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Improving Regulation Through Incremental Adjustment

71 Pages Posted: 25 Jan 2005  

Sidney A. Shapiro

Wake Forest University School of Law

Robert L. Glicksman

George Washington University - Law School

Abstract

Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the potential of two types of back-end processes (deadline extensions and waivers, exceptions, and variances) by examining five federal statutes (administered by EPA and OSHA) that provide opportunities for the two types of adjustments we are studying. We find that these adjustment provisions are generally consistent with the precautionary tilt of the statutes in which they are located because they still require the regulated entity to do the best it can to protect people and the environment. Where such protective mechanisms are absent, we urge that the statutes be amended to include them. We also consider the procedures by which requests for back-end adjustments are currently processed. We support the use of notice and comment procedures because more elaborate procedures are not necessary to promote rational decision-making, given the nature of the issues likely to be raised in back-end adjustment proceedings. We are concerned, however, about the extent to which effective public participation will occur under these procedures. We therefore endorse two steps to enhance the transparency of back-end adjustment decision-making: the establishment of electronic reading rooms and the issuance by agencies of annual reports on back-end adjustments.

Keywords: regulatory reform, environmental law, administrative procedure

JEL Classification: K23, K32

Suggested Citation

Shapiro, Sidney A. and Glicksman, Robert L., Improving Regulation Through Incremental Adjustment. University of Kansas Law Review, Vol. 52, 2004. Available at SSRN: https://ssrn.com/abstract=653781

Sidney A. Shapiro (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

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