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Abstract:
The theory of deliberative democracy sketches a model of politics based on models of law and legal decision-making. It aspires to turn political decisions into a form of legal decision-making. It is easy to see how this ambition responds to the widespread belief that partial interests dictate public outcomes. Among other things, it implies that the kind of electoral calculations sketched out above would be entirely out of bounds, and that a sound public decision would be one based on science and ethics-science to predict the consequences of possible decisions, and ethics to evaluate the relative merits of those consequences.

This legalistic vision of politics leaves much out of account, portrays an unrealistic and unattractive picture of politics, and is ultimately self-defeating, or so this paper will argue. Part II elaborates on deliberative democracy's attempt to displace politics with law. Part III exposes some of the difficulties with that attempt. Part IV returns to the impetus behind the attempt - deliberative democracy's belief that comprehensive views and partial interests should play no role in politics - and questions that belief. The role of partial interests in influencing particular political outcomes is and needs to remain endogenous to political practice itself. Politics should thus bear less resemblance to law than the deliberativists claim, and partial interests should rightly play a greater role in political decisions than the deliberativists would prefer.

Abstract:
Environmental regulation has been under sustained attack by critics who claim that tort law can replace it and do a superior job. This essay summarizes three key distinctions between environmental regulation and tort that prevent tort from being an adequate replacement for regulation - one procedural, one remedial and one substantive. With respect to process, environmental regulation determines levels of environmental quality through public processes and collective choices, rather than as the aggregation of a series of private decisions. Switching to tort thus requires the public to relinquish an important decision making authority. With respect to remedies, environmental regulation is designed for prevention rather than cure. The modern environmental era is founded on a principle of prevention. With respect to substance, the levels of environmental quality that our current environmental statutes embody cannot be achieved by tort, because those collectively chosen levels differ from the cost-beneficial levels of environmental quality tort is geared to achieve.

The two regimes must also be evaluated in practical terms. We want a regime that will actually achieve good environmental quality results, and certainly the present environmental regulatory system falls far short of achieving the goals that have been set for it. A tort system, even if not designed with the modern ends of environmental law in view, might do better than a flawed regulatory system. While not attempting a complete comparative analysis, this essay suggests reasons to be skeptical of this claim as well. Tort faces enormous difficulties in resolving disputes over environmental risks that have diffuse origins as well as diffuse effects. Some of the most pressing, emerging environmental problems exhibit these characteristics. Tort will not be able to cope with them adequately.

Abstract:
This essay is part of a Symposium entitled "American Regulatory Policy: Have We Found A Third Way?" It examines the relationship between two recent and important political and policy developments. The first is the "third way" debate in the United States, Great Britain and Europe over whether we can develop a successful alternative to forms of democratic socialism on the one hand and forms of neoliberal laissez-faire capitalism on the other. The second is the Clinton/Gore administration?s "reinventing environmental regulation" initiative, featuring programs to increase local control of program administration, deepen public participation, allow compliance flexibility, and better inform citizens of potential environmental risks. The question explored in the paper is whether or not these initiatives constitute a third way with respect to environmental policy.

The answer depends upon whether it is directed to ideology or regulatory instruments. With respect to political ideology, President Clinton?s approach to the third way attempts to pursue a strategy that brackets ideological disputes in favor of "ideas that work." He argues that a broad consensus exists as to the general direction environmental policy must take if it is to move forward, and that the existing political ideologies present us with a series of false choices, including the clash between environmental quality and economic growth. As part of the administration?s larger third way approach, the reinventing environmental regulation initiatives strive to be non-ideological. This contrasts sharply with the English approach to the third way, which is much more explicitly a conversation about ideology.

The environmental movement does contain a genuine third way candidate, however. That candidate is variously called deep ecology, emancipatory ecology, or ecologism. It finds the major premises of existing political ideologies to be inadequate and offers us an alternative to them. So far, this third way has not played a visible role in the environmental policy debate.

With respect to regulatory instruments, the administration?s reinventing program does constitute a genuine third way. Concentrating here on the regulatory instruments of market-based incentives and information disclosure, we can see that EPA is pursuing tactics that blend collectivism and individualism. Market-based incentives, for example, acknowledge the efficacy of the market and permit freedom of choice by market actors in ways that collectivism, as traditionally expressed in command-and-control regulation, does not. At the same time, the government establishes the objectives of the markets for environmental bads that EPA is exploring, most typically through cap-and-trade programs such as the Acid Rain program under the Clean Air Act. Thus the ultimate objective of the program remains subject to collective judgment to a greater degree than individualism prefers.

The conclusion of the paper explores whether environmental policy can continue to remain agnostic as to ideology, or if conflict over the proper objectives of environmental policy will make ideological disagreements unavoidable.

Abstract:
The weaknesses of cost-benefit analysis (CBA) are apparent for all to see. The theoretical underpinnings of positivism and rational choice methodologies have been dealt a significant blow in the post-positivist literature in science, political science and policy studies. Likewise, the performance of CBA itself has been the subject of a significant and persuasive challenge in the legal literature.

This article critiques specifically the current federal form of regulatory impact analysis (RIA), centered institutionally in OIRA and centered methodologically in CBA. One of reasons for the continuing dominance of a CBA-centered RIA is the success of its proponents in maintaining that there is no viable alternative. As a general matter, this argument has been discredited in a substantial policy science and post-positivist literature that is based on Harold Laswell's ideas and ambitions for a policy sciences of democracy. Until now, however, no specific proposal for an alternative to a CBA-centered RIA process has been put forward in the legal literature.

Our preference for a Laswellian approach to regulatory analysis is pragmatic - it will work better in informing decision-makers and citizens about the actual issues that must be resolved. In our alternative to CBA, the RIA process is problem-oriented, normative, discursive, and transparent. This reorientation eschews the use of CBA, except where it is legally required, because it is unnecessary and irrelevant in other contexts, it lacks sufficient accuracy if relevant, and it pursues a normative vision of regulation that is inconsistent with the tilt towards protecting people and the environment that Congress adopted.

cost-benefit analysis, regulatory impact analysis, pragmatism

Abstract:
This study updates an article published a decade ago by the same authors. It presents a systematic analysis of decisions in which EPA or its administrator was a named party in the federal courts of appeals during the 1990s. Relying on a data base of over 300 cases, the main topics of the study are judicial review of statutory interpretation and of EPA's use of science in its rulemaking proceedings.

In both the statutory interpretation and scientific areas, one of our most significant findings is evidence that the federal courts have embraced what Tom Grey has termed the new formalism. As a feature of that judicial approach, courts evidence a reluctance to overrule agency decisions when doing so requires disagreeing with the agency on questions of degree or questions of trading off different policy considerations against one another. In the scientific area, this reluctance manifests itself in decisions declining to second-guess agency decisions about whether the data upon which EPA relied was inferior to data proposed by petitioners, whether EPA adequately assessed the weight of the evidence and whether models used by EPA were inferior to other models. In the statutory interpretation area, this reluctance manifests itself in declining to second guess the agency at Step Two of the Chevron analysis, i.e., when the question is whether or not the agency's resolution of conflicting policy considerations was reasonable.

On the other hand, when attacks on EPA's reasoned decision making with respect to scientific issues could be characterized as pointing to a conclusion reached without any factual support, to a technical model unsuited to the issue, to a link in its reasoning process left completely unexplained, to internally inconsistent reasoning, or to a relevant factor left unanalyzed, those attacks were more successful. In each instance, identifying a categorical failure made judicial reversal more common. Likewise, cases in which statutory interpretation issues were made at Chevron Step One - i.e., the court found that the statutory meaning was clear - EPA was much more vulnerable to reversal than at Step Two. The article investigates why EPA and the courts may systematically and in good faith disagree over the location of the boundary between Steps One and Two of Chevron.

Our study also provides the first comprehensive picture of the kinds of challenges brought under the reasoned decision making
doctrine espoused by State Farm, and of the specific sorts of disagreements in statutory interpretation between the agency and the courts that produce judicial reversals at Chevron Step One. It provides evidence that overall, EPA is much more successful in it statutory interpretations than other studies have suggested, with the differences in results attributable to selection bias in other studies. Finally, examining an issue first raised by the Schuck and Elliott study of Chevron - and contrary to the conventional wisdom that courts are second-guessing agency interpretations more often in recent years - our study finds that the "Chevron effect" of increased deference to agency interpretation, has persisted into the 1990s, at least with regard to EPA.

Abstract:
This paper is a draft of a chapter for a forthcoming book, Research Handbook in Public Law and Public Choice, edited by Daniel Farber and Anne Joseph O'Connell, to be published by Elgar. It reviews the public choice literature on environmental policy making, first generally and then with respect to four fundamental environmental policy questions: (1) whether or not government action is warranted; (2) if it is, the scope and stringency of the government action, including the manner in which a bureaucracy will implement and enforce any statutory standards; (3) the level of government that assumes responsibility; and (4) the type of regulation, or regulatory instrument, that government employs.

The review traces how public choice writing on these problems has been influenced by two evolutionary improvements in public choice thinking: (1) a shift from models that posit policy will always be dominated by concentrated economic interests to models that incorporate the possibility of broad-based citizen collective action under certain conditions; (2) a shift from models employing thick-rationality assumptions that take the preferences of actors to be defined exclusively in terms of their material self-interest, to models with thin-rationality assumptions that acknowledge the possibility that principled commitments, including to the general social welfare or to sound public policy, can form part of the preference set of many political actors. Empirical work has validated these theoretical and modeling improvements.

The models that are emerging from these two shifts remain faithful to public choice's fundamental orientation toward envisioning a "politics without romance," and they persist in analyzing public decision making by understanding the individual motives for action. At the same time, they acknowledge a fuller range of possibilities from government action than the simpler but less accurate rent-seeking models do. The simpler models predict only grim results from government decision making, suggesting that government action routinely fails to address environmental problems constructively and does so primarily as a means of transferring wealth to powerful economic interests away from the rest of us. Under the improved models, government can be responsive to the public's interests and the general welfare when conditions are right.

Public choice has always traced an intellectual lineage back to neoclassical market theory, which has made important contributions to environmental policy by developing a toolkit of environmental market-improving measures such as fees, pollution taxes, subsidies and cap-and-trade, along with analyzes of the pros and cons of each tool in light of the environmental problem to be addressed. Going forward, public choice research can make similar contributions to the study of how environmental policy is made if the newer public choice models are deployed to develop more systematic recommendations of feasible ways to improve the quality of governmental decision making.

Abstract:
A conventional wisdom within environmental law scholarship states that rational actor theories of politics cannot explain the major federal environmental laws that were enacted in the late 1960s and early 1970s. The reason: large groups of self-interested citizens, each anticipating only modest gains from such laws, would not surmount collective action obstacles so as to prevail over small groups of industrial concerns, each facing substantial costs if stringent laws were passed. A common alternative theory posits that these laws were the product of a "republican moment" when government enacted laws based on moral or political principles.

This article reassesses that debate and concludes that rational choice explanations have been too easily dismissed. For citizens, the critical action is casting a vote for candidates committed to protecting the environment. The article analyzes ways in which citizens whose concern about the environment is self-interested could surmount collective action problems to provide the catalyst for environmental legislation through their ballot box power. Empirical evidence from the relevant time period suggests that conditions at that time were consistent with this explanation. Hence, the battle over explanations of our environmental laws remains unresolved. The best explanation is most likely one that acknowledges the role both of self-interest and of political principle.

Abstract:
A conventional wisdom within environmental law scholarship states that rational actor theories of politics cannot explain the major federal environmental laws that were enacted in the late 1960s and early 1970s. The reason: large groups of self-interested citizens, each anticipating only modest gains from such laws, would not surmount collective action obstacles so as to prevail over small groups of industrial concerns, each facing substantial costs if stringent laws were passed. A common alternative theory posits that these laws were the product of a "republican moment" when government enacted laws based on moral or political principles.

This article reassesses that debate and concludes that rational choice explanations have been too easily dismissed. For citizens, the critical action is casting a vote for candidates committed to protecting the environment. The article analyzes ways in which citizens whose concern about the environment is self-interested could surmount collective action problems to provide the catalyst for environmental legislation through their ballot box power. Empirical evidence from the relevant time period suggests that conditions at that time were consistent with this explanation. Hence, the battle over explanations of our environmental laws remains unresolved. The best explanation is most likely one that acknowledges the role both of self-interest and of political principle.