In other words, when rules multiply, does the quantity of rules affect the quality of the legal system itself. Instead, it should focus on building flexible structures within the administrative system itself to take advantage of the systemic nature of large rule-based regimes.
UNDERSTANDING REGULATORY ACCRETION
We believe that the reason this relentless proliferation of rules deserves serious consideration is the effect it has on the system of rules. Our concern is whether the number of rules in the system affects the operation of the system, regardless of the content of the rules.
M ETRICS
Therefore, our working definition of regulatory increase is “the gradual increase in the number of discrete regulatory compliance requirements.” Of course, even with this metric it is difficult to measure the number of lines.
GEOLOGY
Regulatory Erosion
The idea of permanent agencies of experts to take care of updating the law long predates Weber and Pound. Disruption of one area of the economy may itself produce the need for more regulation elsewhere.
Regulatory Accretion
In that analysis, more rules—and more specific examples of how they apply—may actually be a good thing." Alexis de Tocqueville noted that the American approach to governance is to "[i]dentify a problem and then cast a law on that.” Manning, supra note 13, at 772.
PERCEPTION
EPA's Root Cause Study
34; conflict of permit conditions" and "implementation time frames are too short."'20 While these are certainly part of the causal chain of non-compliance, they are hardly the main causes. Admittedly mistakes do happen; however , according to Root Because of the results, fraud is one of the most important causes of non-compliance. The CMA provided its members with a kind of continuing education in compliance, making them extremely well-versed in the details and nuances of the regulatory scheme.") .
The program was limited to companies that: (i) had a good compliance history and sophisticated environmental management systems; (ii) regularly applied environmental auditing; (iii) were willing to share their expertise with others; and (iv) would involve both employees and the public in their environmental management systems. The 12 private facilities selected for the program's first pilot phase were owned by large, sophisticated organizations with significant experience in environmental compliance."); id.
Perceptions Survey
Third, getting to the heart of the matter, we asked respondents to identify sources of inconsistency. High compliance efforts leading to high levels of compliance indicate high compliance of the rule system. providing a thorough discussion of the extensive guidance documents (and even software) that implement these considerations).
34; Prosecutorial discretion leads to significant differences in what is selected for enforcement and in the nature of the enforcement.
A THEORY OF REGULATORY ACCRETION AS A MECHANISM OF
EFFORT BURDENS AND INFORMATION BURDENS
Even when, consistent with the assumptions of the Regulatory Realm, each individual problem is relatively easy to solve, clustering problems, simply because there are more problems, necessarily adds two dimensions of compliance burden to the problem solver. Even if each problem is as easy as 2 + 2, the exercise of solving the aggregate of the problems is a burden. The issue of effort load mainly boils down to how much effort we should expect from the troubleshooter.
Data may be subject to time delay fluctuations, bottlenecks, and other costs that are not solely related to the troubleshooter's efforts.
SYSTEM BURDENS
The Problem of Conflicting Constraints
The diversity of the components that make up the "macroscopic collection" of a system is the backbone of complex system behavior. Indeed, in the conventional view, the very point of legal rules is to take advantage of the expected feedback and feedback between the rules and their targeted social problems. EPA has explained that "[o]ne of the primary goals of an environmental enforcement program is to modify human behavior so that environmental requirements are met." PRINCIPLES OF ENVIRONMENTAL ENFORCEMENT, supra note 145, at 2-1.
For example, the EPA defines "deterrence" as "motivating regulated entities to comply with environmental laws and regulations by considering the government-imposed consequences of violating those laws or regulations." CORPORATE ENVIRONMENTAL PERFORMANCE, supra note 141, at 2.
Emergence of System-Dominated Behavior
34; Increasing levels of the complexity hierarchy demonstrate emergent properties at each level, which appear to be unpredictable from the properties of the constituent parts. Such optimization can be achieved only by recognizing the emergent features of the system and working at their level. human culture, human behavior, technology, and the environment interact so unpredictably that no rational system can ever predict the outcomes of the interaction or resolve their unintended consequences—especially in the long run"); Jay D.
To make this concept more concrete, consider the example of the Amoco refinery in Yorktown, Virginia.
Path Dependence
In the early 1990s, Amoco and EPA launched a joint investigation into the refinery to assess the role of EPA regulations in promoting pollution prevention.9 9 Both EPA and Amoco agreed that air emissions of benzene were a major problem goods. Given this focus on compliance (analogous to our 1,000 compliance staff each focused on a particular regulatory environment), it remains unclear why compliance staff would be concerned about the company's overall environmental performance versus their own individual performance outcomes. work performance. As a manifestation of the combined effects of conflicting constraints and emergence, the path direction of a complex system is extremely sensitive to the environmental conditions in which the system exists.
In retrospect, while never using the term or any perspective of complex systems theory, one of the earliest and still most profound observations of path dependence in law is found in Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARv.
Nonlinearity and the Bottom Line: Unpredictability
In short, the addition of components to a complex system not only changes the quantity of components, but also the quality of the system in terms of reduced predictability and stability.210. If climate change causes a large rise in sea level, the main immediate cause will be the collapse of the West Antarctic Ice Sheet [WAIS]. Cohen and Stewart clearly explain that the key to understanding why emergence and other system effects occur lies in the number of system components and their interaction - with increasing numbers of system components, eventually the sum effect of the interactions between the components becomes a dominant feature of the system.
Furthermore, based on the findings of complex system theory discussed in this section, an agent of indeterminacy in the regulatory system should be the increase in the number of system rule components.
SYSTEM MECHANICS
THE IMPLICATIONS OF ACCRETION FOR REGULATORY LEGITIMACY
In the final analysis, therefore, the reason to care about accretion is that it stands in the way of compliance and ultimately environmental protection. For example, a survey of general counsel at major corporations in the early 1970s found that two-thirds believed their companies had violated environmental laws at least some of the time in the previous year. This broadly agrees with Wes Magat and Kip Viscusi's 1990 study of Clean Water Act compliance in the paper industry, which estimated a 75 percent compliance rate with effluent limitations.
And however troubling these effects may be for regulated entities, in the long run they may be far more problematic for regulators, as they go to the core of the legitimacy of the administrative state itself.
THE "COMPLIABILITY" FACTOR
34; frustrating and demoralizing for company staff." Many of the expository responses we received in our survey revealed a deep-seated resentment of low compliance.223 And a significant number of responses saw non-compliance as just another business risk treat what needs to be managed.2 24. I think it is almost humanly impossible to keep track of everything, especially when many agencies use 'informal guidance', often unpublished, to set new requirements or interpretations about companies. 34;When the entire universe of federal, state, local, and tribal laws is considered, compliance with all is nearly impossible."
Knowing that they can never reach 100%, most companies just do their best and accept that they will be faced with an unknown, unfathomable requirement.”
THE "PAYOFF" FACTOR
ADAPTING TO REGULATORY ACCRETION: MOZART VS. THE RED
The factors we have identified as leading to growth – the growth of government matching the growth of society, the need for regulation to keep pace with changes in the regulated community, and the political economy of rules – are all deep-rooted phenomena of administrative organization. stands. The challenge, then, is to adapt to the effects of accretion, and especially its effect on rule compatibility and payoff. Proposals intended to address conventional criticisms of the rules in the administrative state have taken four paths toward improving compatibility and disbursement. Two of these are conventional reform responses and two of them are more innovative.
The second approach is, ironically, to respond to the uncertainty system effects associated with the functioning of the rules by adding more rules.
MESSING WITH MOZART
They have proposed that agencies "must demonstrate, to the extent possible or reasonable, that any offset risks created by a rule are justified or outweighed by the reductions in risk expected to result from the regulation." Id. Many commentators embrace explicit agency waivers of published rules as a means of introducing flexibility to agencies' rigid adherence to previously published rules."). Second BIG wildcard counts violations - number of violations based on the same conduct or event, number of times/days occurred, etc. "
Additionally, state and federal regulators take so long to address violations that all relevant factors become obsolete and the facility moves on."
RUNNING WITH THE RED QUEEN
The Regulators
We and many others have recognized the limitations of using market instruments to achieve environmental policy goals.2 6 2 The uncertainty inherent in any market-based instrument can become unbearable when the protection of vital environmental qualities is at stake.263 Building smoothly functioning markets or setting pollution taxes that produce the desired level of behavior is not. Implementing Economic Theory in the Real World, 26 ENVTL POL'Y & L. The need for even greater reliance in general on market forces to achieve more efficient protection of environmental factors has been strongly argued by many commentators. THE GEORGETOWN LAW JOURNAL [Vol. 91:757 flows within the system for allocating resources among companies.27222 As Tim Malloy notes, "differences between companies in the way information moves freely between divisions cause companies to respond very differently to identical regulatory opportunities."2 7 3 The success of Some reflexive legislative programs suggest that information-based tools can improve access to and use of information by all businesses, so that compliance becomes possible and the norm.274.
Because the tools of reflexive laws rely for their operation on systemic effects—the feedbacks and loops created by the flow of information—it is difficult, as with any system, to predict the extent to which additional information loads will be offset by reduced system loads. 276 And the metric within which information is packaged in an environmental context is not always as self-evident as the price mechanism in economic markets.27 7 What would be a unit of information, for example.
The Regulated
A useful overview of EMSs is again found in Stewart, supra note 8, at 143-45. Again, our purpose here is not to survey and compare the intricacies of EMSs, but rather to point to the growing interest and development of EMSs as indicative of the growing need for systems-based solutions to the problem of regulatory addition. Regulatory growth, over time, has changed the quality of the regulatory system, with one manifestation being the increase in the system's burden for compliance. The message of the move towards EMSs may not simply be that firms must adapt, but that the regulatory system as a whole must co-evolve with firm behavior in such a way as to promote such adaptation.
We have developed a systems-based model to understand how increasing the number of rules in the administrative state burdens both the ability of the regulated community to comply and the ability of the administrative state to demonstrate its winning value.
