The Dead Hand of Environmental Regulation

Our analysis of measures to improve the environmental policy-making process strongly suggests that obtaining meaningful changes in regulatory outcomes demands far greater systemic change than is contemplated either by current " reinvention " programs or by the proposals of critics of current regulatory approaches. We argue that current proposals for changing regulatory policy-making process are not only too narrow and piecemeal but also directed at a definition of the policy problem that is fundamentally flawed. Most proposals for change are addressed to one or another of the widely recognized limitations of a policy process that emerged without an overarching rationale: the process is largely the end-result of a long sequence of uncoordinated legislation, judicial rulings and responses to emergent political demands having no particular policy theme-it simply happened. Therefore, we find that making piecemeal adjustments-as prescribed by critics of current environmental policy-is not only unlikely to succeed, but may well produce unanticipated, perverse outcomes. The focus of critical attention in the environmental policy debate has been on the " front-end " of the policy process. The concerns have been primarily directed to changing the procedures for initiating new standards and rules, including: the role and methods of risk assessment and cost-benefit analysis; procedures for participation of stakeholders; employment of " integrated policy analysis " and associated regulations dealing with cross-media and multiple-source environmental impacts; and the delegation of enforcement authority (e.g., " federalism "). By contrast, the purpose here is to examine measures for improving performance in the " back-end " of the regulatory process. While improving " front-end " decision-making is clearly desirable, there has been surprisingly little attention paid to the potential benefits of, or the requirements for, improved policy evaluation and the adaptation of regulation to new information and changing circumstances. Most importantly, in the context of high scientific uncertainty, improvements to the front-end cannot ensure more effective or efficient regulations. In many, if not most, cases, " only time will tell " whether chosen regulatory instruments are reducing environmental risks adequately and at acceptable social costs. Therefore, changing front-end procedures without corresponding and closely linked improvements to back-end, policy evaluation procedures and capabilities may produce few benefits. Though many statutes authorizing regulatory action demand routine policy reassessments, a clear shortcoming of the current regulatory system is the weakness of evaluation systems. Furthermore, history finds few major environmental regulations that have been modified significantly as a result …