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The Law and Economics of Environmental Information as Regulation

July 2001

Citation: ELR 10773

Author: David W. Case

I. Introduction

Since 1970, "command-and-control" has been the predominate form of regulation used to implement environmental protection policy in the United States.1 This regulatory model is credited with significant successes in achieving improved environmental performance by industry during this period.2 Nonetheless, many environmental stakeholders believe that traditional regulatory approaches have reached a point of significantly diminishing returns. For significant additional progress in environmental protection to be obtained, traditional approaches should be reexamined and new approaches considered.3 Thus, substantial public and private sector effort and resources have been invested over the past several years in developing alternative policy tools to supplement or, where appropriate, replace traditional regulation.4 The goal is to seek more flexible and effective methods of obtaining greater environmental protection at lower cost to government and the regulated community alike.5

During this period, information disclosure has emerged as a key component ofstrategies to promote more effective, less costly alternatives to command-and-control regulation. A number of consensus-building forums, expert panels, and policy reports argue that public distribution of information can serve as an effective policy tool for driving improvements in environmental performance.6 Indeed, in recent [31 ELR 10774] years, the U.S. Environmental Protection Agency (EPA) has established expanded public environmental information disclosure as one of 10 strategic, long-term goals in furtherance of the Agency's mission to protect human health and the environment.7

The author is a Research Associate and Bridgestone/Firestone Doctoral Fellow, Vanderbilt Center for Environmental Management Studies (VCEMS). VCEMS is an interdisciplinary research center jointly led by the Vanderbilt Institute for Public Policy Studies, the School of Engineering, the Owen Graduate School of Management, and the School of Law. Mr. Case received his B.A. 1985, J.D. 1988, University of Mississippi; LL.M. 1993, Columbia University; Ph.D. candidate (ABD), Vanderbilt University. The author will be a Visiting Assistant Professor of Law at the University of Memphis, Cecil C. Humphreys School of Law, during the 2001-2002 academic year. The author gratefully acknowledges the comments of Mark Cohen and Cliff Russell on an earlier draft of this Article. However, all errors are the author's sole responsibility.

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