The Regulatory Fragmentation Continuum, Westway, and the Challenges of Regional Growth
William W. Buzbee
Emory University School of Law
Journal of Law and Politics, Vol. 21, 2005
Emory Public Law Research Paper No. 05-31
Emory Law and Economics Research Paper No. 05-23
An unavoidable problem for growing regions is the mismatch of smaller, more parochial local governments and regional dynamics, harms, and social and infrastructure needs. The implications and challenges of regulatory fragmentation, however, are significant for regulatory challenges of all types, especially in areas of overlapping and intertwined regulation such as environmental law. To illuminate these fragmentation conceptions and implications, this paper draws on longer-term research regarding the 1971-85 battles over the proposed New York Westway highway and park project. After reviewing the story of Westway's defeat due to its environmental impacts and a series of legal and political challenges, the article suggests a four-part typology of regulatory fragmentation. Regional ills and projects tend to encounter four types of regulatory fragmentation: temporal, horizontal, vertical, and institutional. This paper then seeks to reconcile two seemingly clashing views about the implications of regulatory fragmentation. Scholars writing from a law and economics perspective suggest in several recent works that multiple regulators sharing actual or potential regulatory turf will tend to create a drag on or stop activities that would be in the collective interest. A seemingly opposite view asserts that in a setting of fragmented governance, where neither citizens nor potential regulators view any person or institution as having regulatory primacy over a particular social ill, "regulatory commons" problems arise, creating incentives for failures to address such shared but dispersed regulatory harms or opportunities. This paper suggests that these two seemingly disparate views actually can be reconciled. Rather than fragmentation creating either one result or another, as might at first appear to be the case, ubiquitous regulatory fragmentation creates a continuum of institutional proclivities and incentives. Those proclivities are heavily dependent on the modality of government action. The article closes by analyzing potential responses to fragmentation.
Number of Pages in PDF File: 35
Keywords: regulatory commons, regulatory fragmentation, environment, wetlands, regional growth, institutions
JEL Classification: A00, D70, D72, D73, D78, K00, K32, K42, R00
Date posted: November 10, 2005
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