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Regulatory Ambiguity: How Inter-Office Interaction Defines Japanese Environmental Law

  • Author(s): Hirata, Ayako
  • Advisor(s): Kagan, Robert A
  • et al.
Abstract

How do frontline regulatory offices make sense of and enforce new ambiguous statutes? In order to understand the process of constructing the meaning of ambiguous law at the street-level, this dissertation focuses on horizontal interaction among frontline offices--- does inter-organizational interaction between frontline offices influence their interpretations and enforcement decisions, and if so, how and under what conditions?

Based on a national survey and in-depth interviews with frontline regulators, Ministry of Environment, and regulated entities in the context of the Japanese environmental regulations, supplemented by a two-week period of observations on the frontline in Japan, this research shows that inter-office interaction is as important as the micro-level factors (e.g., institutional factors relating to single office and characteristics of individual regulator) for understanding how street-level interpretations and enforcement decisions develop. Faced with legal ambiguity under a decentralized legal system, frontline offices commonly contact peer offices to make sure that their legal interpretation and enforcement decision is appropriate. Such consultation behavior helps develop shared, consistent understandings of which interpretations and enforcement decisions are within the law—what is referred to as meso-level schemas in this research. Such schemas function as generators of legal meaning and sources of legitimacy under conditions of legal ambiguity. The term meso-level signifies that this justification mechanism takes place between the local, micro-level (i.e., by individual regulators and within individual offices) and the macro-level of national legal design and top-down mandates. Meso-level schemas rest on horizontal relationships developed among frontline offices that are informally connected to each other.

Quantitative analyses demonstrate that frontline offices belonging to peer office meeting groups are more likely to contact peer offices, and in general, more likely to stringently enforce the statutes than those not so connected. Also, statistical analyses show that different meeting bodies have developed different levels of enforcement stringency, other relevant variables being controlled. In summary, quantitative analyses indicate that (1) the meaning of ambiguous statutes is influenced not only by individual, micro-level factors but also the inter-organizational dynamics in which street-level offices are situated, and (2) different inter-organizational bodies can develop different meaning of law.

Interview analyses illuminate how inter-office interaction influences street-level enforcement, and reveal three roles of inter-office interaction in shaping the meaning of law, all of which are conducive to generating consistent enforcement across jurisdictions. First, under legal ambiguity and risk/harm uncertainty, consistent enforcement across jurisdictions can work as an endorsement, a signal showing that street-level rule application is accurate and fair. Second, inter-office interaction offers a prototype of interpretation that other offices can follow, and third, it provides a learning opportunity wherein offices can learn enforcement expertise from peer offices.

By focusing on legitimacy concerns of street-level offices, interview analyses also illustrate why and under what conditions meso-level schemas are employed and why they encourage stringent enforcement. The analyses illuminate the mechanisms of how contingent power dynamics between regulatory offices and regulated entities create a strong need for offices to demonstrate enforcement legitimacy vis-à-vis regulated entities, which encourages offices to utilize meso-level schemas. In addition to the significant presence of regulated entities, scarce public scrutiny over Japanese environmental enforcement reinforces the general implementation tendency to emphasize false positive risk (overly regulating non-harmful business activity) rather than false negative risk (not regulating harmful activity). Moreover, insufficient legal expertise, little access to external sources of arguments, and insufficient internal training can hinder frontline offices from enforcing the statutes under legal ambiguity because of the fear of challenges and objections from regulated entities. Under such conditions, meso-level schemas appeal to street-level offices, especially when offices do not find adequate support for making legal arguments about enforcement that may face challenges from regulated entities. For frontline offices with little enforcement expertise and insufficient internal training, meso-level schemas are effective for eliciting compliance, countering possible challenges from regulated entities, and reinforcing their enforcement legitimacy.

The dissertation concludes by joining empirical findings with theoretical arguments, discussing the conditions under which inter-office interaction can play a role in street-level enforcement in other legal contexts, and elucidating policy implications. By incorporating inter-organizational processes of constructing legal meaning into studies of street-level regulatory enforcement, this dissertation provides a fresh approach to street-level enforcement, inter-organizational dynamics, and more broadly, the dynamics of administrative legitimacy.

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