Academic journal article Texas Law Review

Emerging Science, Adaptive Regulation, and the Problem of Rulemaking Ruts

Academic journal article Texas Law Review

Emerging Science, Adaptive Regulation, and the Problem of Rulemaking Ruts

Article excerpt

I. Introduction

In theory it is hard to deny the power of information revolutions to enhance environmental policy making, but in practice it remains to be seen whether governmental institutions are up to the task of making good use of this new information as it arises. Information breakthroughs are hardly fresh developments in 2008; our information base has been expanding over the past three decades in ways that should have been influencing environmental policy on an ongoing basis. Yet, as the "Next Generation" title to this symposium implies, thus far the information revolution appears to have had only a limited impact on the steady accretion of environmental policy or law in the United States.

Rather than discuss how emergent information could be assimilated into regulatory policy as many of the other articles in this Symposium do, this Article takes a more skeptical tack and considers why the assimilation of information breakthroughs seems to be so slow in coming. We recognize that when new information threatens to unsettle existing regulatory requirements governing powerful stakeholders in the rulemaking process, using it to develop stricter environmental standards is unlikely to be a simple or straightforward matter. Indeed, the diffusion of information into the legal and the financial marketplaces is likely to be both complex and politically charged, rather than a linear transformation from new information to regulatory improvements. Failing to take account of some of the more predictable institutional barriers in this context may derail or discourage information breakthroughs before they come to fruition.

Others in the legal academy have similarly noticed how legal institutions can impede the assimilation of new information into regulatory requirements, but their solutions generally involve bypassing legal institutions altogether rather than confronting the institutional weaknesses directly.1 Bypassing these institutions, however, may not be easy. Environmental markets, for example, are created when the government imposes limitations that create scarcity (e.g., on the right to emit certain pollutants) and then allocates those scarce resources and adopts rules governing their exchange.2 Similarly, while the information collected by "bucket brigades" may provide powerful incentives for community organizing and empowerment, translating that information into stricter legal obligations requires regulatory action of some sort.3 In the same vein, both Pigouvian taxes and environmental subsidies must be set by a government entity at an optimal level to provide efficient pollution-control incentives.4 In addition, even when scientific and technological information is not intended for direct use in the regulatory process, government entities play an important role in certifying its validity. California's Proposition 65 and the federal Toxic Release Inventory, for example, offer a wealth of information to citizens, but they are backed by statutory directives that specify the types of information that must be provided by regulated parties and the penalties that will be levied for noncompliance.5

In this Article, we argue that beyond simply attempting to bypass legal institutions in harnessing the power of information, a concerted effort must be made to identify and ameliorate institutional impediments to assimilating this information. If agencies are encountering predictable challenges in making use of information breakthroughs, then new mechanisms should be devised to improve their ability to capitalize on the information.6

In order to gain meaningful purchase on this argument-that legal institutions may not always make good use of emergent information-we break off a smaller piece of the larger problem and consider the relatively discrete and straightforward ability of agencies to revise and update existing rules in accordance with changes in science and technology. Other challenges of institutional capacity to assimilate information, such as the ability of agencies to reliably certify new information with regard to its quality (e. …

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