Threats are key to leverage compliance.

So, how do we know if we are dealing with a regulatory nuke and not just an impressive, yet conventional regulatory weapon? There is more to a regulatory nuke than the power of the regulatory option. The size of the stick is a factor, but it is not determinative. As Schelling put it, there is such thing as massive retaliation “on a diminutive scale, with local effects not unlike those of Hiroshima” (Schelling, 2008/1966, 15). Rather, staying true to Schelling’s logic, a regulatory nuke is a regulatory power that is considered generally “out of bounds” and is symbolically different from typical regulatory efforts. It is the stick that goes unused or the punishment that is presumptively off the table. Whether due to precedents of agency dealings, perceptions of inequity, unacceptable impacts on larger society, congressional design, or political pressure—a regulatory nuke carries symbolic importance. And like actual nuclear weapons, agencies use the regulatory nuke by brandishing the weapon rather than firing it.

The fact that regulatory nukes are used differently than other regulatory weapons often leads commentators to mistakenly believe that regulatory nukes are rarely or never used simply because they are rarely or never launched. However, equating launches of regulatory nukes to use of the regulatory tool overlooks a major dimension of symbolically important stopping points: threats, bluffs, and escalations. The uses of regulatory nukes fall on a spectrum. Launching the weapon is at one extreme. There are more subtle uses that deserve our attention as well: leveraging the weapon at the bargaining table, relying on the weapon as a backdrop of pursuing compliance, and even scaring potential targets from straying from compliance lest they show up on the agency’s radar screen at all.