The Evolution of the Legal Process School's "Institutional Competence" Theme: Unintended Consequences for Environmental Law

Rudd, Jeffrey
November 2006
Ecology Law Quarterly;2006, Vol. 33 Issue 4, p1045
Academic Journal
The legal process school's "institutional competence" idea produced administrative standards of technical expertise and political independence that evolved to undermine Environmental Era visions of a fundamental normative shift in the exercise of political authority over public policy. Supreme Court decisions in Overton Park. Vermont Yankee and Baltimore Gas expanded agencies' authority over the role of science in environmental law to the detriment of normative concerns. The Chadha-Chevron duo produced a substantial, unintended shift in the institutional competence theme's development in law by insulating agencies' legislative power from meaningful deliberative adjustment. Legal process themes of efficiency and rational order combined with agencies' broad authority to support the integration of economics into the environmental regulatory system's institutional structure. The institutional competence theme's substantive and structural foundations--efficiency, expertise, and independence--evolved to support the institutional conversion of environmental law into a regulatory architecture dominated by economic discourse.


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