Public Participation in Risk Regulation

After discussing the increasing recognition of different kinds of claims for public participation in Risk regulation, this paper discusses a spectrum of approaches and examines six points along its range

The Role of Government Attorneys in Regulatory Agency Rulemaking

The many roles that agency lawyers can play in the internal processes of developing proposed rules and responding to public comments on those rules are discussed

The End Game of Deregulation: Myopic Risk Management and the Next Catastrophe

By using the Kingston Fossil Fuel Plant’s spill into the Emory River as a case study, this article offers several explanations for why the twentieth century dynamic of crisis and reform has disappeared in the early twenty-first century. In Part I, it is argued that regulated industries dominate regulatory debates on Capitol Hill and at the federal agencies to an unprecedented extent. Part II examines what is known about the Kingston spill and the implications of that information for recurrence of such events. Part III explains how the EPA and Congress responded to this disaster, highlighting how politics driven by a deregulatory ideology eventually took over the EPA’s science-based rulemaking process. Part IV offers suggestions for rebuilding regulatory agencies like the EPA and for restoring public trust in government.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight

This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were caused by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers\u27 hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the standard project hurricane risk assessment model that lay at the heart of the Army Corps of Engineers\u27 decisionmaking process. The Article then offers a detailed analysis. of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a standard project hurricane when planning a hurricane protection plan, or the equally mythical lawsuit that sunk New Orleans when attempting to allocate responsibility for the plan\u27s failure some forty years later

The Internal Structure of EPA Rulemaking

The EPA\u27s evolving internal decisionmaking structures as they relate to the agency\u27s primary function of promulgating rules and regulations are examined. As an agency addressing complex scientific, economic and technological issues, the EPA must draw upon many different kinds of expertise and has developed a unique version of bureaucratic pluralism as manifested in the team model that dominates the EPA\u27s institutional thought process

Deruglatory Riders Redux

Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences offailing to pass the more important bills. This Article examines the deregulatory riders of the 104th Congress and the experience to date with deregulatory riders during the 112th Congress. Although riders are not inherently good or evil, the Article concludes that riders, like the deregulatory riders examined here, that advance narrow special interests over the general public welfare represent bad public policy. The Article examines several methods for discouraging deregulatory riders, but concludes that none of them are likely to be implemented until the public signals its strong disapproval of deregulatory riders

Deregulation Using Stealth “Science” Strategies

In this Article, we explore the “stealth” use of science by the Executive Branch to advance deregulation and highlight the limited, existing legal and institutional constraints in place to discipline and discourage these practices. Political appointees have employed dozens of strategies over the years, in both Democratic and Republican administrations, to manipulate science in ends-oriented ways that advance the goal of deregulation. Despite this bald manipulation of science, however, the officials frequently present these strategies as necessary to bring “sound science” to bear on regulatory decisions. To begin to address this problem, it is important to reconceptualize how the administrative state addresses science-intensive decisions. Rather than allow agencies and the White House to operate as a cohesive unit, institutional bounds should be drawn around the scientific expertise lodged within the agencies. We propose that the background scientific work prepared by agency staff should be firewalled from the evaluative, policymaking input of the remaining officials, including politically appointed officials, in the agency