Justifying Safety: The Paradox of Rationality
Volume 90, No. 2, Spring 2018
By Sara Gosman [PDF]

In 1994, House Republicans stood on the steps of the Capitol and signed the Contract with America, promising to revolutionize government by imposing “rationality” on environmental, health, and safety regulation. When the 104th Congress adjourned two years later, just one regulatory program had been remade in the rationalist image: the program governing the risks of energy pipelines. The pipeline safety program, like the millions of miles of pipelines underground, has operated out of sight. The scholarly debate over rationalism has largely failed to recognize the importance of the reforms to risk regulation. Once unearthed, however, the program provides a new lens through which to view the broader tension between rationality and democracy in the administrative state. More than twenty years later, the pipeline safety program is a policy paradox. It has not delivered the benefits predicted by rationalists—better decisionmaking, more efficient regulation of risk, and improved democratic governance. Meanwhile, the results confirm many of the warnings of scholars who viewed the reforms as a threat to democratic process and values. The bargain offered by rationalists—better regulation in return for less direct democracy—has in practice resulted in political dysfunction. This Article contends that the rationalist experiment has not been successful because the rationalists’ faith in technocratic decisionmaking obscured the real political struggle over risk. Instead of attempting to protect the administrative state from a fearful public, reformers should seek better regulation through deliberative processes that harness public concern.

Sara Gosman is an Assistant Professor of Law at the University of Arkansas School of Law–Fayetteville.