Performance-Based Regulation: Prospects and Limitations in Health, Safety and Environmental Protection

32 Pages Posted: 16 Apr 2003 Last revised: 12 Feb 2012

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Law School

Jennifer Nash

Harvard Business School

Todd Olmstead

Yale University - School of Public Health

Date Written: December 1, 2002

Abstract

Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the language of the rule, specifying the desired level of performance and allowing those targeted by regulation to decide how to achieve that level. This second approach is the kind of regulation that is the subject of this working paper. Incorporating performance goals into regulatory standards is by no means a new idea, but in recent years there has been renewed interest in expanding the use of performance standards in a variety of areas of health, safety, and environmental regulation. In keeping with its mission of advancing research and promoting policy outreach, the Regulatory Policy Program at the John F. Kennedy School of Government convened a workshop on May 13, 2002, to see what could be learned from agencies' experiences with performance standards and to begin to identify the likely conditions for the effective use of performance standards. The workshop brought together decisionmakers from a dozen different government agencies as well as leading researchers from the fields of economics, engineering, law, and political science. The dialogue at the workshop sought to build on the experiences of different regulatory agencies that have used performance-based regulation and to clarify its advantages and disadvantages in addressing health, safety, and environmental problems. This working paper summarizes and syntheses the dialogue that emerged from the discussion, addressing the role of performance standards in the regulator's toolbox, the conditions under which performance standards can be effective, and the challenges associated with implementing performance-based regulation in practice.

Keywords: Business and Government Policy, Environment and Natural Resources, Law and Legal Institutions, Public Management, Regulation

Suggested Citation

Coglianese, Cary and Nash, Jennifer and Olmstead, Todd, Performance-Based Regulation: Prospects and Limitations in Health, Safety and Environmental Protection (December 1, 2002). Administrative Law Review, Vol. 55, p. 705, 2003; KSG Working Paper Series No. RWP02-050. Available at SSRN: https://ssrn.com/abstract=392400 or http://dx.doi.org/10.2139/ssrn.392400

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

Jennifer Nash

Harvard Business School ( email )

Soldiers Field Road
Morgan 270C
Boston, MA 02163
United States

Todd Olmstead

Yale University - School of Public Health ( email )

PO Box 208034
60 College Street
New Haven, CT 06520-8034
United States

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