus Convention on Public Participation and Access to Information and the EU Public Participation Directive which have prompted adoption of national legislation such as the Freedom of Information (Scotland) Act (2002), Environmental Information (Scotland) Regulations (2005), and the Environmental Information (Scotland) Regulations and through specific provisions in regulatory regimes such as the Pollution Prevention and Control (Scotland) Regulations 2000 and the Water Environment and Water Services Act (2003). The obligations found in the legislation give rise to a number of possible mechanisms which may help support norm entrepreneurs. All of these mechanisms focus on participation in some form, though just who may participate and how they may do so varies from regime to regime and decision to decision.

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There are however certain flaws with the implementation of public participation. One of the key issues to be considered is the level of public participation required for it to provide a real support to norm entrepreneurs. Arnstein (1969) defines a ladder of participation where ‘Citizen Control’ (rung 8) provides the fullest form of participation by the public. If public participation is to be used to support norm entrepreneurs one would anticipate that there would be full public participation in the form of citizen control of decision making. However, it appears that the context in which these decisions are made – implementation of particular legislation which tends only to mandate implementation of participation at the lower rungs of the ladder (e.g. ‘Consultation’ (‘tokenism’, rung 4); Arnstein, 1969) – is likely to limit opportunities for such complete participation, as the regime demands that the regulatory agency controls the agenda and sets the parameters of decision making (Govan et al., 1998). The opportunities for public participation to actually support norm entrepreneurs in practice are then more limited than one might hope for and much depends on how the regulatory body chooses to exercise discretion: “the degree to which the public is involved is largely at the discretion of the agency and is determined by organisational priorities, resource availability and corporate culture rather than due to statutory restrictions.” (Blackstock et al., 2006: 67) In addition, as the literature indicates, there is no such thing as best practice, and good practice may vary on a case by case basis” (Blackstock et al, op cit: 10). Added to this is that decision making is generally subject to time (and financial) constraints which may lead regulators to adopt the minimum approach required of them.

Allied to this is the fact that,

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“In short, the attempt to overcome technical dominance with democratic procedures has had the effect of reducing communication to fair procedural rules that do not recognize the full rhetorical complexity of public dialogue” (Duffield Hamilton and Wills-Toker 2006)

There are further reasons why public participation could prove less effective than one might hope for in supporting norm entrepreneurs. These include the fact that it is more likely to evince good practice and be successful if its goals have been well defined, (Blackstock et al., 2006) however, this could be problematic in the context we are discussing where the goal is the somewhat nebulous adoption of cultural change and where that goal itself may not be reflected in the specific goals ascribed to any particular participatory process used in this context. That is, the regulators may choose, or be obliged to use only those participatory processes already provided for through legislation. At present those processes focus on decision making in specific contexts, not at improving decision making to enable cultural change more broadly to take place. They may not, therefore, be entirely suited to that latter purpose and it may be that additional processes are needed to fulfil it.

Secondly, regulatory bodies may fall prey to what Kysar and Suizman (2002-03) refer to as “environmental tribalism”. In other words, those working within the regulatory body may view themselves as belonging to a particular group or tribe which has different values and a different world view from others such as interest groups or members of the public. This may limit the possibilities for changes in self-image to arise. It may also explain why regulators at times view the public as unable to grasp

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complex scientific data and so unable to contribute usefully to decision making (Sherlock et al., 2004).

“decision makers often assume that ‘the public’ are ignorant when it comes to matters regarded as scientific and technical, thus assuming that members of the public can have nothing useful to say about these aspects of decisions (Irwin, 2001). However, many members of the public may be knowledge rich – particularly as decisions about complex environmental processes laden with uncertainty rely on many forms of knowledge. These include ‘expert’ technical expertise but also experiential knowledge of their local context (Irwin, 2001; Fischer, 2000) and procedural knowledge (Clark et al., 2001)” (Blackstock et al., 2006: 16)

There may then be a tendency to discount information provided by the public in participatory processes. In addition it is not always clear how the information received feeds into policy making as a “large degree of discretion [is] left in the hands of” (Adshed, 2006) agencies such as the Environment Agency, or SEPA thus making perceptions of discounting all the more likely. Any apparent discounting of information may cause the public to become frustrated and less willing to participate in future processes as may the fact that the non-negotiable elements of environmental regimes may have to take precedence over the public’s views:

“Applying ‘opening up’ techniques when the decision making process is in fact ‘closed down’ to very specific areas of discussion will only frustrate participants (OECD, 2004) . In turn, this can fuel a negative cycle of distrust

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in the agency, whereby participants feel their input is sought to legitimate a decision that has already been made, and that their energy expended in putting forward criticisms and solutions has been wasted. This is a major contributor to consultation fatigue.” (Blackstock et al., 2006: 11)

The fact that asymmetries of power (Button and Mattson, 1999) may lead some participants to be more influential than others and to the less powerful to be effectively silenced (Edelman, 2001; Duffield Hamilton and Wills-Toker, 2006) may also lead to frustrations. Yet continual participation by the same individuals across time is important to ensure that public participation is an effective tool to support norm entrepreneurs. Even without the above frustrations this is unlikely to occur (Duffield Hamilton and Wills-Toker, 2006).

There is also the question of who to involve. Public participation is often limited to those with an interest in the issue being regulated therefore it may not capture all relevant expertise. One answer may be to leave decisions on involvement to potential participants, however, this has the potential disadvantage that individuals may not realise that there is an opportunity to participate or may not be aware that the process is one they have an interest in. Holmes and Scoones (2000) suggest five procedures for selecting participants “(1) open invitation resulting in self selection; (2) stakeholder identification and invitation; (3) criteria-based random selection of citizens, (4) random selection of citizens and (5) combinations of the above” (Blackstock et al., 2006: 14; Holmes and Scoones, 2000; Kallis et al., 2004) Each clearly has its potential benefits and pitfalls. It is suggested that the most fruitful approach is to follow procedure (5) but that this process should be supported by PAR,

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where a “friendly outsider” might advise on the best combination of procedures for a given process. In addition the process of review and reflection so integral to PAR may help with refinement of participatory approaches across time.

PAR may help overcome some other difficulties with public participation such as asymmetries of power (Button & Mattson, 1999) and the silencing of less powerful participants (Edelman, 2001) caused by the emphasis on procedural rules designed to “overcome technical dominance in environmental decision making” (Duffield Hamilton and Wills-Toker, 2006).

They can also inter alia “foster a problem-solving atmosphere” (Bardach, 1998: 247) and “offset principal-agent problems, such as when a middle manager acts to prevent a settlement that would be good for the firm but would be harmful to the manager’s personal career.” (Bardach op cit.) As such then PAR may be another component in the process of accelerating cultural change.

Participatory Action Research (PAR)

There are a variety of ways in which PAR can support and help cultural change within an organisation. In its own right it may facilitate change through the process of reflection it engenders. PAR ‘is an approach to improving social practice by changing it and learning from the consequences of change’ (McTaggart, 1989). PAR is rooted in impact analysis (Larwood and Gattiker, 1999) and evaluation research (Pawson and Tilley, 1997; Patton; 2002). It draws on adaptive management theory (Dore and Woodhill, 1999) which views management as an experimental process where policies

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are made and reviewed in the light of new facts provided by internal or external sources (Lee and Lawrence, 1986). The PAR process is based on iterative learning, feedback loops and information sharing (Ashby 2003). Feedback loops provide a framework for assessing information flow, responsiveness and effectiveness (ImpAct, 2003). Each loop in the feedback process involves monitoring of decision making, analysis and feedback by the research/project team leading to change in the process being monitored and leading into the next round of monitoring. As feedback loops can operate at various levels, at the level of the institution such that institutions affect how they behave and, in turn, their behaviour affects other institutions (Mikler, 2005) or on a much wider transdisciplinary scale, as for example when dealing with a ‘metadiscipline’ (Naveh, 2005) such as Watershed Management (CGIAR, 2003), they may be suited to review of a variety of decision making processes. PAR can then prove beneficial in providing an opportunity to review any decision making processes of relevance to cultural change within an organisation. It may also support norm entrepreneurs through spotlighting treatment of their entrepreneurial activities within the organisation. Indeed PAR in the form of focused feedback of both externally and internally generated research findings has already been shown to assist regulatory bodies in overcoming the cultural and organizational barriers they face when seeking to employ post normal science (Allen et al., 1995).

Legal researchers have also demonstrated this type of adaptive management approach can prove beneficial to environmental legislation: referring to the work of Shapiro and Glicksman (2003), Ruhl notes that

“Their work demonstrates the folly of attempts “to perfect regulation on the ‘front end’ by subjecting proposed policies to careful scrutiny using cost-

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benefit analysis and other similar techniques,” arguing instead for methods that “improve policy on the ‘back end’ by engaging in incremental adjustments of policy as new information is obtained about how the policy affects the real world.”” (Ruhl, 2004 at 1252)

The justification for this approach is provided by Holling (1978) who:

“described conventional environmental management methods as being inconsistent with the “nature as flux” model of ecosystems as complex adaptive systems. Because the unexpected can happen in ecosystems, making it difficult to predict when, where, and to what degree policy outcomes will depart from expectations, management policy must put a premium on collecting information, establishing measurements of success, monitoring outcomes, using new information to adjust existing approaches, and instilling an ethic of willingness to change. Whereas “front end” regulatory instruments lock in positions through fixed rules and standards, an adaptive management framework is more experimentalist, relying on monitoring-adjustment “loops” of goal determination, performance standard setting, outcome monitoring, and standard recalibration.” (Ruhl 2004 at 1263)

Thus the benefits of a reflective approach are recognized. But as Blackstock et al., (2007) note, PAR involves more than simply adaptive management. It ‘implies collaboration to problem solve, highlighting the centrality of co-production of new knowledge through sharing perspectives and experiences’. Indeed it is based in consultative, collaborative and collegiate research (Biggs, 1989) and as such it

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provides an opportunity for the development of issue networks where external agents and norm entrepreneurs within the regulatory body come together and create a community of shared values that support the norm entrepreneur.

“Action research aims to contribute both to the practical concerns of people in an immediate problematic situation and to further the goals of social science simultaneously. Thus, there is a dual commitment in action research to study a system and concurrently to collaborate with members of the system in changing it in what is together regarded as a desirable direction. Accomplishing this twin goal requires the active collaboration of researcher and client, and thus it stresses the importance of co-learning as a primary aspect of the research process.” (Gilmore et al., 1986)

In addition, the review process that PAR provides means that it is suited to the review of any decision making processes, including public participatory processes. Thus it may be used to identify and address the potential weaknesses in such processes outlined earlier in this paper such as a lack of clarity in the goals of the participatory process. As noted above, one potential weakness of participatory approaches is that some participants may have less power than others and some voices may be excluded from the process. PAR can address these issues as it affords the opportunity to analyse the absorptive abilities of the receptive community (regulators) and their ability to assimilate and adapt to new, externally imposed cultural requirements. In this way it may be useful as a mechanism to highlight the knowledge generated by public participation and stakeholder involvement in decision making which has been

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mainly overlooked by the regulatory body through lack of familiarity with the parties concerned. In so doing it may ultimately help support the process of changing the self-image that cultural change requires regulatory bodies to go through.

A second potential weakness is the possibility of environmental tribalism developing, PAR has been described as particularly suited to situations where there is likely to be disagreement over management of a project or ownership of the outcomes (O’Brien, 2001) and so may help to address such tribalism through the provision of a friendly outsider to act as mediator in disputes.

“Mediators can – present a party’s proposal to his or her negotiating partner to minimize the well-documented dynamic of reactive devaluation, that is, the tendency to diminish the apparent value or attractiveness of a particular proposal or concession simply because it has come from an adversary.” (Bardach, 1998: 246).

Given that action researchers seek to influence the phenomena being studied during the action research process itself, in the hope that the true nature of social systems become most evident when one looks to change them (Bunning, 1995) and that

“It is often the case that those who apply this approach are practitioners who wish to improve understanding of their practice, social change activists trying to mount an action campaign, or, more likely, academics who have been invited into an organization (or other domain) by decision-makers aware of a

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problem requiring action research, but lacking the requisite methodological knowledge to deal with it.” (O’Brien, 2001)

It is entirely feasible that academics, with subject-based expertise in areas where new legislation is being introduced, could be employed to review decision making processes including participatory processes, the materials generated by public participation and to review the processes the institution follows in implementing the legislation. They could then highlight where further adaptation in decision making processes is needed whether this be broadening the group involved in the process or adapting the regulatory bodies response to relevant information from the public or otherwise. In so doing they would support the change agent in their work.

A PAR process has taken place within a regulatory body, the Environment Agency (EA) in the context of internal policy making in the area of sustainable development (Chalmers and Colvin, 2005). PAR has successfully supported the work of a norm entrepreneur (Colvin) by the EA employing an academic (RA; Chalmers) with the result that both gained the confidence to plan and conduct research which;

1. Involved ‘research with multiple stakeholders within a network of policy shaping; 2. ‘Included a diversity of stakeholders in the research process through being able to be open to different forms of knowledge’; and 3. Offered the flexibility ‘to engage with different stakeholders as and when, and to try different routes to engagement, including through to the point of signing off policy’.

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The participants offered a valuable critique on the decision making process within the regulatory body, as did the RA, by acting as 'friendly outsiders' (Smith et al., 1997) involved in participative decision-making (Martin and Ritchie, 1999; Council of European Union, 2002; Chalmers and Colvin, 2005) yet contributing a critical perspective on the process. This enabled all participants to provide additional input into the adaptive management process despite perhaps being viewed by some within the agency as not possessing the same ‘scientific’ knowledge as those traditionally involved in the development and implementation of standards and regulation (Collins, et al., 2005). As would be predicted when following a PAR approach, this lack of perceived expertise was not problematic as, within it, practical non-scientific knowledge is considered to be just as valuable as scientific knowledge in problem solving. Indeed these benefits are in effect recognized by the much broader regulations on public participation in environmental decision making. One would anticipate that this should have led to transformative praxis by providing a challenge to the decision makers to review their current processes in light of these alternative perspectives (Chambers, 1997) though this issue was not explored in that particular study. One cautionary note from Chalmers and Colvin (2005), although participation was prioritized in the research, many voices were excluded as the project had (inevitably) limited funding and a limited lifespan. Thus it highlights problems associated with running isolated projects and problems that can arise when there is a lack of continued project funding.

A second cautionary note is sounded by another study involving the EA (Collins, et al., 2005) in which researchers from the Open Systems Research Group of the Open

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University worked in conjunction with the river basin planning (RBP) team of the EA on a National Science Project for social learning for river basin planning (RBP). This study demonstrated the importance of norm entrepreneurs/change agents to the success of PAR. In this study one hundred staff from EA plus external stakeholders were involved in 15 workshops with the aim of giving participants the opportunity to learn how RBP could be progressed in England and Wales. Workshops focused on WFD implementation. This provided the RBP team with the experience, time and resources for learning about the meaning of RBP and how to operationalize it in conjunction with a number of other agency staff and stakeholders. Thus it helped them to appreciate skills and experience of their colleagues within the EA and external agencies. In this example there was no one single norm entrepreneur at work and no conceptual model of RBP emerged. Some members of the RBP team therefore saw this project as a failure and it does highlight the need to target PAR to supporting norm entrepreneurs within regulatory bodies as without them it is harder to progress an agenda.

Conclusion

There are at least three mechanisms already in existence that can support cultural change within regulatory bodies, but as demonstrated here more effective cooperation and coordination between them could lead to more dynamic cultural change. These mechanisms are norm entrepreneurs/change agents, public participation and PAR. Each on its own has weaknesses, but when the three mechanisms are used in combination with each other their individual weaknesses may be counteracted and an effective process for the adoption of new norms by regulatory bodies engendered.

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Norm entrepreneurs are those individuals within an organisation who are first to understand the need to adopt new cultural norms and who then promote their adoption. If operating alone, norm entrepreneurs may find promoting the new norms an uphill struggle and the tipping point, at which the norm becomes accepted, may take a long time to reach. As demonstrated in this paper, their work can be supported and facilitated through the development of interpretative communities and issue networks.

Public participation operates at the level of Koh’s interpretative community and law declaring fora, in so doing it may create a community of shared values and understandings with which the norm entrepreneur may engage for support. In addition the radical changes required in institutions may highlight the need to acquire new knowledge and understandings. Public participation can assist here too by addressing gaps in knowledge and understanding and in so doing may provide implicit support to those promoting change within the institution. There are, however, weaknesses with public participation, for example, it is less effective where the decision making goals are unclear as may be the case when cultural change is required. Moreover, public participation is in practice often limited to those who know that they have an interest in the issue being regulated and so may not capture all relevant expertise. Amongst those present there may also be some who are less able to make their views heard. This weakness may be exacerbated by the fact that public participation may be hampered by environmental tribalism.

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PAR can help overcome some of these problems by, first providing a mechanism by which the goals and outcomes of decision making processes, including participatory processes, may be reviewed and revised to ensure clarity. Secondly it can enable a friendly outsider to advise on how to obtain the best combination of participants for a given process to ensure all relevant expertise is captured. It can also help to overcome asymmetries of power within public participation and ensure that less powerful participants are not silenced. The friendly outsider may also act as a mediator bringing together and representing interests of all sides so overcoming environmental tribalism. The practice of PAR can also provide opportunities to create issue networks in which external agents and norm entrepreneurs come together and the latter may be supported in their work.

All three of these mechanisms are already used to varying extents to deliver better regulation, the issue highlighted here is the need for more deliberate integration of the processes. As demonstrated above the lack of norm entrepreneur engagement with PAR may render that process ineffective, equally, for example, norm entrepreneurs on their own find their work an, at times, dauntingly slow process. Public participation on its own may suffer from a number of weaknesses which may be addressed through the use of PAR. Used together, however, any weaknesses in these processes may be overcome and they may be effectively used to accelerate cultural change.

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1

See in particular Article 46. WFD Article 1 “The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which: …

2

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(b) promotes sustainable water use based on a long-term protection of available water resources;” 3 Preamble to the WFD notes that “Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such.” It also notes that “Waters in the Community are under increasing pressure from the continuous growth in demand for sufficient quantities of good quality water for all purposes.” 4 see for example, Section 31A, Control of Pollution Act, 1974 5 Introduced for example, in the UK in the 1990 Environmental Protection Act s.7 6 See for example, COUNCIL DIRECTIVE 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control Pollution Prevention and Control Act 1999 7 . Environmental Impact Assessment - Directive 2003/35/EC, European Commission, 2003, refer to relevant Scottish legislation and legislation from elsewhere.

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