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Prof. Coglianese’s research debunks myth that EPA is an agency ‘besieged by litigation’

October 28, 2020

In “Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts,” recently published in the Case Western Reserve Law Review, Edward B. Shils Professor of Law Cary Coglianese compiles the first comprehensive empirical effort to track the last 50 years of U.S. Environmental Protection Agency (EPA) rulemaking and court decisions involving the agency. Coglianese, along with his co-author Daniel Walters, an Assistant Professor of Law at Penn State Law, confront the prevalent view that the EPA is besieged by litigation. They find that the EPA “has incurred a fairly modest rate of judicial review and invalidation of its rules.”

Coglianese is also a Professor of Political Science in the University of Pennsylvania’s School of Arts and Sciences and founder and director of Penn Program on Regulation. Walters is a former fellow of the Program.

In their pathbreaking work, the authors “synthesize the existing disparate empirical studies, each drawn from different time periods” and bring new data forth to track the agency’s involvement in litigation over the last half-century. The authors observe that the agency appears “to have quickly achieved a kind of equilibrium in its relationship with the courts” from early in its history.

Coglianese and Walters conclude with the suggestion “that this outcome would be expected from professional staff efforts within the EPA to adapt to changes in the legal environment so as to manage litigation risk and insulate the agency from judicial scrutiny.”

Coglianese specializes in the study of administrative law and regulatory processes. He was a founding editor of the peer-reviewed journal Regulation & Governance, and he founded and continues to serve as advisor to the Penn Program on Regulation’s widely read daily publication, The Regulatory Review.

His research and scholarship focuses on the empirical evaluation of alternative processes and strategies in the role of public participation, technology, and business-government relations in policy-making.

Coglianese’s books include Achieving Regulatory Excellence (Brookings Institution Press, 2016); Does Regulation Kill Jobs? (University of Pennsylvania Press, 2014); Regulatory Breakdown: The Crisis of Confidence of US Regulation (University of Pennsylvania Press, 2012); Import Safety: Regulatory Governance in the Global Economy (University of Pennsylvania Press, 2009); Regulation and Regulatory Processes (Ashgate, 2007); and Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance (Routledge, 2006).

He has also recently written on climate change policy, public participation and transparency in federal rulemaking, the use of artificial intelligence by government agencies, and voluntary environmental programs.

Read more Law School faculty papers and publications.