An Alternative to Ready, Fire, Aim

Abstract

The turbulence of the environmental debate over the last decade suggests that the command and control system may not provide viable solutions to the remaining environmental problems. The incrementalism that has characterized environmental reform efforts of the last decade is certainly understandable: the environmental regulatory system is critical to the future of environmental health and safety, enormously expensive, and an important role of government in our democratic system. Reform efforts that threaten to undermine the environmental gains, increase economic impacts, or upset important constituencies therefore meet with substantial skepticism. Yet the threads of a genuine reconceptualization of environmental law are beginning to emerge. The importance of environmental outcomes or performance indicators is becoming clear, as is the potential democracy benefit of a debate and decisions about those outcomes. Despite real gaps, the growth in data collection and ecological understanding in the last twenty-five years, as well as the development of a floor of BAT and other requirements, may provide both the means to assess and to debate desired environmental outcomes, and the means to ensure that existing environmental protections will not be swept away before the efficacy of substitutes is clear. The Dutch experience suggests that incremental reform may not be the only, or even the best, way to achieve the potential environmental, economic, and democracy benefits of environmental laws. Although the differences between the Dutch and American systems and the feasibility of establishing an ambient conditions-based system, in particular, raise difficult questions, the three-level Framework Approach may provide a conceptual design that will lead us to ask new questions about environmental law reform and ultimately to re-establish the missing link between environmental outcomes and environmental law.