Flexible Environmental Regulation
Lori Snyder Bennear
Duke University - Nicholas School for the Environment
University of Pennsylvania Law School
January 31, 2012
OXFORD HANDBOOK OF U.S. ENVIRONMENTAL POLICY, Sheldon Kamieniecki and Michael E. Kraft, eds., Oxford University Press, 2012
U of Penn, Inst for Law & Econ Research Paper No. 12-03
U of Penn Law School, Public Law Research Paper No. 12-05
“Flexible regulation” might sound like an oxymoron but it has become a widely accepted catch phrase for a pragmatic approach to regulation that promises the achievement of important public policy objectives at relatively low cost. Given the growing interest in flexible regulation in recent decades, we consider in this paper what can be learned from the U.S. experience with flexible environmental regulation. We assess four types of flexible regulation: (1) flexible commands, such as performance standards, information disclosure rules, and management-based regulations; (2) flexible targets, such as offsets, bubbles, and trading; (3) flexible consequences, such as voluntary programs and agreements; and (4) flexible regulators, such as systems of self-regulation and self-policing. Researchers have demonstrated that many flexible approaches can sometimes work, to some degree; but just as flexible policies can vary in form, we find that they also vary in results. What remains, we argue, is to determine whether the marginal and at times only potential gains from flexible forms of regulation are enough to justify their increased use.
Number of Pages in PDF File: 42
Keywords: Environmental law and policy, environmental economics, empirical legal studies, public policy analysis, regulatory design, instrument choice, regulatory flexibility, market-based instruments, emissions trading, management-based regulation, performance-based, paperwork burdens, voluntary programs
JEL Classification: D78, K23, K32, L51, Q58
Date posted: February 5, 2012
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