2 Colum. J. Eur. L. 589 (1996)
reviewed by Peter L. Lindseth. Associate in Law, Columbia University School of Law; J.D. Cornell; Ph.D. candidate (history) Columbia.
COMPARING ADMINISTRATIVE STATES: SUSAN ROSE-ACKERMAN AND THE LIMITS OF PUBLIC LAW IN GERMANY AND THE UNITED STATES
Susan Rose-Ackerman’s recent comparative study of German and American environmental policy, Controlling Environmental Policy: The Limits of Public Law in Germany and the United States, reflects a persistent intellectual concern among those who study the modem administrative state. One knowledgeable observer, commenting on Weber, called this a concern with “the possibilities and limitations of political democracy in an industrialized and bureaucratized society.”
In one sense, the aim of Controlling Environmental Policy is simply policy- analytic, to identify a number of substantive flaws that plague environmental regulation in both countries. The book’s main focus, however, is arguably on a much larger issue: the nature of modem democracy and the role that public law may play in achieving it. “Environmental policy illustrates,” Prof. Rose-Ackerman writes, “the difficulties that democracies experience in reconciling technocratic knowledge with the concerns of ordinary citizens.” (p.120) The legal challenge, in her view, is to make “democratic values operational in modem states where hierarchy and expertise cannot be avoided.” (p.1)
The “central tension” that Prof. Rose-Ackerman argues must be resolved is between technical competence and democratic legitimacy. (p.121) This tension is of course not new. In all major industrialized countries in this century, the administrative sphere has come to possess extensive normative powers to regulate society, which has permitted the modem state to become, in addition to being a phenomenal consumer and redistributor of material resources, a producer of legal norms on a scale far surpassing anything envisaged before. The nature of modem statutes and the relative decline of legislatures as policymaking bodies have been critical to this expansion of administrative power. In pursuing state intervention into the economic, social, and more recently environmental domains, legislators have often limited themselves to defining goals to be achieved rather than the means of achieving them, thus leaving significant discretion to those charged with statutory implementation. Delegation of legislative power to administrative bodies (and the concomitant proliferation of the latter) is often justified by the purported lack of legislative time and expertise to spell out detailed statutory policies, particularly in technically-demanding areas like the environment. As Prof. Rose-Ackerman puts it: “Bureaucratic policy-making is the inevitable consequence of the complex problems that face the modem state.” (p.3)
The bureaucracy’s power also stems, however, from what might be termed the “cultural” dimension of the modem administrative state: the epistemological distinction between the proper realm of politics belonging to representative institutions, and that of purportedly “non-political” expertise (scientific, economic, financial, or organizational) belonging to a separate, “administrative” sphere. The perceived distinction between politics and expertise is implicit in any delegation of lawmaking authority away from representative political institutions to administrative or “expert” bodies. Over the course of the middle third of this century particularly, technocrats and their political allies sought to create an institutional space within which the lessons of science and expertise could be applied in relative freedom from parliamentary and party interference. A judicial variation on this distinction – between “law” and “policy” – further reflected the quest for autonomy of the administrative sphere: in theory, courts were to refrain from interfering with bureaucratic policymaking unless a clear question of legality was presented.
The effort to create structures of government reflecting a redefined boundary between law, politics and administration was essential to the institutionalization of bureaucratic power in the decades after the Second World War. Although the aim was to “depoliticize” policymaking, the result was much less a transformation of political questions into technical ones than their “displacement” into the administrative realm without altering their true nature. The difficult questions of balancing competing interests, allocating scarce resources, and choosing among potentially contradictory values continued to present themselves, albeit in regulatory rather than legislative form.
Prof. Rose-Ackerman sees this phenomenon clearly in the regulatory politics of both Germany and the United States. However, she finds that the German system of environmental regulation, purportedly in contrast with the United States, is based on “the assumption that a sharp distinction between science and politics is possible.” (p.69) Although German procedures are often informal, complex and may vary according to subject-matter, Prof. Rose-Ackerman discerns a simple basic structure involving two steps. The first gives precedence to technical, scientific concerns, by delegating the initial formulation of policy to public and private norm-setting organizations and scientific advisory committees, with little formal opportunity for outside groups to participate.9 The second step
brings to bear political considerations via Bund-Lander working groups and ultimately review and decision by cabinet ministers, who are in turn responsible before the Bundestag (again no formal opportunity for outside participation). The Bundesrat, Germany’s upper house, is also given a significant role in approving regulations that affect the interests of the LUnder, which in practice means the most important ones. Many of the major environmental statutes also provide for a veto by the Bundestag over major regulations.
In criticizing this attempt to compartmentalize science and politics, Prof. Rose-Ackerman stresses that “science, politics, and economic feasibility are intertwined at all stages” of administrative policymaking. (p.69) Quite accurately, Prof. Rose-Ackerman points out the practical difficulty of separating political from technical or scientific concerns in environmental regulation. Most regulatory decisions in the environmental field, rather, involve “political/policy choices guided by technical considerations.” (p.19) Science rarely provides a complete answer, even where policymakers are tempted to claim otherwise.”
In view of this inevitable intermixing of science and politics, the question of administrative procedure becomes critical: what is the best way to assure some measure of democratic control and participation over administrative policymaking after we have recognized its essentially political (the weighing of interests, resources and values) as opposed to merely technical or scientific nature? This question is at the heart of Susan Rose-Ackerman’s study.