Embedding social justice in the design of environmental regulation

Western resource management theory suggests that the optimal conservation strategy is to impose access constraints through the law, and then empower the economically competent users of constrained resources through trading and permits. This will maximise wealth (often represented as social optimality), and long-term environmental services for the majority. However, efficient conservation can embed social disadvantage for the vulnerable minority. Social cost is not an accidental 'spillover' of either environmental policing and markets, it is intrinsic. This chapter considers this issue and proposes procedural options to improve consideration of social justice in the design of environmental regulation. For the purposes of this chapter, environmental regulation is any state imposed legal constraint for the purpose of conserving natural resources. It includes exclusion and policing, environmental property rights, and restrictive licenses to use resources. This chapter argues that regardless of the constraint type there is an inherent potential for inequity, though its extent and significance varies with the vulnerability of those affected, the nature of the constraint, and the particular circumstances. Many social liberals hold the fond belief that because disproportionate resource consumption is an attribute of the rich, conservation will naturally benefit the poor, leading to an expectation that conservation and social justice are happy companions. Unfortunately this is not intrinsically so. Environmental law can exacerbate social injustice unless conscious steps are taken to address these risks.