Daniel A Farber, The Implementation Gap in Environmental Law, 16 J. Korean L. 3 (2016)
The gap between legislative expectations and actual outcomes is of central importance to the legal regime. Much of the work of environmental lawyers involves compliance or enforcement efforts, not rulemaking. Even in terms of the issuance of environmental rules, there can be substantial deviations between what the lawmaker expected and what actually takes place.
This Article discusses two types of gaps between the statutory design and actual implementation. In some situations, something that is legally mandated simply fails to happen. Deadlines are missed, standards are ignored or fudged, or enforcement efforts misfire. The result is incomplete implementation, falling short of the statutory mandate. For this reason, environmental laws often fail to fully achieve the intended outcome. Part II of the Article is devoted to understanding the scope of this implementation shortfall and considering possible ways of controlling it.
Part III turns to a different aspect of implementation: the ability of agencies and even regulated parties to devise new methods of achieving statutory goals that were not anticipated by the legislature. For instance, if the designated means of reducing emissions proves impractical, the agency may shift to an alternative mechanism. More boldly, the agency may use statutory language designed for one problem (conventional air pollution) to address another (climate change). This type of creative implementation is different in spirit than the implementation shortfalls discussed earlier. What they have in common is that both of them differ from the expectations by the statute.
Mismatches between implementation and statutes produce useful results, but risk doing damage to our concept of the rule of law. Widespread noncompliance with formally binding requirements undermines the concept that good citizens -- and even more so, governmental officials - obey the law. For this reason, although it may be socially beneficial in some of its guises, creative implementation needs to be held within a reasonable interpretation of the statutory language.