292 research outputs found
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Imagining Corporate Sustainability as a Public Good Rather than a Corporate Bad
Corporations have been criticized for their environmental misdeeds for over a century, so it is not surprising that many view corporate approaches to sustainability with skepticism. Reports of green-washing and other forms of misleading advertising by a handful of corporations only serve to reinforce this negative perception.The Kay Bailey Hutchison Center for Energy, Law, and Busines
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
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Misunderstanding Models in Environmental and Public Health Regulation
Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.The Kay Bailey Hutchison Center for Energy, Law, and Busines
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Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emissions
In this article, the authors trace the engagement and the influence of interest groups over the entire life cycle of a complete set of complex EPA rules that set emissions standards for the industrial release of air toxins. In particular they focus on three of the most worrisome phases of the administrative process where imbalances in interest group engagement and influence may be occurring. The thesis of this study is that imbalances in interest group engagement are occurring at critical albeit somewhat obscure stages of the rulemaking life cycle and that these imbalances are impacting the substance of the rulemaking project.
This article proceeds in five parts. Part I explores three stages in the rulemaking life cycle that may be afflicted with imbalanced interest group engagement that in turn might distort the outcome of the rulemaking project. Part II describes the methods of the article, which examine the nature of interest group engagement and activity at these problem stages in a complete set of rules promulgated by the EPA governing the industrial emissions of air toxics. Part III describes the findings and Part IV collects information from disparate sources in detective like fashion to explain some of the surprises and new questions that emerge from this research. In the conclusion, the authors retell the store that emerges from their data and consider whether it suggests more pervasive problems in administrative law that will benefit from further study.The Kay Bailey Hutchison Center for Energy, Law, and Busines
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The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy
This article’s investigation into the “agency for legitimacy” proceeds in five steps: Part I introduces the concept of “administrative constitutionalism,” which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors’ argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism.The Kay Bailey Hutchison Center for Energy, Law, and Busines
Administrative Law, Filter Failure, and Information Capture
There are no provisions in administrative law for regulating the flow of information entering or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing many of the decision-making processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability is undermined as entire sectors of affected parties find they can no longer afford to participate in this expensive system. Pluralistic oversight, productive judicial review, and opportunities for intelligent agency decision-making are all put under significant strain in a system that refuses to manage and indeed tends to encourage excessive information. This Article first discusses how parties can capture the regulatory process using information that allows them to control or at least dominate regulatory outcomes ((lie information capture phenomenon). It then traces the problem back to a series of failures by Congress and the courts to require some filtering of the information flowing through the system (filter failure). Rather than filtering information, the incentives tilt in the opposite direction and encourage participants to err on the side of providing too much rather than too little information. Evidence is then offered to show how this uncontrolled and excessive information is taking a toll on the basic objectives of administrative governance. The Article closes with a series of unconventional but relatively straightforward reforms that offer some hope of bringing information capture under control
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