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New England School of Law




The management of risks to health, safety and environment is one of the central concerns of our society. This important function has been largely delegated to federal regulatory agencies which, over the last decade, have tried to respond to the difficult mandate of managing risk under conditions of technical uncertainty by implementing complex regulatory programs. The federal government is now grappling with the design and implementation of various regulatory reforms to lessen economic burdens and to harmonize regulation with marketplace considerations, because of growing opposition to further regulation.

What has been left unpromoted as a reform thus far is the apparent but surprisingly ignored option of using alternatives to regulation - the use of alternative measures for the management of risks which do not require substantive rulemaking by federal agencies. This article reviews the potential of three broad classes of alternative measures: private self-regulation, embracing industrial standards, licensure and certification; compensatory remedies, including worker's compensation, "black lung" and "Price-Anderson" types of insurance, bonds, escrow and restoration funds; and government influence, characterized by federal procurement, information and education, and notice of possible intent to regulate. This approach is premised on the assumption that the public expects that it is the continuing and ultimate responsibility of government to manage risks to health, safety and the environment effectively, and concludes that agency reliance on the properly-structured use of alternatives to regulation is the most important reform option available.

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