Regulation as the art of intuitive judgment: A critique of the economic approach to environmental regulation

This article develops a general critique of the economic approach to environmental regulation, drawing on the insights of systems theory. It highlights, first, the problematic of subjugating the regulatory system to a single purpose – which in the context of environmental economics is interpreted as the utilitarian maximization of collective welfare. Second, it questions the teleological pretence of the regulatory project as it is configured in the economic literature. It highlights in this context the problem of trans-systemic incompatibilities, which impede the incorporation of economic ideas into the systems of law and politics. Environmental economics in both its normative and sociopolitical strands, fails to provide a convincing response to this dilemma. The article discusses two examples of the reconstruction of economic ideas within the legal and political domains, drawing on the EU and US regulatory experience. This twofold critique of the economic approach can be extended, it is argued, to every regulatory project with far-reaching teleological ambitions. The article applies this critique to some alternative regulatory visions, such as self-regulation, reflexive law and responsive regulation, noting in this context the limitations of systems theory itself. It concludes with a discussion of the role of intuition in regulatory decision-making.