Judicial Capacity and the Regulatory Process
NO ONE who studies the evolution of air pollution regulation in this country can deny that the courts have played an important role in shaping environmental policy. In cases on enforcement and standard setting, significant deterioration and transportation controls, variances and dispersion enhancement, the federal courts have neither timidly deferred to administrators nor served as obedient intermediaries for Congress. These cases vividly illustrate the efforts of proponents of the "new administrative law" to reform the regulatory process. The courts' apparent success in improving the performance of the Environmental Protection Agency--proclaimed by a variety of jurists, scholars, and congressmen--has added luster to the reputation of the new administrative law.
This book has called into question the conventional wisdom on the effect of these court decisions on pollution control policy. Looking beyond formal court records and the avowed purposes of judicial action, one discovers a multitude of unintended and undesirable consequences of court action. Just as studies of policy implementation by bureaucracies have revealed the difficulties administrators have in turning statutory mandates into concerted action, analysis of the implementation of court decisions shows that judges frequently issue commands ignored or modified by others, pursue inconsistent policies, and generally "muddle through." Ironically, while the new administrative law was in part a response to academic critiques of bureaucratic policymaking, the courts'