Document Type

Article

Publication Title

Ecology Law Quarterly

Abstract

It may seem surprising and perhaps presumptuous to suggest that Europe is in danger of catching a distinctively American disease: regulatory legalism. The United States and the European Community reflect significantly different degrees of political centralization and have different legal and regulatory cultures. In the United States, formal, adversarial procedures and extensive litigation burden the regulatory process. In Europe, most regulatory decisions are developed through informal processes of consultation, and litigation is rare. Nonetheless, recent signs suggest that the European Community is vulnerable to a variant of U.S.-style regulatory legalism. Legislation in the Community increasingly relies on centralized command and control directives to specify not only the particular conduct required of regulated industry, but also the measures through which Member States must implement such legislation. Litigation concerning regulations has been, and will doubtless remain, less prevalent in the Community than in the United States. Nonetheless, Europe will experience far more regulatory litigation than it has been accustomed to. Further, reliance on command and control directives to advance environmental, health, and safety goals in the Community is already beginning to display some of the same dysfunctions that it has in the United States. In particular, the bureaucratic command and control system suffers from information-processing overload, excessive rigidity, and high administrative and compliance costs. The opaque, or at least byzantine, bureaucratic decision-making process creates a "democracy deficit." Finally, command and control techniques breed a new class of regulatory lawyers and lobbyists that seek to influence the regulatory process to benefit their clients. Concern over these developments may well contribute to the popular unease over the Maastricht Treaty so evident in the initial Danish rejection of the Treaty and the narrowness of the French vote. Regardless of whether the Maastricht Treaty is eventually ratified and in what form, the Community must decide how best to promote environmental and other social goals without diminishing flexibility and innovation in the means of their achievement. In addition, the regulatory system the Community applies must fit a large, heterogeneous federal- type system built on an integrated market economy. The painful experience of the United States in grappling with this challenge provides lessons that may enable Europe to escape the worst forms of regulatory legalism. This essay briefly surveys the reasons for the adoption of centralized environmental regulation in federal-type systems and summarizes the drawbacks of such an approach. This essay then examines economic incentives as an antidote to regulatory legalism and advocates their application to achieve environmental goals.

First Page

85

Volume

20

Publication Date

1993

Download

Share

COinS