Identifying Hybrid Regulatory Instruments for Environmental Governance: A Roadmap for Nuanced Rule Typologies

This paper zooms in on one essential aspect of environmental governance: the rule design of regulation and legislation. In recent years, the way that environmental regulation is composed has received more and more attention. A topical issue is the potential for and impact of regulation that steps away from detailed, prescriptive rules, and instead focusses on broader, alternative forms of regulation where the subjects of the regulation receive more discretion in how to achieve the regulatory goals. Some well-known examples are management-based regulation, principles-based regulation, or regulation based on economic incentives (such as carbon trading). However, while most research tries to analyse these alternative forms of regulation as if they were isolated entities, we see that, in reality, most environmental regulation forms a heterogenic mix of various kinds of regulation. This discrepancy between theory and reality hampers a sound analysis of the impacts and consequences of different ways in which environmental regulation can be designed. This paper addresses this issue by presenting a method to identify the regulatory character of regulation in a more complex and nuanced way. It starts from a thematic analysis of the different legislative and regulatory techniques employed in European and Flemish environmental regulation. This then results in the development of an instrument to draw a ‘regulatory profile’ of the regulation on a certain topic. By focussing on the discretion, clarity, and stringency embedded in the rule design of regulation, we arrive at a nuanced rule typology. This way, we can broaden the scope of analysis of alternative regulatory instruments to also include heterogenic, hybrid, and mixed forms of regulation. That is a crucial step in comprehending the connection between the legal mechanisms of environmental governance on the one hand, and political issues of implementation and conflict resolution on the other. By combining insights and methods from legal studies and political sciences, this paper takes steps in adopting an integrated approach towards environmental governance and contributes to complex issues on environmental justice.