The purpose of this course is to acquaint students with the wide variety of regulatory processes, policies, and institutions in this country. Furthermore, students will develop a sophisticated and rigorous understanding of selected elements of regulatory politics, processes, and policies involving a regulatory agency of the U.S. government. To accomplish this, a variety of materials will be presented. These will involve reading, discussion and integration of the concepts of regulation, as well as understanding the processes by which regulatory policy is developed and implemented. Also, the impacts or results of such regulatory policies will be treated. In addition, students will gain a good deal of experience and develop techniques for conducting a diverse set of research and writing skills.

The politics of regulation

This chapter provides a review and assessment of the extensive literature on the political determination of environmental regulation. A promising theoretical literature has emerged relatively recently that provides models of the political interaction of government with various interest groups in the setting of environmental standards and the choice of regulatory instruments. A large empirical literature supports such models, finding evidence of the influence of interest groups but also evidence that net social benefits are often an important determinant of environmental policy choices. A later section of the paper takes up the issue of environmental federalism and the large and growing theoretical literature that addresses the so-called competitive “race to the bottom” as various jurisdictions attempt to use environmental policy as an instrument of economic competition. The evidence on all this is sparse, although some recent work in the U.S. is unable to find any support for the race-to-the-bottom hypothesis. The paper concludes with a brief look at the evolution of environmental policy and finds that economics has come to play a growing role both in the setting of standards for environmental quality and in the design of regulatory measures. There seems to be a discernible trend toward more efficient decision-making for environmental protection.

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The Political Economy of Environmental Policy

Protection. For free traders, this word represents the consummate evil. For environmentalists, it is the ultimate good. Of course, for the trade community, “protection” conjures up dark images of Smoot and Hawley, while the environmental camp sees clear mountain streams, lush green forests, and piercing blue skies. One cannot blame all of the tensions at the trade-environment interface on linguistic differences, but these competing perspectives are emblematic of a deep clash of cultures, theories, and assumptions. Trade officials often seek to limit efforts to link trade and environmental policy-making, and sometimes to prohibit such efforts altogether. In this regard, the narrow focus and modest efforts of the World Trade Organization’s Committee on Trade and Environment are illustrative. 1 The launch of negotiations for a Free Trade Area of the Americas with an express decision to exclude environmental issues from the agenda provides an even starker example of the trade community’s hostility toward serious environmental engagement. Economists have been prominent among those arguing that pollution control and natural resource management issues are best kept out of the trade policy-making process (Cooper, 1994; Bhagwati, 1999). Other economists, however, have tried to set trade policy-making in a broader context and to build environmental sensitivity into the international trading system (Runge, 1994; Rodrik, 1997; Summers, 2000).

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Bridging the Trade-Environment Divide

Because events occur too fast and ideas mature too slowly for responses to be designed anew for each pressing problem, policy innovation often relies on pre-existing models, foreign or domestic. This seems to be especially true for regulatory policymaking, since public regulation is typically introduced in conditions of crisis. In this paper we examine several cases of policy innovation in the area of economic and social regulation where the influence of foreign models is quite clear: the development of competition policy in Europe in the 1950s, the growth of European Community regulation, and the impact of the American deregulation movement on the telecommunications policies of different European countries. The analysis shows that while utilization of preexisting models is a common feature of policy innovation, such models are not literally translated into current policy. More or less extensive adaptations to a particular political, institutional and economic context are usually required. We also identify two distinct ways – push or pull – in which foreign models can affect domestic policy.

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Cross-National Sources of Regulatory Policymaking in Europe and the United States

Implementing technology-forcing policies: The 1970 Clean Air Act Amendments and the introduction of advanced automotive emissions controls in the United States

Let us begin by renouncing two of the more ambitious implications of the title. No, we do not believe that any single theory can do justice to all varieties of statutory development. Nor do we believe that everything worth saying about the processes by which statutes change can be captured by analogy to biological evolution. Just as each human being has a unique life history, so too statutes are born, live, and die under circumstances that are unlikely to be duplicated. What we are embarked on is an exercise in statutory biography: by tracing the life histories of statutes in the environmental area, we hope to deepen our understanding of the factors that influence the growth and development of statutory law over time. In this paper, we will not attempt to summarize all our conclusions or provide full documentation. We are presently working on a book which will describe more comprehensively the circumstances which influenced the development of the environmental statutes of the 1970s. Our goal at the moment is more modest. We will describe in general terms what we have in mind when we say that statutes "evolve" and then illustrate by describing a particularly important period in the history of environmental law. During this period, roughly from 1965 through 1970, strong federal environmental legislation was passed, although environmentalists were not yet well-organized as a conventional interest group in Washington. Thus, the period is interesting in its own right because it seems to contradict the usual wisdom that statutes are passed in response to political activity by well-organized pressure groups.

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John C. Millian

Papers

Toward a Theory of Statutory Evolution: The Federalization of Environmental Law