The social construction of regulation: Lessons from the war against command and control

Buffalo Law Review

Volumn 58, Issue 2, 2010, Pages 267-355

  Malloy, Timothy F ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77953527106     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (560)

1. See Ian Hacking, The Social Construction of What? 12-13 (1999) (contending that because law obviously results from social processes, little is gained by characterizing it as socially constructed);
2. see also John R. Searle, The Construction of Social Reality 2-4 (1995) (discussing "the complex structure of social reality").
3. See Mia L. Cahill, The Social Construction of Sexual Harassment Law 3-4 (2001);
4. Lauren B. Edelman et al., Professional Construction of Law: The Inflated Threat of Wrongful Discharge, 26 Law & Socy REV. 47 (1992).
5. See Images of Issues: Typifying Contemporary Social Problems 337 (Joel Best ed., 1995).
6. Constructing the Social, at x (Theodore R. Sarbin & John I. Kitsuse eds., 1994).
7. See Bradley C. Karkkainen, Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm?, 89 Geo. L.J. 257 (2001);
8. James E. Krier, The Irrational National Air Quality Standards: Macro- and Micro-Mistakes, 22 UCLA L. Rev. 323 (1974);
9. Richard B. Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 Cal. L. Rev. 1256 (1981);
10. Cass R. Sunstein, Administrative Substance, 1991 Duke L.J. 607.
11. Unlike the conventional construction, there is no broad network of legal scholars embracing this view. In fact, while various scholars have adopted aspects of this alternative view, this Article appears to be the first articulation of it as an integrated construction of traditional regulation.
12. Taking a cue from Theodore Sarbin and John Kitsuse, I use the terms "constructionist" and "constructionism" throughout this Article rather than other variants, such as "constructivist." constructing the social, supra note 4, at x.
13. Since Berger and Luckmann first articulated social construction as a stand-alone theory in the mid-1960s, it has been used to analyze a host of subjects, including gender, nature, technological systems, women refugees, the market, illness, drug use, environmental regulation, and even pollution.
14. peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A treatise in the sociology of knowledge (1966);
15. see also vivien burr, AN Introduction to Social Constructionism 14 (1995);
16. Hacking, supra note 1, at 1-2 (describing works that apply social construction theories to gender, nature, technological systems, women refugees, illness, and many other subjects);
17. Stephen Fineman, Street-level Bureaucrats and the Social Construction of Environmental Control, 19 org. Stud. 953 (1998).
18. See berger & luckmann, supra note 8 (developing social constructionism in the context of the sociology of knowledge);
19. Burr, supra note 8, at 2;
20. kenneth J. Gergen, An Invitation to Social Construction (1999);
21. Joseph W. Schneider, Social Problems Theory: The Constructionist View, 11 Ann. Rev. Soc. 209 (1985) (providing an overview of social constructionism in social problems research by sociologists).
22. Nancy Harding, The Social Construction of Management: Texts and Identities 7 (2003).
23. Burr, supra note 8, at 3.
24. Id.; Hacking, supra note 1, at 6.
25. See burr, supra note 8, at 3;
26. GERGEN, supra note 9, at 63.
27. There is significant debate among social constructionists regarding the nature of the external world. While some contend that there is no "reality" out there, others claim that there is an external reality that acts as a constraint upon the possible constructs. See Harding, supra note 10, at 9;
28. David Kertzner, Ritual, Politics and Power 4 (1988) ("That people perceive the world through symbolic lenses does not mean that... all such constructs are equally tenable in the material world.");
29. Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943, 950 n.19 ("What is 'possible' hangs upon particular histories and material conditions, and the constraints of both are real.");
30. Schneider, supra note 9, at 223-224
31. Berger and Luckmann (and, i suppose, Stephen Colbert) call this "facticity."
32. Berger & Luckmann, supra note 8, at 20, 35, 60.
33. Id. at 61,114, 129-73, 178-79,163-173
34. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. rev. 12, 15 (1910);
35. see also Lawrence m. Friedman, The Law and Society Movement, 38 stan. L. rev. 763, 764 (1986) (dating the beginning of the law and society movement, with its view of the legal system as a social creation, to the nineteenth century);
36. Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 mich. L. rev. 1835, 1855-58 (1988) (discussing the rise of legal scholarship with legal realism).
37. See Friedman, supra note 16, at 764-66;
38. Carroll Seron & Susan S. Silbey, Profession, Science, and Culture: An Emergent Canon of Law and Society Research, in The Blackwell Companion to Law and Society 30, 32-35 (Austin Sarat ed., 2004);
39. Richard L. Abel, Law Books and Books About Law, 26 Stan. L. Rev. 175, 184-189 (1974) (book review) (discussing the nature and potential sources of the gap).
40. Seron & Silbey, supra note 17, at 36-49 (describing the law and society literature in this regard).
41. Sociologists and legal scholars have also examined the role of local legal culture in shaping the application of procedural rules and substantive law in local courts. See Thomas W. Church, Jr., Examining Local Legal Culture, 1985 Am. B. Found. Res. J. 449;
42. Lynn m. LoPucki, Legal Culture, Legal Strategy, and the Law in Lawyers'Heads, 90 Nw. U. L. Rev. 1498,1501-1502 (1996) (examining how lawyers within a community develop "shared mental model[s]" of what the law is);
43. Teresa A. Sullivan et al., The Persistence of Local Legal Culture: Twenty Years of Evidence from the Federal Bankruptcy Courts, 17 Harv. J.L. & Pub. Pol'y 801,804 (1994).
44. See Michael Lipsky, Street-Level bureaucracy: Dilemmas of the Individual in Public Services (1980) (explaining the origins of the street-level bureaucrat concept);
45. Stephen Fineman, supra note 8, at 954;
46. Ryken Grattet & Valerie Jenness, The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime, 39 Law & Soc'y rev. 893, 935 (2005).
47. See Edelman et al., supra note 2, at 47-48.
48. For these purposes, Edelman and her coauthors define construction of law as the "extraction, interpretation, and dissemination" of legal rules. In the article, however, they focus upon the professionals' construction of the threat of wrongful discharge. Id.;
49. see also Lauren B. Edelman & Mark C. Suchman, The Legal Environments of Organizations, 23 Ann. Rev. Soc. 479, 505 (1997) ("[Organizations (and organized professions) participate actively in the social construction processes that give new laws their meanings.").
50. Edelman et al., supra note 2, at 61.
51. Id. at 68-69.
52. See Malcolm Spector & John I. Kitsuse, Constructing Social Problems 73-76 (2001);
53. Joel Best, Constructing the Sociology of Social Problems: Spector and Kitsuse Twenty-Five Years Later, 17 Soc. F. 699, 702-703 (2002); (discussing the emergence of the constructionist social problems literature);
54. Schneider, supra note 9 (providing an overview of social problems theory and a survey of literature).
55. One of the leading formulations speaks of the life cycle of a social problem, which begins with "claims-making" (or discovery), followed by institutionalization, reemergence of claims, and search for an alternative responding institution. spector & KlTSUSE, supra note 23, at 142-54;
56. see also Laura E. GÓmez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure 7 (1997) (proposing a streamlined conceptualization of the construction process with only two stages: discovery and institutionalization).
57. The natural history approach has been the subject of significant criticism, and to some extent supplanted by an ecological approach, which focuses more on the competition among claims for attention in the public arena.
58. See Stephen Hilgartner & Charles L. Bosk, The Rise and Fall of Social Problems: A Public Arenas Model, 94 Am. J. Soc. 53 (1988).
59. For other approaches, see Joel Best, Social Problems (2008);
60. and J. A. Hannigan, Environmental Sociology: A Social Constructionist Perspective (2006).
61. In fact, many constructionist theorists define the very concept of a social problem by reference to social interactions. In a seminal work, for example, Spector and Kitsuse define it as the "activities of individuals or groups making assertions of grievances and claims with respect to some putative conditions." Spector & Kitsuse, supra note 23, at 75;
62. see also Gomez, supra note 24, at 5 ("[T]he constructionist approach views social problems as the product of interactions among social actors....").
63. Gömez, supra note 24, at 6;
64. Hannigan, supra note 24, at 64-65;
65. Schneider, supra note 9, at 211;
66. orceta E. Taylor, The Rise of the Environmental Justice Paradigm: Injustice Framing and the Social Construction of Environmental Discourses, 43 Am. Behav. scientist 508, 510 (2000) (describing types of rhetoric employed by claims-makers).
67. Gömez, supra note 24, at 7.
68. Joseph R. Gusfield, The Control of Drinking-Driving in the United States: A Period in Transition?, in social control of the drinking driver 109-111 (Michael D. Laurence et al. eds., 1988);
69. Craig Reinarman, The Social Construction of an Alcohol Problem: The Case of Mothers Against Drunk Drivers and Social Control in the 1980s, 17 Theory & Soc'y 91 (1988).
70. See Kate Burningham, A Noisy Road or Noisy Resident?: A Demonstration of the Utility of Social Constructionism for Analysing Environmental Problems, 46 soc. Rev. 536 (1998);
71. Sheldon Ungar, The Rise and (Relative) Decline of Global Warming as a Social Problem, 33 soc. Q. 483 (1992);
72. Jerry Williams, Knowledge, Consequences, and Experience: The Social Construction of Environmental Problems, 68 Soc. inquiry 476, 483-485 (1998).
73. But see Riley E. Dunlap & William R. Catton, Jr., Struggling with Human Exemptionalism: The Rise, Decline and Revitalization of Environmental Sociology, 25 Am. Soc. 5, 20-23 (1994) (articulating the limitations of constructionist approaches).
74. Studies of environmental social problems typically focus upon the initial claims-making activities and institutional responses rather than their aftermath. See Taylor, supra note 26 (examining origins of environmental justice claims-making);
75. Ungar, supra (examining the rise and fall of global warming as a problem in the social arena).
76. Joseph R. Gusfield, The Culture of Public Problems: Drinking-driving and the symbolic order 10-13 (1981).
77. gomez, supra note 24, at 6-7;
78. gusfield, supra note 30, at 43;
79. donileen R. Loseke, Thinking About Social Problems: An Introduction to Constructionist Perspectives 53-54 (2d ed. 2003).
80. Gömez, supra note 24, at 7, 33 (drawing a distinction between first and second round claims-making).
81. See Riley E. Dunlap & Angela G. Mertig, The Evolution of the U.S. Environmental Movement from 1970-1990: An Overview, in American Environmentalism: The U.S. Environmental Movement, 1970-1990, at 1, 4 (Riley E. Dunlap & Angela G. Mertig eds., 1992).
82. images, supra note 3, at 348-349
83. See hannigan, supra note 24, at 63-64;
84. images, supra note 3, at 337.
85. hannigan, supra note 24, at 64-66 (setting out Best's approach and discussing its application by other scholars);
86. images, supra note 3, at 349-350
87. Other commentators have modified Best's approach, employing a "framing" perspective. See loseke, supra note 31, at 55-70.
88. images, supra note 3, at 350-351
89. Constructing the Social, supra note 4, at x.
90. See Rubin, supra note 16, at 1858 (noting that most legal scholars do not view legal text as "sources of inherent meaning").
91. G6MEZ, supra note 24, at 6;
92. hannigan, supra note 24, at 74-75.
93. See Images, supra note 3, at 350 (identifying "scholarly and professional books and periodical articles" as sources of claims);
94. Edelman et al., supra note 2, at 61 (identifying law review articles as the means through which legal scholars construct the law).
95. Joel Best, Rhetoric in Claims-Making: Constructing the Missing Children Problem, 34 Soc. probs. 101,102 (1987).
96. Id. Other commentators have relied upon the rhetoric use of "frames" to define problems and support solutions. See hannigan, supra note 24, at 64-65;
97. Taylor, supra note 26, at 510-516
98. hannigan, supra note 24, at 64;
99. Best, supra note 42, at 109-112
100. In his examination of the professional literature on elder abuse, Baumann identified similar warrants, the vulnerable and dependant nature of the elderly, and the sanctity of life.
101. Eleen A. Baumann, Research Rhetoric and the Social Construction of Elder Abuse, in images, supra note 3, at 55,63-66.
102. Best, supra note 42, at 112.
103. Hannigan, supra note 24, at 65.
104. See Jody Freeman, The Contracting State, 28 FLA. St. U. L. Rev. 155, 189-197 (2000) (discussing contractual regulation);
105. Kenneth R. Richards, Framing Environmental Policy Instrument Choice, 10 Duke Envtl. L. & Pol'y F. 221, 230 (2000) (providing a taxonomy of various instruments).
106. Timothy F. Malloy & Peter Sinsheimer, Innovation, Regulation and the Selection Environment, 57 rutgers L. Rev. 183,183-184 (2004).
107. See Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 Stan. Envtl. L.J. 300, 302 (1995) ("In a command-and-control system, the government dictates the technology that must be installed to control pollution...");
108. Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953, 1019 (1995) ("[A]ll industries must adopt the same control technology...").
109. See, e.g., James E. Krier, Marketable Pollution Allowances, 25 tol. L. REV. 449, 451 (1994) ("Under [command and control regulation], sources are told how much they must control or what devices they must install.");
110. Bradford C. Mank, The Environmental Protection Agency's Project XL and Other Regulatory Reform Initiatives: The Need for Legislative Authorization, 25 ecology L.Q. 1, 31 n.159 (1998) ("Congress... often specified technology-based pollution controls....").
111. See Robert W. Hahn & Gordon L. Hester, Marketable Permits: Lessons for Theory and Practice, 16 Ecology L.Q. 361, 361 (1989) ("In many cases, regulatory authorities issued standards effectively specifying the actual technology that was required to achieve compliance.").
112. See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 Stan. L. Rev. 1333, 1335 (1985) ("Uniform BAT requirements waste many billions of dollars annually by ignoring variations among plants and industries in the cost of reducing pollution and by ignoring geographic variations in pollution effects.");
113. Daniel J. Fiorino, Toward a New System of Environmental Regulation: The Case for an Industry Sector Approach, 26 Envtl. L. 457, 469 (1996) ("The economic and technological feasibility of pollution prevention requirements vary substantially by firm size or type of operation.").
114. See Richard B. Stewart, Madison's Nightmare, 57 U. Chi. L. Rev. 335, 343 (1990) ("Bureaucrats in Washington simply cannot gather and process the vast amount of information needed to tailor regulations to the nation's many variations in circumstances and the constant changes in relevant conditions.");
115. Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. chi. L. Rev. 407, 420 (1990) ("Government is rarely in a good position to know what sorts of innovations are likely to be forthcoming; industry will have a huge comparative advantage here.").
116. See, e.g., Ackerman & Stewart, supra note 52, at 1343 ("Instead of giving the job of economic and technological assessment to bureaucrats, the marketable rights mechanism would put the information-processing burden precisely where it belongs: upon business managers and engineers who are in the best position to figure out how to cut back on their plants' pollution costs.").
117. See, e.g., David M. Driesen, Is Emissions Trading an Economic Incentive Program?: Replacing the Command and Control/Economic Incentive Dichotomy, 55 Wash. & Lee L. Rev. 289,297 (1998) ("[T]he polluter knows its facility better than the regulator and can determine how to deliver any given decrease in pollution more efficiently than the regulator.");
118. Richard B. Stewart, Models for Environmental Regulation: Central Planning Versus Market-Based Approaches, 19 B.C. Envtl. Aff. L. Rev. 547, 552 (1992) ("[A] technology-based approach requires a large centralized government bureaucracy to study industries and choose technologies. Decisions are slow, unresponsive, and costly. Because of the problems in gathering and processing information in a control bureaucracy, the standards produced are often inappropriate to local circumstances or obsolescent.".
119. Images, supra note 3, at 189.
120. To a lesser degree, some scholars use generic examples of types of industries to support the homogeneity and competency propositions. See Fiorino, supra note 52, at 469 (batch processing within the chemical industry);
121. Karkkainen, supra note 5, at 267 (farming, energy generation, and steel production). Also, some scholars reference surveys or modeling of pollution control costs across industrial plants to support claims regarding the homogeneity proposition. See Ackerman & Stewart, supra note 52, at 1335-1336
122. See Heinzerling, supra note 49, at 304 (rigidity proposition);
123. Richards, supra note 47, at 239 (rigidity proposition);
124. Richard B. Stewart, The Discontents of Legalism: Interest Group Relations in Administrative Regulation, 1985 Wis. L. Rev. 655, 670-671 (homogeneity proposition);
125. James T.B. Tripp & Daniel J. Dudek, Institutional Guidelines for Designing Successful Transferable Rights Programs, 6 YALE J. on reg. 369, 369 (1989) (homogeneity proposition).
126. Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air (1981).
127. See David R. Allardice et al., Industry Approaches to Environmental Policy in the Great Lakes Region, 25 U. tol. L. rev. 357, 363 (1994) (rigidity and homogeneity propositions);
128. Gary E. Marchant, Freezing Carbon Dioxide Emissions: An Offset Policy for Slowing Global Warming, 22 Envtl. L. 623, 629 (1992) (rigidity proposition);
129. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 98 (1995) (rigidity and homogeneity propositions)
130. See T.H. Tietenberg, Emissions Trading: An Exercise in Reforming pollution policy 14-16 (1985) (referring to 27,000 major stationary sources);
131. Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 Colum. J. Envtl. L. 171, 174 (1988) ("[Regulation] involves... controls on hundreds of thousands of pollution sources.").
132. See Pildes & Sunstein, supra note 60, at 97.
133. Id.; see also Daniel A. Farber, Environmental Protection as a Learning Experience, 27 Loy. L.A. L. Rev. 791, 794 (1994) (referring to enormous rulemaking records consisting of "tens of thousands of pages").
134. Indeed, the foregoing analysis is itself an exercise in social construction
135. Ackerman & Stewart, supra note 52, at 1341-42;
136. Driesen, supra note 55, at 303. Imagine a manufacturing facility that has four industrial boilers emitting tons of NOx. Now suppose that the regulation establishes a NOx emission limit for such boilers which allows the facility to select the best means of reducing emissions at any given boiler, be it alternate fuels, low NOx burners, scrubbers or something else. Such regulation would be inconsistent with the rigidity proposition as I use the term. Nonetheless, that regulation would still exhibit spatial specificity if it precludes the facility from complying with the emission standard at one boiler through some form of trading, either by over- controlling emissions at one of the other three boilers or by relying upon over- control at boilers or other emission sources at other locations.
137. In the seminal work in this area, Ackerman and Stewart focused on this type of rigidity, observing that it unnecessarily increased the costs of regulation by preventing allocation of the emissions reductions obligation to those firms having the lowest reduction costs. Ackerman & Stewart, supra note 52, at 1341-1342 Reasonable minds can differ on the extent to which traditional regulation historically incorporated trading approaches, on the technical and administrative constraints on its use, and on its expected costs and benefits.
138. Hannigan, supra note 24, at 64;
139. Best, supra note 42, at 108.
140. See Best, supra note 42, at 108;
141. S. Michelle Driedger & John Eyles, Organochlorines and Breast Cancer: The Uses of Scientific Evidence in Claimsmaking, 52 Soc. Sci. & Med. 1589,1591 (2001).
142. Best, supra note 42, at 109-12;
143. see also E.A. Baumann, supra note 44, at 63-65 (identifying warrants from professional literature on elder abuse).
144. See Mark A. Stach, The Gradual Reform of Environmental Law in the Twenty-First Century: Opportunities Within a Familiar Framework, 22 J. corp. L. 621, 626-628 (1997);
145. Sunstein, supra note 5, at 634-640
146. Other warrants include reducing complexity, minimizing moral hazards associated with agency capture by industry and rent-seeking by powerful agencies, and promoting democratic decision making. See Ackerman & Stewart, supra note 61, at 189-90;
147. Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. Rev. 1227, 1237-1240 (1995) (describing the "juridification" of environmental regulation and the problem of moral hazard);
148. Carol M. Rose, Rethinking Environmental Controls: Management Strategies for Common Resources, 1991 Duke L.J. 1, 1.
149. See infra notes 71-83 and accompanying text for discussion of the full range of warrants used in the regulatory literature.
150. See Jonathan H. Adler, The Ducks Stop Here? The Environmental Challenge to Federalism, 9 SUP. Ct. Econ. Rev. 205, 226 (2001) (noting the inefficient allocation of costs);
151. Robert W. Hahn & Robert N. Stavins, Incentive- Based Environmental Regulation: A New Era from an Old Idea? 18 ecology L.Q. 1, 6 (1991);
152. Stach, supra note 70, at 626 (identifying inefficiency as a major reproach of command and control regulation);
153. Richard B. Stewart, A New Generation of Environmental Regulation?, 29 Cap. U. L. Rev. 21, 31 (2001);
154. Sunstein, supra note 49, at 1019;
155. Gerald Torres, Who Owns the Sky?, 19 Pace Envtl. L. Rev. 515, 561 (2002).
156. See Daniel H. Cole & Peter Z. Grossman, When is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection, 1999 Wis. L. REV. 887, 893 ("The nominal efficiency of a regulatory regime is determined by comparing its social costs and benefits; the regime is nominally efficient if it produces benefits in excess of its costs.").
157. Id.
158. Orts, supra note 70, at 1236 ("wildly inefficient" or even "irrational");
159. Sunstein, supra note 5, at 628 ("wildly inefficient").
160. Sunstein, supra note 5, at 628.
161. Adler, supra note 71, at 226.
162. See Adam Chase, The Efficiency Benefits of "Green Taxes": A Tribute to Senator John Heinz, 11 UCLA J. Envtl. L. & Pol'y 1, 14 (1992);
163. Hahn & Stavins, supra note 71, at 6 (homogeneity);
164. Richard J. Lazarus, Debunking Environmental Feudalism: Promoting the Individual Through the Collective Pursuit of Environmental Quality, 77 IowaL. Rev. 1739,1771 (1992).
165. Stach, supra note 70, at 626. As with the homogeneity proposition, Stach finds significant support for this warrant among other scholars. See Adler, supra note 71, at 230-31;
166. Robert W. Hahn & Albert M. McGartland, The Political Economy of Instrument Choice: An Examination of the U.S. Role in Implementing the Montreal Protocol, 83 Nw. U. L. Rev. 592, 600 (1989);
167. Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 Harv. L. Rev. 1420,1556 (1999).
168. Stewart, supra note 71, at 31;
169. see also Stewart, supra note 58, at 670-671
170. See Karkkainen, supra note 5, at 270;
171. Marchant, supra note 60, at 629-631
172. See Malloy & Sinsheimer, supra note 48, at 184-185
173. Id.; see also Stewart, supra note 5, at 1260-1261
174. See, e.g., Ackerman & Stewart, supra note 52, at 1334-51;
175. Daniel J. Dudek & John Palmisano, Emissions Trading: Why is This Thoroughbred Hobbled?, 13 Colum. J. Envtl. L. 217, 222-236 (1988);
176. Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 Yale L.J. 2039, 2095 (1993).
177. See Asbjorn Eriksson et al., Taxation for Environmental Protection 4 (Sanford E. Gaines & Richard A. Westin eds., 1991);
178. see also neil Gunningham et al., Smart Regulation: Designing Environmental Policy 39 n.5 (1998) ("[A]gency [technology] guidance becomes de facto requirement and technological lock-in occurs.");
179. Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 260 (1996) (control technology mandates provide little incentive for innovation).
180. See Jonathan Remy Nash, Too Much Market? Conflict between Tradable Pollution Allowances and the "Polluter Pays" Principle, 24 Harv. Envtl. L. Rev. 465, 528 (2000);
181. see also David W. Case, The EPA's Environmental Stewardship Initiative: Attempting to Revitalize a Floundering Regulatory Reform Agenda, 50 Emory L.J. 1, 29 (2001) ("[Command and control regulation] unwisely requires regulators to make business and operating decisions that could be made more efficiently, effectively and competently by regulated industry.").
182. See Karkkainen, supra note 5, at 269 ("Unable to set source-specific standards, the regulator typically decides on the best available technology for an entire category of sources.... Because the regulator cannot anticipate the future trajectory of technological change, the standard may freeze in place those technologies "available" at the time the regulation is promulgated.").
183. Alan Pritchard, Statistical Bibliography or Bibliometrics?, 25 J. documentation 348, 348 (1969);
184. see also Christine L. Borgman, Editor's Introduction to scholarly communication and Bibliometrics 10,13 (Christine L. Borgman ed., 1990).
185. See Leah A. Lievrouw, Reconciling Structure and Process in the Study of Scholarly Communication, in Scholarly Communication and Bibliometrics, supra note 87, at 59, 60-61 (discussing citation analysis).
186. In the law, citation analysis has been used primarily to identify the frequency of citation of particular authors, articles, or faculties. See Fred R. Shapiro, Origins of Bibliometrics, Citation Indexing, and Citation Analysis: The Neglected Legal Literature, 43 J. Am. Soc'y Info. Sci. 337 (1992);
187. Fred R. Shapiro, The Most-Cited Law Review Articles, 73 Cal. L. Rev. 1540 (1985).
188. There has been less research in the legal literature or elsewhere regarding citation practices of legal scholars. Richard Delgado's work contending that established male, white legal scholars excluded minority scholars from the discourse on civil rights issues is a significant exception.
189. See Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. Pa. L. Rev. 1349 (1992);
190. Richard Delgado, Commentary, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. Pa. L. Rev. 561 (1984);
191. Symposium on Trends in Legal Citations and Scholarship, 71 Chi.-KentL. Rev. 909 (1996).
192. See Borgman, supra note 87, at 13.
193. One of the most common forms is co- citation analysis, which maps connections between individual authors (in "author co-citation analysis") and articles (in "document co-citation analysis") based on their joint citation by other authors. Howard D. White, Author Co-Citation Analysis: Overview and Defense, in Scholarly Communication and Bibliometrics, supra note 87, at 84,85.
194. Borgman, supra note 87, at 13.
195. See William Paisley, The Future of Bibliometrics, in Scholarly Communication and Bibliometrics, supra note 87, at 281, 288 (noting that content analysis includes the translation of survey responses into coded responses);
196. see also Christine L. Borgman & Jonathan Furner, Scholarly Communication and Bibliometrics, 36 ann. r. info. sci. & tech. 3, 22 (2002) (describing "citation content analysis" as the examination of the content of individual links "to determine their function, purpose, role, or meaning").
197. We began with an initial pool of more than 900 articles using the search term "command w/5 control and environmental law" in the Lexis database US & Canadian Law Reviews, Combined. We then excluded articles that focused on subjects tangential to the evaluation and reform of United States command and control regulation. In particular, we excluded articles that focused explicitly (as indicated by their title or introduction) on international law, tort law, environmental justice, enforcement, securities law, Superfund, and ISO 14000. This revised initial pool was supplemented with any articles or books that were cited by an article in the pool (a "citing article") or by an article or book which itself had been added to the revised initial pool because of citation by an article in the pool.
198. See, e.g., David B. Spence, Paradox Lost: Logic, Morality, and the Foundations of Environmental Law in the 21st century, 20 colum. J. envtl. L. 145, 175 (1995) (mentioning command and control without engaging in any evaluation or critique);
199. Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 955 (1996) (making passing reference to command and control regulation).
200. My research assistant, Renee Floyd, deserves much credit and sympathy for her tireless efforts with respect to this laborious, and at times, mind-numbing review.
201. Sydney J. Pierce, Disciplinary Work and Interdisciplinary Areas: Sociology and Bibliometrics, in Scholarly Communication and Bibliometrics, supra note 87, at 46, 48.
202. For a refreshingly funny but nonetheless insightful look at citation practices and motives in the legal academy, see J.M. Balkin & Sanford Levinson, How to Win Cites and Influence People, 71 Chi.-Kent L. Rev. 843 (1996).
203. See Pierce, supra note 95, at 48.
204. See Terrence A. Brooks, Evidence of Complex Citer Motivations, 37 J. Am. Socy Info. Sci. 34 (1986).
205. For assessments in the legal literature based more on intuition, see Balkin & Levinson, supra note 95, at 843;
206. and Richard S. Markovits, The Professional Assessment of Legal Academics: On the Shift from Evaluator Judgment to Market Evaluations, 48 J. legal Educ. 417, 423-424 (1998) who writes: Since many frequently cited articles are cited because they contain succinct statements of boilerplate propositions of law or of a particular academic approach to some set of issues, or because they fall squarely within a particular academic paradigm whose proponents make a practice of citing each other, the frequency of an author's citations has little to do with his influence, much less with the quality of his work.
207. See Janet Beavin Bavelas, The Social Psychology of Citations, 19 Can. psychol. REV. 158, 161 (1978) (noting with caveats that citations used to support the titer's credibility still reflect some level of scholarly impact of the cited source);
208. White, supra note 89, at 90-92.
209. See supra p. 295.
210. See Images, supra note 3, at 6 ("Constructionists examine what claimsmakers say about conditions....").
211. Some theorists have extended the analysis to consider "audience." See gÖmez, supra note 24, at 7-8 (institutionalization in a study of prenatal drug exposure policies);
212. Hilgartner & Bosk, supra note 24 (using a public arena model to examine the outcome between competing constructions).
213. Of the 137 authors, nineteen were characterized as neutral, meaning that they either did not discuss any of the three propositions, or did not directly or indirectly take a position with respect to any of the three. In calculating the percentages in Tables 1 and 2, the full 137 authors were considered.
214. Please note that because individual scholars could support or reject one or more different propositions, scholars could appear in more than one cell of the table.
215. Here again, one scholar can appear in more than a single cell. For example, a scholar adopting all three propositions would appear in each of the three cells in the first row of the table.
216. See constructing the social, supra note 4, at x (acknowledging the existence of competing constructions); images, supra note 3, at 350.
217. Ten of the twenty-seven scholars who rejected the rigidity proposition embraced one or both of the other two propositions. 106. See supra p. 298 tbl. 1.
218. See supra pp. 289-90 for a discussion of the inefficiency warrant. 108.
219. See supra pp. 291-92 for a discussion of the inhibition of innovation warrant.
220. This refers to the contention that the regulations do not address local environmental conditions.
221. This refers to the contention that disputes in the rulemaking process and subsequent litigation create delays in addressing the salient environmental conditions.
222. They are complexity (1), regulatory capture (1), and bad priority (2). 112. They are complexity (1), regulatory capture (2), undermines democracy (2), and bad priority (1).
223. They are complexity (3), undermines democracy (2), bad priority (2), resentment (1), and political overload (1).
224. It should be noted that not every author relied upon a warrant. For example, among the sixty-three authors adopting one proposition, twelve did not rely upon a warrant in supporting a reform.
225. The two are not mutually exclusive. For example, Article 1 may cite empirical evidence in support of the rigidity proposition. When Article 2 cites Article 1 for the proposition, it can be said that Article 2 relies upon both existing scholarship and empirical evidence. As we shall see, because the existing scholarship makes very little use of empirical evidence, this point is of little concern in this context.
226. Ackerman & Stewart, supra note 52.
227. Evaluating the significance of a scholar by counting citations is a time- honored tradition in the legal academy and elsewhere. See Lawrence A. Cunningham, Scholarly Profit Margins: Reflections on the Web, 81 Ind. L.J. 271, 273-274 (2006). This Article is unique in that it focused on specific content, tracing the flow of discrete substantive points through the scholarly network.
228. Ackerman & Hassler, supra note 59.
229. For the functional form, see Stewart, supra note 55, at 550;
230. and Stewart, supra note 5, at 1268-1269
231. For the moderate form, see Stewart, supra note 83, at 2057, n.79
232. and Stewart, supra note 53, at 341 (offering use of specific pollution control technologies as one example of command and control regulation). This vacillation between forms may be explained by the fact that in the second set of citations, he was expressly including hazardous waste regulation and workplace safety rules which, in a number of circumstances, do call for certain types of management approaches.
233. Ackerman & Hassler, supra note 59, at 18.
234. See, e.g., Ackerman & Stewart, supra note 52, at 1354-1357 (adopting both propositions);
235. Stewart, supra note 53, at 352-356 (adopting both propositions);
236. Stewart, supra note 71, at 31-33 (adopting homogeneity proposition).
237. See Natalie M. Derzko, Using Intellectual Property Law and Regulatory Processes to Foster the Innovation and Diffusion of Environmental Technologies, 20 Harv. Envtl. L. Rev. 3, 19 (1996)
238. (citing Peter S. Menell & Richard B. Stewart, Environmental Law And Policy 374-376 (1994) for the strong form of proposition 1);
239. Driesen, supra note 55, at 300-01; Evan Goldenberg, The Design of an Emissions Permit Market for Reclaim: A Holistic Approach, 11 UCLA J. Envtl. L. & pol'y 297, 301 (1993) (citing Reforming Environmental Law for the strong form of proposition 1);
240. Heinzerling, supra note 49 (citing Reforming Environmental Law for the strong form of proposition 1);
241. Marchant, supra note 60 (citing Clean Coal/Dirty Air for the moderate form of proposition 1);
242. Sunstein, supra note 49 (citing Reforming Environmental Law for the strong form of proposition 1);
243. Wendy E. Wagner, The Triumph of Technology-Based Standards, 2000 U. ILL. L. Rev. 83, 90 n.26 (observing that scholars tend to cite Clean Coal/Dlrty Air as support for proposition 1).
244. See Heidi Lee Hoerman & Carole Elizabeth Nowicke, Secondary and Tertiary Citing: A Study of Referencing Behavior in the Literature of Citation Analysis Deriving from the Ortega Hypothesis of Cole and Cole, 65 LlBR. Q. 415 (1995) (discussing presence of substantive mis-citing in scientific literature).
245. See discussion infra Part IV.A.
246. See Stewart, supra note 55, at 550;
247. Stewart, supra note 5, at 1269.
248. As I discuss in greater detail below, in a comprehensive 1995 assessment of traditional regulation, the Office of Technology Assessment concluded that there were no data supporting the functional form of the rigidity proposition. Office of Tech. Assessment, Environmental Policy Tools: A User's Guide 97 (1995). The OTA report, however, overstates the lack of evidence. See infra pp. 310-311 (discussing Professor LaPierre's work).
249. In fairness to Professor Stewart, one should note that he does provide evidence of another type of rigidity, namely, spatial specificity. See supra text accompanying notes 65-66.
250. Ackerman & Stewart, supra note 52, at 1335;
251. Richard B. Stewart, United States Environmental Regulation: A Failing Paradigm, 15 J.L. & Com. 585, 587-588 (1996).
252. They also identify another aspect of homogeneity-what one might call "impact homogeneity"-which holds that facilities differ in terms of the environmental quality or character of their surroundings. Ackerman & Stewart, supra note 52, at 1335 ("Uniform BAT requirements waste many billions of dollars annually by ignoring variations among plants and industries in the cost of reducing pollution and by ignoring geographic variations in pollution effects. A more cost-effective strategy of risk reduction could free enormous resources for additional pollution reduction or other purposes." (emphasis added)).
253. See Ackerman & Stewart, supra note 52, at 1335;
254. Stewart, supra note 128, at 587-88;
255. Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 Colum. J. Envtl. L. 153,156 (1988).
256. Tietenberg, supra note 61.
257. See Cole & Grossman, supra note 72, at 889-92;
258. see also Driesen, supra note 55, at 289 (discussing limitations of the studies in Tietenberg's book). 132. Cole & Grossman, supra note 72.
259. Id. at 889-892
260. 134.627 F.2d 416 (D.C. Cir. 1980).
261. Stewart, supra note 128, at 587.
262. 627 F.2d at 452-453
263. Id. at 435.
264. Id. at 454-455
265. See Standards of Performance for New Stationary Sources; Lime Manufacturing Plants, 47 Fed. Reg. 38,832, 38,835 (proposed Sept. 2, 1982) (to be codified at 40 C.F.R. pt. 60) ("Information was requested in writing from 14 plants, and 12 responses were received. The Agency also surveyed new or modified lime plants to determine if process and emission control technology had changed since the development of standards for lime manufacturing plants.... In addition, EPA sought information from the Industrial Gas Cleaning Institute (IGCI), a national organization of manufacturers of industrial air pollution control equipment, from the NLA, and from a review of the technical literature on lime manufacturing.").
266. See supra text accompanying notes 119-121
267. See supra text accompanying notes 130-131
268. Hahn & Stavins, supra note 71, at 6 (citing Robert W. Crandall, The Political Economy of Clean Air: Practical Constraints on White House Review, in Environmental Policy Under Reagan's Executive Order 205, 210-215 (V. Kerry Smith ed., 1984)).
269. Indeed, CrandaU's study cites statistics showing differing incremental costs of pollution control between new sources and existing sources, as well as variances across industries. These are exactly the types of differences that underlie the categorical distinction made between industry sectors and between facilities within the same sectors in identifying reference technologies. See infra Part IV.B.
270. Fiorino, supra note 52, at 478 (emphasis added) (footnote omitted).
271. 40 C.F.R. § 63.113(a)(2) (2008).
272. D. Bruce LaPierre, Technology-Forcing and Federal Environmental Protection Statutes, 62 IowaL. Rev. 771, 825-826 (1977).
273. Id. at 825 n.324;
274. see Nat'l Comm'n on Water Quality, Staff Report 11-68 (1976).
275. Sunstein, supra note 49, at 1019.
276. Rubin, supra note 16, at 1854-1855.
277. Indeed, the coders in the current project had to make fairly nuanced decisions in some cases about whether the author was expressing one of the propositions or not.
278. Stewart, supra note 53, at 341.
279. As discussed above, Professor Stewart has adopted a much more nuanced form of the rigidity proposition elsewhere. See Stewart, supra note 55, at 550; Stewart, supra note 5, at 1269-1270
280. See, e.g., Driesen, supra note 55, at 289 (describing "economic incentive" programs);
281. Timothy F. Malloy, Regulating by Incentives: Myths, Models, and Micromarkets, 80 Tex. L. Rev. 531 (2002);
282. Sidney A. Shapiro & Thomas O. McGarity, Not So Paradoxical: The Rationale for Technology-Based Regulation, 1991 duke L.J. 729;
283. Wagner, supra note 122, at 83.
284. See generally Cole & Grossman, supra note 72, at 887 (rejecting rigidity proposition and questioning the efficiency warrant);
285. Driesen, supra note 55, at 296-308 (rejecting the homogeneity proposition);
286. Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine Tuning" Regulatory Reform, 37 Stan. L. Rev. 1267,1268-1269 (1985) (rejecting the homogeneity proposition);
287. Malloy, supra note 152, at 545 (rejecting the competency proposition and associated innovation warrant);
288. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210 (1992) (rejecting the "race to the bottom" proposition);
289. Sidney A. Shapiro & Robert L. Glicksman, Goals, Instruments, and Environmental Policy Choice, 10 duke Envtl. L. & poly F. 297 (2000) (rejecting the rigidity proposition);
290. Wagner, supra note 122, at 89 (rejecting the competency proposition).
291. This description refers to "self-executing" regulations, which are requirements that apply to particular types of activities whether the facility is otherwise required to obtain an environmental permit for its operations. Default standards also appear in permitting programs.
292. Reliance on technology-based standards could result in both over- regulation and under-regulation. Over-regulation would occur where the technology reduces emissions to levels below those necessary to protect humans or the environment. Two mechanisms limit the likelihood of this to some degree. First, in choosing which sectors to regulate under the NSPS and MACT programs, EPA must first make the determination that under-regulation results when the industries' best practices are not sufficiently protective, exposing populations to significant residual risk even after attainment of the emission standard.
293. The NSPS provisions establish technology-based standards for emissions of "criteria" pollutants. See Standards of Performance for New Stationary Sources; Glass Manufacturing Plants, 45 Fed. Reg. 66,742, 66,743 (Oct. 7,1980) (to be codified at 40 C.F.R. pt. 60) ("Standards of performance are promulgated under Section 111 of the Clean Air Act. Section 111(b)(1)(A) requires that the Administrator establish standards of performance for categories of new, modified, or reconstructed stationary sources which, in the Administrator's judgment, cause or contribute significantly to air pollution, which may reasonably be anticipated to endanger public health or welfare.").
294. The MACT program establishes standards to control hazardous air pollutants. See National Emission Standards for Hazardous Air Pollutants Phosphoric Acid Manufacturing and Phosphate Fertilizers Production, 64 Fed. Reg. 31,358, 31,359 (June 10, 1999) (to be codified 40 C.F.R. pt. 9, pt. 63) ("Section 112 of the [Clean Air] Act requires the Agency to promulgate regulations for the control of [hazardous air pollutant ("HAP')] emissions from both new and existing major sources. The statute requires the regulations to reflect the maximum degree of reduction in emissions of HAPs that is achievable taking into consideration the cost of achieving the emission reduction, any nonair quality health and environmental effects, and energy requirements. This level of control is commonly referred to as the maximum achievable control technology (MACT).").
295. See 40 C.F.R. §§ 60.100-60.109 (2008) (petroleum refinery standards);
296. 40 C.F.R. §§ 60.620-60.625 (2008) (petroleum dry cleaning standards);
297. 40 C.F.R. §§ 63.320-63.326 (2008) (perchloroethylene standards for dry cleaning facilities);
298. 40 C.F.R. § 63.640-63.679 (2008) (national emission standards for hazardous air pollutants for petroleum refineries).
299. The review data (in the form of two Excel spreadsheets) is on file with the Buffalo Law Review.
300. See NSPS Excel spreadsheet (on file with the Buffalo Law Review). We examined eighty-three rules promulgated between 1977 and 2000.
301. See, e.g., Standards of Performance for New Stationary Sources and Guidelines for Control of Existing Sources: Municipal Solid Waste Landfills, 56 Fed. Reg. 24,468, 24,484 (May 30, 1991) (to be codified at 40 C.F.R. pts. 51, 52, 60) (prescribing "best demonstrated system of continuous emission reduction" for new municipal solid waste landfills); Standards of Performance for New Stationary Sources; Petroleum Dry Cleaners, 47 Fed. Reg. 56,118, 56,124 (December 14, 1982) (to be codified at 40 C.F.R. pt. 60) (rejecting performance standards for petroleum drycleaners as impracticable).
302. Office of Tech. Assessment, U.S. Congress, Environmental Policy Tools: A User's Guide 14-15 (1995).
303. Id.
304. See 42 U.S.C. § 7411 (a)(1), (b)(1)(B) (2006) (describing the NSPS program);
305. 42 U.S.C. § 7412(d)(2)-(3) (2006) (describing MACT standards).
306. See § 7411(h)(1);
307. § 7412(h)(1).
308. See, e.g., 40 C.F.R. § 60.313 (2008) (setting out performance testing requirements for control technologies used to manage emissions from the surface coating of furniture under the NSPS program);
309. 40 C.F.R. § 63.9580-60.9652 (2008) (prescribing testing, monitoring, and recordkeeping requirements for reference technologies under the MACT program for taconite iron ore processing).
310. See 40 C.F.R. § 60.8(b) (2008) (describing alternative performance test protocols under the NSPS program);
311. 40 C.F.R. §§ 63.7(e), 63.8(f), 63.10(f) (2008) (describing alternative MACT testing, monitoring and recordkeeping requirements).
312. See § 7411(h)(3);
313. § 7412(h)(3).
314. EPA has included the equivalency determination process in a variety of rules under both programs. See, e.g., 40 C.F.R. §§ 60.114b (volatile organic liquid storage vessels);
315. 60.632(c) (onshore natural gas processing plants);
316. 60.592(c) (petroleum refineries);
317. 60.716 (magnetic tape coating facilities);
318. 61.12(d) (alternative means of emission limitation);
319. 63.177 (alternative controls for equipment, design or operational requirement);
320. see also Recent Posting to the Applicability Determination Index (ADD, 69 Fed. Reg. 7,926 (Feb. 20, 2004) (to be codified at 40 C.F.R. pt. 60, 61, 63) (describing owner or operator requests to EPA).
321. Sec, e.g., 40 C.F.R. § 60.114b (2008).
322. See § 7411(j).
323. See 40 C.F.R. § 63.94 (2008) ("State may seek approval of State permit terms and conditions to be implemented and enforced in lieu of specified existing and future Federal section 112 rules, emission standards, or requirements....").
324. See Hahn & Hester, supra note 51.
325. See Robert M. Friedman et al., Environmental Policy Instrument Choice: The Challenge of Competing Goals, 10 Duke Envtl. L & Pol'y F. 327, 356-357 (2000) (describing inefficient outcomes because of uniform treatment of sources);
326. Dennis D. Hirsch, Symposium Introduction: Second Generation Policy and the New Economy, 29 Cap. U. L. Rev. 1, 2 (2001) (discussing choice of EPA "reference technology" to avoid compliance concerns);
327. Stewart, supra note 55, at 552 (explaining compliance).
328. See neil gunningham et al., Smart regulation 39 n.5 (1998) (permit writer conservatism).
329. Office of Tech. Assessment, supra note 26, at 97.
330. Id. at 16.
331. Remarkably, there appears to be no significant empirical evidence to support even this perception. I have been unable to find any reports or other sources that collate and evaluate information regarding the actual nature of technology choices made by facilities under the NSPS or MACT programs. The apparently low level at which facilities utilize the alternative means of emission limitation mechanisms under those programs provides some indication of uniformity. Despite the ubiquitous nature of these mechanisms, research reveals only one request, which EPA denied in 1982.
332. See Standards of Performance for New Stationary Sources: Petroleum Liquid Storage Vessels
333. Notice of Final Equivalency Determinations, 47 Fed. Reg. 54,259 (Dec. 1, 1982) (to be codified at 40 C.F.R. pt. 60) (explaining that seal systems for petroleum liquid storage vessels are not equivalent to the systems required by Subpart Ka of 40 CFR Part 60).
334. Approvals must be noticed by EPA in the Federal Register. A Lexis search of the Federal Register turned up only the seal system rejection referenced above. EPA's response to a FOIA request confirmed this. For an analysis of underuse of innovative technology waivers under the Clean Water Act, see generally U.S. EPA, Providing Waivers from NPDES Permit Compliance Schedules for Industrial Pollution Prevention Technology 29-37 (1994).
335. See Malloy & Sinsheimer, supra note 48, at 206-207
336. See Malloy, supra note 152, at 555-592
337. See Part IV.B for a discussion of the standards for establishing subcategories.
338. See e.g., Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 Harv. Envtl. L. Rev. 297, 316 (1999);
339. Stewart, supra note 71, at 31.
340. Fiorino, supra note 52, at 459.
341. See Allardice et al., supra note 60, at 363;
342. Chase, supra note 77, at 14;
343. Stewart, supra note 128, at 587.
344. Some authors also focus on the failure to consider geographical or locational differences between facilities. See e.g., Lazarus, supra note 77, at 1771;
345. Pildes & Sunstein, supra note 60, at 97.
346. The EPA has taken location into account, particularly where the facility creates some significant constraint on the efficacy or cost of a potential control technology. See, e.g., Federal Standards for Marine Tank Vessel Loading Operations, 60 Fed. Reg. 48,388, 48,393 (Sept. 19, 1995) (to be codified at 40 C.F.R. pts. 9, 63) (creating a subcategory for the Valdez Marine Terminal due to, among other things, climatic and economic conditions that required constant flow of oil through the pipeline and severe meteorological conditions resulting in increased loading irregularity);
347. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 62,213, 66,216 (Oct. 28, 2005) (to be codified at 40 C.F.R. pt. 60) (proposing different emissions standards for boilers depending upon the precipitation levels in the areas in which the boilers were located).
348. Location also raises issues of exposure and harm. Distant, isolated facilities may pose less threat to human health than those located near large populations. While technology-based standards typically do not consider such factors, neither do market-based instruments such as trading regimes or taxes. In practice, however, both technology-based and market-based systems could be crafted so as to address location-related issues of harm.
349. See generally Roberta Mann, Waiting to Exhale?: Global Warming and Tax Policy, 51 AM. U.L. REV. 1135, 1209 (2002);
350. Stewart, supra note 71, at 100-102
351. Stewart, supra note 58, at 670-671
352. See 42 U.S.C. § 7411(b) (2006);
353. 42 U.S.C. § 7412(c)(1) (2006).
354. Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments, 57 Fed. Reg. 31,576, 31,578 (July 16, 1992).
355. See, e.g., 42 U.S.C. § 7411(b)(2) (2006);
356. U.S.C. § 7412(d)(1), (2) (2006). Having identified the relevant source category and, as appropriate, each subcategory nested within it, EPA next determines the reference technology; that is, the control strategy to be used by the agency in determining the applicable emission limit for that category or subcategory. The criteria for reference technology selections are different for the two programs. For the MACT program, EPA must identify the "maximum achievable control technology," defined as "maximum degree of reduction in emissions... that the Administrator... determines is achievable for new or existing sources in the category or subcategory." § 7412(d)(2), (g)(2). The NSPS program calls for "the degree of emission limitation achievable through the application of the best system of emission reduction." § 7411(a)(1).
357. Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments, 57 Fed. Reg. 31,576, 31,580 (July 16,1992).
358. See Standards of Performance for New Stationary Sources: Glass Manufacturing Plants, 45 Fed. Reg. 66,742, 66,743 (Oct. 7, 1980) (to be codified at 40 C.F.R. pt. 60) (differentiating among glass manufacturing plants on the basis of the potential for particulate emission control);
359. see also Standards of Performance for New Stationary Sources: Volatile Organic Liquid Storage Vessels, 49 Fed. Reg. 29,698, 29,706 (July 23, 1984) (to be codified at 40 C.F.R. pt. 60) (establishing different classes of storage tanks based on Volatility of the stored material and the size of the tanks). While this discussion focuses upon these two Clean Air Act programs, much the same could be said about the agency's other major media-oriented program, the Clean Water Act.
360. See, e.g., E. I. Du Pont De Nemours & Co. v. Train, 430 U.S. 112, 128 (1977) (holding that under Section 301 of the Clean Water Act, EPA has the authority to promulgate uniform effluent limitations by regulation on an industry-wide basis for classes and categories of existing plants, "so long as some allowance is made for variations in individual plants");
361. see also Tex. Oil & Gas Assoc. v. EPA, 161 F.3d 923, 940-941 (5th Cir. 1998) ("The EPA is authorized-indeed, is required-to account for substantial variations within an existing category or subcategory of point sources.").
362. See E. I. Du Pont De Nemours & Co. v. Train, 430 U.S. at 132 (noting, in the context of the Clean Water Act, the impracticability of requiring the agency "to give individual consideration to the circumstances" of each of the 42,000 faculties regulated under Section 301 of the Act.).
363. In some cases, however, where the record supports it, EPA has tailored specific rules to one or just a few facilities. See 40 C.F.R. § 63.562(d) (2008) (establishing unique MACT standards for the Valdez Marine Terminal);
364. see also National Emission Standards for Hazardous Air Pollutants: Phosphoric Acid Manufacturing and Phosphate Fertilizers Production, 64 Fed. Reg. 31,358
365. 31362 (June 10, 1999) (to be codified at 40 C.F.R. pts. 9, 63) (establishing a subcategory for a lone superphosphoric acid process line source).
366. 192.See National Emission Standards for Hazardous Air Pollutants: Printing, Coating and Dyeing of Fabrics, 67 Fed. Reg. 46,028, 46,039 (July 11, 2002) (to be codified at 40 C.F.R. pt. 63) ("As part of the regulatory development process, we evaluate the similarities and differences between industry segments or groups of affected sources comprising a source category.").
367. National Emission Standards for Hazardous Air Pollutants, 60 Fed. Reg. 30,801, 30,802 (proposed June 12,1995) (to be codified at 40 C.F.R. pt. 63).
368. See National Emission Standards for Hazardous Air Pollutants for Source Categories, 64 Fed. Reg. 6,946, 6,949 (Feb. 11, 1999) (to be codified at 40 C.F.R. pt. 63). Group 1 furnaces, which process aluminum containing paint, lubricants, and coatings, or process clean charge with reactive fluxing (i.e., flux containing or forming hazardous air pollutants), are subject to a series of emission limits for a variety of pollutants. Group 2 furnaces process clean scrap aluminum and engage in either no fluxing or in fluxing using only nonreactive, non-HAP- containing/non-HAP-generating gases. Accordingly, no emission limits were established for group 2 furnaces.
369. See 40 C.F.R. §§ 63.1503,1505 (2008);
370. National Emission Standards for Hazardous Air Pollutants for Secondary Aluminum Production, 65 Fed. Reg. 15,690, 15,692 (Mar. 23, 2000) (to be codified at 40 C.F.R. pt. 63).
371. See Standards of Performance for New Stationary Sources: Glass Manufacturing Plants, 45 Fed. Reg. 66,742, 66,746 (Oct. 7, 1980) (to be codified at 40 C.F.R. pt. 60) ("In the process of selecting the major categories of glass production it was found that the pressed and blown glass category had within itself areas of production that were individually unique as to their potential for particulate emission control.").
372. See, e.g., Fiorino, supra note 52, at 469.
373. Malloy, supra note 152, at 599;
374. A. Ghosh, Batch Processes and Their Automation, in Instrument Engineers' Handbook: Process Control 1544 (Bela G. Liptak ed., 2006).
375. See Standards of Performance for New Stationary Sources; Volatile Organic Compound (VOC) Emissions from the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations, 55 Fed. Reg. 26,931, 26, 940 (June 29, 1990) (to be codified at 40 C.F.R. pt. 60);
376. see also Standards of Performance for New Stationary Sources; Polypropelene, Polyethelyne, Polystyrene and Poly- (ethylene terephthalate) Manufacturing Industry, 55 Fed. Reg. 51,010, 51,018 (Dec. 11, 1990) (to be codified at 40 C.F.R. pt. 60) (excluding batch operations from the NSPS rule for the polypropylene, polyethylene, polystyrene, and poly-(ethylene terephthalate) manufacturing industry).
377. EPA describes the two processes as follows: "The category includes both continuous and batch pickling operations. In the continuous pickling process the steel is fed through a sequence of tanks in a countercurrent direction to the flow of the acid solution; next, the steel is passed through a series of rinse tanks or a rinsing section. In the batch pickling process, the steel is immersed in an acid solution until the scale or oxide film is removed, lifted from the bath, allowed to drain, and then rinsed by spraying or immersion in rinse tanks."
378. National Emission Standards for Hazardous Air Pollutants for Steel Pickling Facilities HCL Process, 62 Fed. Reg. 49,052, 49,053 (Sept. 18, 1997) (to be codified at 40 C.F.R. pt. 63).
379. Id. at 49,060 ("Batch operations differ significantly from continuous operations in three ways: (1) The physical arrangement of the unit must allow the steel to be placed into and withdrawn from the top instead of the ends of the tank, (2) emissions may vary substantially between the immersion and draining phases of the operation, and (3) emission capture requirements are different for the two types of operations.").
380. 40 C.F.R. § 63.1158 (2008).
381. See National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources, 73 Fed. Reg. 58,352, 58,359 (Oct. 6, 2008) (to be codified at 40 C.F.R. 63).
382. See e.g., National Emission Standards for Hazardous Air Pollutants for Polyether Polyols Production, 62 Fed. Reg. 46,804, 46,805 (Sept. 4, 1997) (to be codified 40 C.F.R. pt.63) (distinguishing between batch and continuous processes in the production of polyether polyols);
383. National Emission Standards, 60 Fed. Reg. 16,090, 16,092 (Mar. 29, 1995) (to be codified at 40 C.F.R. pt. 63) (describing batch and continuous processes for production of Group IV polymers and resins);
384. see also Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Medical Waste Incinerators, 60 Fed. Reg. 10,654 (Feb. 27, 1995) (to be codified at 40 C.F.R. pt. 60) (proposing NSPS rule for municipal waste incinerators);
385. National Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning, 58 Fed. Reg. 62,566, 62,568 (Nov. 29, 1993) (to be codified at 40 C.F.R. pt. 63) (proposing six subcategories of the halogenated solvent cleaning source category based upon size and type-batch or continuous-of processing);
386. see also Standards of Performance for New Stationary Sources; Polypropelene, Polyethelyne, Polystyrene and Poly- (ethylene terephthalate) Manufacturing Industry, 55 Fed. Reg. 51,010 (Dec. 11, 1990) (to be codified at 40 C.F.R. pt. 60) (describing rules for that industry).
387. The incremental cost per ton is the difference in annual costs between a baseline (either no control or a different control option) and the proposed control divided by the difference in annual emissions. EPA typically uses this metric as a measure of the economic feasibility of applying emission control technology to a source.
388. See National Emission Standards for Hazardous Air Pollutants for Stationary Combustion Turbines, 68 Fed. Reg. 1,888,1,896 (Jan. 14, 2003) (to be codified at 40 C.F.R. pt. 63).
389. See Standards of Performance for New Stationary Sources: Volatile Organic liquid Storage Vessels, 49 Fed. Reg. 29,698, 29,706 (July 23, 1984) (to be codified at 40 C.F.R. pt. 60) (including petroleum liquid storage vessels constructed after July 23,1984).
390. 40 C.F.R. § 60.110(b). EPA used this approach in a number of other rulemakings in the NSPS program. See Standards of Performance for New Stationary Sources; Magnetic Tape Manufacturing Industry, 51 Fed. Reg. 2996, 3004 (proposed Jan. 22, 1986) (to be codified at 50 C.F.R. pt. 60);
391. Standards of Performance for New Stationary Sources Polymeric Coating of Supporting Substrates, 52 Fed. Reg. 15,906 (proposed Apr. 30, 1987) (to be codified at 40 C.F.R. pt. 60).
392. Standards of Performance for Coal Preparation Plants, 73 Fed. Reg. 22,901, 22,904-905 (proposed Apr. 28, 2008) (to be codified at 40 C.F.R. pt. 60).
393. Id.; see also Standards of Performance for Petroleum Refineries, 73 Fed. Reg. 35,838, 35,849 (June 24, 2008) (to be codified at 40 C.F.R. pt. 60) (establishing differential standards for large and small sulfur recovery units at petroleum refineries based on incremental cost-effectiveness).
394. 42 U.S.C. § 7412(d)(2) (2006).
395. Id. § 7412(d)(3).
396. F.3d 625, 640 (D.C. Cir. 2000).
397. Previously, EPA had repeatedly taken the position that it could use control cost as a factor in disaggregating a category into separate subcategories. See National Emissions Standard for Hazardous Air Pollutants for Source Categories, 62 Fed. Reg. 49,052, 49,060 (proposed Sept. 18, 1997) (to be codified at 40 C.F.R. pt. 63) (The rulemaking for steel pickling operations identifies the criteria for subcategorization and includes "process operations (including differences between continuous and batch operations), emission characteristics, control device applicability and costs, safety, and opportunities for pollution prevention");
398. National Emissions Standard for Hazardous Air Pollutants; Rubber Tire Manufacturing, 65 Fed. Reg. 62,414, 62,423 (proposed Oct. 18, 2000) (to be codified at 40 C.F.R. pt. 63) (taking same position in rubber tire manufacturing rulemaking).
399. This position found some support in the legislative history; the Senate Environment and Public Works Committee observed: "Cost and feasibility are factors which may be considered by the Administrator when establishing an emissions limitation for a category under section 112.... Nothing in this language authorizes the establishment of a category based wholly on economic grounds...." See S. REP. No. 101-228, at 166 (1989), reprinted in 1998 U.S.C.CA.N. 8341, 8506). Nonetheless, National Lime raised serious questions regarding the position-questions intensified by the later decision in National Resources Defense Council v. Environmental Protection Agency, 489 F.3d 1364, 1376 (D.C. Cir. 2007). But see Sierra Club v. Envtl. Prot. Agency, 479 F.3d 875, 884-85 (D.C. Cir. 2007) (concurring opinion suggesting that costs may be relevant in subcategorization). In any event, EPA had abandoned the position by 2003
400. See National Emissions Standards for Hazardous Air Pollutants for Brick and Structural Clay Products Manufacturing, 68 Fed. Reg. 26,690, 26,697 (May 16, 2003) (to be codified at 40 C.F.R. pt. 63).
401. Compare the proposed and final rules for clay ceramics manufacturing in which EPA justified separate standards for small tunnel kilns based on cost in the proposal, but rejected cost as an appropriate factor and instead relied upon technological differences and air flow.
402. National Standards for Hazardous Air Pollutants for Brick and Structural Clay Products Manufacturing; and National Emissions Standards for Hazardous Air Pollutants for Clay Ceramics Manufacturing, 67 Fed. Reg. 47,894, 47,904 (proposed July 22, 2002) (to be codified at 40 C.F.R pt. 63) (proposed rule);
403. 68 Fed. Reg. 26,690, 26,696-97 (May 16, 2003) (to be codified at 40 C.F.R. pt. 63) (final rule).
404. See National Emissions Standards for Hazardous Air Pollutants; Miscellaneous Organic Chemical Manufacturing, 68 Fed. Reg. 63,852, 63,871 (Nov. 10, 2003) (to be codified at 40 C.F.R. pt. 63) ("The revised cost analysis shows that for processes with continuous process vents, the cost of the subpart TT program (the MACT floor) is $3,200/Mg, the cost of the subpart UU program is $2,800/Mg, and the incremental cost to go beyond the MACT floor to the subpart UU program is $470/Mg. These costs are considered reasonable. Conversely, for batch processes, the costs of the beyond-the-floor option were determined to be unreasonable. Therefore, we decided to set the standard at the MACT floor for processes with only batch process vents, and we selected the beyond-the-floor option of subpart UU for processes with at least one continuous process vent").
405. Standards of Performance for New Stationary Sources; Perchloroethylene Dry Cleaners, 56 Fed. Reg. 64,382 (proposed Dec. 9, 1991) (to be codified at 40 C.F.R. pt. 60).
406. In many cases, the emissions trading regime is simply layered over traditional regulation, as in EPA's open market trading system, providing an additional compliance option.
407. Roger K. Raufer, Market-Based Pollution Control Regulation: Implementing Economic Theory in the Real World, 26 Envtl. Pol. & L. 177, 179-80 (1996). In other, so-called "cap and trade" regimes, an aggregate quantity of allowable emissions is set for the entire population of covered facilities, with tradable emission allowances allocated on some basis to those facilities.
408. Id. at 179-181
409. For example, the South Coast Air Quality Management District's RECLAIM cap and trade program for NOx based the emissions cap on the aggregate emissions that would have been produced under existing and planned command and control regulations.
410. See David Harrison, Jr., Tradable Permits for Air Pollution Control: The US Experience, in Implementing Domestic Tradable Permit for Environmental Protection 37 (Organisation for Economic Co-Operation and Development ed., 1999).
411. The cap for the federal acid rain trading program resulted as much (or perhaps more) from political compromise as from scientific evaluation and principled policy analysis.
412. See generally Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 Stan. Envtl. L.J. 300 (1996).
413. See, e.g., Raul P. Lejano & Rei Hirose, Testing the Assumptions Behind Emissions Trading in Non-Market Goods: The RECLAIM Program in Southern California, 8 Envtl. sci. & P0L"y 367, 374-375 (2005);
414. Noga Morag-Levine, The Problem Of Pollution Hotspots: Pollution Markets, Coase, and Common Law, 17 Cornell J.L. & Pub. Pol'y 161 (2007);
415. Jonathan Remy Nash & Richard L. Revesz, Markets and Geography: Designing Marketable Permit Schemes to Control Local and Regional Pollutants, 28 Ecology L.Q. 569 (2001).
416. As more toxicity information becomes available, trading in emissions previously thought to have little local health effects can become problematic. See Lejano & Hirose, supra, at 372 (noting that researcher have begun to identify toxicity associated with NOx).
417. This discussion has focused on the flexibility afforded by the subcategorization process. The Clean Air Act and other environmental statutes provide flexibility through other mechanisms as well, including variances, waivers, and emissions averaging.
418. Ackerman & Stewart, supra note 52, at 1334;
419. see Jonathan H. Adler, Legal Obstacles to Private Ordering in Marine Fisheries, 8 roger Williams U. L. rev. 9, 16 (2002) (discussing Hayek's theories);
420. Bernard S. Black & Richard J. Pierce, Jr., The Choice Between Markets and Central Planning in Regulating the U.S. Electricity Industry, 93 colum. L. Rev. 1342,1389-1390 (1993) (comparing environmental and energy regulation to central planning as used by the Soviet Union);
421. Stewart, supra note 128, at 587 (comparing command and control regulation to central planning of economic activity).
422. See Karen I. Vaughn, Economic Calculation Under Socialism: The Austrian Contribution, 18 Econ. Inquiry 535, 536 (1980).
423. See Richard A. Posner, Hayek, Law and Cognition, 1 N.Y.U. J. L. & Liberty 147,149 (2005).
424. Id. Vilfredo Pareto, better known for the Pareto principle, warned of the analytical problems faced even if the necessary data were somehow obtained: "We have seen that in the case of 100 persons and 700 commodities... we shall therefore have to solve a system of 70,699 equations. This exceeds practically the power of algebraic analysis, and this is even more true if one contemplates the fabulous number of equations which one obtains for a population of forty millions and several thousand commodities."
425. F. A. v. Hayek, Socialist Calculation: The Competitive 'Solution', 7 economica 125, 125-26 (1940) (quoting ViLFREDO pareto, manuel d'economie politique 233-234 (2d ed. 1927));
426. see Peter G. Klein, Economic Calculation and the Limits of Organization, 9 Rev. Austrian Econ. 3, 9 (1996) (discussing the response of "market socialism," which substituted a trial and error approach to resource allocation for the extensive calculations addressed by Pareto). Of course, much has changed since Pareto wrote that in 1927, and the computation problems he identified are less compelling today. Klein, supra, at 10 n.10 (recounting that Lange contended in 1970 that high speed computers resolved the calculation problem identified by Pareto).
427. F. A. Hayek, The Use of Knowledge in Society, 35 AMER. Econ. Rev. 519, 522-526 (1945) (describing the difficulties for central planning presented by tacit knowledge and changing conditions).
428. See Hayek, supra note 222;
429. Vaughn, supra note 220.
430. F. A. Hayek, The Constitution of Liberty 354-355 (1960).
431. Id. at 355.
432. Id. at 355. Elsewhere in The Constitution of Liberty, Hayek discusses the abstract nature of "true law," observing that "[T]he rules merely provide the framework within which the individual must move but within which the decisions are his.... They are instrumental, they are means put at his disposal, and they provide part of the data which, taken together with his knowledge of particular circumstances of time and place, he can use as the basis for his decision." Id. at 152.
433. Id. at 355 (encouraging the use of minimum standards or "performance codes").
434. F. A. Hayek, The Political Order of a Free People 41 (1979);
435. F. A. Hayek, Rules and Order 94-97, 124-26 (1973).
436. For an excellent concise summary and critique of Hayek's theory of law, see Posner, supra note 221, at 148-154
437. Tacit knowledge is highly context specific knowledge generated by subjective experience, which is difficult to formalize and communicate. See Andrew C. Inkpen & Adva Dinur, Knowledge Management Processes and International Joint Ventures, 9 org. Sci. 454, 456 (1998).
438. Polanyi, a leader in the study of tacit knowledge, defined it as "nonverbalizable, intuitive, and unarticulated." Id. Perhaps Louis "Satchmo" Armstrong provided the best definition in his response to a request that he explain the concept of jazz: '"Man, if you have to ask what it is, you'll never know."'
439. See Robert Burleigh & David Catrow, Who Said That?: Famous Americans Speak 38-39 (1997).
440. By contrast, explicit knowledge "is transmittable in formal, systematic language and may include explicit facts, axiomatic propositions, and symbols." Inkpen & Dinur, supra, at 456.
441. Hayek, supra note 223, at 521.
442. Even there, the analysis may significantly overstate the capacity of individual businesses.
443. See Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control, 22 Harv. Envtl. L. Rev. 103,114 (1998);
444. Wagner, supra note 122, at 94-99.
445. John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 colum. L. rev. 261, 267-268 (1991);
446. John D. Graham, The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens Under Section 112 of the Clean Air Act, 1985 Duke L.J. 100.
447. See George I. Kassinis, Location, Networks and Firm Environmental Management Practices, 44 J. Envtl. Plan. & Mgmt. 815, 816 (2001) (identifying barriers for small- and medium-sized enterprises);
448. Malloy, supra note 152, at 536, 567 (describing internal organizational barriers to technology identification and adopting in large firms).
449. That is not to say that the company will have the necessary technical know how or equipment in-house. It may be necessary for the company to hire additional personnel or retain third party consultants to collect the necessary information.
450. See Diane Liang Rulke et al., Sources of Managers' Knowledge of Organizational Capabilities, 82 Organizational Behav. & Hum. Decision processes 134, 137-138 (2000) (describing sources of information available to firm managers, including relational learning channels consisting of personal relationships with external parties, and non-relational channels such as trade magazines and trade association reports).
451. Joseph F. Bradley, The Role of Trade Associations and Professional Business Societies in America 4 (1965).
452. Louis Galambos, Competition & Cooperation: The Emergence of a National Trade Association 291-292 (1966).
453. Charles S. Mack, Lobbying and Government Relations 108 (1989).
454. Thomas A. Hemphill, Self-Regulating Industry Behavior: Antitrust Limitations and Trade Association Codes of Conduct, 11 J. Bus. ethics 915, 919 (1992);
455. Alison J. Kirby, Trade Associations as Information Exchange Mechanisms, 19 RAND J. econ. 138 (1988).
456. See Door and Hardware Institute, http://www.dhi.org/index.php (last visited Dec. 15, 2009));
457. Pa. and Del. Cleaner's Ass'n, http://www.pdclean.org/index.html (last visited Mar. 16, 2010).
458. See Kassinis, supra note 234, at 816-817 (intra and inter-sectorial exchange);
459. Kirby, supra note 240, at 138 (intra-sectorial exchange);
460. Marc Schneiberg & J. Rogers Hollingsworth, Can Transaction Cost Economics Explain Trade Associations?, in The Firm as a Nexus of Treaties 320, 323 (Masahiko Aoki et al. eds., 1990).
461. The information sharing function of trade associations has raised collusion concerns among anti-trust regulators and scholars. See Kirby, supra note 240, at 138.
462. Kirby, supra, note 240, at 138;
463. Xavier Vives, Trade Association Disclosure Rules, Incentives to Share Information, and Welfare, 21 Rand J. econ. 409, 409 (1990).
464. See Richard N. L. Andrews, Environmental Regulation and Business 'Self- Regulation', 31 Pol'y Sci. 177,183-184 (1998);
465. Kassinis, supra note 234, at 817.
466. See Leonard H. Lynn & Timothy J. McKeown, Organizing Business: Trade Associations in America and Japan 2-3 (1988);
467. Mack, supra note 239, at 108 ("[T]rade association participation can be a highly cost-effective means of achieving a company's public policy objectives.").
468. See Andrews, supra note 244, at 184, 192;
469. Andrea Revell & Robert Rutherfoord, UK Environmental Policy and the Small Firm: Broadening the Focus, 12 Bus. Strategy & Env't 26, 32 (2003) (discussing the role that trade association can play in providing technical assistance to small firms).
470. See Cary Coglianese, Business Interests and Information in Environmental Rulemaking, in Business and Environmental Policy 185, 188 (Michael E. Kraft & Sheldon Kamieniecki eds., 2007) (stating that businesses may conceal information to avoid costly regulation).
471. In addition, even where the trade association acts in good faith, placement of the information collection and evaluation function with it raises legitimacy issues regarding its role in the rule-making process. See Benjamin Cashore, Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority, 15 governance 503, 504-505 (2002).
472. See Peter Jay Sinsheimer, Fashioning a Greener Shade of Clean: Integrating Pollution Prevention into Public Policy-The Case of Professional Wet Cleaning (2009) (unpublished Ph.D. dissertation, University of California, Los Angeles).
473. For example, in the MACT rulemaking for the paper and pulp industry, EPA relied upon a voluntary survey conducted by the American Forest and Paper Association and the National Council of the Paper Industry for Air and Stream Improvement. Effluent Limitations Guidelines, Pretreatment Standards, and New
474. National Emission Standards for Hazardous Air Pollutants for Source Category; Pulp and Paper Production, 58 Fed. Reg. 66,078, 66,137 (Dec. 17, 1993) (to be codified at 40 C.F.R. pts. 63, 430;)
475. see also Coglianese, supra note 247, at 197-198 (EPA often consults with trade association staff prior to interviewing facility personnel).
476. See Clean Air Act, 42 U.S.C § 7414(a) (2006) (information submission and inspection authorities); Resource Conservation and Recovery Act, 42 U.S.C. § 6927(a) (2006).
477. For example, in developing the MACT standards for surface coating (i.e., painting) operations, the EPA began with a workshop, followed by a "screening survey" sent to approximately 3000 facilities, and a subsequent "detailed questionnaire" issued to 312 faculties. U.S. Envtl. Prot. Agency, National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Category: Miscellaneous Metal Parts and Products Surface Coating Operations-Technical Support Document 2-2, 8-4-8-9, (2002) [hereinafter EPA, Coating Operations];
478. Standards of Performance for New Stationary Sources; Asphalt Processing and Asphalt Roofing Manufacture, 45 Fed. Reg. 76,404 (Nov. 18, 1980) (to be codified at 40 C.F.R. pt. 60) ("A survey of asphalt roofing manufacturers and State, regional, and local agencies was conducted to find well-controlled asphalt roofing plants. As a result of this survey, 27 asphalt roofing plants were visited to select the best plants for emissions testing.");
479. National Emissions Standards for Hazardous Air Pollutants; Printing, Coating, and Dyeing of Fabrics and Other Textiles, 67 Fed. Reg. 46,028, 46,029-30 (July 11, 2002) (to be codified at 40 C.F.R. pt. 63) (establishing subcategories for Printing, Coating, and Dyeing of Fabrics MACT rulemaking based upon survey responses from the industry, facility site visit reports, and stakeholder meetings).
480. See Standards of Performance for New Stationary Sources; Volatile Organic Compound (VOC) Emissions from the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations, 55 Fed. Reg. 26,931, 26,940 (June 29, 1990) (to be codified at 40 C.F.R. pt. 60) (EPA revising proposal regarding batch distillation operations based on new technical data submitted in response to formally promulgated rule proposal).
481. EPA, Coating Operations, supra note 252, at 2-3. In some circumstances, industry may be quite proactive.
482. Coglianese, supra note 247, at 196 ("[EPA] had to learn the about industrial practices in over 150 different industries. EPA regulators needed vast amounts of information about manufacturing equipment and industrial operations in each sector-and in each of their numerous subcategories.").
483. Malloy, supra note 152, at 535.
484. See Nicholas A. Ashford, An Innovation-Based Strategy for a Sustainable Environment, in Innovation-Oriented Environmental Regulation: Theoretical Approach and Empducal Analysis (J. Hemmelskamp et al. eds., 2000) (discussing mandatory Technology Options Analysis);
485. Malloy, supra note 152, at 600-603 (calling for "tailored regulation" which takes into account features of the internal environment of the regulated firm).
486. Such intervention has been termed "management-based regulation" and in one form or another is widely used in environmental regulation. See Cary Coglianese & David Lazer, Management-Based Regulation: Prescribing Private Management to Achieve Public Goals, 37 law & Soc'y rev. 691 (2003);
487. see also EPA, developing your Stormwater Pollution Prevention Plan: A Guide for Construction Sites, 833r-06-044 (may 2007);
488. epa, facility response planning compliance Assistance Guide.
489. See Malloy & Sinsheimer, supra note 48, at 183.
490. Contra Costa County Cal., Industrial Safety Ordinance 98-148 (Dec. 4, 1998) [hereinafter ISO Ordinance];
491. Contra Costa Health Services Hazardous Materials Program, Industrial Safety Ordinance Annual Performance Review and Evaluation Report 3 (2004).
492. Timothy F. Malloy, Of Natmats, Terrorists, and Toxics: Regulatory Adaptation in a Changing World, 26 UCLA J. Envtl. L. & Pol. 93, 97 (2008).
493. ISO Ordinance, supra note 259, at § 450-8.016(D)(3). "Feasible" is defined as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." ISO Ordinance, supra note 259, at § 450-8.014(c).
494. Sinsheimer, supra note 249, at 198-230;
495. Malloy & Sinsheimer, supra note 48, at 230.
496. I acknowledge that I am engaging in my own construction activities regarding the dynamics of legal scholarship.
497. Rubin, supra note 16, at 1847-1848;
498. see also Elizabeth Chambliss, When Do Facts Persuade? Some Thoughts on the Market for "Empirical Legal Studies" 71 Law & contemp. Prob. 17, 27 n.74 (2008);
499. Richard O. Lempert, Empirical Results for Public Policy: With Examples from Family Law 5 J. Empirical Legal Stud. 907, 907-908 (2008).
500. See, e.g., Tracey E. George, An Empirical Study of Empirical Legal Scholarship: The Top Law Schools, 81 Ind. L.J. 141, 146 (2006);
501. Rubin, supra note 16, at 1847-1848;
502. Peter H. Schuck, Why Don't Law Professors Do More Empirical Research?, 39 J. Legal educ. 323, 329 (1989);
503. cf. Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L. Rev. 1, 18 (2002) (characterizing virtually all modern legal scholarship as empirical, albeit flawed).
504. See Lempert, supra note 264, at 908 (discussing the pitfalls of empirical research as compared to traditional normative work for the untenured law faculty).
505. Of course, this statement itself makes an empirical claim, the accuracy of which depends, in part, on the definition one uses for "empirical evidence." Some authors limit their use of the term to formal statistical or quantitative analysis.
506. See Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism, 2002 U. ILL. L. Rev. 819, 824-826
507. I use the term more broadly to include any data generated from observation, measurement or experimentation. See Epstein & King, supra note 265, at 2-3;
508. Gregory Mitchell, Empirical Legal Scholarship as Scientific Dialogue, 83 N.C. L. Rev. 167,198 (2004).
509. George, supra note 265, at 146.
510. See Stewart Macaulay, Contracts, New Legal Realism, and Improving the Navigation of The Yellow Submarine, 80 Tin.. L. rev. 1161, 1185-1186 (2006) (discussing use of empirical studies by legal scholars).
511. See Epstein & King, supra note 265;
512. Lempert, supra note 264.
513. See Lempert, supra note 264, at 915-922 (detailing issues associated with two policy-oriented empirical studies by sociologists).
514. Compare Episten & King, supra note 256 (discussing how the rules of inference used in social sciences should be adapted into legal scholarship)
515. with Frank Cross et al., Above the Rules: A Response to Epstein and King, 69 U. Cm. L. rev. 135, 135 (2002) (arguing that Epstein and King "violateD many of their own rules of inference" during their assault of legal scholarship).
516. See Stewart Macaulay, Contracts, New Legal Realism, and Improving the Navigation of the Yellow Submarine, 80 Tul. L. Rev. 1161, 1186 (2006) (discussing the pitfalls of such mining operations, and citing Jacqueline Macaulay, Some Barriers to Drawing Conclusions from Social Science Research (Jan. 1979) (unpublished manuscript, on file with the University of Wisconsin Law School, available at www.law.wisc.edu/facstaff/macaulay/papers/barriers.pdf) (discussing ten common problems to drawing conclusions).
517. See Russell Korobkin, Possibility and Plausibility in Law and Economics, 32 fla. St. U. L. Rev. 781, 786 (2005).
518. As Clint Eastwood rightly observed, "A man's got to know his limitations." magnum force (The Malpaso Campany 1973).
519. Thus, for example, economists and consumers of their work are vulnerable to criticism when they treat central assumptions of microeconomic theory such as rationality and complete information as fact.
520. See Mary Zey, Rational Choice Theory and Organizational Theory 87-113 (1998);
521. see also David M. Kreps, A Course in Microeconomic Theory 724-729 (1990).
522. See generally Richard K. Neumann, Jr. & Stefan H. Krieger, Empirical Inquiry Twenty-Five Years After The Lawyering Process, 10 clinical L. Rev. 349, 355 (2003) (explaining how lawyers take a persuasion mode to their work compared to scientists who attempt to learn as much as possible).
523. See Chambliss, supra note 264, at 26-28 (discussing the use of student edited articles as a ground to have articles published, regardless of relevance or credibility);
524. Epstein & King, supra note 265, at 9-11 (discussing lawyer's responsibility to produce work that is reliable, not just one-sided);
525. Korobkin, supra note 273, at 785 ("Legal scholarship seeks to provide policy guidance to lawmakers....")
526. But see Neumann & Krieger, supra note 275, at 385 ("What generates prestige in the legal academy is the doctrinal or theoretical article that causes other academics to say "Wow!" even if no judge, legislator, or other policy maker would care about it or even understand it.").
527. See David Luban, Difference Made Legal: The Court and Dr. King, 87 mich. L. Rev. 2152, 2154 (1989) ("Holmes was therefore wrong: The life of the law is neither logic nor experience, but narrative and the only partially civilized struggle for the power it conveys.");
528. Austin Sarat, Narrative Strategy and Death Penalty Advocacy, 31 Harv. C.R.-C.L. L. Rev. 353, 357 (1996);
529. see, e.g., Timothy A. Canova, Banking and Financial Reform at the Crossroads of the Neoliberal Contagion, 14 Am. U. InTl L. Rev. 1571, 1592-1594 (1999) (discussing use of legal reform narratives in the context of international monetary policies).
530. Rubin, supra note 16, at 1892-1894.
531. Epstein & King, supra note 265, at 9-10;
532. Lempert, supra note 264, at 922.
533. Model Rules of Prof'l Conduct R. 1.6 (2009).
534. See Jiirgen Beckmann & Julius Kuhl, Altering Information to Gain Action Control: Functional Aspects of Human Information Processing in Decision Making, 18 J. Res. Personality 224, 226-227 (1984) (affecting the search for information and skewing the evaluation of the collected information);
535. Ziva Kunda, The Case for Motivated Reasoning, 108 Psychol. Bull. 480 (1990) (surveying the literature);
536. Henry Montgomery, Towards a Perspective Theory of Decision Making and Judgment, 87 Acta psychologica 155, 168-169 (1994) (suggesting that individuals adjust the evaluation process so that the favored alternative appears superior to other alternatives on at least one attribute and at least equal to them on other attributes).
537. Researchers have identified this tendency in various related phenomena such as motivated reasoning, biased pre-decision processing, and bidirectional processing
538. See Timothy f. Malloy, Disclosure Stories, 32 fla. St. U. L. Rev. 617, 651-652 (2005).
539. See, e.g., model rules of ProfI, Conduct R. 3.3(a)(2) (2009) (requiring advocates to disclose to the court "legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel").
540. See Rubin, supra note 16, at 1896 (suggesting that legal scholars "make more extensive, but more controlled use of empirical data").
541. For example, in his classic article on administrative law, Professor Stewart expressly acknowledged that common assumptions about the efficiency of firms may be overstated, but then dismissed that point with minimal discussion.
542. See Stewart, supra note 5, at 1281 n.76 ("Because large firms 'satisfice' and do not engage in ruthless and continuing cost minimization, regulatory controls may trigger 'search' efforts that tap neglected opportunities. But such effects are presumably random, and their magnitude quite uncertain.");
543. see also Neil Gunningham & Darren Sinclair, Regulatory Pluralism: Designing Policy Mixes for Environmental Protection, 21 Law & Pol'y 49, 60 (1999) (stating that increased self regulation can "stimulate innovative activity").
544. Korobkin, supra note 273, at 791.
545. Professor Korobkin did not define "plausibility" or provide criteria for its measurement. For examples of such criteria, see harmon R. holcomb, Sociobiology, sex, and science 98-101 (David Edward Shane ed., 1993) (describing five criteria for plausibility).
546. Holcomb views plausibility as a threshold hurdle to be overcome before an explanatory story is worthy of more rigorous hypothesis testing. See Rebecca A. Rademeyer et al., Tips and Tricks in Designing Management Procedures, 64 ICES J. Marine Sci. 618, 625 (2007) ("[Plausibility is] the likelihood of a scenario considered in simulation trials representing reality relative to other scenarios also under consideration....").
547. See Jonathan Klick & Gregory Mitchell, Government Regulation of Irrationality: Moral and Cognitive Hazards, 90 Minn. L. Rev. 1620, 1660-1661 (2006).
548. See D. Kolody et al., Salvaged Pearls: Lessons Learned from a Floundering Attempt to Develop a Management Procedure for Southern Bluefin Tuna, 94 fisheries res. 339, 346 (2008) (discussing process by which competing management assumption were given weights based on relative plausibility);
549. Comm. on Ecosystem Effects of Fishing, Ocean Studies Bd., Dynamic Changes in Marine Ecosystems: Fishing, Food Webs, and Future Options 78-79 (2006) ("The goal of the analytical exercise is not to build models that are able to predict what will happen, but to build a series of models and hypotheses of what may happen and to assign relative plausibilities to them so that tradeoffs between conflicting management objectives will be explicit when decisions are made.").
550. See supra Part III(B) and text accompanying notes 167-171
551. See supra Part IV.
552. See id.
553. Douglas G. Baird et al., Game Theory and the Law 11 (1994).
554. Thomas A. Barthold, Issues in the Design of Environmental Excise Taxes, 8 J. econ. Persp. 133, 135 (1994).
555. Such Pigouvian taxes would be set so as to impose the social cost of the activity on the polluter. Malloy & Sinsheimer, supra note 48, at 219.
556. See supra text accompanying footnotes 204-06;
557. Richard P. Rumelt, Inertia and Transformation 6-15 (INSEAD Working Paper No. 94/62/SM, 1994) (discussing a range of causes of organizational inertia), abstract available at, http://www.insead.edu/facultyresearch/research/details- papers.cfm?id=12853;
558. see also Stephen J. DeCanio, The Efficiency Paradox: Bureaucratic and Organizational Barriers to Profitable Energy-Saving Investments, 26 energy Pol"y 441 (1998) (discussing the "efficiency paradox," in which firms reject profitable energy-saving investments due to organizational factors).
559. See Ashford, supra note 257, at 97-98 (discussing technology options analysis);
560. Malloy & Sinsheimer, supra note 48, at 217-218 (describing the nature and purpose of demonstration projects).