The Limits of Collaborative Governance: Homeland Security and Environmental Protection at U.S. Ports
By Kerry E. Rodgers
ABSTRACT
Scholars have proposed various models for improving environmental governance that increase reliance on public-private collaboration. These collaborative models are optimistic that engaging public agencies, the private and non-profit sectors, and members of the public in open discussions of regulatory problems within new institutions designed to facilitate problem-solving will lead to more effective and efficient solutions than traditional U.S. administrative decision-making. This article explores the limitations of these models in an emerging cross-regulatory context: the intersection of homeland security and environmental protection. Cross-regulatory problems, which do not fit neatly within one area of law, pose difficult challenges for governance because different statutes address them and regulatory authorities with diverse missions and organizations often share responsibility for implementing them.
To explore the dynamics between collaborative models and traditional regulation, this article evaluates emergency planning for complex facilities located at U.S. ports - marine terminals, chemical facilities, and refineries where terrorist attacks, industrial accidents, or natural disasters could cause environmental catastrophes - in light of six elements I have derived from proposed models for collaborative environmental governance. This article applies those elements to the emergency planning regime for U.S. port facilities and finds that these prerequisites for successful collaboration often are missing where homeland security and environmental protection requirements intersect. In particular, the emergency planning regime lacks widely available information and the opportunities for stakeholder participation in decisions that scholars have regarded as essential to successful collaboration. As a result, these models of collaborative environmental governance can apply to this cross-regulatory context only at the cost of compromising accountability and other democratic values. This article concludes with lessons for collaborative models of administrative law.
Scholars have proposed various models for improving environmental governance that increase reliance on public-private collaboration. These collaborative models are optimistic that engaging public agencies, the private and non-profit sectors, and members of the public in open discussions of regulatory problems within new institutions designed to facilitate problem-solving will lead to more effective and efficient solutions than traditional U.S. administrative decision-making. This article explores the limitations of these models in an emerging cross-regulatory context: the intersection of homeland security and environmental protection. Cross-regulatory problems, which do not fit neatly within one area of law, pose difficult challenges for governance because different statutes address them and regulatory authorities with diverse missions and organizations often share responsibility for implementing them.
To explore the dynamics between collaborative models and traditional regulation, this article evaluates emergency planning for complex facilities located at U.S. ports - marine terminals, chemical facilities, and refineries where terrorist attacks, industrial accidents, or natural disasters could cause environmental catastrophes - in light of six elements I have derived from proposed models for collaborative environmental governance. This article applies those elements to the emergency planning regime for U.S. port facilities and finds that these prerequisites for successful collaboration often are missing where homeland security and environmental protection requirements intersect. In particular, the emergency planning regime lacks widely available information and the opportunities for stakeholder participation in decisions that scholars have regarded as essential to successful collaboration. As a result, these models of collaborative environmental governance can apply to this cross-regulatory context only at the cost of compromising accountability and other democratic values. This article concludes with lessons for collaborative models of administrative law.