Environmental standard-setting is institutionally unsuited to the legislative arena

Evidence

The setting of specific environmental standards, whether health, cost, or technology based, requires deliberations based upon a vast array of informational inputs, regardless of whether the standards are to be applied to an entire industry of air or water pollution sources or to a subset of surface coal mining practices on or off public lands. The relevant information often requires considerable technical expertise for comprehension, is often riddled with assumptions and uncertainties, is constantly changing in light of new information and technology, and always has enormous distributional implications in terms of spreading economic costs and environmental risks. … Inshort,thedynamicandexperimentalnatureofthekindoflawmaking necessary to promulgate environmental standards within that setting does not readily lend itself to the legislative arena. A legislature is institutionally disadvantaged in making the necessary technical evaluations and determinations. Even more fundamentally, there is nothing in our nation’s history of lawmaking to suggest that our legislative processes are institutionally capable of making the kind of frequent incremental changes in response to changing circumstances and information that are necessary in setting environmental standards. — Richard J. Lazarus, The Making of Environmental Law, 838

Categorization

• XREF: Connects to the reader’s Legal Systems course on institutional design and which lawmaking body is suited to which function. — connects to: Environmental statutes are radical redistributive acts passed through deliberately conservative institutions — Richard J. Lazarus, The Making of Environmental Law, 18; Ecological injury’s spatial and temporal scales are ill-suited to how law is made. — Richard J. Lazarus, The Making of Environmental Law, 43; Environmental regulation underdetermines agency standard-setting because ambient pollution science is inherently complex. — Richard J. Lazarus, The Making of Environmental Law, 97 (+3 more)