Reviving Environmental Protection: Preference-Directed Regulation and Regulatory Ossification

63 Pages Posted: 17 Jan 2008

Abstract

Many students of administrative law have pointed to the contemporary ossification of the administrative state, exemplified by the lengthy and contentious rule-making/litigation process and the lack of recent congressional initiative in the area of environmental, health, and safety regulation. Some scholars look to the administrative and rulemaking processes as the cause of ossification while others argue that new regulatory tools which avoid rulemaking are needed to counteract ossification.

This Article proposes an alternative. I argue that regulatory ossification is primarily the result of stable political equilibriums that form around regulatory regimes. These equilibriums prevent regulatory regimes from being revised because politically accountable officials have incentives to defer to the status quo and the political coalitions necessary for reform are hard to form. Outdated regulatory techniques and rulemaking processes are thus a symptom, rather than a cause, of ossification.

In order to revive environmental protection, ossification must be overcome. Toward that end, I propose breaking up those stable equilibriums by encouraging preference-directed regulation. Preference-directed regulations are those that achieve regulatory goals by influencing consumer preferences - as opposed to regulations which either explicitly require certain conduct or change economic incentives. Because preference-directed regulations influence consumer preferences, we can expect those regulations to have impacts on the political process as well. The ever racketing-up of the political coalition in favor of a regulatory goal will tend to destabilize the political equilibriums surrounding particular regulatory regimes, allowing for more frequent revision and learning.

Keywords: environment, environmental law, regulation, ossification, political science, public choice, administrative law, preferences, voting behavior, deadlock, gridlock

JEL Classification: K32

Suggested Citation

Livermore, Michael A., Reviving Environmental Protection: Preference-Directed Regulation and Regulatory Ossification. Virginia Environmental Law Journal, Vol. 25, No. 3, 2007. Available at SSRN: https://ssrn.com/abstract=1084537

Michael A. Livermore (Contact Author)

University of Virginia School of Law ( email )

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