Dynamic Governance in Theory and Application, Part I

This Article is the first of two that grapple with a central policy challenge facing the administrative state: how to govern in times of dynamic change when challenges, and opportunities to address them, are both shifting rapidly. It suggests that, conceptually, process design that is likely to produce effective regulatory governance requires attention to three key distinct but interrelated variables: (1) the actors who are or should be involved in program implementation in different capacities; (2) the mechanisms (legal and otherwise) available to promote good governance; and (3) the tools available to advance desired results. To demonstrate the value of this conceptual framework, this Article assesses the federal Environmental Protection Agency’s (“EPA”) ongoing experiment in transforming its approach to regulatory enforcement. It explores the reasons for EPA’s judgment that a dramatically altered regulatory landscape requires it to transform its enforcement strategies. It then analyzes what EPA has characterized as a new enforcement and compliance paradigm, which the agency calls Next Generation Compliance. This Article demonstrates how use of our conceptual framework to systematically consider the roles of the relevant actors, mechanisms, and tools, individually and in combination with one another, helps to identify beneficial regulatory options that alternative frameworks like the one EPA has used in designing Next Generation Compliance may overlook. The companion Article will further document how our framework will help promote more systematic regulatory design when policymakers believe that a transformation or a new paradigm is needed, such as the situation EPA faces in environmental enforcement. Our analysis underscores the value of our three-pronged conceptual framework in areas that extend well beyond environmental regulation.