Chasing the Wind: Regulating Air Pollution in the Common Law State

By Noga Morag-Levine | Go to book overview

CHAPTER TWO
“Command and Control”: Means, Ends,
and Democratic Regulation

ENCODED into the term “command and control,” widely used as a synonym for technology standards, is a fundamental challenge to the legitimacy of this regulatory approach.1 The military and Cold War connotations of the phrase lend it considerable resonance in American political discourse, and its increasingly familiar presence in our regulatory vocabulary has allowed its shorthand critique of technology standards as vaguely authoritarian, and hence undemocratic, to masquerade as a neutral, almost technical, term. This chapter probes the charge that technologybased regulatory standards are democratically deficient. The basis for this critique is not immediately apparent, as it does not stem from simple majority-rule sensibilities; clearly technology standards can be and are enacted by democratically elected regimes. Suspicion that technology-based standards go hand in glove with an undemocratic character must therefore be rooted in principles related to the content of the legislation rather than the process that enacted it.

The most explicit argument offered regarding technology standards’ undemocratic character is their supposed centralizing tendency and their putative vulnerability to “factional control.”2 But the fear of factions ties to a deeper equation of technology standards with arbitrary, irrational, government intervention, and the charge of democratic deficiency stems directly from the absence of regulatory tailoring to a proven level of harm.

The requirement for close tailoring of regulatory interventions to legally proven harm marked the divide between opponents and proponents of common law limits on the police power through much of the nineteenth century. Opposing conceptualizations of the police power—whether limited by common law or absolute—divided nineteenth-century legal opinion, with the demand for means-end rationality serving precisely as the line separating the two positions. This nineteenth century controversy ultimately came to a head in 1905 with Lochner v. New York.3

This chapter argues that the debate on the legitimacy of legislation independent of proof of harm was not laid to rest with the Lochner court. Rather, echoes of this controversy continue to reverberate in the charge that in failing to respond to scientifically proven harm, technology standards run afoul of democratic principles. More importantly, this influence

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