Wednesday, January 16, 2008

Fiat or Collaboration?

We were recently contacted by PENNumbra,, the University of Pennsylvania Law Review's online supplement about a debate it is featuring on the process of making environmental law -- should we continue the current regulatory process, in which regulated entities are subject to environmental requirements that are imposed by fiat and that usually cannot be negotiated, or should we adopt a collaborative process, in which regulated entities negotiate the requirements that will apply to their businesses? You can check out the debate between Professors Eric W. Orts, of Penn's Wharton School, and Cary Coglianese, of Penn's Law School here: Professor Orts's skepticism of the independence of political and other governmental actors in a world in which "lobbyists and campaign financiers . . . play large and often decisive roles in th[e public policymaking] process" leads him to conclude that "in many situations, it makes better sense to trust less in the traditional centralized process of environmental lawmaking and to consider . . . the alternative of engaging in collaborative environmental law." Professor Coglianese responds that, by making agreement the primary aim of policymaking, collaborative environmental law actually conveys a willingness to give in to interested parties in pursuit of the "holy grail" of consensus.

This debate is an interesting academic accompaniment to the current process of developing GHG regulations in California, in which the Air Board is conducting an unprecedented number of public workshops soliciting every type of public input regarding the development of regulations to implement California's Global Warming Solutions Act. In this case, the State is attempting to get as much buy-in as possible for regulations which will inevitably run into significant political
opposition. The State's top-down process is not in fact "collaborative" but the State is trying to give the process the trappings of a collaborative approach. It remains to be seen how much goodwill that process will generate.


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