Empowering Environmental Regulatory Intermediaries Through Law: The Changing Roles of ENGOs in Ireland 1998-2017

This paper forms part of a major five-year project funded by the European Research Council investigating the influence of the current trend of network-based, “bottom-up” environmental governance rules on compliance levels over time. In this paper we test and seek to develop the nascent theory of “regulatory intermediaries” (“RI”) in examining the role of environmental NGOs (“ENGOs”) in Ireland in the period from 1992 to 2017. RI theory essentially posits that “regulation often operates indirectly via chains of intermediation and (…) regulators and targets can expand their capacities by selecting, engaging, and even creating intermediaries” (Abbott et al. 2017, p. 16). We observe that the explanatory force of RI theory is potentially powerful in the case of European environmental governance where, since the signature of the Aarhus Convention on Access to Environmental Information, Public Participation and Access to Justice in Environmental Matters in 1998, there has been a strong emphasis on enabling and facilitating environmental non-State actors, including ENGOs, in environmental governance (Kingston, Heyvaert & Čavoški, 2017). Taking the Irish example, we conceptualise ENGOs as intermediaries, but which exhibit features of particular interest to RI theory, including the multifaceted nature of the “regulator” (the State, the European Union and the United Nations Economic Commission for Europe), which regulators may (and not infrequently do) harbor varying intentions for intermediaries’ roles. Further, the chain of intermediation in this case is created not through policy or practice but through binding law, in the form of the Convention and implementing EU and national legislation, which obliges the State to create architectures enabling an enhanced role for ENGOs in environmental governance. In addition, these laws place particular emphasis on facilitating the role of intermediaries in enforcement, rather than norm creation. This paper therefore seeks to analyse the effect(iveness) of law as an enabler in RI theory, both conceptually but also empirically by considering data on ENGO activities as “intermediaries” during the 25 year period 1998 – 2017. We find strong evidence of a significant change in the intermediary roles played by ENGOs from 1998 onwards, suggesting that the implementation of the Aarhus Convention opened up a variety of channels through which ENGOs could impact the EU and Irish environmental regulatory regime. However, the role of ENGOs has not always been predicted or predictable by the original regulator(s), and the focus of ENGO activity and regulatory strategy has varied significantly over this time. References: Abbott, Levi-Faur and Snidal, 2017. Theorizing regulatory intermediaries: The RIT model. The Annals of the American Academy of Political and Social Science, 670, 14-35 Kingston, Heyvaert & Čavoški, 2017. European Environmental Law, Cambridge University Press