Law Commons^™

Environmental Leadership Programs: Toward An Empirical Assessment Of Their Performance*, Jonathan C. Borck, Cary Coglianese, Jennifer Nash

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Over the past decade, the U.S. Environmental Protection Agency (EPA) and states have developed environmental leadership programs (ELPs), a type of voluntary environmental program designed to recognize facilities with strong environmental performance records and encourage facilities to perform better. Proponents argue that ELPs overcome some of the limitations of traditional environmental regulation by encouraging managers to address the full gamut of environmental problems posed by their facilities, reducing the costs of environmental regulation, easing adversarialism, and fostering positive culture change. Although ELPs have been in place for at least five years at the federal level and in seventeen states, these …

Introduction To Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

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Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …

Images Of Representation, Elizabeth Magill

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This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine.

This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One …

The Epa's Risky Reasoning, Cary Coglianese, Gary E. Marchant

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Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency's efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how the agency was able to cloak its policy judgments under the guise of scientific objectivity. By doing so, the EPA evaded accountability for a shifting and incoherent set of policy positions that will have major implications for public health and the economy. For example, even though EPA claimed to base …

Assessing The Advocacy Of Negotiated Rulemaking: A Response To Philip Harter, Cary Coglianese

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For many years, advocates of negotiated rulemaking have advanced enthusiastic claims about how negotiated rulemaking would reduce litigation and shorten the rulemaking process. In an earlier study, I tested these claims systematically by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. I found that negotiated rulemaking neither saves time nor reduces litigation. Recently, Philip Harter, a longtime advocate of negotiated rulemaking, has criticized my study and asserted that negotiated rulemaking has succeeded remarkably in achieving its goals. Harter criticized the way I measured the length of the rulemaking process, claimed that I failed to appreciate differences in litigation, …