Debate: Collaberative Environmental Law


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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.

Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. 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.” 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.”

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