Environmental water transactions under regulatory capitalism: The role of law

Abstract

Since the late 20th century, governments have promoted the acquisition of water rights in order to recover water for the environment. The use of water transfer mechanisms for this purpose devolves important water use decisions to individual water users, and enables governments to achieve wider public goals in relation to the management of water scarcity without resorting to bureaucratic reallocation. However, governments retain an important oversight and coordination role within these regimes, and the result has been dense systems of regulation, involving legal interactions between a range of institutions and actors. The Thesis will undertake a comparative analysis of the regimes supporting environmental water transactions in the Murray-Darling Basin/New South Wales, the Canadian province of Alberta, and the states of Colorado and Oregon in the western United States, in order to understand the regulatory strategies behind the regimes, and ultimately to determine the most appropriate role of law in relation to environmental water transactions. In order to do so, the Thesis adopts a broader perspective of regulatory change under the theory of regulatory capitalism. Water allocation and trading frameworks supporting environmental water transactions, or ‘market-orientated environmental water allocation frameworks’ (MEWA frameworks’), do not adopt a uniform legal model, but rather a variety of complex regulatory techniques, with multiple government and regulatory bodies as well as hybrid legal instruments to steer the operation of the market. Regulatory capitalism is well suited for describing and analysing the evolution and legal design of these market-based regimes, as key elements of the theory correspond with key decision centres in the creation of legal frameworks to facilitate the ecologically sustainable development of water resources. In particular, key characteristics of regulatory capitalism relate to matters such as the division of labour between state and society and within the state itself, the codification of relationships within regulatory regimes and the development of hybrid forms of regulation to create diverse and multi-faceted regulatory regimes. Decisions taken on those matters are fundamental to whether market-based regimes are able to restore water-stressed riverine environments. The analysis includes an examination of the legal and regulatory regimes as written and the regimes in action, supported by interviews with experts and persons representative of the spectrum of actors under each regime. Regulatory capitalism is a powerful tool for analysing the legal and regulatory orderings that characterise these frameworks. However, the analysis takes the theory one step further, in the context of environmental water transactions, by examining normative questions of effectiveness and develops a theory as to the appropriate role of law in supporting environmental water transactions. The conclusion of the Thesis is that legal frameworks do not have the capacity to rationalise and provide an overarching and “final” solution to the complex environmental and governance issues that arise in the context of environmental water transactions. Rather, the role of law in this context needs to be reconceptualised within the paradigm of regulatory capitalism as establishing and maintaining the limits within which regulatory participants can operate, innovate and collaborate.