1,203 research outputs found

    Citizen Participation in Rulemaking: Past, Present, and Future

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    Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works-or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation after the introduction of various types of technological innovations. Contrary to prevailing predictions, empirical research shows that e-rulemaking makes little difference: citizen input remains typically sparse, notwithstanding the relative ease with which individuals can now learn about and comment on regulatory proposals. These findings indicate that the more significant barriers to citizen participation are cognitive and motivational. Even with e-rulemaking, it takes a high level of technical sophistication to understand and comment on regulatory proceedings. Moreover, even though information technology lowers the absolute cost of submitting comments to regulatory agencies, it also dramatically decreases the costs of a wide variety of entertainment and commercial activities that are much more appealing to most citizens. Given persistent opportunity costs and other barriers to citizen participation, even future e-rulemaking efforts appear unlikely to lead to a participatory revolution, but instead can be expected generally to deliver much the same level of citizen involvement in the regulatory process

    Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

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    Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation\u27s capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration\u27s National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain agencies in the development of specific regulations. As a result of these and other efforts, federal agencies have begun to employ the consensus-based process known as negotiated rulemaking

    Pledging, Populism, and the Paris Agreement: The Paradox of a Management-Based Approach to Global Governance

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    For many observers, the Paris Agreement signaled a historic breakthrough in addressing the problem of global warming. In its basic design, however, the Agreement is far from novel. Its dependence on each nation’s self-determined pledge to reduce greenhouse gases mirrors the domestic policy strategy called management-based regulation—a flexible regulatory approach that has been used to address problems as varied as food safety and toxic air pollution. In this article, I connect insights from research on management-based regulation to the international governance of climate change. Unfortunately, management-based regulation’s track-record at the domestic level gives little reason to expect that the Paris Agreement will lead to major long-term behavioral change needed to reduce greenhouse gas emissions. Although a management-based regulatory strategy may have been the best option available for securing a widespread global climate agreement, this strategy seems to offer little assurance of forward momentum on climate policy due to an inherent paradox created by the Agreement’s management-based design: global progress will depend on domestic politics. Especially given the rise of nationalistic populism around the world, the Paris Agreement will succeed only if political efforts within individual countries push back the threat to global cooperation posed by populism and convince domestic leaders to support serious climate action

    Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

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    Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation\u27s capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration\u27s National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain agencies in the development of specific regulations. As a result of these and other efforts, federal agencies have begun to employ the consensus-based process known as negotiated rulemaking

    The Rhetoric and Reality of Regulatory Reform

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    In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response to the Bush amendments. It begins by comparing criticisms of the Bush amendments with criticisms of previous regulatory reforms, showing that concerns about delay date all the way back to the creation of the Administrative Procedure Act of 1946. Notwithstanding the perennial nature of charges of delay and obstruction, the U.S. regulatory state has grown dramatically in both size and impact over the last six decades. In addition, the extant social science literature has failed to find any systematic delays associated with the specific procedure affected by the Bush amendments, namely regulatory review by the Office of Management and Budget. Overall, the burdens associated with regulatory reforms appear to be far smaller, or more manageable, than critics usually suppose. This paper concludes with several explanations for persistent reality of regulatory growth in the face of the persistent rhetoric of obstruction. These alternative accounts not only help explain the rhetoric-reality divide over regulatory reform in general, but they also provide reason to expect the Bush amendments will have, at most, only a trivial impact on the overall regulatory process.

    Policymaking Under Pressure: The Perils of Incremental Responses to Climate Change

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    Federal policymakers' reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change may well be no better than, and possibly will be worse than, no action at all. Incremental climate change policies can give rise to predictable and nontrivial problems, such as non-effect, leakage, climate side effects, other side effects, lock-in, and lulling. Such problems not only can undermine the interim policies themselves but also may delay the adoption of a more comprehensive climate change policy. We present an upstream cap-and-trade policy as one such comprehensive alternative, showing how it would prove less susceptible to the kinds of policy failures that afflict incremental policies. Only by resisting the pressures to act immediately, and investing the necessary time and resources to craft a comprehensive solution, will environmental policymakers be able to guard against the perils that afflict ad hoc policymaking.

    Shifting Sands: The Limits of Science in Setting Risk Standards

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    Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but overreliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though EPA claimed to base its standards on a singular concern for public health, it set its standards at levels that will still lead to hundreds, if not thousands, of deaths each year. In other ways, EPA's positions were like shifting sands, changing at points that apparently were expedient for the agency. Such an outcome should not be unexpected when an agency misuses science as a policy rationale, but it also need not be inevitable if agencies learn to respect the limits of science in justifying risk standards. We conclude by offering a set of principles to give direction to standard setting by EPA and other agencies. In the case of EPA's air quality program, Congress will likely need to amend the Clean Air Act to enable EPA to break free of the conceptual incoherence in which it now finds itself mired. Decisionmakers in any setting, though, can avoid the problem of shifting sands by carefully understanding what science can and cannot do.Environment, Regulatory Reform

    Principled Standard Setting Requires Consideration of More Than Science (AEI-Brookings Joint Center for Regulatory Studies, Brief 00-02) Brief Amicus Curiae in Support of Respondents, Browner v. American Trucking Associations, Inc., No. 99-1257, (U.S. September 11, 2000)(with 20 Law Professors, Economists, and Scientists)

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    Summary of Argument: Throughout this proceeding, EPA has identified no policy or normative criteria to justify its NAAQS standards, thus suggesting that science alone can be used to determine the appropriate air quality standard. Science plays a critical, indeed essential, role in evaluating the risks of possible air quality standards being considered for adoption by EPA. However, science by itself cannot provide the justification for selecting a particular air quality standard. Especially in setting standards for non-threshold pollutants, such as in this case, scientific evidence cannot alone indicate where the standard should be set, since any level above zero will cause some health effects. To provide a principled and consistent basis for justifying the setting of such standards at some level above zero, EPA must articulate other factors -- whether they be costs or other policy criteria -- to guide its decisions on where to set national ambient air quality standards

    Standards and the Law

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    The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determine liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they are incorporated by reference. This article explains how standards intersect with and affect six major domains of law: product liability, patent law, contracts, administrative law, international trade, and criminal law. It also shows why it is important for lawyers, engineers, and other professionals working in the worlds of standards or law to understand each other and communicate effectively across both worlds. In today’s economy, both standards and laws perform critical governance roles
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