The New "Contractarian" Paradigm in Environmental Regulation
David A. Dana | 2000 U. Ill. L. Rev.
In response to criticism of the traditional command-and-control approach to environmental regulation, state and federal regulators have created a "contractarian" approach. More specifically, contrac-tarian environmental regulation consists of an arrangement in which regulators agree not to enforce various laws applicable to regulated entities in exchange for the entities' agreements to fulfill additional obligations not required by existing law. In this article, Professor Dana argues that the contractarian ap-proach stems from two factors: political disagreements that make the amendment of existing environmental laws difficult and the complex-ity of environmental problems, which makes a decentralized ap-proach to regulation desirable. He then discusses four recent regula-tory reform initiatives that both illustrate how contractarian regulation works and explicate the difference between it and com-mand-and-control regulation. Professor Dana argues that the con-tractarian approach, as compared to its command-and-control coun-terpart, has potential costs as well: decreased participation in the regulatory process by environmental advocacy groups and stasis in the overall regulatory system. Finally, Professor Dana contends that Congress must address any shortcomings of the contractarian ap-proach and strike a balance between the approach's enhancement of localized environmental regulation, on the one hand, and its potential to cause regulatory entrenchment and decreased public participation, on the other.
* Professor of Law, Northwestern University School of Law and Faculty Fellow, Institute of Policy Research, Northwestern University.