Collaborative Environmental Law: Pro and Con

University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship 12-21-2007 Debate: Collaborative Environmental Law: Pro and Con Eric W. Orts University of Pennsylvania, Cary Coglianese University of Pennsylvania, Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the Environmental Law Commons, Environmental Policy Commons, Law and Society Commons, and the Politics Commons Recommended Citation Orts, Eric W. and Coglianese, Cary, "Debate: Collaborative Environmental Law: Pro and Con" (2007). Faculty Scholarship. Paper 190. http://scholarship.law.upenn.edu/faculty_scholarship/190 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact . DEBATE COLLABORATIVE ENVIRONMENTAL LAW: PRO AND CON In this thoughtful and intricate cross-disciplinary debate, Professors Eric W. Orts, of Penn’s Wharton School, and Cary Coglianese, of Penn’s Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context. It is no exaggeration to say that each year the world grows ever more aware of the nature of the environmental problems we face, and yet critical policy solutions continue to remain beyond the grasp of even the most interested parties. Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. He argues that “the view that centralized governments acting alone will arrive at ‘correct’ solutions . . . begs the question of incommensurable values and the various people who hold them.” Professor Orts’s skepticism of the independence of political and other governmental actors in a world in which “lobbyists and campaign financiers . . . play large and often decisive roles in th[e public policymaking] process” leads him to conclude that “in many situations, it makes better sense to trust less in the traditional centralized process of environmental lawmaking and to consider more frequently the alternative of engaging in collaborative environmental law.” Professor Coglianese responds that collaborative environmental law is “not at all feasible for making real-world decisions about major environmental problems,” and that this policymaking approach “introduces new types of predictable and serious problems.” He cautions that “[t]he issue is not whether policymakers should reach out to affected interests and members of the public. Rather, the issue lies with the purpose of public engagement.” Professor Coglianese contends that, by making agreement the primary aim of policymaking, collaborative environmental law actually conveys a willingness to give in to interested parties in pursuit of the “holy grail” of consensus. Instead, Professor Coglianese urges that public “engagement should be used with another goal in mind . . . mak[ing] the best possible decision [to] . . . best advance[] the overall public interest.” (289) 290 UNIVERSITY OF PENNSYLVANIA LAW REVIEW PENNumbra [Vol. 156: 289 OPENING STATEMENT The Case for Collaborative Environmental Law Eric W. Orts † A recent suggestion put forward by a number of academics has been to consider one or another version of what I will call “collaborative environmental law” to address different kinds of environmental problems. Different labels have been used to describe this approach, including an emphasis on contracting, negotiating, and bargaining as methods of “doing” environmental law. I will use the term “collaborative environmental law” to refer to a general form of lawmaking that adopts a deliberative and participatory process designed to include not only government officials (and their designated scientific and economic experts), but also the representatives of a range of interests in civil society who will be affected by legal rules and decisions concerning a specific environmental problem, including businesses, citizens’ groups, and nongovernmental organizations. The principal aim of such a collaborative process is to arrive at a negotiated deal or agreement about how to treat a particular environmental problem in its specific context. My general claim is that this approach can work well for a large number of modern environmental problems. I do not claim that collaborative environmental law should replace traditional environmental law as the best approach to all problem contexts and situations. But I argue that this approach makes sense for at least some kinds of environmental problems in contrast to more traditional methods of lawmaking—namely, common law development, federal or state legislation, international treaties, and formal or informal administrative regulation. Allow me first to argue against a few epistemological assumptions that some policymakers and academics make about the “best” way to do environmental law. These assumptions tend to reinforce traditional approaches. Many academics harbor a false confidence in the superiority of modern science and economics to provide concrete, generalized answers to most, if not all, environmental policy questions. I believe instead that in many circumstances, there are no “right answers” to be given by science or economics to many specific environmental problems. As a result, a centralized lawmaking ap† Guardsmark Professor, Legal Studies and Business Ethics Department, The Wharton School, University of Pennsylvania. 2007] COLLABORATIVE ENVIRONMENTAL LAW 291 proach directed by allegedly “expert” government officials cannot be relied upon to yield objectively correct solutions. Decentralized approaches to environmental law would conform more closely to the descriptive and normative complexity of the problems. Science and economics are helpful to diagnose some important dimensions of issues. For example, science can provide reliable evidence that exposure to particular chemicals in sufficient doses is likely to prove harmful to human health (as well as to other animals and plants). In other words, scientific methods estimate and quantify environmental risks. But science cannot provide answers to questions about how much risk is too much to impose on a particular population in specific situations. Environmental risks are instead routinely balanced against other considerations, such as convenience, voluntariness of the assumption of the risk, and economic values. Similarly, economic analysis can provide useful information about how much a proposed environmental solution or prophylactic measure may cost, as well as an approximation of some of the benefits of reducing environmental pollution or other risks. But economic analysis cannot capture all of the values relevant to a particular environmental choice. When economics attempts to capture these noneconomic value (...truncated)