Reg neg, command and control, informational approaches and more

Today was the final day of an impressive conference being hosted at TAU, entitled "New Approaches for a Safer and Healthier Society". While the papers were primarily forward-looking, and focused less on environmental issues than on other public health issues such as smoking, obesity, and patient safety, there was a lot to think about environmentally and historically speaking. I'll focus here on two papers with relevance to the history of environmental regulation.

Peter Schuck presented a paper (coauthored with Steven Kochevar) entitled "Reg Neg Redux: The Career of a Procedural Reform". Reg neg (regulatory negotiation), proposed by Schuck in a 1979 article, is a way for government agencies to make rules relying on communication and negotiation between interested parties rather than on the more formal and adversarial process known as "notice-and-comment rulemaking" required by the US Administrative Procedure Act (APA) of 1946. In addition to sketching history of reg neg since 1979 (its use has apparently been infrequent), the conference paper explored objections that have been raised to the process and explanations for why it has been little used.

Thinking about reg neg and notice-and-comment historically and comparatively though, I wonder which of these methods of rulemaking is really the rule and which the exception: To what extent are American federal rules really formed in the process mandated by APA rather than through informal communications and negotiations carried on before, during, and after the formal notice-and-comment process? When placed in a global, comparative context, might American-style adversarial rulemaking be an exception to the rule? What forms of rulemaking were supposedly extinguished by the APA in 1946, and how might the influences of these traditional methods continue to influence the way secondary legislation is formulated and enacted today? As for so many current environmental law topics, some historical perspective would be useful.

Another paper, offered by Robert Rabin (one of the conference organizers) was "Reducing Tobacco Use: A Reassessment of Strategic Initiatives". Rabin surveyed the various policy tools—taxation, place restrictions, information, and so on—that have been employed over the years to try and limit tobacco use, as well as some of their legal and political limits. He pointed out what a negligible role "command and control" regulation has played in tobacco regulation, and claimed that tort litigation, too, has had little effect on the industry or on tobacco use. His analysis made me wonder how environmental regulation has developed along similar or different lines, and to the extent that it has differed from tobacco control efforts, what explains the divergence.

A comment on Rabin's paper by my teacher Alon Harel, focusing on the distributional effects of informational strategies (a policy tool that has gotten a lot of play in the environmental literature in recent years), supplied a further point of entry for thinking historically about environmental regulation. Harel pointed out that providing information on the harms of smoking seems to have been more successful in lowering smoking rates of the upper classes than of the lower. Might this distributional lens help us make sense of the changing fortunes of "hard" and "soft law" approaches to environmental regulation?

Look for the conference papers in the journal Theoretical Inquiries in Law about a year from now.