The Shadow of the Rational Polluter: Rethinking the Role of Rational Actor Models in Environmental Law

Abstract

The modern American environmental regulatory system is founded on the assumption that business firms are rational polluters: that the rational pursuit of their self interest guides both their compliance decisions and their participation in the political process.This traditional view of firms implies that environmental regulators must deter pollution through the imposition offines and penalties, and must deter capture and subversion of the regulatory process through the use of prescriptive and proscriptive rules.Critics of this traditional view claim that the regulatory system is unnecessarily complex, making compliance difficult, and unnecessarily punitive, since most firms try to comply and most noncompliance is unintentional.This article examines this debate between proponents of the traditional view and proponents of the complexity critique, a debate that lies at the root of ongoing controversies over civil enforcement, citizen suit standing, mens rea standards in environmental criminal prosecutions, environmental auditing policy, and EPA's experiments with collaborative regulation.While there is evidence to support both, it seems clear from a