Debate: Collaborative Environmental Law: Pro and Con

24 Pages Posted: 17 Jan 2008  

Eric W. Orts

University of Pennsylvania - Legal Studies Department

Cary Coglianese

University of Pennsylvania Law School

Abstract

In this thoughtful and intricate cross-disciplinary debate, Professors Eric W. Orts, of Penn's Wharton School, and Cary Coglianese, of Penn's Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context. It is no exaggeration to say that each year the world grows ever more aware of the nature of the environmental problems we face, and yet critical policy solutions continue to remain beyond the grasp of even the most interested parties.

Professor Orts argues that it is time to embrace a different policymaking approach - that of collaborative environmental lawmaking. He argues that the view that centralized governments acting alone will arrive at 'correct' solutions . . . begs the question of incommensurable values and the various people who hold them. 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 more frequently the alternative of engaging in collaborative environmental law.

Professor Coglianese responds that collaborative environmental law is "not at all feasible for making real-world decisions about major environmental problems," and that this policymaking approach "introduces new types of predictable and serious problems." He cautions that "[t]he issue is not whether policymakers should reach out to affected interests and members of the public. Rather, the issue lies with the purpose of public engagement." Professor Coglianese contends 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. Instead, Professor Coglianese urges that public "engagement should be used with another goal in mind . . . mak[ing] the best possible decision [to] . . . best advance[] the overall public interest."

Keywords: Environmental Law, Politics, Law & Society, collaborative public policy decision making, centralized environmental lawmaking, environment, decision-making, incommensurable values, incommensurability, collaboration, consensus-building, tractability

JEL Classification: H11, K20, K32, P16

Suggested Citation

Orts, Eric W. and Coglianese, Cary, Debate: Collaborative Environmental Law: Pro and Con. University of Pennsylvania Law Review PENNumbra, Vol. 156, p. 289, 2007 ; U of Penn Law School, Public Law Research Paper No. 08-04. Available at SSRN: https://ssrn.com/abstract=1084081

Eric Wills Orts

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States
215-898-3018 (Phone)
215-573-2006 (Fax)

Cary Coglianese (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)

HOME PAGE: http://www.law.upenn.edu/coglianese

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