Environmental Deliberative Democracy and the Search for Administrative Legitimacy: A Legal, Positivism Approach

Abstract

The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural deficiencies of the administrative state as an environmental lawmaking institution. More importantly, legal positivism can be used to determine which changes to agency practice and procedure-of the many scholarly proposals to do so-would most likely be accepted by the U.S. legal system as a means to correct these deficiencies. To do so, however, American legal positivists must overcome their obsession with the U.S. Constitution as the measure of legal legitimacy in the American system. Instead, legitimacy of the environmental administrative state ultimately relies on fashioning rulemaking procedures that address American's innate distrust of official power The view of a reformed regulatory state presented in this Article is one where regulators continue to function as the technical and scientific experts, and in making policy determinations weigh the expert knowledge with the informed opinion of electorate and peer officials in the political branches of our government.