§ 5. Some academic reactions to the policy analysis in the white paper

§ 5.1. A request for other views. The white paper was necessarily a one-sided view of some of the policy issues. In particular, I made some specific arguments in § 10 of the paper suggesting that we need to consider moving away from the traditional form of "command and control" regulation, or regulation which relies on specification of engineering standards, in favor of setting more general ultimate standards and giving the industry an incentive, as well as flexibility in meeting those ultimate standards, through some sort of tax and rebate system. As part of the design of the workshop, I specifically asked some academic experts, one a political scientist and another a law professor, to provide a critique of these policy recommendation. (They both had experience in dealing with environmental issues, but did not have prior experience working on exotics. They thereby brought well-considered but refreshing views to the table.) They were asked to be critical. They did as asked (very well, in my opinion) and here are rough summaries of their comments:

§ 5.2. Comments by a political scientist on regulatory policy. "We do not want an 'optimal level' of invasions." (This referred to the cost-benefit analysis in the white paper.) Therefore traditional "command and control" regulation may be most appropriate for this problem. Also, (1) the white paper neglected the problem of intra-lake transfer of exotics, (2) exotics are only part of the problems in the Great Lakes, and (3) we should not "unilaterally disarm" ourselves in responding to exotics by denying ourselves all use of biological controls. He made some specific policy recommendations (just in case anyone thought that I had no competition in raising controversy from a fellow political scientist), including that (1) we need to throw a lot of money at this problem, and create a lot of agencies, (2) it might be that the federal government should take over from the states, and (3) the IJC should form its own board to deal specifically with exotics. But he added, at the report out to the public, that he was very pessimistic about the "old fashioned ways" for dealing with this problem because of the politics of it.

§ 5.3. Comments by a law professor on regulatory policy. She agreed that (1) we need to have performance standards and (2) that exotics are part of "ecosystem integrity." However, much as did the political scientist, she argued that we should not be so quick to discount the value of the traditional and much-maligned "command-and-control" form of regulation. In fact, she argued, the well-tried process of permitting under the US Clean Water Act can be of major value in dealing with ballast water because (1) the permitting system comes with strong enforcement mechanisms, including a good process for federal delegation of enforcement authority to the states, (2) the act includes valuable provisions for public participation in the regulatory process (which she argued is discouraged by a tax-based system of regulation), (3) permits can be used as a means to create performance standards, and (4) the CWA has valuable provisions for judicial review of the permitting process. Moreover, given the experience which EPA has with the administration of this system, it is a process which could be accomplished efficiently and quickly. It provides a basis for uniform national standards, but does not preempt state laws which set a higher standard. Their still remains a need to coordinate policy with Canada, but the GLWQA provides the appropriate framework for that, just as it does for other pollution controls administered by the US EPA under the CWA.