Arguments and their effects – A case study on drafting the legislation on the environmental impacts of peat extraction in Finland

Journal of Cleaner Production 226 (2019) 1004e1012

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Arguments and their effects e A case study on drafting the legislation on the environmental impacts of peat extraction in Finland* Jussi Airaksinen a, *, Eerika Albrecht b a b

UEF Law School, University of Eastern Finland, P.O. Box 111, FI-80101, Joensuu, Finland Department of Historical and Geographical Studies, University of Eastern Finland, P.O. Box 111, FI-80101, Joensuu, Finland

a r t i c l e i n f o

a b s t r a c t

Article history: Received 6 August 2018 Received in revised form 15 March 2019 Accepted 14 April 2019 Available online 15 April 2019

This article analyses the impact of stakeholder participation in the drafting process of the Environmental Protection Act, which regulates the licensing of peat extraction in Finland. The article contributes to research on the impact of stakeholder participation in regulatory processes, which is a generally underexplored field of study, and seeks to identify which arguments affected the end result. Furthermore, it addresses whether the legislative drafter took into account influential arguments as a result of rational choice arrived at by means of adequate reasoning and under conditions of procedural transparency. Finally, it analyses how these arguments reflect the attitudes of stakeholders towards the objective and dynamics of the public hearing process. The paper presents a qualitative and quantitative argumentation analysis, which consists of an argument typology, together with analysis both of the feasibility of different arguments and the frequency with which they were employed and of the realisation of different viewpoints on the draft. The analysis shows stakeholders’ statements had significant effectiveness but that the weight given to different arguments was unbalanced. In conclusion, it seems that frequently used arguments were ignored without reasons being given but that rarely used arguments that seem difficult to apply had an influence on the process. Moreover, stakeholders that supported the objective of the Act used arguments that could not be easily taken into account while still achieving the objective of the Act. Meanwhile, arguments indicating problems that were easy to fix in the draft were used to oppose the objective of the Act per se. Consequently, there was no clear consensus among stakeholders as to whether the public hearing process should be understood as amounting to aggregative bargaining or integrative deliberation. Based on these findings, it is suggested that participatory processes in legislative drafting should be developed to foster horizontal dialogue between stakeholders. © 2019 Elsevier Ltd. All rights reserved.

Keywords: Peat extraction Legislative drafting Public participation Deliberative democracy Normative instutionalism

1. Introduction Peat extraction is a common activity in Finland. However, it is highly controversial for environmental reasons, including its contribution to greenhouse gas emissions and the eutrophication of waters as well as its negative impacts on biodiversity. Nevertheless, it remains important for regional economics and energy production € nen and Simola, 2012; Lindholm and Heikkila €, 2006; Chapman (Ylo et al., 2003). The Environmental Protection Act (527/2014)

* This work was supported by Maj and Tor Nessling Foundation https://www. nessling.fi/?lang¼en. * Corresponding author. E-mail addresses: jussi.airaksinen@uef.fi (J. Airaksinen), eerika.albrecht@uef.fi (E. Albrecht).

https://doi.org/10.1016/j.jclepro.2019.04.161 0959-6526/© 2019 Elsevier Ltd. All rights reserved.

(hereinafter the ‘EPA’) is the main regulatory instrument for managing the environmental impacts of peat extraction in Finland (Belinskij, 2015) and repealed its predecessor in 2014. This paper analyses the public hearing in the regulatory process allowing for stakeholder participation in relation to the draft legislation, which started in 2011. In the context of this process, the most controversial provision of the draft proved to be section 13, which prohibits the licensing of peat extraction when such activities would damage significant nature values. This paper approach the renewal of the EPA through the concept of institutionalised deliberation (Dryzek and Hendriks, 2012, p. 36) and normative institutionalism (March and Olsen, 1986; Lowndes and Roberts, 2013, pp. 28e40; Peters, 2016). Some empirical research has recently been published on public participation in relation to its environmental protection outcomes

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(Wu et al., 2018; Li et al., 2018). However, the influence of stakeholders on outcomes in regulatory policy in a public hearing process is underexplored, particularly with regard to US regulatory processes in administrative law (Langbein and Kerwin, 2000; Reid, 2011; Beierle and Cayford, 2002). To fill this gap, Finland was chosen for this paper to represent a civil law country with an established public hearing procedure in relation to legislative drafting. Expert organisations, such as industry associations, labour unions and environmental NGOs, are considered to have a significant role in Scandinavian legislative politics (Christiansen et al., 2010; Rantala et al., 2015; Vesa et al., 2018). This article focuses on the way in which interest groups seek to influence the drafting process via the public hearing stage. The purpose of the public hearing is to gather information and expertise relevant to decisionmaking. This paper aim to establish whether different stakeholders’ attitudes and argumentation indicate a multiplicity of approaches to the function and dynamics of the public hearing process and whether some approaches to argumentation are more effective than others. Accordingly, this paper analyses the arguments put forward by various stakeholder groups in the hearing process and examines whether these arguments were taken into account in the drafting process and, if so, in what way. The paper aims to answer the following questions: (1) What types of arguments were presented during the process? (2) Which arguments were effective in terms of the outcome? (3) How do the arguments reflect the attitudes of stakeholders towards the objective and dynamics of the public hearing process? (4) Does the use of influential arguments indicate a rational choice on the part of the legislative drafter arrived at by means of adequate reasoning and under conditions of procedural transparency? This issue has been selected as the focus of this study because, due to its manifold environmental, social and economic impacts, peat extraction has given rise to numerous political conflicts and legal disputes at local, national and EU level and involves many divergent interests. The data submitted for the public hearing was substantial in comparison to data submitted in respect of other high profile legal reforms. Such rich data provides a solid base for quantitative and qualitative analysis of argumentation and its effects in a public hearing process concerning environmental legislative drafting. 2. Background and literature concerning the role of public hearings in legislative drafting processes The extent to which public hearings form part of the legislative drafting process varies around the world from being non-existent to being mandatory under the constitution (Czapanskiy and Manjoo, 2008). Most of the literature regarding the influence of public participation in legislative drafting focuses on US negotiated rulemaking (RegNeg) processes, especially in the field of environmental regulations, even though RegNeg may be considered to form part of administrative law rather than being a facet of legislative politics. Based on interview data, stakeholders have been more satisfied with the RegNeg process as compared to less participatory methods (Langbein and Kerwin, 2000; Rinfret et al., 2014). Furthermore, in the California Public Utilities Commission, whose regulations require consumer participation, stakeholder statements can be given in evidentiary hearings, workshops or in a hybrid of the two. Reid (2011) argues that stakeholders’ statements had greater impact in more interactive processes, i.e. workshops and hybrid forms. Beierle and Cayford (2002) reported similar results with 239 environmental conflict cases in their data set. These results may be explained by reference to the scope offered by such fora for the development of mutual understanding and problem-

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solving among conflicting stakeholders (Innes, 2004; Reed et al., 2018). The standard procedure for the Finnish legislative drafting process is set out in the Guidelines for Making a Government Proposal (Ministry of Justice, 2004:4). There are also detailed guidelines for the public hearing in legislative drafting, which were renewed after the Act discussed in this article was adopted (old guidelines Ministry of Justice 18/2010, new guidelines Finnish Council of State, 2016). The guidelines stipulate that the only mandatory public hearing before the parliamentary proceedings shall be primarily conducted by way of written submissions based on the first draft of the government’s proposal. The second hearing is held in a parliamentary committee on the basis of the government’s final proposal. At this point only parliament may alter the draft, and this is usually done in accordance with the committee report. In relation to the first hearing, the draft legislation is emailed to the relevant interests groups and experts with a request for statements expressing their views on it. In standard cases the interest groups are given between six to eight weeks to submit their statements. The guidelines require that stakeholders’ proposals should be included in the government’s proposal. In addition, the government must explain why certain proposals have not been implemented in the government’s proposal. After the mandatory hearing, the government’s proposal will be finalised and sent to the parliament. The first hearing round may be considered to take place at an exceptionally late stage in the drafting process. However, it is characteristic of northern European and Scandinavian policy planning practice to include and negotiate with various interest groups in the early stages of the regulatory process (Tala, 2005, p. € 132; Pallesen, 2006; Christiansen et al., 2010; Oberg et al., 2011; Pakarinen, 2011, p. 65). Finland has been described as having a consensual policy style with inclusive formal decision-making €va €inen-Litardo, 2015; Sairinen, 2003). In this restructures (Tera gard, the participation of expert organisations, such as industry associations, labour unions and environmental NGOs, is an institutionalised part of Finnish legislative processes. In a comparative study utilising data from Denmark and the UK, in Finland extraparliamentary committees and connections with public servants were considered to be even more important focal points for lobbying than contacts with the parliamentary committees or ministers (Vesa et al., 2018). One of the typical forms that such participation takes is a working group where stakeholders can negotiate details of the policy and draft in question (Rantala et al., 2015). This practice is considered to be influential and is widely supported e especially among those groups in civil society and business that are included in these working groups (Vesa et al., 2018). Thus, the Organisation for Economic Co-operation and Development (OECD) has repeatedly made the criticism that achieving consensus between major players in closed groups can weaken access to policymaking processes on the part of less organised or less influential groups (OECD, 2003, pp. 62e63; OECD, 2010, pp. 71e82). Considering this critique, the reasoning in the government proposal as to why some proposals mentioned in the official hearing round were not taken into account seems to be the only evidence of transparency on this particular issue (Fung, 2006; Habermas, 1981). 3. Methods and theory 3.1. Methods and data The data consists of statements from interest groups and background reports, all of which are available on the Finnish

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government’s project register. The Ministry of the Environment received 123 statements concerning the renewal of the EPA. In aggregate, 82 of these statements by different organisations related to section 13. This analysis covered only the statements from the first written hearing round because most of the opinions in the parliamentary committees are presented in an oral hearing but only the written statements are made public. By way of comparison, in 2009 the average number of written statements for all of government proposals was 27, with a median of 18, so the amount of data received in relation to the EPA can be considered to be copious (Pakarinen et al., 2010, p. 26). In order to find out what kinds of interest groups participated in the legislative politics and what kinds of arguments were deployed, a quantitative and qualitative argumentation analysis framework was developed. Statements given by private individuals were excluded: a fact that supports the conceptual framing of the process as amounting to institutional deliberation. First the arguments presented in the statements given in relation to the hearing round were listed. Secondly, the participants were classified based on their attitudes towards the proposed objective of section 13 of the EPA. Arguments were categorised by reference to how burdensome it would have been to take the argument into account in terms of excessive work, administrative burden, budgetary constraints, legal restraints or fundamental incompatibility with the objective of the section. Third, the arguments were analysed to find out whether they were effective or otherwise in terms of the outcome e i.e. the final wording of section 13. Additionally, the effective arguments were examined by reference to the stakeholders that formulated them in order to analyse the power relations between stakeholders. Fourth, the question of whether the government’s proposal included reasoning that reflected each stakeholder argument was scrutinised. 3.2. Argumentation theory in the context of analysis of deliberative process This paper’s interest in argumentation derives from the ‘New Rhetoric’ of Perelman and Olbrecht-Tytecas (1969), Habermas’ theory of communicative action (Habermas, 1981) and the pragmadialectical approach taken by Van Eemeren and Grootendorst (2004). The process of law-making is understood as a communicative process that allows for critical discussion and practical reasoning (Lapintie, 1998). This communicative process of lawmaking through transparent processes and public deliberation ensures law’s legitimacy. The concept of legitimacy refers to the foundations of the exercise of power and the justification of political authority (Bodansky, 2007, p. 706). Habermas (1996, p. 33) argued that laws gain legitimacy by being refined through communicative action. The act of arguing is also distinguished from bargaining (Risse, 2004). Arguing is reflexive process that entails the exchange of arguments in order to convince the audience or external authority behind the particular set of values or interests (Risse, 2004). Interpretations of Habermas’s theory assume that in the ideal speaking situation the actors engaged in argumentation are motivated by the desire to seek truth through an exchange of validity claims (Risse, 2004). The ideal speaking situation is assumed to be power-free, where the best argument ‘wins’, and has been criticised for its failure to recognise power notions (Fast, 2013; Renn, 2006). Stakeholders often strategically engage in the act of arguing to persuade the audience to achieve a certain outcome. Rhetorical understanding of argumentation indicates that the purpose of arguing is to produce an effect (Van Eemeren and Grootendorst, 2004). Effectiveness, efficiency and equity can be understood as valid criteria for evaluating public participation. Arguments are

effective if they produce an outcome (Van Eemeren and Grootendorst, 2004). In this paper, effectiveness is understood as increasing the substantive quality of decisions. Evaluation of the substantive quality of decisions calls for evidence as to whether participatory processes add useful substantive knowledge or ideas that would not otherwise be available (Beierle and Cayford, 2002). In terms of evaluating the effectiveness of arguments in the process of replacing the EPA, the analysis leans on March and Olsen’s (1986) integrative and aggregative categories of deliberative process. In an aggregative process, rational citizens pursue selfinterest through governance, majority rule and bargaining. In an integrative process, the will of the people is discovered through deliberation by reasoning citizens. Thus, the interests may change through deliberation. The characteristics of both types of process may overlap. This theory of normative institutionalism has proven to be a useful framework for analysing argumentation in deliberative processes (Klintman and Kronsell, 2010; Thuesen, 2015; Vogelsang-Coombs, 2012). March and Olsen (1986) have established an efficiency criterion for aggregative institutions: are all of the mutually satisfactory voluntary exchanges present, i.e. can the institution find paretooptimal solutions reliably and inexpensively? The criteria used to assess integrative institutions are somewhat different. First, there is the question of competence: does the process develop and use genuine expertise of relevance to the problem by means of technical knowledge and understanding of community needs and possibilities? Second, there is the question of integrity: does the process ensure that participants act in a manner dedicated to the common good and is it uncorrupted by their personal interests? 4. The regulatory framework for the use and conservation of mires and peatlands and the rationale of the new section The EPA is the main Finnish legal instrument concerning peat production and is a general act on the prevention of pollution that applies in respect of all activities that cause or may cause environmental damage. It implements Directive 2010/75/EU1 (hereinafter the ‘Industrial Emissions Directive’ or ‘IED’), which obliges EU Member States to legislate to control of emissions caused by industry. Although peat production does not lie within the scope of application of integrated pollution prevention and control under the IED, similar permission is required by virtue of the EPA. Unlike other states in the Scandinavian legal family, Finnish environmental legislation is substantially fragmented. There are several other Acts that regulate aspects of the environmental licensing of peat extraction, such as the Nature Protection Act (1096/1996), the Environmental Impact Assessment Act (468/1994), the Land Use and Building Act (132/1999) and the Water Act (587/2011). The impetus for the legislative reform, particularly in relation to peat extraction, originated from cases in which peat extraction had -vis the natural values of peatbeen deemed to be a problem vis-a lands. In cases 2005:27 and 2005:70 the Supreme Administrative Court of Finland ruled that trenching indeed caused damage to the environment by lowering water levels outside the intended extraction area. However, the EPA’s scope of application covers the detrimental effects of emissions. The Court held that altering the water level by drainage modified the environment and that it amounted to structural degradation but not to degradation caused by emissions. Hence, natural values are to be taken into account only if they are exclusively located in the production area. If the

1 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L 334, 17.12.2010, p. 17e119.

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drainage waters cause detrimental effects in a recipient water system, they are to be taken into account in the permitting procedure since they are caused by emissions. One might argue that the timing of the proposal for the new draft Act shows certain opportunistic characteristics. Comprehensive replacement of the EPA was necessary in order to implement the IED. The prohibition on carrying out peat production in areas of significant natural values was included in this process. This inclusion, in the context of a thorough overhaul of the Act, can be seen as a strategy since the provision governing peat production would likely have been more difficult to pass as a standalone amendment (March and Olsen, 1989, pp. 11e14; Newig, 2007, p. 95).

5. Drafting process The starting point for the regulatory reform was set out in the government platform of Prime Minister Jyrki Katainen. It states that: ‘The inclusion of the consideration of natural values in the Environmental Protection Act and the effects of this will be investigated’ (Government Programme, 2011, p. 124). As we can see, the verb used is ‘to investigate’ rather than ‘to enact’. Katainen’s government was a coalition of six parties covering a very wide political spectrum. The government was renowned for its remarkably detailed platform and strict compliance with its objectives (Soininvaara, 2015, pp. 39e41). Former MP Soininvaara describes Finnish political culture, and especially the inner tensions of the government, using Francis Fukuyama’s term vetocracy (Soininvaara, 2015, pp. 15e22). Consequently, it was not obvious that this note would have any impact other than leading to the production of a report. One might say that the prerequisites for enacting the new section in that political environment were (1) active work on the part of the Minister of the Environment (Ville € of the Green Party), and (2) acceptance by the other parties Niinisto in the coalition, since they were in the position of being able to veto everything that was not in line with the government platform. Naturally, its acceptance may have been gained by means of tradeoffs. The first draft was prepared in working group called ‘Project Group 4’. It consisted of public servants from several ministries and supervisory and permitting authorities, and representatives from the Association of Finnish Local and Regional Authorities, the Confederation of Finnish Industries, the Central Union of Agricultural Producers and Forest Owners, the Finnish Association for Nature Conservation and the Finnish Nature League (Cover letter, 25 October 2012). The project group scrutinised four regulatory alternatives to achieve the objective of safeguarding endangered species and habitats from the risks posed by peat production (Koivulehto et al., 2012). The project selected the option of new section in the EPA, which conformed with the objectives in the government platform. If the working group had suggested some other regulatory alternative, the political situation at the time, given the nature of that government, would most likely have prevented it from passing. There are some reasons to argue that the most logical or instinctive choice would have been to insert the criterion on the licensing of peat extraction into the Nature Conservation Act, although this would have led to the state being liable in the event of rejection of an application for a permit. The project group did not assess this option but presented the following draft of the EPA: ‘Section 6: Nature values of the location of activities

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Activities requiring an environmental permit shall be located so that they will not cause damage for nationally or regionally significant nature values in the location of those activities. While assessing the significance of nature values, endangerment of the species and habitats in the location of the activities along with the significance and extent of the occurrence are taken into account. While assessing the significance of nature values, the relevance of the location as a part of a network of areas that are important for biodiversity, and a relevance of the location for nature and its functions extraneous to the location, may additionally be taken into account. Furthermore, the particular aesthetic and landscape values of the location may be taken into account while assessing the suitability of location. This section is not applied if: (1) the decision concerning the permit is made by the environmental protection authority of the municipality under section 31(2); (2) the above-mentioned natural values in subsection 1 are scrutinised in the regional plan or in the comprehensive plan with legal effect and the activities will be located in the area that is reserved in the plan for those activities; (3) in the location of the activities there is a detailed plan which is approved under the Land Use and Building Act or a detailed plan which is up-to-date according to section 60 of the Land Use and Building Act.’ The hearing round, which is the basis for the analysis in the next chapter, discussed the draft above. The government proposal was drafted after the hearing round. It evolved from the first draft into a new proposal. The most noticeable differences between the draft and the government proposal were those in the following:  the scope of application of the new section was limited to peat production;2  the government was conferred with the competence to enact a decree to specify criteria for assessment of the significance of nature values;  no network of areas that are important for biodiversity was taken into account;  neither aesthetic nor landscape values were taken into account;  a derogation was included for activities that would not endanger nature values in the part of the country in question; and  a derogation on the basis of public interest was included.

6. Effective and ineffective statements concerning the draft 6.1. Attitudes towards the objective of the new section This chapter presents a quantitative and qualitative argument analysis of the hearing round. Although it was obvious that the goal was to regulate peat extraction and that the new section would have the most impact on peat extraction, the original scope of application of the new section went beyond peat extraction. This may partially explain the motives for such broad stakeholder participation, representing manifold interests. The majority (42.7%) of the statements received were in favour of the general objective of

2 Limiting the scope of application made paragraphs 1 and 3 of section 6(2) of the first draft unnecessary since peat production is always permitted by state authorities and in practice a detailed plan for peat production is never required.

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the regulation and 34.15% opposed it. Most of the public authorities and municipalities agreed on the objective embodied in section 13 and most of the industry associations opposed it (Table 1). 6.2. Typology and quantified analysis of arguments The different arguments presented in statements can be placed in a typology of 20 groups as follows: 6.2.1. Arguments that were effective Those arguments that were possible to take into account with modest changes, as contained in section (a) of Table 2, were effective, unlike those that would have required fundamental changes to the proposal before the hearing round or those that were indicated as problems that could not be fixed within the context of a replacement of the EPA. We may note that some of the arguments set in section (a) of Table 2 were also used to oppose the objective of the regulation in general. Effective arguments when comparing the government’s proposal to the draft proposal were as follows: 1. The scope of application should be narrowed to certain types of activities/Some particular sector (other than peat) would be disturbed. ‘It should be more clearly stated for what purpose the paragraph shall be used. The detailed rationale refers to peat extraction but the wording is so general that it will become the subject of a round of appeals in general.’ (industry associations) As a result, the scope of application was limited to peat production (pp. 83e84). 2. The definition of nature values is open to various interpretations. This argument was frequently used to oppose the regulation per se. The proposed nature values concept was perceived as too broad and complex and it was used by those who opposed the draft to argue that the legislation would delay and complicate environmental permitting processes. This argument was expressed in 36 statements and was mainly supported by industry associations (87%) and companies (57%). ‘The concept of nature values is open to various interpretations which would endanger the principle of equality. The predictability of the decisions would decrease fundamentally, which would weaken investment in domestic energy.’ (company)

deleted from the definition of nature values (p. 84). The competence for the government to enact a decree for the definition of nature values was added (and later deleted by parliament in accordance with the report by the Environment Committee of the parliament). 3. The relevance of aesthetic and landscape values is unbalanced and open to various interpretations. This argument was expressed eight times. However, it is a matter of debate whether this argument can be classified as an independent argument or a derivative of the argument that the definition of nature values is open to various interpretations. Compared to the abovementioned argument the relevance of aesthetic and landscape values expresses the need to narrow down the legislation to include solely endangered species and habitats, which would simplify the environmental permitting consideration for peat extraction as compared to the proposed draft. ‘Decision-making on nature and natural beauty values would become subjective, as values have been defined in a broad sense. The premises of decision-making would therefore vary between authorities and operators would end up in unequal positions’ (Industry associations). As a result, aesthetic and landscape values were removed (p. 84). 4. A general derogation for the statute is needed. This argument was expressed only in four statements. ‘The statute in question would be the unconditional prohibition of altering the environment with no weighing of economic or other interests’ (Industry associations). As a result, derogations on the basis of public interest and for activities that do not endanger nature values in the part of the country in question were added. Doubts have been raised to the effect that the most likely derogation, on the basis of public interest, is systematically impossible to apply in any practical circumstances (Airaksinen, 2015, pp. 76e81). The derogation on the basis of nature values not being endangered in part of the country in the first paratoires does subsection is systematically vague. The travaux pre not take a clear stand on these issues. 6.2.2. Arguments that were ineffective The most frequently mentioned arguments, presented in section (a) of Table 2 that did not influence the government’s proposal were as follows:

As a result, networks that are important for biodiversity were

Table 1 What were the attitudes of stakeholder groups towards the objective of the proposed section?.

Permitting and supervisory authorities Provincial federations Municipalities Administrative courts Industry associations Labour unions Companies Environmental NGOs Universities, institutes Other expert organisations Other authorities (incl. ministries) Total

Agree

Neutral

Disagree

14 2 7 2 1 0 1 3 4 0 1 35

1 8 2 0 0 1 2 0 1 2 2 21

0 3 0 0 14 3 4 1 0 0 3 28

1. The responsibility of the operator to report nature values would be transferred to provincial federations and that inventories and reporting might have to be done twice and thus the proposed derogation in subparagraph 2 of subsection 2 would double the administrative burden in some cases (In Tables 2 and 3 ‘Differences in quality and being up-to-date with the reporting of nature values in plans’). This argument was expressed 20 times within the reasoning: ‘In practice, the reporting of nature values in regional plans is not very profound because looking into nature values more precisely is considered to take place in the permit application phase or, in the case of some activities, in the master planning phase. For example, mires which have no area reservations in the regional plan and are part of a permit application for peat production will be inventoried in a more detailed manner than peat production area reservations that have never been inventoried in general plans. In the future

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Table 2 What arguments did stakeholders present in the 82 statements and with what frequency?. (a) Arguments that could have been taken into account with modest changes to the draft The regional plan should play a bigger role in defining nature values and assessing the sufficiency of reporting the nature values Differences in quality and being up-to-date with the reporting of nature values in plans Activities where the municipality is the permitting authority should also be included in the scope of application The definition of nature values is open to various interpretations The relevance of aesthetic and landscape values is unbalanced and open to various interpretations The scope of application should be narrowed to certain types of activities/Some particular sector (other than peat) would be disturbed A general derogation for the statute is needed The importance of natural state assessment in the application of the statute should be emphasised Endangered species should be protected more effectively than suggested The statute’s scope of application should be extended (b) Arguments which would have required fundamental changes to the draft to be taken into account The statute would be in conflict with the constitutional protection of property The statute would be ineffective because trenching before permitting is more or less permissible One should be able to reliably define in advance which sites cannot be permitted under the statute (c) Arguments indicating problems that cannot be fixed with the suggested regulation Regulation will delay and complicate permitting processes (e.g. by extending the need for species and habitat inventories) but the general target should be to facilitate the permitting consideration Other measures than hard law should be primarily used for peatland conservation It is suggested that the regulation of this issue is being inserted in the wrong Act Regulation will hinder peat supply Increased mire conservation is unnecessary Peat will be replaced by coal The conservation status of species or habitats is scientifically unreliable and subject to change

1 20 18 36 8 18 4 2 4 4 12 1 9 25 16 28 5 2 3 3

Table 3 How many times arguments that were effective and the most frequently mentioned ineffective argument were mentioned by stakeholders. The percentages shown represent the proportions of stakeholders in each group who put forward the argument. Stakeholder group (total)

Scope of application should be narrowed (18)

General Nature values are open to Aesthetic values are unbalanced and open to various interpretations derogation various interpretations needed (4) (8) (36)

Differences in quality and being up-to-date with reporting of nature values in plans (20)

Permitting and supervisory authorities (15) Provincial federations (13) Municipalities (9) Administrative courts (2) Industry associations (15) Labour unions (4) Companies (7) Environmental NGOs (4) Universities, institutes (5) Other authorities (6)

N/A

4 (27%)

1 (7%)

N/A

7 (47%)

4 (31%)

7 (54%)

N/A

1 (8%)

6 (46%)

4 (22%) N/A

1 (11%) 1 (50%)

N/A 2 (100%)

N/A N/A

N/A 2 (100%)

6 (40%)

13 (87%)

1 (7%)

2 (13%)

1 (7%)

2 (50%) 1 (14%) N/A

2 (50%) 4 (57%) N/A

N/A 1 (14%) 2 (50%)

N/A N/A N/A

N/A 1 (29%) 1 (25%)

N/A

1 (20%)

N/A

N/A

1 (20%)

3 (50%)

3 (50%)

1 (17%)

1 (17%)

N/A

there will be cases when we will have to consider whether or not the reporting of nature values in an area reservation of a general plan is up-to-date. For example, how old can the area reservation be in order to avoid conducting an inventory and reporting nature values. At present, the accuracy of reporting nature values and being up-to-date in regional plans varies significantly between different regions’ (Permitting and supervisory authorities).’ This argument was mentioned in the summary of the statements by stakeholders in the government’s proposal (p. 83). However, the detailed rationale contained in the government’s proposal does not resolve this issue, explain why it ignored or even clarify whether the concern is relevant. The reasoning behind the section remained unchanged. 2. Activities where the municipality is the permitting authority should also be included in the scope of application. This argument appears to be irrelevant given that the scope of the section was

narrowed to peat production since peat production is always permitted by state authorities. 3. Furthermore, requests for a more rigorous level of environmental protection were ignored even though they were mentioned as often as requests for a general derogation. Only four statements argued that the scope of application of the new section should be extended and endangered species should be protected more effectively than suggested. These arguments can be linked to environmental NGOs and certain institutes and have the objective of strengthening the protection of species and habitats and recognising the intrinsic value of nature. ‘The reasoning for particular landscape and natural beauty values are insufficient. They do not, as represented here, enable the consideration of significant landscape and natural beauty values of actual nature areas.’ (environmental NGO) Section (b) of Table 2 contains the arguments that would have

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required fundamental changes to the suggested regulation had they been taken into account while attempting to achieve the objective of the new section. These arguments were mainly concerns expressed by businesses. First, the constitutional protection of property is a question of interpretation and subsequently the Constitutional Law Committee did not deem the conflict to be too problematic. In general, the refusal of an environmental permit does not entail liability on the part of the state. In accordance with the Nature Conservation Act, restrictions on using property entail such state liability. It would have been peculiar and costly for the state to have created a liability doctrine for the EPA. Second, the argument that the new section would be ineffective because trenching before receiving a permit is more or less permissible, could have been addressed by amending the Water Act (587/2011). This would have required much more extensive preparation and an impact assessment. However, drainage for forestry or agricultural purposes which does not need a permit, is supervised by means of a registration procedure and the effects of drainage in peat production are nearly always subject to licence. The third argument in section (b) of Table 2 concerns legal security. It was stated that one should be able to reliably predict in advance which sites will be subject to refusal or to acceptance. The Nature Conservation Act stipulates a system under which habitats become subject to restrictions when the supervising authority establishes the borders of the habitat and notifies the site’s owner. An arrangement of this kind would be systematically incongruous within the context of the EPA and would also place a heavy burden on the administrative authorities and thus be expensive for the state. Consequently, permissibility is assessed on the basis of the probable effects of proposed activities. The arguments in section (c) of Table 2 are incompatible with the objective of the draft legislation. The argument that the Nature Conservation Act should have been amended instead is included in this group since it would have required much more extensive preparation together with an impact assessment and it would have been expensive. Thus, it would not have been possible to enact it since the focus was on replacing the EPA and there were no budgetary resources or time to amend the Nature Conservation Act, and such amendment was not included in the government platform. Consequently, this argument was widely used to oppose the suggested section per se, but three of the stakeholders who put forward one of these arguments were in favour of the objective of the new section and four were neutral about it. A total of 26 interest groups opposed the objective of the new section and presented the arguments mentioned in section (c) of Table 2. In Table 3 above, the argument about the quality of reporting nature values and being up-to-date was mainly a concern of the permitting and supervisory authorities and courts, unlike the other arguments that were taken into account. The arguments nature values are open to various interpretations and aesthetic values are unbalanced and open to various interpretations were expressed as concerns by industry associations, labour unions and companies. It may be argued that business interests were more effective than the views of permitting and supervisory authorities and appellate courts in this part of the process since the interests of industry associations and labour unions impacted the government’s proposal but this argument was ignored, unexplained and undocumented even though the concern was relevant. It is very likely that this particular problem expressed by authorities will cause overlapping reporting of the same nature values and problems with legal security caused by incorrect conclusions regarding the quality of reporting (Airaksinen, 2015, pp. 81e83).

7. Results and discussion As the analysis shows, the argumentation on the content of the nature value section of the EPA was diverse. Some of the statements were against the new section per se, or aimed at more freedom for enterprises or the weakening of its environmental objective. Other statements aimed at qualitative improvement of the proposed section or sought the inclusion of stricter environmental protection in the phrasing. Most of the statements contain a recognition that the definition of nature values is prima facie unclear. The principles of equality and predictability were used as the main arguments in reasoning against integrating nature values in the broader sense. Interest groups often stated that landscape and aesthetic values are open to various interpretations and would therefore threaten the predictability of environmental licensing, which could harm the peat industry. Predictably, companies and industry associations opposed the objective of the new section while NGOs argued for a wider definition of nature values. The analysis shows that permitting and supervisory authorities, municipalities and courts were in favour of the objective. This indicates that there may have been problems with the existing laws governing the conservation of peatlands, which the new section was considered to ameliorate, since neither the supervisory and permitting authorities nor the courts should, in theory, have any interest in the imposition of either a more or less stringent approach to nature conservation as an end in itself. Industry associations were also able to formulate the most powerful arguments, which meant that the wording that imposed a stronger environmental norm was not used in the final version of the EPA. Quantitative argument analysis can be used to reveal the power relations between stakeholders in these processes. However, the data does not give enough evidence of what hidden narratives were at play in the political processes behind these textual changes. Industry associations have considerable power in such policy processes as Finnish policymaking culture has been described as €va €inen-Litardo, 2015). ‘technology-and-industry-know-best’ (Tera This state-society relationship may explain why the content of the nature values statute was weakened. Different interest groups were likely to use arguments that fit into the same argument category even when they had opposing attitudes towards the objective of the new section. Some stakeholders who sought to oppose the proposed section in general used certain arguments that could be addressed by making modest changes to the draft. Contrary to expectations, some stakeholders expressed viewpoints that fell into the group of arguments that would have required fundamental changes to be taken into account while at the same time actually supporting the ultimate objective of the proposed section. Consequently, it is clear that there was no homogenous understanding among stakeholders about whether the participation and process is, or ought to be, aggregative or integrative by reference to March and Olsen’s (1986) categories. Furthermore, the argument concerning derogation on the basis of planning was also ignored even though it was relevant and frequently put forward. Meanwhile, arguments that were seldom put forward and which can be considered irrelevant, such as the derogation on the basis of public interest, were implemented in the government’s proposal. This indicates that empirically the drafting process fails March and Olsen’s (1986) efficiency criteria for aggregative processes. Producing an applicable law and minimising the extent to which officials and operators are subjected to an unnecessary administrative burden would likely have been in the interest of all parties. By reference to March and Olsen’s (1986) criteria for integrative processes, the process also fails because it does not utilise the competences of the organisations taking part in it.

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Most of the arguments that were put forward frequently in the public hearing process that were possible to realise with only modest efforts were implemented. One relevant argument regarding the validity of general plans that was put forward frequently by officials and courts was ignored. Some of the points made were incorporated into the government’s proposal without analysis as to the rationality of the argument involved. As a result, even if a legitimate argument is put forward, it might not be paratoires why is it ignored. Likewise, reasoned in the travaux pre rarely mentioned arguments were incorporated into the draft without reasoning even where it appeared impossible to transform the point being made into a provision that would work in practice. Since the data is limited to this particular case, further research is needed to make more reliable generalisations and obtain a broader picture as to the impact of stakeholders in the public hearing processes. As a final point, earlier literature on deliberative regulatory processes indicates that stakeholders’ interests are taken into account more effectively and their levels of satisfaction are higher if the process includes deliberation between different stakeholders (Innes, 2004; Reid, 2011; Langbein and Kerwin, 2000). The reason for this might be mutual learning in the light of each other’s objectives and creative problem-solving (Reed et al., 2018). In the Finnish public hearing process, dialogue occurs vertically between legislator and stakeholder but not horizontally between stakeholders. The quality of decisions and levels of stakeholder satisfaction might be improved by facilitating the inclusion of constructive dialogue and problem-solving among stakeholders within the process. 8. Conclusions This study has contributed to the literature on stakeholders’ influence and attitudes in deliberative regulatory processes. The analysis shows a significant but unbalanced level of effectiveness for statements of stakeholders. The argumentation indicates various and inconsistent conceptions as to whether the stakeholders understand the process as aggregative bargaining or integrative deliberation. Moreover, the public hearing process fails to some extent by reference to the efficiency tests for deliberative processes since no attempt is made to fully satisfy all interests and the process doesn’t utilise the full competences of the stakeholders. Furthermore, the fact that the legislator’s responses to the statements are not reasoned in the detailed rationale contained in the government’s proposal substantiates these conclusions. However, public hearings are necessary for the legitimacy of the process (Bodansky, 2007). Thus, in this case the use of such hearings ensured that the legitimacy of the decision-making process would not be questioned. On the other hand, the OECD has criticised the transparency of Finnish regulatory processes on the basis of unequal access as between different stakeholders (OECD, 2003, pp. 62e63; OECD, 2010, pp. 71e82). The process could, however, be improved if the reasons for selecting the viewpoints held to be influential were to disclosed within the public sphere. The Finnish government adopted new guidelines for public hearings in legislative drafting on 2 February 2016. These guidelines emphasise more clearly than their predecessors that statements should be summarised in a government proposal along with explanation as to how the reasoning influenced the draft or why it failed to do so (Finnish Council of State, 2016). Further, preferably longitudinal, research is needed to find out how these guidelines are implemented in the future. Moreover, there may be significant scope to improve the quality of decisions by fostering dialogue between stakeholders. Implementing these facilitated deliberative processes would call for

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empirical trials and analysis to establish best practice. References Airaksinen, J., 2015. Prohibition on locating peat production under the environmental protection act, section 13. Finn. Environ. Law Rev. 4, 54e87 €risto €nsuojelulain 13 §:n mukainen sijoituspaikkaeste turvetuotannolle). (Ympa Beierle, T.C., Cayford, J., 2002. Democracy in Practice: Public Participation in Environmental Decisions. Routledge. Belinskij, A., 2015. ‘Regulation of Peat Production at Turning Point in Finland’, Finnish Yearbook of Environmental Policy and Law, vol. VIII. University of Eastern Finland, pp. 7e62 (Turvetuotanto oikeudellisessa murroskohdassa). Bodansky, D., 2007. Legitimacy. In: Bodansky, D., et al. (Eds.), The Oxford Handbook of International Environmental Law. Oxford University Press, pp. 704e723. Chapman, S., et al., 2003. Exploitation of northern peatlands and biodiversity maintenance: a conflict between economy and ecology. Front. Ecol. Environ. 1 (10), 525e532. Christiansen, P., et al., 2010. Varieties of democracy: interest groups and corporatist committees in scandinavian policy making. Voluntas 21 (1), 22e40. Cover letter, 2012. Reform of Environmental Protection Act. Project 4. Taking Nature Values into Account, 25 October 2012, the Finnish Ministry of the Environment €risto €nsuojelulain uudistaminen. Projekti 4. Luonnonarvojen (Luovutuskirje. Ympa huomioonottaminen). Czapanskiy, K., Rashida, M., 2008. The right of public participation in the lawmaking process and the role of legislature in the promotion of this right. Duke J. Comp. Int. Law 19, 1e40. Dryzek, J.S., Hendriks, C.M., 2012. Fostering deliberation in the forum and beyond. In: Fisher, F., Gottweis, H. (Eds.), The Argumentative Turn Revisited: Public Policy as Communicative Practice. Duke University Press, Durham & London, pp. 31e57. Fast, S., 2013. A Habermasian analysis of local renewable energy deliberations. J. Rural Stud. 30, 86e98. Finnish Council of State, 2016. Finnish Council of State Resolution on Guidelines for €a € to €s Public Hearing in Law-Drafting, 4.2.2016 (Valtioneuvoston periaatepa €a € do €svalmistelun kuulemisohjeesta). http://valtioneuvosto.fi/paatokset/paatos? sa decisionId¼0900908f804a9259. (Accessed 20 January 2019). Fung, A., 2006. Varieties of participation in complex governance. Publ. Adm. Rev. 66, 66e75. Government Programme, 2011. Programme of Prime Minister Jyrki Katainen’s Government. 22 June 2011, Official Translation. Habermas, J., 1981. The Theory of Communicative Action, Vol One. Reason and the Rationalization of Society, Beacon Press. Habermas, J., 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Trans. Rehg, W.). Polity Press, Cambridge. Innes, J.E., 2004. Consensus building: clarification for the critics. Plann. Theor. 3, 5e20. Klintman, M., Kronsell, A., 2010. Challenges to legitimacy in food safety governance? The case of the european food safety authority (EFSA). J. Eur. Integr. 32, 309e327. Koivulehto, M., et al., 2012. Improving the Permit System to Protect Nature Values: Impact Assessment of Four Regulatory Alternatives. Finnish Environment €rjestelma €n kehitta €minen luonnonarvojen turvaamiseksi: Institute, Helsinki (Lupaja € n sa €a €ntelyvaihtoehdon vaikutuksista). arvio nelja Langbein, L., Kerwin, C., 2000. Regulatory negotiation versus conventional rule making: claims, counterclaims, and empirical evidence. J. Public Adm. Res. Theory 10 (3), 599e632. Lapintie, K., 1998. Analysing and evaluating argumentation in planning. Environ. Plan. Plan. Des. 25, 187e204. Li, L., et al., 2018. Public participation in achieving sustainable development goals in China: evidence from the practice of air pollution control. J. Clean. Prod. 201, 499e506. €, R., 2006. Destruction of mires in Finland. In: Heikkila €, R., Lindholm, T., Heikkila Lindholm, T. (Eds.), Finland e Land of Mires. Finnish Environmental Institute, Helsinki, pp. 179e192. Lowndes, V., Roberts, M., 2013. Why Institutions Matter: the New Institutionalism in Political Science. Palgrave Macmillan. March, J.G., Olsen, J.P., 1986. Popular sovereignty and the search for appropriate institutions. J. Public Policy 6 (4), 341e370. March, J.G., Olsen, J.P., 1989. Rediscovering Institutions: the Organizational Basis of Politics. Free Press, New York. Ministry of Justice 18/2010. Guidelines for Public Hearing in Law Drafting (Kuule€a € do €svalmistelussa e Ohjeet). available at: http://julkaisut. minen Sa valtioneuvosto.fi/handle/10024/76212. (Accessed 20 January 2019). Ministry of Justice, 2004. 4: Guidelines for Drafting a Government Proposal (Hallituksen esityksen Laatimisohjeet) available at: https://julkaisut.valtioneuvosto.fi/ bitstream/handle/10024/75847/hallituksen_esityksen_laatimisohjeet.pdf? sequence¼1. (Accessed 20 January 2019). Newig, J., 2007. Symbolic environmental legislation and societal self-deception. Environ. Pol. 16 (2), 276e296. € Oberg, P., et al., 2011. Disrupted exchange and declining corporatism: government authority and interest group capability in scandinavia. Gov. Oppos. 46 (3), 365e391. OECD, 2003. Reviews of Regulatory Reform: Finland 2003, A New Consensus for Change available at: http://www.oecd-ilibrary.org/governance/oecd-reviews-

1012

J. Airaksinen, E. Albrecht / Journal of Cleaner Production 226 (2019) 1004e1012

of-regulatory-reform-finland-2003_9789264102699-en. (Accessed 20 January 2019). OECD, 2010. Better Regulation in Europe: Finland available at: http://www.oecd. org/gov/regulatory-policy/betterregulationineuropefinland.htm. (Accessed 20 January 2019). Pakarinen, A., 2011. Is law drafting particularly poor in Finland? In: Pakarinen, A., et al. (Eds.), Lainvalmistelu, Tutkimus, Yhteiskunta e Jyrki Talan Juhlakirja. Publications of Faculty of Law of University of Turku, pp. 61e73 (Onko lainvalmistelu Suomessa todella erityisen huonoa?). Pakarinen, A., et al., 2010. Regulatory Impact Assessment in the Finnish Government’s Proposals in 2009, vol 104. National Research Institute of Legal Policy, Research Communications available with English summary at. https://helda. helsinki.fi/bitstream/handle/10138/152510/Vaikutusten_arviointi.pdf? sequence¼1. (Accessed 20 January 2019). Pallesen, C., 2006. Scandinavian corporatism in a trans-atlantic comparative perspective. Scand. Polit. Stud. 29 (2), 131e145. Perelman, C., Olbrechts-Tyteca, L., 1969. The New Rhetoric: A Treatise on Argumentation (Trans. Wilkinson, J. & Weaver, P.). University of Notre Dame Press, Notre Dame, p. 564. Peters, B., 2016. Institutionalism and public policy. In: Peters, B., Zittoun, P. (Eds.), Contemporary Approaches to Public Policy e Theories, Controversies and Perspectives. Palgrave Macmillan, pp. 57e72. Rantala, K., et al., 2015. ‘Impact Assessment and Basic Information from Law Drafting in the Government’s Proposals of 2013’. Institute of Criminology and Legal Policy in Helsinki 8/2015 (Vaikutusten arviointi ja lainvalmistelun peru€), available at: https://helda.helsinki. stietoja vuoden 2013 hallituksen esityksissa fi/handle/10138/159330. (Accessed 20 January 2019). Reed, M., et al., 2018. A theory of participation: what makes stakeholder and public engagement in environmental management work? Restor. Ecol. 26, S7eS17. Reid, L. Jan, 2011. Contemporary Evidence from California: Who Gains When Evidentiary Hearings are Held? available on SSRN: https://papers.ssrn.com/ sol3/papers.cfm?abstract_id¼2656526. (Accessed 20 January 2019).

Renn, O., 2006. Participatory processes for designing environmental policies. Land Use Pol. 23 (1), 34e43. Rinfret, S., et al., 2014. Understanding state rulemaking processes: developing fracking rules in Colorado, New York, and Ohio. Rev. Pol. Res. 31 (2), 88e104. Risse, T., 2004. Global governance and communicative action. Gov. Oppos. 39 (2), 288e313. Sairinen, R., 2003. ‘The politics of regulatory reform: “new” environmental policy instruments in Finland’. Environ. Pol. 12 (1), 73e92. €a €hyva €iset Soininvaara, O., 2015. Farewell to the Parliament, Teos, Helsinki (Ja eduskunnalle). Tala, J., 2005. Drafting and Impacts of Law. Edita Publishing, Helsinki (Lakien laadinta ja vaikutukset). €va €inen-Litardo, T., 2015. Negotiating green growth as a pathway towards susTera €ckstrand, K., Kronsell, A. (Eds.), Rethinking tainable transition in Finland. In: Ba the Green State: Environmental Governance towards Climate and Sustainability Transitions. Routledge, pp. 174e190. Thuesen, A., 2015. ‘The democratic capabilities of and rhetoric on LEADER LAGs in the EU e the Danish case’. In: Granberg, L., Andersson, K. (Eds.), Evaluating the European Approach to Rural Development. Routledge, pp. 79e96. Van Eemeren, F.H., Grootendorst, R., 2004. A Systematic Theory of Argumentation. The Pragma-Dialectical Approach. Cambridge University Press, Cambridge. Vesa, J., et al., 2018. A stronghold of routine corporatism? The involvement of interest groups in policy making in Finland. Scand. Polit. Stud. 41 (4), 239e262. Vogelsang-Coombs, V., 2012. Toward the civil city Council. State Local Govern. Rev. 44 (3), 208e215. Wu, J., et al., 2018. The impact of governmental performance assessment policy and citizen participation on improving environmental performance across Chinese provinces. J. Clean. Prod. 184, 227e238. €nen, M., Simola, H., 2012. The Finnish peat mining paradox: political support to Ylo €, R. (Eds.), Mires from Pole to environmental calamity. In: Lindholm, T., Heikkila Pole, the Finnish Environment 38. Finnish Environment Institute, pp. 167e175.