Academic journal article Environmental Law

Law, Expertise and Rulemaking Legitimacy: Revisiting the Reformation

Academic journal article Environmental Law

Law, Expertise and Rulemaking Legitimacy: Revisiting the Reformation

Article excerpt

  I. INTRODUCTION                                      662  II. POLITICS AND ACCOUNTABILITY                       665      A. Political Pluralism to the Rescue              665      B. "Reg-Neg " as "Better " Political Pluralism    668      C. Irreducible Discretion                         670 III. LAW AND ACCOUNTABILITY                            671      A. Finding Regulatory Negotiation Objectionable   672         1. Illegal Rules                               672         2. Deal Maker, Not Decision Maker              672      B. Using Law for Legitimacy                       674         1. Chevron                                     675         2. State Farm                                  676  IV. EXPERTISE                                         677   V. CONCLUSION : RETHINKING LAW AND EXPERTISE         680 

I. INTRODUCTION

In the 1960s and 1970s, Congress passed nearly all of the health, safety, and environmental laws that govern us today. Not to be outdone in the reform department, the courts fashioned a slew of new administrative procedures resulting in a "reformation" of American administrative law as Richard Stewart's iconic article characterized these developments. (1) Stewart understood the procedures as creating a type of interest representation political pluralism that would hold agencies accountable for fulfilling their legislative missions to protect people and the environment. (2) But, at the same time, environmental and other public interest advocates were lawyers who used the law to contest the legality of agency action.

Administrative law scholarship continues to debate the relative roles of political and legal accountability in legitimizing public administration. (3) Like Scarlett Johansson and Bill Murray in Lost in Translation, however, administrative law finds itself in an alien culture when we expect administrative procedures to legitimize rulemaking by promoting political pluralism. Once the focus shifts to political process, public interest advocates become just another interest group seeking to use political power to serve their own political preferences. Although these "interests" concern such public goals as clean water, clean air, and the preservation of endangered species, these legislatively mandated goals become the personal preferences of a group's members and nothing more regarding what policy an agency should choose among its regulatory options.

This understanding of public administration is misplaced. While agencies obviously operate in a political system and are influenced by it, the fact remains that the laws implemented by agencies are not neutral between protecting people and the environment, and not doing so. When public interest advocates sue an agency claiming that it has not met its statutory obligations, they are seeking to ensure the pursuit of the public interest as defined by an agency's legislative mandate. The same is true for regulated entities. While Congress has committed the country to protecting people and the environment in the ways indicated in a legislative mandate, the mandate has limitations that an agency cannot exceed. Holding the agency accountable by arguing it has exceeded those limitations likewise vindicates the public interest because it upholds the law establishing the agency's authority to act. In short, we have a political-legal system, not just a political system.

The Article explains why it is worthwhile to untangle the threads of political and legal accountability that run through administrative law. My argument proceeds in five steps.

Part II describes the political process narrative identified in Stewart's Reformation article and describes why this narrative considers political accountability as necessary to legitimize rulemaking. From this perspective, legal mandates leave an agency with discretionary and ultimate political choices about which rule to adopt. (4) Stewart characterized the procedural reforms adopted in the 1960s and 1970s as constraining that discretion by using a type of interest representation political pluralism. …

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