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CDM=collaborative decision making
For NEGyou can find more AT some of the AFF answers under solvency or in the net
benefits
If youre aff, the perm do the CP, conventional rulemaking>reg neg, and no solvency cards
are pretty good. Litigation turns are fine too. Read the causes more litigation stuff as a
solvency deficit to the CPif they cant reach a consensus, the Cp doesnt result in the
plan.
***NEG***
Top Shelf
1NC CP Shell
Text: the United States federal government should enter into a process of negotiated
rulemaking over _______<insert plan>______________ and implement the results of
negotiation.
The CP is plan minusit doesnt mandate the plan, just that a regulatory negotiations
committee is created to discuss the plan
And, it competesreg neg is not normal means
USDA 06
(The U.S. Department of Agricultures Agricultural Marketing Service administers programs that facilitate the efficient, fair marketing
of U.S. agricultural products, including food, fiber, and specialty crops What is Negotiated Rulemaking?. Last updated June 6th 2014.
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5089434) //ghs-kw)
Ordinarily, agency staff performs this function, with discretion to determine how much opportunity is allowed for public input. Typically,
there is no opportunity for interchange of views among potentially affected parties, even
where an agency chooses to conduct a hearing . The traditional notice-and-comment rulemaking can be very
adversarial. The dynamics encourage parties to take extreme positions in their written and oral statements in both pre-proposal contacts as well
as in comments on any published proposed rule as well as withholding of information that might be viewed as damaging. This adversarial
atmosphere may contribute to the expense and delay associated with regulatory proceedings, as parties try to position themselves for the expected
litigation. What is lacking is an opportunity for the parties to exchange views, share information, and focus on finding constructive, creative
solutions to problems.
included on the committee. Once assembled, the next goal is for members to receive training in interest-based problem-solving and consensus-
They then must make sure that all views are heard and that each committee member
agrees to a set of ground rules for the negotiated rulemaking process. The ultimate goal is to reach
decision making.
consensus on a text that all parties can accept . The agency is represented at the table by an official who is sufficiently
senior to be able to speak authoritatively on its behalf. Negotiating sessions are chaired by a neutral mediator or
facilitator skilled in assisting in the resolution of multiparty disputes. The ChecklistAdvantages as
well as Misperceptions The advantages of negotiated rulemaking include: Producing greater information sharing and better communication;
Enhancing public awareness and involvement; Providing a reality check to agencies and other interests; Encouraging discovery of
more creative options for rulemaking; Increasing compliance with rules; Saving time, money and effort in the long run; Allowing earlier
implementation dates; Building cooperative relationships among key parties; Increasing the certainty of the outcome for all and thus
enabling better planning; Producing superior rules on technically complex topics because of the input of all parties; Giving rise to fewer
legislative end runs against the rule; and Reducing post-issuance contentiousness and litigation. What negotiating rulemaking does not do:
It does not cause the agency to delegate its ultimate obligation to determine the content of the proposed and final regulations; It does not
exempt the agency from any statutory or other requirements; It does not eliminate the agencys obligation to produce any economic analysis;
paperwork or other regulatory analysis requirements imposed by law or agency policy; It does not require parties or non-parties to set aside
their legal or political rights as a condition of participating; and It is not compulsory, participation is voluntary, for the agency and for others.
Federal and international dispute resolution process models. There are also models in U.S. and
Canadian legislation supporting the use of consensus-based processes. These processes have
been successfully applied to resolve dozens of disputes that involved multiple stakeholder
interests, on technically and politically complex environmental and public policy issues. For
example, the Negotiated Rulemaking Act of 1990 was enacted by Congress to formalize a process for negotiating contentious
new regulations.118 The Act provides a process called reg neg by which representatives of interest groups
that could be substantially affected by the provisions of a regulation, and agency staff
negotiate the provisions.119 The meetings are open to the public; however, the process does enable
negotiators to hold private interest group caucuses. If a consensus is reached on the provisions of the rule, the
Agency commits to publish the consensus rule in the Federal Register for public
comment.120 The participants in the reg neg agree that as long as the final regulation is
consistent with what they have jointly recommended, they will not challenge it in court. The
assumption is that parties will support a product that they negotiated.121 Reg neg has been utilized
by numerous federal agencies to negotiate rules pertaining to a diverse range of topics
including safe drinking water, fugitive gasoline emissions, eligibility for educational loans,
and passenger safety .122 In 1991, in Canada, an initiative was launched by the National Task Force on Consensus and
Sustainability to develop a guidance document that would govern how federal, provincial, and municipal governments would address resource
management disputes. The document that was negotiated, Building Consensus for a Sustainable Future: Guiding Principles, was adopted by
consensus in 1994.123 The document outlined principles for building a consensus and process steps. The ten principles included provisions
regarding inclusivity of the process (this was particularly important in Canada with respect to inclusion of Aboriginal peoples), voluntary
participation, accountability to constituencies, respect for diverse interests, and commitment to any agreement adopted.124 The
consensus principles were subsequently utilized to resolve disputes over issues that included
sustainable forest management, siting of solid waste facilities, impacts of pulp mill
expansion, and economic diversification based on sustainable wildlife resources.125 The reg
neg and Consensus for Sustainable Future model represent codified mediated negotiation processes that
have withstood the test of legal challenge and have been strongly endorsed by the groups
that have participated in these processes.
Traditional rulemaking blocks agency actiononly the CP solves
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
3. Legislation It is likely that Congress will pass some form of climate change legislation in the near future. Due to the pressing need to take
aggressive action quickly, the legislation will probably require a considerable amount of federal rulemaking within a short period of time .
It is
not likely that the legislation will include many statutory provisions specifically compelling
collaborative decision-making.56 While there has been a great design of a cap-and-trade program and other aspects of a climate
change bill, little attention has been paid to the institutional or organizational approach to
implementing such legislation.57 The American Clean Energy and Security Act, Collaborative decision-making could
help to achieve successful implementation of rulemaking under a climate bill . 58 passed by
the House of Representatives, would require federal agencies to promulgate many
regulations in a short period of time. Under Title III, Reducing Global Warming Pollution, alone, as much as sixty-five regulations would
have to be promulgated and, in most cases, the regulations will have to be completed within the first two years of enactment.59 This is a
huge task particularly because of the complexity of the issues. Traditional rulemaking can
result in an adversarial game in which information becomes a weapon
making
and is used to thwart and delay agency action .60 In order to quickly develop rules
that are not only likely to be effective but also survive litigation, the federal government
can benefit from applying the Negotiated Rulemaking Act61 or similar stakeholder processes. There are
many stakeholders, including states and local government that have a great deal of
experience to lend to climate change rulemaking. The federal government can best leverage the expertise of these
stakeholders through collaborative processes.
negotiated rulemaking
History In 1990,
an alternative procedure known as "
,"'' also
called "regulatory negotiation," or "reg-neg." It has been used by agencies to bring interested parties into the rule-drafting process at an early stage, under circumstances that foster cooperative efforts to achieve solutions to regulatory
Alternate CP Text
Text: the United States federal government should engage in binding regulatory negotiation
over ______________________________________________________________ <insert
plan>______________
______________________________________________________________________________
____________________________________ with [the mandates of the plan] as the best
alternative to a negotiated agreement.
2NC O/V
The counterplan convenes a regulatory negotiation committee to discuss the
implementation of the plan. Stakeholders decide how and if the plan is implementedthen
implements the decision - solves better than the AFF:
1. Agency actiontraditional notice-and-comment rulemaking incentivizes actors to
withhold information which prevents agency action and guts implementation of the plan
CP facilitates cooperationthats Siegel 9.
2. Collaborationreg neg facilitates government-civilian cooperation, results in greater
satisfaction with regulations and better compliance after implementationsocial
psychology and empirics prove
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and
environmental law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto,
and a Master of Laws in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for
Energy and Climate Change in the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and
institutional design, and a leading thinker on collaborative and contractual approaches to governance. After leaving the White
House, she advised the National Commission on the Deepwater Horizon oil spill on topics of structural reform at the Department of
the Interior. She has been appointed to the Administrative Conference of the United States, the government think tank for
improving the effectiveness and efficiency of federal agencies, and is a member of the American College of Environmental Lawyers.
Laura I Langbein is the Professor of Quantitative Methods, Program Evaluation, Policy Analysis, and Public Choice and American
College. She holds a PhD in Political Science from the University of North Carolina, a BA in Government from Oberlin College.
Freeman, J. Langbein, R. I. Regulatory Negotiation and the Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000.
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf//ky)
D. Compliance The compliance implications of consensus-based processes remain a matter of speculation.360 No one has yet produced
empirical data on the relationship between negotiated rulemaking and compliance, let alone data comparing the compliance implications of
negotiated and conventional rules.361 However, the Phase II results introduce interesting new findings into the debate. The
data
shows reg-neg participants to be significantly more likely than conventional rulemaking
participants to report the perception that others will be able to comply with the final
rule.362 Perceiving that others will comply might induce more compliance among competitors, along the lines of game theoretic models,
at least until evidence of defection emerges.363 Moreover, to the extent that compliance failures are at
least partly due to technical and information deficitsrather than to mere political
resistanceit seems plausible that reports of the learning effect and more horizontal
sharing of information might help to improve compliance in the long run.364 The claim
that reg-neg could improve compliance is consistent with social psychology studies
showing that in both legal and organizational settings, fair procedures lead to greater
compliance with the rules and decisions with which they are associated .365 Similarly,
negotiated rulemaking might facilitate compliance by bringing to the surface some of
the contentious issues earlier in the rulemaking process, where they might be solved collectively rather
than dictated by the agency. Although speculative, these hypotheses seem to fit better with Kerwin and Langbeins data than do the rather
negative expectations about compliance. Higher
positions clashed in such a fundamental way that reaching a consensus appeared very
unlikely. It took some time for the parties, and the industry in particular, to feel that a
true negotiation was occurring. (130) However, a number of forces were at work that
suggested the existence of underlying flexibilities in the parties' positions not
immediately apparent from the parties' public statements. While the industry publicly
opposed further regulation, (131) many of its representatives privately concluded that
some form of further regulation was inevitable . (132) Although the District's ATCP supported this conclusion,
the industry's reasoning was primarily political. Given the large amount of publicity over the Barrio Logan incident in San Diego, the
industry concluded that the large
further regulation adopted by the District would greatly influence the form of any
CARB regulation . Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the
District's action at the regional level. (136) The industry thought that, in the best case, its participation
in the negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened
regulation of chrome plating emissions. (137) Finally, as noted above, (138) under the existing District regulatory structure, some metal
plating sources would be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk
assessment process was complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a
new District regulation, which could avoid the need for numerous risk assessments. The environmentalists also recognized weaknesses in
their initial position, although their political calculations were not as complex as the industry's. While the environmentalists' chief goal was
to secure a regulation requiring new add-on technology, this new technology would clearly have significant economic impacts on the
industry and would force some sources to close. The environmentalists knew that the District Governing Board, and hence its staff, was
sensitive to claims that a District rule would either put companies out of business or force them to relocate out of the South Coast Air Basin .
Thus, the environmentalists faced the possibility that the District would be unwilling to
require the add-on technology if it was too expensive. As to the District's staff, institutional concerns drove its
position. The District's Air Toxics Plan committed the District to examine further regulation of chrome emissions, but the plan left room for
significant flexibility regarding what actual steps the District should take. At the same time, while the staff had some information about the
operation of chrome plating facilities, the District was not as familiar with this industry as it was with other industries. Thus, information
acquired by the agency during a negotiation could prove very useful. The agency could be expected to change position in response to that
information rather than to remain "locked in" to an initial, rigid position. In summary,
took EPA to fulfill its goal was 751 days or 32% faster than traditional rulemaking.
This knocks a full year off the average time it takes EPA to develop rule by the
traditional method. And, note these are highly complex and controversial rules and that
one of them survived Presidential intervention. Thus, the dynamics surrounding these
rules are by no mean average. This means that reg negs actual performance is much
better than that. Interestingly and consistently, the average time for all of EPAs reg negs when viewed in context is virtually
identical to that of the sample drawn by Kerwin and Furlong77 differing by less than a month. Furthermore, if all of the reg negs that
were conducted by all the agencies that were included in Coglianeses table78 were analyzed along the same lines as discussed here,79 the
average time for all negotiated rulemakings drops to less than 685 days.80 No Substantive
Review of Rules Based on Reg Neg Consensus. Coglianese argues that negotiated rules are actually subjected to a higher incident of
judicial review than are rules developed by traditional methods, at least those issued by EPA.81 But, like his analysis of the time it takes to
develop rules, Coglianese fails to look at either what happened in the negotiated rulemaking itself or the nature of any challenge. For
example, he makes much of the fact that the Grand Canyon visibility rule was challenged by interests that were not a party to the
negotiations;82 yet, he also points out that this rule was not developed under the Negotiated Rulemaking Act83 which explicitly establishes
procedures that are designed to ensure that each interest can be represented. This challenge demonstrates the value of convening
negotiations.84 And, it is significantly misleading to include it when discussing the judicial review of negotiated rules since the process of
reg neg was not followed. As for Reformulated Gasoline, the rule as issued by EPA did not reflect the consensus but rather was modified by
EPA under the direction of President Bush.85 There were, indeed, a number of challenges to the application of the rule,86 but amazingly
little to the rule itself given its history. Indeed, after the proposal was changed, many members of the committee continued to meet in an
effort to put Humpty Dumpty back together again, which they largely did; the
of the governing statute that would likely have to be resolved by a Court of Appeals. Coglianese also asserts that the Equipment Leaks rule
was the subject of review; it was, but only because the Clean Air requires parties to file challenges in a very short period, and a challenger
therefore filed a defensive challenge while it worked out some minor details over the regulation. Those negotiations were successful and the
challenge was withdrawn. The Chemical Manufacturers Association, the challenger, had no intention of a substantive challenge.89
Moreover, a challenge to other parts of the HON should not be ascribed to the Equipment Leaks part of the rule. The agreement in the
Asbestos in Schools negotiation explicitly contemplated judicial review strange, but true and hence it came as no surprise and as no
violation of the agreement. As for the Wood Furniture Rule, the challenges were withdrawn after informal negotiations in which EPA agreed
to propose amendments to the rule.90 Similarly, the challenge to EPAs Disinfectant By-Products Rule91 was withdrawn. In short, the rules
that have emerged from negotiated rulemaking have been remarkably resistant to substantive challenges. And, indeed, this far into the
development of the process, the standard of review and the extent to which an agreement may be binding on either a signatory or someone
whom a party purports to represent are still unknown the speculation of many an administrative law class.92 Thus, here too,
fact
remains that agencies exercising regulatory power do so on the basis of their presumed
expertise. (172) That expertise, however, requires an information base, and a principal
difficulty faced by environmental regulatory agencies is lack of information about the
industries they regulate. (173) The difficulty in acquiring information on specific
industry operations has a couple of sources. First, and unsurprisingly, polluting facilities are often
unwilling to help regulatory agencies adopt regulations that will be expensive for the
facilities to meet. (174) In addition, they are often concerned about divulging proprietary information about processes that their
competitors may use. (175) Without that information, however, regulatory agencies may have a difficult time
evaluating the feasibility of various control options. The issue is not simply a failure of public agency
management to acquire expertise, (176) nor is it solely a question of the failure of agencies equipped with information-gathering ability to
obtain the specific information needed. (177) The problem is more fundamental. As might be expected in a market economy, air
pollution sources simply know far more about how their equipment operates and their
businesses run than a government agency can ever hope to learn. Less recognized is the inverse,
equally important problem that industry is often frustrated in its attempts to get factual clarification from an agency about the information
that underlies the agency's specific regulatory proposal. Of course, freedom
agency and
interested parties participate in other, informal types of interaction. Some
commentators have even suggested that these types of interactions in notice and
comment rulemaking are functionally no different from the interactions in a negotiated
rulemaking. (180) But agency responses to written comments tend to be legalistic and designed to comply with the legal duty to
respond, rather than to convey meaningful information. (181) These informal interactions simply do not rise to the level of the "give and
take" found in a negotiation. In short, the nature and process of "negotiation" that takes place in a notice and comment rulemaking is
qualitatively different from the negotiation in a negotiated rulemaking. (182) Suggestions to the contrary overlook fundamental differences
in the underlying processes. (183) Some commentators also have suggested that negotiation is an ineffective means of resolving factual
matters. (184) Others go even further, arguing that an agency should not undertake a negotiation where technical support for the rule does
not exist, (185) or alternatively that in negotiations, data becomes a "bargaining chip" rather than the foundation for deliberation. (186) Still
other commentators disagree, asserting that negotiation provides the agency with a more complete understanding of the factual grounds for
the regulation. (187) In
2.
Rulemaking To test whether reg neg was fairer to regulated parties, Ker-win and Langbein asked respondents whether EPA
solicited their participation and whether they believed anyone was left out of the
process. They also examined how much the parties learned in each process, and whether they experienced resource or information disparities. Negotiated
rule participants were significantly more likely to say that the EPA encouraged their participation than conventional rule
participants (65% versus 33% respectively). Al-though a higher proportion of conventional rulemaking participants reported that a party that should have been
represented in the rulemaking was omitted, the difference is not statistically significant. Specifically, "a majority of both negotiated and conventional rule
participants believed that the parties who should have been involved were involved (66% versus 52% respectively)." In addition, as reported above, participants
in regulatory negotiations reported significantly more learning than their conventional rulemaking counterparts. Indeed, the disparity between the two types of
participants in terms of their reports about learning was one of the study's most striking results. At the same time, the resource disadvantage of poorer, smaller
disproportionate influence to be about evenly distributed, suggests that reg neg is at least as fair to the parties as conventional rulemaking. Indeed,
which not merely can be, but is opposed to potential, apparent, constructive, and imaginary; veritable; genuine;
certain ; absolute; real at present time, as a matter of fact, not merely nominal; opposed to form; actually existing; true; not including admitting, or
pertaining to any others; undivided; sole; opposed to inclusive. Bass v. Pease, 79 Ill. App. 308, 318.
and is in
itself sufficient to effect an inpraesenti ruling - one that is couched in "a present indicative synonymous with ought." See infra note 15. 3 Carter v. Carter, Okl., 783 P.2d 969, 970 (1989);
Horizons, Inc. v. Keo Leasing Co., Okl., 681 P.2d 757, 759 (1984); Amarex, Inc. v. Baker, Okl., 655 P.2d 1040, 1043 (1983); Knell v. Burnes, Okl., 645 P.2d 471, 473 (1982); Prock v. District
Court of Pittsburgh County, Okl., 630 P.2d 772, 775 (1981); Harry v. Hertzler, 185 Okl. 151, 90 P.2d 656, 659 (1939); Ginn v. Knight, 106 Okl. 4, 232 P. 936, 937 (1925). 4 "Recordable" means
that by force of 12 O.S. 1991 24 an instrument meeting that section's criteria must be entered on or "recorded" in the court's journal. The clerk may "enter" only that which is "on file." The
pertinent terms of 12 O.S. 1991 24 are: "Upon the journal record required to be kept by the clerk of the district court in civil cases . . . shall be entered copies of the following instruments on
file: 1. All items of process by which the court acquired jurisdiction of the person of each defendant in the case; and 2. All instruments filed in the case that bear the signature of the and judge and
specify clearly the relief granted or order made." [Emphasis added.] 5 See 12 O.S. 1991 1116 which states in pertinent part: "Every direction of a court or judge made or entered in writing, and
not included in a judgment is an order." [Emphasis added.] 6 The pertinent terms of 12 O.S. 1993 696.3 , effective October 1, 1993, are: "A. Judgments, decrees and appealable orders that are
filed with the clerk of the court shall contain: 1. A caption setting forth the name of the court, the names and designation of the parties, the file number of the case and the title of the instrument; 2.
A statement of the disposition of the action, proceeding, or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or
parties; 3. The signature and title of the court; . . ." 7 The court holds that the May 18 memorial's recital that "the Court finds that the motions should be overruled" is a "finding" and not a ruling.
In its pure form, a finding is generally not effective as an order or judgment. See, e.g., Tillman v. Tillman, 199 Okl. 130, 184 P.2d 784 (1947), cited in the court's opinion. 8 When ruling upon a
motion for judgment n.o.v. the court must take into account all the evidence favorable to the party against whom the motion is directed and disregard all conflicting evidence favorable to the
movant. If the court should conclude the motion is sustainable, it must hold, as a matter of law, that there is an entire absence of proof tending to show a right to recover. See Austin v. Wilkerson,
Inc., Okl., 519 P.2d 899, 903 (1974). 9 See Bullard v. Grisham Const. Co., Okl., 660 P.2d 1045, 1047 (1983), where this court reviewed a trial judge's "findings of fact", perceived as a basis for
his ruling on a motion for judgment n.o.v. (in the face of a defendant's reliance on plaintiff's contributory negligence). These judicial findings were held impermissible as an invasion of the
providence of the jury and proscribed by OKLA. CONST. ART, 23, 6 . Id. at 1048. 10 Everyday courthouse parlance does not always distinguish between a judge's "finding", which denotes nisi
prius resolution of fact issues, and "ruling" or "conclusion of law". The latter resolves disputed issues of law. In practice usage members of the bench and bar often confuse what the judge "finds"
with what that official "concludes", i.e., resolves as a legal matter. 11 See Fowler v. Thomsen, 68 Neb. 578, 94 N.W. 810, 811-12 (1903), where the court determined a ruling that "[1] find from
the bill of particulars that there is due the plaintiff the sum of . . ." was a judgment and not a finding. In reaching its conclusion the court reasoned that "[e]ffect must be given to the entire in the
docket according to the manifest intention of the justice in making them." Id., 94 N.W. at 811. 12 When the language of a judgment is susceptible of two interpretations, that which makes it
correct and valid is preferred to one that would render it erroneous. Hale v. Independent Powder Co., 46 Okl. 135, 148 P. 715, 716 (1915); Sharp v. McColm, 79 Kan. 772, 101 P. 659, 662 (1909);
Clay v. Hildebrand, 34 Kan. 694, 9 P. 466, 470 (1886); see also 1 A.C. FREEMAN LAW OF JUDGMENTS 76 (5th ed. 1925). 13 "Should" not only is used as a "present indicative"
synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall 9, Judgments 121 (1932). O. JESPERSEN,
GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the
of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60
Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to
mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215
(Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should
disregard false testimony").
Severance is a voting issuethe AFF must defend the entirety of the planwe only need to
defend implementationcompetes in certaintymeans they sever the results of the plan.
Severance is bad, reject the team
1. Kills advocacy skillsaff becomes a shifting target, so they never have to defend
anything
2. Kills educationwe cant debate about the aff is the aff changes halfway through
the round
3. Kills neg groundallows them to shift out of our DA links and make CPs noncompetitive
Conventional rulemaking isnt reg neg
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
The traditional model for rulemaking is that of agency experts deciding the best way to
regulate, offering the public an opportunity to comment on the agency's proposed rule or to
object to its adoption, and then issuing binding rules telling regulated entities what to do.
Even if the agency experts choose wisely, the traditional model has very little buy-in from outside the
agency , which undermines the rule's effectiveness. The traditional process encourages adversarial, uncooperative behavior on the part of
private industry or others who might be affected by an agency's decisions, which frequently leads to protracted litigation. Agencies routinely find
themselves under attack from various private parties who are unhappy with the rule. This has been particularly true in controversial areas such as
environmental regulation or the health and safety of workers.20
Solvency
Solves Better
Generic
Reg neg solves SQ inefficiencieslow compliance, high costs, negative economic
implications and lack of cooperation
CNA 4
(The Center for Negotiation Analysis (CNA) is a not-for-profit research institute established in 1993 devoted to studying, training, and
providing practical advisory support concerning negotiations, mediation, and other forms of conflict resolution at the national, regional
and international levels. Topic: Regulatory Negotiations. Last updated February 01, 2004 @ http://negotiations.org/reg-neg1.htm)
Deng
The traditional
process, while well-intentioned, often leaves stakeholders feeling far removed from the
process and disempowered. They may feel that they have minimal voice in designing the regulations, standards and provisions
that must be obeyed, and, as a result, compliance may be low and enforcement costs high -- a doubleedged sword. Stakeholder reactions to top-down regulatory development can have negative implications. If
penalties are increased to discourage noncompliance, businesses may migrate into a
"shadow economy," thereby fueling corruption, reducing tax revenues and evading the
regulatory regime altogether. In some societies, lengthy and costly litigation in the courts is sometimes
pursued by civil society groups to modify or eliminate imposed regulations. Antagonistic and
adversarial relations between regulatory agencies and the regulated parties may ensue, resulting
in delay or outright disregard for the regulations intent. The lack of effective and frank dialogue between the
regulators and the regulated is usually blamed for these negative consequences. There is an alternative approach to the
traditional process of regulatory formulation and implementation negotiated rulemaking or regulatory negotiation
(reg-neg). Negotiated rulemaking brings together affected stakeholder groups -- businesses, organizations, and citizens -- with the relevant
government agency and a neutral mediator or facilitator to build a consensus on the features of a new regulation before it is proposed officially by
the agency. Regulatory provisions are developed as a bottom-up participatory process of negotiation. Negotiated
rulemaking is a
fully collaborative process, in which all interested groups are convened in an "Advisory
Committee." Key issues and concerns are identified, the interests of all sides are compared and contrasted,
negotiations take place, and hopefully, agreements based on consensus are developed. In the United States, negotiated rulemaking became an
officially recommended approach to develop new regulations by federal government agencies in 1990 when the Negotiated Rulemaking Act (5
U.S.C. 561-570) was passed by Congress. A September 1993 Executive Order from the White House requires all federal agencies to consider
applying negotiated rulemaking strategies in future regulatory actions. However, the approach has been used informally by government agencies
since the 1970s. The Department of Labor, the Environmental Protection Agency (EPA), and the Department of the Interior, are its principal
proponents. By far, the EPA has been the most frequent user of negotiated rulemaking. Over 50 federal negotiated rulemaking cases have been
documented between 1982 and 1995; many more applications have been conducted in the United States at the state level . Examples of
environmental regulations developed using negotiated rulemaking in the United States include: Penalties for businesses for noncompliance with
the Clean Air Act Exceptions for licensing pesticides Performance standards for wood burning stoves Controls on volatile organic chemical
equipment leaks Standards for transporting hazardous wastes Standards for chemicals used in manufacturing wood furniture. The
experience with negotiated rulemaking in the United States has produced several benefits :
While negotiated rulemaking takes more time and effort upfront than traditional modes of developing regulations, all the stakeholders, including
government agencies, are more satisfied with the results. Participants find that with a negotiated process, the resulting regulations tend not to be
challenged in court. (In contrast, about 80 percent of all EPA regulations have been challenged in court and about 30 percent have been changed
as a result.) Less
time, money and effort are expended on enforcing the regulations. Final
regulations are technically more accurate and clear to everyone. Final regulations can be implemented
earlier and with a higher compliance rate. More cooperative relationships are established
between the agency and the regulated parties.
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
On balance, the combined results of Phase I and II of the study suggest that reg neg is superior
to conventional rulemaking on virtually all of the measures that were considered. Strikingly, the process
engenders a significant learning effect, especially compared to conventional rulemaking; participants report, moreover,
that this learning has long-term value not confined to a particular rulemaking. Most significantly, the negotiation of
rules appears to enhance the legitimacy of outcomes. Kerwin and Langbein's data indicate that process matters to
perceptions of legitimacy. n323 Moreover, as we have seen, reg neg participant reports of higher satisfaction could
not be explained by their assessments of the outcome alone. Instead, higher satisfaction seems to arise in part from a
combination of process and substance variables. This suggests a link between procedure and satisfaction, which is
consistent with the mounting evidence in social psychology that "satisfaction is one of the principal consequences of procedural fairness." n324
This potential for procedure to enhance satisfaction may prove especially salutary precisely when participants do not favor outcomes. As Tyler
and Lind have suggested, "hedonic glee" over positive outcomes may "obliterate" procedural effects; perceptions of procedural fairness may
matter more, however, "when outcomes are negative (and) organizations have the greatest need to render decisions more palatable, to blunt
discontent, and to give losers reasons to stay committed to the organization." n325
negotiations allow parties to trade interests in order to reach agreement, it would also
enable them to educate each other, pool knowledge, and cooperate in problem solving.36 In
addition, sharing responsibility for rule development would foster in the parties a sense of
ownership over the outcome, rendering it more acceptablethat is, more legitimate. Greater
legitimacy could be particularly valuable at a time of heightened frustration with
conventional rulemaking and broad dissatisfaction with government regulatio n.37 In turn,
enthusiasts hoped that greater acceptability would yield other instrumental benefits ,
including easier implementation (because obstacles to implementation would likely surface and be addressed in the
negotiations) and higher rates of compliance (because parties that consent to the rule in advance would be more likely to comply with it).38
Surely the parties would be more likely to implement a rule they helped to develop, and less inclined to sue.39 Early proponents also anticipated
that
reg neg might reduce the transaction costs associated with conventional rulemaking .40 In
the experience of many practitioners, traditional notice and comment rulemaking under section 553 of the Administrative Procedure Act had
grown needlessly time consuming and unnecessarily adversarial. As
Recall that
theorists disagree over whether complex or simple issues are best suited for negotiation. The data suggest that negotiated and conventional rules
differ in systematic ways, indicating that EPA officials do not select just any rule for negotiation. When asked how the issues for rulemaking were
established, reg neg participants reported more often than their counterparts that the participants established at least some of them (44% versus
0%). Conventional
significant difference. To illustrate the difference between complexity and clarity: If a party identified the compliance standard as the sole issue,
but failed to identify a number of sub-issues, they would be classified as having a clear understanding but not a complex one. similarly, if the
party identified two sides (business vs. environment) without recognizing distinctions among business participants or within an environmental
coalition, they would also be classified as clear but not complex in their understanding. The
debate
over the amendments had been contentious and the EPA anticipated that developing
regulations would be equally difficult. They decided to propose engaging the stakeholders
in a reg neg even though the process would be time consuming, in order to provide the EPA with the
expertise, experience, and practical insight that would be required to weigh and balance
all of the competing interests and complex issues
United States.133 Although the negotiations would focus on micrograms of pollutants, all of the participants recognized that the
economic
stakes would be calculated in the billions of dollars. There were close to one hundred separate
organizations that had an interest in these negotiations.134 The Negotiating Rulemaking Act suggests that negotiating
committees be limited to twenty-five.135 Based on the recommendations of the co-mediators/conveners, the committee was expanded to thirtyone members.136 Each
of the key interests was organized into interest caucuses. For example, there
were forty-nine cities that would be directly affected by the rule.137 They agreed to
representation by five individuals, coordinated by the executive director of the Association of State and Local Air Pollution
Control Officials.138 The petroleum interests were divided into three separate caucuseslarge and
medium sized companies, small refiners, and alternative energy refiners. Public interest
groups, including several national and regional environmental coalitions, agreed to five seats at the table, with the
designated negotiators assuming responsibility for obtaining input from the larger group .139
The organization of the group allowed for participation in work groups around each of the
key topics . The use of work groups allowed more participation by individual stakeholder
groups who did not have seats at the table, but had expertise in a particular area and
enabled them to participate more fully in caucus decision-making. The negotiations centered on the issue
of modeling and testing of formulas.140 One side argued for laboratory testing of formulas to ensure compliance with the legislation. Others
noted that in order to meet the deadlines, modeling of the formulas was the only feasible solution. The final settlement incorporated a simpler
model than had been originally contemplated, but included a process for incorporating new data. The
protection and economic growth could be married. Just prior to the recent Copenhagen
Climate Change Conference, government leaders, representatives of industry, and nongovernmental
organizations appeared in agreement on the urgency to reduce green house gas emissions.
What remained to negotiate was the menu of options, timeline, and the cost. These in themselves
represent a significant challenge, but the retreat at Copenhagen will now make each of the negotiations on strategies for reducing emissions
more difficult. It is likely that each future negotiation will begin with a debate over whether a crisis truly exists. Nevertheless, as the discussion in
this article has demonstrated, the
interests . Mediation is not the only tool that can accomplish these objectives, but it is a process that has been
successfully implemented in regulations and tested across the United States and in Canada
at all levels of government. It is also a tool that can be complemented by other strategies
and techniques for engaging public engagement.
Reg neg is better than conventional rulemaking
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
In this article, we present an original analysis and summary of new empirical evidence from Neil Kerwin and Laura Langbein's two-phase study
of Environmental Protection Agency (EPA) negotiated rulemakings. n5 Their qualitative and (*62) quantitative data reveal more about reg neg
than any empirical study to date; although not published in a law review article until now, they unquestionably bear upon the ongoing debate
among legal scholars over the desirability of negotiating rules. Most importantly, this is the first study to compare participant attitudes toward
negotiated rulemaking with attitudes toward conventional rulemaking. The findings of the studies tend, on balance, to undermine arguments made
by the critics of regulatory negotiation and to bolster the claims of proponents. Kerwin and Langbein found that, according to participants in the
study, reg
neg generates more learning, better quality rules, and higher satisfaction compared
to conventional rulemaking. n6 At the same time, stakeholder influence on the agency
remains about the same using either approach. n7 Based on the results, we recommend
more frequent use of regulatory negotiation, accompanied by further comparative and
empirical study, for the purposes of establishing regulatory standards and resolving
implementation and compliance issues. This recommendation contradicts the prevailing
view that the process is best used sparingly, n8 and even then, only for narrow questions of
implementation. n9
Reg negs solve better
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
The Primary Objective of Negotiated Rulemaking Is To Create Better and More Widely Accepted Rules. Coglianese argues throughout his article
that the primary benefits of negotiated rules were seen by its advocates as being the reduction in time and in the incidence of litigation.93 While,
both benefits have been realized, neither was seen by those who established it as the predominant factor in its use. For example, Peter Schuck
wrote an important early article in which he described the
a hierarchy.94 Schuck emphasized a number of shortcomings of the adjudicatory nature of hybrid rulemaking and many benefits of direct
negotiations among the affected parties. The tenor of his thinking is reflected by his statement, a
bargained solution depends for its legitimacy not upon its objective rationality, inherent
justice, or the moral capital of the institution that fashioned it, but upon the simple fact
that it was reached by consent of the parties affected.95 And, it encourages diversity, stimulates the parties to
develop relevant information about facts and values, provides a counter-weight to concentrations of power, and advances participation by those
the decisions affect.96 Nowhere in his long list of benefits was either speed or reduced litigation, except by implication of the acceptability of
the results. My own article that developed the recommendations97 on which the ACUS Recommendation,98 the Negotiated Rulemaking Act, and
the practice itself are based describes the anticipated benefits of negotiated rulemaking: Negotiating
exposure was not emphasized if even mentioned directly To be sure, the Congressional findings that precede the
Negotiated Rulemaking Act mention the savings of time and litigation, but they are largely the by-product
of far more significant benefits:102 (2) Agencies currently use rulemaking procedures that
may discourage the affected parties from meeting and communicating with each other, and
may cause parties with different interest to assume conflicting and antagonistic positions
and to engage in expensive and time-consuming litigation over agency rules. (3) Adversarial
rulemaking deprives the affected parties and the public of the benefits of face-to-face
negotiations and cooperation in developing and reaching agreement on a rule. It also
deprives them of the benefits of shared information, knowledge, expertise, and technical
abilities possessed by the affected parties 4) Negotiated rulemaking, in which the parties
who will be significantly affected by a rule participate directly in the development of the
rule, can provide significant advantages over adversarial rulemaking. (5) Negotiated
rulemaking can increase the acceptability and improve the substance of rules, making it
less likely that the affected parties will resist enforcement or challenge such rules in court.
It may also shorten the amount of time needed to issue final rules . Thus, those who were
present at the creation of reg neg sought neither expedition nor a shield against litigation.
Rather, they saw direct negotiations among the parties
recognized in the Administrative Procedure Act
more widely accepted. Those benefits were seen as flowing from the participation of those
affected who bring with them a practical insight and expertise that can result in rules that
are better informed, more tailored to achieving the actual regulatory goal and hence more
effective, and able to be enforced.
Reg negs are the best type of negotiations
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962//ghs-kw)
There are reasons to be optimistic about what regulatory negotiations can produce in even
a troubled administrative state. Jody Freeman noted that one important finding from the Kerwin and Langbein studies were
that parties involved in negotiated rulemaking were able to use the face-to-face contact as a
learning experience.49 Barton Thompson has noted in his article on common-pool resources problems50 that one reason that resource
users resist collective action solutions is that it is evidently human nature to blame others for the existence
of resource shortages. That in turn leads to an extreme reluctance by resource users to
agree to a collective action solution if it involves even the most minimal personal sacrifices. Thompson suggests that the
one hope for curing resource users of such self-serving myopia is face-to-face contact and the
exchange of views. The vitriol surrounding some environmental regulatory issues suggests that there is a similar human
reaction occurring with respect to some resource conflicts.51 Solutions to environmental problems and
resource conflicts on which regulated parties and environmental organizations hold such strong and disparate views may require face-toface contact to defuse some of the tension and remove some of the demonization that has arisen in
the these conflicts. Reinvention, with the emphasis on negotiations and face-to-face contact, provides such an
opportunity. 52 Farber has argued for making the best of this trend towards regulatory negotiation characterizing negotiated rulemaking
and reinvention. 53 Faced with the reality that some negotiation will inevitably take place because of the
slippage inherent in our system of regulation, Farber argues that the best model for allowing it to
go forward is a bilateral one. A system of bilateral negotiation would clearly be superior to
a system of self-regulation, as such a Farber has argued for making the best of this trend towards regulatory negotiation
characterizing negotiated rulemaking and reinvention. A system of bilateral negotiation would clearly be superior to a system of self-regulation,
as such a system would inevitably descend into a tragedy of the commons.54 But a
environmental organizations can monitor regulatory bargains, and the availability of citizen suits, so that environmental organizations could
remedy regulatory bargains that exceed the dictates of the underlying statute. Environmental organizations would thus play the role of the
watchdog, rather than the active participant in negotiations. The finding of Kerwin and Langbein that resource constraints sometimes caused
environmental organizations, especially smaller local ones, to skip negotiated rulemakings would seem to support this conclusion. 56 A much
more efficient use of limited resources would require that the environmental organization
attempt to play a deterrent role in monitoring negotiated rulemakings.
Compliance
Reg neg improves regulation compliance
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
D. Compliance The compliance implications of consensus-based processes remain a matter of speculation.360 No one has yet produced empirical
data on the relationship between negotiated rulemaking and compliance, let alone data comparing the compliance implications of negotiated and
conventional rules.361 However, the Phase II results introduce interesting new findings into the debate. The
to the extent that compliance failures are at least partly due to technical
and information deficitsrather than to mere political resistanceit seems plausible that
reports of the learning effect and more horizontal sharing of information might help to
improve compliance in the long run.364 The claim that reg-neg could improve compliance is
consistent with social psychology studies showing that in both legal and organizational
settings, fair procedures lead to greater compliance with the rules and decisions with
which they are associated.365 Similarly, negotiated rulemaking might facilitate compliance by
bringing to the surface some of the contentious issues earlier in the rulemaking process, where
they might be solved collectively rather than dictated by the agency. Although speculative, these hypotheses seem to fit better with Kerwin and
Langbeins data than do the rather negative expectations about compliance. Higher
Cost
Reg negs are more cost effective
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin
and
Langbeins important work provides the only rigorous, empirical evaluation that compares
a number of factors of conventional and negotiated rulemaking. Their overall conclusion is: Our research
contains strong but qualified support for the continued use of negotiated rulemaking. The
strong support comes in the form of positive assessments provided by participants in
negotiated rulemaking compared to assessments offered by those involved in conventional
form of regulation development. Further, there is no evidence that negotiated rules
comprise an abrogation of agency authority, and negotiated rules appear no more (or less)
subject to litigation that conventional rules. It is also true that negotiated rulemaking at the EPA is used largely to
develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than those that set
the substantive standards themselves. However, participants assessments
negotiated rules were viewed more favorably in every criteria, and significantly so in
several dimensions that are often contentious in regulatory debates the economic efficiency of the
rule and its cost effectiveness the quality of the scientific evidence and the incorporation of appropriate technology, and personal experience
is not usually considered in dialogues over regulatory procedure, Kerwin and Langbeins findings here too favor negotiated rules. Conclusion.
The benefits envisioned by the proponents of negotiated rulemaking have indeed been
realized. That is demonstrated both by Coglianeses own methodology when properly
understood and by the only careful and comprehensive comparative study . Reg neg has
assessments are
significantly more positive than those of participants in conventional rule making. In short, the process
itself seems to affect participants' views of the rule making, independent of differences
between the types of rules chosen for conventional and negotiated rule making, and
independent of differences among the participants, including differences in their views of
the economic net benefits of the particular rule. This finding is consistent with theoretical expectations regarding the
relatively less complex. But even when these and other variables are controlled, reg neg participants' overall
importance of participation and the importance of face-to-face communication to increase the likelihood of Pareto-improving social outcomes.
With respect to participation, previous research indicates that compliance
presented in this study shows that reg neg participants rated the overall
process (with and without statistical controls in exhibits 9 and 1 respectively) and the ability of EPA equitably to
implement the rule (exhibit 1) significantly higher than conventional rule-making participants
did. Further, while conventional rule-making participants were more likely to say that there was no party with disproportionate influence during
the development of the rule, reg neg participants voluteered significantly more positive comments and significantly fewer negative comments
about the process overall. In general, reg
manufactured wood burning stoves, remarked about the woodstoves rule, which would put
him out of business, that he felt satisfied even as he participated in his own "wake." It remains
for further research to show whether this warm glow affects long term compliance and whether it extends to affected parties who were not direct
participants in the negotiation process. It is unclear from our research whether greater satisfaction with negotiated rules implies that negotiated
rules are Pareto-superior to conventionally written rules.13 Becker's (1983) theory of political competition among interest groups implies that in
the absence of transactions costs, groups that bear large costs and opposing groups that reap large benefits have directly proportional and equal
incentives to lobby. Politicians who seek to maximize net political support respond by balancing costs and benefits at the margin, and the
resulting equilibrium will be no worse than market failure would be. Transactions costs, however, are not zero, and they may not be equal for
interests on each side of an issue. For example, in many environmental policy issues, the benefits are dispersed and occur in the future, while
some, but not all, costs are concentrated and occur now. The consequence is that transactions
beneficiaries than for losers. If reg neg reduces transactions costs compared to conventional rule making, or if reg neg reduces
the imbalance in transactions costs between winners and losers, or among different kinds of winners and losers, then it might be
reasonable to expect negotiated rules to be Pareto-superior to conventionally written rules.
Reg neg may reduce transactions costs in two ways. First, participation in writing the
proposed rule (which sets the agenda that determines the final rule) is direct, at least for the participants. In conventional
rule making, each interest has a repeated, bilateral relation with the rule-making agency; the rule-making agency proposes
the rule (and thereby controls the agenda for the final rule), and affected interests respond separately to what is in the agency proposal. In
negotiated rule making, each interest (including the agency) is in a repeated N-person set of mutual relations; the negotiating group drafts the
proposed rule, thereby setting the agenda for the final rule. Since
Delays/Speed
Reg negs solve faster and betterCoglianeses results concluded neg when properly
interpreted
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin
a study of negotiated rulemaking by examining what actually occurs in a reg neg versus the development of rules by
conventional means. To establish the requisite comparison, they collected data on litigation, data from the comments on proposed rules, and data
from systematic, open-ended interviews with participants in 8 negotiated rules . . . and in 6 comparable conventional rules.104 They
interviewed 51 participants of conventional rulemaking and 101 from various negotiated rulemaking committees.105 Kerwin
and
Langbeins important work provides the only rigorous, empirical evaluation that compares
a number of factors of conventional and negotiated rulemaking. Their overall conclusion is: Our research
contains strong but qualified support for the continued use of negotiated rulemaking. The
strong support comes in the form of positive assessments provided by participants in
negotiated rulemaking compared to assessments offered by those involved in conventional
form of regulation development. Further, there is no evidence that negotiated rules
comprise an abrogation of agency authority, and negotiated rules appear no more (or less)
subject to litigation that conventional rules. It is also true that negotiated rulemaking at the EPA is used largely to
develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than those that set
the substantive standards themselves. However, participants assessments
negotiated rules were viewed more favorably in every criteria, and significantly so in
several dimensions that are often contentious in regulatory debates the economic efficiency of the
rule and its cost effectiveness the quality of the scientific evidence and the incorporation of appropriate technology, and personal experience
is not usually considered in dialogues over regulatory procedure, Kerwin and Langbeins findings here too favor negotiated rules. Conclusion.
The benefits envisioned by the proponents of negotiated rulemaking have indeed been
realized. That is demonstrated both by Coglianeses own methodology when properly
understood and by the only careful and comprehensive comparative study . Reg neg has
proven to be an enormously powerful tool in addressing highly complex, politicized rules.
These are the very kind that stall agencies when using traditional or conventional
procedures.107 Properly understood and used appropriately, negotiated rulemaking does
indeed fulfill its expectations
Reg neg is bettersolves faster
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Properly understood, therefore,
EPA to fulfill its goal was 751 days or 32% faster than traditional rulemaking. This
knocks a full year off the average time it takes EPA to develop rule by the traditional
method. And, note these are highly complex and controversial rules and that one of them
survived Presidential intervention. Thus, the dynamics surrounding these rules are by no
mean average. This means that reg negs actual performance is much better than that.
Interestingly and consistently, the average time for all of EPAs reg negs when viewed in context is virtually identical to that of the sample drawn
by Kerwin and Furlong77 differing by less than a month. Furthermore, if all of the reg negs that were conducted by all the agencies that were
included in Coglianeses table78 were analyzed along the same lines as discussed here,79 the
rulemakings drops to less than 685 days.80 No Substantive Review of Rules Based on Reg Neg Consensus. Coglianese
argues that negotiated rules are actually subjected to a higher incident of judicial review than are rules developed by traditional methods, at least
those issued by EPA.81 But, like his analysis of the time it takes to develop rules, Coglianese fails to look at either what happened in the
negotiated rulemaking itself or the nature of any challenge. For example, he makes much of the fact that the Grand Canyon visibility rule was
challenged by interests that were not a party to the negotiations;82 yet, he also points out that this rule was not developed under the Negotiated
Rulemaking Act83 which explicitly establishes procedures that are designed to ensure that each interest can be represented. This challenge
demonstrates the value of convening negotiations.84 And, it is significantly misleading to include it when discussing the judicial review of
negotiated rules since the process of reg neg was not followed. As for Reformulated Gasoline, the rule as issued by EPA did not reflect the
consensus but rather was modified by EPA under the direction of President Bush.85 There were, indeed, a number of challenges to the application
of the rule,86 but amazingly little to the rule itself given its history. Indeed, after the proposal was changed, many members of the committee
continued to meet in an effort to put Humpty Dumpty back together again, which they largely did; the
paints a substantially
misleading picture by failing to distinguish substantive challenges to rules that are based on
a consensus from either challenges to issues that were not the subject of negotiations or
were filed while some details were worked out. Properly understood, reg negs have been
phenomenally successful in warding off substantive review.
Reg Neg solves best---faster implementation, no risk of rollback, more agency cooperation,
and better rules
Stewart 1
(Richard B. Stewart is a Professor of Law @ New York University School of Law. This article was presented at Capital University Law
School Symposium on Second Generation Environmental Policy and the Law. ARTICLE: A NEW GENERATION OF
ENVIRONMENTAL REGULATION? Published 2001. Print.) Deng
b. Negotiated rulemaking Negotiated rulemaking, also known as regulatory negotiation or "reg neg", has emerged in the last two decades as an alternative to the
standard Administrative Procedure Act rulemaking process for federal agencies. n266 It has been used in connection with the development of environmental
regulations in an effort to make requirements more functional and (*88) practicable. n267 Regulatory negotia-tion uses a process of informal negotiation involving the
regulatory agency, regulated industry, and other stakeholders (including environmental and consumer groups and state and local governments) in an effort to obtain
consensus on a proposed rule that is then subject to the standard no-tice-and-comment rulemaking procedure. n268 Regulatory negotiation seeks to reduce the cost and
delay of the standard process, which has be-came somewhat "ossified," n269 and to fashion rules that are more responsive to the concerns of inter-ested stakeholders.
n270 Proponents of regulatory negotiation argue that it leads to more workable rules that are based on better information and enjoy greater perceived legitimacy,
resulting in less litigation and greater compliance. n271 By enlisting the regulated community and other stakeholders in the devel-opment of new rules, and by
encouraging a free give and take of information and ideas, the process may ameliorate some of the problems faced by centralized regulators in acquiring and
processing in-formation and in devising appropriate commands to govern the conduct of many different firms and facilities. As discussed in the previous section, there
is little prospect in the United States of using the European model of macrocontract environmental agreements between government and regulated in-dustry as an
alternative to traditional government regulation. Regulatory negotiation is the closest U.S. equivalent to the European practice. The important differences are that the
negotiation process in-volves not only the regulatory agency and regulated industry, but also environmental and consumer groups and other stakeholders. n272 The
results of the negotiation must subsequently go through the standard rulemaking procedures and are subject to judicial review. n273 The resulting rule becomes an
official legally binding instrument of public law (*89) enforceable as such. n274 Accordingly, regu-latory negotiation is a hybrid in which the standard model of
administrative regulation and procedure plays the predominant role; it therefore represents only a very limited degree of acceptance by the U.S. regulatory system of a
bargaining or corporatist model of administrative law. The Administrative Conference of the United States first published a set of criteria for using nego-tiation in
connection with federal agency rulemaking and non- binding guidelines for its conduct in 1982. n275 EPA became one of the pioneers of negotiated rulemaking
within the federal government, employing it successfully on two occasions in 1985. n276 EPA continues to employ negotiated rulemak-ing more often than any other
federal agency. n277 In the wake of these experiences, "reg neg" devel-oped considerable support, resulting in enactment of the Negotiated Rulemaking Act of 1990.
n278 The negotiated rulemaking process begins when either the agency proposes a new rule or an inter-ested party requests that "reg neg" be used for a proposed rule.
If the agency decides that the issue is one that might be appropriate for negotiated rulemaking, a neutral convener, who is selected, conducts a feasibility analysis.
n279 After a final determination to (*90) use the negotiation process is made and interested stakeholders are identified, a notice is published in the Federal Register.
n280 Any addi-tional interested parties may request to be included in the negotiations. n281 When the parties are chosen, a negotiation committee is established and
chartered under the Federal Advisory Committee Act. n282 The negotiations typically last approximately six months. They seek to obtain consensus on the lan-guage
of the rule to be proposed by the agency. n283 After a proposed agency rule is drafted on the basis of the negotiations and is publicized by the agency, the rulemaking
enters the normal public comment period, followed by agency analysis of the comments and promulgation of the final rule. The negotiation committee has no formal
role in the rulemaking process. The process thus takes place within the confines of the Administrative Procedure Act, and thus, unlike contractual agreements between
benefits of negotiated
rulemaking, where used appropriately, are several. First, the process can shorten the length of time
required from the beginning of the process until the issuance of the final rule . Consensus on
the part of the principal stakeholders greatly reduces or eliminates adverse com-ments on a proposed role and the time and effort
(which may include gathering new data and con-ducting new studies and analyses) needed for the agency to respond. In a recent study, Kerwin and
Furlong found that EPA rules that were developed using the negotiation process took an average of
2.1 years from start to finish, against an average of 3.0 years for the typical EPA rule. n284 Additionally, anecdotal
regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The
evidence indicates that in (*91) some cases, proposals for rules that had been languish-ing for as long as ten years were resolved relatively quickly after going through
nature. This invites parties to take extreme positions in order to preserve later challenges, and leaves the agency presented with polar views. n288 Not only does this
make it more difficult for EPA to determine what stakeholders' true priorities are, but it leads to the withholding of information which might be useful to EPA in
drafting aworkable and appropriate rule. Thus the negotiation process may facilitate a freer exchange of information among parties, producing (*92) more practical
rules that can take account of "re-al-world" consequences. EPA managers have reported that the negotiation exercises that they par-ticipated in were worthwhile for
this reason even where no consensus was reached. For all its potential benefits, there are numerous problems with negotiated rulemaking. While it appears to have
been comparatively successful on those occasions on which it has been used, it has been used comparatively few times. Professor Coglianese's research indicates that
negotiated rule-making was used by federal agencies in less than one tenth of one percent of regulations adopted from 1983 to 1996. n289 While this does not prove
that the process lacks utility, especially given that many of the regulations issued were undoubtedly routine in character, it suggests that the scope for its success-ful
use is limited. Negotiated rulemaking has been criticized as producing results that accommodate the priorities of organized interest groups rather than serving the
public interest. n290 Proponents argue that the public will be represented by an appropriate group or alliance of interest groups, and that EPA retains its role as the
guardian of public interest. n291 It may, however, not be practicable to represent all interested stakeholders and the diverse interests of the public adequately in a small
group setting. Also, many relevant interests among the public may not be organized sufficiently to participate effectively. Pro-fessor William Funk argues that the
public interest may transcend the discrete interests of particular groups. Although the agency is charged with representing the overall public interest, the claims that in
dynamic negotiations, it must "bargain and trade its 'interests' (the public interest) in the same way the other participants may trade their interests." n292 Additionally,
negotiated rulemaking may lead to results that satisfy the interests at the table but that are of questionable legality. "Hardwiring" the rule through negotiations behind
closed doors arguably subverts the notice and comment rulemaking process and undermines agency independence and ac-countability. Professor Funk was a
participant in one of EPA's earliest efforts at regulatory negotiation, the air pollution emission standards for wood stoves. He concludes that the rule that resulted from
the negotiations was beyond the scope of EPA's authority and did not fall within the statutory mandate. n293 Funk further argues that the reg neg process usurps the
role of the agency, "first by reducing the agen-cy to the (*93) level of a mere participant in the formulation of the rule, and second, by essentially denying that the
agency has any responsibility beyond giving effect to the consensus achieved by the group." n294 The role of the judiciary in the negotiated rulemaking process has
also sparked debate. Normally, judicial review of the substance of federal agency regulations involves two steps: first, determining whether the rule is within the scope
of the agency's authority; second, determining whether the agency provided a reasoned justification, adequately supported in the rulemaking record, for its choice of
the specific provisions adopted. An agency's failure to meet this standard renders its decision "arbitrary and capricious." n295 Philip Harter, a prominent advocate of
regulatory negotiation, argues for a degree of judicial def-erence to rules produced by negotiation consensus. He argues that the negotiation process ensures that such
rule is within the scope of the agency's authority and is not arbitrary and capricious. Assuming a diverse group of interests are represented, he concludes, someone is
likely to be made worse off by a rule that is not within the agency's scope of authority, or is arbitrary, and will be unwilling to agree to it. n296 Thus, reviewing courts
should "provide a little leeway to accommodate practical interpretations and implementation." n297 In his view, the proper role of the courts is to determine whether a
valid con-sensus was reached, and, if so, whether the result plainly exceeds the agency's statutory authority. In determining the validity of the consensus reached, the
court should look at whether the petitioner's in-terests were adequately represented in the negotiation and whether it had a fair opportunity to join the process, even if
it did not directly participate. Harter points out that there will be little incentive to par-ticipate in regulatory negotiations if non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system
parties' collaboration,
however, fostered trust, just as the literature on negotiated rulemakings predicted. No
party charged that the mistake was intentional or otherwise caused by culpable conduct.
Instead, the immediate focus was on whether the calculation, as changed, was accurate.
Then, with the accuracy verified, the facilitator led the parties in looking for ways of
restructuring the agreement to account for the new data. Ultimately, however, the parties found no way around
the problem. The question then became whether the industry was prepared to accept an agreement that, because of the new amp figure, could
have greater regulatory impacts on small facilities. At this point a second feature of the negotiations, discussed above, paid dividends: the detailed
technical analysis that was the result of the collaboration between the parties. (272) As part of that analysis, the District staff had described the
metal finishing industry in a very detailed manner. Part of this description involved site visits by agency personnel to measure how close plants
actually were to individual receptors. This characterization involved a level of resource commitment by the District not usually found in a typical
rulemaking. Using this data, the staff determined that, after correcting for the mistake, the increase in amp hours would affect only three facilities.
Furthermore, because one of the three facilities had already exceeded the original emission threshold, the change in amp hours would not affect
the compliance measures required of it. Given this data, the parties then agreed that a facility could exceed the 365,000 amp-hours up to a level of
500,000 amp-hours and receive only one "strike" against it for violation purposes. If 500,000 amp-hours were exceeded, add-on controls would
be required. (273) Based upon the information that a very small number of facilities would be affected, and on the agreement providing additional
flexibility for exceedances of the 365,000 amp-hour level, the industry accepted the framework that the parties had previously crafted. The
actions by the parties in the aftermath of the mistaken calculation suggest that, as the
negotiation literature generally predicts, the parties to the negotiation interacted quite
differently than they would have in a normal rulemaking. They accepted the mistake as one
made in good faith, and they used the extensive data compiled to accurately predict the
effect that the mistake would have on the overall agreement. The parties' attitude during
this period--particularly that of the industry, which bore the brunt of the mistake--suggests
the negotiating environment led to a bond among the parties that did not easily fray when
put under strain. There was a second indication of the level of trust in the metal finishing negotiations. As set forth above, a key
provision of the general agreement reached by the parties was that small facilities would have to install expensive HEPA filter technology if they
committed three "violations." (274) Defining a "violation" in this type of context, however, can prove quite difficult, (275) a fact the parties
immediately recognized. As a result, they spent some time trying to agree on the definition of a "violation." The effort was partially successful.
(276) However, the agreement left many issues to be fleshed out in the protocol that the District would adopt to implement the rules. That the
parties, particularly the industry members who would have to comply with the requirements, were willing to leave significant issues such as
defining a "violation" to the subsequent implementation process (277) testifies to the level of trust established. The industry was willing to accept
this outcome because it believed that, based on the negotiation, it would have significant input into the implementation of the rule. Finally, one
incident during the negotiations demonstrated how the attainment of civility was principally due to the efforts of the facilitator. At a date quite late
in the negotiations, the facilitator was late for a working group meeting due to a travel delay, and the meeting began without him. Interestingly, to
an outside observer, the change in tone and the increased contentiousness at the meeting was immediately apparent. When the facilitator finally
arrived, the parties took a break. Thereafter, the tone immediately returned to the civility that heretofore was the hallmark of the negotiation.
(278)
negotiation
process allows the interested, affected parties a more direct input into the drafting of the regulation,
thus ensuring that the rule is more sensitive to the needs and limitations of both the parties
and the agency. Rules drafted by negotiation have been found to be more pragmatic and
more easily implemented at an earlier date, thus providing the public with the benefits of the rule while minimizing the
negative impact of a poorly conceived or drafted regulation.
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
This debate remained largely theoretical until empirical evidence about regulatory
negotiation began to emerge in the latter half of the 1980s and 1990s. Early accounts were
mostly anecdotal, written by participants in individual reg negs or by scholars studying a few reg
negs at a time.60 These studies largely ignored proponents theoretical claims that reg neg would improve rule quality and increase
legitimacy. Instead, they
and litigation rates.61 The EPAs first commissioned study of its first seven reg negs concluded that
negotiated rulemaking produced rules more quickly than conventional rulemaking and
was less resource intensive .62 While acknowledging heavy investment in front-end negotiations, the EPA calculated
that when it negotiated rules, it spent approximately half the time and money it ordinarily
would have spent to collect and analyze data and to respond to public comments .63 In
addition, the report claimed that negotiating rules increased the likelihood that
rulemaking would be completed on time , saving significant staff hours. Still, the EPA conceded that the data were
inconclusive with respect to whether negotiation resulted in a net saving of resources.
Democratic Process/Fairness
Reg Neg leads to a better democratic process
Seidenfeld 13
(Mark Seidenfeld is a Professor of Administrative Law @ The Florida State University College of Law Annual Review of
Administrative Law: Foreword: The Role of Politics in a Deliberative Model of the Administrative State Published August 2013. Print)
Deng
B. Collaborative Governance Collaborative
Consensus decision rules used in reg neg are thought to engender two different effects: while they raise conflict and cost
during the decision-making process itself,256 they increase satisfaction once the parties reach agreement. This
view presupposes that conventional rulemaking involves no informal consensual decision making, a presupposition contradicted by the study. In
fact, conventional rulemaking participants reported informal contact with both EPA and other parties. One-quarter of conventional rule
participants reported that they engaged in informal negotiations.257 Despite this evidence of informal contact, the data suggest that
negotiated rulemaking achieved a higher level of consensus among participants. When asked what
constituted a consensus, 90% of reg neg participants responded either unanimity or what we could
all live with,258 both consistent with a consensual process. By contrast, 45% of conventional participants
responded what EPA wanted ; no reg neg respondents defined consensus in this
manner. 259 What EPA wanted does not describe a consensual process. When the more
consensual reg neg process was used, respondents reported greater satisfaction both with
the process and with the net benefits of the final rule to their organization.260 Moreover, the standard
deviation of judgments was smaller under reg neg.261 These results support the theory that relatively more consensual
decision rules lead to greater satisfaction with outcomes, greater homogeneity in judgments about those
outcomes, and less conflict.
The process is equal and fair
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
On balance, the combined results of Phase I and II of the study suggest that reg
much the parties learned in each process, and whether they experienced resource or information disparities. Negotiated rule participants were
significantly more likely to say that
versus 33% respectively). Al-though a higher proportion of conventional rulemaking participants reported that a party that should have been
represented in the rulemaking was omitted, the difference is not statistically significant. Specifically, "a majority of both negotiated and
conventional rule participants believed that the parties who should have been involved were involved (66% versus 52% respectively)." In
addition, as reported above, participants in regulatory negotiations reported significantly more learning than their conventional rulemaking
counterparts. Indeed, the disparity between the two types of participants in terms of their reports about learning was one of the study's most
striking results. At the same time, the resource disadvantage of poorer, smaller groups was no greater in negotiated rulemaking than in
conventional rulemaking. So, while
much greater in regulatory negotiation, the process may in fact be more fair.
Info Sharing
AFF cant solvereg neg accesses private sector innovation
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
VI. EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS This section evaluates the "success" of the negotiations. It does so through
the lens of seven specific features of the negotiation process: 1) the role of information, 2) expansion of the universe of outcomes, 3) the effect of
public agency institutional arrangements, 4) the scale of the negotiation, 5) the role of civility and trust, 6) the threat of a unilateral alternative,
and 7) the tractability of the dispute. These features, commonly cited in the literature on negotiated rulemaking, (169) are useful indicators for
contrasting the negotiation process with the norm of notice and comment rulemaking. A. The Role of Information: Gathering and Exchange 1.
The Debate on the A vailability of Information The traditional administrative law model envisions that agency experts will propose a regulation
and then provide opportunity for public comment before final adoption of the rule. (170) While the "reformation" of administrative law called
into question the model of administrative action based on agency expertise, (171) the
regulatory agencies may have a difficult time evaluating the feasibility of various control
options. The issue is not simply a failure of public agency management to acquire expertise, (176) nor is it solely a question of the failure of
agencies equipped with information-gathering ability to obtain the specific information needed. (177) The problem is more fundamental. As
might be expected in a market economy, air
agency
and interested parties participate in other, informal types of interaction. Some
commentators have even suggested that these types of interactions in notice and comment
rulemaking are functionally no different from the interactions in a negotiated rulemaking.
(180) But agency responses to written comments tend to be legalistic and designed to comply with the legal duty to respond, rather than to
convey meaningful information. (181) These informal interactions simply do not rise to the level of the "give and take" found in a negotiation. In
short, the nature and process of "negotiation" that takes place in a notice and comment rulemaking is qualitatively different from the negotiation
in a negotiated rulemaking. (182) Suggestions to the contrary overlook fundamental differences in the underlying processes. (183) Some
commentators also have suggested that negotiation is an ineffective means of resolving factual matters. (184) Others go even further, arguing that
an agency should not undertake a negotiation where technical support for the rule does not exist, (185) or alternatively that in negotiations, data
becomes a "bargaining chip" rather than the foundation for deliberation. (186) Still other commentators disagree, asserting that negotiation
provides the agency with a more complete understanding of the factual grounds for the regulation. (187) In
Negotiations solve through information exchange solves litigation, costs, and time frame
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
2. The Effective Exchange of Information The metal plating negotiations support the conclusion that negotiation
can produce a
heightened level of information exchange. The efforts of the parties to meaningfully exchange information far exceeded
the norm in a notice and comment rulemaking, (191) and the data exchange was substantial. (192) Furthermore, the flexibility
provided by the negotiation format allowed the initiation of processes for compiling
additional information that would not take place in notice and comment rulemaking . For
example, the parties to the metal finishing negotiation sent a number of specific information requests to the District staff. The parties also
exchanged informal requests for information about the underlying basis of their respective positions. Most of the data requests were sent by the
industry to the District staff, and the staff responded, although sometimes not as quickly as industry would have liked. (193) Indeed, the burden
on the staff was significant. (194) The District staff manager who led the negotiating team stated that the District had "never done this level of
policy analysis in a particular rule" (195) and estimated that the negotiation process took fifty percent longer to complete than the "normal" notice
and comment rulemaking. (196) Most importantly, the
fashioning the final rule. One example of the effectiveness of the data exchange was the resolution of a dispute over emission
factors used to estimate the risk from chromic acid emissions. To estimate that risk, emissions from plating tanks must first be calculated. This
calculation requires multiplying an emission factor (milligrams per ampere-hour) by actual or estimated activity data for a tank (ampere-hours per
year). The resulting figure is then converted to mass emissions in pounds per year. (197) The emission factor used in this calculation is either
based on actual test data, or is assumed where that data is not available. (198) One recurring industry complaint was that the District had used one
set of emission factors during the calculation of the District rule in place prior to the negotiated rulemaking, but it used another set of emission
factors for compliance purposes. (199) To resolve this complaint, the parties to the negotiation attempted to find common technical ground on the
emission factor to be used. At the outset of the rule development process, the uncontrolled emission factor was assumed to be 5.2 mg/amperehour for hard chrome, and 2.6 mg/ampere-hour for decorative chrome and chromic acid anodizing. (200) Ultimately, the Technical Subcommittee
agreed on an uncontrolled emission factor of 4.4 mg/ampere-hour for all hexavalent chrome plating and chromic acid anodizing. (201) The
the industry was quite enthusiastic about the technical progress made during the
negotiation process. (204 Even if the parties had been unable to agree on a final rule, the technical basis for regulating plating sources
was much improved because of information compiled during the negotiations. Indeed, it may well be that the technical
progress itself justified the efforts and costs that the parties put into the negotiated
rulemaking. (205) Because of the data exchange, by the end of the negotiation there was little dispute over the technical basis for the rule.
In contrast, the normal rulemaking process often does not resolve technical disputes, as the process is not designed to facilitate the kinds of good
faith exchanges that might lead to such a resolution. Instead, the
Thus, to the extent that one asks whether negotiated rulemaking "has demonstrated a
capability for alleviating the adversarialism that plagues the pluralist interactions of
interest groups," (208) the answer, at least in this instance, is positive. In this case, the information allowed the parties to understand the
true costs that would be imposed on industry if the rule required enhanced regulation of plating facilities near sensitive receptors. In short, it was
not a psychological benefit of negotiation that led the parties to accept the outcome (although those benefits did exist); it was the concrete data
obtained through the process. To employ a term found in one article raising the issue of the legitimacy of negotiation, the
technical
They can share information about what is important to them and what is not. They
are free to collectively explore and evaluate different regulatory possibilities. If all the
parties can reach agreement, then the text of their rule becomes the proposed rule that is
then subject to the required regulatory process. The benefits of reg-neg include greater
access to key informa- tion, ability to rank and trade off interests to maximize value, and
opportunities to interact with and educate other stakeholders and bureaucrats."' The
regulatory negotiation process also facilitates more informed, workable, and pragmatic
rules than traditional rulemaking provides."' Other studies have identified the follow- ing benefits: more
interaction builds relationships and increases commitment to a successful result, reg-neg is
a powerful vehicle for learning, and a majority of participants consider their contributions
to have major or moderate impact on the outcome"? For exam- ple, reg-negs were effective in negotiating permit
modifications under the Resource Conservation Recovery Act ("RCRA"), set- ting emissions standards for wood stoves, and implementing underground injection controls."-3 Parties involved in the permit modifications under RCRA felt as though they would not have been able to reach the
consensus that they did with the conven- tional approach to EPA rulemakingf" The
Regulation Quality
Reg negs result in better rules
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Early proponents
negotiations allow parties to trade interests in order to reach agreement, it would also
enable them to educate each other, pool knowledge, and cooperate in problem solving.36 In
addition, sharing responsibility for rule development would foster in the parties a sense of
ownership over the outcome, rendering it more acceptablethat is, more legitimate. Greater
legitimacy could be particularly valuable at a time of heightened frustration with
conventional rulemaking and broad dissatisfaction with government regulatio n.37 In turn,
enthusiasts hoped that greater acceptability would yield other instrumental benefits ,
including easier implementation (because obstacles to implementation would likely surface and be addressed in the
negotiations) and higher rates of compliance (because parties that consent to the rule in advance would be more likely to comply with it).38
Surely the parties would be more likely to implement a rule they helped to develop, and less inclined to sue.39 Early proponents also anticipated
that
reg neg might reduce the transaction costs associated with conventional rulemaking .40 In
the experience of many practitioners, traditional notice and comment rulemaking under section 553 of the Administrative Procedure Act had
grown needlessly time consuming and unnecessarily adversarial. As
(Richard B. Stewart is a Professor of Law @ New York University School of Law. This article was presented at Capital University Law
School Symposium on Second Generation Environmental Policy and the Law. ARTICLE: A NEW GENERATION OF
ENVIRONMENTAL REGULATION? Published 2001. Print.) Deng
b. Negotiated rulemaking Negotiated rulemaking, also known as regulatory negotiation or "reg neg", has emerged in the last two decades as an alternative to the
standard Administrative Procedure Act rulemaking process for federal agencies. n266 It has been used in connection with the development of environmental
regulations in an effort to make requirements more functional and (*88) practicable. n267 Regulatory negotia-tion uses a process of informal negotiation involving the
regulatory agency, regulated industry, and other stakeholders (including environmental and consumer groups and state and local governments) in an effort to obtain
consensus on a proposed rule that is then subject to the standard no-tice-and-comment rulemaking procedure. n268 Regulatory negotiation seeks to reduce the cost and
delay of the standard process, which has be-came somewhat "ossified," n269 and to fashion rules that are more responsive to the concerns of inter-ested stakeholders.
n270 Proponents of regulatory negotiation argue that it leads to more workable rules that are based on better information and enjoy greater perceived legitimacy,
resulting in less litigation and greater compliance. n271 By enlisting the regulated community and other stakeholders in the devel-opment of new rules, and by
encouraging a free give and take of information and ideas, the process may ameliorate some of the problems faced by centralized regulators in acquiring and
processing in-formation and in devising appropriate commands to govern the conduct of many different firms and facilities. As discussed in the previous section, there
is little prospect in the United States of using the European model of macrocontract environmental agreements between government and regulated in-dustry as an
alternative to traditional government regulation. Regulatory negotiation is the closest U.S. equivalent to the European practice. The important differences are that the
negotiation process in-volves not only the regulatory agency and regulated industry, but also environmental and consumer groups and other stakeholders. n272 The
results of the negotiation must subsequently go through the standard rulemaking procedures and are subject to judicial review. n273 The resulting rule becomes an
official legally binding instrument of public law (*89) enforceable as such. n274 Accordingly, regu-latory negotiation is a hybrid in which the standard model of
administrative regulation and procedure plays the predominant role; it therefore represents only a very limited degree of acceptance by the U.S. regulatory system of a
bargaining or corporatist model of administrative law. The Administrative Conference of the United States first published a set of criteria for using nego-tiation in
connection with federal agency rulemaking and non- binding guidelines for its conduct in 1982. n275 EPA became one of the pioneers of negotiated rulemaking
within the federal government, employing it successfully on two occasions in 1985. n276 EPA continues to employ negotiated rulemak-ing more often than any other
federal agency. n277 In the wake of these experiences, "reg neg" devel-oped considerable support, resulting in enactment of the Negotiated Rulemaking Act of 1990.
n278 The negotiated rulemaking process begins when either the agency proposes a new rule or an inter-ested party requests that "reg neg" be used for a proposed rule.
If the agency decides that the issue is one that might be appropriate for negotiated rulemaking, a neutral convener, who is selected, conducts a feasibility analysis.
n279 After a final determination to (*90) use the negotiation process is made and interested stakeholders are identified, a notice is published in the Federal Register.
n280 Any addi-tional interested parties may request to be included in the negotiations. n281 When the parties are chosen, a negotiation committee is established and
chartered under the Federal Advisory Committee Act. n282 The negotiations typically last approximately six months. They seek to obtain consensus on the lan-guage
of the rule to be proposed by the agency. n283 After a proposed agency rule is drafted on the basis of the negotiations and is publicized by the agency, the rulemaking
enters the normal public comment period, followed by agency analysis of the comments and promulgation of the final rule. The negotiation committee has no formal
role in the rulemaking process. The process thus takes place within the confines of the Administrative Procedure Act, and thus, unlike contractual agreements between
benefits of negotiated
rulemaking, where used appropriately, are several. First, the process can shorten the length of time
required from the beginning of the process until the issuance of the final rule . Consensus on
the part of the principal stakeholders greatly reduces or eliminates adverse com-ments on a proposed role and the time and effort
(which may include gathering new data and con-ducting new studies and analyses) needed for the agency to respond. In a recent study, Kerwin and
Furlong found that EPA rules that were developed using the negotiation process took an average of
2.1 years from start to finish, against an average of 3.0 years for the typical EPA rule. n284 Additionally, anecdotal
regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The
evidence indicates that in (*91) some cases, proposals for rules that had been languish-ing for as long as ten years were resolved relatively quickly after going through
nature. This invites parties to take extreme positions in order to preserve later challenges, and leaves the agency presented with polar views. n288 Not only does this
make it more difficult for EPA to determine what stakeholders' true priorities are, but it leads to the withholding of information which might be useful to EPA in
drafting aworkable and appropriate rule. Thus the negotiation process may facilitate a freer exchange of information among parties, producing (*92) more practical
rules that can take account of "re-al-world" consequences. EPA managers have reported that the negotiation exercises that they par-ticipated in were worthwhile for
this reason even where no consensus was reached. For all its potential benefits, there are numerous problems with negotiated rulemaking. While it appears to have
been comparatively successful on those occasions on which it has been used, it has been used comparatively few times. Professor Coglianese's research indicates that
negotiated rule-making was used by federal agencies in less than one tenth of one percent of regulations adopted from 1983 to 1996. n289 While this does not prove
that the process lacks utility, especially given that many of the regulations issued were undoubtedly routine in character, it suggests that the scope for its success-ful
use is limited. Negotiated rulemaking has been criticized as producing results that accommodate the priorities of organized interest groups rather than serving the
public interest. n290 Proponents argue that the public will be represented by an appropriate group or alliance of interest groups, and that EPA retains its role as the
guardian of public interest. n291 It may, however, not be practicable to represent all interested stakeholders and the diverse interests of the public adequately in a small
group setting. Also, many relevant interests among the public may not be organized sufficiently to participate effectively. Pro-fessor William Funk argues that the
public interest may transcend the discrete interests of particular groups. Although the agency is charged with representing the overall public interest, the claims that in
dynamic negotiations, it must "bargain and trade its 'interests' (the public interest) in the same way the other participants may trade their interests." n292 Additionally,
negotiated rulemaking may lead to results that satisfy the interests at the table but that are of questionable legality. "Hardwiring" the rule through negotiations behind
closed doors arguably subverts the notice and comment rulemaking process and undermines agency independence and ac-countability. Professor Funk was a
participant in one of EPA's earliest efforts at regulatory negotiation, the air pollution emission standards for wood stoves. He concludes that the rule that resulted from
the negotiations was beyond the scope of EPA's authority and did not fall within the statutory mandate. n293 Funk further argues that the reg neg process usurps the
role of the agency, "first by reducing the agen-cy to the (*93) level of a mere participant in the formulation of the rule, and second, by essentially denying that the
agency has any responsibility beyond giving effect to the consensus achieved by the group." n294 The role of the judiciary in the negotiated rulemaking process has
also sparked debate. Normally, judicial review of the substance of federal agency regulations involves two steps: first, determining whether the rule is within the scope
of the agency's authority; second, determining whether the agency provided a reasoned justification, adequately supported in the rulemaking record, for its choice of
the specific provisions adopted. An agency's failure to meet this standard renders its decision "arbitrary and capricious." n295 Philip Harter, a prominent advocate of
regulatory negotiation, argues for a degree of judicial def-erence to rules produced by negotiation consensus. He argues that the negotiation process ensures that such
rule is within the scope of the agency's authority and is not arbitrary and capricious. Assuming a diverse group of interests are represented, he concludes, someone is
likely to be made worse off by a rule that is not within the agency's scope of authority, or is arbitrary, and will be unwilling to agree to it. n296 Thus, reviewing courts
should "provide a little leeway to accommodate practical interpretations and implementation." n297 In his view, the proper role of the courts is to determine whether a
valid con-sensus was reached, and, if so, whether the result plainly exceeds the agency's statutory authority. In determining the validity of the consensus reached, the
court should look at whether the petitioner's in-terests were adequately represented in the negotiation and whether it had a fair opportunity to join the process, even if
it did not directly participate. Harter points out that there will be little incentive to par-ticipate in regulatory negotiations if non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system
Rollback
SQ rulemaking risks rollback from unpopularity and court challenges---Reg Neg solves
best
NPS 2
(The National Park Service is an agency of the United States federal government that manages all U.S. national parks, many American
national monuments, and other conservation and historical properties with various title designations. It carries out its responsibilities in
parks and programs under the authority of federal laws, regulations, and Executive Orders, and in accord with policies and Director's
Orders established by the Director of the National Park Service and the Secretary of the Interior. NEGOTIATED RULEMAKING
Published October 23rd 2002 @ http://www.nps.gov/fiis/parkmgmt/upload/RegNeg_Process_6-20-2002.pdf) Deng
The idea of negotiated rulemaking, or reg-neg for short, is simple. In some cases, it is valuable to bring together representatives of a rulemaking
agency and stakeholders to jointly prepare the text of a proposed rule in a consensus seeking negotiation before the agency formally submits the
Traditionally rulemaking
processes often do not have the agency making the rules include stakeholders in an effective
and meaningful way early in the process of rulemaking. Agencies may draft the comments
in-house with little or no public consultation. Public hearings and meetings held to gather
comments on draft regulations typically do not encourage detailed, sophisticated, and ongoing dialogue about the issues that results in broad consensus. Consequently, traditional
rulemaking processes can produce rules that are difficult to understand, difficult to
implement, and difficult to enforce. Traditional rulemaking may result in rules that do not
have broad support from the citizens and organizations concerned with the issues and are
rule to the formal rulemaking process. Reg-Negs versus More Conventional Approaches to Rulemaking
later challenged in court . Re-negs allow the agency and stakeholders who care about the
resources under regulation to work closely to together to design rules that carefully balance
the interests of diverse parties. Together, agencies and stakeholders jointly frame issues, surface underlying assumptions,
explore interests, consider options for how the rules might be structured, and package overall rules that take into account diverse parties concerns
and interests. At its best, negotiated
of the rule to be proposed by the agency. n283 After a proposed agency rule is drafted on the basis of the negotiations and is publicized by the agency, the rulemaking
enters the normal public comment period, followed by agency analysis of the comments and promulgation of the final rule. The negotiation committee has no formal
role in the rulemaking process. The process thus takes place within the confines of the Administrative Procedure Act, and thus, unlike contractual agreements between
benefits of negotiated
rulemaking, where used appropriately, are several. First, the process can shorten the length of time
required from the beginning of the process until the issuance of the final rule . Consensus on
the part of the principal stakeholders greatly reduces or eliminates adverse com-ments on a proposed role and the time and effort
(which may include gathering new data and con-ducting new studies and analyses) needed for the agency to respond. In a recent study, Kerwin and
Furlong found that EPA rules that were developed using the negotiation process took an average of
2.1 years from start to finish, against an average of 3.0 years for the typical EPA rule. n284 Additionally, anecdotal
regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The
evidence indicates that in (*91) some cases, proposals for rules that had been languish-ing for as long as ten years were resolved relatively quickly after going through
nature. This invites parties to take extreme positions in order to preserve later challenges, and leaves the agency presented with polar views. n288 Not only does this
make it more difficult for EPA to determine what stakeholders' true priorities are, but it leads to the withholding of information which might be useful to EPA in
drafting aworkable and appropriate rule. Thus the negotiation process may facilitate a freer exchange of information among parties, producing (*92) more practical
rules that can take account of "re-al-world" consequences. EPA managers have reported that the negotiation exercises that they par-ticipated in were worthwhile for
this reason even where no consensus was reached. For all its potential benefits, there are numerous problems with negotiated rulemaking. While it appears to have
been comparatively successful on those occasions on which it has been used, it has been used comparatively few times. Professor Coglianese's research indicates that
negotiated rule-making was used by federal agencies in less than one tenth of one percent of regulations adopted from 1983 to 1996. n289 While this does not prove
that the process lacks utility, especially given that many of the regulations issued were undoubtedly routine in character, it suggests that the scope for its success-ful
use is limited. Negotiated rulemaking has been criticized as producing results that accommodate the priorities of organized interest groups rather than serving the
public interest. n290 Proponents argue that the public will be represented by an appropriate group or alliance of interest groups, and that EPA retains its role as the
guardian of public interest. n291 It may, however, not be practicable to represent all interested stakeholders and the diverse interests of the public adequately in a small
group setting. Also, many relevant interests among the public may not be organized sufficiently to participate effectively. Pro-fessor William Funk argues that the
public interest may transcend the discrete interests of particular groups. Although the agency is charged with representing the overall public interest, the claims that in
dynamic negotiations, it must "bargain and trade its 'interests' (the public interest) in the same way the other participants may trade their interests." n292 Additionally,
negotiated rulemaking may lead to results that satisfy the interests at the table but that are of questionable legality. "Hardwiring" the rule through negotiations behind
closed doors arguably subverts the notice and comment rulemaking process and undermines agency independence and ac-countability. Professor Funk was a
participant in one of EPA's earliest efforts at regulatory negotiation, the air pollution emission standards for wood stoves. He concludes that the rule that resulted from
the negotiations was beyond the scope of EPA's authority and did not fall within the statutory mandate. n293 Funk further argues that the reg neg process usurps the
role of the agency, "first by reducing the agen-cy to the (*93) level of a mere participant in the formulation of the rule, and second, by essentially denying that the
agency has any responsibility beyond giving effect to the consensus achieved by the group." n294 The role of the judiciary in the negotiated rulemaking process has
also sparked debate. Normally, judicial review of the substance of federal agency regulations involves two steps: first, determining whether the rule is within the scope
of the agency's authority; second, determining whether the agency provided a reasoned justification, adequately supported in the rulemaking record, for its choice of
the specific provisions adopted. An agency's failure to meet this standard renders its decision "arbitrary and capricious." n295 Philip Harter, a prominent advocate of
regulatory negotiation, argues for a degree of judicial def-erence to rules produced by negotiation consensus. He argues that the negotiation process ensures that such
rule is within the scope of the agency's authority and is not arbitrary and capricious. Assuming a diverse group of interests are represented, he concludes, someone is
likely to be made worse off by a rule that is not within the agency's scope of authority, or is arbitrary, and will be unwilling to agree to it. n296 Thus, reviewing courts
should "provide a little leeway to accommodate practical interpretations and implementation." n297 In his view, the proper role of the courts is to determine whether a
valid con-sensus was reached, and, if so, whether the result plainly exceeds the agency's statutory authority. In determining the validity of the consensus reached, the
court should look at whether the petitioner's in-terests were adequately represented in the negotiation and whether it had a fair opportunity to join the process, even if
it did not directly participate. Harter points out that there will be little incentive to par-ticipate in regulatory negotiations if non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system
Resolution, in its report, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes,11
divides the universe of collaborative processes into three broad categories: (1) those with the
purpose of exchanging information and improving communication and understanding; (2)
those where advice is provided to the government in the form of opinions or suggestions for
action; and (3) those where agreement is sought and decisions are made with the
government. In the third category alone, the report identifies twenty-four different terms, including
collaborative decision making, to describe collaborative processes.12 Many other terms exist for the remaining two categories
and, in many instances, different meanings are ascribed to the same term.13 Collaborative decision-making is sometimes
referred to as stakeholder involvement, public involvement, public participation, publicprivate partnership, deliberative democracy, constructive engagement, and collaborative
problem solving. The varied use of these terms demands clear definition when designing and describing processes.14 For purposes of
this article, collaborative decision making will be considered broadly and is characterized by a range of processes, some
agreement-seeking and some not, in which the government involves outside stakeholders in the
governments decision making. In some cases, where the government has no greater authority than other stakeholders,
collaborative decision making can involve an equal partnership among the stakeholders,
including the government; or the government can serve in a supporting role to facilitate
efforts of outside stakeholders in their own decision making processes. 2. General Attributes of
Collaborative Decision Making Collaborative decision making holds great promise for addressing
difficult public policy issues. There are a number of general attributes that are worth considering at the outset before discussing
why decisions on climate change are uniquely qualified to benefit from collaborative
approaches. Collaborative decision making can provide a forum for broad participation
by multiple stakeholders , facilitate cooperative learning among the participants, and
result in selection of the best policy choices.15 It ensures an opening for group creativity
and innovation
that is often lacking in traditional regulatory processes. Collaborative decision making can be particularly powerful in
the context of complex public policy issues, such as climate change, because
collaborative decisions may actually thrive when the governments authorities are clear
and purposeful. 21 Likewise, stakeholders retain their right to any alternatives to the collaborative process that are otherwise available to
them.22 Collaborative decision-making is not a panacea alternative to traditional environmental regulation and will not always be the appropriate
means of making environmental decisions. 23 It does not guarantee that cooperation among stakeholders will come easily nor does its adoption
mean that resolution of complex issues will be achieved. However, it
Multi-Stakeholder Processes FMCS makes important contributions to the successful use of regulatory negotiations and public
policy dialogues The Negotiated Rulemaking Act of 1990 authorizes FMCS to use its mediation
and facilitation services to improve government operations. As a neutral third-party, FMCS convenes and
facilitates a wide range of complex, multi-party processes, including public policy dialogues and regulatory negotiations,
helping all parties to improve their communication and relationships and reach consensus
on the issues. Convening and Facilitation of multi-stakeholder processes In the early 1980s, FMCS facilitated the first regulatory
negotiations held by the Federal Aviation Administration. FMCS involvement in regulatory negotiations, as both a
convener and facilitator, increased throughout the 1980s, with the agency facilitating
negotiations involving the Departments of Transportation, Agriculture, Labor, and other
federal agencies, and was further. After the passage of the Negotiated Rulemaking Act of 1990, FMCSs involvement in multi-party
negotiations continued to grow. The results have been very positive. By formulating rules and policies
in a public negotiating process, potential or actual antagonists become partners in helping
the agency solve a regulatory problem. Thus, the likelihood of subsequent challenges to a
new regulation is greatly reduced. How Negotiated Rulemaking Works Authorized by the Administrative Dispute Resolution
Act of 1996, FMCS offers government regulatory and enforcement agencies a better way to formulate new rules and regulations. In the
traditional rulemaking process, agency personnel draft a new regulation with little or no
outside input, publish the draft regulation in the Federal Register for the required public
comment period, and then wait for the inevitable criticism, and even legal challenges, from
those affected by the new regulation. In contrast, FMCS convenes and facilitates Regulatory Negotiations, a
process in which those who will be affected by a regulation sit down with the government
agency to write a proposed rule or regulation by consensus. Experience has shown that by bringing potential
or even actual antagonists into participation in a public process, they become invested in helping the agency solve its problem. The result
is usually better regulation and because those who will be regulated have taken part in the
process, the likelihood of subsequent challenges are greatly reduced. The Service assists federal and some
state agencies by convening and facilitating/mediating regulatory negotiations as well as less formal, public policy dialogues under the authority
of the 1996 Administrative Dispute Resolution Act. Government agencies have chosen the use of negotiated rulemaking and other highly
interactive negotiating models as a constructive way to diminish litigation and enhance relationships with their constituencies. To assist them,
FMCS has provided skills building training in the areas of communication, mediation, problem-solving and meeting planning over three decades
of experience in successful rulemakings.
representative set of stakeholders to negotiate the rule or regulation prior to moving the
draft rule through the standard Administrative Procedures Act (APA) process. Form: Negotiated
rulemaking typically involves establishing a Federal Advisory Committee Act (FACA) of
diverse stakeholders whose purpose is to jointly develop a rule or regulation. Negotiated rulemaking
usually involve a negotiating committee of members selected through a fair and balanced process and noticed in the Federal Register, a charter, a
statement of need, and a set of ground rules that describes how the group will make decisions, the roles and responsibilities of the federal agency
: In negotiated
rulemaking, the agency appoints and identifies and appoints a limited, specific number of
individuals who can represent the views of their stakeholding group on the negotiating
committee. Most committees include twenty (20) to thirty (30) participants, though some may include as many as fifty (50). Additional
and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants
participation may include appointment of alternates, use of subcommittee where membership is not constrained, and a period during each
negotiating session for the general public to comment. Kinds of Participants: Negotiated
entering in
Negotiated Rulemaking, the agency commits, within its existing rules, regulations, and
guidelines, to draft new or revised regulations consistent with the recommendations of the
negotiating committee IF the committee reaches agreement (as defined in the committees ground rules).
Negotiated rulemaking is a formalized, specific kind of consensus building.
Traditional regulatory process sparks backlash with stakeholders -- reg neg solves
Spector 99 (Bertram I., the Executive Director of the Center for Negotiation Analysis and Technical
Director of Management Systems International, where he leads the anticorruption and governance
practice area, "Negotiated Rulemaking: A Participative Approach to Consensus-Building for Regulatory
Development and Implementation", May 1999, http://www.negotiations.org/Tn-10%20-%20Negotiated
%20Rulemaking.pdf)
Regulations are a common mechanism used by governments to guide and facilitate the implementation, management, and enforcement of policy
change. Through regulations, governments establish the rules that specify, control, and direct compliance with new decisions. However, if these
rules are not complied with as intended, policy implementation may not proceed smoothly. Research has shown that the effectiveness
of
many regulations is strongly influenced by the process by which they were initially
formulated. This paper describes a participative process used to formulate regulations successfully. The traditional process
of regulatory development is typically top-down. Government initiates, formulates and
proposes the rules. In centralized or closed systems, regulations are imposed; in more open
systems, groups or individuals may comment on the proposals in public hearings , but with little
possibility of making major structural and functional modifications to the regulations. This process, while well-intentioned,
often leaves civil society stakeholders feeling far removed from the process and
disempowered. They may feel that they have minimal voice in designing the regulations,
standards and provisions that must be obeyed, and, as a result, compliance may be low and
enforcement costs high -- a double-edged sword. Stakeholder reactions to top-down
regulatory development can have negative implications, as observed in a variety of countries (Pritzker and
Dalton, 1995). If penalties are increased to discourage noncompliance, businesses may migrate into a shadow economy, thereby fueling
corruption, reducing tax revenues and evading the regulatory regime altogether. In some societies, lengthy and costly litigation in the courts is
sometimes pursued by civil society groups to modify or eliminate imposed regulations. Antagonistic and adversarial relations between regulatory
agencies and the regulated parties may ensue, resulting in delay or outright disregard for the regulations intent. The
lack of effective
and frank dialogue between the regulators and the regulated is usually blamed for these
negative consequences.
Why use negotiated rulemaking? What are the implications for policy reform, the implementation of policy changes, and
conflict between stakeholders and government? First, the process generates an environment for dialogue that
facilitates the reality testing of regulations before they are implemented. It enables policy
reforms to be discussed in an open forum by stakeholders and for tradeoffs to be made that
expedite compliance among those who are directly impacted by the reforms. Second,
negotiated rulemaking is a process of empowerment . It encourages the participation and
enfranchisement of parties that have a stake in reform. It provides voice to interests,
concerns and priorities that otherwise might not be heard or considered in devising new
policy. Third, it is a process that promotes creative but pragmatic solutions . By encouraging a
holistic examination of the policy area, negotiated rulemaking asks the participants to
assess the multiple issues and subissues involved, set priorities among them, and make
compromises. Such rethinking often yields novel and unorthodox answers. Fourth, negotiated
rulemaking offers an efficient mechanism for policy implementation . Experience shows
that it results in earlier implementation; higher compliance rates; reduced time, money and
effort spent on enforcement; increased cooperation between the regulator and regulated
parties; and reduced litigation over the regulations. Regulatory negotiations can yield both
better solutions and more efficient compliance.
Reg Neg empirically solves -- more efficient and effective than the plan
Spector 99 (Bertram I., the Executive Director of the Center for Negotiation Analysis and Technical
Director of Management Systems International, where he leads the anticorruption and governance
practice area, "Negotiated Rulemaking: A Participative Approach to Consensus-Building for Regulatory
Development and Implementation", May 1999, http://www.negotiations.org/Tn-10%20-%20Negotiated
%20Rulemaking.pdf)
Conclusions Negotiated
Case Solvency
Generic
Negotiated Rule making solves economic, environmental, and pragmatic focus along with
regulation modeling and spill over
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists and the
industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions,
particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about
the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast, the plating industry
rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient
and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions
offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these
positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,
that any further regulation adopted by the District would greatly influence the form of any
CARB regulation . Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the District's
action at the regional level. (136) The industry thought that, in the best case, its participation in the
negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened regulation of
chrome plating emissions. (137) Finally, as noted above, (138) under the existing District regulatory structure, some metal plating sources would
be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk assessment process was
complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a new District regulation, which
could avoid the need for numerous risk assessments. The environmentalists also recognized weaknesses in their initial position, although their
political calculations were not as complex as the industry's. While the environmentalists' chief goal was to secure a regulation requiring new addon technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The
environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put
companies out of business or force them to relocate out of the South Coast Air Basin.
position. In summary,
Federal and international dispute resolution process models. There are also models in U.S. and
Canadian legislation supporting the use of consensus-based processes. These processes have
been successfully applied to resolve dozens of disputes that involved multiple stakeholder
interests, on technically and politically complex environmental and public policy issues. For
example, the Negotiated Rulemaking Act of 1990 was enacted by Congress to formalize a process for negotiating contentious
new regulations.118 The Act provides a process called reg neg by which representatives of interest groups
that could be substantially affected by the provisions of a regulation, and agency staff
negotiate the provisions.119 The meetings are open to the public; however, the process does enable
negotiators to hold private interest group caucuses. If a consensus is reached on the provisions of the rule, the
Agency commits to publish the consensus rule in the Federal Register for public
comment.120 The participants in the reg neg agree that as long as the final regulation is
consistent with what they have jointly recommended, they will not challenge it in court. The
assumption is that parties will support a product that they negotiated.121 Reg neg has been utilized
by numerous federal agencies to negotiate rules pertaining to a diverse range of topics
including safe drinking water, fugitive gasoline emissions, eligibility for educational loans,
and passenger safety .122 In 1991, in Canada, an initiative was launched by the National Task Force on Consensus and
Sustainability to develop a guidance document that would govern how federal, provincial, and municipal governments would address resource
management disputes. The document that was negotiated, Building Consensus for a Sustainable Future: Guiding Principles, was adopted by
consensus in 1994.123 The document outlined principles for building a consensus and process steps. The ten principles included provisions
regarding inclusivity of the process (this was particularly important in Canada with respect to inclusion of Aboriginal peoples), voluntary
participation, accountability to constituencies, respect for diverse interests, and commitment to any agreement adopted.124 The
consensus principles were subsequently utilized to resolve disputes over issues that included
sustainable forest management, siting of solid waste facilities, impacts of pulp mill
expansion, and economic diversification based on sustainable wildlife resources .125 The reg
neg and Consensus for Sustainable Future model represent codified mediated negotiation processes that
have withstood the test of legal challenge and have been strongly endorsed by the groups
that have participated in these processes.
Negotiated Rule making solves economic, environmental, and pragmatic focus along with
regulation modeling and spill over
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists and the
industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions,
particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about
the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast, the plating industry
rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient
and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions
offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these
positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,
that any further regulation adopted by the District would greatly influence the form of any
CARB regulation . Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the District's
action at the regional level. (136) The industry thought that, in the best case, its participation in the
negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened regulation of
chrome plating emissions. (137) Finally, as noted above, (138) under the existing District regulatory structure, some metal plating sources would
be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk assessment process was
complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a new District regulation, which
could avoid the need for numerous risk assessments. The environmentalists also recognized weaknesses in their initial position, although their
political calculations were not as complex as the industry's. While the environmentalists' chief goal was to secure a regulation requiring new addon technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The
environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put
companies out of business or force them to relocate out of the South Coast Air Basin.
collaborative
decision-making is not new to the federal government and there is existing support for it,
in particular, in the environmental arena .82 One of the most significant events to stimulate
environmental collaborative decision-making in the federal government was Congress enactment of
the Environmental Policy and Conflict Resolution Act of 1998. This Act established the U.S. Institute for
Environmental Conflict Resolution (IECR). The federal governments experience with environmental collaborative decision making provides an
excellent foundation for its use in the context of climate change. 83 resolution.84 Environmental
conflict resolution is
defined by IECR to include collaborative problem solving.85 IECR meets with senior agency
staff quarterly to provide guidance and facilitate information exchange on collaboration
and other forms of environmental conflict resolution within the federal government.86 Several
federal agencies have their own institutional structures to support collaborative decision making on environmental issues. For example, EPA
established the Conflict Prevention and Resolution Center in 1999, 87 the Department of Interior established the Collaborative Action and
Dispute Resolution Center in 2001,88 and the Federal Energy Regulatory Commission established a similar service in 1999.89 In addition to
institutional structures such as IECR and agency environmental conflict resolution centers, there
93
experience integral to the process . The National Park Service (NPS) views public involvement along a continuum that
ranges from providing information and building awareness, to partnering in decision making.94 The EPA also views public involvement along a
continuum and has developed a template for considering stakeholder engagement, consultation, and collaboration. In May 2003, EPA
issued its Public Involvement Policy, 95 which articulates the view that effective public
involvement can help the EPA to achieve its mission of protecting human health and the
environment while promoting democracy, civic engagement, and the public trust in
government.96 Like the Association for Conflict Resolution,97 EPA identifies three broad categories of public involvement that go beyond
the simple one-way information and outreach mechanisms used for many government decisions. These broad categories
include exchanging information with the public, empowering stakeholders to provide
recommendations to EPA, and reaching mutually acceptable decisions with selected
stakeholder representatives.98 EPA refined the broad categories and developed a five-point template, discussed in the next
section, for considering collaborative process options.
Aquaculture
Stakeholder Participation Creates More Effective Aquaculture Policies
Sevaly, 01
(Sen Sevaly, Research Officer (part-time) at Sydney Fish Market P/L Consultant at Natural resource economics and management
Director at FERM P/L Fisheries Management Advisor at Insitute for Fisheries Management and Coastal Community Development
Socio-economist at Food and Agriculture Organization of the United Nations, 2001, Involving Stakeholders in Aquaculture Policymaking, Planning and Management, FAO Corporate Document Repository, http://www.fao.org/docrep/003/ab412e/ab412e32.htm) AJ
The administrative structure of federal fisheries management in the United States has
evolved to directly represent the interests of user groups that now exert tremendous
influence over the management process. Frequently, the involvement of such groups has
prevented the effective regulation of federal fisheries. As with many areas of regulatory control, the federal
regulating entity for marine fisheries has always had to deal with at least two competing
user groups whose interests are more often than not at odds. Like other regulatory entities, the federal
administrative process has gone to considerable lengths to involve user groups in the decisionmaking process. However, such involvement
has resulted in management that has not been resource minded, for example, management that is best for
the continued health of the resource, or management that this article will equate with being in the public interest. Given the difficulty
involved with managing vast fishery resources, success in achieving what is best for the
resource would be more readily accomplished without user groups exerting excessive
control over the decisionmaking process . This Comment discusses the potential for change in the administrative
rulemaking process for federal fisheries management, particularly the regional council approach. After a brief background discussion to highlight
concern over the council structure, it begins with a general discussion of negotiated rulemaking and its role in administrative government,
including some popular criticisms of the concept. Next, this Comment briefly outlines the authority delegated to the Regional Fishery
Management Councils (hereinafter Councils) and the structure established by federal law, detailing the required representation of regulated
interests as voting members of the Councils in attempt to demonstrate their similarity to negotiated rule-making committees.
It then
turns to a more pragmatic discussion of how the evaluation and criticism of negotiated
rulemaking applies to the Councils . This Comment concludes with an evaluation of how such
criticisms might lead to improvements in the enabling legislation and consequently the
rulemaking process for federal fisheries management. Specifically, how restructuring the
Councils to preclude voting membership for user group representatives would provide
more effective "resource minded" management .
Arctic
Stakeholder involvement key to the arctic
Haley et al 11
(Sharman Haley, Ph.D., Economics, University of California, Berkeley, 1994 Fields of Concentration: Public Finance, Methodology and
History of Economic Thought, and Labor Dissertation Title: Economic Methodology for Policy Analysis: The Modeling of Corporate
Taxation B.A. (cum laude), Social Studies and Computer Science, Radcliffe College, Harvard University, 1974 International School of
America, Asia, field study in Cultural Anthropology, 1971-72 University of Alaska, Juneau, 24 credits, Economics and Alaska Native
Cultures, 1977-1983 University of Washington, Seattle, 12 credits, Economics and Management, 1976, 1984. TEACHING EXPERIENCE
2014: Affiliate Professor, Evans School of Public Affairs, University of Washington. Courses taught: Research Methods 2006-2010:
Professor, Program in Public Administration, College of Business and Public Policy, University of Alaska Anchorage Courses taught:
Research Methods 2001-2006: Associate professor, Program in Public Administration, College of Business and Public policy, University
of Alaska Anchorage Courses taught: Research Methods 1994-2000: Assistant professor, Program in Public Administration, College of
Business and Public Policy, University of Alaska Anchorage Courses taught: Research Methods, Natural Resource Policy, Policy
Analysis, Program Evaluation, and Current Issues in Public Policy, specifically including Race Class and Culture in Public Policy, and
Alaska Native Self-Governance and Intergovernmental Relations 1993: Instructor, Environmental Economics, Department of
Environmental Studies, Merritt College, Oakland, California 1987-90: Co-coordinator and team teacher, Econ 98/198: Alternative
Approaches to Economics, Department of Economics, U.C. Berkeley 1986: Teaching assistant, Principles of Economics, Department of
Economics, U.C. Berkeley. For more quals, see: http://www.iser.uaa.alaska.edu/people/haley/haley-cv.pdf Haley, S. Chartier, L. Gray, G.
Meek, C. Powell, J. Rosenberg, A. Rosenberg, J. Strengthening Institutions for Stakeholder Involvement and Ecosystem-Based
Management In the US Arctic Offshore, Section 6.6 of North by 2020: Perspectives on Alaskas Changing Social-Ecological Systems,
University of Chicago Press, 2011. http://www.iarc.uaf.edu/sites/default/files/nx2020/si/papers/Northby2020_ch_6.6.pdf//ghs-kw)
public and private. Inclusion (understood as substantive participation in critical decisions on resource use) must be
characterized by policymaking, policy implementation, and policy evaluation. In particular, we
are concerned about the inability of current institutional arrangements to give central
importance to the interests of place-bound stakeholders, namely, the permanent residents of the Beaufort and
Chukchi coastal zones. These are the people who have the most direct and critical interests in the sustainable management of the resources and
the strongest, most direct historical claim to the arctic offshore. In
Taxation B.A. (cum laude), Social Studies and Computer Science, Radcliffe College, Harvard University, 1974 International School of
America, Asia, field study in Cultural Anthropology, 1971-72 University of Alaska, Juneau, 24 credits, Economics and Alaska Native
Cultures, 1977-1983 University of Washington, Seattle, 12 credits, Economics and Management, 1976, 1984. TEACHING EXPERIENCE
2014: Affiliate Professor, Evans School of Public Affairs, University of Washington. Courses taught: Research Methods 2006-2010:
Professor, Program in Public Administration, College of Business and Public Policy, University of Alaska Anchorage Courses taught:
Research Methods 2001-2006: Associate professor, Program in Public Administration, College of Business and Public policy, University
of Alaska Anchorage Courses taught: Research Methods 1994-2000: Assistant professor, Program in Public Administration, College of
Business and Public Policy, University of Alaska Anchorage Courses taught: Research Methods, Natural Resource Policy, Policy
Analysis, Program Evaluation, and Current Issues in Public Policy, specifically including Race Class and Culture in Public Policy, and
Alaska Native Self-Governance and Intergovernmental Relations 1993: Instructor, Environmental Economics, Department of
Environmental Studies, Merritt College, Oakland, California 1987-90: Co-coordinator and team teacher, Econ 98/198: Alternative
Approaches to Economics, Department of Economics, U.C. Berkeley 1986: Teaching assistant, Principles of Economics, Department of
Economics, U.C. Berkeley. For more quals, see: http://www.iser.uaa.alaska.edu/people/haley/haley-cv.pdf Haley, S. Chartier, L. Gray, G.
Meek, C. Powell, J. Rosenberg, A. Rosenberg, J. Strengthening Institutions for Stakeholder Involvement and Ecosystem-Based
Management In the US Arctic Offshore, Section 6.6 of North by 2020: Perspectives on Alaskas Changing Social-Ecological Systems,
University of Chicago Press, 2011. http://www.iarc.uaf.edu/sites/default/files/nx2020/si/papers/Northby2020_ch_6.6.pdf//ghs-kw)
For millennia the Iupiat have sustained themselves in a harsh environment by hunting and gathering marine mammals, birds, fish, and
vegetation. Observing this long social-ecological history, Dasmann has called the Iupiat an ecosystem people because of their deep
connections to and dependence on the local ecosystem for their survival and identity (Dasmann 1975). Change, from disturbances to the natural
environment and contacts with other peoples, has been a regular feature of that history. But in the twentieth and twenty-first centuries western
influence, especially since the
(Berkes and Folke 1998; Dale et al. 1998; Levin 1998). The challenges that are the subject of this chapter are relatively new to northern Alaska,
but existing social science theory can guide the design of stronger, more effective governing institutions for Alaskas arctic offshore. Participatory
Democracy and Complex Systems Our argument here is quite simply that complexity is the challenge, and democratization is the way to address
it. Recent scholarship on the politics of ecosystem management demonstrates the benefits of participatory and deliberative methods of decision
making for finding equitable solutions to conflicts over natural resources; but there is still room for argument over the best ways to design
democratic institutions. Although those arguments cannot be settled here, by using complexity and democratic theories we
can
elaborate a set of principles for effective management of complex social-ecological systems
for Arctic Alaska. In Table 6.6.1, we list general criteria for building institutions that are both efficient
and effective in dynamic, complex social-ecological systems (Farrell 2004; Rosenberg 2007). These guidelines
address three issues at the heart of democratic decision making: (1) Representation addresses
the fundamental political questions of who participates, how, and how effectively; (2)
Institutional design relates to the search for processes capable of responding to changing
relationships among stakeholders and the challenges of simultaneously addressing local,
national, and international concerns; (3) Problem articulation refers to the need to
comprehend the different ways that stakeholders perceive what is at stake for them and the
different ways they communicate and pursue their interests.
Climate Change
NOAA fails, CDM key to climate modeling and resource management
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
VI. COLLABORATION AMONG FEDERAL AGENCIES In
the enormity and complexity of the issue, the task at hand is almost
overwhelming . In order to move forward effectively and marshal limited resources efficiently, collaboration among the federal agencies
is essential. As noted by Dr. Jane Lubchenco, Administrator of the National Oceanic and Atmospheric
Administration (NOAA), the challenge of climate change will require an unprecedented
level of coordination among federal agencies, along with our nongovernmental partners , to
accomplish the goal of providing high quality, climate information and services that are
user-friendly, responsive and relevant. 227 Collaborative decision-making across multiple agencies with different
missions will not be easy. Agencies are funded individually by Congress and each one has unique statutory mandates they must fulfill. Thus,
agencies may be resistant to expending resources on joint efforts and have difficulty
overcoming a reflexive resistance to sharing their authority. 228 Agencies are accustomed to going through
their own deliberative process before announcing their thinking not only to the public but, to other federal agencies. This tendency against
transparency derives, in part, from fears about over-committing resources. It also results from painful experiences with press coverage, and the
resulting political fallout, prior to completing agency decision-making processes. Therefore, to be successful, each agency will need sufficient
resources and institutional capacity specifically for collaborative efforts on climate change, and to be able to overcome differences in bureaucratic
cultures.229 They will also need to embrace a more transparent decision making process that is necessary for effective collaborative processes.
Branch to address climate change, such as observations, monitoring, modeling, research, assessments, resource risk management, adaptation, and
mitigation. Each of these functions may be performed by different agencies with somewhat different goals using a variety of approaches and
techniques. Recognizing the absence of a national program to monitor climate trends and issue predictions to support decision makers, the
National Academy of Sciences has identified, as one of its key recommendations on climate change, the need to coordinate federal efforts to meet
the growing demand for credible, understandable, and useful information.230 In many circumstances,
a particular function of
one agency cannot be adequately performed without information derived from another
agency . For example, the Federal Highway Administration (FHWA) may decide to address the need for adaptation by increasing the size of
culverts under federal highways to prepare for projected extreme precipitation events. In order to properly design the
culvert size, FHWA may need to obtain downscale modeling231 performed by NOAA that
projects the extent and frequency of those extreme precipitation events. Likewise, if both
agencies engage in modeling to project extreme precipitation events but use different
models, collaboration could assist them both in determining which model will best predict
the adaptation needs of a particular situation. 232 Coordination will be an efficient way of leveraging limited
resources. Moreover, when state and local governments, as well as other stakeholders, seek data, modeled results, research results, and
assessments from the federal government, a coordinated response that takes into account the wealth of knowledge of all the agencies will, in
many situations, be more user-friendly and robust than a disparate set of responses from multiple agencies. In addition, efforts to reduce the
greenhouse gas footprint of the federal government itself could benefit from collaboration among the agencies. Finally, federal agency resources
are already stretched to the maximum even without the enormous task ahead on climate change. Some efforts are already underway to initiate
collaboration within the federal government. A meeting, entitled Adapting to Climate Change in the Southeast was held in Charleston, South
Carolina in May 2008. 233 231. Scientists take global models and downscale them to predict local and regional conditions. Among the
important issues identified during the breakout sessions were the need for better communication among the agencies on climate change
adaptation, the benefit of providing a unified message from all the agencies while recognizing each agencys particular niche, the need to
communicate inherent uncertainties in climate change data and modeling, and the importance of providing better downscale modeling to meet
state information needs.234 In June 2009, a meeting of northeast regional federal agency officials was held to discuss roles and responsibilities
with respect to climate change adaptation. 235 The purpose of the meeting was to establish a foundation for federal agencies with climate related
responsibilities to communicate and collaborate effectively and efficiently236 on climate change adaptation. The meeting participants identified
a number of key issues for coordination including developing regional consensus on climate scenarios, data sets, models, and projections for
New England.237
many characteristics of the climate change problem suggest a need for process-oriented
capacity-building now .32 Among the factors that call for collaborative decision making are:
(1) the need for adaptive management in the face of uncertainty; (2) the benefits of drawing upon the
significant expertise gained by many state and local governments during the years of federal government
inaction; (3) the expectation that a climate bill will necessitate intensive rulemaking; (4) the federal governments unique role in responding to
natural disasters; (5)
the international trans-boundary nature of impacts and solutions ; and (6) the
anticipated stress on infrastructure and resources due to climate change . A number of these factors also reflect the
importance of the federal government as an agent for collaborative decision making. Each of
these six factors are discussed below. While they are by no means exclusive, these factors represent some of the most compelling reasons for why
collaborative decision making should be embraced as a process solution to climate change. 1. Decision Making in the Face of Uncertainty: The
Need for Adaptive Management Climate change planning is fraught with uncertainty.
answered before they take action.44 Thus, they must weigh the amount of prompt action and determine how to manage that uncertainty and risk
once an action has gone forward. Successful implementation of adaptive management therefore requires mutual trust given the associated risk and
uncertainty of experimentation.45 2. Local,
Collaborative decision making can be an effective tool to help address these challenges . For
example, water resource impacts from climate change may require all levels of government to
reassess current institutional structures involved in our Nations water supply and seek new collaborative arrangements.68 The American West
and other parts of the country are projected to experience severe drought, early springtime water runoff, and more competition for limited
resources. Existing
Coastal and marine spatial planning (CMSP) is one of nine priorities of the National Ocean Policy that was
promulgated in an Executive Order signed by President Obama in 2010.1 CMSP is a forward-thinking public policy
process for integrating the management of present and future uses of the nations oceans
and coasts . In order to be both useful and comprehensive, the process for developing
coastal and marine spatial plans needs to be participatory,
Ocean Policy (NOP) requires that government decision makers in each region establish planning goals and objectives in consultation with
affected groups and citizens. Those goals will be used to guide the development of a coastal and marine spatial plan, and set the stage for the
long-term implementation, monitoring and evaluation of that plan.
The general public should have full access to the CMSP process , but distinctions can be made between
different kinds of interested parties. Certain groups that will be directly affected by CMSP outcomes (including both ocean users and
conservation advocates) could benefit from more targeted opportunities for input and
discussion with planners, as long as such interactions are conducted in an open,
transparent manner. A list of impacted stakeholders should be created to ensure that no important parties are omitted from the
planning process. However, there was considerable divergence of opinions about whether that list should be generated at the national or regional
level.
Almost all stages of the CMSP process could benefit from stakeholder input . However,
stakeholders are divided as to whether the NOC should mandate specific mechanisms for participation to be used by all regions. Every region
should be required by the NOC to establish a Stakeholder Advisory Group as an intermediate step between broad public input and final decision
making. Opinions were divided concerning the appropriate membership and appointment procedures for such a body, but most agreed that its
advice should be given significant deference. Once
revisited and updated within a 3- to 8-year time frame, to be specified by the NOC. Clear measures of success
(performance metrics) should be linked to each CMSP goal to make clear how plans will
be evaluated. These metrics should be accompanied by carefully designed, well funded, and reliably implemented monitoring plans. The
monitoring results should then be used as the basis for periodic evaluations and plan revisions The success of the U.S. National Ocean
Policy generally and CMSP in particular, will depend on building much broader public awareness,
understanding, and support through education and communications campaigns at both
national and regional levels. All of the steps described in this report, from public outreach, to participatory
processes, data collection, planning, and monitoring require adequate funding. Although support
from foundations, industry, and innovative public-private partnerships can help, those sources also create potential conflicts. All participants
agreed that additional federal funding will be needed for regions to fully implement CMSP.
and marine spatial planning (CMSP) will require the active engagement of all ocean and
coastal stakeholders, including those who depend on ocean and coastal resources for their
livelihoods, environmental advocates, and the general public .1 Since April 2008, Duke Universitys
Nicholas Institute for Environmental Policy Solutions has worked to bring the ocean stakeholder community into the CMSP debate, with a
particular focus on informing and listening to the ocean user community.
CP is key to MSP
Ehler 11
(Charles Ehler is a consultant to UNESCO. He was a senior executive in NOAA and EPA for 32 years. In 2007 he received an award from
the IPCC for his contribution to its award of the Nobel Peace Prize. He is the author of over 100 publications including a 2009 UNESCO
guide to marine spatial planning for IOC and a 2011 report on the future of the UNESCO World Heritage Marine Program. From 19681973 he taught regional planning at the University of Michigan, UCLA, and Stony Brook University. Ehler, C. N. MARINE SPATIAL
PLANNING IN THE ARCTIC: A first step toward ecosystem-based management, part II of The Shared Future: A Report of the
Aspen Institute Commission On Arctic Climate Change, 2011.http://www.unesco-iocmarinesp.be/uploads/documentenbank/36694190bf816835fa78d988adc79907.pdf//ghs-kw)
Why Is Stakeholder Participation Critical to Marine Spatial Planning?
development of MSP is essential for a number of reasons. Of these, the most important is because MSP
aims to achieve multiple objectives (social, economic and ecological) and should therefore
reflect as many expectations, opportunities or conflicts that are occurring in the MSP area.
The scope and extent of stakeholder involvement differs greatly from country to country and is often culturally influenced. The level of
stakeholder involvement will largely depend on the legal or cultural requirements for participation that often exist in each country. Generally
speaking, all
involvement in the process should be early, often, and sustained throughout the process.
Stakeholder participation and involvement encourages ownership of the plan and can
engender trust among the various stakeholders. Different types of stakeholder participation, including networked
governance (Box 5), should be encouraged at various stages of the MSP process. The key stages at which stakeholders
should be involved in the process include: 1. The planning phase: Stakeholders need to be
involved and contribute to the setting of goals and objectives of MSP. They also need to be involved in
the evaluation and choice of specific management measure options and the consequences of these choices on their areas of interest; 2. The
implementation phase: Stakeholders should be involved in the actual implementation of
MSP and its management measures. For example, an approach to enforcement may be identified that would involve local
communities in the regulatory and enforcement process. When the local communities understand the problems and benefits of taking actionand
agree upon the management measures to be takenthey will be part of the enforcement process, at least to the extent of encouraging compliance;
and 3.
Desalination
CP solves desalination
WRF 2011
(The Water Research Foundation is an internationally recognized leader in water research that is dedicated to advancing the science of
water by sponsoring cutting-edge research and promoting collaboration. Our research provides industry insights and practical solutions
to the most complex challenges facing the water community today and into the future.WRF works with a variety of professional partners
to identify, prioritize, fund, manage, and communicate scientifically sound research across the globe. Since 1966, we have managed more
than 1,000 high-impact research studies valued at more than $500 million. WRF is a 501(c)3 nonprofit organization that carefully invests
research dollars from more than 950 subscribing organizations in the U.S. and abroad to tackle an array of issues related to water. Water
Research Foundation, Assessing Seawater Intake Systems for Desalination Plants, 2011.
http://www.waterrf.org/PublicReportLibrary/4080.pdf//ghs-kw)
PUBLIC AND STAKEHOLDER INVOLVEMENT Ever-increasing
technical problem and developing a technical solution to fit a given agencys need. It often
incorporates consideration of stakeholder concerns with respect to environmental impacts,
watershed effects, carbon footprint, etc. Many times these stakeholders extend beyond county or state boundaries.
Stakeholders are organizations and individuals with a vested interest in the outcome of
an action or decision. Inside stakeholders include city government leaders (mayor, regulatory agencies, water board, etc.), who
need to be regularly updated and consulted throughout the process to enable them to make informed decisions. Outside stakeholders can be
civic groups, environmental groups, neighbours, etc.
many water and wastewater decisions. Nowhere is this more in evidence than in the
development of new water sources . A good formal stakeholder process is almost always an
improvement over decide-announce-defend decision-making. It is more transparent and
helps minimize confrontations. This does not mean turn over the decision making power to the stakeholders, it means include
their input in the decision-making process so a more balanced, defensible solution can be achieved.
Energy
Reg neg solves energy projects
Knaster 10
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)
Implementing regulations and guidance documents. At the state level, mediation
started to impact
proposed renewable energy projects throughout the nation. Last year, not-in-my-backyard opposition delayed
or cancelled a wide range of proposals involving wind and solar power and biofuels production nationwide. " Siting for renewables
certainly has gotten very challenging," said Nathanael Greene, director of renewable energy policy at the Natural Resources
Defense Council, which publishes OnEarth magazine. In California, public opposition has successfully blocked or stalled
major wind and solar energy projects, many of them in wilderness areas. But it is not just big projects that are attracting
opposition. A homeowners' association in Palos Verdes, California in December rejected the installation of household rooftop solar panels in the
community. In Amesbury, Massachusetts, residents are trying to block a developer's plan to erect enough solar panels to power 16 homes. "It's not
'not in my backyard,' it's everybody's backyard," a nearby neighbor told the local Eagle Tribune. In
Environment
Reg neg solves environmental issues
Knaster 10
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)
Mediation has been utilized in the resolution of multi-party complex public disputes for
over thirty-five years at all government levels.48 Diverse stakeholder groups participate in a
structured process facilitated by a neutral mediator to address their conflicting viewpoints on issues or on a project with the goal of reaching a
consensus on an agreement. A carefully
this conclusion. 56 A much more efficient use of limited resources would require that the environmental organization attempt to play a deterrent
role in monitoring negotiated rulemakings.
Environmental Justice
Negotiated Rule making solves economic, environmental, and pragmatic focus along with
regulation modeling and spill over
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists and the
industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions,
particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about
the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast, the plating industry
rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient
and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions
offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these
positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,
that any further regulation adopted by the District would greatly influence the form of any
CARB regulation . Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the District's
action at the regional level. (136) The industry thought that, in the best case, its participation in the
negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened regulation of
chrome plating emissions. (137) Finally, as noted above, (138) under the existing District regulatory structure, some metal plating sources would
be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk assessment process was
complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a new District regulation, which
could avoid the need for numerous risk assessments. The environmentalists also recognized weaknesses in their initial position, although their
political calculations were not as complex as the industry's. While the environmentalists' chief goal was to secure a regulation requiring new addon technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The
environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put
companies out of business or force them to relocate out of the South Coast Air Basin.
as familiar with this industry as it was with other industries. Thus, information acquired by the agency during a negotiation could prove very
useful. The agency could be expected to change position in response to that information rather than to remain "locked in" to an initial, rigid
position. In summary,
Exploration
CP key to solve exploration
CSIRO 10
(Commonwealth Scientific and Industrial Research Organisation (CSIRO) is Australia's national
science agency. Exploring the Foundations for Effective Stakeholder Engagement in Marine
Aggregates Mining: Experiences in the U.K. and the U.S. August 2010.
http://d1180280.u211.pipeten.co.uk/wp-content/uploads/csiro2.pdf//ghs-kw)
Australia has a small seafloor exploration and mining (SEM) industry that is set to increase with growing demand
for sand and gravels for building and beach renourishment activities. CSIROs Wealth from Oceans Flagship is conducting a program of research
focused on Understanding the social dimensions of an expansion to the seafloor exploration and mining industry in Australia. This program has
conducted a range of social research to identify stakeholders values
Engaging stakeholders and responding to their needs can result in more equitable
outcomes, social risk management and better resolution of confl ict by incorporating and
responding to stakeholder concerns and needs throughout the decision-making process
(Gardner et al., 2009). However, what constitutes effective engagement is complex and contextual. Many researchers distinguish between
different types or levels of stakeholder involvement ranging from non-participation (e.g. providing information) to extensive participation (a
more deliberative relationship and process) (Aslin and Brown, 2004; Roberts, 1995; Wilcox, 1994). This report focuses on empirical social
research conducted to stakeholder engagement in the marine aggregate industries in the United Kingdom and the United States. This research
aimed to collect fi rst-hand accounts of stakeholders actual experiences of engagement in relation to marine aggregates mining, in order to
explore the factors involved in what were considered effective stakeholder engagement experiences, and those involved in more diffi cult or
challenging experiences. First-hand accounts were collected via eighteen interviews conducted with marine aggregates industry stakeholders in
the US and UK. Qualitative analysis of this data was then conducted to identify factors, or themes, involved in positive and negative accounts.
GHGs
Negotiated rulemaking creates solutions for controversial issues like GHG regulation
solves litigation
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
C. Agreements Agreement
set into motion a new national policy aimed at both increasing fuel economy and reducing
greenhouse gas pollution for all new cars and trucks sold in the United States.166 The policy is the result of
collaboration between the EPA, Department of Transportation (DOT), State of California,
major automobile manufacturers, United Auto Workers Union, and leading environmental
groups. According to EPA Administrator Lisa P. Jackson, as reported in the White House press release on the collaboration: The
President brought all stakeholders to the table and came up with a plan to help the auto industry, safeguard
consumers, and protect human health and the environment for all Americans . . . A supposedly unsolvable problem was
solved by unprecedented partnerships. This collaborative effort came about in the context
of one of the most highly contested areas of climate change law and policygreenhouse gas
regulation of motor vehicles. The automobile industry, California, and other states have
been in litigation for years over state greenhouse gas emissions standards for motor
vehicles .167 Compounding the complexity of the issues was EPAs decision in 2008 to deny California a waiver from preemption under the
Clean Air Acts motor vehicle provisions168 and DOTs delayed promulgation of fuel economy standards under the Energy Policy and
Conservation Act.169
announcement on May 19, 2009, key parties signed letters of commitment in which they
agreed to end litigation regarding these issues and also committed to specific terms for the
vehicle model years 2009-2016 .170 Unlike the public process that took place in the context of the Greenhouse Gas Reporting
Rule and Underground Injection Rule, the collaboration on control of greenhouse gases from motor vehicles was done without transparency.
While no formal explanation was provided by the parties about the rationale for conducting the process in a closed fashion, the complexity of the
issues and longstanding nature of the conflict between the parties may have made it difficult to successfully collaborate and reach an agreement
using an open process. This suggests that while transparency may be a positive element of successful collaboration in many contexts, there may
be occasions, particularly in agreement-seeking settings where the dispute between the parties is already joined, when the primary stakeholders
may see transparency as a deterrent to a successful resolution. A broad lesson learned from this example is that there is no one right set of tools
for each collaborative process along the spectrum. Rather,
Government Incentives
Reg Negs are comparatively better than other incentives
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962/)
Finally, EPA created an office to facilitate the redevelopment of "brownfields," or lands that in some way suffer from the taint of contamination
by hazardous substances, and therefore remain undeveloped because of the fear of CERCLA liability.7 Where hazardous substance contamination
is concerned, the taint need not have any legal recognition in order to effectively preclude any development -- the mere threat of liability is
enough to scare away potential developers. The wastefulness of idling such a large amount of land 8 was the impetus for finding ways to
encourage development of contaminated or potentially contaminated land. Tax breaks, liability relief, and other incentives
aimed at defraying the cost of cleanup have been proposed as incentives to stimulate the
redevelopment of such properties. While the Clinton Administration readily took credit for reinvention, the roots of reinvention were sown
in the early 1980s, when negotiated rulemaking became a widely accepted agency practice.9 Negotiated rulemaking is a frontend add-on to a regulatory rulemaking that seeks to head off possible objections to regulations by
including affected stakeholders in the development of the rule. The Negotiated Rulemaking Act of
1990,10 which solidified agency authority to engage in negotiated rulemaking, authorizes agencies to assemble a
"negotiated rulemaking committee," a panel of stakeholders to discuss and negotiate the development of a rule, and to use
the discussions as a guideline for the actual rule proposed by the agency. The agency must still proceed with
typical rulemaking procedures, such as providing for notice of the proposed and actual rules in the Federal Register,11 in addition to providing
notice of the intention to establish a negotiated rulemaking committee.12 Although such preliminary discussions have no binding effect upon the
agency, proponents argue that rules developed with the participation of regulated parties enjoy greater
"legitimacy" in their eyes than rules developed without their input, and are thus less likely to be
challenged judicially and more likely to enjoy high compliance rates .13 Also, proponents of negotiated rulemaking
argue that the traditional rulemaking process discourages the sharing of information and encourages
regulated parties to assume extreme positions to prepare for a judicial challenge .14 Negotiated
rulemaking, it is argued, represents a retreat from this traditionally adversarial mode of
rulemaking, and hence ameliorates these counter-productive tendencies.
Marine Energy
Stakeholder involvement is specifically key to marine renewablesCP generates
experience to create social acceptability
MERiFIC 13
(Marine Energy in Far Peripheral and Island Communities Project. It is a government project in Europe. The MERiFIC project seeks to
advance the adoption of marine energy across the two regions of Cornwall and Finistre and the island communities of le Parc Naturel
Marin dIroise and the Isles of Scilly. Project partners will work together to identify the specific opportunities and issues faced by
peripheral and island communities in exploiting marine renewable energy resources with the aim of developing tool kits and resources
for use by other similar communities. The project will develop and deliver joint activities between the two regions, looking at issues such
as Marine energy resource assessment/mapping; Policy issues and potential barriers to marine energy development; Business and
commercial opportunities for island/mainland communities; Island/mainland interaction on appropriate infrastructure and Community
and stakeholder engagement with key groups (e.g. fishing, wave farm developers, and investors). MERiFIC, Civil society involvement
and social acceptability of marine energy projects: Best practices of the marine energy sector, February 2013.
http://www.merific.eu/files/2011/08/MERiFIC-6.1.2-Civil-society-involvement.pdf//ghs-kw)
Although marine energy technologies have been identified as energy sources with potentia l
at European level, their development is, among other reasons, conditioned upon their social acceptability.
Social acceptability is important at three levels or dimensions: namely Public or Sociopolitical acceptance, Market acceptance and Community Acceptance (Wstenhagen et al., 2007). At
this stage it is at Community Acceptance, at each individual project level that the need is
more critical. Renewable marine energy, with the exception of offshore wind turbines are not mature
technologies, and there is limited sector experience in managing the challenges of social
acceptability . That said, and despite some limitations such as their current limited scale or early stages of conception, some key
lessons can be identified, complemented by the more advanced offshore wind experience.
Social acceptability of a given project is the result of a shared effort between developers
and stakeholders to set the ideal conditions for integrating the project within its
environmental and human context (ENEA, 2012). The key conditions that contribute to
reaching social acceptability at community /project leve are: Common knowledge base
Sense of ownership Direct benefits Actual ownership through shareholding (this is not
a pre-condition but favours acceptability) From an operational perspective, and in preparation to the development of the toolbox16 , lessons
on good practice can be synthesised into overall principles, actions (Preparatory work and engagement
activities) and support measures. The main points are presented in the Figure 5 below. Overall principles: - Be open and start early Go beyond minimal regulatory requirements - Embed the project in an legitimate local sustainable development plan following the priorities and
conditions already identified Actions: These actions aim at build a common knowledge base to foster a sense of ownership, enhance benefit
sharing and, in cases to make stakeholders into shareholders. Support measures: These activities will provide support to the main thrust of the
engagement by providing dedicated liaison officers, a web site ,and a media strategy.
Oceans
Negotiations result in non-conflicting ocean regulations
Adams 14
(Alexandra Adam, BA of Science in Journalism from the University of Florida and MA of Arts in Environmental Studies from Brown
University, 5-20-2014, A Win for Oceans with Reauthorization of the Water Resources Development Act, Switchboard: Natural
Resources Defense Council Staff Blog, NRDC, http://switchboard.nrdc.org/blogs/aadams/a_win_for_oceans_with_reauthor.html) AJ
Planning for the future health of our oceans and coastlines just became a little easier after a
Congressional committee agreed on the reauthorization of a key waterway management
law. The final outcome has many who rely on our oceans and coasts breathing a sigh of
relief, as a damaging ocean rider was stricken while a new program to protect our coasts has been authorized. After months of
negotiating , a House-Senate conference committee released the final language of the Water
Resources Development Act (WRDA) which will be voted on this week in the House and Senate . WRDA
addresses management of our countrys waterways and coasts and encompasses billions of dollars in projects that impact a majority of our
citizens. I last reported on this bill when it went to conference in November to resolve differences between the House and Senate versions.
Provisions had been added on the House and Senate floor that placed the health of our
oceans on the negotiating table . When negotiations began, the House had passed a
partisan amendment offered by Congressman Bill Flores (R-TX) that would block the Corps
from implementing the National Ocean Policy. This Policy promotes smart ocean planning and ocean protection.
The Senate had taken an entirely different approach by including an important provision, offered by Senator Sheldon Whitehouse (D-RI),
which would establish a National Endowment for the Oceans (NEO) to support conservation
and restoration of ocean resources. The Flores rider would have restricted any funding for U.S. Army Corps of Engineers
projects connected to the National Ocean Policy, a policy that addresses key ocean challenges, and promotes responsible ocean management.
Flores damaging rider would have hindered our ability to protect important habitat and
ocean wildlife, address changing ocean conditions like ocean acidification, build climate resilience,
encourage sustainable use and provide greater certainty for businesses and other ocean
users. With the failure of the Flores provision, Congress preserved a policy that promotes smart ocean planning and science-based
management of our resources. In addition, the final WRDA Bill includes some gains for ocean resource management, notably, a provision crafted
by Senator Sheldon Whitehouse (D-R.I.) to develop a new Army Corps program focused on ocean and coastal resiliency. This program authorizes
the Corps, in coordination with states, nonprofit organizations, and other stakeholders, to conduct studies to determine the feasibility of projects
to enhance ocean and coastal ecosystem resilience. The studies will help the Corps identify specific projects to carry out that could include
restoring wetlands that offer protection from storms, making beaches more resilient to erosion and helping ecosystems adapt to sea level rise.
Our oceans and coasts are economic engines supporting tens of millions of jobs and billions
of dollars in income from both the seafood industry and ocean-related tourism and
recreation. With the climate changing and our oceans becoming busier and more stressed, the preservation of the National Ocean Policy
and the inclusion of a new WRDA program focused on resilience will help ensure that the oceans can continue to provide us all we ask of them.
The millions of Americans and coastal communities that rely on healthy oceans will all certainly benefit from this positive outcome
Management of
substantive inclusion of all stakeholdersnational and local, public and private. Inclusion
(understood as substantive participation in critical decisions on resource use) must be characterized by policymaking,
policy implementation, and policy evaluation. In particular, we are concerned about the inability
of current institutional arrangements to give central importance to the interests of placebound stakeholders,
namely, the permanent residents of the Beaufort and Chukchi coastal zones. These are the people who have the
most direct and critical interests in the sustainable management of the resources and the strongest, most direct historical claim to the arctic
offshore. In
Because the
problems examined in this chapter are of relatively recent origin, we cannot propose specific recommendations for institutional strengthening. But
we can offer ways of looking at the institutional challenges of governing a changing arctic offshore and suggest how lessons from management
regimes in other regions may apply.
Reg negs solve oil and gas drillingits key to solve multiple technical issues
Black 11
(Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the Bureau of Indian
Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as Acting BIA Director
since March 18, 2010. Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the
Bureau of Indian Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as
Acting BIA Director since March 18, 2010. Mr. Black graduated from Aberdeen Central High School in 1982. He received a B.S. degree
in Mechanical Engineering from the South Dakota School of Mines and Technology in 1986. Black, M. S. Letter from the Bureau of
Indian Affairs, Department of the Interior. Subject: Determination of the Need for Negotiated Rulemaking on Leasing of Osage Lands
for Oil and Gas Mining. October 6, 2011. http://bia.gov/cs/groups/xregeasternok/documents/text/idc-020645.pdf//ghs-kw)
In accordance with 5 U.S.C. 563,1 have determined that there
to the management of the Osage Mineral Estate currently addressed under 25 C.F.R. Part 226. After 11 years of litigation, the
United States reached a settlement with the Osage Nation, Oklahoma (formerly known as the Osage Tribe) ("Osage Tribe") for alleged
mismanagement of its oil
and gas mineral estate, among other claims. As part of the Settlement Agreement, the parties agreed that
it would be mutually beneficial "to address means of improving the trust management of the
Osage Mineral Estate, the Osage Tribal Trust Account, and the Other Osage Accounts " Settlement Agreement, Para. 1 .i. During the
course of negotiations it became apparent that a review of the existing standards and
obligations in the governing regulations is necessary in order to better assist the Bureau of Indian Affairs in
sharing and providing information regarding the Osage Mineral Estate to the Osage Minerals Council. Based on
these circumstances and in an effort to avoid future litigation, if possible, I therefore conclude that there
is a need for negotiated rulemaking. See 5 U.S.C. 563(a)(1). The regulations governing the Osage Mineral Estate (25
U.S.C. Part 226) currently apply only to the Osage Mineral Estate and the Osage Agency and do not have broader applicability. Thus, there are
limited interest holders readily identifiable. See 5 U.S.C. 563(a)(2). The governing tribal body that oversees the Osage Mineral Estate is the
Osage Minerals Council, which is duly elected by Osage oil and gas Headlight holders. Thus, due to the limited applicability of the current
regulations and the limited interest holders at stake, " there
convened with a balanced representation of persons who can adequately represent the
interests ." Id 563(a)(3)(A). Moreover, given the settlement of the litigation and the express desire by the Osage Tribe and the Interior
Department to proceed in good faith in addressing and improving administration and management of the Osage Mineral Estate as soon as
practicable to avoid future litigation, I find that " there
a consensus on the proposed rule within a fixed period of time ." Id. 563(a)(3)(A) & (a)(4). Indeed, the
Osage Tribe and the Interior Department have already identified some of the areas that need to be addressed as part
of the negotiated rulemaking, including, but not limited to: 1. Identifying the appropriate information
needed from all operators, purchasers and payers who are associated with the Osage mineral estate and
developing and implementing standardized reporting to manage diligently production and
accounting; 2. Identifying the source, manner, and format of transmission whereby the
information required by Subsection 9(a) will be provided to the Osage Minerals Council; 3. Identifying
appropriate revisions to the methods for calculating royalties and rentals for oil and gas,
including but not limited to royalty rates, royalty value (pricing), and rental rates; 4.
Identifying the best feasible practices for developing and conducting onsite inspection
programs; 5. Identifying the feasibility of implementing technological enhancements for
generating run tickets and other production data for reporting that information to the Osage
Tribe and the United States; 6. Identifying the best feasible practices for gauging oil and gas
production and the resources needed to implement the strategy selected; 7. Identifying and
implementing the best feasible practices for tank battery gauging; 8. Determining and
documenting the formal communication needed to manage diligently the Osage mineral estate between
the Osage Nation, the Osage Minerals Council and the United States. See 563(a)(5). The existing agreement on these matters indicates that a
negotiated rulemaking procedure will not unduly delay the proposed rulemaking or a final
rule.
Pollution
Reg negs solve pollution
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
3. The Staff's Perspective The viewpoint of the District's staff differed somewhat from the views normally associated with environmental
regulatory agencies. As noted above, no
he brought neutrality , but relatively little technical expertise, to the bargaining table.
the enormity and complexity of the issue, the task at hand is almost
overwhelming . In order to move forward effectively and marshal limited resources efficiently, collaboration among the federal agencies
is essential. As noted by Dr. Jane Lubchenco, Administrator of the National Oceanic and Atmospheric
Administration (NOAA), the challenge of climate change will require an unprecedented
level of coordination among federal agencies, along with our nongovernmental partners , to
accomplish the goal of providing high quality, climate information and services that are
user-friendly, responsive and relevant. 227 Collaborative decision-making across multiple agencies with different
missions will not be easy. Agencies are funded individually by Congress and each one has unique statutory mandates they must fulfill. Thus,
agencies may be resistant to expending resources on joint efforts and have difficulty
overcoming a reflexive resistance to sharing their authority. 228 Agencies are accustomed to going through
their own deliberative process before announcing their thinking not only to the public but, to other federal agencies. This tendency against
transparency derives, in part, from fears about over-committing resources. It also results from painful experiences with press coverage, and the
resulting political fallout, prior to completing agency decision-making processes. Therefore, to be successful, each agency will need sufficient
resources and institutional capacity specifically for collaborative efforts on climate change, and to be able to overcome differences in bureaucratic
cultures.229 They will also need to embrace a more transparent decision making process that is necessary for effective collaborative processes.
Branch to address climate change, such as observations, monitoring, modeling, research, assessments, resource risk management, adaptation, and
mitigation. Each of these functions may be performed by different agencies with somewhat different goals using a variety of approaches and
techniques. Recognizing the absence of a national program to monitor climate trends and issue predictions to support decision makers, the
National Academy of Sciences has identified, as one of its key recommendations on climate change, the need to coordinate federal efforts to meet
the growing demand for credible, understandable, and useful information.230 In many circumstances,
a particular function of
one agency cannot be adequately performed without information derived from another
agency . For example, the Federal Highway Administration (FHWA) may decide to address the need for adaptation by increasing the size of
culverts under federal highways to prepare for projected extreme precipitation events. In order to properly design the
culvert size, FHWA may need to obtain downscale modeling231 performed by NOAA that
projects the extent and frequency of those extreme precipitation events. Likewise, if both
agencies engage in modeling to project extreme precipitation events but use different
models, collaboration could assist them both in determining which model will best predict
the adaptation needs of a particular situation. 232 Coordination will be an efficient way of leveraging limited
resources. Moreover, when state and local governments, as well as other stakeholders, seek data, modeled results, research results, and
assessments from the federal government, a coordinated response that takes into account the wealth of knowledge of all the agencies will, in
many situations, be more user-friendly and robust than a disparate set of responses from multiple agencies. In addition, efforts to reduce the
greenhouse gas footprint of the federal government itself could benefit from collaboration among the agencies. Finally, federal agency resources
are already stretched to the maximum even without the enormous task ahead on climate change. Some efforts are already underway to initiate
collaboration within the federal government. A meeting, entitled Adapting to Climate Change in the Southeast was held in Charleston, South
Carolina in May 2008. 233 231. Scientists take global models and downscale them to predict local and regional conditions. Among the
important issues identified during the breakout sessions were the need for better communication among the agencies on climate change
adaptation, the benefit of providing a unified message from all the agencies while recognizing each agencys particular niche, the need to
communicate inherent uncertainties in climate change data and modeling, and the importance of providing better downscale modeling to meet
state information needs.234 In June 2009, a meeting of northeast regional federal agency officials was held to discuss roles and responsibilities
with respect to climate change adaptation. 235 The purpose of the meeting was to establish a foundation for federal agencies with climate related
responsibilities to communicate and collaborate effectively and efficiently236 on climate change adaptation. The meeting participants identified
a number of key issues for coordination including developing regional consensus on climate scenarios, data sets, models, and projections for
New England.237
many characteristics of the climate change problem suggest a need for process-oriented
capacity-building now .32 Among the factors that call for collaborative decision making are:
(1) the need for adaptive management in the face of uncertainty; (2) the benefits of drawing upon the
significant expertise gained by many state and local governments during the years of federal government
inaction; (3) the expectation that a climate bill will necessitate intensive rulemaking; (4) the federal governments unique role in responding to
natural disasters; (5)
the international trans-boundary nature of impacts and solutions ; and (6) the
anticipated stress on infrastructure and resources due to climate change . A number of these factors also reflect the
importance of the federal government as an agent for collaborative decision making. Each of
these six factors are discussed below. While they are by no means exclusive, these factors represent some of the most compelling reasons for why
collaborative decision making should be embraced as a process solution to climate change. 1. Decision Making in the Face of Uncertainty: The
Need for Adaptive Management Climate change planning is fraught with uncertainty.
answered before they take action.44 Thus, they must weigh the amount of prompt action and determine how to manage that uncertainty and risk
once an action has gone forward. Successful implementation of adaptive management therefore requires mutual trust given the associated risk and
uncertainty of experimentation.45 2. Local,
Collaborative decision making can be an effective tool to help address these challenges . For
example, water resource impacts from climate change may require all levels of government to
reassess current institutional structures involved in our Nations water supply and seek new collaborative arrangements.68 The American West
and other parts of the country are projected to experience severe drought, early springtime water runoff, and more competition for limited
resources. Existing
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
6. Resources and Infrastructure Climate change will stress existing resources and infrastructure and require new and creative uses of existing resources to meet the
basic needs of the American people
these challenges. For example, water resource impacts from climate change may require all
levels of government to reassess current institutional structures involved in our Nations water supply and seek new collaborative arrangements.68
The American West and other parts of the country are projected to experience severe
drought, early springtime water runoff, and more competition for limited resources .
Existing compacts designed to ensure adequate water supply to the Western states may be
in jeopardy as water resources become scarcer and competition grows between states.6 9
The federal government may need to serve in a similar capacity, using collaborative
decision making , with respect to changes in our energy supply and transmission. The U.S. Department of Energy has already launched a collaborative
project with the Western Governors Association to designate zones for renewable energy projects and plan for power transmission from those zones to western load
disruption to existing energy supply distribution systems in the United States due to weather related impacts from
climate change.71 There will likely be increasing opportunities for the federal government to use
collaborative decision making in other resource and infrastructure contexts such as
transportation, grazing rights, pipeline access, and natural resource management, among
others.
Satellites
Satellite data is inaccuratestakeholder involvement is key to provide technical data and
verify satellite data from the ground
Kritkausky 11
(Randy Kritkausky is the President and co-founder of ECOLOGIA. Trained as a sociologist and historian, his intellectual interests have
focused on societies undergoing profound economic and social transitions. He become involved with environmental and sustainable
development issues when he lived in Northeastern Pennsylvania, which was severely impacted by the legacies of coal mining, heavy
industry, and toxic waste disposal. During the 1970s Mr. Kritkausky was instrumental in promoting public participation in
environmental and economic decision-making in Pennsylvania. In the 1980s he traveled to the Soviet Union to investigate change in the
region and to integrate this understanding into his college teaching. From this work ECOLOGIA emerged with a distinct model of
constructive and scientifically grounded public participation. In recent years, Mr. Kritkausky has become involved in promoting
partnerships between community based organizations and private enterprise. This work has involved him in the global governance
arena, and particularly with the creation and implementation of global standards such as those developed by the International
Organization for Standardization (ISO). Mr. Kritkausky is a Research Scholar in Environmental Studies at Middlebury College in
Middlebury Vermont, and Visiting Scholar in Corporate Social Responsibility and Sustainability at the Monterey Institute ofInternational Studies. He holds a B.A. from the University of Pennsylvania, and an M.A. from Binghamton University. Kritkausky, R.
Better Risk Management Through Stakeholder Involvement, November 2011.
http://www.ecologia.org/isosr/RiskManagement.pdf//ghs-kw)
Good risk asesment and effective risk management both assume a high degree of
information disclosure. Due dilgence usualy relies on writen records and walk through audits of manufacturing facilties or service
providers. As a twenty year old international NGO with a long history of activites on local as wel as global evels, ECOLOGIA knows that
In ground truthing, experts go on the ground in person, to report on the real life particulars. Is the new tree growth
from oaks or from hickories? Are the bogs highly active, giving of their own methane? Are the missiles actualy in the place where the satelite data
indicated? Ground
Needles to say, it can also harm workers and communites. How to Deal with the Problems of Incomplete Information and/or Deception
Science
Reg neg overcomes lack of scientific datasolves
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
5. The Parties Negotiate Issues in a Fluid Way and Resolve Nearly 80% of Disputes Through the Presentation of Objective Data Determining
which issues will be subject to negotiation represents a crucial dimension of the reg neg process. Here again, the process examined in the study
appeared to be dynamic but not entirely without structure. When
Whaling
Reg negs solve Native American affairsOsage prove
Black 11
(Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the Bureau of Indian
Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as Acting BIA Director
since March 18, 2010. Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the
Bureau of Indian Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as
Acting BIA Director since March 18, 2010. Mr. Black graduated from Aberdeen Central High School in 1982. He received a B.S. degree
in Mechanical Engineering from the South Dakota School of Mines and Technology in 1986. Black, M. S. Letter from the Bureau of
Indian Affairs, Department of the Interior. Subject: Determination of the Need for Negotiated Rulemaking on Leasing of Osage Lands
for Oil and Gas Mining. October 6, 2011. http://bia.gov/cs/groups/xregeasternok/documents/text/idc-020645.pdf//ghs-kw)
negotiations it became apparent that a review of the existing standards and obligations in the governing regulations is necessary in order to better assist the Bureau of
Indian Affairs in sharing and providing information regarding the Osage Mineral Estate to the Osage Minerals Council. Based on these circumstances and in an effort
to avoid future litigation, if possible, I therefore conclude that there is a need for negotiated rulemaking. See 5 U.S.C. 563(a)(1). The regulations governing the
Osage Mineral Estate (25 U.S.C. Part 226) currently apply only to the Osage Mineral Estate and the Osage Agency and do not have broader applicability. Thus, there
are limited interest holders readily identifiable. See 5 U.S.C. 563(a)(2). The governing tribal body that oversees the Osage Mineral Estate is the Osage Minerals
Council, which is duly elected by Osage oil and gas Headlight holders. Thus, due to the limited applicability of the current regulations and the limited interest holders
settlement of the litigation and the express desire by the Osage Tribe and the Interior Department to proceed in good faith in addressing and improving administration
a committee
will reach a consensus on the proposed rule within a fixed period of time." Id. 563(a)(3)(A) & (a)(4).
Indeed, the Osage Tribe and the Interior Department have already identified some of the areas
that need to be addressed as part of the negotiated rulemaking, including, but not limited to: 1. Identifying the
and management of the Osage Mineral Estate as soon as practicable to avoid future litigation, I find that "there is a reasonable likelihood that
appropriate information needed from all operators, purchasers and payers who are associated with the Osage mineral estate and developing and implementing
standardized reporting to manage diligently production and accounting; 2. Identifying the source, manner, and format of transmission whereby the information
required by Subsection 9(a) will be provided to the Osage Minerals Council; 3. Identifying appropriate revisions to the methods for calculating royalties and rentals
for oil and gas, including but not limited to royalty rates, royalty value (pricing), and rental rates; 4. Identifying the best feasible practices for developing and
conducting onsite inspection programs; 5. Identifying the feasibility of implementing technological enhancements for generating run tickets and other production data
for reporting that information to the Osage Tribe and the United States; 6. Identifying the best feasible practices for gauging oil and gas production and the resources
needed to implement the strategy selected; 7. Identifying and implementing the best feasible practices for tank battery gauging; 8. Determining and documenting the
formal communication needed to manage diligently the Osage mineral estate between the Osage Nation, the Osage Minerals Council and the United States. See
563(a)(5). The existing agreement on these matters indicates that a negotiated rulemaking procedure will not unduly delay the proposed rulemaking or a final rule.
the Bureau of Indian Affairs has the necessary resources it needs throughout the
negotiated rulemaking process and I will ensure that the agency uses, to the maximum
extent possible, the consensus of the committee with respect to development of a proposed
rule for notice and comment. Id. 563(a)(6), (7). Based on the foregoing, the Osage Agency and the Office of the Solicitor are to proceed with
Furthermore,
a negotiated rulemaking related to the Osage Mineral Estate currently governed by 25 C.F.R. Part 226.
Wind
Reg Neg solves offshore wind better---prefer specific solvency mechanisms
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) Deng
This Article will focus specifically on three practices that can help to create an implementable wind
energy policy: participator}' planning, negotiated rule making, and siting negotiations. The
proposed framework in Section IV explains how each approach should be used to accomplish a designated goal as part of a comprehensive
citizen involvement plan. Participatory planning can be used to poll a large, representative group of citizens to identify their priorities on
appropriate locations for wind turbines, the amount of wind power desired, and the rate at which fossil fuel use should be phased out.
Negotiated rule making can be used to convene a discrete group of affected parties in their effort to reach
agreement on the contents of model ordinances, recommended lease provisions ,
compensation mechanisms, appropriate mitigation measures, and decommissioning
provisions. Finally, siting negotiations can be used to ensure that the siting process for individual turbines is tailored to local conditions.
1. Participatory Planning Participatory planning refers to practices that engage citizens to serve a central advisory role in making important and
often complicated policy decisions that do not require specified technical experience or knowledge. These processes have been used to provide
valuable information about how to manage financial resources,159 set energy priorities,160 manage natural resources,161 and enable
disadvantaged populations to assess their current circum- stances."12 Some of the labels for these techniques include participatory planning,
citizen juries, deliberative polling,163 participator}' budgeting,164 and citizen boards/advisory committees. As compared to negotiated
rulemaking, participator}' planning approaches are not used to reach agreement among a discrete group of stakeholders, but to
identify priorities among broad swaths of the community. These approaches can be used to
identify appropriate areas for wind turbines , the amount of wind energy desired, and if
desired, the
amount of fossil fuels to be reduced . In fact, deliberative pollinga popular form of participatory planning
has already been used in Texas to gauge the public's interest in building out the renewable energy infrastructure.165 2. Negotiated Rule Making
Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected interest groups
negotiate the terms of a proposed administrative rule.166 Historically, it has been used at the federal and stale levels of government, but it has
applicability at the local level as well. The Negotiated Rulemaking Act of 1990 provides the basic structure for agencies to design and
implement appropriate processes.167 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in
the early 1980s.l6S Negotiated rulemaking was seen as a way to deal with what seemed like a never-ending cycle of regulations being adopted
and then being overturned after years of legal appeals.169 Instead of being limited to the minimal process required for promulgating rules with
notice, public comment, and publication of a rule that would then be subject to a lawsuit, many agencies supplemented this required process to
get input earlier. This supplemental process came to be called Negotiated Rulemaking or "reg-neg." Negotiated rulemaking brings interested
parties around the table early on, before the rule has been drafted and before the required regulatory approval process is triggered, to see if the
affected parties can reach agreement. By setting up a negotiating forum before drafting the rule, the agency can engage those who are most likely
to be affected by (and most likely to challenge) a rule. The nature of this negotiation is drastically different than the nature of the formal rule
making process because the parties have an opportunity to talk to each other instead of directing all comments through the agency. They can
share information about what is important to them and what is not. They are free to collectively explore and evaluate different regulatory
possibilities. If all the parlies can reach agreement, Ihen the text of their rule becomes the proposed rule thai is then subject to the required
regulator}' process. The
would not have been able to reach the consensus that thev did with the conven-tional approach to EPA rulemaking.174 The parties
considered the open access to information as one of the strengths of using reg-neg. That
same open access to information can be used in wind siting negotiations. AH parties involved would
have the opportunity to express their opinions and why those opinions are important. Negotiated rulemaking is certainly not appropriate for all
situations. When deciding appropriateness, factors taken into consideration should also include the opportunity for trade-offs among parlies,
the level of conflict, and the importance of gathering information from affected parlies, among others. As described further in the nexl section,
reg-neg can be helpful to develop policy on model ordinances, required lease provisions, compensation mecha-nisms, and decommissioning.
Regulations and civilian involvement in wind turbine development key to conservation and
national security
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky
In addition to the limitations of expense, storage. and trans- mission, wind turbines present other limitations. Adverse
environmental impact can result from the construction of, and to a lesser degree, the operation of
wind turbines." While some of these im- pacts have technical solutions. most must be
addressed through policy development and siting procedures. For example, linking "high wind"
areas to population centers requires siting new trans- mission lines through undeveloped
and sometimes sensitive habitat. Turbines may have impacts on avian and bat populations
and habitat destroyed by construction and operation. Wind tur- bines also have national security and
transportation implications because they can interfere with radar technology. Adequately
ad- dressing these impacts requires the involvement of citizens in deci- sion-making
processes that set wind energy policies and site the turbines. Accordingly. this Article deals directly with a
central (and often overlooked) factor in successful policy development and facility siting: adequate and appropriate citizen involvement. "Citizen
involvement" as a label has different meanings de- pending on who is using it and the context in which it is used. In the context of the minimal
governmental procedures that are re- quired to make a legally defensible decision. it means notice and comment and possibly a public hearing.
However. in the context of decision-making intended to fully incorporate a range of concerns. "citizen involvement" refers to a more inclusive.
transparent and responsive process. Many
Simply dismissing
citizen op- position as self-interested. NIMBY whiners ignore the two realities addressed in
this Article: (I) that many facility proposals subject to citizen opposition will impose
significant. uncompensated burdens on communities: and (2) that successful citizen
involvement is more than a statement of principle-it must be implemented following the
best practices of consensus building and collaboration."
Aff failsrisk assessment with siting of wind power key to solve defense, bioD, and
warming
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky
2. State and Local Siting Authority In general. the principal authority in the United States for land use siting decisions is vested in local
government. as delegated by individual state legislatures. While authority varies from state to state. the
Aff fails- status quo opposition stops development, CP avoids this and accesses benefits of
NIMBY opposition
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky
A. The Conventional View of Citizen Inver To some applicants .
policies must be balanced with the reality that opposition plays an important civic function. The goal for proponents of
wine turbine siting policies should be to design processes that minimize the destructive effects of typically adversarial processes that avoid
fanning the flames of opposition and still put together a proposal that will meet their objectives. Citizen involvement should not just be an
afterthought-an inconvenient consequence of participating in the approval process. Before exploring the nature of citizen opposition, an
exploration of the underlying assumptions is helpful to frame the circum stances under which opposition arises. Even
the most
disinterested observer of community dynamics is likely familiar with the notion of "Not-InMy-Back-Yard" ("NIMBY") opposition. These are citizens who seem to greet any
development with staunch opposition. According to a simplistic and derisive vision of NIMBYS they are people motivated
solely by self-interest, afraid of change and uninformed of the benefits that result from new develop ment.88 Their protests over-emphasize the
costs of a project, exaggerate the risks of negative impacts on the community, and treat any benefits as illusory and inadequate. NIMBYS are
often characterized as selfish, simple-minded, ignorant, arrogant and parochial. Their efforts to highlight real and perceived risks are pursued with
callous disregard for any community benefits that may result from the proposed project. 89
Since dealing with local opposition involves emotional as well as rational engagement, any
process must address the emotions associated with the proposed action. The most effective
way to affect emotional pathways is through involvement, engagement and empowerment.
By involving citizens in the process authentically, they will trust it more. The more parties
trust in the process, the more likely they are to accept the outcome. Involvement has the
effect of re- ducing opposition by dealing directly with the psychological phe- nomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the
brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease op- position. Behavioral psychologists have found links
between unre- lated actions. Consider the following experiments: Volunteers were asked to recall either a moral or immoral act in their past.
Afterward, as a token of appreciation. (experimenter)offered the volunteers a choice between the gift of a pencil or of a package of antiseptic
wipes. And the folks who had just wal- lowed in their ethical failures were more likely to go for the wipes."'3 (V)olunteers were told to recall an
immoral act of theirs. After- ward, subjects either did or did not have the opportunity to clean their hands. Those who were able to wash were less
likely to respond to a request for help (that the experimenters had set up) that came shortly afterward."" Volunteers would meet one of the
experimenters, believing that they would be starting the experiment shortly. In reality, the experiment began when the experimenter, seemingly
stmggling with an armful of folders, asks the volunteer to briefly hold their coffee. As the key experimental manipulation, the coffee was either
hot or iced. Subjects then read a description of some indi- vidual, and those who had held the warmer cup tended to rate the individual as having a
warmer personality, with no change in ratings of other attributes."'5 These experiments show how process has a direct effect on how we perceive
a situation. They make a strong case that the sub- stance of a proposal is just one of many factors considered by citi- zens when evaluating how to
respond. Dr. Sapolsky points out that this neural confusion gives actions and symbols enormous power over our decision-making process. He
explains how Nelson Mandela welcomed the leader of a large Afrikaans resistance group into his homey living room instead of a formal
conference room. As a result, resistance between the two "melted away" and they were able to move on to the next chapter in governing South
Africa.'''' Applicants who are aware of the complex nature of cognition should embrace the need for well designed decision-making processes to
effectively manage the complicated phenomena that is opposition. The
***Net Benefits***
Civic Engagement
1NC
The CP reorients democracy to a focus on communication---that allows for effective civic
engagement
Rubin 1
(Edward L. Rubin is a University Professor of Law and Political Science at Vanderbilt Law School. Ed Rubin specializes in
administrative law, constitutional law and legal theory. Previously, he was the Theodore K. Warner, Jr. Professor of Law at the University
of Pennsylvania Law School from 1998 to 2005, and the Richard K. Jennings Professor of Law at the Boalt Hall School of Law at the
University of California-Berkeley. Professor Rubin has been chair of the Association of American Law Schools' sections on
Administrative Law and Socioeconomics and of its Committee on the Curriculum. He graduated from Princeton and received his law
degree from Yale University in 1979, clerked for Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit. GETTING
PAST DEMOCRACY Published January 2011. Print. Accessed @
http://www.lexisnexis.com.proxy.lib.umich.edu/hottopics/lnacademic/) Deng
In his recent book, Between Facts and Norms, Habermas tries to resolve these two implausibilities of deliberative democratic theory. n111 He
previously argued that the rationalization
engagement and participation are crucial . Civic participation is not a luxury, something
that you can worry about when life is going well and you face no fundamental threats. On the
contrary, it is when threats are profound that we especially need the ideas and energies of all
our citizens and institutions. Despite our conviction that global warming is a serious problem caused by human action, we
recognize that many aspects of the issue are unresolved and need public deliberation. In particular, the tools
that should be used to mitigate the problem (such as cap-and-trade regulations) are by no means clear. A truly open, public
discussion is needed . Furthermore, we doubt that the government could solve this problem
through command-and-control regulations , although regulation may play an important role. Other sectors, beyond the
government, also need to change and innovate. Just as one example, colleges and universities can cut their own carbon emissions. Not only big
private institutions, but also individuals
can and must address global warming. There are cultural and
spiritual dimensions to the problem, which is profoundly connected to other social and
human issues, such as poverty and over-consumption. Although we are confident about some facts (e.g., that
human consumption of carbon causes global warming), no one has adequate solutions. Many perspectives are valid and
useful; many people have the capacity to help.
Extinction
Flournoy 11
(Don Flournoy, PhD, University of Texas, Project Manager for University/Industry Experiments for the NASA ACTS Satellite, Professor
of Telecommunications, Scripps College of Communications, Ohio University, citing Feng Hsu, PhD in Engingeering Science, NASA
scientist at Goddard Space Flight Center, former research fellow of Brookhaven National Laboratory in the fields of risk assessment,
risk-based decision making, safety & reliability and mission assurances for nuclear power, space launch, energy infrastructure and other
social and engineering systems (Dec. 2011, "Solar Power Satellites," January, Springer Briefs in Space Development, p. 10-1)
In the Online Journal of Space Communication , Dr. Feng Hsu, a NASA scientist at Goddard Space Flight Center, a research center in the
forefront of science of space and Earth, writes, The evidence of global warming is alarming , noting the potential for a
catastrophic planetary climate change is real and troubling (Hsu 2010 ) . Hsu and his NASA colleagues were
engaged in monitoring and analyzing climate changes on a global scale, through which they received first-hand scientific information and data
relating to global warming issues, including the dynamics of polar ice cap melting. After discussing this research with colleagues who were world
experts on the subject, he wrote: I now have no doubt global temperatures are rising, and that global warming is a serious problem
confronting all of humanity. No matter whether these trends are due to human interference or to the cosmic cycling of our solar system, there are
two basic facts that are crystal clear: (a)there is overwhelming scientific evidence showing positive correlations
between the level of CO2 concentrations in Earths atmosphere with respect to the historical fluctuations of global
temperature changes; and (b) the overwhelming majority of the worlds scientific community is in agreement
about the risks of a potential catastrophic global climate change. That is, if we humans continue to ignore this problem
and do nothing, if we continue dumping huge quantities of greenhouse gases into Earths biosphere,
(Hsu 2010). As a technology risk assessment expert, Hsu says he can show with some confidence
that the planet will face more risk doing nothing to curb its fossil-based energy addictions than it will in making a fundamental shift in its energy
supply. This, he writes, is because the risks of a catastrophic anthropogenic climate change can be potentially the
extinction of human species, a risk that is simply too high for us to take any chances (Hsu 2010 ) .
Since dealing with local opposition involves emotional as well as rational engagement, any
process must address the emotions associated with the proposed action. The most effective
way to affect emotional pathways is through involvement, engagement and empowerment.
By involving citizens in the process authentically, they will trust it more. The more parties
trust in the process, the more likely they are to accept the outcome. Involvement has the
effect of re- ducing opposition by dealing directly with the psychological phe- nomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the
brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease op- position. Behavioral psychologists have found links
between unre- lated actions. Consider the following experiments: Volunteers were asked to recall either a moral or immoral act in their past.
Afterward, as a token of appreciation. (experimenter)offered the volunteers a choice between the gift of a pencil or of a package of antiseptic
wipes. And the folks who had just wal- lowed in their ethical failures were more likely to go for the wipes."'3 (V)olunteers were told to recall an
immoral act of theirs. After- ward, subjects either did or did not have the opportunity to clean their hands. Those who were able to wash were less
likely to respond to a request for help (that the experimenters had set up) that came shortly afterward."" Volunteers would meet one of the
experimenters, believing that they would be starting the experiment shortly. In reality, the experiment began when the experimenter, seemingly
stmggling with an armful of folders, asks the volunteer to briefly hold their coffee. As the key experimental manipulation, the coffee was either
hot or iced. Subjects then read a description of some indi- vidual, and those who had held the warmer cup tended to rate the individual as having a
warmer personality, with no change in ratings of other attributes."'5 These experiments show how process has a direct effect on how we perceive
a situation. They make a strong case that the sub- stance of a proposal is just one of many factors considered by citi- zens when evaluating how to
respond. Dr. Sapolsky points out that this neural confusion gives actions and symbols enormous power over our decision-making process. He
explains how Nelson Mandela welcomed the leader of a large Afrikaans resistance group into his homey living room instead of a formal
conference room. As a result, resistance between the two "melted away" and they were able to move on to the next chapter in governing South
Africa.'''' Applicants who are aware of the complex nature of cognition should embrace the need for well designed decision-making processes to
effectively manage the complicated phenomena that is opposition. The
inviting participation in pre-determined spaces to enabling people to define for themselves their own entry points and strategies for change." n116 A human rights
approach to participation begins with empowerment and then searches for strategic inroads into the government or other duty holders. n117 It does not try to
circumscribe who can participate when and how depending on the spaces already open within the government. It is therefore a truly "bottom-up" approach to
development. In addition to inverting power relationships and requiring participation, the human rights approach also teaches impatience and intolerance to poverty
and injustice. n118 The violation of so-called (*319) "civil" and "political" rights usually causes immediate indignation and protest. n119 Incidents like the torture of
opposition political leaders, the censorship of the media, and the violent repression of street protests often lead to immediate and powerful reactions by the affected
actors and other interested parties. Unfortunately, the existence of poverty, unemployment, and sickness do not always create the same kind of urgent response. Here,
the human rights approach to development looks to remind us of the fundamental indivisibility of human rights. As the U.N. states, "Human rights are indivisible ...
whether of a civil, cultural, economic, political or social nature, they are all inherent to the dignity of every human person ... . Consequently, they all have equal status
as rights, and cannot be ranked, a priori, in hierarchical order." n120 So called "economic" and "social" rights like the right to work, social security, education, and
health are just as fundamental as "civil" and "political" rights like the right to protection against torture, freedom of assembly, and freedom of speech. n121 From a
human rights perspective, the absence of medicine or doctors at a local health clinic is equivalent to the torture of opposition political leaders. n122 (*320) What this
means is that the violation of economic and social rights requires immediate and forceful responses. n123 If a government neglects to provide teachers to a local
school, the community is within its right to protest and organize. If an international agency fails to attend to the negative social consequences of the economic policies
it recommends, the population is entirely justified to call for the immediate resolution of its grievances. Finally, the human rights approach is grounded in the idea that
the source of poverty lies in the structure of the power relations that exist in society. n124 In addition to "empowering" the poor, this approach looks to transform the
framework of power in society as a whole. n125 In other words, human rights requires "scaling up." This is most obvious in the area of political rights. In addition to
freedom of speech and freedom of association, the Universal Declaration of Human Rights also claims that citizens have the right to participate in government itself
Citizens should be made direct participants in the wealth of the national economy as well
as in national economic policy-making . n127 As this U.N. document on a "Common Understanding" of the human rights based
approach states, programs that comply with this approach must include "assessment and analysis to identify ... the immediate, underlying, and structural causes of the
non-realization of rights." n128 As Cornwall has pointed out, this element of the human rights approach is so important, because, In emphasizing obligation and
responsibility, the rights-based approach opens up the possibilities of a renewed focus on the root causes of poverty and exclusion, and on the relations of power that
summarizes the above-mentioned five central elements of the human rights approach to development: Table 1: The Human Rights Approach to Development Core
Concept Traditional Approach Human Rights Approach Service Provision Charity/Help Obligation The Poor Beneficiaries/ Consumers Citizens Participation Topdown Bottom-up Economic & Less Urgent than Civil & Indivisibility of Human Social Rights Political Rights Rights Power Structure Unimportant or Ignored Central
to Overcoming Poverty Social accountability initiatives may or may not fall within the category of human rights approaches to development. n130 The fact that (*322)
they have to do with accountability and improving governance does not guarantee that they also have to do with human rights. A more accountable government is not
necessarily one that approaches the task of development from a human rights perspective. It is easy to imagine a government that informed its citizens about and
justified every one of its actions in a pro-active manner and exposed its public servants to clear sanctions depending on their performance, but still approached the
poor in a paternalistic, charity-based manner. The involvement of civil society in pro-accountability initiatives does not necessarily guarantee their human rights
component either. As discussed above, "participation" can take many different forms. "Beneficiaries" can participate by replacing government officials in the delivery
of goods and services. n131 "Consumers" can participate in service delivery by sending market signals about their preferences. n132 The people at large can
"participate" by making their opinions known or responding to specific invitations made by the government. n133 None of these modalities truly fulfills the promise
of the human rights perspective. This perspective requires a bottom-up approach to participation in which empowerment comes before opportunity and rights come
before efficiency. Only when social accountability initiatives are grounded in a vision of service providers as duty-bearers, that sees the poor as citizens, stimulates
participation from the bottom-up, emphasizes the indivisibility of human rights, and is oriented towards changing the overall power structure can we speak of a human
rights approach in action. n134 But how can we judge whether this is the case or not? What (*323) are the specific indicators of the presence of a human rights
approach in social accountability initiatives? For each element of the human rights approach we can design specific indicators, which will reveal whether the element
exists. First, with regard to the charity (or obligation) criteria, an excellent indicator is whether formal legal instruments are encouraged as a means by which citizens
can claim their rights. n135 The encouragement of legal recourse demonstrates that service providers are being conceptualized as duty-bearers, since it is the law that
ultimately grounds the duty to uphold human rights. n136 If legal recourse is not encouraged, this puts in doubt the idea that the service provider is obligated to
perform effectively. Second, with regard to the beneficiaries/consumer/citizen criteria, we can examine to what extent the participants in the social accountability
initiatives are encouraged to engage in a broad debate about the underlying sources of the problems which they encounter daily in their interaction with the
government. n137 Are citizens only expected to give their opinions and participate in the solutions concerning the delivery of specific services, or are they taken
seriously as political actors who can participate in constructing and implementing broader national or international solutions? Third, with regard to the "direction" of
participation, are the participatory mechanisms designed externally and then "imposed" on the population, or are previously existing community forms of participation
taken as the starting point for the design of the mechanisms? Is participation carefully controlled and limited to previously existing spaces or is it encouraged to
multiply and expand beyond these spaces? (*324) Fourth, are violations of economic, social, and cultural rights placed at the same level as the violations of political
and civil rights? Specifically, are patience and tolerance to violations of so-called second generation rights preached, or is the initiative inspired by a push for
immediate action? Fifth, with regard to the issue of the overarching power structure, a crucial indicator is whether the actors and forces, which oppose improving
government accountability, are explicitly named and engaged with or simply not mentioned. n138 Insofar as these opposing forces are not explicitly taken into
account, this is an indicator of a tendency to sweep larger structural problems under the rug. n139 The following table (Table 2) summarizes the indicators for each
one of the elements of the human rights approach: Table 2: Indicators of the Human Rights Approach in Social Accountability Initiatives Core Element Indicator
Service Providers as Is formal legal recourse encouraged? Duty-Holders Participants as Citizens Are citizens encouraged to think beyond immediate and localistic
concerns? Bottom-up Participation Is participation expansive and does it build on previously existing practices? Indivisibility of Human Is the initiative inspired by a
an important
challenge with regard to implementing a (*325) human rights approach is the institutionalization of social accountability initiatives. As Walter Eberlei has
written, a certain "event culture" tends to prevail when the concepts of societal participation and civic
engagement are brought to the table. n140 Many public officials seem to believe that all that these
concepts imply is the holding of a series of hearings, workshops, and consultations, not the
establishment of a long-term participatory dialogue with civil society. n141 There are three different levels at
which participatory mechanisms can be institutionalized in the state. First, participatory mechanisms can be built into the
strategic plans of government agencies, with rules and procedures mandated that require
"street-level bureaucrats" to consult or otherwise engage with societal actors. n142 Second, specific
government agencies can be created that have the goal of assuring societal participation in
government activities or act as a liaison in charge of building links with societal actors. n143
Third, participatory mechanisms can be inscribed in law, requiring individual agencies or the
government as a whole to involve societal actors at specific moments of the public policy
process. n144 Although the first level of institutionalization is more or less widespread and the second level is relatively common, the third level is extremely
push for Rights immediate and urgent action? Power Structure Are opposing forces explicitly named and engaged with? In general,
rare. There are of course some important exceptions, including the Administrative Procedures Act in the United States, Bolivia's Popular Participation Law, Porto
Alegre's Participatory (*326) Budgeting framework, Mexico City's Citizen Participation Law, and the wave of freedom of information laws that has swept the world
over the past two decades. n145 Nevertheless, these exceptions only prove the rule that participatory mechanisms are usually vastly under-institutionalized, depending
too much on the ingenuity and good will of individual bureaucrats. Why this is the case is more or less evident. Law making under democratic conditions involves the
messy process of legislative bargaining and a full role for political parties. n146 State reformers and multilateral agencies tend to shy away from such arenas,
especially when they are dominated by opposing parties or factions. n147 Therefore, reformers usually settle for executive procedures, special agencies, or innovative
individual bureaucrats to carry out their participative strategies. This is a mistake. If dealt with in a creative fashion, partisanship can be just as effective as isolation in
the search for effective accountability mechanisms. n148 It is absolutely crucial to involve political parties and the legislature to fully institutionalize participative
mechanisms through the law. In addition to the institutionalization of social accountability mechanisms in the state, we can also speak of their institutionalization in
society. Good laws, open institutions, and pro-active public servants will do very little if civil society itself is not able to take advantage of these openings. On the one
hand, civil society organizations and groups need to build their capacity to dialogue with government and hold it to account. n149 This endeavor involves including
the education and training of civil society as a central element of any social accountability initiative. n150 On the other (*327) hand, civil society groups ought to band
together to assure the long-term continuity and "institutionalization" of social accountability initiatives. n151 With many groups participating in coordinated fashion,
the permanence of the effort is much more likely guaranteed. Nevertheless, there is such a thing as "over-institutionalization." n152 Once participation is legally
recognized and socially organized, it is also controlled by those forces. Institutionalization can work as a double-edged sword. In general, the risk is the creation of an
elite class of individuals or civil society organizations who supposedly speak for the people but do not have social base or legitimacy to back up this voice. n153 The
debate with regard to the nature of institutionalized participation is an old one, going back to discussions of the corporatist form of interest mediation during the
1970s. At that time the important distinction was made between "state corporatism" and "societal corporatism." The former category includes those states who created
new labor and business "corporations" out of whole cloth and controlled them from above. n154 The latter category refers to those states in which previously existing
labor and business groups negotiated their entrance into the state from a position of power. n155 A similar distinction can be made with respect to the
institutionalization of civic engagement for accountability. When this institutionalization leaves the state with the power to divide, co-opt, and control civil society we
have reached the problematic situation of "over-institutionalization," or "statist institutionalization." n156 When it empowers previously existing societal actors to
make their voices heard and to apply sanctions on misbehaving or ineffective (*328) governments, we have the much more productive case of what can be called
major reasons for resisting a policy of total transparency. n160 Although this may often be the case, governments also frequently use such claims only as excuses to
hide uncomfortable information from the public eye. n161 Nevertheless, there is a limit to the extent to which citizens as agents of accountability can be invited into
the core of the state. Nuria Cunill Grau has stated that "co-management is irreconcilable with control (and t)he efficacy of (social control) is directly dependent on the
they were supposed to control. n163 Funding is a crucial issue here. Insofar as the government funds in a discretionary manner individuals and groups who are holding
it accountable, their ability to exercise their pro-accountability function is compromised. n164 Nevertheless, we should not take this argument too far. An organization
that receives resources from the government is not necessarily "bought off." If resources are disbursed transparently and with the use of objective criteria the fear of
cooptation is significantly reduced. n165 The numerous existing public universities, public investigation commissions, and government-funded citizen councils
demonstrate that public money and public criticism can go hand-in-hand. In addition, there are numerous ways in which societal actors can be invited inside the state
without any money exchanging hands, including legal figures such as "social audits" and "citizen comptrollers." n166 The General, State, and District councils of
Mexico's Federal Election Institute are excellent examples of how societal actors can enforce accountability from within the state (*330) itself. n167 "Depth of
involvement" is frequently related to "level of Institutionalization" insofar as the closer societal actors get to the core of the state, the more their behavior is usually
regulated. n168 But this is by no means a guarantee. Relatively external forms of participation, like public consultations of large infrastructure projects, can be
required by law, while many civil society organizations or movements are able to reach into the very core of the state even without legal permission, as when informal
but powerful bargaining tables are set up between guerrilla leaders and government officials. n169 These are therefore two distinct dimensions and each needs to be
given its due attention in the design of social accountability mechanisms. There is also a tendency for participatory pro-accountability mechanisms to only involve a
small group of "well behaved" NGOs, middle class professionals, and centrist politicians. n170 The unspoken fear is that the participation of broad-based grassroots
movements, uneducated citizens, and leftist politicians will only make things more difficult. The fundamental problem here is one of communication and value
sharing. n171 On the one hand, communication with the "well behaved" group is much easier because they usually speak the same language, both literally and
figuratively, and have often even studied at the same universities as (*331) the public officials. On the other hand, language, class, and cultural barriers make it much
more difficult to truly listen to and understand the "raucous" group. n172 Clear proposals are often misinterpreted as destructive criticism and the need to be taken into
account is frequently confused with a desire to disrupt. The simplest option is therefore to only open up participation to those one already understands. This is clearly a
long-term planning. n175 But too much predictability is dangerous insofar as it tends towards complicity. n176 Social accountability can be most effective when it
it is often the case that "the social trust that results from value-sharing weakens citizens' (*332) oversight and control capacities of what rulers do, and increases, in
turn, the chances of opportunistic actions by one of them." n178 "Distrust" is one of the most powerful motivating forces for the vigilant observation of government
and it is often the "raucous" groups that score high on this criteria. n179 In the end, "autonomous civil society is (not so) important because citizens share values that
sustain the benefits of self-restraint ... (it) is important because it implies the existence of multiple external eyes with interests in the enforcement of law and
"moderate" forms of social organization as the only ones that can positively influence the construction of accountability arrangements. n182 In the end, we should
question the commonly accepted idea that the absence of partisanship and political conflict is the only fertile ground for neutrality and accountability. Professionalism
and independence are necessary but by no means sufficient to assure the long-term survival of accountability. To survive, pro-accountability structures need to be
legitimated by society both at their founding moment and during their everyday operations. n183 This requires the multiplication, not the reduction, of "external eyes"
and the diversification, not unification, of political and ideological perspectives. n184 Indeed, sometimes the most effective strategy for (*333) state reformers might
be to stimulate dynamic social movements and social protest and let them take the lead in pressuring and undermining the power of recalcitrant elements of the state.
Federalism
1NC
Failure to use reg neg results in a federalism crisisREAL ID proves
Ryan 11
(Erin Ryan holds a B.A. 1991 Harvard-Radcliffe College, cum laude, M.A. 1994 Wesleyan University, J.D. 2001 Harvard Law School,
cum laude. Erin Ryan teaches environmental and natural resources law, property and land use, water law, negotiation, and federalism.
She has presented at academic and administrative venues in the United States, Europe, and Asia, including the Ninth Circuit Judicial
Conference, the U.S.D.A. Office of Ecosystem Services and Markets, and the United Nations Institute for Training and Research. She
has advised National Sea Grant multilevel governance studies involving Chesapeake Bay and consulted with multiple institutions on
developing sustainability programs. She has appeared in the Chicago Tribune, the London Financial Times, the PBS Newshour and
Christian Science Monitors Patchwork Nation project, and on National Public Radio. She is the author of many scholarly works,
including Federalism and the Tug of War Within (Oxford, 2012). Professor Ryan is a graduate of Harvard Law School, where she was an
editor of the Harvard Law Review and a Hewlett Fellow at the Harvard Negotiation Research Project. She clerked for Chief Judge
James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before practicing environmental, land use, and local government
law in San Francisco. She began her academic career at the College of William & Mary in 2004, and she joined the faculty at the
Northwestern School of Law at Lewis & Clark College in 2011. Ryan spent 2011-12 as a Fulbright Scholar in China, during which she
taught American law, studied Chinese governance, and lectured throughout Asia. Ryan, E. Boston Law Review, 2011.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583132//ghs-kw)
b. A Cautionary Tale: The REAL ID Act The value
rulemaking to forge consensus among the states about how best to proceed. n292 States leery of the stag-gering costs
associated with proposed reforms participated actively in the process. n293 However, the subsequent
REAL ID Act of 2005 repealed the ongoing negotiated rulemaking and required DHS to prescribe topdown fed-eral requirements for state-issued licenses. n294 The resulting DHS rules have been bitterly opposed by the
majority of state governors, legislatures, and motor vehicle administrations, n295 prompting
a virtual state rebellion that cuts across the red-state/blue-state political divide. n296 No state
met the December 2009 deadline initially contemplated by the statute, and over half have enacted or
considered legislation prohibiting compliance with the Act, defunding its implementation,
or calling for its repeal. n297 In the face of this unprecedented state hostility, DHS has extended
compliance deadlines even for those that did not request extensions, and bills have been introduced in both houses of
Congress to repeal the Act. n298 Efforts to repeal what is increasingly referred to as a "failed" policy have
won endorsements [*58] from or-ganizations across the political spectrum. n299 Even the Executive
Director of the ACLU, for whom federalism concerns have not historically ranked highly, opined in USA Today that the REAL ID Act violates
the Tenth Amendment. n300
US federalism will be modelled globallysolves human rights, free trade, war, and
economic growth
Calabresi 95
(Steven G. Calabresi is a Professor of Law at Northwestern University and is a graduate of the Yale Law School (1983) and of Yale
College (1980). Professor Calabresi was a Scholar in Residence at Harvard Law School from 2003 to 2005, and he has been a Visiting
Professor of Political Science at Brown University since 2010. Professor Calabresi was also a Visiting Professor at Yale Law School in the
Fall of 2013. Professor Calabresi served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court, and he also
clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter. From 1985 to 1990, he served in the Reagan and first
Bush Administrations working both in the West Wing of the Reagan White House and before that in the U.S. Department of Justice. In
1982, Professor Calabresi co-founded The Federalist Society for Law & Public Policy Studies, a national organization of lawyers and law
students, and he currently serves as the Chairman of the Societys Board of Directors a position he has held since 1986. Since joining
the Northwestern Faculty in 1990, he has published more than sixty articles and comments in every prominent law review in the country.
He is the author with Christopher S. Yoo of The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press
2008); and he is also a co-author with Professors Michael McConnell, Michael Stokes Paulsen, and Samuel Bray of The Constitution of
the United States (2nd ed. Foundation Press 2013), a constitutional law casebook. Professor Calabresi has taught Constitutional Law I
and II; Federal Jurisdiction; Comparative Law; Comparative Constitutional Law; Administrative Law; Antitrust; a seminar on
Privatization; and several other seminars on topics in constitutional law. Calabresi, S. G. Government of Limited and Enumerated
Powers: In Defense of United States v. Lopez, A Symposium: Reflections on United States v. Lopez, Michigan Law Review, Vol 92, No 3,
December 1995. Ghs-kw)
We have seen that a
desire for both international and devolutionary federalism has swept across the
world in recent years. To a significant extent, this is due to global fascination with and emulation of our
own American federalism success story. The global trend toward federalism is an enormously positive development that
greatly increases the likelihood of future peace, free trade, economic growth, respect for
social and cultural diversity, and protection of individual human rights. It depends for its
success on the willingness of sovereign nations to strike federalism deals in the belief that
those deals will be kept.233 The U.S. Supreme Court can do its part to encourage the future striking of
such deals by enforcing vigorously our own American federalism deal. Lopez could be a first step in
that process, if only the Justices and the legal academy would wake up to the importance of what is at stake.
proliferation, regional conflicts, and other ongoing threats to the international order will be affected by the presence or absence of strong US leadership but are also driven by their own dynamics.
The US impact is much more clear-cut in the negative case in which the US fails to rebound
and is in sharp economic decline. In that scenario, a large and dangerous global power vacuum
would be created and in a relatively short space of time. With a weak US, the potential
would increase for the European economy to unravel. The European Union might remain, but as an empty shell around a fragmented
proposal in the Federal Register, invites public comments critiquing the draft, and then uses its discretion to revise or defend the rule in response
to comments. n256 Even this iterative process con-stitutes a modest negotiation, but it leaves participants so frequently unsatisfied that many
agencies began to in-formally use more extensive negotiated rulemaking in the 1970s. n257 In 1990, Congress passed the Negotiated Rulemaking
Act, amending the Administrative Procedure Act to allow a more dynamic [*52] and inclusive rulemaking process, n258 and a subsequent
Executive Order required all federal agencies to consider negotiated rulemaking when developing regulations. n259 Negotiated rulemaking
allows stakeholders much more influence over unfolding regulatory decisions. Under
benefits because it ensures that agency personnel will be unambiguously informed about the full
federalism implications of a proposed rule by the impacted state interests. Federal agencies are already required by
executive order to prepare a federalism impact statement for rulemaking with federalism implications, n273 but the quality of statefederal communication within negotiated rulemaking enhances the likelihood that federal
agencies will appreciate and understand the full extent of state [*54] con-cerns. Just as the consensusbuilding process invests participating stakeholders with respect for the competing concerns of other stake-holders, it invests
participating agency personnel with respect for the federalism concerns of state
stakeholders. n274 State-side federalism bargainers interviewed for this project
consistently reported that they always prefer negotiated rulemaking to notice and
comment--even if their ultimate impact remains small--because the products of fully
informed federal consultation are always preferable to the alternative. n275
Reg negs solve federalismtraditional rulemaking fails
Ryan 11
(Erin Ryan holds a B.A. 1991 Harvard-Radcliffe College, cum laude, M.A. 1994 Wesleyan University, J.D. 2001 Harvard Law School,
cum laude. Erin Ryan teaches environmental and natural resources law, property and land use, water law, negotiation, and federalism.
She has presented at academic and administrative venues in the United States, Europe, and Asia, including the Ninth Circuit Judicial
Conference, the U.S.D.A. Office of Ecosystem Services and Markets, and the United Nations Institute for Training and Research. She
has advised National Sea Grant multilevel governance studies involving Chesapeake Bay and consulted with multiple institutions on
developing sustainability programs. She has appeared in the Chicago Tribune, the London Financial Times, the PBS Newshour and
Christian Science Monitors Patchwork Nation project, and on National Public Radio. She is the author of many scholarly works,
including Federalism and the Tug of War Within (Oxford, 2012). Professor Ryan is a graduate of Harvard Law School, where she was an
editor of the Harvard Law Review and a Hewlett Fellow at the Harvard Negotiation Research Project. She clerked for Chief Judge
James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before practicing environmental, land use, and local government
law in San Francisco. She began her academic career at the College of William & Mary in 2004, and she joined the faculty at the
Northwestern School of Law at Lewis & Clark College in 2011. Ryan spent 2011-12 as a Fulbright Scholar in China, during which she
taught American law, studied Chinese governance, and lectured throughout Asia. Ryan, E. Boston Law Review, 2011.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583132//ghs-kw)
Unsurprisingly, bargaining
some degree, and any given negotiation may feature it more or less prominently based on the factual particulars. n620 Yet the taxonomy
reveals several forms in which federalism values predominate by design, and which may prove especially valuable in fraught federalism contexts:
negotiated rulemaking, policymaking laboratory negotiations, and iterative federalism. n621 These ex-amples indicate the potential for purposeful
federalism engineering to reinforce procedural regard for state and fed-eral roles within the American system. (1) Negotiated
Rulemaking between state and federal actors improves upon traditional administrative
rule-making in fostering participation, localism, and synergy by incorporating genuine
state input into federal regula-tory planning. n622 Most negotiated rulemaking also uses
professional intermediaries to ensure that all stake-holders are appropriately engaged and
to facilitate the search for outcomes that meet parties' dovetailing interests. n623 For example, after
discovering that extreme local variability precluded a uniform federal program, Phase LI stormwater negotiators invited municipal dischargers to
design individually [*123] tailored programs within general federal limits. n624 Considering
successful instances of federalism bargaining . n625 Moreover, the difficulty of asserting state
consent to the products of the REAL ID notice-and-comment rulemaking (given the outright rebellion that fol-lowed) limits its
interpretive potential. Negotiated rulemakings take longer than other forms of administrative rulemaking, but are
more likely to succeed over time. Regulatory matters best suited for state-federal negotiated rulemaking include those in which
a decisive federal rule is needed to overcome spillover effects, holdouts, and other collective action problems, but unique and diverse state
expertise is needed for the creation of wise policy. Matters
proliferation, regional conflicts, and other ongoing threats to the international order will be affected by the presence or absence of strong US leadership but are also driven by their own dynamics.
The US impact is much more clear-cut in the negative case in which the US fails to rebound
and is in sharp economic decline. In that scenario, a large and dangerous global power vacuum
would be created and in a relatively short space of time. With a weak US, the potential
would increase for the European economy to unravel. The European Union might remain, but as an empty shell around a fragmented
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
community would reduce its aid efforts, leaving impoverished or crisis-stricken countries to fend for themselves, multiplying the
chances of grievance and peripheral conflicts. In this scenario, the US would be more likely to lose
influence to regional hegemonsChina and India in Asia and Russia in Eurasia. The
Middle East would be riven by numerous rivalries which could erupt into open conflict,
potentially sparking oil-price shocks. This would be a world reminiscent of the 1930s when
Britain was losing its grip on its global leadership role.
the lessons to be drawn from that period include the harmful effects on fledgling democracies and multiethnic societies (think Central Europe in 1920s and
1930s) and on the sustainability of multilateral institutions (think League of Nations in the same period). There is no reason to think that this would not be true in the
twenty-first as much as in the twentieth century. For that reason, the ways in which the
more apt in a constantly volatile economic environment as they would be if change would be steadier. In surveying those risks, the report stressed
the likelihood that terrorism and nonproliferation will remain priorities even as resource issues move up on the international agenda. Terrorisms appeal will decline if
economic growth continues in the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the diffusion of
technologies and scientific knowledge will place some of the worlds most dangerous capabilities within their reach. Terrorist groups in 2025 will likely be
a combination of descendants of long established groupsinheriting organizational structures, command and control processes, and training procedures necessary to
conduct sophisticated attacksand newly emergent collections of the angry and disenfranchised that become self-radicalized, particularly in the absence of
economic outlets that would become narrower in an economic downturn. The most dangerous casualty of any economically-induced drawdown of U.S. military
War would emerge naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella could lead
to an unintended escalation and broader conflict if clear red lines between those states involved are not well established. The close proximity of potential nuclear rivals
combined with underdeveloped surveillance capabilities and mobile dual-capable Iranian missile systems also will produce inherent difficulties in achieving reliable
indications and warning of an impending nuclear attack. The lack of strategic depth in neighboring states like Israel, short warning and missile flight times, and
uncertainty of Iranian intentions may place more focus on preemption rather than defense, potentially leading to
escalating crises. Types of conflict that the world continues to experience, such as over resources, could reemerge, particularly if protectionism
grows and there is a resort to neo-mercantilist practices. Perceptions of renewed energy scarcity will drive countries to take actions to assure their future access to
energy supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy resources, for example, to be essential
for maintaining domestic stability and the survival of their regime. Even actions short of war, however, will have important geopolitical implications. Maritime
security concerns are providing a rationale for naval buildups and modernization efforts, such as Chinas and Indias development of blue water naval capabilities. If
the fiscal stimulus focus for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval capabilities could
lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for multinational cooperation in protecting critical sea lanes.
With water also becoming scarcer in Asia and the Middle East, cooperation to manage changing water resources is likely to be increasingly difficult both within and
between states in a more dog-eat-dog world.
in the global economy are associated with the rise and fall of a pre-eminent power and the often bloody
transition from one pre-eminent leader to the next. As such, exogenous shocks such as economic crises could usher
in a redistribution of relative power (see also Gilpin. 1981) that leads to uncertainty about power balances, increasing the
risk of miscalculation (Feaver, 1995). Alternatively, even a relatively certain redistribution of power could lead
to a permissive environment for conflict as a rising power may seek to challenge a declining power (Werner. 1999). Separately,
Pollins (1996) also shows that global economic cycles combined with parallel leadership cycles impact the likelihood of conflict among major,
medium and small powers, although he suggests that the causes and connections between global economic conditions and security conditions
remain unknown. Second, on a dyadic level, Copeland's (1996, 2000) theory of trade expectations suggests that ' future expectation of
trade' is a significant variable in understanding economic conditions and security behaviour of states. He
argues that interdependent states are likely to gain pacific benefits from trade so long as they have an optimistic view of future trade relations.
However, if the expectations of future trade decline, particularly for difficult to replace items such as energy resources, the
likelihood for conflict increases, as states will be inclined to use force to gain access to those resources.
Crises could potentially be the trigger for decreased trade expectations either on its own or because it triggers protectionist
external conflicts self-reinforce each other . (Blomberg & Hess, 2002. p. 89) Economic decline has also been linked
with an increase in the likelihood of terrorism (Blomberg, Hess, & Weerapana, 2004), which has the capacity to spill across
borders and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government. "Diversionary theory"
suggests that, when facing unpopularity arising from economic decline, sitting governments have increased
incentives to fabricate external military conflicts to create a 'rally around the flag' effect. Wang
(1996), DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find supporting evidence showing that economic decline and use of force are
at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the tendency towards
diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are
generally more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that
periods of weak economic performance in the U nited S tates, and thus weak Presidential popularity, are statistically
linked to an increase in the use of force. In summary, recent economic scholarship positively correlates economic
integration with an increase in the frequency of economic crises, whereas political science scholarship links economic
decline with external conflict at systemic, dyadic and national levels.5 This implied connection between integration,
crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.
an open and traditional conflict between states, perhaps even involving the use of nuclear weapons . The
crisis might
be triggered by a collapse of the global economic and financial system, the vulnerability of
which we have just experienced, and the prospect of a second Great Depression, with consequences for peace and democracy similar to those
of the first. Whatever the trigger, the
and fiscal
rapidly. continuation
The
system, leading
in turn
to
increased
even
mere fluctuation in the business cycle. Recovery is likely to be protracted. The crisis was preceded by the buildup over two decades of enormous amounts of debt throughout the U.S. economy ultimately totaling almost 350 percent of GDP and the development of credit-fueled asset
bubbles, particularly in the housing sector. When the bubbles burst, huge amounts of wealth were destroyed, and unemployment rose to over 10 percent. The decline of tax revenues and massive countercyclical spending put the U.S. government on an unsustainable fiscal path. Publicly held
national debt rose from 38 to over 60 percent of GDP in three years.
interest rates
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If
were to rise significantly, annual interest payments which already are larger than the defense budget
or require substantial tax increases that would undercut economic
growth. Even worse, if unanticipated events trigger what economists call a sudden stop in credit markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would almost certainly compel a radical retrenchment
. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a presence east of Suez. Soviet economic weakness, which crystallized under
Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
reducing its military spending and
. Even though countries such as China, India, and Brazil have profound
political, social, demographic, and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could in the long term produce a multi-polar world.
act
competition among major powers,
and other powers continue to grow, it is not a question of whether but when a new international order will emerge.
risk of escalation.
U.S. leadership
the higher
the longest period of peace among the great powers has been the era of
increase incentives for local powers to play major powers against one another,
. By contrast,
Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario,
Either way,
wars , break out.13 Gilpins argument logically encourages pessimism about the
implications of a rising China. It leads to the expectation that international trade, investment, and technology transfer will result in a
steady diffusion
of American economic power, benefiting the rapidly developing states of the world,
including China. As the US simultaneously scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic
problem of overextension), it will be unable to devote sufficient resources to maintain or restore its former
advantage over emerging competitors like China. While the erosion of the once clear American advantage
plays itself out, the US will find it ever more difficult to preserve the order in Asia that it
created during its era of preponderance. The expectation is an increase in the likelihood for
the use of force either by a Chinese challenger able to field a stronger military in support of its demands for greater
influence over international arrangements in Asia, or by a besieged American hegemon desperate to head off
further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpins theory are
Chinas expanding share of world trade and wealth(much of it resulting from the gains made possible by the
international economic order a dominant US established); its acquisition of technology in key sectors that have both
civilian and military applications (e.g., information, communications, and electronics linked with to forestall, and the challenger becomes
increasingly determined to realize the transition to a new international order whose contours it will define. the revolution in military affairs);
and an expanding military burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that
limits the resources it can devote to preserving its interests in East Asia.14 Although similar to Gilpins work insofar as it emphasizes the
importance of shifts in the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler
present in The War Ledger focuses more closely on the allegedly dangerous phenomenon of crossover the point at which a dissatisfied
challenger is about to overtake the established leading state.15 In such cases, when
dominant state becomes increasingly desperate . Though suggesting why a rising China may ultimately present
grave dangers for international peace when its capabilities make it a peer competitor of America, Organski and Kuglers powertransition theory is less clear about the dangers while a potential challenger still lags far behind and faces a difficult struggle to catch
up. This clarification is important in thinking about the theorys relevance to interpreting Chinas rise because a broad consensus prevails among
analysts that Chinese military capabilities are at a minimum two decades from putting it in a league with the US in Asia.16 Their theory,
then, points
with alarm to trends in Chinas growing wealth and power relative to the
United States, but especially looks ahead to what it sees as the period of maximum danger that
time when a dissatisfied China could be in a position to overtake the US on dimensions
believed crucial for assessing power. Reports beginning in the mid-1990s that offered
extrapolations suggesting Chinas growth would give it the worlds largest gross domestic product
(GDP aggregate, not per capita) sometime in the first few decades of the twentieth century fed these sorts of
concerns about a potentially dangerous challenge to American leadership in Asia.17 The huge gap between Chinese and American military
capabilities (especially in terms of technological sophistication) has so far discouraged prediction of comparably disquieting trends on this
dimension, but inklings of similar concerns may be reflected in occasionally alarmist reports about purchases of advanced Russian air and naval
equipment, as well as concern that Chinese espionage may have undermined the American advantage in nuclear and missile technology, and
speculation about the potential military purposes of Chinas manned space program.18 Moreover, because
Legitimacy/Conflict NB
1NC Shell
Traditional agency rulemaking lacks legitimacybreeds distrust and makes rule of law
ineffective
Breger 07
(Marshall J. Breger holds a B.A. and M.A., 1967, from University of Pennsylvania, a B.Phil., 1970, from Oriel College, Oxford
University; and a J.D., magna cum laude 1973, from the University of Pennsylvania Law School, where he was an editor of the law
review and a member of the Order of the Coif. Professor Breger is a professor of law at the Columbus School of Law, The Catholic
University of America. From 1993-95, he was a senior fellow at the Heritage Foundation, Washington, D.C. During the George H.W.
Bush Administration he served as Solicitor of Labor, the chief lawyer of the Labor Department with a staff of over 800. During 1992 by
presidential designation he served concurrently as Acting Assistant Secretary for Labor Management Standards. He is Vice-President of
of the Jewish Policy Center, a think tank. From 1985-91 Breger was chairman of the Administrative Conference of the United States, an
independent federal agency. During 1987-89 he also served as alternate delegate of the U.S. to the U.N. Human Rights Commission in
Geneva. From 1982-84 he served as special assistant to President Reagan and his liaison to the Jewish Community. In Fall 2002, Breger
was Lady Davis Visiting Professor of Law at the Hebrew University of Jerusalem. In Fall 2003 he was Distinguished Sy-Cip Fulbright
Lecturer in the Philippines. Breger is a contributing columnist to Moment magazine. He writes and speaks regularly on legal issues and
has published over 25 law review articles in publications including the Stanford Law Review, Boston University Law Review, Duke Law
Journal and North Carolina Law Review. He has published as well in periodicals such as the Middle East Quarterly, the National
Interest, the Los Angeles Times, the Wall Street Journal, the Washington Post, and the New York Times. He has testified more than 30
times before the United State Congress. His subjects include constitutional law, arbitration, foreign relations law of the United States,
and a seminar on the Middle East peace process. Breger, M. J. The Quest for Legitimacy in American Administrative Law, Catholic
University of America Scholarship Repository, 2007. http://scholarship.law.edu/cgi/viewcontent.cgi?article=1104&context=scholar//ghskw)
This undercurrent of American history is dwarfed by a fundamental continuum of American political thought- Americans
distrust
bureaucracy.2 This "deep uneasiness," as James Freedman has put it, "about the coercive and
dehumanizing influence of bureaucratic organizations"23 has a number of sources. One
reason is the belief that bureaucracies "too often appear concerned primarily with
formalistic adherence to their own rules , rather than with seeking a personalized response
to the peculiarities of [the individual's] specific circumstances . 2 4 This concern that the letter of the law
often undercuts its "spirit" is well described in Philip Howard's best seller, The Death of Common Sense.2 1 Howard argues that while " we
don't trust bureaucrats," giving them discretion is "the only way for them to do anything, and the only way for us to know who to
blame."26 Thus, he wants to give bureaucrats flexibility to waive rules or not to waive rules, to accept individuated compliance solutions; in
short, to ignore the letter of the law to accomplish its "spirit. '27 Ironically, Howard's remedy for pervasive over- and under- inclusiveness in
regulatory enforcement is to empower bureaucrats by giving them even more responsibility (or in administrative law terms more discretion) to
take matters into their own hands.2 As Howard explains, "if there is no flexibility for the regulator, there is no flexibility for us. 29 A second
strand of distrust of bureaucracy is reflected by critics like former Congressmen Newt Gingrich or Tom Delay
who believe that "[r]egulatory agencies have run amuck and need to be reformed,"30 and that
laissez-faire or market-based solutions are presumptively superior to regulatory regimes. While they want fewer regulations, they also
want to place substantial burdens on the regulatory process itself. Thus, they seek to restrict the flexibility
and discretion of administrative agencies through procedural constraints." As Howard incisively points out, "[o]ne of the worst elements of the
Republicans' plan for regulatory reform is that they want to make it even harder to pass a new rule"32 Indeed many would prefer "clogging the
wheels of the federal bureaucracy," 33 taking ironic pride in "add[ing] more red tape and judicial oversight,"" if not admitting that such action is a
"recipe for paralysis."3'5 For, as former Congressman David McIntosh suggests, "many Americans think paralyzing the federal government
would be a good thing."36 Some have argued that we are now at a kind of "constitutional moment," to borrow from Bruce Ackerman,37 where
American politics defaults to market-based solutions and where the proponents
commentators (usually
proposed new approaches to government intervention based on informal
approaches to regulatory management. These initiatives, variously termed "democratic experimentalism,"39
cooperative regulation," and "the Renew Deal,"41 are all premised in the view that "Americans still want
government to tackle... [large problems]; they just don't want government to tackle these problems via the characteristic
academics) have
institutional form of the New Deal-Great Society constitutional order, namely, bureaucracy. 4 2 Thus they
when a variety of substance and process variables are held constant. That is,
expressed greater satisfaction with the final rule than participants in conventional
rulemakings, independently of differences between the types of rules chosen for
conventional and negotiated rulemaking, independently of divergent views of the
economic net benefits of the particular rule, and in dependently of their affiliation.
breeds disagreement, these results continue to accord with the hypothesis that
If conflict
standard deviation (a measure of heterogeneity) of the ratings of conventional rules was generally higher than the standard deviation of ratings for
negotiated rules, consistent with the hypothesis that negotiation reduces conflict among parties, resulting in more homogeneous, consensual
views of the eventual outcome. The open-ended interviews also produced evidence of higher satisfaction among participants in negotiated
rulemaking. When asked what they liked and disliked about the process, reg neg participants reported significantly more "likes" than their
conventional rulemaking counterparts. The evidence indirectly reveals somewhat greater satisfaction among negotiated rule participants. Again, if
conflict breeds dissatisfaction, then these results are consistent with the view that negotiation engenders less conflict. b. Learning and Conflict
Overall, Kerwin and Langbein's evidence upholds the expectation that, compared to conventional rulemaking, which is hierarchically directed by
EPA, "participants
of the issue, and new information about the positions of other parties; overall, 62% of
negotiated rulemaking participants offered that they had learned these sorts of new
information , compared to only 17% of conventional rule participants. Moreover, researchers found that, when asked what they liked
about the process, negotiated rule participants more often mentioned something that they learned; indeed,
42% of these
respondents volunteered that they liked learning about something during the process , be it the
positions of others (15%), the process itself (10%), the substantive issue (9%), or the EPA or information for use in the future (8%). By
contrast, just 13% of conventional rule participants mentioned learning something as an
example of what they liked about the process, and not a single conventional participant reported "learning about the positions of others" among
their "likes." Still, the relationship between greater learning and conflict remains opaque. Recall that theorists disagree over whether more
learning and information sharing among the parties engenders more or less conflict. On the one hand,
conflict by increasing mutual understanding ; on the other it can exacerbate conflict by multiplying the issues over
which par ties might disagree. By using "satisfaction" (calculated using a number of measures) as a proxy for conflict, Kerwin and Langbein
found no positive or negative relationship between learning and conflict in rulemaking. Thus, learning appears to offer no clear instrumental
value for conflict reduction. Still, learning
process . When the more consensual reg neg process was used, respondents reported greater satisfaction both with the process and with the
net benefits of the final rule to their organization. Moreover, the standard deviation of judgments was smaller under reg neg. These results support
the theory that
outcomes, greater homogeneity in judgments about those out comes, and less conflict. In
sum, more consensual processes yielded significantly higher net benefit ratings and possibly
more agreement. Kerwin and Langbein asked reg neg participants what constituted consensus in their formal negotiation sessions,
expecting that more consensual decision rules would be associated with greater satisfaction, higher ratings of organizational net benefits, and less
conflict (i.e., more homogeneity) about those judgments. The results were consistent with these expectations: ratings
of the overall
process were lowest and the standard deviations were usually highest when the decision rule was "what EPA
wanted."
Thats key to Maintain Peacelack of legitimacy Creates Chaos
Dugan, 04
(Maire Dugan, Developer of the Masters in Conflict Resolution curriculum at Columbia College, Dr. Dugan is a member of the Board of
Directors for the SCCCR. She developed the "nested theory", Ph D, January 2004, Beyond Intractability, Legitimacy,
http://www.beyondintractability.org/essay/legitimacy)
legitimacy tends to be needed to maintain control . In the legal system, for example,
some people obey the laws simply because they believe in the rule of law and the
appropriateness of the state making and enforcing the laws. In fact, if the majority did not
accept this, it would take massive amounts of time, weaponry and energy to enforce it . Thus
the rule of law itself is sufficient for the vast majority of "law abiding," citizens. Beyond this, it is largely their support that
allows the state to enforce the law on those who do not accept its legitimacy. Fear of the lack
of public support was seen in the immediate aftermath of the capture of Saddam Hussein in
Some form of
Iraq. Charles Gibson of ABC's Good Morning America asked an advisor to the interim Iraqi government whether a trial of Hussein in Iraq
would have legitimacy with the Iraqi people given that they have not yet constituted their own government. The newscaster asked the same
question of a former U.S. ambassador to the United Nations who was being interviewed at the same time. The
Defuse Politicized Situations. Expanding public involvement is one way of reducing the
wrangling that surrounds some controversial policy choices. While to be sure not everyone will be happy with
the outcome whatever it may be, ensuring that all can readily express their views can make it more
likely that everyone will accept the outcome as a legitimate decision. Contrariwise, if little
outreach is attempted, those who oppose the outcome will also denounce it as the product of
a flawed, closed process that did not adequately consider opposing views. Further, broad
consultation reduces the pressure on the agency since it can be made to appear that the
decision is the product of a democratic choice. Democratic Legitimacy . Although administrative law has focused on
increasing public participation at least since the early 1970s, it has taken on a new emphasis as government has decentralized
and the potential contributions of the private sector have become recognized and
embraced. Thus, a more recent reason for stakeholder involvement is the notion that it is more in keeping with
democratic theory if those interested in and affected by a political decision have an
opportunity to express their views to those who will make the decision. Decisions made with greater
public participation are seen as more legitimate than those issued by the agency after
minimal outreach.
Legitimacy is key to conflict resolution
Dugan, 04
(Maire Dugan, Developer of the Masters in Conflict Resolution curriculum at Columbia College, Dr. Dugan is a member of the Board of
Directors for the SCCCR. She developed the "nested theory", Ph D, January 2004, Beyond Intractability, Legitimacy,
http://www.beyondintractability.org/essay/legitimacy)
In working on resolving environmental conflicts, one or more groups may not be sufficiently
established to have legitimacy. In this case, it is not a question that the group is considered
illegitimate ; it simply does not have sufficient recognition and legitimacy to negotiate
agreements , which impact a wider group. Dukes and Firehock associate the legitimacy of such groups with balance and inclusiveness in
representation: " a
group seen as representative will have legitimacy that a group that is seen as
excluding interests will not have, and any agreements will be less likely to be attacked ."(7)
Oftentimes, however, in intractable conflicts, the problem is not simply that the parties do not have
legitimacy; one or more of them are seen by some significant sector of the society as
illegitimate. In that case, a negotiation is likely to be fruitless. Party A does not believe the promises Party B is making, or, even if Party A
is willing to presume good faith, they may be concerned about whether Party B can actually make their promises happen. Conflict
resolution , in such cases, must be concerned with the restoration and extension of legitimacy . In
this case, it is wise to consider the sources of legitimacy. Max Weber, often quoted on the topic, identifies four: tradition:
valid is that which has always been; affectual, especially emotional, faith: valid is that which is newly revealed or exemplary; value-rational faith:
valid is that which has been deduced as an absolute; positive enactment which is believed to be legal. Such
legality may be
the dean of the school. Langbein, L. I. Kerwin, C. M. Regulatory Negotiation versus Conventional Rule Making: Claims,
Counterclaims, and Empirical Evidence, Journal of Public Administration Research and Theory, July 2000.
http://jpart.oxfordjournals.org/content/10/3/599.full.pdf//ghs-kw)
Our research contains strong but qualified support for the continued use of negotiated
assessments are
significantly more positive than those of participants in conventional rule making. In short, the process
itself seems to affect participants' views of the rule making, independent of differences
between the types of rules chosen for conventional and negotiated rule making, and
independent of differences among the participants, including differences in their views of
the economic net benefits of the particular rule. This finding is consistent with theoretical expectations regarding the
relatively less complex. But even when these and other variables are controlled, reg neg participants' overall
importance of participation and the importance of face-to-face communication to increase the likelihood of Pareto-improving social outcomes.
With respect to participation, previous research indicates that compliance
presented in this study shows that reg neg participants rated the overall
process (with and without statistical controls in exhibits 9 and 1 respectively) and the ability of EPA equitably to
implement the rule (exhibit 1) significantly higher than conventional rule-making participants
did. Further, while conventional rule-making participants were more likely to say that there was no party with disproportionate influence during
the development of the rule, reg neg participants voluteered significantly more positive comments and significantly fewer negative comments
about the process overall. In general, reg
beneficiaries than for losers. If reg neg reduces transactions costs compared to conventional rule making, or if reg neg reduces
the imbalance in transactions costs between winners and losers, or among different kinds of winners and losers, then it might be
reasonable to expect negotiated rules to be Pareto-superior to conventionally written rules.
Reg neg may reduce transactions costs in two ways. First, participation in writing the
proposed rule (which sets the agenda that determines the final rule) is direct, at least for the participants. In conventional
rule making, each interest has a repeated, bilateral relation with the rule-making agency; the rule-making agency proposes
the rule (and thereby controls the agenda for the final rule), and affected interests respond separately to what is in the agency proposal. In
negotiated rule making, each interest (including the agency) is in a repeated N-person set of mutual relations; the negotiating group drafts the
proposed rule, thereby setting the agenda for the final rule. Since
interviews also
produced evidence of higher satisfaction among participants in negotiated rulemaking.
When asked what they liked and disliked about the process, reg neg participants reported significantly
more "likes" than their conventional rulemaking counterparts. n247 The evidence indirectly
reveals somewhat greater satisfaction among negotiated rule participants. Again, if conflict breeds
dissatisfaction, then these results are consistent with the view that negotiation engenders less
conflict.
Reg negs are perceived as more legitimate
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Although reg
neg participants report higher satisfaction with the overall process than their conventional
parties might be more satisfied because of
the kinds of issues that tend to arise in regulatory negotiation, because they feel negotiation
improves rule quality, or because they value particular features of the process, such as the
opportunity to engage each other face to face. Higher satisfaction might be due to a factor that Kerwin and Langbein
counterparts, many of the reasons for that satisfaction remain unclear. The
did not test. To more closely identify the reasons for satisfaction (and dissatisfaction), Kerwin and Langbein used a multiple regression analysis to
isolate individual factors by holding others constant. Their
perceived complexity or messiness of the rule contributed to lower evaluations,345 while clarity (participant understanding of the issues)
is difficult to know what the general public or me- dian voter thinks of the
regulatory process, given that most complaints about its legitimacy or illegitimacy come
from either insiders, like lawyers, regulators, and politicians, or from academics, who represent only a narrow class of outsiders.352
As noted above, a lack of participation by outsiders does not necessarily signal dissatisfaction, nor does it indicate that they view the process as
illegitimate. We
Lecturer in the Philippines. Breger is a contributing columnist to Moment magazine. He writes and speaks regularly on legal issues and
has published over 25 law review articles in publications including the Stanford Law Review, Boston University Law Review, Duke Law
Journal and North Carolina Law Review. He has published as well in periodicals such as the Middle East Quarterly, the National
Interest, the Los Angeles Times, the Wall Street Journal, the Washington Post, and the New York Times. He has testified more than 30
times before the United State Congress. His subjects include constitutional law, arbitration, foreign relations law of the United States,
and a seminar on the Middle East peace process. Breger, M. J. The Quest for Legitimacy in American Administrative Law, Catholic
University of America Scholarship Repository, 2007. http://scholarship.law.edu/cgi/viewcontent.cgi?article=1104&context=scholar//ghskw)
The Participatory Project was an
comment provisions for informal rulemaking.5 3 Specifically, an agency must publish a notice of proposed rulemaking
with a draft rule and leave the record open for public comment.' The final rule must take these comments into account and agencies must explain
in a "concise statement of basis and purpose" accompanying the final rule exactly how they responded to public comments. 55 As one court has
suggested, these requirements are "intended to insure that the process of legislative rule-making in administrative agencies is infused with
openness, explanation, and participatory democracy."1'56 In
barriers of access to the
courts'
57 and to
forms of judicially imposed public hearings crafted to meet a supersized notice and comment requirement in informal rulemaking. In the 1970s,
the Supreme Court slapped down those efforts, precluding judicially created duties beyond
those called for in the APA or enabling statute."' They made clear that courts could not promote participation beyond
that provided by statute. Moreover a number of recent participatory "project" efforts have excited
democracy theorists , although the jury is still out as to their actual effect in promoting civic participation in the administrative
process.
One such technique is "negotiated rulemaking," by which the agency invites key
"stakeholders" to sit at the table and participate in the drafting of the rule. 1 60 Even when
agencies do not make use of this approach, they may incorporate principles of negotiated rulemaking into their actions.' 6 ' Another technique is
the federal government E-Rulemaking Initiative, 6 2 spurred by the E-Government Act of 2002163 and the development of the Federal Docket
Management System, 164 a centralized federal system designed to spur citizen access to the rulemaking process. The centerpiece of this effort,
Regulation.gov, is designed to assist citizens to locate and submit electronic documents on proposed agency regulation. 165
actors, and individuals are not confined within borders, whether we look to greenhouse gas
accumulations, nuclear testing, the danger of accidental nuclear war, or the vast massacres of civilians that
have taken place over the course of the last hundred years and still continue. Multilateral agreements increasingly have
been a primary instrument employed by states to meet extremely serious challenges of this kind, for several reasons. They clearly and
publicly embody a set of universally applicable expectations, including prohibited and required practices and policies. In other
words, they articulate
global norms, such as the protection of human rights and the prohibitions of
genocide and use of weapons of mass destruction. They establish predictability and accountability in addressing a given
issue. States are able to accumulate expertise and confidence by participating in the structured system established by a treaty. However,
influential U.S. policymakers are resistant to the idea of a treaty based international legal system because they fear infringement on U.S.
sovereignty and they claim to lack confidence in compliance and enforcement mechanisms. This approach has dangerous practical
implications for international cooperation and compliance with norms. U.S. treaty partners do not enter into treaties expecting that they are
only political commitments that can be overridden based on U.S. interests. When a powerful and influential state like the United States is
seen to treat its legal obligations as a matter of convenience or of national interest alone, other states will see this as a justification to relax or
withdraw from their own commitments. When the United States wants to require another state to live up to its treaty obligations, it may find
that the state has followed the U.S. example and opted out of compliance. Undermining the international system of treaties is likely to have
particularly significant consequences in the area of peace and security. Even though the United States is uniquely positioned as the economic
and military sole superpower, unilateral actions are insufficient to protect the people of the United States. For example, since September 11,
prevention of proliferation of weapons of mass destruction is an increasing priority. The United States requires cooperation from other
countries to prevent and detect proliferation, including through the multilateral disarmament and nonproliferation treaties. No legal system is
foolproof, domestically or internationally. While violations do occur, the dictum that most nations obey international law most of the time
holds true today with greater force than at any time during the last century. And legal systems should not be abandoned because some of the
actors do not comply. In the international as in the domestic sphere, enforcement requires machinery for deciding when there has been a
violation, namely verification and transparency arrangements. Such arrangements also provide an incentive for compliance under ordinary
circumstances. Yet for several of the treaties discussed in this report, including the BWC, CWC, and CTBT, one general characteristic of the
U.S. approach has been to try to exempt itself from transparency and verification arrangements. It bespeaks a lack of good faith if the United
States wants near-perfect knowledge of others compliance so as to be able to detect all possible violations, while also wanting all too often
to shield itself from scrutiny. While many treaties lack internal explicit provisions for sanctions, there are means of enforcement. Far more
than is generally understood, states are very concerned about formal international condemnation of their actions. A range of sanctions is also
available, including withdrawal of privileges under treaty regimes, arms and commodity embargoes, travel bans, reductions in international
financial assistance or loans, and freezing of state or individual leader assets. Institutional mechanisms are available to reinforce compliance
with treaty regimes, including the U.N. Security Council and the International Court of Justice. Regarding the latter, however, the United
States has withdrawn from its general jurisdiction. One explanation for increasing U.S. opposition to the treaty system is that the United
States is an honorable country that does not need treaty limits to do the right thing. This view relies on U.S. military strength above all and
assumes that the U.S. actions are intrinsically right, recalling the ideology of Manifest Destiny. This is at odds with the very notion that the
rule of law is possible in global affairs. If the rule of power rather than the rule of law becomes the norm,
especially in the context of the present inequalities and injustices around the world, security is likely to
be a casualty. International security can best be achieved through coordinated local, national, regional
and global actions and cooperation. Treaties, like all other tools in this toolbox, are imperfect instruments. Like a national law, a
treaty may be unjust or unwise, in whole or in part. If so, it can and should be amended. But without a framework of multilateral agreements,
the alternative is for states to decide for themselves when action is warranted in their own interests,
and to proceed to act unilaterally against others when they feel aggrieved. This is a recipe for the
powerful to be police, prosecutor, judge, jury, and executioner all rolled into one. It is a path that cannot
but lead to the arbitrary application and enforcement of law. For the United States, a hallmark of whose history is its role as a progenitor of
the rule of law, to embark on a path of disregard of its international legal obligations is to abandon the best that its history has
to offer the world. To reject the system of treaty-based international law rather than build on its many strengths is not only unwise, it is
extremely dangerous. It is urgent that the United States join with other countries in implementing existing global security treaties to meet the
security challenges of the twenty-first century and to achieve the ends of peace and justice to which the United States is committed under the
United Nations Charter.
Litigations/Court Clog NB
1NC Shell
Litigation issues, compliance costs and lack of regulation all turn solvencyreg neg solves
NPR 1
(National Partnership for Reinventing Government is a govt program headed by the Vice President and is made up of Federal
employees, representing agencies all over government,. Most serve 3 months to a year and then return to their home agencies to continue
the work of reinvention. Each staff person serves on a project team, with most teams focused on building partnerships with federal
agencies and private organizations around key reinvention initiatives.
http://www.ai.mit.edu/ARCHIVE/org/npr/documents/commentable/npr.ovp.eop.gov.us/1993/9/6/383.html)
REG03: Encourage Consensus-Based Rulemaking Background The traditional model for rulemaking is that of agency experts deciding the best way to regulate,
offering the public an opportunity to comment on the agency's proposed rule or to object to its adoption, and then issuing binding rules telling regulated entities what
to do. Even if the agency experts choose wisely, the traditional model has very little buy-in from outside the agency, which undermines the rule's effectiveness. This
traditional process encourages adversarial, uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which
frequently leads to protracted litigation. Agencies routinely find themselves under attack from various private parties who are unhappy with the rule. This has been
particularly true in controversial areas such as environmental regulation or the health and safety of workers. The
leads to cooperative efforts to resolve problems. On the contrary, a barrage of written critical comments followed by
litigation in the federal courts is frequently inevitable, accompanied by long delays and excessive
costs. These costs include the direct costs of pursuing or defending the court case and the
cost to industry and society of long periods of uncertainty about the final outcome. The
expectation of litigation usually sharpens the divisions between parties during the
rulemaking process and may eliminate any willingness to recognize others' legitimate
views. The parties have little incentive to focus on finding constructive, creative solutions
that address differing legitimate needs . (Endnote 1) NEED FOR CHANGE A small number of federal agencies have successfully
pioneered a consensus-based approach to drafting regulations--negotiated rulemaking (sometimes called regulatory negotiation or "reg neg"). Reg neg
brings together representatives of the agency and the various affected interests in a cooperative effort to
develop regulations that not only meet statutory requirements, but also are accepted by the
people who ultimately will have to live with the regulations(Endnote 2) Since 1982, approximately 35 federal agency negotiated
rulemakings have taken place or are currently under way. Almost half have been at the Environmental Protection Agency (EPA), which is the
only federal agency with a small office assigned specifically to assist other parts of the agency in doing reg negs. Other users include the Departments of Agriculture
(Animal and Plant Health Inspection Service), Education (required in certain programs by statute), Labor (Occupational Safety and Health Administration), and
Transportation (Office of the Secretary, Federal Aviation Administration, Federal Highway Administration, National Highway Traffic Safety Administration, Coast
Guard), Farm Credit Administration, Federal Communications Commission, and Nuclear Regulatory Commission(Endnote 3) The Negotiated Rulemaking Act of
1990 establishes a statutory framework for agency use of reg neg.(Endnote 4) HOW DOES REG NEG WORK? First, an agency would normally ask one or more
"conveners"--either outside contractors or government employees who are not otherwise involved in the proceeding--to determine whether the rule is appropriate for
reg neg. (As discussed below, reg neg is not appropriate for all rules.) If the convener recommends reg neg and if the agency head determines that use of reg neg is in
the public interest, a reg neg committee would be chartered under the procedures of the Federal Advisory Committee Act.(Endnote 5) A reg neg committee must be
composed of representatives of all affected interests. The agency and the convener must make reasonable efforts to ensure that all relevant interest groups and others
affected by the rule are aware of the proceeding. The agency must also publish a notice explaining the proposed reg neg and offering the opportunity to apply for
participation by interests not already adequately represented.(Endnote 6) Meetings of the negotiating committee are conducted by a mediator or facilitator (often the
convener), who may be a government employee or an individual from the private sector. The agency should participate fully in the negotiations, making sure that at all
times the participants are aware of what action the agency is likely to take if the committee does not reach an agreement. The goal of the negotiators is to reach
consensus on the text of a "proposed" regulation or rule through a process of evaluating their own priorities and making trade-offs to achieve an acceptable result. In
this way, the competing interests try to work out a practical solution to the problem necessitating regulatory action. Through the give-and-take of the negotiating
process, participants try to obtain a favorable outcome on the issues of greatest importance to them, while recognizing and accommodating the legitimate needs of
others. Throughout the process, the agency's function is to protect the public interest by implementing all applicable statutory and other legal requirements. The public
may observe the procedure, and public comments are invited before, during, and after the negotiations. If consensus is reached, the agency ordinarily would publish
the consensus draft rule in a notice of proposed rulemaking. If consensus is not reached, the agency ordinarily publishes its own proposal for a rule, often making good
The long-term
benefits of negotiated rulemaking include: --more innovative approaches that may reduce
compliance costs, --less time, money, and effort spent on developing and enforcing rules,
--earlier implementation, --higher compliance rates, and --more cooperative relationships
between the agency and other affected parties.(Endnote 7) These benefits flow from the broader participation of the parties, the
use of the information it has obtained through the course of the negotiations. BENEFITS OF NEGOTIATED RULEMAKING.
opportunity for creative solutions to regulatory problems, and the potential for avoiding litigation. If the parties reach consensus, the resulting rule is likely to be easier
at stake, who may otherwise feel relatively powerless. Rules drafted with assistance of persons who must ultimately be governed by them are more likely to be
practical, and therefore more acceptable. LIMITS ON REG NEG. Negotiated rulemaking is not appropriate for all rules. Certain characteristics of rulemaking
proceedings favor using reg neg. --The number of distinct interests concerned with the proposed rule, including any relevant government agencies, must be small
enough so that they can be fairly represented by not more than 20 to 25 negotiators. --There should be a number of diverse issues that participants can rank according
to their own priorities, so that there will be room for compromise on some of the issues as an agreement is sought. --It is essential that the issues to be negotiated not
require compromise of principles so fundamental to the parties that productive negotiations are unrealistic. --Parties must be willing to negotiate in good faith, and no
single interest should be able to dominate the negotiations. --The parties cannot have an incentive to stall; therefore, they must believe that the agency itself will issue
a rule if consensus is not reached. A statutory requirement that the agency issue some type of rule is often helpful. In rulemakings where reg neg is inappropriate for
these or other reasons, agencies should consider using policy discussion groups. The most significant deterrent to using negotiated rulemaking is its up-front cost.The
process can be resource-intensive in the short term for both the agency and the other participants. While there are likely to be considerable long-term savings in total
resources required, the concentrated investment of effort and expense in the short term may be a serious obstacle. This is particularly true if the savings and the costs
appear in the budgets of different operating components of the agency. Additional costs may include services of mediators and conveners, research conducted on
behalf of the negotiating committee, administrative support for the committee, expenses of participation for some of the negotiators, and some training costs. Action
Increase the use of negotiated rulemaking. (1) The President should encourage agencies to use reg neg. This is consistent with the new regulatory review executive
order. Regulatory agencies that have not used reg neg since enactment of the Negotiated Rulemaking Act of 1990 should identify at least one candidate for using reg
neg during the coming year or explain why it would not be feasible to do so.(Endnote 10) The administration should facilitate efforts to use reg neg by identifying and
removing any administrative barriers to its use. Reg neg should rarely, if ever, be required by statute for particular rulemakings because its success depends on the
voluntary participation of all participants, including the agency.(Endnote 11) Moreover, Congress should recognize that short statutory deadlines to issue proposed or
final rules, especially if they are shorter than two years, may preclude the use of negotiated rulemaking. CROSS-REFERENCES TO OTHER NPR
ACCOMPANYING REPORTS Department of Labor, DOL03: Expand Negotiated Rulemaking and Improve Up-front Teamwork on Regulations. Department of
Transportation, DOT03: Use a Consensus- Building Approach to Expedite Transportation and Environmental Decisionmaking. ENDNOTES 1. See Harter, Philip J.,
"Negotiating Regulations: A Cure for Malaise," Georgetown Law Journal, vol. 71 (1982), p. 1. 2. Administrative Conference of the United States, Recommendations
82-4 and 85-5, "Procedures for Negotiating Proposed Regulations," 1 C.F.R. 305.82-4 and 305.85-5 (1993); and Pritzker, David M., and Deborah S. Dalton, eds.,
ACUS, Negotiated Rulemaking Sourcebook (Washington, D.C., 1990). 3. Administrative Conference of the United States, "Federal Agency Experience with
Negotiated Rulemaking," (March 1, 1993), staff paper updating Chapter 10 of Pritzker and Dalton, Negotiated Rulemaking Sourcebook. 4. 5 U.S.C.A. 561-570 (1993
Supp.). 5. 5 U.S.C. App. (1988). 6. For a recent notice, see Environmental Protection Agency, Notice of Wood Furniture Manufacturing Negotiated Rulemaking
Committee, 58 FR 34011 (June 23, 1993). 7. It is difficult to obtain reliable data about the costs of regulatory proceedings. However, some information is available
that may give an indication of potential savings from using regulatory negotiations. Speaking in 1984, former EPA Administrator William Ruckelshaus estimated that
more than 80 percent of EPA's major rules were challenged in court and that approximately 30 percent of the rules were changed significantly as a consequence.
Ruckelshaus, W., "Environmental Negotiation: A New Way of Winning," address to the Conservation Foundation's Second National Conference on Environmental
Dispute Resolution 3, October 1, 1984, cited in Susskind and McMahon, "The Theory and Practice of Negotiated Rulemaking," vol. 3, Yale Journal on Regulation
(1985), p. 133. Ruckelshaus also estimated that the annual effort to handle this litigation took 50 person-years from EPA's Office of General Counsel, 75 person-years
from EPA program offices, 25 person-years from the Department of Justice, and 175 person-years on the part of plaintiffs' counsel. Administrator Lee Thomas, in a
1987 address to a colloquium of the Administrative Conference of the United States, pegged the level of litigation at more than 75 percent. Thomas, Lee, "The
Successful Use of Regulatory Negotiations by EPA," vol. 13, Admin Law News (Fall, 1987), p. 1. By contrast, of the first 10 negotiated rulemaking proceedings
brought to completion by EPA, only two were challenged in court, and both rules were essentially upheld. See Safe Buildings Alliance v. EPA, 846 F.2d 79 (D.C. Cir.
1988); and Natural Resources Defense Council v. EPA, 907 F.2d 1146 (D.C. Cir. 1990). Reduction of litigation rates from 75 percent to 20 percent obviously would
produce great savings if this level of improvement were maintained. 8. Kerwin, Cornelius M. and Scott R. Furlong, "Time and Rulemaking: An Empirical Test of
Theory," Journal of Public Administration Research and Theory, vol. 2 (1992), p. 124. In a study of 150 rules completed between October 1, 1986, and September 30,
1989, the rulemaking process (from development of the proposal to issuance of the final rule) took an average of 26 months for the four negotiated rulemakings in the
sample and 37 months for all rules in the sample. The article does not contain sufficient information to determine whether regulatory negotiations would be quicker for
rules with similar resources, complexity and prioritization. Based on a sample of seven reg negs, EPA estimates a saving of 6 to 18 months as compared to the normal
rulemaking process. Telephone interview with Chris Kirtz, Director, Consensus and Dispute Resolution Program, EPA, August 13, 1993. 9. McClintock, Mike,
"Regulating Wood-Stove Emissions," Washington Post (September 25, 1986), Home Section, p.5. 10. In this and all other recommendations in this report, "regulatory
agencies" are those agencies that are named to the Regulatory Coordinating Group (see REG01) and subagencies (or subdepartments) that are designated by
department or agency heads as engaging in significant regulatory activities. Generally, this should include those subagencies that are listed in the most recent Unified
Agenda of Federal Regulations as having over 40 regulatory issuances. The Negotiated Rulemaking Act of 1990, Pub. L. No. 101- 648 was enacted on November 29,
1990. 11. Three statutes have mandated that the Department of Education use reg neg for specific rulemakings and another statute required the Nuclear Regulatory
Commission (NRC) to do so. All were subject to relatively short statutory deadlines and these deadlines constrained the negotiation process. In addition, the NRC was
required to convene a regulatory negotiation on issues that most observers felt were non-negotiable.
Excessive litigations leads to court clog and hurts the economydecreases competitiveness
Post 11
(Ashley Post joined InsideCounsel as managing editor in 2010. In her position, she manages the magazines editorial content, tracks
litigation trends, interacts with top lawyers and consultants in the legal community, and aims to boost InsideCounsels new media
presence. She is a 2007 cum laude graduate of the University of Missouri-Columbia, where she majored in Magazine Journalism and
minored in French and Economics. Frivolous lawsuits clogging U.S. courts, stalling economic growth. Published June 22nd, 2011 @
http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco?page=5) Deng
Americans litigiousness and thirst for massive damages has been a boon to the legal profession. But some researchers and litigation
experts warn that the abundance of lawsuitsmany of them frivolousflooding U.S. courts is
severely weakening the economy. According to consulting firm Towers Watson, the direct cost of the U.S.
tort system in 2009 was approximately $250 billion, which was roughly 2 percent of the gross domestic product. The
amount is double the estimated tort expenses in other countries, including the U.K. and Japan. In May, the House Judiciary
Committee held a hearing that explored excessive litigations effect on the United States
global competitiveness. During his testimony, Skadden Partner John Beisner explained that plaintiffs counsel engage in five types of
litigation abuse that ultimately undermine economic growth: improperly recruiting plaintiffs, importing foreign claims, filing suits that piggyback
off government investigations and actions, pursuing aggregate litigation and seeking third-party litigation financing. Americas litigious nature
has caused serious damage to our countrys productivity and innovation. The
entrepreneurial system that weve developed for litigation in this country has
always been an impetus to bringing cases that are close to the line or even over the line, says
Dechert Partner Sean Wajert. When you have that kind of encouragement, you have a slippery slope, which sometimes people will slide down
and get into questionable and even abusive and frivolous claims along the way. The
the lessons to be drawn from that period include the harmful effects on fledgling democracies and multiethnic societies (think Central Europe in 1920s and
1930s) and on the sustainability of multilateral institutions (think League of Nations in the same period). There is no reason to think that this would not be true in the
twenty-first as much as in the twentieth century. For that reason, the ways in which the
more apt in a constantly volatile economic environment as they would be if change would be steadier. In surveying those risks, the report stressed
the likelihood that terrorism and nonproliferation will remain priorities even as resource issues move up on the international agenda. Terrorisms appeal will decline if
economic growth continues in the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the diffusion of
technologies and scientific knowledge will place some of the worlds most dangerous capabilities within their reach. Terrorist groups in 2025 will likely be
a combination of descendants of long established groupsinheriting organizational structures, command and control processes, and training procedures necessary to
conduct sophisticated attacksand newly emergent collections of the angry and disenfranchised that become self-radicalized, particularly in the absence of
economic outlets that would become narrower in an economic downturn. The most dangerous casualty of any economically-induced drawdown of U.S. military
War would emerge naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella could lead
to an unintended escalation and broader conflict if clear red lines between those states involved are not well established. The close proximity of potential nuclear rivals
combined with underdeveloped surveillance capabilities and mobile dual-capable Iranian missile systems also will produce inherent difficulties in achieving reliable
indications and warning of an impending nuclear attack. The lack of strategic depth in neighboring states like Israel, short warning and missile flight times, and
uncertainty of Iranian intentions may place more focus on preemption rather than defense, potentially leading to
escalating crises. Types of conflict that the world continues to experience, such as over resources, could reemerge, particularly if protectionism
grows and there is a resort to neo-mercantilist practices. Perceptions of renewed energy scarcity will drive countries to take actions to assure their future access to
energy supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy resources, for example, to be essential
for maintaining domestic stability and the survival of their regime. Even actions short of war, however, will have important geopolitical implications. Maritime
security concerns are providing a rationale for naval buildups and modernization efforts, such as Chinas and Indias development of blue water naval capabilities. If
the fiscal stimulus focus for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval capabilities could
lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for multinational cooperation in protecting critical sea lanes.
With water also becoming scarcer in Asia and the Middle East, cooperation to manage changing water resources is likely to be increasingly difficult both within and
between states in a more dog-eat-dog world.
balances costs and benefits, avoids redundant and duplicative rules , and eliminates
needless regulations. We also need legal reform to bring down litigation costs and reduce
precautionary expenses related to tort risk . If we continue to drive up the costs of
manufacturing on U.S. soil through overregulation and the constant threat of lawsuits,
more companies will take a hard look at offshore options.
And, the litigation means the industries affected negatively by the plan will spend mass
amounts to delay it in court that fear of litigation causes agencies to overload the plan
with layers of review and analysis guts the effectiveness of the plan
Werhan 96
(Vice Dean and Professor of Law, Tulane Law School. B.B.A. 1972, Notre Dame; J.D. 1975, George
Washington University, Delegalizing Administrative Law,
1996 U. Ill. L. Rev. 423, pg lexis//um-ef)
the NPR sought to turn agencies away from traditional command-and-control rules, it
also took aim at what it called the "traditional model for rulemaking." n80 The review equated the
traditional model with the procedure for informal, notice-and-comment rulemaking
delineated in the Federal Administrative Procedure Act. n81 As described by the NPR, the traditional
2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as
model relies on "agency experts" to decide "the best way to regulate," then to provide "the
public an opportunity to comment on the agency's proposed rule or to object to its adoption," and finally to issue
"binding rules telling regulated entities what to do." n82 The central failing of traditional
notice-and-comment rulemaking, in the NPR's view, is that it is excessively "adversarial ." n83 The
adversarial nature of traditional rulemaking, according to the NPR, has created considerable dysfunction. First, the traditional model frustrates helpful public
participation in the rulemaking process. n84 The opportunity to comment on a proposed rule does not foster "a real dialogue between the public and the agency or
among different segments of the public." n85 Moreover, after the time and effort expended to formulate and publish a proposed rule, the agency may not welcome
comments calling for a significant change. n86 Thus, the public's written comments are too little and too late. As a response to this failing, the NPR encouraged earlier
and more "interactive" public participation in the rulemaking process. n87 Interestingly, the review explicitly linked this recommended process change to its
preference for market strategies over traditional, command-and-control regulation. The NPR believed that notice-and-comment rulemaking reinforces the traditional
primacy of "agency experts" who decide "the best way to regulate" and issue "binding rules telling regulated entities what to do." n88 By breaking the notice-and[*435] comment routine, the NPR hoped that agencies would be more open to the development of "innovative regulation," n89 by which it meant incentive-based
to resolve problems ." n91 According to this critique, the "traditional process encourages adversarial,
uncooperative behavior on the part of private industry or others who might be affected by
an agency's decisions, which frequently leads to protracted litigation ." n92 Thus, the NPR depicted a model at
war with itself. The agency assumes the position of rulemaker, but in doing so, it perpetuates
effectiveness of agency rules . n93 The threat of litigation not only undermines government regulation, but also,
according to the NPR, it
drives agencies to
n95 agencies spend more time than is "really beneficial" to prepare "extensive records" and to develop "detailed rationales for rules and responses
The result, once again, has been agency dysfunction . As the NPR concluded,
"the straightforward APA notice-and-comment rulemaking process has now become so formalized that its name - informal rulemaking - seems a misnomer." n97
litigation creates huge costs that unnecessarily burden and diminish the American
economy, job creation and our global competitiveness. The unemployment rate today remains
around 9 percent. And economic growth actually contracted in the last quarter. I believe that this hearing
will reveal that part of the reason for America's high unemployment and sluggish economy is
the excessive cost our litigation system imposes on U.S. job creators.
Americans face the highest lawsuit costs of any developed country. Our tort lawsuit costs are at least
double those of Germany, Japan, and Switzerland, and triple those of France and the United Kingdom.
According to a recent study by economists at the Pacific Research Institute, America's tort system
imposes a total cost on the U.S. economy of about $865 billion per year, which is equal for the total
annual output of all six New England States or the yearly sales of the entire U.S. restaurant industry. This
amounts to an annual tort tax of $9,827 on a family of four, and is equivalent to an 8 percent tax on
consumption or a 13 percent tax on wages.
Excessive tort costs hurt U.S. global competitiveness in at least three ways. First, excessive
lawsuit costs leave less money for American companies to invest. Money that America
spends on its litigation system is money that cannot be spent on research, innovation,
expansion and job creation. Second, our lawsuit system puts U.S. companies at a
disadvantage when they are doing business abroad . American companies are increasingly being
sued in U.S. courts for wrongs allegedly committed abroad. Many of these suits have been marred by
disturbing evidence of fraud, misrepresentation, and corruption by American and foreign trial lawyers.
Third, our lawsuit system discourages foreign investment in the U.S. economy. A 2008 study by the
Department of Commerce concluded that the U.S. Litigation environment harmed our competitiveness by
discouraging foreign investment. This study found that for international businesses, `` The United
States is increasingly seen as a Nation where lawsuits are too commonplace.'' This
discourages foreign-owned companies from expanding business and in creating jobs in the
United States. Despite the high costs of our tort system, it does not always appear that the system is
promoting consumer safety or delivering fair and appropriate outcomes. In terms of safety, there is little
evidence that additional tort lawsuits make Americans safer. According to World Health Organization
statistics, Americans die from unintentional injuries at a higher rate than our peers in other developed
countries. And in terms of fair outcomes, the U.S. Tort system returns less than $0.50 of every tort cost
dollar to injured claimants, those it was designed to help. In other words, the United States is shouldering
the burden of excessive litigation costs without receiving any perceivable benefit from those costs. Now, I
look forward to the witnesses' testimony. I believe that this hearing will help shine more light on how our
tort system burdens the U.S. economy, reduces job creation, inhibits capital investment,
and stifles innovation. I hope that with this knowledge, we can moved forward in this Congress with
civil justice reforms that enable American companies to better compete in the global marketplace and
raise our productivity and the standard of living for all Americans.
companies to compete globally by imposing additional costs . But higher direct costs of doing
business are just the tip of the iceberg. Litigation also imposes indirect costs. Uncertainty created
by litigation may affect companies' borrowing costs and, hence, their ability to invest,
grow, and create jobs . Many foreign companies are wary of becoming embroiled in U.S.
litigation, which may deter foreign direct investment, and multinational companies may
choose to limit the extent of their operations in the United States. Dealing with litigation can
occupy management time, result in unproductive risk avoidance, and otherwise distort business decision
making. These indirect costs imposed by the tort system reduce productivity.
if a proposed rule is
significantly changed after the agency receives public comment, the agency must delay
adopting the rule and allow for another round of public comment to address issues that are
outside the scope of the original notice. (221) Additionally, once the agency staff drafts a proposed
rule and sends it out for public comment, the draft rule takes on a certain rigidity that
makes it more difficult to change. (222) A negotiation avoids these problems. Participants have the
opportunity to influence a draft rule at an earlier time and to shape its formation. They view this opportunity as a very important benefit. (223)
Nonetheless, other factors can interfere with the pursuit of creative solutions in a regulatory negotiation. For example, if the agency is under a
statutory deadline to act, it may opt for a rule taking the easier or more familiar path. Embarking on a time-consuming effort to create alternative
solutions would put the agency in legal jeopardy if the negotiations fail and the legal deadline to act passes. Similarly, if a statute compels the
agency to adopt a plan or rules securing specific emission reductions, and a technology-forcing rule is the agency's only option, little room to
negotiate is likely to exist. (224) These constraints are quite serious under the Clean Air Act, which obligates states to carry out their
implementation plans. The failure to do so can result in a judicial order compelling implementation. (225) In contrast, successful
negotiation is an attempt to create the proverbial "win-win" situation in which all parties
benefit from the agreement. (226) It also works to foster a framework in which parties seek
new solutions that would not otherwise exist. (227) In the context of a rulemaking, this expansion of possible solutions
may lead to a broader consensus that includes, but is not limited to, agreement on what the rule should contain. (228) Moreover, where an
entire industry faces a proposed rule that seems only to impose additional costs, the
chances that the industry will voluntarily agree to the rule are small unless it will receive other
benefits not related to the rule. Indeed, without the possibility of those additional benefits, an industry
might decide that other options are preferable, such as an all-out political offensive
opposing the rule or, if that effort is unsuccessful, the initiation of litigation.
Negotiated rulemaking creates solutions for controversial issues like GHG regulation
solves litigation
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
C. Agreements Agreement
set into motion a new national policy aimed at both increasing fuel economy and reducing
greenhouse gas pollution for all new cars and trucks sold in the United States.166 The policy is the result of
collaboration between the EPA, Department of Transportation (DOT), State of California,
major automobile manufacturers, United Auto Workers Union, and leading environmental
groups. According to EPA Administrator Lisa P. Jackson, as reported in the White House press release on the collaboration: The
President brought all stakeholders to the table and came up with a plan to help the auto industry, safeguard
consumers, and protect human health and the environment for all Americans . . . A supposedly unsolvable problem was
solved by unprecedented partnerships. This collaborative effort came about in the context
of one of the most highly contested areas of climate change law and policygreenhouse gas
regulation of motor vehicles. The automobile industry, California, and other states have
been in litigation for years over state greenhouse gas emissions standards for motor
vehicles .167 Compounding the complexity of the issues was EPAs decision in 2008 to deny California a waiver from preemption under the
Clean Air Acts motor vehicle provisions168 and DOTs delayed promulgation of fuel economy standards under the Energy Policy and
Conservation Act.169
announcement on May 19, 2009, key parties signed letters of commitment in which they
agreed to end litigation regarding these issues and also committed to specific terms for the
vehicle model years 2009-2016 .170 Unlike the public process that took place in the context of the Greenhouse Gas Reporting
Rule and Underground Injection Rule, the collaboration on control of greenhouse gases from motor vehicles was done without transparency.
While no formal explanation was provided by the parties about the rationale for conducting the process in a closed fashion, the complexity of the
issues and longstanding nature of the conflict between the parties may have made it difficult to successfully collaborate and reach an agreement
using an open process. This suggests that while transparency may be a positive element of successful collaboration in many contexts, there may
be occasions, particularly in agreement-seeking settings where the dispute between the parties is already joined, when the primary stakeholders
may see transparency as a deterrent to a successful resolution. A broad lesson learned from this example is that there is no one right set of tools
for each collaborative process along the spectrum. Rather,
Resolution, in its report, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes,11
divides the universe of collaborative processes into three broad categories: (1) those with the
purpose of exchanging information and improving communication and understanding; (2)
those where advice is provided to the government in the form of opinions or suggestions for
action; and (3) those where agreement is sought and decisions are made with the
government. In the third category alone, the report identifies twenty-four different terms, including
collaborative decision making, to describe collaborative processes.12 Many other terms exist for the remaining two categories
and, in many instances, different meanings are ascribed to the same term.13 Collaborative
decision-making is sometimes
referred to as stakeholder involvement, public involvement, public participation, publicprivate partnership, deliberative democracy, constructive engagement, and collaborative
problem solving. The varied use of these terms demands clear definition when designing and describing processes.14 For purposes of
this article, collaborative decision making will be considered broadly and is characterized by a range of processes, some
agreement-seeking and some not, in which the government involves outside stakeholders in the
governments decision making. In some cases, where the government has no greater authority than other stakeholders,
collaborative decision making can involve an equal partnership among the stakeholders,
including the government; or the government can serve in a supporting role to facilitate
efforts of outside stakeholders in their own decision making processes. 2. General Attributes of
Collaborative Decision Making Collaborative decision making holds great promise for addressing
difficult public policy issues. There are a number of general attributes that are worth considering at the outset before discussing
why decisions on climate change are uniquely qualified to benefit from collaborative
approaches. Collaborative decision making can provide a forum for broad participation
by multiple stakeholders , facilitate cooperative learning among the participants, and
result in selection of the best policy choices.15 It ensures an opening for group creativity
and innovation
that is often lacking in traditional regulatory processes. Collaborative decision making can be particularly powerful in
the context of complex public policy issues, such as climate change, because
collaborative decisions may actually thrive when the governments authorities are clear
and purposeful. 21 Likewise, stakeholders retain their right to any alternatives to the collaborative process that are otherwise available to
them.22 Collaborative decision-making is not a panacea alternative to traditional environmental regulation and will not always be the appropriate
means of making environmental decisions. 23 It does not guarantee that cooperation among stakeholders will come easily nor does its adoption
mean that resolution of complex issues will be achieved. However, it
proliferation, regional conflicts, and other ongoing threats to the international order will be affected by the presence or absence of strong US leadership but are also driven by their own dynamics.
The US impact is much more clear-cut in the negative case in which the US fails to rebound
and is in sharp economic decline. In that scenario, a large and dangerous global power vacuum
would be created and in a relatively short space of time. With a weak US, the potential
would increase for the European economy to unravel. The European Union might remain, but as an empty shell around a fragmented
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
community would reduce its aid efforts, leaving impoverished or crisis-stricken countries to fend for themselves, multiplying the
chances of grievance and peripheral conflicts. In this scenario, the US would be more likely to lose
influence to regional hegemonsChina and India in Asia and Russia in Eurasia. The
Middle East would be riven by numerous rivalries which could erupt into open conflict,
potentially sparking oil-price shocks. This would be a world reminiscent of the 1930s when
Britain was losing its grip on its global leadership role.
in the global economy are associated with the rise and fall of a pre-eminent power and the often bloody
transition from one pre-eminent leader to the next. As such, exogenous shocks such as economic crises could usher
in a redistribution of relative power (see also Gilpin. 1981) that leads to uncertainty about power balances, increasing the
risk of miscalculation (Feaver, 1995). Alternatively, even a relatively certain redistribution of power could lead
to a permissive environment for conflict as a rising power may seek to challenge a declining power (Werner. 1999). Separately,
Pollins (1996) also shows that global economic cycles combined with parallel leadership cycles impact the likelihood of conflict among major,
medium and small powers, although he suggests that the causes and connections between global economic conditions and security conditions
remain unknown. Second, on a dyadic level, Copeland's (1996, 2000) theory of trade expectations suggests that ' future expectation of
trade' is a significant variable in understanding economic conditions and security behaviour of states. He
argues that interdependent states are likely to gain pacific benefits from trade so long as they have an optimistic view of future trade relations.
However, if the expectations of future trade decline, particularly for difficult to replace items such as energy resources, the
likelihood for conflict increases, as states will be inclined to use force to gain access to those resources.
Crises could potentially be the trigger for decreased trade expectations either on its own or because it triggers protectionist
moves by interdependent states.4 Third, others have considered the link between economic decline and external
armed conflict at a national level. Blomberg and Hess (2002) find a strong correlation between internal
conflict and external conflict, particularly during periods of economic downturn. They write: The linkages between
internal and external conflict and prosperity are strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn
returns the favour. Moreover, the presence of a recession tends to amplify the extent to which international and
external conflicts self-reinforce each other . (Blomberg & Hess, 2002. p. 89) Economic decline has also been linked
with an increase in the likelihood of terrorism (Blomberg, Hess, & Weerapana, 2004), which has the capacity to spill across
borders and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government. "Diversionary theory"
suggests that, when facing unpopularity arising from economic decline, sitting governments have increased
incentives to fabricate external military conflicts to create a 'rally around the flag' effect. Wang
(1996), DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find supporting evidence showing that economic decline and use of force are
at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the tendency towards
diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are
generally more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that
periods of weak economic performance in the U nited S tates, and thus weak Presidential popularity, are statistically
linked to an increase in the use of force. In summary, recent economic scholarship positively correlates economic
integration with an increase in the frequency of economic crises, whereas political science scholarship links economic
decline with external conflict at systemic, dyadic and national levels.5 This implied connection between integration,
crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.
an open and traditional conflict between states, perhaps even involving the use of nuclear weapons . The
crisis might
be triggered by a collapse of the global economic and financial system, the vulnerability of
which we have just experienced, and the prospect of a second Great Depression, with consequences for peace and democracy similar to those
of the first. Whatever the trigger, the
and fiscal
rapidly. continuation
The
system, leading
in turn
to
increased
even
mere fluctuation in the business cycle. Recovery is likely to be protracted. The crisis was preceded by the buildup over two decades of enormous amounts of debt throughout the U.S. economy ultimately totaling almost 350 percent of GDP and the development of credit-fueled asset
bubbles, particularly in the housing sector. When the bubbles burst, huge amounts of wealth were destroyed, and unemployment rose to over 10 percent. The decline of tax revenues and massive countercyclical spending put the U.S. government on an unsustainable fiscal path. Publicly held
national debt rose from 38 to over 60 percent of GDP in three years.
interest rates
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If
were to rise significantly, annual interest payments which already are larger than the defense budget
or require substantial tax increases that would undercut economic
growth. Even worse, if unanticipated events trigger what economists call a sudden stop in credit markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would almost certainly compel a radical retrenchment
. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a presence east of Suez. Soviet economic weakness, which crystallized under
Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
reducing its military spending and
. Even though countries such as China, India, and Brazil have profound
political, social, demographic, and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could in the long term produce a multi-polar world.
act
competition among major powers,
and other powers continue to grow, it is not a question of whether but when a new international order will emerge.
risk of escalation.
U.S. leadership
the higher
the longest period of peace among the great powers has been the era of
increase incentives for local powers to play major powers against one another,
. By contrast,
Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario,
Either way,
wars , break out.13 Gilpins argument logically encourages pessimism about the
implications of a rising China. It leads to the expectation that international trade, investment, and technology transfer will result in a
steady diffusion
of American economic power, benefiting the rapidly developing states of the world,
including China. As the US simultaneously scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic
problem of overextension), it will be unable to devote sufficient resources to maintain or restore its former
advantage over emerging competitors like China. While the erosion of the once clear American advantage
plays itself out, the US will find it ever more difficult to preserve the order in Asia that it
created during its era of preponderance. The expectation is an increase in the likelihood for
the use of force either by a Chinese challenger able to field a stronger military in support of its demands for greater
influence over international arrangements in Asia, or by a besieged American hegemon desperate to head off
further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpins theory are
Chinas expanding share of world trade and wealth(much of it resulting from the gains made possible by the
international economic order a dominant US established); its acquisition of technology in key sectors that have both
civilian and military applications (e.g., information, communications, and electronics linked with to forestall, and the challenger becomes
increasingly determined to realize the transition to a new international order whose contours it will define. the revolution in military affairs);
and an expanding military burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that
limits the resources it can devote to preserving its interests in East Asia.14 Although similar to Gilpins work insofar as it emphasizes the
importance of shifts in the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler
present in The War Ledger focuses more closely on the allegedly dangerous phenomenon of crossover the point at which a dissatisfied
challenger is about to overtake the established leading state.15 In such cases, when
dominant state becomes increasingly desperate . Though suggesting why a rising China may ultimately present
grave dangers for international peace when its capabilities make it a peer competitor of America, Organski and Kuglers powertransition theory is less clear about the dangers while a potential challenger still lags far behind and faces a difficult struggle to catch
up. This clarification is important in thinking about the theorys relevance to interpreting Chinas rise because a broad consensus prevails among
analysts that Chinese military capabilities are at a minimum two decades from putting it in a league with the US in Asia.16 Their theory,
then, points
with alarm to trends in Chinas growing wealth and power relative to the
United States, but especially looks ahead to what it sees as the period of maximum danger that
time when a dissatisfied China could be in a position to overtake the US on dimensions
believed crucial for assessing power. Reports beginning in the mid-1990s that offered
extrapolations suggesting Chinas growth would give it the worlds largest gross domestic product
(GDP aggregate, not per capita) sometime in the first few decades of the twentieth century fed these sorts of
concerns about a potentially dangerous challenge to American leadership in Asia.17 The huge gap between Chinese and American military
capabilities (especially in terms of technological sophistication) has so far discouraged prediction of comparably disquieting trends on this
dimension, but inklings of similar concerns may be reflected in occasionally alarmist reports about purchases of advanced Russian air and naval
equipment, as well as concern that Chinese espionage may have undermined the American advantage in nuclear and missile technology, and
speculation about the potential military purposes of Chinas manned space program.18 Moreover, because
Politics
!!!2NC!!!
The plan will be sold as a single environmental solution it will splinter groups necessary
to forge coalitions and sell the plan - Isolating economic arguments in support of the plan
key to build broad coalitions and political support means the plan wont HAVE to be
pushed in congress the rulemaking process avoids the link
Schellenberg and Nordhaus 5
(Michael Shellenberger is a strategist for foundations, organizations and political candidates. He is Executive Director of
the Breakthrough Institute, and Ted Nordhaus, Vice President of Evans/McDonough, one of the countrys leading opinion
research fi rms with offi ces in Washington, D.C., Oakland and Seattle. Ted specializes in crafting strategic initiatives
aimed at reframing old debates in ways that build power for his clients, The Death of Environmentalism, pg online @
http://www.thebreakthrough.org/images/Death_of_Environmentalism.pdf //um-ef)
Global warming is an apt example of why environmentalists must break out of their ghetto, said
Lance Lindblom, President and CEO of the Nathan Cummings Foundation. Our opponents use our inability to form effective
alliances to drive a wedge through our potential coalition . Some of this is a cultural problem. Environmentalists think,
Youre talking to me about your job Im talking about saving the world ! Developing new energy industries will clearly
help working families and increase national security, but theres still no intuition that all of
these are consistent concerns. The tendency to put the environment into an airtight
container away from the concerns of others is at the heart of the environmental
more than $15 a month per household. In the online magazine Grist , Thad Miller approvingly cites a study done by MITs Joint Program on the Science and Policy
of Global Change that predicts household energy expenditures under the bill would increase by a modest $89. More good news from the environmental community:
not only wont we kill as many jobs as you think, we only want to raise your energy bill a little bit! For nearly every environmental leader we spoke to,
creation benefits
the job
happening slowly. The pressure becomes overwhelming as Canada and Japan begin to move on us. When asked what excites him the most about the movement
against global warming, Hal Harvey, too, pointed to economic development. Lets go for the massive expansion of wind in the Midwest make it part of the farm
and isolation among would-be supporters. Once environmentalists can offer a compelling vision for the future we will be in a much
better position to stop being Pollyanna about the state of their politics. And once we have an inspiring vision we will have
the confi dence we need to take a cold, hard look at the facts, in the words of Good to Great author Jim Collins.
Martin Luther King, Jr.s I have a dream speech is famous because it put forward an inspiring, positive vision that carried a critique of the current moment within it.
worlds most effective leaders are not issue-identified but rather vision and valueidentified . These leaders distinguish themselves by inspiring hope against fear, love against
injustice, and power against powerlessness. A positive, transformative vision doesnt just
inspire, it also creates the cognitive space for assumptions to be challenged and new ideas to
surface. And it helps everyone to get out of their issue boxes.
Forging coalitions between environmentalists and industry key to popularity
Schellenberg and Nordhaus 5
(Michael Shellenberger is a strategist for foundations, organizations and political candidates. He is Executive Director of
the Breakthrough Institute, and Ted Nordhaus, Vice President of Evans/McDonough, one of the countrys leading opinion
research fi rms with offi ces in Washington, D.C., Oakland and Seattle. Ted specializes in crafting strategic initiatives
aimed at reframing old debates in ways that build power for his clients, The Death of Environmentalism, pg online @
http://www.thebreakthrough.org/images/Death_of_Environmentalism.pdf //um-ef)
The marriage between vision, values, and policy has proved elusive for environmentalists.
Most environmental leaders, even the most vision-oriented, are struggling to articulate proposals that have
coherence. This is a crisis because environmentalism will never be able to muster the
strength it needs to deal with the global warming problem as long as it is seen as a special interest .
And it will continue to be seen as a special interest as long as it narrowly identifi es the
problem as environmental and the solutions as technical. In early 2003 we joined with the Carol/Trevelyan Strategy
Group, the Center on Wisconsin Strategy, the Common Assets Defense Fund, and the Institute for Americas Future to create a proposal for a New Apollo Project
ideas into contested political spaces, define the debate, attract allies, and legislate . And it
uses big solutions to frame the problem not the other way around. Until now the Apollo Alliance has
focused not on crafting legislative solutions but rather on building a coalition of environmental, labor, business, and
community allies who share a common vision for the future and a common set of values. The Apollo vision was endorsed by 17 of the countrys leading
labor unions and environmental groups ranging from NRDC to Rainforest Action Network. Whether or not you believe that the New Apollo Project is on the mark, it
the four wheels on the car needed to make an ecological U-turn. Van has extended the metaphor elegantly: We need all four wheels to be turning at the same time
and at the same speed. Otherwise the car wont go anywhere. Our point is not that Apollo is the answer to the environmental movements losing streak on global
environmental protections we need but also whether they will defi ne the debate, divide
our opponents and build our political power over time . It is our contention that the
strength of any given political proposal turns more on its vision for the future and the
values it carries within it than on its technical policy specifi cations. Whats so powerful about Apollo is not its
10-point plan or its detailed set of policies but rather its inclusive and hopeful vision for Americas future. There was a brief period of time when my colleagues
thought I was crazy to grab onto Apollo, said Sierra Club Executive Director Carl Pope, a co-chair of the Apollo Alliance. They kept looking at Apollo as a policy
Negotiated rulemaking (sometimes referred to as regulatory negotiation or reg-neg) is a supplement to the traditional APA
rulemaking process in which agency representatives and representatives of affected parties work together to develop what can ultimately become
the text of a proposed rule.1 In this approach, negotiators
action.23 The Occupational Safety and Health Administration used it to address the erection of steel structures, an issue that had been on its
docket for more than a decade with two abortive attempts at rulemaking when OSHA turned to reg neg.24 Th e
Benefits that accrue to negotiated rulemaking participants correspond to the criticisms of traditional rulemaking. n132 In
particular, proponents of negotiated rulemaking claim that it increases public participation, n133 fosters nonadversarial
relationships , n134 and reduces long-term regulatory costs. n135 Traditionally, agencies have
limited the avenues for public participation in the rulemaking process to reaction and criticism ,
releasing rules for the public's comment after they have been developed [*229] internally. n136 In contrast, negotiated rulemaking elicits
wider involvement at the early stages of production. n137 Input from non-agency and nongovernmental actors, who may possess the most relevant knowledge and who will be most
affected by the rule, is a prerequisite to effective regulation . n138 Increased participation also
leads to what Professor Harter considers the overarching benefit of negotiations: greater legitimacy . n139 Whereas traditional
rulemaking lends itself to adversarialism, n140 negotiated rulemaking is designed to foster
cooperation and accommodation . n141 Rather than clinging to extreme positions, parties prioritize the underlying
issues and seek trade-offs to maximize their overall interests. n142 Participants, including the
agency, discover and address one another's concerns directly. n143 The give-and-take of this process provides an opportunity
for parties with differing viewpoints to test data and arguments directly. n144 The resultant exploration of different approaches is
more likely than the usual notice and comment process to generate creative solutions and
avoid ossification . n145 [*230] Whether or not it results in a rule, negotiated rulemaking establishes valuable links
between groups that otherwise would only communicate in an adversarial context. n146 Rather than
trying to outsmart one another, former competitors become part of a team which must consider the needs of each member. n147 Working relationships developed during negotiations give
participants an understanding of the other side. n148 As one negotiator reflected, in "working with the opposition you find they're not quite the ogres you thought they were, and they don't hate
The chance to iron out what are often long-standing disagreements can
only improve future interactions. n150
you as much as you thought." n149
CP Makes it Popular
CP makes it popular (lol not sure about this card)
Gonski 13
(Sarah Gonski, B. A. from the University of Maryland College Park, J.D. Candidate at Harvard Law School, EASING GRIDLOCK IN
THE UNITED STATES CONGRESS THROUGH MEDIATION: LETTING OUR CITIES AND STATES TEACH US LESSONS ON
GETTING ALONG. 2013.
http://www.americanbar.org/content/dam/aba/events/dispute_resolution/lawschool/boskey_essay_contest/2013/easing_gridlock_in_the_u
nited_states_congress_through_mediation_letting_our_cities_and_states_teach_us_lessons_on_getting_along.authcheckdam.pdf//ghs-kw)
What if, instead of communicating mostly through the media and warring factions of interest groups with bumper-sticker slogans,
federal lawmakers gathered with a trained third-party neutral and discussed the benefits of
a real policy solution to some of the nations most intractable issues? What if party leadership and
relevant committees had a mediator to engage them in open, honest discussion about the substantive issues at hand without
the distraction of cameras and angry constituents screaming for a hard line? Americans desperately need our
Congress to function, and providing them with qualified third-party neutrals to serve as mediators
might be a way to loosen the death grip of partisanship and inaction. The presence of a thirdparty neutral could be particularly useful for lawmakers as a means of breaking the
adversarial pattern they are locked into.5 Mediators are neutral third parties that specialize in helping
parties better communicate and fostering a creative, solutions-generating environment in
which parties are encouraged to discuss, negotiate and find common ground on policy
issues. The mediator is not generally empowered to direct a resolution nor dictate the terms of the discussion, but instead
works with the parties to craft creative solutions that align with their respective interests .6
Legislative mediators would be politically neutral, objective third parties who would meet with members of
Congress and help them draft bipartisan bills, which the lawmakers would then present to the legislative body as a
whole for a floor debate and ultimately, a vote. In this way the integrity of the democratic process is intact and the lawmakers have an available
advocate for compromise and solutions-generating discussions. The
They may also be cheaper in the long run as expensive litigation over the
Legitimacy Benefit, 31 E.L.R. 10811 (2001)) The confidentiality of the mediation proceedings would also be a useful tool, as it is increasingly
difficult for opposition leaders to engage in open, honest, civil communication in the fishbowl of Washington, where each interaction inevitably
becomes public and grandstanding is common. 11 Legislators
Rulemaking K
1NC
Negotiated Rulemaking reverses the technocratic authority of administrative power
Werhan 96
(Vice Dean and Professor of Law, Tulane Law School. B.B.A. 1972, Notre Dame; J.D. 1975, George
Washington University, Delegalizing Administrative Law,
1996 U. Ill. L. Rev. 423, pg lexis//um-ef)
the NPR sought to turn agencies away from traditional command-and-control rules, it also took aim
at what it called the "traditional model for rulemaking." n80 The review equated the traditional model with the procedure for informal, noticeand-comment rulemaking delineated in the Federal Administrative Procedure Act. n81 As described by the NPR, the traditional model relies on
"agency experts" to decide "the best way to regulate," then to provide "the public an
opportunity to comment on the agency's proposed rule or to object to its adoption," and finally to issue "binding rules telling regulated entities what to do." n82
The central failing of traditional notice-and-comment rulemaking, in the NPR's view, is that it is excessively
2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as
"adversarial ." n83 The adversarial nature of traditional rulemaking, according to the NPR, has created considerable dysfunction. First, the traditional model frustrates
helpful public participation in the rulemaking process. n84 The opportunity to comment on a proposed rule does not foster "a real
dialogue between the public and the agency or among different segments of the public." n85 Moreover, after the time and effort expended to formulate and publish a proposed rule, the
agency may not welcome comments calling for a significant change. n86 Thus, the public's written comments are too little and too late. As a response to
this failing, the NPR encouraged earlier and more "interactive" public participation in the rulemaking process.
n87 Interestingly, the review explicitly linked this recommended process change to its preference for market strategies over traditional, command-and-control regulation. The NPR believed that
notice-and-comment rulemaking reinforces the traditional primacy of "agency experts" who decide "the best way to regulate" and issue "binding rules telling regulated entities what to do." n88
By breaking the notice-and- [*435] comment routine, the NPR hoped that agencies would be more open to the development of "innovative regulation," n89 by which it meant incentive-based
systems
. n90 A second problem that the NPR associated with
traditional, notice-and-comment rulemaking was its frequent failure to produce "cooperative efforts to resolve problems." n91 According to this critique, the "traditional process encourages
adversarial, uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which frequently leads to protracted litigation." n92 Thus, the NPR
depicted a model at war with itself. The agency assumes the position of rulemaker, but in doing so, it perpetuates a process that undermines the effectiveness of agency rules. n93 The threat of
litigation not only undermines government regulation, but also, according to the NPR, it causes a third problem. Fear of judicial review, the NPR claimed, drives agencies to add "numerous layers
of review and analyses" to the traditional, notice-and-comment process. n94 Because a successful lawsuit can bring a regulatory program into a "state of disarray," n95 agencies spend more time
than is "really beneficial" to prepare "extensive records" and to develop "detailed rationales for rules and responses to comments" to defend their rulemaking in court. n96 The result, once again,
has been agency dysfunction. As the NPR concluded, "the straightforward APA notice-and-comment rulemaking process has now become so formalized that its name - informal rulemaking seems a misnomer." n97 Notwithstanding this relentless criticism of notice-and-comment rulemaking, the NPR did not advocate its abandonment. Rather, the NPR sought to delegalize
rulemaking while working within the notice-and-comment structure. It did so with a number of recommendations. The NPR encouraged the President to "direct heads of regulatory agencies to
The NPR
Rulemaking Act of 1990. n102 The Act authorizes agencies to use a process of negotiation to determine the substance of a proposed rule "if the head of the agency determines that the use of the
negotiated rulemaking procedure is in the public interest." n103 By establishing
policymaking
Negotiated
decentralized, voluntary
The agency and regulated entities stand on equal footing and work
together to develop regulatory policy. As the NPR ex- [*438] plained, negotiated rulemaking "brings
together representatives of the agency and the various affected interests in a cooperative
effort to develop regulations that not only meet statutory requirements, but also are
accepted by the people who ultimately will have to live with regulations." n113
Rules are
They are
negotiated much like contracts, with binding provisions resulting only from the voluntary
acceptance by the regulated entities. By replacing an adversarial model with one grounded on
cooperation, the NPR expects better, more innovative regulation at less cost. n114 "Rules drafted with
.
assistance of persons who must ultimately be governed by them," the NPR concluded, "are more likely to be practical, and therefore more acceptable." n115
Participatory democracy is the only way to solve oppression and ensure value to life
Jerome Scott, Director of Project South: Institute for the Elimination of Poverty & Genocide and Walda
Katz-Fishman, board Chair of Project South and prof @ howard univ..10-26-4 [Popular Democracy
- a vision for our movement http://www.zmag.org/znet/viewArticle/7600]
When people talk about "democracy" we immediately think of "democracy for whom?" It's really important to say whose interests democracy serves - the interests of
democracy. When we look deeper into popular democracy several principles and processes emerge as essential for understanding and organizing in our current
participatory decision-making, struggle and liberation. Equality means the equal sharing and access to all the
resources and goods and services we must have to satisfy our material, intellectual, cultural and spiritual needs. It also means that all people are
valued and treated equally and have equal rights regardless of race/ethnicity, nationality, gender, sexuality, age and
disability, etc. Going from the extreme polarization of today's wealth and poverty to equality among all peoples is an ongoing process as well as an essential
principle of popular democracy. Participatory decision-making involves full bottom-up and active participation in
making decisions that affect the lives of all of us - but especially of working and poor people. The involvement of those most
moment - equality,
adversely affected is key to this process. For this to happen we must all prepare ourselves through practice, education and information gathering and then come
death. It is like being in a burning building and being chained to the walls and floor. Our struggle to beat these odds, to collectively break free and to survive and
thrive is what drives us. Our independent path to fundamental social change is rooted in our vision of another world and a strategic plan to get there. Liberation is what
we are fighting for. It is what we will have when we are truly in control of our own collective destiny as working and poor peoples around the world. We will have full
access to the resources, the goods and services necessary for a quality life - and this is within our reach because today's electronic technology makes it possible to
create a vast abundance of all the goods and services we need. We will also be in control of decision-making as we reorganize society - locally, nationally and globally
our struggle to be free and liberation for humanity. Democracy = electoral politics ...What's wrong with this picture? The big lie? The American revolutionaries in
1776 thought they had arrived at "democracy" because they had defeated the British monarchy. Little did they know that the capitalists - the rich and powerful - had
other plans. Who "took power" - who voted, held political office, and had the major say in all important decisions - was this economic elite, not the people who were
the majority of those who had fought and won. Democracy has often been equated with electoral politics. We believe it is much more and this is why. To begin with, in
the early days of the United States voting was the privilege of the exclusive few - white men who owned property - about 15% of all the American people. Working
people of all racial/ethnic groups, including and especially peoples of color, and women were denied the right to vote and participate in the political process. During
reconstruction - the brief period following the Civil War and before Jim Crow or southern apartheid was the law of the land - black men gained the vote. But with Jim
Crow southern blacks and working class whites were again excluded from voting. American women - primarily white women - won the right to vote with the
ratification of the 19th amendment in 1920. Most African Americans and other oppressed racial and ethnic peoples finally got the vote with passage of the 1965 Voting
Rights Act. Even voting rights - the most minimal of democratic rights - were won for the vast majority only after intense political struggles and popular movements,
e.g., the Civil War, the women's suffrage movement and the modern civil rights movement. Today many immigrants - documented and not - are also in a struggle for
their voting rights. Also in a fight for voting rights are the 1000s of ex-felons who are currently denied the right to vote even after "serving their time." When the US
Supreme Court ruled in Buckley v. Valeo in 1975 that money equals free speech and this is "democracy," they made clear the class/wealth nature of the US political
and electoral system. Our struggle for participatory democracy must be part of a struggle for a political, economic and cultural system that values all people rather
than maximizing profits and transforms power relations fundamentally. From colony to empire - the world's people strike back It took a long time - 500+ years - to
perfect the evil of today's US empire. Rich white men - mostly slave owners - articulated a vision for post-colonial America in the late 1700s of manifest destiny. What
this meant was their pursuit of absolute control and domination of the entire North American continent south of Canada and from ocean to ocean primarily through
military might. They set about the business of accomplishing this task through the genocide of millions of indigenous inhabitants of the continent and the stealth of the
land and resources. They also enslaved millions of Africans and African descent peoples whose labor generated untold value and wealth. The additional exploitation of
all working women, children and men further sealed the deal. With the declaration of the Monroe Doctrine in 1823, the US ruling class laid claim to the entire western
hemisphere as their sphere of influence. This set the basis for the Mexican American War in which the US grabbed all of Mexico north of the Rio Grande in 1848,
fulfilling the vision of the early elite to extend the US territory from "ocean to ocean." In the Spanish American War of 1898 - at the turn of the 20th century - the US
finally gained some "colonial" and "neocolonial" possessions. Cuban resistance to direct occupation was so powerful the US had to make it a neocolony - but with
rights to have a permanent US military presence at Guantanamo Bay. The US also annexed Puerto Rico, Guam and the Philippines; but Philippine resistance was also
strong and the Philippines became another US neocolony. Throughout our history the American peoples have struggled against political and cultural domination and
economic exploitation by a small rich and powerful elite - from indigenous resistance, the abolition and black liberation struggles to labor, women's and immigrant
workers' struggles, and the fight for equal and human rights for all, etc. In the 20th century the American people have fought for and won many reforms and new laws
that we are seeing eroded and eliminated in the 21st century. Labor laws in the 1930s granted workers' rights to some workers - mainly white men. Civil rights laws
recognized the rights of racial/ethnic peoples and women in the 1950s-60s and made it illegal to discriminate. The anti-poverty laws expanded the social safety net for
working and poor people, including people of color and poor women in the 1960s-70s. And environmental laws in the 1970s-80s led to greater environmental
protections. We have voted and elected to office politicians we thought would serve our interests. And some, with great bottom-up popular pressure, supported policies
that improved our condition, at least for the time being. But we have never won a transformation of fundamental power relations and gotten rid of the overwhelming
interests of the rich and powerful in the political, economic and cultural system that shapes our daily lives. The earliest forms of political repression and economic
exploitation - genocide and slavery, forced labor and poverty - continue to be expressed in today's property and wealth privilege, white supremacy, male and
heterosexual dominance, and anti-immigrant prejudices and practices. The welfare state reforms - flawed though they were - of the 20th century have been
transformed into the growing police state and prison industrial complex at home and empire and war around the globe. In the 21st century electronic age of
globalization and neoliberalism we find many of the reforms of the 20th century - laws and policies we fought so hard to win - rolled back or gone altogether.
Throughout US history the rich and powerful have indeed practiced and experienced a "democracy" that serves their needs and interests. But for working and poor
women, men and youth of all racial/ethnic peoples here and around the world, US democracy is a myth that has been used to set in motion wars of conquest and
occupation abroad and perpetuate the big lie that "this is the best of all possible worlds" at home. Working people have never held power and had access to the
resources, goods and services needed for a full and satisfying life. Once every four years we get to vote for one of two pre-selected representatives of the ruling class.
Never have we had the opportunity to vote for a candidate who truly represents working peoples' interests. What would this look like? Today's movement moment winning popular democracy & keeping it Today our movement is challenged to learn for these lessons of our history and struggles and to chart a path to a victory that
we can win and hold onto. We think there are two key lessons for this moment - "how we build our movement" and "why it's possible to build our movement and
win." How we build our movement Too often in the past our movement has not recognized as important or tried to embrace, practice or struggle around the principles
and processes of popular democracy for building our bottom-up movement for justice, equality and liberation. This has resulted in a lack of sufficient internal struggle
around the privileges of wealth, white supremacy, legal status, male dominance, heterosexism, language, ability and age, etc. This has kept us divided and has
weakened our movement. Clearly in this movement moment we must challenge and struggle against all forms of privilege and oppression within our movement, as
well as in the larger society, and move forward together on the basis of equality and collectivity. A related task is to develop a broad and diverse collective leadership
so that our movement is not dependent on a single "leader" or "founder." How we build our movement is the very foundation of the new society we are struggling to
bring into being. So we must walk the talk - or we will not be able win. Why it's possible to build our movement and win The second key lesson is that the electronic
technology now available to humanity can provide for the material and cultural needs of
our communities world over. In the past we struggled to reform an unjust and unequal system, but one that was based on material scarcity. We
did not have within our grasp the real solution to the problem of how to meet the needs of all humanity. To collectively share the resources and things we need and
realize our principle of equality truly requires abundance - so all of us can get what we need. Today's new technology - automation, robotics, computers, digitization,
etc. - makes it possible to have an abundance of all the goods and services we need - food, housing, education, health care, transportation, cultural expressions and
The technology is also available to do this in a safe and sustainable way that
respects the total environment we live in and share with nature. This abundance means an end to scarcity and an
end to the inequality and power domination that comes with it and that we have known too long. For us popular democracy equality, participatory decision-making, struggle and liberation - is an essential set of organizing and educating principles and
processes for growing our movement for justice, equality and liberation and for transforming our society and reconstructing the new
time for family and friends.
Solvency Deficits
Cost
Benefits outweigh the costsconsensus of participants proves
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
17. A Majority
Participation Kerwin and Langbein concluded their interviews by asking participants to consider what their organizations had gained, if
anything, from participation in a reg neg. They also asked participants to address a number of qualitative dimensions of the rule that resulted from
the negotiation. When
Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin
a study of negotiated rulemaking by examining what actually occurs in a reg neg versus the development of rules by
conventional means. To establish the requisite comparison, they collected data on litigation, data from the comments on proposed rules, and data
from systematic, open-ended interviews with participants in 8 negotiated rules . . . and in 6 comparable conventional rules.104 They
interviewed 51 participants of conventional rulemaking and 101 from various negotiated rulemaking committees.105 Kerwin
and
Langbeins important work provides the only rigorous, empirical evaluation that compares
a number of factors of conventional and negotiated rulemaking. Their overall conclusion is: Our research
contains strong but qualified support for the continued use of negotiated rulemaking. The
strong support comes in the form of positive assessments provided by participants in
negotiated rulemaking compared to assessments offered by those involved in conventional
form of regulation development. Further, there is no evidence that negotiated rules
comprise an abrogation of agency authority, and negotiated rules appear no more (or less)
subject to litigation that conventional rules. It is also true that negotiated rulemaking at the EPA is used largely to
develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than those that set
the substantive standards themselves. However, participants assessments
negotiated rules were viewed more favorably in every criteria, and significantly so in
several dimensions that are often contentious in regulatory debates the economic efficiency of the
rule and its cost effectiveness the quality of the scientific evidence and the incorporation of appropriate technology, and personal experience
is not usually considered in dialogues over regulatory procedure, Kerwin and Langbeins findings here too favor negotiated rules. Conclusion.
The benefits envisioned by the proponents of negotiated rulemaking have indeed been
realized. That is demonstrated both by Coglianeses own methodology when properly
understood and by the only careful and comprehensive comparative study . Reg neg has
proven to be an enormously powerful tool in addressing highly complex, politicized rules.
These are the very kind that stall agencies when using traditional or conventional
procedures.107 Properly understood and used appropriately, negotiated rulemaking does
indeed fulfill its expectations
Reg negs are cheaper
Langbein and Kerwin 00
(Laura I. Langbein is a quantitative methodologist and professor of public administration and policy at American University in
Washington, D.C. She teaches quantitative methods, program evaluation, policy analysis, and public choice. Her articles have appeared
in journals on politics, economics, policy analysis and public administration. Langbein received a BA in government from Oberlin
College in 1965 and a PhD in political science from the University of North Carolina at Chapel Hill in 1972. She has taught at American
University since 1973: until 1978 as an assistant professor in the School of Government and Public Administration; from 1978 to 1983 as
an associate professor in the School of Government and Public Administration; and since 1983 as a professor in the School of Public
Affairs. She is also a private consultant on statistics, research design, survey research, and program evaluation and an accomplished
clarinetist. Cornelius Martin "Neil" Kerwin (born April 10, 1949)(2) is an American educator in public administration and president of
American University. A 1971 undergraduate alumnus of American University, Kerwin continued his education with a Master of Arts
degree in political science from the University of Rhode Island in 1973. In 1975, Kerwin returned to his alma mater and joined the
faculty of the American University School of Public Affairs, then the School of Government and Public Administration. Kerwin
completed his doctorate in political science from Johns Hopkins University in 1978 and continued to teach until 1989, when he became
the dean of the school. Langbein, L. I. Kerwin, C. M. Regulatory Negotiation versus Conventional Rule Making: Claims,
Counterclaims, and Empirical Evidence, Journal of Public Administration Research and Theory, July 2000.
http://jpart.oxfordjournals.org/content/10/3/599.full.pdf//ghs-kw)
Our research contains strong but qualified support for the continued use of negotiated
assessments are
significantly more positive than those of participants in conventional rule making. In short, the process
itself seems to affect participants' views of the rule making, independent of differences
between the types of rules chosen for conventional and negotiated rule making, and
independent of differences among the participants, including differences in their views of
the economic net benefits of the particular rule. This finding is consistent with theoretical expectations regarding the
relatively less complex. But even when these and other variables are controlled, reg neg participants' overall
importance of participation and the importance of face-to-face communication to increase the likelihood of Pareto-improving social outcomes.
With respect to participation, previous research indicates that compliance
presented in this study shows that reg neg participants rated the overall
process (with and without statistical controls in exhibits 9 and 1 respectively) and the ability of EPA equitably to
implement the rule (exhibit 1) significantly higher than conventional rule-making participants
did. Further, while conventional rule-making participants were more likely to say that there was no party with disproportionate influence during
the development of the rule, reg neg participants voluteered significantly more positive comments and significantly fewer negative comments
about the process overall. In general, reg
in terms of professional
hours and clerical hours, and amounts spent for information collection, legal counsel, and
consultants. They also asked about the proportion of available resources that this spending
represented and the subjective perception of whether the bene fits outweighed the costs.
Reg neg participants reported spending significantly more professional staff hours than
conventional participants; the mag nitude of this difference is over 2000 staff hours or
about 1 per-son-year. However, this difference was mostly attributable to the fact that EPA spent significantly more than other
participants on regulatory negotiation than on conventional rulemaking. Recall that the agency is not a "participant" in conventional rulemaking,
so there were no EPA respondents among conventional rule participants. After removing EPA,
differences between negotiated and conventional rules participants in money spent for
staff hours, clerical hours, or monetary resources for research, information, legal counsel
and consultants.
However, reg neg participants did report spending nearly twice as much as conventional participants in terms of
resources relative to those available. Further, in response to questions about what they liked and disliked, 30% of dislikes volunteered by
negotiation participants cited some aspect of cost, measured in time, money, or personal aggravation, compared to 9% of conventional
rulemaking participants, whose dislikes centered on EPA or the quality of the rule. Still, nearly
both negotiated and conventional rulemaking, believed that the benefits of participation
equaled or outweighed the costs. According to Kerwinand Langbein, even if the costs of participation in
reg negs are higher, the ratio of benefits to costs appears no different. On the average, participation in
either rulemaking appears to be, ex post, a "rational" decision.
Agency Responsiveness/Irresponsibility
Agencies have no incentive for irresponsibility
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
seek judicial review of a negotiated rule, and upon review the rule is entitled to no greater deference for having been negotiated. Indeed, Congress
specifically declined to provide for a lower standard of review in the NRA.58
the agency
of rule development . Further, when asked what they disliked about the process, less than 10% of both negotiated and conventional
participants volunteered "disproportionate influence." When asked whether any party had disproportionate influence during rule development,
44% of conventional respondents answered "yes," compared to 48% of reg neg respondents. In addition, EPA was
as likely to be
viewed as having disproportionate influence in negotiated as conventional rules (25% versus 32%
respectively). It follows that roughly equal proportions of participants in negotiated and conventional rules viewed other participants, and
especially EPA, as having disproportionate influence. Kerwin and Langbein asked those who reported disproportionate influence what about the
rule led them to believe that lopsided influence existed. In response, negotiated
negotiated rules are designed so that public participation should have its greatest impact on
the proposed rule; conventional rules are structured so that public participation should
have its greatest impact on the final rule. Given these differences in how the two processes are de-signed, Kerwin and
Langbein sought to measure agency responsiveness overall, rather than at the two separate moments of access. Although the
differences were not statistically significant, the results suggest that conventional participants perceived their public and
personal contribution to rulemaking to have had slightly more impact than negotiated rule participants perceived their contribution to have had.
Still, given
the absence of statistical significance, we agree with the researchers that it is safer to conclude that the
Disparities/Exclusive
Reg negs have full representation
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
2. Reg Neg is Broadly Inclusive The
data call into question the validity of the criticism that reg negs
involve only highly organized and well-financed interests. 97 The majority of respondents
reported participation by all parties, including small, seemingly ad hoc citizen groups,
small businesses, and local government representatives.98 These types of participants were not in the majority,
but neither were they rare. The data therefore support the proposition that negotiated rulemaking is at least open to groups that complain about
When asked
whether all the interests that should have been involved in the negotiated rulemaking were
involved, 65% of respondents answered that there was full representation .99 The literature on reg
exclusion from other governmental processes, even if those groups are imperfect surrogates for ordinary citizens.
neg also identifies as a potential problem EPAs unwillingness to commit, up front, to accept the results of negotiations and use them as the basis
for the rule.
contradictmost of the theoretical criticisms of reg neg that have surfaced in the scholarly
literature over the last twenty years. There is no evidence that negotiated rulemaking
abrogates an agency's responsibility to implement legislation. Nor does it appear to
exacerbate power imbalances or increase the risk of capture. When asked whether any
party seemed to have disproportionate influence during the development of the rule, about
the same proportion of reg neg and conventional participants said yes. Parties perceived
their influence to be about the same for conventional and negotiated rules, undermining
the hypothesis that reg neg exacerbates capture.
Not truelarger groups arent more influential in reg negs
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
One might also suspect that higher satisfaction rates correspond to disproportionate
influence over the agency, which would suggest that the purported legitimacy benefit simply dis-guises capture of the agency by
interested parties. Based on the reported data, however, this is unlikely. The results of the study indicate that the agency was
equally responsive to stakeholders in both conventional and negotiated rulemaking
contexts. Al-though participants did perceive that some parties exerted dis-proportionate influence in the reg neg process, the types of
parties believed to have exerted that influence were fairly evenly distributed. In fact, the parties that
were perceived as exerting the most influence in both types of rulemakings were EPA itself and big business groups of all stripes. Environmental
groups were slightly more likely to be seen as exercising disproportionate influence in reg negs than in conventional rulemaking. Moreover,
perceptions of disproportionate influence in conventional rulemaking occurred with the same relative frequency as those in reg negs. We think it
would be inaccurate to suggest that satisfaction depends on, or disguises, undue influence over the agency that is exacerbated by reg neg. At
worst, then, we believe that regulatory
identify and recommend ways to ameliorate these asymmetries among parties in the reg neg context, we doubt the differences can be eradicated.
No impact to disparities
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
The study reveals some weaknesses of the reg neg process as well, most notably the
disparities
did not seem to translate into undue influence over outcomes. In light of the numerous benefits re-vealed by
the data, the story on reg neg remains mostly positive especially when compared to
conventional rulemaking.
No Consensus
Read the legitimacy/conflict stuff
Yes consensus: multiple warrants:
A) negotiating parties fear the alternative, which is worse than reg neg
Perritt 86
(Professor Perritt earned his B.S. in engineering from MIT in 1966, a master's degree in management from MIT's Sloan School in 1970,
and a J.D. from Georgetown University Law Center in 1975. Henry H. Perritt, Jr., is a professor of law at IIT Chicago-Kent College of
Law. He served as Chicago-Kent's dean from 1997 to 2002 and was the Democratic candidate for the U.S. House of Representatives in
the Tenth District of Illinois in 2002. Throughout his academic career, Professor Perritt has made it possible for groups of law and
engineering students to work together to build a rule of law, promote the free press, assist in economic development, and provide refugee
aid through "Project Bosnia," "Operation Kosovo" and "Destination Democracy." Professor Perritt is the author of more than 75 law
review articles and 17 books on international relations and law, technology and law, employment law, and entertainment law, including
Digital Communications Law, one of the leading treatises on Internet law; Employee Dismissal Law and Practice, one of the leading
treatises on employment-at-will; and two books on Kosovo: Kosovo Liberation Army: The Inside Story of an Insurgency, published by
the University of Illinois Press, and The Road to Independence for Kosovo: A Chronicle of the Ahtisaari Plan, published by Cambridge
University Press. He is active in the entertainment field, as well, writing several law review articles on the future of the popular music
industry and of video entertainment. He also wrote a 50-song musical about Kosovo, You Took Away My Flag, which was performed in
Chicago in 2009 and 2010. A screenplay for a movie about the same story and characters has a trailer online and is being shopped to
filmmakers. His two new plays, Airline Miles and Giving Ground, are scheduled for performances in Chicago in 2012. His novel, Arian,
was published by Amazon.com in 2012. He has two other novels in the works. He served on President Clinton's Transition Team, working
on telecommunications issues, and drafted principles for electronic dissemination of public information, which formed the core of the
Electronic Freedom of Information Act Amendments adopted by Congress in 1996. During the Ford administration, he served on the
White House staff and as deputy under secretary of labor. Professor Perritt served on the Computer Science and Telecommunications
Policy Board of the National Research Council, and on a National Research Council committee on "Global Networks and Local Values."
He was a member of the interprofessional team that evaluated the FBI's Carnivore system. He is a member of the bars of Virginia
(inactive), Pennsylvania (inactive), the District of Columbia, Maryland, Illinois and the United States Supreme Court. He is a member of
the Council on Foreign Relations and served on the board of directors of the Chicago Council on Foreign Relations, on the Lifetime
Membership Committee of the Council on Foreign Relations, and as secretary of the Section on Labor and Employment Law of the
American Bar Association. He is vice-president and a member of the board of directors of The Artistic Home theatre company, and is
president of Mass. Iota-Tau Association, the alumni corporation for the SAE fraternity chapter at MIT. Perritt, H. H. Negotiated
Rulemaking Before Federal Agencies: Evaluation of Recommendations By the Administrative Conference of the United States,
Georgetown Law Journal, Volume 74. August, 1976. http://www.kentlaw.edu/perritt/publications/74_GEO._L.J._1625.htm//ghs-kw)
The negotiations moved slowly until the FAA submitted a draft rule to the participants. This
reinforced the view that the FAA would move unilaterally. It also reminded the parties that
there would be things in a unilaterally promulgated rule that they would not like--thus
reminding them that their BATNAs were worse than what was being considered at the
negotiating table.
Participation by the Vice President's Office, the Office of the Secretary of Transportation, and the OMB at the
initial session discouraged participants from thinking they could influence the contents of the rule outside the negotiation process. One attempt to
political need of participants to adhere to positions formally, even though signals were
given that participants could live with something else.
crucial to the usefulness of this type of process. Because the agency was there, it could form its own impressions of what a party's real position
was, despite adherence to formal positions. In addition, it
presence of an outside
contractor who served as drafter was of some assistance. The drafter, a former FAA employee,
assisted informally in resolving internal FAA disagreements over the proposed rule after
negotiations were adjourned.
B) Reg neg builds mutual trust and legitimacy through information sharing and learning
means that a consensus will be reached
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
In our view, empirical studies of negotiated rulemaking that examine cost, time, and litigation rates tell only part of the story and, we believe, not
the most important part. The studies summarized here go beyond these limited measures of success and provide a more textured picture of
regulatory negotiation. Along
negotiated rules than do participants in conventional rulemaking.'0 Contrary to the critics' expectations, Kerwin and Langbein found
that negotiation of rules reduced conflict between the regulator and regulated entities , and it was
no less fair to regulated entities than conventional rulemaking." The data contradict claims that regulatory negotiation abrogates an agency's
responsibility to implement laws written by Congress;12 indeed, the
positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,
that any further regulation adopted by the District would greatly influence the form of any
CARB regulation . Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the District's
action at the regional level. (136) The industry thought that, in the best case, its participation in the
negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened regulation of
chrome plating emissions. (137) Finally, as noted above, (138) under the existing District regulatory structure, some metal plating sources would
be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk assessment process was
complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a new District regulation, which
could avoid the need for numerous risk assessments. The environmentalists also recognized weaknesses in their initial position, although their
political calculations were not as complex as the industry's. While the environmentalists' chief goal was to secure a regulation requiring new addon technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The
environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put
companies out of business or force them to relocate out of the South Coast Air Basin.
assessments are
significantly more positive than those of participants in conventional rule making. In short, the process
itself seems to affect participants' views of the rule making, independent of differences
between the types of rules chosen for conventional and negotiated rule making, and
independent of differences among the participants, including differences in their views of
the economic net benefits of the particular rule. This finding is consistent with theoretical expectations regarding the
relatively less complex. But even when these and other variables are controlled, reg neg participants' overall
importance of participation and the importance of face-to-face communication to increase the likelihood of Pareto-improving social outcomes.
With respect to participation, previous research indicates that compliance
presented in this study shows that reg neg participants rated the overall
process (with and without statistical controls in exhibits 9 and 1 respectively) and the ability of EPA equitably to
implement the rule (exhibit 1) significantly higher than conventional rule-making participants
did. Further, while conventional rule-making participants were more likely to say that there was no party with disproportionate influence during
the development of the rule, reg neg participants voluteered significantly more positive comments and significantly fewer negative comments
about the process overall. In general, reg
beneficiaries than for losers. If reg neg reduces transactions costs compared to conventional rule making, or if reg neg reduces
the imbalance in transactions costs between winners and losers, or among different kinds of winners and losers, then it might be
reasonable to expect negotiated rules to be Pareto-superior to conventionally written rules.
Reg neg may reduce transactions costs in two ways. First, participation in writing the
proposed rule (which sets the agenda that determines the final rule) is direct, at least for the participants. In conventional
rule making, each interest has a repeated, bilateral relation with the rule-making agency; the rule-making agency proposes
the rule (and thereby controls the agenda for the final rule), and affected interests respond separately to what is in the agency proposal. In
negotiated rule making, each interest (including the agency) is in a repeated N-person set of mutual relations; the negotiating group drafts the
proposed rule, thereby setting the agenda for the final rule. Since
reg neg can be expected to better establish a core relationship of trust, reputation, and
reciprocity that Ostrom (1998) argues is central to improving net social benefits. Reg neg may
reduce transactions costs not only by entailing repeated mutual rather than bilateral
relations, but also by face to face communication. Ostrom (1998, 13) argues that face-to-face
communication reduces transactions costs by making it easier to assess trustworthiness and
by lowering the decision costs of reaching a "contingent agreement," in which "individuals
agree to contribute x resources to a common effort so long as at least y others also
contribute." In fact, our survey results show that reg neg participants are significantly more likely than
conventional rule-making participants to believe that others will comply with the final rule
(exhibit 1). In the absence of outside assessments that compare net social benefits of the conventional and negotiated rules in this study,15 the
hypothesis that reg neg is Pareto superior to conventional rule making remains an untested speculation. Nonetheless, it seems to be a plausible
hypothesis based on recent theories regarding the importance of institutions that foster participation in helping to effect Pareto-preferred social
outcomes.
Consensus is often misunderstood. It is typically used, derisively, to mean a group decision that is the consequence of a
"group think" that resulted from little or no exploration of the issues, with neither general inquiry, discussion, nor deliberation. A common
example would be the boss's saying, "Do we all agree? . . . Good, we have a consensus!" In this context, consensus is the acquiescence to an
accepted point of view. It is, as is often alleged, the lowest common denominator that is developed precisely to avoid controversy as opposed to
generating a better answer. It is a decision resulting from the lack of diversity. It is in fact actually a cascade that may be more extreme than the
views of any member! Thus, the question legitimately is, if this is the understanding of the term, would you want it if you could get it, or would
the result to too diluted? A number of articles posit, with neither understanding nor research, that it always results in the least common
denominator. Done right, however, consensus
is consensus for these purposes. The default definition of consensus in the Negotiated Rulemaking Act is the "unanimous concurrence among the
interests represented on [the] . . . committee." Thus, each
can actually feel the committee snap together into a coherent whole when the members
realize that. It forces the parties to deal with each other which prevents "rolling" someone:
"OK, I have the votes, so shut up and let's vote." Rolling someone in a negotiation is a very good way to create an opponent, to you and to any
resulting agreement. Having
to actually listen to each other also creates a friction of ideas that results in better decisions
the "wisdom of crowds." It enables the parties to make
sophisticated proposals in which they agree to do something, but only if other parties agree
to do something in return. These "if but only if offers cannot be made in a voting situation for fear that the offeror would not
obtain the necessary quid pro quo. It also enables the parties to develop and present information they might
otherwise be reluctant to share for fear of its being misused or used against them. A veto prevents that. If a party cannot control
the decision, it will logically amass as much factual information as possible in order to limit the
instead of a cascade, it generates
discretion available to the one making the decision; the theory is that if you win on the facts, the range of choices as to what to do on the policy
If
the decision is made by consensus, the parties do control the outcome, and as a result, they can
concentrate on making the final decision. The question for the committee then becomes, how much information do we
is considerably narrowed. Thus, records are stuffed with data that may wellbe irrelevant to the outcome or on which the parties largely agree.
need to make a responsible resolution? The committee may not need to resolve many of the underlying facts before a policy choice is clear.
Interestingly, therefore, the
That is because one of the parties to the negotiation is very likely to benefit from an adherence to the statutory requirements and would not
concur in a decision that did not implement it. Finally,
the likelihood of a successful challenge is greatly reduced so that the decision has a rare
degree of finality.
Negotiating parties have terrible BATNAstheyll cooperate
Perritt 86
(Professor Perritt earned his B.S. in engineering from MIT in 1966, a master's degree in management from MIT's Sloan School in 1970,
and a J.D. from Georgetown University Law Center in 1975. Henry H. Perritt, Jr., is a professor of law at IIT Chicago-Kent College of
Law. He served as Chicago-Kent's dean from 1997 to 2002 and was the Democratic candidate for the U.S. House of Representatives in
the Tenth District of Illinois in 2002. Throughout his academic career, Professor Perritt has made it possible for groups of law and
engineering students to work together to build a rule of law, promote the free press, assist in economic development, and provide refugee
aid through "Project Bosnia," "Operation Kosovo" and "Destination Democracy." Professor Perritt is the author of more than 75 law
review articles and 17 books on international relations and law, technology and law, employment law, and entertainment law, including
Digital Communications Law, one of the leading treatises on Internet law; Employee Dismissal Law and Practice, one of the leading
treatises on employment-at-will; and two books on Kosovo: Kosovo Liberation Army: The Inside Story of an Insurgency, published by
the University of Illinois Press, and The Road to Independence for Kosovo: A Chronicle of the Ahtisaari Plan, published by Cambridge
University Press. He is active in the entertainment field, as well, writing several law review articles on the future of the popular music
industry and of video entertainment. He also wrote a 50-song musical about Kosovo, You Took Away My Flag, which was performed in
Chicago in 2009 and 2010. A screenplay for a movie about the same story and characters has a trailer online and is being shopped to
filmmakers. His two new plays, Airline Miles and Giving Ground, are scheduled for performances in Chicago in 2012. His novel, Arian,
was published by Amazon.com in 2012. He has two other novels in the works. He served on President Clinton's Transition Team, working
on telecommunications issues, and drafted principles for electronic dissemination of public information, which formed the core of the
Electronic Freedom of Information Act Amendments adopted by Congress in 1996. During the Ford administration, he served on the
White House staff and as deputy under secretary of labor. Professor Perritt served on the Computer Science and Telecommunications
Policy Board of the National Research Council, and on a National Research Council committee on "Global Networks and Local Values."
He was a member of the interprofessional team that evaluated the FBI's Carnivore system. He is a member of the bars of Virginia
(inactive), Pennsylvania (inactive), the District of Columbia, Maryland, Illinois and the United States Supreme Court. He is a member of
the Council on Foreign Relations and served on the board of directors of the Chicago Council on Foreign Relations, on the Lifetime
Membership Committee of the Council on Foreign Relations, and as secretary of the Section on Labor and Employment Law of the
American Bar Association. He is vice-president and a member of the board of directors of The Artistic Home theatre company, and is
president of Mass. Iota-Tau Association, the alumni corporation for the SAE fraternity chapter at MIT. Perritt, H. H. Negotiated
Rulemaking in Practice, Journal of Policy Analysis and Management, Vol. 5, No 3, Spring 1986,
http://people.brandeis.edu/~woll/perrittnegotiatedrulemaking.pdf//ghs-kw)
Negotiation succeeds only when persons able to use other processes have an incentive to
participate in negotiation and to reach agreement. A useful conceptual structure for understanding incentives to
negotiate is the one offered by Roger Fisher and William Ury in their popular book on the negotiation process.14 They explain that the
participation of any party in a negotiation will be guided by that party's "Best Alternative
to Negotiated Agreement" (BATNA). If a party's BATNA is superior to what can be obtained in negotiation, the party will
not participate. A participant will not agree to an outcome worse than its BATNA. The BATNA idea is similar to the idea
of a "reservation price" in negotiations, but the BATNA concept emphasizes the idea that
reservation price is determined exogenously. For potential participants in a regulatory
negotiation, BATNA's are determined by perceptions of what the agency will do in the
absence of a negotiation .15 A rational, monolithic party will participate in regulatory
negotiation only if it perceives the potential negotiation outcome to be better than its
BATNA, determined by its estimate of probable unilateral agency action. Different parties are likely to have different BATNA's because they
predict the unilateral agency outcome differently, or because they place different values on the outcomes they predict. Relations within
constituency groups complicate the regulatory negotiation dynamics.
Multi-Stakeholder Processes FMCS makes important contributions to the successful use of regulatory negotiations and public
policy dialogues The Negotiated Rulemaking Act of 1990 authorizes FMCS to use its mediation
and facilitation services to improve government operations. As a neutral third-party, FMCS convenes and
facilitates a wide range of complex, multi-party processes, including public policy dialogues and regulatory negotiations,
helping all parties to improve their communication and relationships and reach consensus
on the issues. Convening and Facilitation of multi-stakeholder processes In the early 1980s, FMCS facilitated the first regulatory
negotiations held by the Federal Aviation Administration. FMCS involvement in regulatory negotiations, as both a
convener and facilitator, increased throughout the 1980s, with the agency facilitating
negotiations involving the Departments of Transportation, Agriculture, Labor, and other
federal agencies, and was further. After the passage of the Negotiated Rulemaking Act of 1990, FMCSs involvement in multi-party
negotiations continued to grow. The results have been very positive. By formulating rules and policies
in a public negotiating process, potential or actual antagonists become partners in helping
the agency solve a regulatory problem. Thus, the likelihood of subsequent challenges to a
new regulation is greatly reduced. How Negotiated Rulemaking Works Authorized by the Administrative Dispute Resolution
Act of 1996, FMCS offers government regulatory and enforcement agencies a better way to formulate new rules and regulations. In the
traditional rulemaking process, agency personnel draft a new regulation with little or no
outside input, publish the draft regulation in the Federal Register for the required public
comment period, and then wait for the inevitable criticism, and even legal challenges, from
those affected by the new regulation. In contrast, FMCS convenes and facilitates Regulatory Negotiations, a
process in which those who will be affected by a regulation sit down with the government
agency to write a proposed rule or regulation by consensus. Experience has shown that by bringing potential
or even actual antagonists into participation in a public process, they become invested in helping the agency solve its problem. The result
is usually better regulation and because those who will be regulated have taken part in the
process, the likelihood of subsequent challenges are greatly reduced. The Service assists federal and some
state agencies by convening and facilitating/mediating regulatory negotiations as well as less formal, public policy dialogues under the authority
of the 1996 Administrative Dispute Resolution Act. Government agencies have chosen the use of negotiated rulemaking and other highly
interactive negotiating models as a constructive way to diminish litigation and enhance relationships with their constituencies. To assist them,
FMCS has provided skills building training in the areas of communication, mediation, problem-solving and meeting planning over three decades
of experience in successful rulemakings.
: In negotiated
rulemaking, the agency appoints and identifies and appoints a limited, specific number of
individuals who can represent the views of their stakeholding group on the negotiating
committee. Most committees include twenty (20) to thirty (30) participants, though some may include as many as fifty (50). Additional
and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants
participation may include appointment of alternates, use of subcommittee where membership is not constrained, and a period during each
negotiating session for the general public to comment. Kinds of Participants: Negotiated
entering in
Negotiated Rulemaking, the agency commits, within its existing rules, regulations, and
guidelines, to draft new or revised regulations consistent with the recommendations of the
negotiating committee IF the committee reaches agreement (as defined in the committees ground rules).
Negotiated rulemaking is a formalized, specific kind of consensus building.
Not Transparent
The process is transparent
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
Defenders of reg neg retorted that negotiated
reg-negthat would bring interested parties on all sides of an issue into direct negotiations
with an agency in order to achieve consensus on a proposed draft rule. Thereafter, the draft
would then be submitted to the standard rulemaking procedures, after gaining the
endorsement of the all substantially affected interests. Harters analysis of the problemwhich he referred to as the
malaise affecting agency rulemaking was that the pronounced adversarialism that marked the modern rulemaking process led, in the context of difficult or
inherently political issues, to inefficiencies (especially in terms of delay), to a reliance on power rather than persuasion in the decisionmaking process, to
unimaginative and poorly crafted rules, and, ultimately, to a rejection of the result and/or the process and a consequent de-legitimizing of the agency decision among
the regulated interests and other affected persons. Taking seriously the suggestion of Professor Stewart and others, that the dynamics of administrative regulation could
be helpfully viewed using a contract metaphor, Harter proposed a process that explicitly conceived of rulemaking as bargaining between the various affected interests,
including the agency, the legislature, and members of the general public. Simply put, the idea of reg-neg was to unmask the reality behind the formalism of the modern
rulemaking process, and it offered the quite reasonable and theoretically-justified suggestion that cooperative or principled bargaining, rather than adversarial
posturing, legalism, and litigation, might lead to a better rule and would be accepted as just and fair by those who would have to live with the result. The notion that
important administrative policy-making could be conducted in a collaborative but principled framework found wide acceptanceparticularly, and most importantly,
among elected representatives and leaders of the executive branch and the agencies themselves. A few academic critics, while acknowledging reg-negs popularity,
seem to regard it as a disturbing fad. As I explain next, they see theoretical flaws in the process, and have questioned the existence of the benefits claimed by reg-negs
supporters. However, many of these concerns appear redolent of the old hostility towards private interests prevalent among administrative law scholars concerned
mostly with defending the existence of such agencies, and grounded in the view of the agency as a neutral expert operating above the political fray. Specifically, I
focus on the troubling claim made by some critics that reg-neg represents nothing less than the subversion of the public interest. IV. Critiquing Negotiated
Regulation: The Problem of Defining and Locating the Public Interest (T)the most difficult words in any form of discourse are rarely the polysyllabic ones that are
hard to spell and which send students to their dictionaries. The troublesome words are those whose meanings appear to be simple, like true, false, fact, law,
good, and bad. Critics of reg-neg have asserted that allowing individuals or other private interests substantially affected by agency actions the opportunity to
negotiate face-to-face with the agency and with representatives of all other interests, about the substance of a proposed administrative rule, is inherently contrary to the
public interest. The underlying theme of this critique is the questionable notion that such negotiations take away ultimate control of the decisionmaking authority
from the agency, and that they presume the agency is uniquely endowed with the ability to discern what is best for all. As to the first argument concerning agency
control of the decision, these criticisms frequently overlook or ignore that the agency retains the ultimate authority to issue a rule, and is not compelled to propose a
neg, however, hinges on the second argument: that administrative agencies are uniquely able to discern the public interest. Professor Funk, for example, embraces the
Funk then demonstrates (perhaps unintentionally) the truth of his own observation, in offering his own definition of the public interest: I mean it to be the best
interests of the nation, the people, the body politic. Funks definition does little more than substitute one word (best) for another (public). This troublesome word
bestbegs the question, however, and Funks circular argument seems to comes down the assertion that the agency must avoid collaboration and make the decision
alone, becausewell, because thats what the theory says. Similarly, Michael McCloskey echoes this concern about moving towards explicit collaboration in the
production of administrative regulations. McCloskey focuses his concern on the use of consensus as a rule of decision in such negotiations, calling this a prescription
for frustrating the national will of the majority. McCloskey argues that: (T)he consensus rule serves to overthrow the basic suppositions of representative democracy.
Instead of the direction of public policy being set by those garnering the greatest support among the electorate, those directions would be set by collaborations in
which those with little support can thwart the will of the majority. This turns democracy on its head. Ironically, the consensus rule allows minorities to veto progress
along certain lines. This seems an odd claim coming from the (then) Chairman of the Sierra Club, a group that has devoted itselfadmirably in my opinion to
challenging the correctness of decisions made by these very administrative agencies. In any case, this analysis quickly breaks down. For one thing, the government
officials and employees who would otherwise formulate the rules are not themselves elected. Second, even if one accepts with McCloskey the proposition that the
will of the majority can be equated with progress, the failure in reg-neg to reach consensus does not thwart or veto anything, except the ability of the
negotiating committee to determine the contents of a proposed rule. In cases where no consensus is reached, the agency is free to proceed and propose its own rule
and may do so with the added benefit of whatever useful information was gained from the failed negotiations. Thus, even assuming as McCloskey does that the
agency is the rightful repository of the public interest, nothing is lost by the failure to reach consensus. Finally, his assertion that public policy is normatively set by
the majority of the electorate is simply disingenuous. As the head of arguably the nations most prominent environmental group, he is intimate with the nature of
interest group politics in Washington and elsewhere, and he understands the nuances and complexity of our representative democracy and how that differs from
notions of direct democracy. McCloskey is understandably troubled by the increased influence of local communities in the administrative process affecting forest and
timber regulations, which seems to be the animating concern behind his critique. However, McCloskeys broad assertion that collaboration and sharing of
decisionmaking authority in the formulation of administrative rules is fundamentally undemocratic and contrary to the public interest is based on little more than a
questionable faith that the agency can and will effectuate the public interest. Finally, Cary Coglianese is perhaps the most persistent critic of reg-neg. Like,
McCloskey, Professor Coglianese also focuses his attention on the perceived dangers of consensus as a decision rule in negotiated rulemaking. And while most of his
efforts are aimed at disproving the claims of reg-neg advocates concerning the benefits of the process, Coglianese goes further and asserts that reg-neg represents a
retreat from the public interest as the primary goal of government officials. That conclusion, however, does not easily follow from the claimed failure of reg-neg to
achieve certain efficiencies, nor is it directly substantiated by empirical evidence. At most, it might be said that reg-neg represents (for its advocates) a new approach
to achieving the same desired resulti.e., the best decision for the public. So what are we to make of the complaint that reg-neg subverts the public interest?
Certainly, we may say that a criticism is incompetent when it depends entirely on terms which have no ascertainable meaning, or for which the critic can supply none.
Such criticism is unhelpful, moreover, as it does nothing to further a serious debate about serious issues. Can we, then, just dismiss these claims, tossing them in the
junk pile of criticism? I think not. Critics such as Coglianese are, of course, correct that we must look at the underlying theory and assumptions around reg-neg and
attempt to assessempirically and otherwisehow it is performing. The question of whether reg-neg is serving the public interest is an important one, even if it has,
until now, been used mostly to vent the hostile suspicions of a fading tradition. General linguistic and philosophical objections regarding the use of the term public
interest, moreover, are themselves somewhat too broad and subject to the criticism that they, too, fail to move the debate forward. What then? Professor Freeman
argues that, while (t)here is no purely private realm and no purely public one, these dichotomous notions nonetheless are meaningful signifiers helpful ways of
referring to areas of life that we experience as more or less under our control, more or less coercive, more or less alienating. Perhaps the public interestlike the
related concept of legitimacyis a usefully vagueadministrative law theory, serving as a vessel into which scholars could pour their most pressing concerns about
administrative power. If we understand the public interest in this pragmatic sense, then it seems the task is to provide some suggested content(s) for it, so that it may
be employed helpfully and with appropriate nuance to explore the difficult questions about reg-neg. Freeman suggests that the focus for this exploration should not be
on agencies, qua agencies, but rather on the pervasive interdependence that characterizes administrative functioning, its inputs and outputs, and which may be viewed
as a set of negotiated relationships. Where do we look for such content? Analogy is a time-honored method in the law for supplying new content, as it is in literature
a fact that seems appropriate to note in passing, since the present analysis has, arguably, moved into a realm where there is discernable overlap in these traditions.
Accordingly, it may be appropriate to look beyond administrative law to see if debates about the public interest in other fields could provide helpful guidance. V.
Other Debates About the Public Interest: Legal Ethics and Professionalism Administrative law and reg-neg are not the only realms in which disagreements occur over
what is in the public interest, and whether there is such a thing. For example, it is commonly accepted that lawyers representing governmental entities are imbued with
a responsibility to act in and protect the public interest, a responsibility that is not shared by attorneys representing private interests. Some critics of this notion
respond that government attorneys cannot work to pursue the public interest because the very concept of a public interest is unintelligible and cannot provide a
workable guidepost for government attorneys with regard to the choices and decisions that they must make in their professional capacities. One response to the
resulting conceptual divide, offered by Steven Berenson, is to characterize public and private in terms of the characteristic values commonly implied by the use of
those terms. Thus, private values encompass ideas such as individual choice, autonomy, and pursuit of economic self-interest, and public values encompass
ideas such as connection to others, community, collective action, group interaction, and discourse. Berenson also suggests that private might be understood as selfregarding and public as other-regarding. Such distinctions seem to fall into a category we might call procedural or instrumental values, and it is not hard to see
why they do not provide Berenson with easy answers to the question of whether and how a government attorney can act in the public interest. Berensons categories
could suggest for reg-neg a communitarian perspective, in which the question of whether a proposed rule was in the public interest is measured by the impact it would
have on individual and collective relationships in affected communities, and between communities. Factors such as the expected impact of a proposal for the physical
and mental health of a community, along with the expected impacts on the economy, would seem difficult to exclude from such an analysis. In another example,
Professor Rhode notes that similar questions arise in the debate over whether lawyersbeing members of a professionhave an obligation to some set of
transcendent values associated with the profession and aligned with the public interest. After acknowledging the arguments against the use of the term public
interest, she offers her view that: Defining the common good will often be complex and contested, but that is no reason to avoid either the effort or the concept.
One may accept that there may, ultimately, be no objective right answers about issues involving morals or values, she continues, but that does not prevent us from
concluding that (s)ome positions are more coherent, free of bias or self-interest, and supported by reliable evidence. She also cites Political theorist Richard
Flathman for the suggestion that the term public interest can appropriately apply to policies whose effect on the general welfare has been fully justified. Although
not easy to apply in any definitive sense, this standard suggests that an element of thorough, principled, and open investigation of public impacts should underlie any
conclusion that a particular action is consistent with the public interest. VI. Conclusion: Arguing for the Public Interest in the context of Negotiated Regulations I say
arguing for the public interestrather than about itfor the reason that, as with the environment, nobody is (publicly) against the public interest. That is
precisely the problem raised in this paper: everybodywith the exception perhaps of those who, even provisionally, are unwilling to admit to its existenceagrees
that the
. The problem is that people, including
scholars, frequently neglect to make clear what they mean by that term, and this is particularly apt to be the case when they wish to define what they believe it is not. I
agree with Professors Rhode, Berenson, Freeman and even Professor Funk, that we ought to continue in our various discourses the debate over the public interest, as
difficult as it may be to define, as a means of testing and asserting various goals and values representing something more than a single self-interested viewpoint, and
that we believe to be especially salutary. Primarily, this is due to my faith that the many questions raised thereby will more than justify the difficulty we will surely
encounter in convincing others of the correctness of our views. But I also think it is highly incumbent upon those who do so to make an honest and serious effort to
provide a definition of the public interest, and that will likely mean an explicitly provisional and contextualized definition. Perhaps such a definition will be procedural
those drawn from communitarian analysis, would allow a determination along broader lines than available by looking only at an aggregation of disparate individual
impacts. At this juncture, I can offer no more than these initial speculations on the content of any standard for assessing the public interest in the context of reg-neg.
My purpose here has been mostly to point out the need for doing so. I suspect, moreover, that the need for a definitioneven if only provisional in naturewill
continue to arise in the context of the specific products of this newer form of participative democracy, and that this context will be helpful in moving the debate
forward.
Perm
Perm do the CP
Reg neg is different from agencies traditional rulemaking
Fiorino 88
(Daniel J. Fiorino holds a PhD & MA in Political Science from Johns Hopkins University and a BA in Political Science & Minor in
Economics from Youngstown State University. Daniel J. Fiorino is the Director of the Center for Environmental Policy and Executive in
Residence in the School of Public Affairs at American University. As a faculty member in the Department of Public Administration and
Policy, he teaches courses on environmental policy, energy and climate change, environmental sustainability, and public management.
Dan is the author or co-author of four books and some three dozen articles and book chapters in his field. According to Google Scholar,
his work has been cited some 2300 times in the professional literature. His book, The New Environmental Regulation, won the Brownlow
Award of the National Academy of Public Administration (NAPA) for excellence in public administration literature in 2007. Altogether
his publications have received nine national and international awards from the American Society for Public Administration, Policy
Studies Organization, Academy of Management, and NAPA. His most recent refereed journal articles were on the role of sustainability in
Public Administration Review (2010); explanations for differences in national environmental performance in Policy Sciences (2011); and
technology innovation in renewable energy in Policy Studies Journal (2013). In 2009 he was a Public Policy Scholar at the Woodrow
Wilson International Center for Scholars. He also serves as an advisor on environmental and sustainability issues for MDB, Inc., a
Washington, DC consulting firm.. Regulatory Negotiations as a Policy Process, Public Administration Review, Vol 48, No 4, pp 764-772,
July-August 1988. http://www.jstor.org/discover/10.2307/975600?uid=3739728&uid=2&uid=4&uid=3739256&sid=21104541489843//ghskw)
Theory
Award of the National Academy of Public Administration (NAPA) for excellence in public administration literature in 2007. Altogether
his publications have received nine national and international awards from the American Society for Public Administration, Policy
Studies Organization, Academy of Management, and NAPA. His most recent refereed journal articles were on the role of sustainability in
Public Administration Review (2010); explanations for differences in national environmental performance in Policy Sciences (2011); and
technology innovation in renewable energy in Policy Studies Journal (2013). In 2009 he was a Public Policy Scholar at the Woodrow
Wilson International Center for Scholars. He also serves as an advisor on environmental and sustainability issues for MDB, Inc., a
Washington, DC consulting firm. Dan joined American University in 2009 after a career at the U.S. Environmental Protection Agency
(EPA). Among his positions at EPA were the Associate Director of the Office of Policy Analysis, Director of the Waste and Chemicals
Policy Division, Senior Advisor to the Assistant Administrator for Policy, and the Director of the National Environmental Performance
Track. The Performance Track program was selected as one of the top 50 innovations in American government 2006 and recognized by
Administrator Christine Todd Whitman with an EPA Silver Medal in 2002. In 1993, he received EPAs Lee M. Thomas Award for
Management Excellence. He has appeared on or been quoted in several media outlets: the Daily Beast, Newsweek, Christian Science
Monitor, Australian Broadcasting Corporation, Agence France-Presse, and CCTV, on such topics as air quality, climate change, the BP
Horizon Oil Spill, carbon trading, EPA, and U.S. environmental and energy politics. He currently is co-director of a project on
Conceptual Innovations in Environmental Policy with James Meadowcroft of Carleton University, funded by the Canada Research
Council on Social Sciences and the Humanities. He is a member of the Partnership on Technology and the Environment with the Heinz
Center, Environmental Defense Fund, Nicholas Institute, EPA, and the Wharton School. He is conducting research on the role of
sustainability in policy analysis and the effects of regulatory policy design and implementation on technology innovation. In 2013, he
created the William K. Reilly Fund for Environmental Governance and Leadership within the Center for Environmental Policy, working
with associates of Mr. Reilly and several corporate and other sponsors. He is a Fellow of the National Academy of Public Administration.
Dan is co-editor, with Robert Durant, of the Routledge series on Environmental Sustainability and Public Administration. He is often
is invited to speak to business and academic audiences, most recently as the keynote speaker at a Tel Aviv University conference on
environmental regulation in May 2013. In the summer of 2013 he will present lectures and take part in several events as the Sir Frank
Holmes Visiting Fellow at Victoria University in New Zealand. Fiorino, D. J. Regulatory Negotiations as a Policy Process, Public
Administration Review, Vol 48, No 4, pp 764-772, July-August 1988. http://www.jstor.org/discover/10.2307/975600?
uid=3739728&uid=2&uid=4&uid=3739256&sid=21104541489843//ghs-kw)
Thus, in its premises, objectives, and techniques, regulatory
the
interest-group model, objectives emerge from the bargaining among influential groups, and
a good decision is one to which the parties will agree. Under the net-benefit model,
objectives are articulated in advance as external guides to the policy process. A good
decision is one that meets the criterion of economic efficiency, defined ideally as a state in
which no one party can improve its position without worsening that of another. 21
This is a new era of governancereg neg is key to real world education about climate and
government policy
Harter 09
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States. Harter, P. J. Collaboration: The Future of Governance, Journal of Dispute Resolution,
Volume 2009, Issue 2, Article 7. 2009. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1581&context=jdr//ghs-kw)
A corollary of this is that public
policy debates are more contentious, and hence, making public decisions through
issues need to be considered in a relatively
Why use negotiated rulemaking? What are the implications for policy reform, the implementation of policy changes, and
conflict between stakeholders and government? First, the process generates an environment for dialogue
that facilitates the reality testing of regulations before they are implemented. It enables
policy reforms to be discussed in an open forum by stakeholders and for tradeoffs to be
made that expedite compliance among those who are directly impacted by the reforms.
Second, negotiated rulemaking is a process of empowerment. It encourages the participation and
enfranchisement of parties that have a stake in reform. It provides voice to interests, concerns and priorities that
otherwise might not be heard or considered in devising new policy. Third, it is a process
that promotes creative but pragmatic solutions. By encouraging a holistic examination of the policy area,
negotiated rulemaking asks the participants to assess the multiple issues and subissues
involved, set priorities among them, and make compromises. Such rethinking often yields
Indicts
AT: Coglianese
Inclusion of the farmworker protection reg neg results in flawed researchCoglianeses
results conclude neg when corrected
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
research is
"significantly flawed and hence misleading concerning the actual experience with
negotiated rulemaking." Harter points out that Coglianese simply miscalculated the start and end
dates of the negotiated rules, and that he improperly included an abandoned negotiated
rulemaking as if it had been completed. Harter argues that reg neg cuts the time consumed by
EPA rulemakings by about 32% if the data on reg negs are properly measured and
calculated to reflect consistent start and finish dates, and to exclude the abandoned reg
negs. Harter also points out that of the negotiated rules challenged by litigation, none reflected the
consensus rule proposed by participantssuggesting that either EPA's departure from
consensus or some other aspect of the rule besides the outcomes produced by reg neg
provoked the litigation.
Coglianeses study is flawed
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
The Methodology is Flawed: Anatomy of a Misunderstanding. To illustrate the second shortcoming of
Coglianeses analysis that an agencys immediate goal may not be the issuance of a final
rule it may be helpful to look at the Coast Guards negotiated rulemaking concerning
Vessel Response Plans. Congress passed the Oil Pollution Act of 199043 (OPA90) in the wake of the Valdez disaster. Among other
things, OPA90 required that operators of oil tankers must develop and file a plan that describes how they will deal with an oil spill. These plans
were due 30 months after the date of enactment (which would be February 18, 1993); after that date a tanker may not handle, store, or transport
oil unless the owner or operator thereof has submitted such a plan to the President.44 Obviously,
the actual experience with negotiated rulemaking. First, he misapplies his own
methodology by including a rule as a completed reg neg when in fact the negotiations were
abandoned early on; given the dynamics of the particular rule and Coglianeses
methodology, its erroneous inclusion had a significant effect on the ultimate conclusion.
Second, his methodology measures the wrong thing: it fails to account for what the agency
was actually trying to accomplish in several major proceedings, and hence his results are
misleading in that the agency achieved its objective a far less time than is calculated by the
numbers used. Third, he does not differentiate a substantive judicial challenge to a rule
that was issued substantially as the committee agreed from either those instances in which
the agency itself significantly changed the rule after the committee reached consensus and
those petitions for review that were filed while the petitioner and EPA worked out minor
details. Finally, the proponents of negotiated rulemaking also envisioned benefits beyond
the savings of time and judicial review; rather, they were in many instances seen as derived
from the other benefits. His methodology does not consider these other values . Properly
understood negotiated rulemaking has been remarkably successful in fulfilling its promise .
In particular, EPAs experience has been that reg neg has cut the time for rulemaking by a third, knocking a
full year off the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the
parties agree not to challenge it has ever been the subject of a substantive judicial review even though they tend to be far more controversial
and complex than average rules. And, finally, the participants and those otherwise affected by rules find a range of values in negotiated
rulemakings than those developed traditionally.33
we believe,
The studies summarized here go beyond these limited measures of success and provide a more
textured picture of regulatory negotiation. Along virtually every important qualitative
dimension, all participants in this studywhether business, environmental, or government
reacted more favorably to their experience with negotiated rules than do participants of
conventional rulemaking. Contrary to the critics expectations, Kerwin and Langbein found that negotiation of rules
reduced conflict between the regulator and regulated entities, and it was no less fair to regulated entities
than conventional rulemaking.11 The data contradict claims that regulatory negotiation abrogates an agencys responsibility to
implement laws written by Congress; indeed, the process may better enable the agency to fulfill that role Regulatory negotiation
clearly emerges, moreover, as a superior process for generating information, facilitating
learning, and building trust.13 Most significantly, consensus-based negotiation increases
legitimacy, defined as the acceptability of the regulation to those involved in its
development. 14 This legitimacy benefit, which was observed independently of the types of
rules chosen for conventional versus negotiated rulemaking, and independently of
differences among the participants, including their affiliation,15 is no small
accomplishment and we argue that, in any event, it is more important than reducing transaction costs
***AFF***
2AC Stuff
2AC Block
1. CP cant solve any of the case:
<insert solvency deficits and specific cards OR read the generic Williams card>
2. Reg negs are an epic failinvolving the public results in a stacked regulatory committee,
violence, and mass chaos
Williams 12
(Williams, T. The Battle Over A North Carolina Beach Continues, Audubon Magazine, September-October 2012.
http://www.audubonmagazine.org/articles/conservation/battle-over-north-carolina-beach-continues//ghs-kw)
Meanwhile, the
3. AND, process CPs are a voting issuesteals AFF ground by taking the entirety of the
1AC and kills topic educationwe dont learn about oceans if we debate about which
regulatory process is better.
4. AND, the AFFs new conventional rulemaking processes are better than reg negssolves
the net benefit and doesnt link to your offense
Siegler 97
(Ellen Siegler is a Senior Attorney at the American Petroleum Institute (API). The API has participated in numerous reg negs. Sieler, E.
Regulatory Negotiations and Other Rulemaking Processes: Strengths and Weaknesses From and Industry Viewpoint, Duke Law
Journal, Vol 46, 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1008&context=dlj//ghs-kw)
From API's standpoint,
This
API
has been involved in this "improved traditional rulemaking" process in connection with a
number of Clean Air Act regulations over the past several years. The process works as follows. In
advance of a regulation's proposal date, API develops data and analyses, and it
recommends and discusses regulatory approaches with the agency staff in individual
meetings. Sometimes the data used will have been generated jointly by EPA and the industry . After
initial meetings, API may generate additional data, analyses, and proposals in response to
comments and questions from EPA representatives, who will have performed their own
analyses of the relevant data. This process may continue after a rule has been proposed and even after promulgation if API has initiated
litigation. The content of any industry-EPA meetings is recorded in written summaries and is available as part of the public
record. EPA, API and others have used this procedure effectively in recent years in three rules EPA has
process can be an efficient way to develop a regulation if the regulation is not of broad applicability and is not particularly controversial.
promulgated pursuant to section 112(d) of the Clean Air Act.' These rules are designed to restrict emissions of hazardous air pollutants from
refineries,29 marine loading operations, 0 and gasoline distribution facilities.3' This process involves more uncertainty than does a reg neg. The
agency does not make a commitment that a rule will not change significantly before its proposal; changes may be
made for a variety of reasons, such as in response to concerns raised by other interested parties with EPA staff. There is also a
greater chance that the proposed rule may change between proposal and promulgation, and a corresponding increased possibility of litigation.
Uncertainty also stems from EPA control over the process itself. As
MACT
document was completed and made publicly available for informal comment in 1996,45 and it has served as a
useful basis for discussion. It summarized available data,46 presented some tentative conclusion s with
respect to control options,47 and identified a number of issues needing additional data and further consideration.48 While API retains its
general concerns with respect to the Presumptive MACT process described above, it has been satisfied with the process in
connection with the Refinery MACT II rule. EPA staff has been available to discuss
relevant issues with API in meetings and conference calls, often with the participation of state
representatives. The Presumptive MACT document does not appear to have formed the basis of any final requirement of which API is
aware at this time. As the experiences described above demonstrate, the evolving traditional
rulemaking process can, given the right circumstances, confer many of the benefits of a
reg neg without the disadvantages of a reg neg. API can discuss issues with EPA staff to
develop sound, and even creative, regulatory approaches. EPA remains free to meet with
other interested parties as well, and EPA can invite some or all interested parties to meet
together if it decides such a meeting would be useful.
5. Perm do the CPeven if Congress doesnt mandate reg negs, agencies do it anyways due
to federal oversight
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962//ghs-kw)
The most fundamental conclusion of this article is one that is the least likely to gene rate much controversy: that
pressure in the
form of legislative and judicial oversight of agencies has caused agencies to react by
adopting negotiation-based strategies to preserve regulatory authority . The duress under
which agencies have operated has varied greatly throughout the last two decades, and also among the different
agencies. EPA seems to have generated the most controversy, but at the same time, pollution
control remains a salient issue for most Americans. Threats to clean air and water seem much more visceral to
Americans than threats to biodiversity. This has possibly served to keep the forces that would otherwise eviscerate EPA under control.
indeed come into full conflict with the ESA. These differences have placed the ESA and the Service on more tenuous
ground, and caused the Service to be more open than EPA in soliciting and accepting negotiable proposals under the reinvention rubric. The result
has indeed been hundreds of HCPs, but only several dozen Project XL agreements. An
The
terms of negotiated agreements are also deeply affected by enforceability issues. In the case of the
pollution control statutes, monitoring devices have made the EPA's enforcement job considerably easier. In the case of the ESA, the Service lacks
access to private property where oftentimes the Service is unaware of endangered and threatened species, which can thus be taken with very little
risk of detection. This has also made the Service more generous in negotiating with landowners. To some extent, the negotiated agreement itself
can ameliorate enforcement problems, but a severe enough of an enforcement problem can not only defeat the negotiation process but also
undermine the goals of the statute. The Service's SSSU problem may be ameliorated by HCPs, but in some cases, landowners feel no need to
even negotiate with the Service. The SSSU problem is to some extent unavoidable, but is substantial part a product of the chronic underfunding
of the Service, particularly with respect to enforcement. The time has come for GOP Congressional hostility towards the Service and the ESA to
abate enough to at least recognize the need for law and order with respect to endangered and threatened species.
6. AND, double bindeither perm do the CP solves or the CP causes more conflictmeans
a consensus cant be reached and the CP doesnt result in the plan
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
Over the years, advocates of negotiated rulemaking consistently claimed that the procedure would eliminate subsequent litigation filed
challenging administrative rules.11,1 Yet until I undertook my research, no one had sought to assess these claims by collecting comprehensive
data on court filings for negotiated and conventional rules. Having collected this data for the EPA. I find that six
rules and it has failed to reduce both the number and intensity of these challenges.
A. Avoiding
Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those
who were present at the creation of reg-neg sought neither expedition nor a shield against litigation." Yet negotiation has long been offered, even
in the early years, as an alternative that would reduce the perceived adversarial relationship between business and government. Former Secretary
of Labor John Dunlop initiated interest in negotiated rulemaking in the 1970s by calling attention to several problems with government
regulation, one of which was "the legal game-playing between the regulatees and the regulators.'' According to Dunlop, typically the "regulatory
agency promulgates a regulation; the regulatees challenge it in court; if they lose, their lawyers may seek to find another ground for
administrative or judicial challenge." He urged regulators to involve affected parties in the development of new rules so as to reduce the
contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. Philip Harter himself, in his original article on
negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" regulatory process: Negotiations may reduce
judicial challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in
its development. Indeed, because the rule would reflect the agreement of the parties, even the most vocal constituencies should support the rule.
'His abstract prediction finds support in experience in analogous contexts. For example, there
for proposing Agency rules that would permit all participants a face-to-face rule in decisionmaking.1^4 As one can plainly see. the aim of
avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and EPA's decision to
launch its regulatory negotiation project. Admittedly, over
court records in both cases show that petitioners also challenged the very rules which were
developed through negotiated rulemaking. Although those who advocate negotiated rulemaking have created some
ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged as was the
equipment leaks portion of the HON rule which was developed through negotiated
rulemaking.17U> Finally. Harter claims that I fail to distinguish '"substantive challenges" from other kind of challenges, and that
negotiated rules have been "remarkably resistant" to such substantive challenges.'-11 Since he never defines what he means by a "'substantive
challenge," it not possible to test or respond to his claim fully. Once again, Harters approach may well be understandable as a form of advocacy,
but it is unacceptable as a basis for empirical analysis of negotiated rulemaking.1,141 If, in claiming that 1 fail to distinguish between
"substantive" and other types of challenges, Harter means to imply that I fail to report that most of the challenges to negotiated rules were settled
out of court, then again a casual reading of Assessing Consensus is enough to show that he is mistaken.ls- Harter notes that several of the
challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I already note this in Assessing
Consensus.^3, In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision." the rest having
been voluntarily dismissed by the parties.1S4 I also reportand this is most crucialthat most petitions for review of EPA rules are voluntarily
dismissed by the parties. Indeed, settlement is more common in litigation challenging EPA rules than with other litigation. As I report in an earlier
study cited in Assessing Consensus, "(the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals . . . and
substantially more than the rate for all administrative appeals." Organizations filing suits challenging EPA rules often do so to preserve the
opportunity to work out additional changes in the rule, aware that the underlying environmental statutes authorizing judicial review require such
suits to be filed, if at all, within a few months of the promulgation of the final rule.187 For many organizations filing petitions for review of EPA
rules, the petition simply signals the beginning of a new round of working out the details of the rule with the agency, Industry and environmental
groups frequently treat litigation as a continuation of the rulemaking process, albeit with a smaller number of participants. Thus when Harter
suggests that negotiated rulemaking has spared EPA highly protracted litigation because many of the challenges to these rules were eventually
withdrawn, he is actually describing the normal pattern of challenges Lo EPA. As I report in Assessing Consensus: For all challenges to EPA rules
filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement
discussions typically follow the filing of challenges to any EPA rule. In the aggregate, negotiated rulemaking has not generated any substantial
be virtually the same as litigation against conventional rules along every dimension, except
that negotiated rules are challenged at a higher rate .'1'0 A single rule can, of course, be
challenged by more than one organization. The data reveal not only that negotiated rules
are challenged at a higher rate, but also that each challenge involves on average a
somewhat larger number of petitioners . As Table 2 shows, the average number of petitions filed against negotiated rules
is actually somewhat higher than the average number of petitions in challenges to conventional rules overall (3.7 petitions per challenged
negotiated rule versus 3.0 for challenged conventional rules).'91 The rate at which these challenges eventuality reach a court for decision is about
the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
more generally in all challenges lo EPA rules.19-7- The
As I explain in Assessing Consensus, the failure of negotiated rulemaking to live up to expectations is in part
explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. It
is
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can
even engender new conflicts. As we have seen, consensus is not always attainable, and even when it is. it may only temporarily
hide underlying conflicts.1 Negotiated rulemaking also creates new sources of conflict that do not
exist with other methods of policy making .19''1 Conflicts can arise over the selection of
participants in the negotiations, the meaning of agreements that are reached, and whether
the final rule is consistent with those agreements. Disagreements can even arise about the
implications of silence in the agreement over particular terms or issues. None of these
additional kinds of conflict arise in the absence of negotiated rulemaking. A recent negotiated
rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new
sources of conflict. HUD had originally named four public housing organizations to serve on
negotiated rulemaking committees for regulations addressing subsidies and capital funds.
After the housing organizations subsequently filed a petition against the agency over a
separate matter, HUD officials unilaterally declared that the organizations could no longer
bargain with the agency in good faith and removed them from the negotiated rulemaking
committees.-"" The housing groups filed for a court order reversing their removal from the
committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition,'01 HUD
eventually capitulated and reinstated the organizations as members of the negotiated
rulemaking committees, but the experience demonstrates a profound new source of
litigated conflict that, ironically, is found only in the very process that was intended to
reduce litigation.
Theory
No Solvency
Generic
Generic
Reg negs are an epic failinvolving the public results in a stacked regulatory committee,
violence, and mass chaos
Williams 12
(Williams, T. The Battle Over A North Carolina Beach Continues, Audubon Magazine, September-October 2012.
http://www.audubonmagazine.org/articles/conservation/battle-over-north-carolina-beach-continues//ghs-kw)
Meanwhile, the
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, Duke Law Journal, Volume
46, No. 6. 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj//ghs-kw)
example, that in some cases negotiated rulemaking did not cause litigation, but that litigation came about because of unclear or ineffectual
statutes. They might also argue that delays have not been caused by the negotiations themselveswhich have sometimes been concluded over
several months' timebut from delays within the agency after the negotiations have ended. Whatever the merits of these claims, such attempts to
deflect the responsibility for litigation or time delays away from the negotiated rulemaking process ultimately miss the point. Although there is
good reason to think that negotiated rulemaking does create additional conflicts in the administrative process, the underlying issue to which my
Despite
the many hopes for negotiated rulemaking, it has shown itself incapable of preventing the
conflict that leads to regulatory delays and petitions for review.
analysis speaks is not whether negotiated rulemaking causes lawsuits or time delays. Rather, the issue is whether it prevents them.
Case Specific
Aquaculture
Group Participation Creates Bias Decisions and Difficulty- Only Congress Ensures
Bargaining With Group Interests
Grimes, 01
(Sheperd R. Grimes, Attorney-Advisor at National Oceanic and Atmosphereic Administration, Office of General Counsel, 2001, THE
FEDERAL REGIONAL FISHERY MANAGEMENT COUNCILS: A NEGOTIATED RULEMAKING APPROACH TO FISHERIES
MANAGEMENT, Pg. 193, http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_187.pdf) AJ
Substantially affected interests should have their voting membership on the Councils greatly
reduced if not eliminated entirely, and in attempt to mitigate for lost representation, such
interests should also have their nonvoting membership increased. Fisheries management is a difficult process that
should be based largely on science and technology determining what must be done to
promote the long term health and viability of the nation's fishery resources. This would be
more efficiently accomplished by experienced, technically competent and objective
personnel that are more insulated from the desires of special interests who seek to exploit
the resource. Admittedly, affected persons are useful in helping to make allocation decisions, and their participation as nonvoting
members would still allow them to contribute to such decisions without providing them the opportunity to determine quotas and other decisions
that are more science or technology based.
decisions be made, and in order to make the best decisions under complicated and
politically tense circumstances, decision makers need to be as objective as possible. Although
some may argue that agencies are not as objective as they are given credit for being, i t is difficult to imagine an agency
being less objective than a group of regulated persons who represent only a portion of the
population, many of whom make their living through the exploitation of a resource that
they are entrusted with regulating. It seems to be a shirking of regulatory responsibility to
allow regulated interests to have such significant input, if not effective control of the
regulatory process. While it is apparent that resource users should have some input into the regulatory process to ensure that it
accounts for their well being and that regulations effectively regulate their activity, it should not be at such a high level. Special interests should
still retain some representation on the Councils to champion their views, and may still avail themselves of the traditional informal means of
special interest influence with which they have been so successful historically. In fisheries management, all regulations are subject to the approval
of the Secretary of Commerce, who is appointed by the President, and is to some extent politically accountable 0 for agency actions. In fact, some
might argue that the influence of presidential political oversight extends much further down the chain of command. Further,
whose members are certainly politically accountable,
budgetary process
Congress ,
some level of significant accountability that is sufficient to protect the legitimate interests
of affected persons without forcing the agency to engage
exchange for concessions from special interests with a strangle hold on the regulatory process.
works well when there is a small number of interested parties, and the parties are easy to
identify. This Is not the case with regard to aquaculture. The aquaculture industry is very
large and diverse . It would be difficult for us to identify everyone who should be
represented in a negotiated rulemaking. In addition, there are many parties outside aquaculture
that would have a substantial interest in such a rulemaking. In our view, the number of people who would
need to participate in a negotiated rulemaking would be too large and would suggest that negotiated rulemaking is not appropriate.
Furthermore, a negotiated rulemaking would be expensive, and APHIS does not have adequate funds.
Therefore, we have concluded that it would not be appropriate to pursue an aquaculture
negotiated rulemaking . We have not, however, decided whether to pursue aquaculture rulemaking by other means. Before we
make that decision, we want to have as much information as possible from all interested persons,
and we want to provide the aquaculture industries and other interested persons with as
much opportunity as possible to discuss with us and inform us regarding the relevant
issues. Therefore, we are holding a series of public meetings. Public meetings allow anyone who is interested-industry representatives, producers, consumers, and others--to present their views and to exchange information among themselves and with
APHIS. There
are no set agendas for the meetings. Any issues and concerns related to
aquaculture and possible APHIS regulatory action can be discussed. However, there are three specific
issues on which we would like more information. These are issues that the people and organizations who commented on our ANPR either did not
address or were unclear about. Specifically, if APHIS does propose regulations: (1) Should our program be mandatory or voluntary; (2) should we
cover shell fish; and (3) should we cover ornamental fin fish? Information elicited at the meetings could result in a new APHIS regulatory
program, or in changes to aquaculture-
Experience
Reg negs faillack of experience leads to mass confusion
Ryan 01
(Clare M. Ryan holds a B.S. Environmental Science, Western Washington University, a M.S., Natural Resource Policy and
Administration, University of Michigan, and a PhD, Natural Resource and Environmental Policy, University of Michigan. Clare M. Ryan
is the Director of the Program on the Environment, and also a Professor of Environmental and Natural Resource Policy at the School of
Environmental and Forest Sciences. She has adjunct faculty appointments in the Daniel J. Evans School of Public Affairs, the School of
Marine and Environmental Affairs, and the School of Law. Her research and teaching focuses on applications of policy formation and
implementation, collaborative governance, and urban ecology theories to the field of natural resource management. Recently, she
completed research projects and publications examining best practices in National Environmental Policy Act (NEPA) implementation;
use of best available science in regulation development; and institutional analyses of collaborative watershed planning groups. Prior to
joining the University of Washington, Dr. Ryan worked as an environmental scientist and regulatory specialist for state (Washington
Department of Ecology) and federal (U.S. Environmental Protection Agency) resource management agencies. Ryan, C. M. Leadership in
Collaborative Policy-Making: An Analysis of Agency Roles in Regulatory Negotiations, Policy Sciences, Volume 34, Issue 3-4, pp 221245, December 2001. http://link.springer.com/article/10.1023%2FA%3A1012655400344//ghs-kw)
Despite enthusiastic encouragement from upper management to initiate and participate in regulatory negotiation processes,
at times EPA representatives were not sure how to behave in a regulatory negotiation setting .
Because of this uncertainty, many EPA participants appeared to be entering into and conducting
negotiations with a high degree of confusion regarding what their role in the process
should be, which in turn led to high levels of frustration on the part of non-agency
participants.
participants would not play any definable role at all. One participant
expressed his frustration with EPA in a recent regulatory negotiation process: The agency didn't participate, and it
turned into just a wallowing around various issues and people posturing. You see people
arguing about whether a big rock is faster than a small rock. Such reactions to the process
do not bode well for the future, if EPA or other agencies wish to continue to sponsor successful
regulatory negotiations or other collaborative processes. EPA could more effectively lead and participate in regulatory negotiations
if the agency staff and other participants had a clearer idea about the appropriate roles for the agency and other participants involved in the
negotiations. One dilemma presented by increasing use of the technique is that the
in a
regulatory negotiation process, what the agency is to do and what participants expect of it
is less clearly defined and understood. Consequently, there has been a great deal of confusion
regarding the appropriate role for the agency and other participants in the process.
Regulatory negotiation is a process in which the agency is in an almost constant dialogue and interaction with outside parties. In many instances,
a long term relationship is established, due to the frequent meetings and involvement of outside interests starting very early in the process. As a
result,
regulatory negotiation requires a wide array of different skills and procedures than
traditional rulemaking. It also requires that the sponsoring agency play multiple, and in
many cases, new roles throughout the process.
Industry
Reg negs failterrible for industry
Siegler 97
(Ellen Siegler is a Senior Attorney at the American Petroleum Institute (API). The API has participated in numerous reg negs. Sieler, E.
Regulatory Negotiations and Other Rulemaking Processes: Strengths and Weaknesses From and Industry Viewpoint, Duke Law
Journal, Vol 46, 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1008&context=dlj//ghs-kw)
A reg neg is a cumbersome process for everyone involved. It is particularly complicated for a trade association,
however, because several negotiations are conducted simultaneously during the reg neg process. At API,
decisions on regulatory issues are made by a committee process; committees are composed
of representatives of member companies who, it should be noted, are competitors. In all
regulatory matters, members negotiate in committees; they often must then report the results of
the negotiations to, and have them approved by, committees at their respective companies
before they can agree on an API consensus position. This type of intra-association negotiation is
more intense in a reg neg than in a traditional rulemaking because member companies
realize that if the reg neg is successful, the trade association will agree to not litigate if the
agency promulgates a rule consistent with the agreement reached! Because the stakes are
so high for the industry, tentative commitments made in a reg neg require a higher level of
ratification. Negotiations conducted on behalf of a trade association in a reg neg are also
complicated by the frequent need for those representing the organization in the reg neg to
check back with committee members before responding to proposals or counter-proposals
made by others at the reg neg table. While official representatives are given some latitude, there may
be significant limits placed on their ability to negotiate because proposals affect
competitors within the trade association differently. Standards that one company can easily
achieve (for example, because the company has controls already in place as a result of stringent state requirements) may be very
expensive for another company. In a highly competitive industry where profit margins are
low, like the petroleum refining industry, these differences can significantly impact a company's
fortunes. A second sphere of negotiations exists when several different industries are
involved in the reg neg. In the equipment leaks reg neg, the chemical industry and the petroleum industry had to
negotiate on some issues because certain control requirements are easier to achieve in chemical plants than in refineries. In the fuels reg neg,
there were even greater differences among industry participants. For example, refiners sought
the greatest amount of flexibility in fuels requirements; but too much flexibility presented difficulties
for the automobile manufacturers, who would design engines to use the new fuels. Finally, of course, the reg neg involves
intense negotiations at the formal reg neg table, at which representatives of state and
federal agencies, public interest environmental groups, and perhaps others, join industry
representatives. Building enough trust among these groups to reach an agreement is a long
and difficult undertaking. The complex and cumbersome nature of the reg neg process is one reason why API does not
greet with enthusiasm invitations to participate in a reg neg.
Inefficient
Negotiated Rule-Making Is Inefficient- Too Many Interest Groups
Grimes, 01
(Sheperd R. Grimes, Attorney-Advisor at National Oceanic and Atmosphereic Administration, Office of General Counsel, 2001, THE
FEDERAL REGIONAL FISHERY MANAGEMENT COUNCILS: A NEGOTIATED RULEMAKING APPROACH TO FISHERIES
MANAGEMENT, Pg. 193, http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_187.pdf) AJ
Finally, if one assumes that Coglianese's findings are accurate and equally applicable to the regional councils, that is, that rules promulgated by
the Councils do not save time or result in fewer challenges than they would if affected interests were not allowed voting membership, there
would appear to be no benefit to utilizing the current structure. Given the realities of more modem issue
networks"' and interest in fisheries manage ment, it is more than likely that his findings hold just as true here. Not only does the
inclusion of such members on the Council require more negotiation and inevitably slow
the rulemaking process, it is doubtful that their representation actually reduces the
number of regulations challenged in court. The days of the recreational/commercial
dichotomy have changed and continue to change as more organized interests begin to form
and realize their stake in the well being of the country's fishery resources .8 2 Why should only
recreational and commercial users be allowed representation? Why are divers, swimmers, and preservationists or other environmentally oriented
interests not represented per se? Given
However,
is unlikely that trying to include all potentially affected interests on the Councils in an
attempt to reduce the number of challenges from excluded interests would succeed. While such
an effort might result in negotiated rules that more accurately reflected what was in the public interest it would not likely result in
fewer challenges from user groups and would very possibly only increase the difficulty in
negotiating rules. Accepting that very little can be done to reduce the number of challenges,
especially from user groups, the only feasible alternative is to eliminate interested parties
from being represented on the Councils in the hope that the rules will at least be more
scientifically founded, better represent the public interest, and the process itself will not be
unnecessarily bogged down by contentious negotiations.
No Consensus
A single outside actor shatters the consensusreg negs fail
Coglianese 97
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, Duke Law Journal, Volume
46, No. 6. 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj//ghs-kw)
2. The Fragility of Consensus. Even
well-placed agency managers, or by OMB, the White House, or Congress, can lead to
modifications that begin the unravelling of a consensus. It only takes one interest group
excluded from the negotiation, or one included but defecting group, to begin unravelling
the consensus from outside government. Any heightened sensitivities created by the
process of reaching a consensus may serve to accelerate the breakdown of consensus. In
practice,
the fact that agencies are embedded within a dynamic political environment makes
like a house of cards, but rather like the addition of an extra room to a house with an unsteady foundation. Negotiated rulemaking adds an early
attempt at consensus-building to a regulatory process designed to make it difficult to sustain interest group bargains.
The existing
regulatory structure in the United States, with its multiple decision makers and avenues of
input, surely contributes to rulemaking time and increases the possibility of litigation, at
least when compared to imagined alternatives lacking these multiple avenues. This
regulatory structure also impedes efforts that depend on consensus by providing multiple
steps at which consensus might break down . We could conceive of ways to fix the inherent fragility of consensus, and
thereby provide conditions for which negotiated rulemaking could succeed, but such efforts would lead to a vastly different administrative
process. From this perspective ,
rulemaking raises
unrealistic expectations about what can be accomplished in a governmental process
characterized by "endless bargaining." In pointing out that the process of rulemaking makes it difficult to sustain a
consensus achieved at the early stages of rulemaking, I do not mean to imply that the rulemaking process is necessarily dysfunctional. On the
contrary, it can be thought highly desirable to have a process that makes it harder for interest group deals to stick. As Peter Strauss has written,
"(t)he embeddedness of the EPA, its focus and its relations with multiple, organizationally superior overseers, gives us practical assurance that it
will not run out of control." This
commentators have examined negotiated rulemaking to see how well the process
accomplishes its stated objectives of increasing the acceptability of rules, improving their
substance, reducing likelihood that affected parties will resist rules or challenge them in
court, and decreasing the amount of time required for promulgation . In particular, Professor Cary Coglianese
Other
performed "an empirical assessment of the impact of negotiated rulemaking on two of its principal goals: reducing overall rulemaking time and decreasing the number
of judicial challenges to agency rules." He assembled and analyzed a dataset of "all negotiated rulemakings across all federal agencies ' in order to assess how well
negotiated rulemaking had achieved these goals. He concluded, to the surprise of many,
capable of limiting the time required to promulgate regulations nor did the process avoid
subsequent litigation of rules more than the regular notice and comment procedures
required by the APA.48 In fact, his results indicated that the Environmental Protection Agency ( EPA ), which
utilized the procedure the most, had not realized any decrease in the time required for
promulgation compared to its notice and comment rules, and had actually seen a higher
rate of litigation of negotiated rules than other significant rules promulgated via notice and
comment alone.49 In explanation of his findings, Professor Coglianese proposes that they may be due to the
fact that for the negotiation process to be successful agencies must both secure and
maintain consensus among parties involved which often proves very difficult. 5"
Furthermore, the problem of consensus is additionally complicated by the multiple
avenues of input and oversight in the regulatory process which increase the likelihood of
changes in policy that alter the previous agreements or negotiations.
Group Participation Creates Bias Decisions and Difficulty- Only Congress Ensures
Bargaining With Group Interests
Grimes, 01
(Sheperd R. Grimes, Attorney-Advisor at National Oceanic and Atmosphereic Administration, Office of General Counsel, 2001, THE
FEDERAL REGIONAL FISHERY MANAGEMENT COUNCILS: A NEGOTIATED RULEMAKING APPROACH TO FISHERIES
MANAGEMENT, Pg. 193, http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_187.pdf) AJ
Substantially affected interests should have their voting membership on the Councils greatly
reduced if not eliminated entirely, and in attempt to mitigate for lost representation, such
interests should also have their nonvoting membership increased. Fisheries management is a difficult process that
should be based largely on science and technology determining what must be done to
promote the long term health and viability of the nation's fishery resources. This would be
more efficiently accomplished by experienced, technically competent and objective
personnel that are more insulated from the desires of special interests who seek to exploit
the resource. Admittedly, affected persons are useful in helping to make allocation decisions, and their participation as nonvoting
members would still allow them to contribute to such decisions without providing them the opportunity to determine quotas and other decisions
that are more science or technology based.
decisions be made, and in order to make the best decisions under complicated and
politically tense circumstances, decision makers need to be as objective as possible. Although
some may argue that agencies are not as objective as they are given credit for being, i t is difficult to imagine an agency
being less objective than a group of regulated persons who represent only a portion of the
population, many of whom make their living through the exploitation of a resource that
they are entrusted with regulating. It seems to be a shirking of regulatory responsibility to
allow regulated interests to have such significant input, if not effective control of the
regulatory process. While it is apparent that resource users should have some input into the regulatory process to ensure that it
accounts for their well being and that regulations effectively regulate their activity, it should not be at such a high level. Special interests should
still retain some representation on the Councils to champion their views, and may still avail themselves of the traditional informal means of
special interest influence with which they have been so successful historically. In fisheries management, all regulations are subject to the approval
of the Secretary of Commerce, who is appointed by the President, and is to some extent politically accountable 0 for agency actions. In fact, some
might argue that the influence of presidential political oversight extends much further down the chain of command. Further,
whose members are certainly politically accountable,
budgetary process
Congress ,
some level of significant accountability that is sufficient to protect the legitimate interests
of affected persons without forcing the agency to engage
exchange for concessions from special interests with a strangle hold on the regulatory process.
Overturn
Court unpopularity and personal interests block solvencylack of legal binding means
that the CP can be overturned
Harter 96
(Philip J. Harter served as the Director of the Program on Consensus, Democracy and Governance at Vermont Law School He was a
member of the Honors Program of the US Department of Transportation and then practiced law with the firm of Shea & Gardner in
Washington, DC. He served as senior staff attorney for the Administrative Conference of the United States from 1975 to 1977; in 1976 he
was co-chair of President Ford's Task Force on the Revision of OSHA Safety Standards. Professor Harter served as chair of the Section
of Administrative Law and Regulatory Practice of the American Bar Association in 1995-1996 and was co-chair of the ABA's Task Force
on Regulatory Reform in which capacity he represented the ABA in the regulatory reform debates before Congress. He was the official
observer for the Section of Administrative Law and Regulatory Practice to the Uniform Mediation Act, and the reporter for multi-section
committee that developed Standards for Ombuds which were adopted by the ABA. He is the founding chair of the Committee on
Collaborative Governance of the Administrative Law Section. He was formerly the Chair of the Environment and Public Policy
Committee and a member of the nominating committee of the Section of Dispute Resolution of the ABA. The United States Court of
Appeals for the District of Columbia Circuit appointed him as a mediator to assist the court in the resolution of its cases. His awards
include the Federal Bar Association's prestigious Gellhorn Award for "improving the fairness and efficiency of the administrative
process" and the Center for Public Resources' for "outstanding achievement for excellence and innovation in alternative dispute
resolution." He has taught Administrative Law for 30 years at The American University, the University of Maryland, and Vermont Law
School. He has taught Public Policy Dispute Resolution for 17 years at Vermont Law School. He has taught at the University of Paris II,
Humboldt University in Berlin, and the University of the Western Cape in Cape Town. First Judicial Review of Reg Neg a
Disappointment. Published Fall 1996 @ http://apps.americanbar.org/adminlaw/news/vol22no1/harter.html) Deng
Negotiated rulemaking, or "reg-neg" for short (based on an earlier name that did not last), has been around for at least fifteen years. The Administrative Conference
recommended its use in 1982, and almost immediately agencies began using it to address some of their most intractable problems. Congress codified the procedures in
the Negotiated Rulemaking Act of 1990 (5 U.S.C. 581-90); it was used to implement a number of major, complex environmental issues in the Reagan and Bush
administrations; and the Clinton administration has supported its use through Executive Orders and direct encouragement to agencies. Given this history, it has been
rather remarkable that until this spring not a single court discussed the process in the review of a rule developed by reg-neg. The first case to do so came in an opinion
by Judge Richard Posner in USA Group Loan Services, Inc. v. Riley, 82 F.3d 708 (7th Cir. 1996). While the court reaches what is probably the right conclusion, it
displays a remarkable ignorance of the process and provides only a superficial analysis. Although negotiated rulemaking is fully legal and feasible without specific
legislation, Congress enacted the Negotiated Rulemaking Act in part to provide explicit general authorization to use the process so that Congress itself would be less
tempted to write in directives to use it to develop rules when enacting substantive requirements. That goal notwithstanding, the 1992 Amendments to the Higher
Education Act requires the Department of Education to hold a series of regional meetings to obtain public involvement in the development of the proposed regulations
and, before publishing proposed regulations in the Federal Register, to "submit such regulations to a negotiated rulemaking process." 20 U.S.C. 1098a. Although one
section of the statute calls for selecting a committee that reflects the "diversity in the industry," another calls for the participation of the full range of interests,
including students, schools, financial institutions, guarantors, lenders, and secondary markets. The committees that were established reflected the broader scope. The
Department then held a whole series of reg-negs to develop the rules under the Act. As called for by the Act, the agency held public meetings at which the issues were
discussed, then empaneled a number of reg neg committees to address the individual rules. One of them focused on rules for the "servicers" of student loans. They are
the middlemen among the students, banks, and the guarantors of the student loans. The issue in contention centered on the Department's rule that imposed strict
liability on the servicers for violation of a statute, regulation, or contract -- that is, liability would accrue for an innocent mistake in the processing of a loan if the
Department is unable to collect from the student or bank. The court readily found that regulation well within the statute, and indeed largely an expression of existing
common law liability. The servicers also challenged the rule on the procedural ground that the Department violated its procedural duties to use reg neg by negotiating
in bad faith. They contended that the Department repudiated an agreement that was reached in the negotiations as to the nature of the servicers' liability and, moreover,
removed a cap on that liability that was under discussion. The servicers contended there was an agreement as to the latter issue, but the Department disagreed. The
court begins its procedural analysis by characterizing negotiated rulemaking as "a novelty in the administrative process." While that might be an invitation for an
authoritative opinion of first impression, the court did not accept it; as a result, the phrase seems more designed to trivialize the process than any sort of historical
description. Instead of examining the history of reg neg, the ACUS recommendations (which are mentioned in the legislation, not the Negotiated Rulemaking Act), or
the Negotiated Rulemaking Act itself to understand how the process generally works, Judge Posner characterized reg neg as a process that authorizes the agency to
submit draft regulations "to the industry or other groups that are likely to be significantly affected by the regulations." While a scant reading of the Higher Education
Act itself could lead to that narrow conclusion, he ignores the much broader practice, and the one that in fact was followed in this case, in which a concerted outreach
is made to identify the interests that would be affected and to put together a committee reflecting the breadth of those interests. A reg neg committee is not just "the
industry" or any one side of the issue. The process is designed to ensure that the full range of concerns, facts, and issues will be raised while developing the rule -- not
simply commenting on a draft prepared by the agency. Typically, a reg neg committee is able to identify those issues and potential solutions in far greater depth than if
thought that observation moot since even if there were one, the challenger would lose. Thus, that important issue is left for another day and another court. The
challengers asserted that an official of the Department of Education agreed during the negotiations that the Department would abide by any agreement unless there
were compelling reasons to depart, and that they negotiated in bad faith because they did not follow the agreement. The court's response is a curt: "(This) sounds like
an abdication of regulatory authority to the regulated, the full burgeoning of the interest-group state, and the final confirmation of the 'capture' theory of administrative
regulation." The court later observes, "We have doubts about the propriety of the official's promise to abide by a consensus of the regulated industry, but we have no
doubt that the Negotiated Rulemaking Act did not make the promise enforceable." Given the diversity of the membership of the committee, the issue is far more
complex and difficult that this flippant assertion. When a reg neg committee reaches agreement, the agency itself concurs in the result. Presumably, this means that the
agency official responsible for issuing the rule has agreed to its proposal and, as reflected in the typical groundrules, agrees to publish it as the basis of a notice of
proposed rulemaking. Indeed, the Negotiated Rulemaking Act explicitly requires the agency to consider whether it is prepared to do so "to the maximum extent
possible consistent with the legal obligations of the agency." 5 U.S.C. 583(a)(7). Thus, it is not the committee that is imposing its will on an involuntary agency, but
confuses the more difficult constitutional issue that needs addressing -- the extent to which an officer of the
United States can commit or bind an agency to a particular policy. The court was troubled, as well it ought, by the notion that a commitment to adhere to the original
varying levels of detail depending on the circumstances. It would be interesting to know just how much explanation the agency should give when it is abandoning an
agreement reached in a reg neg independent of any comments received. Alas, a missed opportunity and a superficial approach by the court. The procedure aside,
there seems little doubt that the official can indeed change his or her mind as to the policy
to be followed and is not legally bound by the agreement. The enforcement is political, not
legal. If the agency repudiates agreements too often, then -- as in any other situation -- its word will not be worth much, and folks will not likely reach agreements
with it in the future. As to the disagreement concerning whether or not there was a consensus reached on certain issues, two points should be made. The first is that the
court is clearly right in dismissing any challenge to a rule for failure to implement offers that were made during the negotiations. Second, the parties need to make
the court's lack of understanding only confuses the ultimate issues and makes the ultimate task more difficult.
Public Interest
Reg Neg failsinability to accommodate public interests, limited testing and no incentive
to cooperate
Stewart 1
(Richard B. Stewart is a Professor of Law @ New York University School of Law. This article was presented at Capital University Law
School Symposium on Second Generation Environmental Policy and the Law. ARTICLE: A NEW GENERATION OF
ENVIRONMENTAL REGULATION? Published 2001. Print.) Deng
For all its potential benefits, there
have been comparatively successful on those occasions on which it has been used , it has been used comparatively few times.
Professor Coglianese's research indicates that negotiated rule-making was used by federal agencies in less than one tenth of one percent of
regulations adopted from 1983 to 1996. n289 While this does not prove that the process lacks utility, especially given that many of the regulations
issued were undoubtedly routine in character, it suggests that the scope for its success-ful use is limited. Negotiated
rulemaking
has been criticized as producing results that accommodate the priorities of organized
interest groups rather than serving the public interest. n290 Proponents argue that the public will be represented
by an appropriate group or alliance of interest groups, and that EPA retains its role as the guardian of public interest. n291 It may, however,
not be practicable to represent all interested stakeholders and the diverse interests of the
public adequately in a small group setting. Also, many relevant interests among the public may not be organized
sufficiently to participate effectively. Pro-fessor William Funk argues that the public interest may transcend the discrete interests of particular
groups. Although the agency is charged with representing the overall public interest, the claims that in dynamic negotiations, it must "bargain and
trade its 'interests' (the public interest) in the same way the other participants may trade their interests." n292 Additionally, negotiated
rulemaking may lead to results that satisfy the interests at the table but that are of
questionable legality. "Hardwiring" the rule through negotiations behind closed doors
arguably subverts the notice and comment rulemaking process and undermines agency
independence and ac-countability. Professor Funk was a participant in one of EPA's earliest efforts at regulatory negotiation,
the air pollution emission standards for wood stoves. He concludes that the rule that resulted from the negotiations was beyond the scope of EPA's
authority and did not fall within the statutory mandate. n293 Funk further argues that the reg neg
Harter points out that there will be little incentive to par-ticipate in regulatory negotiations
if non- participants can simply sit out the negotiations and let others do the work, only to
challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge Wald
argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how
many parties agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She
rejects the idea that everyone must either demand to participate or trust a participating interest group to represent his or her interests. Echoing
some of Professor Funk's concerns, Judge Wald argues that, as only a limited num-ber of groups can take part in the negotiations, they should not
be allowed to bind everyone. n299 Thus, the court should apply the same scope of review and criteria of legality to every rule, regardless of
whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This appears to be the current law. In
conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders agree that
negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible;
when there is no easy "objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that
negotiated rulemaking has a use-ful yet limited role. This experience confirms that the European approach to environmental contracting cannot be
transplanted to the United States, and that the negotiated rulemaking hybrid can make only a limited contribution to improvement of the
command environmental regulatory system
Renewables
Agency interests and low probability of cooperation overwhelm attempts to meet public
interest---internal link turns the net benefit
Funk 97
(William Funk is a Professor of Law, Lewis and Clark Law School. B.A. 1967, Harvard College; J.D. 1973, Columbia University.
BARGAINING TOWARD THE NEW MILLENNIUM: REGULATORY NEGOTIATION AND THE SUBVERSION OF THE PUBLIC
INTEREST Published April 1997, Print. Accessed @
http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T20294998790&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T20294998794&ci
sb=22_T20294998793&treeMax=true&treeWidth=0&csi=7336&docNo=5) Deng
D. The Search for the Public Interest Underlying the APA and all other statutes directing or authorizing agencies to adopt regulations is the notion that the agency will
be acting in the public interest. In some cases the public interest may be largely undefined, as in the charge to the Federal Trade Commission to protect against "unfair
methods of competition" n192 or to the Federal Communications Commission to regulate the broadcast spectrum as required by the "public convenience, interest, or
necessity." n193 In other cases it may be relatively better defined, as when a statute requires an agency to set an air emission standard as "the best system of emission
reduction which (taking into account the cost of achieving such reduction (*1383) and any nonair quality health and environmental impact and energy requirements)
the Administrator determines has been adequately demonstrated." n194 Nevertheless, in all cases much is left to the discretion and judgment of the agency to
determine how to best achieve the statutory goals. Congress presumes that the exercise of that discretion and judgment will aim to further the public interest. Today we
might interpret the oath required of all officers to support the Constitution n195 as nothing less than an oath to serve the public interest pursuant to the statutes and
Constitution of the United States. What is meant by the public interest is not always clear. I mean it to be the best interests of the nation, the people, the body politic.
So expressed, it is clear that determining the public interest is not a task one achieves; it is a goal one strives for. It encompasses the ideal notions of a James Landis
n196 as well as the more modern notions of civic republicans. n197 Whatever it is, it is to be distinguished from the public choice or interest representation models of
the administrative state. n198 Public choice theory arose out of studies of legislative and administrative processes to explain why the outcomes of those processes did
not seem to achieve the public interest, but rather to reflect the capture of government processes by special interests. n199 The answer was that legislators and
bureaucrats would act in their own self-interest (to get reelected or to enhance their agency's power and responsibility) and therefore would ally themselves with
whatever special interest would further that end. n200 In this sense, public choice theory is a descriptive, not a normative (*1384) theory, although it has been used to
argue for deregulation on the grounds that the unregulated market will be more efficient than government regulation and at least as moral. n201 The conflict between
public choice theory and a public interest concept of regulation is obvious. Interest representation theory, on the other hand, is both descriptive and normative. It starts
from the proposition that there is no "objective "public interest,'" no "ascertainable "national welfare' as a meaningful guide to administrative decision." n202 This
assumption implies that agencies are adrift in their discretion, and the means traditionally employed to control their discretion are merely illusory. To supplant those
traditional means of control, the interest representation model suggests that organized interests can themselves constrain agency discretion through expansive
participation in agency processes. n203 The courts play an important role in administrative decisionmaking by protecting all parties' rights to adequate participation
and directing agencies to attend to the interests of those participating. Interest representation theory implies that the true metal of regulation will emerge out of the fire
of clashing interests. The agency is merely the filter through which this process operates. The relationship between interest representation theory and the theory of
negotiated rulemaking is obvious. How interest representation theory could lead to public choice theory also seems obvious: the clash of interests results in one
interest capturing the regulatory process. It is not the place of this Article to address the descriptive validity of either public choice or interest representation models of
the administrative state. This Article does maintain, however, that modern regulatory systems and statutes do not reflect a conscious embrace of the cynicism of public
choice theory or an endorsement of the normative values of interest representation theory. This conclusion with respect to public choice theory should be self evident.
If public choice theory were both accepted and consciously acknowledged by lawmakers it would destroy any legitimacy (*1385) their laws would otherwise have.
This conclusion with respect to interest representation is less obvious. Many laws besides the Negotiated Rulemaking Act encourage and support methods to provide a
voice for affected interests in developing rules that affect them. The APA's notice-and-comment requirement is an obvious beginning; the National Environmental
Policy Act's notice-and-comment procedure for environmental impact statements is another. n204 The various substantive statutes including hybrid rulemaking
provisions are other examples. n205 Moreover, the generic requirements beyond the APA for rulemakings of various types, such as the Regulatory Flexibility Act,
n206 the Unfunded Mandates Reform Act, n207 and the Paperwork Reduction Act n208 are still other examples. Nevertheless, an inspection of all these laws rebuts
any suggestion that these enhanced public participation requirements substitute for the agency's responsibility to engage in reasoned decisionmaking in search of the
public interest. For example, environmental impact statement requirements are consistently described as intended to improve the agency's decisionmaking. n209 The
substantive statutes with hybrid procedures likewise are laden with requirements to assure the agency is making a rational decision, not just adding up the votes of the
interested parties. n210 And the primary focus of generic rulemaking requirements beyond the APA is cost/benefit or risk assessment analysis to assure that the rules
adopted are plainly (*1386) adapted to their purpose - the public interest. n211 Thus, while modern rulemaking seeks full participation by interested persons, the
agency still determines the public interest. Modern rulemaking has not substituted interest representation theory for traditional notions of administrative rulemaking.
negotiated rulemaking. After all, the process has been carefully crafted to fit within
traditional rulemaking requirements. Here, again, however, no matter how faithful negotiated
rulemaking may be to the formalities of traditional rulemaking, its effect is to subvert the
principles of that rulemaking. This is reflected once again in Harter's revealing statement that the legitimacy of the
regulation "would lie in the overall agreement of the parties." n212 Note the use of the word "parties." The
rulemaking has "parties" who make the agreement. They make the agreement among and
for themselves. They bargain and deal to achieve their own interests. There is no mention of
the "public." The wisdom and fairness of the rule is equated with the satisfaction of the parties. n213 Public law has been subtly
transformed into private law relationships. Moreover, negotiated rulemaking succeeds if the parties reach consensus. To the extent
that agencies are taught that regulatory negotiation is a process to be used in the place of conventional notice-and-comment rulemaking, agencies learn
that achieving consensus of the parties is the measure of success. The statistics in Professor Coglianese's article
further confirm this lesson - if the consensus is not reached, or if the agency does not abide by the
consensus, the likelihood of lawsuits increases, and the "benefits" of negotiated rulemaking
evaporate. n214 Thus, agencies are influenced to see their role not as serving the public interest,
The same could be said for
but as generating a consensus among the parties to the negotiation. Public choice theory is not resisted; it is
adopted with a vengeance. The effect on the culture and identification of the agency may outlive the particular negotiation. That is, when the negotiation is (*1387)
over, the consensus is obtained, and the rule is promulgated, where is the agency's interest in assuring compliance with the rule, in assuring that the rule continues to
agency does not have the same sense of responsibility for the rule, because it
does not reflect the agency's considered determination as serving the public interest;
instead, it reflects the bargain of the parties. It is the parties' rule, not the agency's.
serve its purposes? The
Perm Stuff
2AC
Perm do both
Perm is key, federal resources key to ensure enough experts for proper rulemaking
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
Ultimately, the
environmentalists approached the District with a proposal that the District fund
an expert for their use. (213) This type of request poses a problem for the agency that is rooted in public regulatory theory. In a
notice and comment rulemaking, agencies expect participants in agency processes to bear their own expenses. The assumption is that a party's
interest in a given issue will cause the party to generate sufficient resources for effective participation. Furthermore, the agency's impartiality can
be questioned if it seems to favor one particular interest group by taking steps to ensure that the group's position is fully articulated. However, a
negotiated rulemaking is quite different from a normal rulemaking proceeding. It emphasizes personal interaction, and thus allows confrontation
of technical questions in a detailed way that a priori cannot occur in a notice and comment rulemaking. Furthermore, because the negotiation
places demands on parties that normal rulemaking does not, some parties invited to participate by the agency may have difficulty marshalling the
necessary resources. These parties can plausibly claim that, because regulatory negotiations place extraordinary demands on participants, the
agency could fairly bear some of the costs involved. Ultimately, the
the environmentalists were convinced that the expert's presentation was critical; as
one stated, the presentation "had a big impact." (216) Finally, as might be expected, the District staff was
somewhere in between. It found the information useful but not central to the negotiation. (217) Whatever these differences of opinion, funding
the technical expert in this case was important for at least one quite different reason. In his presentation, the consultant agreed with certain factual
positions taken by the industry and its experts. (218) For example, the consultant stated he "concur(red) with the observation of the (industry)
representative that the majority of the independent metal finishers will be unable to cope with or understand the technical and monitoring
implications" of the rule as the District then proposed it. (219) The
Perm do the CP
Perm do the CPeven if Congress doesnt mandate reg negs, agencies do it anyways due to
federal oversight
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962//ghs-kw)
The most fundamental conclusion of this article is one that is the least likely to gene rate much controversy: that
pressure in the
form of legislative and judicial oversight of agencies has caused agencies to react by
adopting negotiation-based strategies to preserve regulatory authority . The duress under
which agencies have operated has varied greatly throughout the last two decades, and also among the different
agencies. EPA seems to have generated the most controversy, but at the same time, pollution
control remains a salient issue for most Americans. Threats to clean air and water seem much more visceral to
Americans than threats to biodiversity. This has possibly served to keep the forces that would otherwise eviscerate EPA under control.
The
terms of negotiated agreements are also deeply affected by enforceability issues. In the case of the
pollution control statutes, monitoring devices have made the EPA's enforcement job considerably easier. In the case of the ESA, the Service lacks
access to private property where oftentimes the Service is unaware of endangered and threatened species, which can thus be taken with very little
risk of detection. This has also made the Service more generous in negotiating with landowners. To some extent, the negotiated agreement itself
can ameliorate enforcement problems, but a severe enough of an enforcement problem can not only defeat the negotiation process but also
undermine the goals of the statute. The Service's SSSU problem may be ameliorated by HCPs, but in some cases, landowners feel no need to
even negotiate with the Service. The SSSU problem is to some extent unavoidable, but is substantial part a product of the chronic underfunding
of the Service, particularly with respect to enforcement. The time has come for GOP Congressional hostility towards the Service and the ESA to
abate enough to at least recognize the need for law and order with respect to endangered and threatened species.
1AR
Perm do the CP
Perm do the CPits functionally the same thing
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
Finally, in an attempt to show that reg
AT
CP Solves Better
AT: Delay/Speed
Turnnegotiations take longer; CP fails to solve in time
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
D. The Scale of the Negotiation: Time and Resources 1. Time as a False Indicator An ongoing point of contention in the literature is whether
regulatory negotiation saves time in comparison to traditional rulemaking. Such savings were originally cited as a principal justification for
undertaking the negotiation process. (253) Recently, however, critics have contended that time savings do not occur. (254) Moreover,
the time it takes to develop a regulation remains unclear. In a 1987 article, former EPA Administrator Lee Thomas stated that "as we look back upon our experiences
with negotiated rules so far, they have saved time. Regulatory negotiation shortened our total process on each one of them." The National Performance Review report
on the regulatory process similarly stated that negotiated rulemaking at EPA has saved up to eighteen months compared with conventional rulemaking. Despite this
of 577); the median has been 651, or over one and three quarters years. Of course, a couple of years may seem short compared with the decades that certain notorious
rulemakings sometimes seem to last, or it may seem somewhat long compared with the speed that some might expect of the government in addressing serious public
concerns. What is needed is a standard for comparison, a group of comparable rules developed using conventional notice-and-comment procedures. Any number of
variables may offset the length of the rulemaking process, including the agency promulgating the rule, the complexity of the rule to be issued, and the priority the rule
holds for the agency. Establishing the comparability of two regulations is no easy matter, but Kerwin and Furlong made an initial attempt in their valuable study of the
length of rulemaking at EPA. They compared the time of four negotiated EPA rulemakings with the average time for all EPA rulemakings that entered into the agency's
internal regulatory development management system during fiscal years 1987-1990. The latter group amounted roughly to the most substantial 15 percent of all EPA
rules adopted during this period. In calculating the length of a rulemaking, Kerwin and Furlong relied on internal EPA files to determine the date when each rule
entered into the agency's regulatory development management system and the date when it was finalized. They found that the rules in their study took an average of
3.0 years (1108 days) from start to finish. In contrast, the four negotiated rules initiated during the time period of their study took an average of only 2.1 years (778
days) to complete, a time savings of eleven months. Although Kerwin and Furlong acknowledged that the number of negotiated rules in their study was small, they
interpreted their data to demonstrate that negotiated rulemaking is "more expeditious" than conventional rulemaking. Their analysis underlies the National
difference in time between the date the agency announced its intent to create a negotiated rulemaking committee and the date the agency published its final rule in the
Federal Register. Although this method differs from that used by Kerwin and Furlong in that it relies on published government records instead of internal agency files,
my reliance on published materials turns out to favor time savings for negotiated rules. For example, Federal Register listings yield an average time for the four
negotiated rules m the Kerwin and Furlong study of 1.8 years (647 days), more than four months shorter than the average they report for the same rules. The
difference is likely explained by the considerable amount of preparatory work that goes into deciding whether and how to conduct a negotiated rulemaking, work
which precedes the publication of a notice to establish a negotiation committee. The average time period for all 12 of the negotiated rules promulgated by the EPA is
2.8 years (1013 days). The four negotiated rules in the Kerwin and Furlong study therefore turn out to be rather atypical, taking roughly half as long on average as the
other rules. In contrast to the eleven-month time savings suggested by Kerwin and Furlong, my
rules suggests (at most) little more than three months savings compared with the rules issued in the period studied
by Kerwin and Furlong, a difference which could well be accounted for by choices of measurement. When the EPA's three pending
negotiated rules are added, the time savings between the two procedures disappears
altogether. If we were to assume, for sake of estimation, that the EPA had promulgated all
three pending rules at the end of December 1996, the average time for promulgating
negotiated rules at EPA would increase to 3.1 years (1129 days), three weeks longer than
the average reported by Kerwin and Furlong for all EPA rules. The whole of the available evidence on the time span of EPA's negotiated rules
markedly contrasts with the claims of considerable time savings attributed to negotiated rulemaking. Of course, any comparison of negotiated and conventional rules
may have its limits because the time it takes to develop rules is surely affected by factors other than just the use or nonuse of formal negotiated procedures. Even
though the EPA has conducted the most negotiated rulemakings of any agency, it still has only promulgated 12 rules (and has only three others pending). Yet as I
discuss in Part III.A, it does not appear that these negotiated rules were prone at the outset to demand more of the EPA's time. Moreover, the experience at EPA seems
consistent with the impression of at least one other agency that has completed a number of rules through the negotiated rulemaking process.
The
In addition, it is important to keep in mind that the mere passage of chronological timefrom notice of
concentrated amounts of time on the part of agency and non-agency participants . To borrow a
phrase from Brian Polkinghorn, negotiated rulemaking is a "time compressor." The negotiated rulemaking process contains all the elements of the conventional
procedure, but "in reg-neg all of them are compressed into one preemptive, intense, time consuming negotiated interaction." As an early EPA report on the agency's
experience with negotiated rulemaking described, "EPA managers who have been the Agency's negotiators have devoted far more time to the negotiations m which
they were involved than they ordinarily would spend on a single rulemaking effort."
moreover, EPA staff still must spend the additional time associated with drafting
regulatory language and responding to comments . Even those who are otherwise positively
inclined toward regulatory negotiation acknowledge that the process demands a
considerable amount of time and resources up-front. When negotiated rulemaking compresses
staff time in this way and still ends up taking at least as long as conventional rulemaking,
it is impossible to conclude that it has successfully increased the speed of the regulatory
process.
Reg-negs cant solve time or litigation
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "(t)he malaise of administrative
law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." - He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: We
have grown
accustomed lo rulemaking procedures that take several years to complete at the agency
level and, in the event judicial review is sought, another year or two in the courts. The cost of
participating in such a proceeding for both the agency and the private parties can be staggeringly high.1' For Harter, negotiated rulemaking
provided an alternative that would "reduce the time and cost of developing regulations/*14 He argued that it offered agencies an antidote to "the
traditional battle" of conventional rulemaking.15 In
expectation that negotiated rulemaking would overcome the delays, litigation, and other
adverse consequences associated with conventional rulemaking and would result in rules
more acceptable to the interests affected by agency decisions.- In the years following Harter's article and
ACUS's recommendation, agencies began to experiment with negotiated rulemaking and Congress
began to consider legislation to provide clear authorization for its use. - Legislative debate in Congress,
along with extensive commentary by academics and practitioners, emphasized that negotiated rulemaking would help reduce the delays and
litigation that were thought to dominate the conventional rulemaking process.-3 In the years leading up to the passage of the Negotiated
Rulemaking Act of 1990.
include in my assessment all the negotiated rulemakings completed by EPA during the study
period. Unlike the NPR report, I rely on primary source data on the filings of suits challenging EPA
rules and thus provide an accurate account of litigation filed against both negotiated and
conventional rules. By carefully applying empirical research methods, I find that on average it
has taken EPA about three years to develop a rule, regardless of whether the agency used
negotiated rulemaking or conventional rulemaking procedures.47 The median duration is
also about the same for negotiated and conventional rules.4S Negotiated rulemaking does
seem to make a difference when it comes to litigationhowever, the difference is in the
direction opposite to what has been expected. Negotiated rules are challenged fifty percent
of the time, while other comparable, significant EPA rules are challenged only thirty-five
percent of the time.4tJ These results indicate all too clearly that negotiated rulemaking has failed to
accomplish its goals of preventing litigation and saving time. Negotiation simply does not
"cure" regulatory malaise.
Reg Negs dont resolve delays or litigation---best empirically validated research
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship/) Deng
I Is Negotiated Rulemaking a "Cure"? In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "the malaise
of administrative law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." n12 He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: (*390) We have grown accustomed to rulemaking
procedures that take several years to complete at the agency level and, in the event judicial review is sought, another year or two in the courts. The cost of participating
in such a proceeding for both the agency and the private parties can be staggeringly high. n13 For Harter, negotiated rulemaking provided an alternative that would
"reduce the time and cost of developing regulations." n14 He argued that it offered agencies an antidote to "the traditional battle" of conventional rulemaking. n15 In
negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation. n16 The agency (*391) convenes a committee comprised of
representatives from regulated firms, trade associations, citizen groups, and other affected organizations, as well as members of the agency staff. n17 The committee
meets publicly to negotiate a proposed rule. If the committee reaches consensus, defined as a unanimous concurrence of all the interests, the agency uses the
agreement as a basis for its proposed rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. n18 Harter's 1982
article proved instrumental in garnering support for negotiated rulemaking as an alternative to conventional rulemaking. The article was based on a report to the
Administrative Conference of the United States (ACUS), which then formed the basis for ACUS's recommendation that federal agencies pursue negotiated
rulemaking. n19 The initial ACUS recommendation noted that under the existing form of notice-and-comment rulemaking, "long periods of delay result, and
participation in rulemaking proceedings can become needlessly expensive." n20 ACUS's recommendation was premised on the expectation that negotiated rulemaking
would overcome the delays, litigation, and other adverse consequences associated with conventional rulemaking and would result in rules more acceptable to the
interests affected by agency decisions. n21 In the years following Harter's article and ACUS's recommendation, agencies began to experiment with negotiated
rulemaking and Congress began to consider legislation to provide clear authorization for its use. n22 Legislative debate in Congress, along with extensive commentary
by academics and practitioners, emphasized that negotiated rulemaking would help (*392) reduce the delays and litigation that were thought to dominate the
conventional rulemaking process. n23 In the years leading up to the passage of the Negotiated Rulemaking Act of 1990, n24 regulatory negotiation was consistently
advocated as a means of improving what was thought to be a time-consuming, litigation-prone regulatory process. From 1983, when the Federal Aviation
Administration (FAA) initiated the first federal negotiated rulemaking, n25 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized, n26 about
a dozen federal agencies used the procedure to develop and issue at least one rule. All told, federal agencies had completed thirty-five rules using negotiated
rulemaking, a number that amounted to less than 0.01% of all rules issued during the same period. n27 As of 1996, EPA had completed twelve negotiated rulemakings,
of the procedure was at best extremely thin. Only a few minor efforts existed that compared the results of negotiated rulemaking directly with the results of
conventional rulemaking. n39 In the first such effort, (*396) Neil Kerwin and Scott Furlong conducted a study of the duration of EPA rulemakings in which they
briefly mentioned that they compared the duration of the four negotiated rules in their sample with the duration of the larger sample of 150 of the most significant EPA
rules completed through the conventional rulemaking process. n40 Using dates from EPA's internal regulatory management system as their basis for operationalizing
the duration of rulemaking, Kerwin and Furlong found that, on average, the four negotiated rules went through the entire rulemaking process about eleven months
faster than did the average conventional rule in their sample. n41 A second effort to compare the outcomes of negotiated and conventional rulemakings could be found
in the Clinton Administration's National Performance Review (NPR) report "Improving Regulatory Systems." n42 The NPR report made brief but explicit claims
comparing EPA's negotiated rules with its conventional rules in terms of both time and the incidence of litigation. n43 In addition to citing the time savings reported
by the Kerwin and Furlong study, the author of the NPR report stated that at EPA negotiated rulemakings had shortened the rulemaking process by up to eighteen
months when compared with conventional rulemaking. n44 The report also asserted that negotiated rulemaking reduced the litigation rate for EPA rules from around
seventy-five to eighty percent to twenty percent for negotiated rules. n45 (*397) In my research, I have also taken a comparative approach in evaluating the impact of
negotiated rulemaking on the duration of rulemaking and the subsequent incidence of litigation. As I state in Assessing Consensus: My purpose ... is simply to assess
negotiated rulemaking on its own terms, using the standards that have been set for it by those legislators, agency officials, practitioners, and scholars who have
advocated its use over the years. The goals of saving time and reducing litigation are by far the most prominent ones invoked in the literature and the legislative
history. n46 My research follows appropriate standards for empirical research and overcomes major limitations of the two prior efforts to make comparative
assessments of negotiated rulemaking. Unlike Kerwin and Furlong (who, in fairness, never really set out to evaluate negotiated rulemaking), I include in my
assessment all the negotiated rulemakings completed by EPA during the study period. Unlike the NPR report, I rely on primary source data on the filings of suits
challenging EPA rules and thus provide an accurate account of litigation filed against both negotiated and conventional rules. By carefully applying empirical research
on average it has taken EPA about three years to develop a rule, regardless of
whether the agency used negotiated rulemaking or conventional rulemaking procedures . n47
The median duration is also about the same for negotiated and conventional rules. n48 Negotiated
methods, I find that
rulemaking does seem to make a difference when it comes to litigation - however, the difference is in the direction opposite to what has been expected.
Negotiated rules are challenged fifty percent of the time, while other comparable,
significant EPA rules are challenged only thirty-five percent of the time. n49 These results indicate all too
clearly that negotiated rulemaking has failed to accomplish its goals of preventing litigation and saving time. Negotiation simply does not "cure" regulatory malaise.
(*398) II Evaluating the Duration of Negotiated Rulemaking Harter disagrees with these findings. He first criticizes how I evaluate negotiated rulemaking's impact on
the duration of the regulatory process, arguing that I should exclude from my study one rule that EPA negotiated - the farmworker protection rule - because its
committee failed to reach a consensus. n50 In a few other cases, he also questions my reliance on the publication of the final rule to mark the completion of the
rulemaking process. n51 In total, Harter criticizes my data with respect to the four EPA negotiated rulemakings that took the agency the longest to complete. As a
result, Harter claims that once his modifications to the data are made, the average duration of negotiated rulemakings is shorter than the duration of conventional
rulemakings. n52 He is correct that the average duration would decline if the longest negotiated rules were to be excluded or their length were to be truncated. He is
wrong, however, to suggest that such modifications should be made. The farmworker protection rule, while a failure in terms of achieving consensus, still represented
an earnest effort by the EPA to negotiate the rule and merits inclusion in any evaluation of negotiated rulemaking. n53 The other modifications Harter urges fail to
adhere to the basic precepts of consistency and reliability in empirical analysis. n54 Moreover, even if one were to be persuaded by Harter's advocacy, his
modifications would only affect the average duration of negotiated rulemaking, and not the more appropriate measures of rulemaking time. n55 The median duration
of negotiated rulemaking remains largely unchanged even after Harter's modifications. n56 More significantly, whatever one makes of the duration of rules from start
to finish, the overall investment of staff time and effort by agencies and outside organizations remains indisputably and significantly greater for negotiated rulemaking.
(*399) A. EPA's Negotiated Rulemaking on Farmworker Protection Harter first seeks to exclude from analysis what he calls the "peculiar case" of the farmworker
protection rulemaking. n57 In 1985, EPA initiated a negotiated rulemaking process to establish a regulation that would reduce the exposure of agricultural workers to
the spray of pesticides. n58 The agency convened a negotiation committee comprising representatives from farming organizations, farmworker unions, agricultural
and forest products trade associations, state and local governments, the U.S. Department of Agriculture, and the EPA. n59 The committee met as a plenary group on
several occasions, established a series of five working groups, and developed and circulated working drafts of a proposed regulation. n60 As the committee neared
completion of a final draft of the proposed rule, the negotiations reached an impasse, n61 and the representatives from the farmworker organizations decided to end
their involvement with the negotiations. n62 The EPA attempted to bring the farmworkers' representatives back into the discussions and continued to meet with the
remaining members of the committee. n63 In the end, however, the agency was unable to secure a meaningful consensus without the involvement of the farmworkers'
representatives, whom the agency failed to bring back to the table officially. Harter claims the farmworker protection rule should be excluded from my analysis of the
effectiveness of negotiated rulemaking. n64 He asserts that the farmworker protection negotiated rulemaking was "abandoned" by EPA and that the bulk of the time
associated with this regulation should not be attributed to negotiated rulemaking because it took place after the negotiations (*400) collapsed. n65 Yet what happened
in the farmworker protection rulemaking could happen in any negotiated rulemaking. Negotiation does not always yield a consensus, and the mere fact that consensus
is not reached is no reason to exclude from evaluation those rules for which the agency otherwise earnestly tried to use negotiation. If we are to determine whether
negotiated rulemaking is effective in achieving its goals, both common sense and conventional empirical research methods dictate that we look at all the cases where
the technique was used, not only those cases where it succeeds. Although negotiated rulemakings should be excluded when they were genuinely abandoned, I
specifically state in Assessing Consensus that by "abandoned" negotiated rulemakings "I do not mean that the participants failed to reach consensus." n66 Rather, in a
passage that Harter quotes, n67 I treat as "abandoned" those rulemakings for which the agency, at some point after publication of an intent to negotiate, either (1)
"decided not to commence negotiations," (2) "disbanded the committee before seeking even a limited agreement," or (3) "withdrew the underlying regulatory action
altogether." n68 Rulemakings that meet any one of these three criteria are rulemakings for which the agency failed to use the negotiation process earnestly as a means
of developing a rule, or for which the agency declared its decision to issue no rule at all. n69 They are cases where the agency essentially decided to forego altogether
the experimental treatment called negotiated rulemaking. The EPA did commence and earnestly pursue negotiations in the farmworker protection rule. The agency
worked diligently and responsibly to seek an agreement in this case, and apparently even came close to doing so. n70 When problems arose, the agency (*401) and the
other parties offered to replace the facilitator in an effort to keep the farmworkers' representatives on the committee. n71 The EPA continued to hold meetings with the
rest of the committee, "hoping that the farmworkers' representatives would return." n72 In addition, the EPA reportedly continued to share drafts of the proposed rule
with the farmworkers' representatives before the opening of the notice-and-comment period. n73 EPA did not "abandon" the farmworker protection negotiated
rulemaking; rather, one non-governmental interest abandoned the negotiation committee - the committee simply failed to reach a consensus. n74 EPA did eventually
issue a final farmworker protection rule, and in doing so the agency made a point of crediting the negotiation process for having "helped shape the proposed
regulation." n75 Harter himself suggests that the agency learned much from the negotiation process and that the discussion draft that emerged from the negotiations
formed a basis for its final rule. n76 In making this suggestion, however, Harter essentially concedes that the farmworker protection rule was, after all, a negotiated
rulemaking. One cannot consistently treat the rule as a negotiated rulemaking in order to claim credit for some benefits, only (*402) to exclude it when it comes to
assessing whether negotiated rulemaking achieves other benefits. Significantly, no one ever claimed that the farmworker protection rule should be treated as anything
but a completed negotiated rulemaking until after my research results were published. Lee Thomas, who served as the EPA Administrator during the negotiations and
through the publication of the proposed rule, counted the farmworker protection rule among EPA's negotiated rules. n77 When the EPA's Office of Policy, Planning
and Evaluation set out to assess how well negotiated rulemaking worked, it included the farmworker protection rule in its study. n78 Indeed, on eight separate
occasions, the EPA listed the farmworker protection rule as an example of one of its negotiated rulemaking in the Federal Register. n79 The rule has appeared in three
separate (*403) reports issued by ACUS, again listed as one of EPA's negotiated rulemakings. n80 EPA's Consensus and Dispute Resolution Program has kept its own
internal list of EPA negotiated rulemakings, on which the farmworker protection rule can be found. n81 Finally, the director of the Consensus and Dispute Resolution
Program, Chris Kirtz, published an article listing the farmworker protection rule as one of EPA's negotiated rulemakings. n82 Interestingly, EPA's internal list of
negotiated rulemakings was recently modified to add a sentence to the description of the farmworker protection rulemaking stating that the "negotiation was
abandoned." n83 This statement never appeared in three earlier versions of this EPA list of negotiated rulemakings, n84 making it reasonable to wonder why EPA staff
would change its description in this document more than five years after EPA issued its final rule and more than ten years after the farmworkers reconsidered their
involvement in the negotiations. Perhaps part of (*404) the explanation lies in the fact that EPA made a point to distribute copies of its altered list at the 1998
Association of American Law Schools panel organized around my research. n85 When the farmworker protection proceeding was described earlier by the agency in
the Federal Register, EPA never described the negotiated rulemaking as having been "abandoned" (the same word used to label the category of rules excluded from my
study). Rather, EPA noted that representatives from four groups "decided to discontinue participation in the Regulatory Negotiation process" and that afterwards the
agency still scheduled four additional meetings with the remaining members of the negotiation committee. n86 Notwithstanding Harter's and EPA's efforts to revise
the historical record, the farmworker protection rule is properly considered one of the agency's negotiated rules. Administrative law scholars have considered it as
such. n87 Moreover, Laura Langbein and Neil Kerwin, whose research Harter considers "rigorous" and "the only careful and comprehensive" empirical research on
negotiated rulemaking, n88 initially included the farmworker protection rule in their study. n89 They eventually dropped it from their sample of negotiated rules, but
not because of any principled (*405) or methodological reason for excluding it from a study of the performance of negotiated rulemaking. Rather, Langbein and
Kerwin dropped it simply because they were unable to locate enough of the participants in the rulemaking to interview. n90 Furthermore, Harter has himself
acknowledged that the farmworker protection rulemaking was a negotiated rulemaking, going so far as to reprint the organizational protocol for the negotiations as an
appendix to an earlier article. n91 It is understandable why an advocate would now like to treat the farmworker protection rulemaking as if it were not a negotiated
rulemaking for the purpose of determining the average duration of negotiated rules. The farmworker protection rule took longer to complete than any other. n92 As
Harter points out, removing this one rule from the group of EPA negotiated rulemakings has the effect of decreasing the average duration of these rules by
approximately four months. n93 Yet Harter fails to note that in using Federal Register notices to compute the duration of negotiated rulemakings, I actually understate
the average duration by about the same amount of time. As I note in Assessing Consensus, "Federal Register listings yield an average time for the four negotiated rules
in the Kerwin and Furlong study of 1.8 years (647 days), more than four months shorter than the average they report for the same rules (778 days)." n94 My approach
therefore underestimates rulemaking duration because it excluded the agency work that precedes the publication of a notice of intent and which leads the agency to
make the decision to engage (*406) in a negotiated rulemaking. In this and other ways, my approach relies on conservative measures that in effect create a "deliberate
bias in favor of finding a time savings in rules developed with negotiated rulemaking procedures." n95 As a result, even supposing the farmworker protection rule
should be excluded as a negotiated rulemaking, the resulting average time decrease caused by excluding it is still within the bounds of what can be explained by the
conservative measure I used for the duration of negotiated rulemaking. n96 It is simply not possible to conclude with any confidence that negotiated rulemaking has
made the rulemaking process significantly shorter. B. Calculating Rulemaking Duration Harter critiques my analysis of rulemaking duration in other ways. He claims,
for example, that by using a "strictly numerical methodology" for evaluating the duration of rulemaking I have ignored "the varying complexity of rules." n97 He
notes that "rulemaking is an inherently political activity" and argues that "counting days between two events disregards all the dynamics of political activity." n98
Although Harter never clearly states what inference he thinks should be drawn from these vague points, he appears to be suggesting either (1) that negotiated
rulemaking should not be subject to empirical evaluation n99 or (2) that omitted, perhaps even unmeasurable, variables influence the duration of the rulemaking
process, making quantitative analysis unreliable. There is no reason to support the first claim that negotiated rulemaking should be exempt from the kind of evaluation
to (*407) which other policies or procedures are normally subjected. n100 Even advocates of negotiated rulemaking recognize that it should be subject to evaluation.
n101 The second claim raises a concern that should be considered for all empirical research, but it matters only if there is reason to suspect that omitted variables are
relevant and systematically biasing the results in one direction. n102 Harter offers no credible reason to suspect that the so-called "dynamics" inherent to all
rulemaking systematically operate to lengthen the time it would otherwise take to complete the rulemakings that were negotiated, nor does he specify any particular
variable that should have been included in my analysis. In contrast, I extensively scrutinize the possibility of omitted variable bias in Assessing Consensus. n103 All
the available evidence indicates that the rules selected for negotiation tend to involve underlying issues and interests that made them more - not less - likely to succeed
in achieving a timely outcome. n104 EPA has not used negotiated rulemaking for (*408) the rules affecting the broadest number of organizations nor for those rules
raising the most contentious policy issues. Rather, the agency has tended to follow the advice of negotiation consultants, as well as the guidelines of the Negotiated
Rulemaking Act, to select rules for negotiation for which the agency determines there is a preexisting likelihood of success within a limited amount of time. n105
Admittedly, on some occasions the agency has selected significant rulemakings to negotiate and, as we know, it has also sometimes misjudged whether a consensus
could be attained in a fixed time period. n106 Overall, though, the agency has tended to select rules that are expected to take less time to promulgate. n107 Harter also
claims that instead of using a consistent, verifiable method of calculating rulemaking duration, I should have imputed different ending points to negotiated rules based
on "the actual, immediate goal the agency hoped to accomplish" and "what those who would be affected by the agency's action thought." n108 Harter asserts that
because I used the date when the agency published its final rule, rather than imputing ending (*409) points for negotiated rulemakings, I fail "to conduct an accurate
empirical study of rulemaking." n109 Actually, the danger is just the opposite. If researchers studying the duration of rulemaking were to make their own ad hoc
decisions about when a rulemaking begins and ends, their research would lack reliability. n110 Without clear criteria for collecting data and making measurements,
individual researchers would have to make their own decisions about when an agency's rulemakings ended. Such an approach would make it exceedingly difficult, if
not impossible, to verify and interpret results across studies. n111 Thus, it is important for researchers to operationalize rulemaking duration using a consistent,
verifiable indicator such as Federal Register notices or other uniform administrative indicators. This is almost certainly the reason that Neil Kerwin and Scott Furlong
opted for such an approach, relying on the dates found in EPA's internal regulatory tracking system rather than their own interpretation of when individual
rulemakings were completed. n112 More recently, political scientists John Wright and Steven Balla conducted a further study of the length of negotiated rulemaking again using the dates of notices in the Federal Register. n113 Choosing the date on which a final rule is promulgated (*410) is particularly appropriate given that this is
the point at which the agency has taken a final, legally reviewable action. n114 Since one of the main goals attributed to negotiated rulemaking is to reduce subsequent
litigation over agency rules, it is entirely appropriate to use the publication of the final rule as the ending point of a negotiated rulemaking for purposes of evaluation.
Even Langbein and Kerwin, in the study that Harter praises, regard the outcome of the negotiated rulemaking as the promulgation of the final rule. n115 Moreover, as
any administrative lawyer knows, the rulemaking process does not necessarily end once the agency issues a final rule. Even putting aside any subsequent litigation,
agencies do revisit their final rules, amend and revise them, and even occasionally rescind them. n116 Researchers who free themselves from a consistent data
collection rule face an extremely wide range of potential starting and ending points for any particular rulemaking. For example, as I note in Assessing Consensus, the
negotiated rulemaking over drinking water standards for disinfectant byproducts had, by 1996, resulted in a final rule governing the collection of drinking water
information even though the substantive drinking water standards based on the negotiations still remained as proposed rules. n117 I use the date of the "first final rule
to emerge from this negotiated rulemaking process, even though it is an information collection rule and not a drinking water standard" simply to ensure that my
estimates are employed consistently and conservatively. n118 The farmworker protection rule is yet another example of a rulemaking that did not really end with the
promulgation of a final rule. As I note in Assessing Consensus, debate over the farmworker protection rule persists: "EPA has issued extensions and changes to the
rule, (*411) Congress has entered the fray, and outside groups have threatened litigation." n119 Opening measurement to ad hoc judgments would not only enable
some to claim that rulemaking was shorter in some cases, but it would also allow others to claim that rulemaking was still longer in other cases. The approach I take in
my empirical research adheres to sound social science research standards in that it relies on neutral, consistent methods of calculating the duration of rulemaking.
Harter's approach, on the other hand, tips the scales in favor of finding a time savings for negotiated rulemaking. He makes adjustments that shorten the process for
negotiated rulemaking, but he never acknowledges the need to be consistent and make similar adjustments to the comparison group of rules adopted through
conventional notice-and-comment procedures. n120 Harter claims, for example, that an earlier ending date should be used for the equipment leaks rule because the
EPA issued an early notice of the agreement in the equipment leaks rulemaking "so industry could begin taking actions to comply." n121 In an earlier article, Harter
notes that many firms "were complying with the rule long before it was in effect." n122 He similarly argues that the ending date of the reformulated gasoline rule
should be moved up by about eight months because that was the time when the EPA held a series of workshops "so that those affected could (*412) comply." n123 Yet
what Harter fails to acknowledge is that regulated entities often take steps to comply with looming environmental regulations well in advance of agency rules coming
into effect. In many corporations and trade associations, lawyers and managers regularly work to anticipate the EPA's regulatory agenda, taking steps to bring their
organizations and members into compliance before the final rules take effect. n124 This is especially the case with regard to regulations affecting equipment or
production processes, as compliance can require significant capital expenditures and lead time for planning. It is in firms' interests to avoid the risk of business
interruption or regulatory liability, so firms often plan ahead and begin taking steps to comply after an agency issues a proposed or interim rule or otherwise signals its
regulatory direction. n125 Overall, Harter presents his data in such a way as to favor negotiated rulemaking. He argues that if one negotiated rule is excluded from
study, and if the duration of two other rules is shortened, the average duration of the EPA's negotiated rulemakings is only 751 days instead of 1,013 days, or thirtyfive percent shorter than the average duration reported in my study. n126 This reduction in average duration arises because the (*413) one rule that Harter argues
should be excluded - the farmworker protection rule - happened to be the negotiated rulemaking with the longest duration. In addition, the two other rules - the
equipment leaks and reformulated gasoline rules - were among those negotiated rules with the longest durations. Harter also questions the dates I use to calculate the
duration of a fourth rule - the drinking water collection rule - although he does not change the dates I use in making his alternative calculation. n127 In all, Harter
disputes my time computations for the four EPA negotiated rules that had the longest rulemaking duration. Due to the nature of an average (or mean) as a statistical
measure, the average duration of negotiated rulemaking would indeed drop substantially if one were to remove the longest negotiated rulemaking from the group and
also considerably shorten the duration of other rulemakings that took a longer time. This is explainable as a property of the statistic, since averages tend to be sensitive
to outlying cases. Indeed, when analyzing a distribution of data with outliers in only a positive direction - such as with income or time, which can never be less than
zero - the average will tend to be pulled upwards. n128 In such cases, the median will generally be a more suitable indicator of the typical case, as it is less sensitive to
extreme outliers. n129 It is especially appropriate for a researcher to report the median in these cases, something that I did and Kerwin and Furlong did, but Harter did
not. Table 1: Duration of EPA Rulemakings (in days) (SEE TABLE IN ORIGINAL) As Table 1 shows, Kerwin and Furlong report an average rulemaking duration
negotiate as the starting point for each rule, rather than EPA's internal records (the Kerwin and Furlong approach), n131 my study understates the duration of
negotiated rulemaking by about 131 days compared with the approach used by Kerwin and Furlong. n132 (*415) C. Negotiated Rulemaking Demands More Time and
negotiated
rulemaking still demands more time and effort on the part of the participants than does conventional
rulemaking. n133 Even if the overall duration of negotiated rulemakings could be shown to be shorter, n134 the
intensity of negotiated rulemakings still translates into additional time. As Harter himself acknowledges,
Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process,
"reg negs are intense activities: participating in one can be expensive and time consuming." n135 The Langbein and Kerwin study, which Harter considers "rigorous"
and "careful," n136 shows that participants in negotiated rulemakings report spending nearly twice as much overall in organizational resources as did their
impact of negotiation on the duration of rulemakings, there is no disputing that negotiated rulemaking is much more burdensome, in terms of the overall time and
expense, than conventional rulemaking. n139 (*416) III Negotiated Rulemaking and the Avoidance of Litigation Over the years, advocates of negotiated rulemaking
consistently claimed that the procedure would eliminate subsequent litigation filed challenging administrative rules. n140 Yet until I undertook my research, no one
had sought to assess these claims by collecting comprehensive data on court filings for negotiated and conventional rules. Having collected this data for the EPA, I
find that six out of the twelve completed EPA negotiated rules in my study have resulted in legal challenges, a litigation rate higher than that for all significant rules
under EPA's major statutes and almost twice as high as that for EPA rules generally. n141 Harter does not dispute that these challenges to negotiated rules were filed.
n142 Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. n143 He also claims that I fail to account for differences in litigation
and that when these differences are considered, negotiated rulemaking results in less protracted litigation. n144 In this Part, I demonstrate that Harter is wrong on both
counts: negotiated rulemaking has long aimed to reduce legal challenges to agency rules and it has failed to reduce both the number and intensity of these challenges.
(*417) A. Avoiding Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those who were present at
the creation of reg-neg sought neither expedition nor a shield against litigation." n145 Yet negotiation has long been offered, even in the early years, as an alternative
that would reduce the perceived adversarial relationship between business and government. n146 Former Secretary of Labor John Dunlop initiated interest in
negotiated rulemaking in the 1970s by calling attention to several problems with government regulation, one of which was "the legal game-playing between the
regulatees and the regulators." n147 According to Dunlop, typically the "regulatory agency promulgates a regulation; the regulatees challenge it in court; if they lose,
their lawyers may seek to find another ground for administrative or judicial challenge." n148 He urged regulators to involve affected parties in the development of new
rules so as to reduce the contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. n149 Philip Harter himself, in his original
article on negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" n150 regulatory process: Negotiations may reduce judicial
challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in its development. Indeed,
because the rule would reflect the agreement of the parties, even the most vocal constituencies should support (*418) the rule. This abstract prediction finds support in
experience in analogous contexts. For example, there has been virtually no judicial review of OSHA's recent safety standards that were based on a consensus among
the interested parties. Moreover, rules resulting from settlements have not been challenged. n151 Moreover, according to Judge Loren Smith, chairman of ACUS at the
time the Conference acted on Harter's report, "when we passed the first recommendation (encouraging agencies to use negotiated rulemaking)..., the Reagan
Administration's whole purpose on negotiated rulemaking was to keep things out of the courts." n152 In chronicling EPA's decision to launch its regulatory
negotiation project in 1983, Daniel Fiorino and Chris Kirtz observed that the ACUS recommendation was one of the factors prompting EPA to pursue negotiated
rulemaking. n153 Furthermore, they point explicitly to the desire by EPA officials to reduce litigation: Perhaps most importantly, people within the EPA were
becoming more aware of the limits of conventional, adversarial rulemaking under the Administrative Procedure Act. The standard rulemaking process had become too
susceptible to (*419) delay and litigation. As many as 80 percent of EPA's final rules are challenged - often by both sides of an issue. A pilot program on regulatory
negotiation offered an opportunity to test an alternative method for proposing Agency rules that would permit all participants a face-to-face role in decision-making.
n154 As one can plainly see, the aim of avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and
EPA's decision to launch its regulatory negotiation project. Admittedly, over the years advocates of negotiated rulemaking have claimed a number of additional
benefits from negotiated rulemaking, n155 but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules. n156
Numerous practitioners, academics, legislators, and agency officials have advocated negotiated rulemaking as a way of reducing subsequent litigation, which many
erroneously thought had reached the point where groups challenged four out of every five regulations EPA issued. n157 The Negotiated Rulemaking Act included in
its preamble the goal of reducing the likelihood of litigation. n158 In addition, Republican and Democratic administrations endorsed the use of negotiated rulemaking,
in no small part because of the belief that the procedure (*420) would minimize litigation. n159 Advocates have consistently emphasized negotiated rulemaking's
potential for reducing litigation, and even the earliest "pioneers" of the process have boasted (inaccurately) that the negotiation process has "almost eliminated"
subsequent litigation n160 and that "no rule crafted in this manner has been subjected to court action." n161 B. Negotiated Rulemaking Has Failed to Reduce
Litigation Even though Harter erroneously suggests that it does not really matter that negotiated rulemaking has generated a considerable number of legal challenges,
n162 he nevertheless makes several forcefully worded, but mistaken, criticisms of my analysis of negotiated rulemaking and litigation. n163 For example, he first
accuses me of "significantly misleading" the reader by including a discussion of the Grand Canyon visibility negotiation in Assessing Consensus, because it was not
technically a negotiated rulemaking. n164 At the same time, however, he readily acknowledges that my article "points out that this rule was not developed (*421)
under the Negotiated Rulemaking Act." n165 In addition to stating that the rule was not technically a negotiated rulemaking under the Act, I also expressly exclude the
Grand Canyon rule when calculating and discussing the overall litigation rate for EPA's negotiated rules. n166 Nevertheless, mentioning the litigation over the Grand
Canyon rule as I do is far from misleading - it is relevant and highly probative support for the proposition that "rules promulgated following a regulatory negotiation
are far from immune from legal challenge." n167 The Grand Canyon rule was probably the most well publicized of any EPA regulatory negotiation, having concluded
with a dramatic presidential ceremony near the edge of the Grand Canyon and prompting a front-page New York Times article hailing the negotiation process as a
model alternative to the "lawsuit system." n168 Moreover, at the time of my original research, the Grand Canyon rule had been heralded as a negotiated rulemaking
success story by one of the sponsors of the Senate bill permanently reauthorizing the Negotiated Rulemaking Act. n169 At that time, however, the rulemaking had
been discussed in the legal literature only "as a prototype 'win-win' solution of an environmental problem and a model for other regulatory negotiations." n170 Thus,
including mention of the Grand Canyon litigation actually helps to correct the misleading impression that regulatory negotiation eliminates subsequent legal
challenges to agency rules. (*422) Harter also charges that I fail to look into the details surrounding the challenged negotiated rules and their litigation. n171 This
claim is yet another example of Harter's advocacy. Even a cursory reading of Assessing Consensus reveals that I devote considerable attention to the details
surrounding all six EPA negotiated rulemakings that were subject to legal action, stating exactly who filed each petition for review, why, and to what effect. n172
Harter's claim that I fail to look at what happened in these cases is all the more interesting since he himself provides only two paragraphs in his article to the litigated
rules, compared with the more than eight pages contained in my original article. n173 He devotes a mere eleven words to the litigation challenging the disinfectant
byproducts rule compared with the page and a half I devote to that rule and its subsequent legal challenge. n174 Perhaps because his own discussion of the challenged
rules is so brief, Harter creates some confusion about the litigation filed against the reformulated gasoline rule and the equipment leaks rule. n175 Without denying
that court petitions were filed (*423) challenging these rules, he nevertheless mistakenly implies that the challenges I attribute to these two rules were actually filed
against related, but distinct EPA rules that were not negotiated. n176 Yet, even though petitions were filed against related (*424) rules, court records in both cases
show that petitioners also challenged the very rules which were developed through negotiated rulemaking. n177 Although those who advocate negotiated rulemaking
have created some ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged n178 as was the equipment leaks portion of the HON
rule which was developed through negotiated rulemaking. n179 Finally, Harter claims that I fail to distinguish "substantive challenges" from other kind of challenges,
and that negotiated rules have been "remarkably resistant" to such substantive challenges. n180 Since he never defines what he means by a "substantive challenge," it
not possible to test or respond to his claim fully. Once again, Harter's approach may well be understandable as a form of advocacy, but it is unacceptable as a basis for
empirical analysis of negotiated rulemaking. n181 If, in claiming that I fail to distinguish between "substantive" and other types of challenges, Harter means to imply
that I fail to report that most of the challenges to negotiated rules were settled out of court, then again a casual reading of Assessing Consensus is enough to (*425)
show that he is mistaken. n182 Harter notes that several of the challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I
already note this in Assessing Consensus. n183 In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision," the
"the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals ... and substantially more than the rate for all administrative
months of the promulgation of the final rule. n187 For many organizations filing petitions for review of (*426) EPA rules, the petition simply signals the beginning of
a new round of working out the details of the rule with the agency. Industry and environmental groups frequently treat litigation as a continuation of the rulemaking
in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement discussions typically
follow the filing of challenges to any EPA rule ... . In the aggregate, negotiated rulemaking has not generated any substantial difference in the way that legal challenges
get resolved. n189 Indeed, the litigation against negotiated rules turns out to be virtually the same as litigation against conventional rules along every dimension,
except that negotiated rules are challenged at a higher rate. n190 A single rule can, of course, be challenged by more than one organization. The data reveal not only
that negotiated rules are challenged at a higher rate, but also that each challenge involves on average a somewhat larger number of petitioners. As Table 2 shows, the
average number of petitions filed against negotiated rules is actually somewhat higher than the average number of petitions in challenges to conventional rules overall
(3.7 petitions per challenged negotiated rule versus 3.0 for challenged conventional rules). n191 The rate at which these challenges eventually reach a court for
decision is about the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
more generally in all challenges to EPA rules. n192 The typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical
challenge filed against a conventional rule. Table 2: Litigation Challenging EPA Rulemakings (SEE TABLE IN ORIGINAL) (*427) C. Negotiated Rulemaking
expectations is in part explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. n194 It is
consensus is
not always attainable, and even when it is, it may only temporarily hide underlying conflicts. n195 Negotiated rulemaking also creates new sources
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can even engender new conflicts. As we have seen,
of conflict that do not exist with other methods of policy making. n196 Conflicts can arise over the selection of participants in the negotiations, the meaning of
agreements that are reached, and whether the final rule is consistent (*428) with those agreements. n197 Disagreements can even arise about the implications of
silence in the agreement over particular terms or issues. n198 None of these additional kinds of conflict arise in the absence of negotiated rulemaking. A recent
negotiated rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new sources of conflict. HUD had originally
named four public housing organizations to serve on negotiated rulemaking committees for regulations addressing subsidies and capital funds. n199 After the housing
organizations subsequently filed a petition against the agency over a separate matter, HUD officials unilaterally declared that the organizations could no longer bargain
with the agency in good faith and removed them from the negotiated rulemaking committees. n200 The housing groups filed for a court order reversing their removal
from the committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition. n201 HUD eventually capitulated and
reinstated the organizations as members of the negotiated rulemaking committees, but the experience demonstrates a profound new source of litigated conflict that,
ironically, is found only in the very process that was intended to reduce litigation.
AT: Democracy/Fairness
Reg Neg cant solve, information asymmetries allow certain parties to control negotiations
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
9. Interests Are Variably Situated with Regard to Information, with Smaller Groups Expressing the Most Disadvantage Respondents reports
about the information that they needed to participate effectively quite closely tracked their answers about learning. The
most frequent
type of information needed was technical-scientific (33%), followed by information about
the positions of others (18%), knowledge of the issues (18%), legal information (10%), and
economic-cost information (5%).128 Only 6% of respondents reported needing no additional information to participate in reg
neg.129 Participants relied on a number of sources for information, including themselves
(29%), EPA (20%), other participants (17%), and members of their own coalition (14%).130
The responses strongly suggest that not all of the participants were equally situated in the negotiated
rulemaking with regard to information. EPA and large organizations called upon their own resources or those they could
control, while participants with fewer resources most frequently relied on other entities for the information on which they based their decisions.
131 Some participants did report obtaining funds from the Agency for research or consultants.132 In
Still, observations of certain participants suggest that some participants will enjoy the
powerful advantage of access to and control of superior information which, unless offset,
will give them disproportionate control of the agenda relative to the control exercised by
smaller, less well-informed, interests. There is a good case to be made that the role of
information is as or more important in negotiated rulemaking than in its conventional
counterpart due to the pressures created by deadlines and other aspects of the negotiation
process. Hence, the problem of information asymmetry that figures so prominently in
criticisms of governmental decision-making has been partially addressed in negotiated
rulemaking but not completely eliminated.144
Turnreg negs are exclusive and fundamentally undemocratic
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Regulatory negotiation proved more popular in alternative dispute resolution circles than among administrative law scholars, who
attacked it first on theoretical and later on empirical grounds. For some, the mere idea of negotiating rules
with stakeholders seemed anathema to the traditional concept of the agency as a faithful agent of Congress. Regulatory
likely than conventional rulemaking to undermine the public interest and lead to outcomes of dubious legality.48 For some or all of these reasons,
critics viewed regulatory negotiation as, at best, a minor reform for use in limited and tightly
controlled circumstances, or, at worst, fundamentally undemocratic .49
High costs of reg neg make it impossible for small companies to participate
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
The study reveals some weaknesses of the reg neg process as well, most notably the
disproportionate costs it im-poses on smaller groups with comparatively fewer resources . n16
Whether or not to participate in a reg neg proved a more difficult decision for
environmental organizations and other similar groups than for larger parties like big business or
state government regulators. Smaller, poorer groups also reported suffering from resource deficits as
compared to their larger, richer negotiating partners. n17 The evidence of resource disadvantage provides
empirical (*64) support for a frequent criticism of reg neg, but, importantly, these disparities did not seem to translate into undue influence over
outcomes. n18 In light of the numerous benefits revealed by the data, the story on reg neg remains mostly positive especially when compared to
conventional rulemaking
the proposed rules, most of which were minor, but some of which were substantial. At the postcomment stage, the adversarial patterns thought to characterize conventional rulemaking may
emerge among interest groups , and richer, larger interests may find themselves in a
superior position, due to their ability to monitor, communicate with, and influence the
agency.
are still reasons to remain extremely skeptical that collaborative governance can
provide the legitimating input (*1437) about public values that seems missing from
deliberative models of the administrative state. The most fundamental problem is
incompleteness of representation. Someone (in the negotiated rulemaking example, the agency) has to convene
the representatives of those stakeholder groups sufficiently affected by the mat-ter . n250
Invariably, representatives of some groups are excluded from the deliberations , n251 which transfers the
contro-versial decision point from choosing the regulation to choosing the regulators. n252 Proponents of collaborative govern-ance need some
mechanism to guard against the idiosyncratic preferences of the agency or the influence of focused interest groups in restricting who gets to sit at
the table. In her seminal article, Freeman recognizes this problem in the context of negotiated rulemaking. n253 She notes that it is therefore
important to require the agency to go through the usual notice and comment process, as well as judicial review, to ensure that those who are not
included in the negotia-tions get some chance to make their case. n254 It is also imperative to Freeman that the agency
have
discretion to reject the negotiated rule if it has reason to believe that the outcome of the
negotiations do not best further the public interest. n255 What Freeman fails to recognize is that the need for such
requirements to ensure sufficient input by all stakeholder groups makes manifest collaborative governance's inability to provide complete
representation of stakeholders. Yet another
(Ann L Abbott practices Law in Public Health. Dr. Abbott practiced law for nearly 15 years, first in federally-funded Legal Services
Corporation projects in Medicaid, Medicare and other governmental programs. Her area of concentration was public medical assistance
programs. During this period, Dr. Abbott pursued an MPH at the University of Illinois at Chicago. Dr. Abbott then pursued her doctoral
degree at the University of Texas School of Public Health, while working as a research associate in its Center for Health Policy Studies.
A DISCOURSE-THEORETIC APPROACH TO NEGOTIATED RULEMAKING Published 1998. Abstract. Print) Deng
In 1996 and in 1997, Congress ordered the Secretary of Health and Human Services to undertake a process of negotiated rulemaking, which is
authorized under the Negotiated Rulemaking Act of 1990, on three separate rulemaking matters. Other Federal agencies, including the
Environmental Protection Agency and the Occupational Health and Safety Administration, have also made use of this procedure. As part of the
program to reinvent government, President Clinton has issued an executive order requiring federal agencies to engage in some negotiated
rulemaking procedures. I present an analytic, interpretative and critical approach to looking at the statutory and regulatory provisions for
negotiated rulemaking as related to issues of democratic governance surrounding the problem of delegation of legislative power. The paradigm of
law delineated by Jrgen Habermas, which sets law the task of achieving social or value integration as well as integration of systems, provides
the background theory for a critique of such processes. My research questions are two. First, why should a citizen obey a regulation which is the
result of negotiation by directly interested parties? Second, what
devoted itselfadmirably in my opinion to challenging the correctness of decisions made by these very administrative agencies. In any case, this analysis quickly
breaks down. For one thing, the government officials and employees who would otherwise formulate the rules are not themselves elected. Second, even if one accepts
with McCloskey the proposition that the will of the majority can be equated with progress, the failure in reg-neg to reach consensus does not thwart or veto
anything, except the ability of the negotiating committee to determine the contents of a proposed rule. In cases where no consensus is reached, the agency is free to
proceed and propose its own ruleand may do so with the added benefit of whatever useful information was gained from the failed negotiations. Thus, even
assuming as McCloskey does that the agency is the rightful repository of the public interest, nothing is lost by the failure to reach consensus. Finally, his assertion that
public policy is normatively set by the majority of the electorate is simply disingenuous. As the head of arguably the nations most prominent environmental group,
he is intimate with the nature of interest group politics in Washington and elsewhere, and he understands the nuances and complexity of our representative democracy
and how that differs from notions of direct democracy. McCloskey is understandably troubled by the increased influence of local communities in the administrative
broad assertion
that collaboration and sharing of decisionmaking authority in the formulation of
administrative rules is fundamentally undemocratic and contrary to the public interest is
based on little more than a questionable faith that the agency can and will effectuate the
public interest. Finally, Cary Coglianese is perhaps the most persistent critic of reg-neg. Like, McCloskey, Professor Coglianese also focuses his attention
process affecting forest and timber regulations, which seems to be the animating concern behind his critique. However, McCloskeys
on the perceived dangers of consensus as a decision rule in negotiated rulemaking. And while most of his efforts are aimed at disproving the claims of reg-neg
advocates concerning the benefits of the process, Coglianese goes further and asserts that reg-neg represents a retreat from the public interest as the primary goal of
government officials. That conclusion, however, does not easily follow from the claimed failure of reg-neg to achieve certain efficiencies, nor is it directly
substantiated by empirical evidence. At most, it might be said that reg-neg represents (for its advocates) a new approach to achieving the same desired resulti.e., the
best decision for the public. So what are we to make of the complaint that reg-neg subverts the public interest? Certainly, we may say that a criticism is
incompetent when it depends entirely on terms which have no ascertainable meaning, or for which the critic can supply none. Such criticism is unhelpful, moreover, as
it does nothing to further a serious debate about serious issues. Can we, then, just dismiss these claims, tossing them in the junk pile of criticism? I think not. Critics
such as Coglianese are, of course, correct that we must look at the underlying theory and assumptions around reg-neg and attempt to assessempirically and
otherwisehow it is performing. The question of whether reg-neg is serving the public interest is an important one, even if it has, until now, been used mostly to vent
the hostile suspicions of a fading tradition. General linguistic and philosophical objections regarding the use of the term public interest, moreover, are themselves
somewhat too broad and subject to the criticism that they, too, fail to move the debate forward. What then? Professor Freeman argues that, while (t)here is no purely
private realm and no purely public one, these dichotomous notions nonetheless are meaningful signifiers helpful ways of referring to areas of life that we
experience as more or less under our control, more or less coercive, more or less alienating. Perhaps the public interestlike the related concept of legitimacyis a
usefully vagueadministrative law theory, serving as a vessel into which scholars could pour their most pressing concerns about administrative power. If we
understand the public interest in this pragmatic sense, then it seems the task is to provide some suggested content(s) for it, so that it may be employed helpfully and
with appropriate nuance to explore the difficult questions about reg-neg. Freeman suggests that the focus for this exploration should not be on agencies, qua agencies,
but rather on the pervasive interdependence that characterizes administrative functioning, its inputs and outputs, and which may be viewed as a set of negotiated
relationships. Where do we look for such content? Analogy is a time-honored method in the law for supplying new content, as it is in literaturea fact that seems
appropriate to note in passing, since the present analysis has, arguably, moved into a realm where there is discernable overlap in these traditions. Accordingly, it may
be appropriate to look beyond administrative law to see if debates about the public interest in other fields could provide helpful guidance.
AT: Legitimacy/Conflict
Negotiated Legislation Restricts Public Opinion- Creates Backlash
Grimes, 01
(Sheperd R. Grimes, Attorney-Advisor at National Oceanic and Atmosphereic Administration, Office of General Counsel, 2001, THE
FEDERAL REGIONAL FISHERY MANAGEMENT COUNCILS: A NEGOTIATED RULEMAKING APPROACH TO FISHERIES
MANAGEMENT, Pg. 193, http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_187.pdf) AJ
Finally, what appears to be at the heart of his argument and underlying all of his other criticisms is that negotiated
rulemaking
prevents the agency from searching for what is truly in the public interest. 2 Underlying the
APA and all other statutes delegating to agencies the authority to promulgate regulations is
the notion that the agency will act in the best interest of the public as a whole, that is, the
public interest. As he points out, the public interest may not always be clearly defined, if at
all defined by the authorizing legislation. Regardless of whether it is precisely defined by the statute or left largely to
agency discretion, Congress presumes that the agency will exercise its discretion and judgment to further the public interest. 4 3 However,
under a negotiated paradigm the goal is to achieve consensus among substantially affected
parties who are likely to challenge the regulation , not promote any notion of the public
interest. While it is true that other forms of modem rulemaking, such as notice and comment under the APA44 and the National
Environmental Policy Act's notice and comment procedure for environmental impact statements,45 encourage enhanced participation by affected
interests, they
other purported
benefits of negotiated rulemakingamong them better information, shared learning, or
heightened feelings of communityhave over the years been side attractions to the main
event, as they do not depend on a quest for consensus. Policymakers and scholars have
focused most of their attention on negotiated rulemaking's potential to reduce litigation
and shorten rulemaking time, benefits that necessarily depend on the successful
maintenance of consensus.
Although this quest for consensus has held out the promise of a faster and less conflictual regulatory
These results will no doubt seem surprising in light of the enthusiastic support
negotiated rulemaking has received over the years. They are only all the more surprising considering that agencies have deliberately selected
rules for formal negotiation in order to ensure the procedure's success. On reflection, negotiated rulemaking's weak results should not be as
surprising as they may at first seem. While
appear better capable of avoiding litigation when they use the input provided in
conventional rulemaking to listen to competing views, balance concerns, and make their
best decisions.
The analysis provided in this Article shows that negotiated rulemaking has not lived up to its promising potential to save
regulatory time or prevent litigation. From this perspective, it is understandable that agencies have so infrequently relied on negotiated
rulemaking and it is inadvisable that Congress and the President would direct agencies to do otherwise. As has long been recognized,
Such investments might once have been thought sound in light of the benefits
promised from a speedier, less contested regulatory process. In the absence of these promised benefits,
agencies' continued
reliance on public participation methods which do not depend on consensus would appear
the more sensible approach to making regulatory decisions.
Turnreg-negs increase litigation
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
Over the years, advocates of negotiated rulemaking consistently claimed that the procedure would eliminate subsequent litigation filed
challenging administrative rules.11,1 Yet until I undertook my research, no one had sought to assess these claims by collecting comprehensive
data on court filings for negotiated and conventional rules. Having collected this data for the EPA. I find that six
rules and it has failed to reduce both the number and intensity of these challenges.
A. Avoiding
Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those
who were present at the creation of reg-neg sought neither expedition nor a shield against litigation." Yet negotiation has long been offered, even
in the early years, as an alternative that would reduce the perceived adversarial relationship between business and government. Former Secretary
of Labor John Dunlop initiated interest in negotiated rulemaking in the 1970s by calling attention to several problems with government
regulation, one of which was "the legal game-playing between the regulatees and the regulators.'' According to Dunlop, typically the "regulatory
agency promulgates a regulation; the regulatees challenge it in court; if they lose, their lawyers may seek to find another ground for
administrative or judicial challenge." He urged regulators to involve affected parties in the development of new rules so as to reduce the
contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. Philip Harter himself, in his original article on
negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" regulatory process: Negotiations may reduce
judicial challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in
its development. Indeed, because the rule would reflect the agreement of the parties, even the most vocal constituencies should support the rule.
'His abstract prediction finds support in experience in analogous contexts. For example, there
Moreover, according to Judge Loren Smith, chairman of ACUS at the time the Conference acted on Harter's report, "when we passed the first
recommendation (encouraging agencies to use negotiated rulemaking). . ., the Reagan Administration's whole purpose on negotiated rulemaking
was to keep things out of the courts,",5: In chronicling EPA's decision to launch its regulatory negotiation project in 1983. Daniel Fiorino and
Chris Kirtz observed that the ACUS recommendation was one of the factors prompting EPA to pursue negotiated rulemaking.151 Furthermore,
they point explicitly to the desire by EPA officials to reduce litigation: (P)erhaps most importantly, people within the ETA were be-coming more
aware of the limits of conventional, adversarial rulemaking under the Administrative Procedure Act. The standard rulemaking process had
become too susceptible to delay and litigation.
for proposing Agency rules that would permit all participants a face-to-face rule in decisionmaking.1^4 As one can plainly see. the aim of
avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and EPA's decision to
launch its regulatory negotiation project. Admittedly, over
court records in both cases show that petitioners also challenged the very rules which were
developed through negotiated rulemaking. Although those who advocate negotiated rulemaking have created some
ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged as was the
equipment leaks portion of the HON rule which was developed through negotiated
rulemaking.17U> Finally. Harter claims that I fail to distinguish '"substantive challenges" from other kind of challenges, and that
negotiated rules have been "remarkably resistant" to such substantive challenges.'-11 Since he never defines what he means by a "'substantive
challenge," it not possible to test or respond to his claim fully. Once again, Harters approach may well be understandable as a form of advocacy,
but it is unacceptable as a basis for empirical analysis of negotiated rulemaking.1,141 If, in claiming that 1 fail to distinguish between
"substantive" and other types of challenges, Harter means to imply that I fail to report that most of the challenges to negotiated rules were settled
out of court, then again a casual reading of Assessing Consensus is enough to show that he is mistaken.ls- Harter notes that several of the
challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I already note this in Assessing
Consensus.^3, In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision." the rest having
been voluntarily dismissed by the parties.1S4 I also reportand this is most crucialthat most petitions for review of EPA rules are voluntarily
dismissed by the parties. Indeed, settlement is more common in litigation challenging EPA rules than with other litigation. As I report in an earlier
study cited in Assessing Consensus, "(the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals . . . and
substantially more than the rate for all administrative appeals." Organizations filing suits challenging EPA rules often do so to preserve the
opportunity to work out additional changes in the rule, aware that the underlying environmental statutes authorizing judicial review require such
suits to be filed, if at all, within a few months of the promulgation of the final rule.187 For many organizations filing petitions for review of EPA
rules, the petition simply signals the beginning of a new round of working out the details of the rule with the agency, Industry and environmental
groups frequently treat litigation as a continuation of the rulemaking process, albeit with a smaller number of participants. Thus when Harter
suggests that negotiated rulemaking has spared EPA highly protracted litigation because many of the challenges to these rules were eventually
withdrawn, he is actually describing the normal pattern of challenges Lo EPA. As I report in Assessing Consensus: For all challenges to EPA rules
filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement
discussions typically follow the filing of challenges to any EPA rule. In the aggregate, negotiated rulemaking has not generated any substantial
difference in the way that legal challenges get resolved. Indeed,
be virtually the same as litigation against conventional rules along every dimension, except
that negotiated rules are challenged at a higher rate .'1'0 A single rule can, of course, be
challenged by more than one organization. The data reveal not only that negotiated rules
are challenged at a higher rate, but also that each challenge involves on average a
somewhat larger number of petitioners . As Table 2 shows, the average number of petitions filed against negotiated rules
is actually somewhat higher than the average number of petitions in challenges to conventional rules overall (3.7 petitions per challenged
negotiated rule versus 3.0 for challenged conventional rules).'91 The rate at which these challenges eventuality reach a court for decision is about
the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
more generally in all challenges lo EPA rules.19-7- The
As I explain in Assessing Consensus, the failure of negotiated rulemaking to live up to expectations is in part
explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. It
is
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can
even engender new conflicts. As we have seen, consensus is not always attainable, and even when it is. it may only temporarily
hide underlying conflicts.1 Negotiated rulemaking also creates new sources of conflict that do not
exist with other methods of policy making .19''1 Conflicts can arise over the selection of
participants in the negotiations, the meaning of agreements that are reached, and whether
the final rule is consistent with those agreements. Disagreements can even arise about the
implications of silence in the agreement over particular terms or issues. None of these
additional kinds of conflict arise in the absence of negotiated rulemaking. A recent negotiated
rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new
sources of conflict. HUD had originally named four public housing organizations to serve on
negotiated rulemaking committees for regulations addressing subsidies and capital funds.
After the housing organizations subsequently filed a petition against the agency over a
separate matter, HUD officials unilaterally declared that the organizations could no longer
bargain with the agency in good faith and removed them from the negotiated rulemaking
committees.-"" The housing groups filed for a court order reversing their removal from the
committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition,'01 HUD
eventually capitulated and reinstated the organizations as members of the negotiated
rulemaking committees, but the experience demonstrates a profound new source of
litigated conflict that, ironically, is found only in the very process that was intended to
reduce litigation.
Turnreg negs cause more conflict
Coglianese 97
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, Duke Law Journal, Volume
46, No. 6. 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj//ghs-kw)
1. Sources of Conflict Introduced by Negotiated Rulemaking. In seeking consensus over the substance of
regulations, negotiated rulemaking has long been considered a means of reducing conflict in the regulatory process. Yet formal
negotiation can actually foster conflict. It adds three new sources of conflict stemming from
decisions about membership on negotiated rulemaking committees; the consistency of final
rules with negotiated agreements; and the potential for an overall heightened sensitivity to
adverse aspects of rules. The first of these new sources of conflict stems from agency decisions about
membership on negotiated rulemaking committees. As discussed above, the criteria for negotiated
rulemaking have led agencies to prefer rules that affect a limited range of parties. Even
with this tendency, agencies have sometimes still not been able to include all the
organizations who feel they will be affected by a rule. Although the Negotiated Rulemaking Act insulates the
agency from judicial review of its decisions about membership on negotiated rulemaking committees, the exclusion of groups
from membership on the committees adds a source of discontentment not otherwise
present in notice-and-comment rulemaking.
develop a draft rule apparently attracts even closer scrutiny by organizations not represented at the negotiating table. Not surprisingly, the
EPA has been criticized by parties who were not invited to participate on the agency's
negotiation committees. In the asbestos rule, for example, the negotiations were temporarily disrupted while additional parties
sought to participate in the negotiations. In the disinfectant byproducts negotiation, the chlorine industry complained that it had been "unfairly
excluded" from full participation in the negotiated rulemaking. As I have already shown, the reformulated gasoline rule elicited a legal challenge
from a tank truck trade association which was not represented on the negotiated rulemaking committee, as well as trade challenges from two
countries not included on the committee. The negotiations over the Grand Canyon visibility rule and the wood furniture coatings rule also
prompted litigation by groups not participating on the negotiation committee. One organization alone is capable of upsetting a consensus built on
unanimity or filing a petition for judicial review. Consequently,
respondents reported that they had to "press" the EPA to let them participate. Thirty-five percent of those same respondents reported that at least
one affected interest was not represented at the negotiating table, a noteworthy finding considering that it is based on responses by those who
were represented. The
conflicts arise over the extent to which the agency has adhered to the
stated terms of the negotiated agreement . For example, in the reformulated gasoline case, the
petroleum industry felt betrayed by the EPA's subsequent decision to issue a separate rule
favorable to the ethanol industry. Similarly, in the Department of Education's student loan rulemaking, loan servicers charged
that the Department breached commitments it made during the negotiated rulemaking. More recently, the petroleum industry criticized the
Department of Interior's Minerals Management Service when it decided to reopen the comment period over its natural gas royalties rulemaking.
Without an attempt at negotiated rulemaking, these conflicts over the commitment of the
agency to a negotiated agreement could not arise. The third way negotiated rulemaking
can add conflict is by heightening the sensitivity of the parties to adverse portions of a rule.
Negotiated agreements raise expectations. When the agency does not follow the negotiated
agreement, the existence of the agreement itself stirs up dissatisfaction. For example,
consider a conventional rulemaking in which an agency fails to follow the input provided
by an affected organization. In that case, the organization has mainly to complain about
how adversely the rule affects its interests and how its comments were not accepted. If the
agency were to enact the very same rule in contravention of a negotiated agreement, the
organization would suffer both the adverse effects of the rule as well as the impression that
it had been "sandbagged."
Such a reaction in this latter case would seem even more likely if the organization had compromised
on other portions of the rule in order to secure gains on the portion subsequently undercut by the agency. Even if the underlying rule were the
same in both cases,
One side benefit often attributed to negotiated rulemaking is that it facilitates learning,
both by agency staff and interest group representatives. The additional time and resources groups devote to discussing rules developed through
negotiation provides greater awareness of the issues underlying the rule. When groups invest these additional resources in negotiation, their
representatives presumably also learn more about how aspects of the rule may adversely affect their group interests. Groups
may also
find that the more time they invest in a rulemaking proceeding, the less willing they are to
overlook imperfections in the rule. In these ways, the quest for consensus unintentionally
contributes new sources of conflict to the regulatory process that can limit negotiated
rulemaking's ability to reduce rulemaking time and litigation.
Reg neg doesnt solve litigation
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
In sum, more consensual processes yielded significantly higher net benefit ratings and possibly more agreement. Kerwin and Langbein asked reg
neg participants what constituted consensus in their formal negotiation sessions, expecting that more consensual decision rules would be
associated with greater satisfaction, higher ratings of organizational net benefits, and less conflict (i.e., more homogeneity) about those
judgments. The results were consistent with these expectations: ratings of the overall process were lowest and the standard deviations were
usually highest when the decision rule was what EPA wanted.262 Overall, then, the study supports the claim that negotiated rulemaking is more
consensual than conventional rulemaking. Further,
the 80 percent
no EPA analyses underlay the origin of
this statistic, even though it has taken on a life of its own. In order to test the validity of the statistic, I collected
data from the EPA's litigation docket as well as from the dockets at the U.S. Court of
Appeals for the District of Columbia Circuit. The EPA dockets included litigation filed against the agency in any
federal court during 1987-1991. During this time, the EPA issued 1568 rules and was named as a defendant in 411 cases in the U.S. Courts of
Appeals, where rule challenges must be filed. The major environmental statutes typically require that petitions for judicial review be filed within
a few months after the EPA promulgates a rule, so most petitions for review of a rule are filed in the year when the rule is published. Some small
portion of suits are not filed in the same year as the rule, but aggregating the entire five-year period minimizes any error due to such a time lag.
The litigation rate for rules issued during the 1987-1991 period covered by the EPA docket, even conservatively calculated, turned out to be much
lower than widely believed:
only 26 percent of rules issued were challenged . In calculating this rate, I have used
what I take to be the most realistic estimate for EPA rules. I have relied on a computer search of the Federal Register which specifically excluded
those rules that were minor corrections, technical amendments, or clarifications of other rules. When other available estimates of the total number
of EPA rules were used, the litigation rate dropped even lower. For instance, using Office of Management and Budget (OMB) data on the number
of final EPA rules promulgated during the same time period, the litigation rate amounted to only 19 percentprecisely the opposite of the rate
widely assumed. As is sometimes acknowledged, the
published in the EPA's semiannual Regulatory Agenda. Since the rules appearing in the
Regulatory Agenda are by definition more significant, the litigation rate can be expected to
be higher than that for all EPA rules. Unfortunately, the EPA docket data do not permit one to distinguish between suits
involving those rules that are listed in the Regulatory Agenda and those that are not. Therefore I used court records from the D.C. Circuit to
determine the rate of litigation for significant EPA regulations promulgated under two major statutes, the Resource Conservation and Recovery
Act (RCRA) and the Clean Air Act, for the period 1980-1991. Any suits challenging significant, national rules under these statutes must be filed
in the United States Court of Appeals for the District of Columbia Circuit. A total of 220 nationally-applicable significant RCRA and Clean Air
Act rules were completed from 1980 to 1991. Of these, petitions for review were filed against 77, yielding an aggregate litigation rate of 35
percent. As Table 4 shows, Clean Air Act regulations were challenged less frequently (31%) than RCRA rules (43%) over this time period. Table
4. Litigation of Significant Clean Air Act and Resource Conservation and Recovery Act Rules, 1980-1991 CAA RCRA Total Rules 141 79 220
Challenges 43 34 77 Litigation Rate 31% 43% 35% Note: The "Rules" row lists the totals of all nationally-applicable rules that the EPA
considered significant enough to merit listing in its semi-annual regulatory agendas. These totals include those rules classified as "major" under
Executive Order 12,291 as well as other non-minor and non-routine rules. The "Challenges" row lists the subset of rules over which one or more
affected parties filed a petition for review in the United States Court of Appeals for the D.C. Circuit Since not all petitions for review reach an
appellate panel for a decision which can be reported, data on filings were obtained from the docket records at the D.C. Circuit Although
conventional wisdom and the legislative history of the Negotiated Rulemaking Act suggest
that only a minority of EPA rules escape litigation, a closer look at the available data
indicates that the prevailing view has things backwards. The majority of EPA rules escape
litigation, with petitions for review filed for at most about a quarter of them . The
litigation rate for significant rules under two major statutes is somewhat higher35
percentbut still well under the .80 percent rate that scholars have previously cited. More
than previously thought, litigation over EPA rules occurs selectively, if not infrequently. How does EPA's track record for
negotiated rules compare with its track record for rules overall? The National Performance
Review's 20 percent litigation rate was based on an incomplete review of the first ten
negotiated rulemakings finalized by EPA. However, when all twelve of these rules are included, and when a more
complete search of court records is made, the actual litigation rate is much higher. On the basis of my review of records at
the D.C. Circuit Court of Appeals, at least six of EPA's twelve finalized rules developed using
negotiated rulemaking have been subject to petitions for judicial review filed in federal
court . The challenged regulations include those addressing: 1) asbestos in school buildings;
2) the underground injection of hazardous wastes; 3) reformulated fuels; 4) chemical
equipment emissions leaks; 5) wood furniture coatings; and 6) the collection of information
on disinfectant byproducts. I have already discussed the judicial challenges filed against the EPA's reformulated gasoline rule,
challenges which involved both participants in the negotiated rulemaking process, such as the American Petroleum Institute, as well as outsiders
like the National Tank Truck Carriers. The additional challenged reg negs show that a similar set of actors filed petitions for review. Many
petitioners have been participants in the negotiated rulemaking proceedings. However, sometimes the petitioners were not members of the
rulemaking committee, as with the Grand Canyon visibility rule and reformulated gasoline rule. One additional rulethe wood furniture coating
regulationdrew petitions from trade associations that were not represented on the negotiated rulemaking committee. A brief review of these
additional challenges demonstrates the range of petitions filed over negotiated rules. Asbestos in School Buildings. The EPA used negotiated
rulemaking to establish methods for public schools to follow in identifying and mitigating asbestos exposure. After the EPA promulgated its final
rule, the Safe Buildings Alliance (an asbestos industry trade association), two building products manufacturers, and two individuals filed petitions
for review. A third building products company, GAF Corporation, intervened in the case, as did the American Association of School
Administrators and various state attorneys general. Although the Safe Buildings Alliance had signed the limited consensus statement which
concluded the negotiated rulemaking, the industry nevertheless challenged the rationality of EPA's action, specifically objecting to its failure to
define a safe level of asbestos exposure and arguing that its decision to allow the removal of asbestos would raise the level of asbestos fibers in
the air. The arguments were briefed and presented to a panel of the D.C. Circuit Court, which in the end upheld the rule against all the challenges.
Underground Injection of Hazardous Wastes. The EPA's underground injection rule established standards for the use of underground methods
for disposing of and storing hazardous wastes. After EPA completed the rulemaking, five petitions were filed by interests represented in the
negotiated rulemaking, including the waste treatment industry, the chemical industry, and an environmental group. These petitions were
consolidated and three major trade associationsthe American Petroleum Institute, the American Iron and Steel Institute, and the Institute for
Chemical Waste Managementintervened in the case. The chemical industry challenged the rule's permitting process, its application of the
statute's "no migration" standard, and the agency definition of "no migration," which included even the migration of hazardous constituents of
hazardous wastes. The Natural Resources Defense Council and the Hazardous Waste Treatment Council also challenged the EPA's application of
the "no migration" standard, arguing that it should apply to the seepage of hazardous constituents from otherwise non-hazardous waste.
Petitioners also challenged the rule's definition of "injection zone" and its standards for injection into salt domes, underground mines, and caves.
A panel of the D.C. Circuit upheld the rule against all but one of the challenges, remanding the standards for salt domes, mines, and caves for a
finding that these standards satisfied the statutory requirements. Chemical Equipment Leaks. The equipment leaks rule was designed to control
releases of hazardous emissions from valves, flanges, and other connecting points in chemical manufacturing facilities. Through a series of
negotiation sessions, the participating chemical companies and environmental groups reached an agreement on procedures for monitoring leaks.
Before the agency could promulgate the rule, Congress passed amendments to the Clean Air Act and the EPA incorporated the negotiated
agreement into a broader set of national emissions standards for hazardous air pollutants (NESHAP) generated by the chemical industry. The final
rule, known as the Hazardous Organic NESHAP, or HON rule for short, regulated releases from heat exchange systems, wastewater streams,
process vents, and storage vessels, as well as from equipment leaks. The equipment leaks portion of the rule remained largely as the negotiated
rulemaking committee had agreed. Following the promulgation of the final rule, the Chemical Manufacturers Association and Dow Chemical
Company, both of whom were represented in the negotiated rulemaking, filed petitions for review challenging numerous aspects of the HON rule.
Although most of their objections were leveled at aspects of the rule which were not subject to the negotiated rulemaking, they also raised
concerns about certain parts of subpart H, the equipment leaks portion of the final rule. The petitioners and the EPA entered settlement
discussions within a few months and eventually reached an agreement on dozens of changes to the final rule. The agency subsequently
promulgated revisions to subpart H of the rule, including changes to the control options for leaks from compressors, an issue that had been
overlooked by the chemical industry during the negotiations. Wood Furniture Coatings. Like the HON rule, the wood furniture coatings rule
established national emissions standards for hazardous air pollutants. The negotiated rulemaking process brought together representatives from
the wood furniture industry, suppliers of wood coatings, and environmental groups. During these negotiations, environmental representatives
expressed concern that the furniture industry might substitute other potentially hazardous chemicals not specifically covered under the rule. The
parties subsequently agreed to incorporate into the rule a list of other chemicals (not currently used by the wood coatings industry) labeled as "of
potential concern." After EPA promulgated the final rule, three chemical industry trade associations not represented in the negotiations filed
petitions for review challenging the listing of additional chemicals as "of potential concern." As of November, 1996, the EPA was engaged in
settlement discussions with the Chemical Manufacturers Association, the Halogenated Solvents Industry Alliance, and the Society of Plastics
Industry over this issue. Disinfectant Byproducts. The most recently challenged reg neg established monitoring requirements that allow the EPA
to collect data on drinking water quality. To control microbial contamination, water suppliers treat drinking water with disinfectants. Responding
to concerns about the chemical byproducts created when disinfectants react with chemicals already in the water, the EPA convened a negotiated
rulemaking proceeding to develop enhanced standards for microbial and new standards for disinfectant byproducts. The negotiations resulted in
two proposed rules on disinfectant byproducts and water treatment, and a final rule governing the collection of information the agency needs
before finalizing the two proposed rules. Following EPA's promulgation of the information collection rule, the American Water Works
Association (AWWA), a member of the rulemaking committee, reported that it "was surprised and disappointed by some significant provisions of
the regulation." AWWA argued that the EPA established a statistically unreliable monitoring procedure in its final rule which was not included in
the proposed rule. Faced with a limited statutory deadline for filing a petition for judicial review, AWWA filed a petition in the D.C. Circuit Court
challenging the information collection rule. AWWA objected to the time period for water suppliers to complete the required monitoring, as well as
to the specific monitoring tests required under the final rule. After several months of discussions with the EPA, AWWA decided to withdraw its
petition. AWWA reported that some of the issues related to the compliance schedule had been resolved, and that the EPA was inclined to consider
its concerns about the testing procedure. Following the filing of AWWA's petition, for example, EPA's Science Advisory Board's Drinking Water
Committee met to examine the reliability of the new monitoring requirements imposed by the agency. Given the ongoing nature of the EPA's
actions on microbial and disinfectant byproducts, AWWA decided to pursue its "fundamental disagreement" with the EPA outside of court and in
the context of ongoing discussions with the agency and other organizations over the final substantive standards. These ongoing discussions with
participants in the negotiated rulemaking have sometimes engendered disagreement over what the parties actually agreed to in their negotiations
over the substantive (drinking water standards. As
In each of
petitioners challenged EPA rules notwithstanding the fact that the rules had
reached an appellate panel for a decision, this relatively small number of adjudicated cases is typical of the overall pattern of judicial review
challenges. For all challenges to EPA rules filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an
appellate panel. Negotiation and settlement discussions typically follow the filing of challenges to any EPA rule, making the process of litigation
over regulations compatible with ongoing cooperation between representatives of litigating organizations and EPA staff. In the aggregate,
negotiated rulemaking has not generated any substantial difference in the way that legal challenges get resolved. For years, proponents
of
The Grand Canyon visibility rulemaking has been described "as a prototype 'win-win'
solution of an environmental problem and a model for other regulatory negotiations." The
process was featured prominently in a front-page New York Times article on EPA's use of negotiation as an alternative to "the lawsuit system."
Yet what has not been reported is that, notwithstanding the "virtually unprecedented
cooperation between the governmental agency and the directly affected parties," the
Grand Canyon visibility rule still ended up in federal court. The rule was challenged not
by participants to the negotiation, but by outsiders to the negotiated rulemaking process:
the Central Arizona Water Conservation District and four other irrigation districts that
purchased electricity from NGS, each claiming the visibility rule would increase their energy costs. The same New York
Times article that hailed the visibility rule also referred to EPA's reformulated gasoline rule as a model of a successful
negotiated rulemaking. The 1990 Clean Air Act required the EPA to issue a rule mandating the use of oxygenated fuel to reduce urban smog in
nonattainment areas. The EPA chose to use a formal negotiated rulemaking process to develop a proposal for this rule. The EPA selected
representatives from the automobile, petroleum, and renewable fuel industries, as well as from the environmental community. After arduous and
fragile negotiations, the parties reached what one report described as a "nearly litigation-proof agreement." Yet in
terms of avoiding
litigation and eliminating conflict, the reformulated gasoline rule has turned out to be
anything but successful. Within ten days of the publication of the final reformulated
gasoline rule in the Federal Register, both the American Petroleum Institute (API) and
Texaco, Inc. filed petitions for judicial review , objecting to a provision in the final rule in which EPA would publish
refiners' individual baseline standards instead of keeping this information confidential. The American Automobile
Manufacturers Association, the Association of International Automobile Manufacturers,
and the Renewable Fuels Association intervened in these actions. Following settlement discussions and an
out-of-court agreement reached with the petitioners, EPA proposed and promulgated a revision to the final rule
under which EPA would release only part of the baseline information and would treat claims of business confidentiality in accordance with the
agency's ordinary standards for protecting confidentiality. Two
Committee by other petroleum companies and by API, one petitioner challenging the reformulated gasoline rule had no direct or indirect
representative on the committee. The
National Tank Truck Carriers (NTTC), a trade association representing about 200
common carrier fuel transporters, also filed a petition for review against EPA. NTTC objected to provisions of the final
reformulated gasoline rule that held common carrier tank truck companies liable if fuel they transported for refiners did not meet the standards set
out in the rule. NTTC
argued that the Clean Air Act granted EPA the authority to establish fuel
standards but not the authority to regulate the transportation of reformulated fuels. It also
argued that the final rule denied common carriers' equal protection rights because it left private carriers and jobbers immune from liability
without any rational basis. Following the submittal of NTTC's brief but before EPA submitted its response, both parties reached a settlement
agreement under which the EPA would revise the final reformulated gasoline rule. The judicial proceedings have been held in abeyance pending
the implementation of the settlement agreement. As
regulations receive attention in the popular media (even hi elite papers such as the New York Times), the reformulated gasoline rule splashed
across the papers following the introduction of the new fuel. Citizens
the reformulated gasoline rule also earned the distinction of being the first U.S. regulation
struck down by the World Trade Organization. Venezuela and Brazil successfully
challenged the foreign refiner baseline provisions in the reformulated gasoline rule as
discriminatory and in violation of trade rules. The EPA was forced to revisit issues in the reformulated gasoline rule
again, issuing a revised rule more than three years after publishing its original final rule. A rule that has been heralded as
one of negotiated rulemaking's success stories demonstrates instead that the achievement
of an initial consensus by no means guarantees the elimination of controversy.
The reformulated
gasoline rule and the Grand Canyon visibility rule are but two illustrations that negotiated rulemaking is no panacea for conflict in the regulatory
process. In addition to the challenges filed against EPA rules, several
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "(t)he malaise of administrative
law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." - He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: We
have grown
accustomed lo rulemaking procedures that take several years to complete at the agency
level and, in the event judicial review is sought, another year or two in the courts. The cost of
participating in such a proceeding for both the agency and the private parties can be staggeringly high.1' For Harter, negotiated rulemaking
provided an alternative that would "reduce the time and cost of developing regulations/*14 He argued that it offered agencies an antidote to "the
traditional battle" of conventional rulemaking.15 In
of administrative law? To evaluate whether negotiated rulemaking has had its intended impact, it is helpful to conceive of agencies'
use of negotiated rulemaking as an experiment. This is, after all, exactly how Harter and officials at ACUS described negotiated rulemaking when
they first recommended its use.^" Of course, like most procedural and policy innovations, negotiated rulemaking has not been employed by
agencies in a way that permits researchers to evaluate its impact through pure experimental methods.-11 Agencies have not, for instance, selected
rules for negotiation randomly from among all of an agency's rules, but instead have tended deliberately to select rules for negotiation only after
concluding that the rule stands a reasonable likelihood of successful negotiation. Although a true experimental method Neil Kerwin and Scott
Furlong conducted a study of the duration of EPA rulemakings in which they briefly mentioned that they compared the duration of the four
negotiated rules in their sample with the duration of the larger sample of 150 of the most significant EPA rules completed through the
conventional rulemaking process.411 Using dates from EPA's internal regulatory management system as their basis for operationalizing the
duration of rulemaking. Kerwin and Furlong found that, on average, the four negotiated rules went through the entire rulemaking process about
eleven months faster than did the average conventional rule in their sample. A second effort to compare the outcomes of negotiated and
conventional rulemakings could be found in the Clinton Administration's National Performance Review (NPR) report "Improving Regulatory
Systems."4- The NPR report made brief but explicit claims comparing EPA's negotiated rules with its conventional rules in terms of both time
and the incidence of litigation. In addition to citing the time savings reported by the Kerwin and Furlong study, the author of the NPR report
stated that at EPA negotiated rulemakings had shortened the rulemaking process by up to eighteen months when compared with conventional
rulemaking. The report also asserted that negotiated rulemaking reduced the litigation rate for EPA rules from around seventy-five to eighty
percent to twenty percent for negotiated rules.4? legislators, agency officials, practitioners, and scholars who have advocated its use over the
years. The goals of saving tittle and reducing litigation are by far the most prominent ones invoked in the literature and the legislative history.46
My research follows appropriate standards for empirical research and overcomes major limitations of the two prior efforts to make comparative
assessments of negotiated rulemaking. Unlike Erwin and Furlong {who, in fairness, never really set out to evaluate negotiated rulemaking), I
include in my assessment all the negotiated rulemakings completed by EPA during the study
period. Unlike the NPR report, I rely on primary source data on the filings of suits challenging EPA
rules and thus provide an accurate account of litigation filed against both negotiated and
conventional rules. By carefully applying empirical research methods, I find that on average it
has taken EPA about three years to develop a rule, regardless of whether the agency used
negotiated rulemaking or conventional rulemaking procedures.47 The median duration is
also about the same for negotiated and conventional rules.4S Negotiated rulemaking does
seem to make a difference when it comes to litigationhowever, the difference is in the
direction opposite to what has been expected. Negotiated rules are challenged fifty percent
of the time, while other comparable, significant EPA rules are challenged only thirty-five
percent of the time.4tJ These results indicate all too clearly that negotiated rulemaking has failed to
accomplish its goals of preventing litigation and saving time. Negotiation simply does not
"cure" regulatory malaise.
Reg Negs dont resolve delays or litigation---best empirically validated research
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship/) Deng
I Is Negotiated Rulemaking a "Cure"? In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "the malaise
of administrative law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." n12 He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: (*390) We have grown accustomed to rulemaking
procedures that take several years to complete at the agency level and, in the event judicial review is sought, another year or two in the courts. The cost of participating
in such a proceeding for both the agency and the private parties can be staggeringly high. n13 For Harter, negotiated rulemaking provided an alternative that would
"reduce the time and cost of developing regulations." n14 He argued that it offered agencies an antidote to "the traditional battle" of conventional rulemaking. n15 In
negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation. n16 The agency (*391) convenes a committee comprised of
representatives from regulated firms, trade associations, citizen groups, and other affected organizations, as well as members of the agency staff. n17 The committee
meets publicly to negotiate a proposed rule. If the committee reaches consensus, defined as a unanimous concurrence of all the interests, the agency uses the
agreement as a basis for its proposed rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. n18 Harter's 1982
article proved instrumental in garnering support for negotiated rulemaking as an alternative to conventional rulemaking. The article was based on a report to the
Administrative Conference of the United States (ACUS), which then formed the basis for ACUS's recommendation that federal agencies pursue negotiated
rulemaking. n19 The initial ACUS recommendation noted that under the existing form of notice-and-comment rulemaking, "long periods of delay result, and
participation in rulemaking proceedings can become needlessly expensive." n20 ACUS's recommendation was premised on the expectation that negotiated rulemaking
would overcome the delays, litigation, and other adverse consequences associated with conventional rulemaking and would result in rules more acceptable to the
interests affected by agency decisions. n21 In the years following Harter's article and ACUS's recommendation, agencies began to experiment with negotiated
rulemaking and Congress began to consider legislation to provide clear authorization for its use. n22 Legislative debate in Congress, along with extensive commentary
by academics and practitioners, emphasized that negotiated rulemaking would help (*392) reduce the delays and litigation that were thought to dominate the
conventional rulemaking process. n23 In the years leading up to the passage of the Negotiated Rulemaking Act of 1990, n24 regulatory negotiation was consistently
advocated as a means of improving what was thought to be a time-consuming, litigation-prone regulatory process. From 1983, when the Federal Aviation
Administration (FAA) initiated the first federal negotiated rulemaking, n25 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized, n26 about
a dozen federal agencies used the procedure to develop and issue at least one rule. All told, federal agencies had completed thirty-five rules using negotiated
rulemaking, a number that amounted to less than 0.01% of all rules issued during the same period. n27 As of 1996, EPA had completed twelve negotiated rulemakings,
still aims to adhere to the basic principles used in an experimental research design as much as possible. Since negotiated rulemaking is thought to be a treatment or a
"cure" for the delays and litigation generated by the normal rulemaking process, the appropriate way to evaluate its impact is to compare the outcomes of rules that
have been treated with negotiation with the outcomes of a comparison group of similar rules that have not had the negotiation treatment. This comparison group
permits researchers to make an inference about the counterfactual, or about what would have occurred in the treatment group absent the application of the negotiation
process. In comparing the outcomes of rules in the treatment group with rules in the comparison group, social scientists adhere to a number of exacting standards to
ensure that their research results are sound. n33 In assessing the recent claims made by Harter, three fundamental principles for neutral empirical analysis are
important to keep in mind. First, researchers need to develop and apply clear criteria for determining what constitutes a treatment and how to measure outcomes. n34
Social scientists call this the process of "operationalizing" key variables and collecting reliable data on them. n35 The measurement of a rulemaking's duration, for
example, should follow a clear standard. Otherwise, measurements become difficult, if not impossible, to interpret and replicate. Second, researchers should strive to
apply the same criteria and analysis to both the treatment group (negotiated rulemaking) and the comparison group (conventional rulemaking). n36 (*395) Since the
analysis aims to compare the outcomes of both groups, it is important that analysts try to measure the same outcomes consistently across both groups. To do otherwise
would be like having election officials in a contested election apply one rule when interpreting votes on ballots favoring one party and a different rule when
interpreting votes on ballots favoring the other party. Finally, it is essential to include in any impact analysis those cases where the treatment failed. n37 Just as it
would be obviously tautological to conclude that a medicinal cure was effective after examining only the cases where the medicine appeared to work, so too would it
be mistaken to declare the success of negotiated rulemaking without considering the cases where it failed. We can only know how well a treatment works if we study
all the cases in which it has been applied or tried. In the case of negotiated rulemaking - just as with medications - the treatment sometimes fails. Even if a consensus
is not reached, the attempted negotiation must still be analyzed and included in the treatment group for the purpose of assessing the effectiveness of the negotiation
of the procedure was at best extremely thin. Only a few minor efforts existed that compared the results of negotiated rulemaking directly with the results of
conventional rulemaking. n39 In the first such effort, (*396) Neil Kerwin and Scott Furlong conducted a study of the duration of EPA rulemakings in which they
briefly mentioned that they compared the duration of the four negotiated rules in their sample with the duration of the larger sample of 150 of the most significant EPA
rules completed through the conventional rulemaking process. n40 Using dates from EPA's internal regulatory management system as their basis for operationalizing
the duration of rulemaking, Kerwin and Furlong found that, on average, the four negotiated rules went through the entire rulemaking process about eleven months
faster than did the average conventional rule in their sample. n41 A second effort to compare the outcomes of negotiated and conventional rulemakings could be found
in the Clinton Administration's National Performance Review (NPR) report "Improving Regulatory Systems." n42 The NPR report made brief but explicit claims
comparing EPA's negotiated rules with its conventional rules in terms of both time and the incidence of litigation. n43 In addition to citing the time savings reported
by the Kerwin and Furlong study, the author of the NPR report stated that at EPA negotiated rulemakings had shortened the rulemaking process by up to eighteen
months when compared with conventional rulemaking. n44 The report also asserted that negotiated rulemaking reduced the litigation rate for EPA rules from around
seventy-five to eighty percent to twenty percent for negotiated rules. n45 (*397) In my research, I have also taken a comparative approach in evaluating the impact of
negotiated rulemaking on the duration of rulemaking and the subsequent incidence of litigation. As I state in Assessing Consensus: My purpose ... is simply to assess
negotiated rulemaking on its own terms, using the standards that have been set for it by those legislators, agency officials, practitioners, and scholars who have
advocated its use over the years. The goals of saving time and reducing litigation are by far the most prominent ones invoked in the literature and the legislative
history. n46 My research follows appropriate standards for empirical research and overcomes major limitations of the two prior efforts to make comparative
assessments of negotiated rulemaking. Unlike Kerwin and Furlong (who, in fairness, never really set out to evaluate negotiated rulemaking), I include in my
assessment all the negotiated rulemakings completed by EPA during the study period. Unlike the NPR report, I rely on primary source data on the filings of suits
challenging EPA rules and thus provide an accurate account of litigation filed against both negotiated and conventional rules. By carefully applying empirical research
on average it has taken EPA about three years to develop a rule, regardless of
whether the agency used negotiated rulemaking or conventional rulemaking procedures . n47
The median duration is also about the same for negotiated and conventional rules. n48 Negotiated
methods, I find that
rulemaking does seem to make a difference when it comes to litigation - however, the difference is in the direction opposite to what has been expected.
Negotiated rules are challenged fifty percent of the time, while other comparable,
significant EPA rules are challenged only thirty-five percent of the time. n49 These results indicate all too
clearly that negotiated rulemaking has failed to accomplish its goals of preventing litigation and saving time. Negotiation simply does not "cure" regulatory malaise.
(*398) II Evaluating the Duration of Negotiated Rulemaking Harter disagrees with these findings. He first criticizes how I evaluate negotiated rulemaking's impact on
the duration of the regulatory process, arguing that I should exclude from my study one rule that EPA negotiated - the farmworker protection rule - because its
committee failed to reach a consensus. n50 In a few other cases, he also questions my reliance on the publication of the final rule to mark the completion of the
rulemaking process. n51 In total, Harter criticizes my data with respect to the four EPA negotiated rulemakings that took the agency the longest to complete. As a
result, Harter claims that once his modifications to the data are made, the average duration of negotiated rulemakings is shorter than the duration of conventional
rulemakings. n52 He is correct that the average duration would decline if the longest negotiated rules were to be excluded or their length were to be truncated. He is
wrong, however, to suggest that such modifications should be made. The farmworker protection rule, while a failure in terms of achieving consensus, still represented
an earnest effort by the EPA to negotiate the rule and merits inclusion in any evaluation of negotiated rulemaking. n53 The other modifications Harter urges fail to
adhere to the basic precepts of consistency and reliability in empirical analysis. n54 Moreover, even if one were to be persuaded by Harter's advocacy, his
modifications would only affect the average duration of negotiated rulemaking, and not the more appropriate measures of rulemaking time. n55 The median duration
of negotiated rulemaking remains largely unchanged even after Harter's modifications. n56 More significantly, whatever one makes of the duration of rules from start
to finish, the overall investment of staff time and effort by agencies and outside organizations remains indisputably and significantly greater for negotiated rulemaking.
(*399) A. EPA's Negotiated Rulemaking on Farmworker Protection Harter first seeks to exclude from analysis what he calls the "peculiar case" of the farmworker
protection rulemaking. n57 In 1985, EPA initiated a negotiated rulemaking process to establish a regulation that would reduce the exposure of agricultural workers to
the spray of pesticides. n58 The agency convened a negotiation committee comprising representatives from farming organizations, farmworker unions, agricultural
and forest products trade associations, state and local governments, the U.S. Department of Agriculture, and the EPA. n59 The committee met as a plenary group on
several occasions, established a series of five working groups, and developed and circulated working drafts of a proposed regulation. n60 As the committee neared
completion of a final draft of the proposed rule, the negotiations reached an impasse, n61 and the representatives from the farmworker organizations decided to end
their involvement with the negotiations. n62 The EPA attempted to bring the farmworkers' representatives back into the discussions and continued to meet with the
remaining members of the committee. n63 In the end, however, the agency was unable to secure a meaningful consensus without the involvement of the farmworkers'
representatives, whom the agency failed to bring back to the table officially. Harter claims the farmworker protection rule should be excluded from my analysis of the
effectiveness of negotiated rulemaking. n64 He asserts that the farmworker protection negotiated rulemaking was "abandoned" by EPA and that the bulk of the time
associated with this regulation should not be attributed to negotiated rulemaking because it took place after the negotiations (*400) collapsed. n65 Yet what happened
in the farmworker protection rulemaking could happen in any negotiated rulemaking. Negotiation does not always yield a consensus, and the mere fact that consensus
is not reached is no reason to exclude from evaluation those rules for which the agency otherwise earnestly tried to use negotiation. If we are to determine whether
negotiated rulemaking is effective in achieving its goals, both common sense and conventional empirical research methods dictate that we look at all the cases where
the technique was used, not only those cases where it succeeds. Although negotiated rulemakings should be excluded when they were genuinely abandoned, I
specifically state in Assessing Consensus that by "abandoned" negotiated rulemakings "I do not mean that the participants failed to reach consensus." n66 Rather, in a
passage that Harter quotes, n67 I treat as "abandoned" those rulemakings for which the agency, at some point after publication of an intent to negotiate, either (1)
"decided not to commence negotiations," (2) "disbanded the committee before seeking even a limited agreement," or (3) "withdrew the underlying regulatory action
altogether." n68 Rulemakings that meet any one of these three criteria are rulemakings for which the agency failed to use the negotiation process earnestly as a means
of developing a rule, or for which the agency declared its decision to issue no rule at all. n69 They are cases where the agency essentially decided to forego altogether
the experimental treatment called negotiated rulemaking. The EPA did commence and earnestly pursue negotiations in the farmworker protection rule. The agency
worked diligently and responsibly to seek an agreement in this case, and apparently even came close to doing so. n70 When problems arose, the agency (*401) and the
other parties offered to replace the facilitator in an effort to keep the farmworkers' representatives on the committee. n71 The EPA continued to hold meetings with the
rest of the committee, "hoping that the farmworkers' representatives would return." n72 In addition, the EPA reportedly continued to share drafts of the proposed rule
with the farmworkers' representatives before the opening of the notice-and-comment period. n73 EPA did not "abandon" the farmworker protection negotiated
rulemaking; rather, one non-governmental interest abandoned the negotiation committee - the committee simply failed to reach a consensus. n74 EPA did eventually
issue a final farmworker protection rule, and in doing so the agency made a point of crediting the negotiation process for having "helped shape the proposed
regulation." n75 Harter himself suggests that the agency learned much from the negotiation process and that the discussion draft that emerged from the negotiations
formed a basis for its final rule. n76 In making this suggestion, however, Harter essentially concedes that the farmworker protection rule was, after all, a negotiated
rulemaking. One cannot consistently treat the rule as a negotiated rulemaking in order to claim credit for some benefits, only (*402) to exclude it when it comes to
assessing whether negotiated rulemaking achieves other benefits. Significantly, no one ever claimed that the farmworker protection rule should be treated as anything
but a completed negotiated rulemaking until after my research results were published. Lee Thomas, who served as the EPA Administrator during the negotiations and
through the publication of the proposed rule, counted the farmworker protection rule among EPA's negotiated rules. n77 When the EPA's Office of Policy, Planning
and Evaluation set out to assess how well negotiated rulemaking worked, it included the farmworker protection rule in its study. n78 Indeed, on eight separate
occasions, the EPA listed the farmworker protection rule as an example of one of its negotiated rulemaking in the Federal Register. n79 The rule has appeared in three
separate (*403) reports issued by ACUS, again listed as one of EPA's negotiated rulemakings. n80 EPA's Consensus and Dispute Resolution Program has kept its own
internal list of EPA negotiated rulemakings, on which the farmworker protection rule can be found. n81 Finally, the director of the Consensus and Dispute Resolution
Program, Chris Kirtz, published an article listing the farmworker protection rule as one of EPA's negotiated rulemakings. n82 Interestingly, EPA's internal list of
negotiated rulemakings was recently modified to add a sentence to the description of the farmworker protection rulemaking stating that the "negotiation was
abandoned." n83 This statement never appeared in three earlier versions of this EPA list of negotiated rulemakings, n84 making it reasonable to wonder why EPA staff
would change its description in this document more than five years after EPA issued its final rule and more than ten years after the farmworkers reconsidered their
involvement in the negotiations. Perhaps part of (*404) the explanation lies in the fact that EPA made a point to distribute copies of its altered list at the 1998
Association of American Law Schools panel organized around my research. n85 When the farmworker protection proceeding was described earlier by the agency in
the Federal Register, EPA never described the negotiated rulemaking as having been "abandoned" (the same word used to label the category of rules excluded from my
study). Rather, EPA noted that representatives from four groups "decided to discontinue participation in the Regulatory Negotiation process" and that afterwards the
agency still scheduled four additional meetings with the remaining members of the negotiation committee. n86 Notwithstanding Harter's and EPA's efforts to revise
the historical record, the farmworker protection rule is properly considered one of the agency's negotiated rules. Administrative law scholars have considered it as
such. n87 Moreover, Laura Langbein and Neil Kerwin, whose research Harter considers "rigorous" and "the only careful and comprehensive" empirical research on
negotiated rulemaking, n88 initially included the farmworker protection rule in their study. n89 They eventually dropped it from their sample of negotiated rules, but
not because of any principled (*405) or methodological reason for excluding it from a study of the performance of negotiated rulemaking. Rather, Langbein and
Kerwin dropped it simply because they were unable to locate enough of the participants in the rulemaking to interview. n90 Furthermore, Harter has himself
acknowledged that the farmworker protection rulemaking was a negotiated rulemaking, going so far as to reprint the organizational protocol for the negotiations as an
appendix to an earlier article. n91 It is understandable why an advocate would now like to treat the farmworker protection rulemaking as if it were not a negotiated
rulemaking for the purpose of determining the average duration of negotiated rules. The farmworker protection rule took longer to complete than any other. n92 As
Harter points out, removing this one rule from the group of EPA negotiated rulemakings has the effect of decreasing the average duration of these rules by
approximately four months. n93 Yet Harter fails to note that in using Federal Register notices to compute the duration of negotiated rulemakings, I actually understate
the average duration by about the same amount of time. As I note in Assessing Consensus, "Federal Register listings yield an average time for the four negotiated rules
in the Kerwin and Furlong study of 1.8 years (647 days), more than four months shorter than the average they report for the same rules (778 days)." n94 My approach
therefore underestimates rulemaking duration because it excluded the agency work that precedes the publication of a notice of intent and which leads the agency to
make the decision to engage (*406) in a negotiated rulemaking. In this and other ways, my approach relies on conservative measures that in effect create a "deliberate
bias in favor of finding a time savings in rules developed with negotiated rulemaking procedures." n95 As a result, even supposing the farmworker protection rule
should be excluded as a negotiated rulemaking, the resulting average time decrease caused by excluding it is still within the bounds of what can be explained by the
conservative measure I used for the duration of negotiated rulemaking. n96 It is simply not possible to conclude with any confidence that negotiated rulemaking has
made the rulemaking process significantly shorter. B. Calculating Rulemaking Duration Harter critiques my analysis of rulemaking duration in other ways. He claims,
for example, that by using a "strictly numerical methodology" for evaluating the duration of rulemaking I have ignored "the varying complexity of rules." n97 He
notes that "rulemaking is an inherently political activity" and argues that "counting days between two events disregards all the dynamics of political activity." n98
Although Harter never clearly states what inference he thinks should be drawn from these vague points, he appears to be suggesting either (1) that negotiated
rulemaking should not be subject to empirical evaluation n99 or (2) that omitted, perhaps even unmeasurable, variables influence the duration of the rulemaking
process, making quantitative analysis unreliable. There is no reason to support the first claim that negotiated rulemaking should be exempt from the kind of evaluation
to (*407) which other policies or procedures are normally subjected. n100 Even advocates of negotiated rulemaking recognize that it should be subject to evaluation.
n101 The second claim raises a concern that should be considered for all empirical research, but it matters only if there is reason to suspect that omitted variables are
relevant and systematically biasing the results in one direction. n102 Harter offers no credible reason to suspect that the so-called "dynamics" inherent to all
rulemaking systematically operate to lengthen the time it would otherwise take to complete the rulemakings that were negotiated, nor does he specify any particular
variable that should have been included in my analysis. In contrast, I extensively scrutinize the possibility of omitted variable bias in Assessing Consensus. n103 All
the available evidence indicates that the rules selected for negotiation tend to involve underlying issues and interests that made them more - not less - likely to succeed
in achieving a timely outcome. n104 EPA has not used negotiated rulemaking for (*408) the rules affecting the broadest number of organizations nor for those rules
raising the most contentious policy issues. Rather, the agency has tended to follow the advice of negotiation consultants, as well as the guidelines of the Negotiated
Rulemaking Act, to select rules for negotiation for which the agency determines there is a preexisting likelihood of success within a limited amount of time. n105
Admittedly, on some occasions the agency has selected significant rulemakings to negotiate and, as we know, it has also sometimes misjudged whether a consensus
could be attained in a fixed time period. n106 Overall, though, the agency has tended to select rules that are expected to take less time to promulgate. n107 Harter also
claims that instead of using a consistent, verifiable method of calculating rulemaking duration, I should have imputed different ending points to negotiated rules based
on "the actual, immediate goal the agency hoped to accomplish" and "what those who would be affected by the agency's action thought." n108 Harter asserts that
because I used the date when the agency published its final rule, rather than imputing ending (*409) points for negotiated rulemakings, I fail "to conduct an accurate
empirical study of rulemaking." n109 Actually, the danger is just the opposite. If researchers studying the duration of rulemaking were to make their own ad hoc
decisions about when a rulemaking begins and ends, their research would lack reliability. n110 Without clear criteria for collecting data and making measurements,
individual researchers would have to make their own decisions about when an agency's rulemakings ended. Such an approach would make it exceedingly difficult, if
not impossible, to verify and interpret results across studies. n111 Thus, it is important for researchers to operationalize rulemaking duration using a consistent,
verifiable indicator such as Federal Register notices or other uniform administrative indicators. This is almost certainly the reason that Neil Kerwin and Scott Furlong
opted for such an approach, relying on the dates found in EPA's internal regulatory tracking system rather than their own interpretation of when individual
rulemakings were completed. n112 More recently, political scientists John Wright and Steven Balla conducted a further study of the length of negotiated rulemaking again using the dates of notices in the Federal Register. n113 Choosing the date on which a final rule is promulgated (*410) is particularly appropriate given that this is
the point at which the agency has taken a final, legally reviewable action. n114 Since one of the main goals attributed to negotiated rulemaking is to reduce subsequent
litigation over agency rules, it is entirely appropriate to use the publication of the final rule as the ending point of a negotiated rulemaking for purposes of evaluation.
Even Langbein and Kerwin, in the study that Harter praises, regard the outcome of the negotiated rulemaking as the promulgation of the final rule. n115 Moreover, as
any administrative lawyer knows, the rulemaking process does not necessarily end once the agency issues a final rule. Even putting aside any subsequent litigation,
agencies do revisit their final rules, amend and revise them, and even occasionally rescind them. n116 Researchers who free themselves from a consistent data
collection rule face an extremely wide range of potential starting and ending points for any particular rulemaking. For example, as I note in Assessing Consensus, the
negotiated rulemaking over drinking water standards for disinfectant byproducts had, by 1996, resulted in a final rule governing the collection of drinking water
information even though the substantive drinking water standards based on the negotiations still remained as proposed rules. n117 I use the date of the "first final rule
to emerge from this negotiated rulemaking process, even though it is an information collection rule and not a drinking water standard" simply to ensure that my
estimates are employed consistently and conservatively. n118 The farmworker protection rule is yet another example of a rulemaking that did not really end with the
promulgation of a final rule. As I note in Assessing Consensus, debate over the farmworker protection rule persists: "EPA has issued extensions and changes to the
rule, (*411) Congress has entered the fray, and outside groups have threatened litigation." n119 Opening measurement to ad hoc judgments would not only enable
some to claim that rulemaking was shorter in some cases, but it would also allow others to claim that rulemaking was still longer in other cases. The approach I take in
my empirical research adheres to sound social science research standards in that it relies on neutral, consistent methods of calculating the duration of rulemaking.
Harter's approach, on the other hand, tips the scales in favor of finding a time savings for negotiated rulemaking. He makes adjustments that shorten the process for
negotiated rulemaking, but he never acknowledges the need to be consistent and make similar adjustments to the comparison group of rules adopted through
conventional notice-and-comment procedures. n120 Harter claims, for example, that an earlier ending date should be used for the equipment leaks rule because the
EPA issued an early notice of the agreement in the equipment leaks rulemaking "so industry could begin taking actions to comply." n121 In an earlier article, Harter
notes that many firms "were complying with the rule long before it was in effect." n122 He similarly argues that the ending date of the reformulated gasoline rule
should be moved up by about eight months because that was the time when the EPA held a series of workshops "so that those affected could (*412) comply." n123 Yet
what Harter fails to acknowledge is that regulated entities often take steps to comply with looming environmental regulations well in advance of agency rules coming
into effect. In many corporations and trade associations, lawyers and managers regularly work to anticipate the EPA's regulatory agenda, taking steps to bring their
organizations and members into compliance before the final rules take effect. n124 This is especially the case with regard to regulations affecting equipment or
production processes, as compliance can require significant capital expenditures and lead time for planning. It is in firms' interests to avoid the risk of business
interruption or regulatory liability, so firms often plan ahead and begin taking steps to comply after an agency issues a proposed or interim rule or otherwise signals its
regulatory direction. n125 Overall, Harter presents his data in such a way as to favor negotiated rulemaking. He argues that if one negotiated rule is excluded from
study, and if the duration of two other rules is shortened, the average duration of the EPA's negotiated rulemakings is only 751 days instead of 1,013 days, or thirtyfive percent shorter than the average duration reported in my study. n126 This reduction in average duration arises because the (*413) one rule that Harter argues
should be excluded - the farmworker protection rule - happened to be the negotiated rulemaking with the longest duration. In addition, the two other rules - the
equipment leaks and reformulated gasoline rules - were among those negotiated rules with the longest durations. Harter also questions the dates I use to calculate the
duration of a fourth rule - the drinking water collection rule - although he does not change the dates I use in making his alternative calculation. n127 In all, Harter
disputes my time computations for the four EPA negotiated rules that had the longest rulemaking duration. Due to the nature of an average (or mean) as a statistical
measure, the average duration of negotiated rulemaking would indeed drop substantially if one were to remove the longest negotiated rulemaking from the group and
also considerably shorten the duration of other rulemakings that took a longer time. This is explainable as a property of the statistic, since averages tend to be sensitive
to outlying cases. Indeed, when analyzing a distribution of data with outliers in only a positive direction - such as with income or time, which can never be less than
zero - the average will tend to be pulled upwards. n128 In such cases, the median will generally be a more suitable indicator of the typical case, as it is less sensitive to
extreme outliers. n129 It is especially appropriate for a researcher to report the median in these cases, something that I did and Kerwin and Furlong did, but Harter did
not. Table 1: Duration of EPA Rulemakings (in days) (SEE TABLE IN ORIGINAL) As Table 1 shows, Kerwin and Furlong report an average rulemaking duration
negotiate as the starting point for each rule, rather than EPA's internal records (the Kerwin and Furlong approach), n131 my study understates the duration of
negotiated rulemaking by about 131 days compared with the approach used by Kerwin and Furlong. n132 (*415) C. Negotiated Rulemaking Demands More Time and
negotiated
rulemaking still demands more time and effort on the part of the participants than does conventional
rulemaking. n133 Even if the overall duration of negotiated rulemakings could be shown to be shorter, n134 the
intensity of negotiated rulemakings still translates into additional time. As Harter himself acknowledges,
Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process,
"reg negs are intense activities: participating in one can be expensive and time consuming." n135 The Langbein and Kerwin study, which Harter considers "rigorous"
and "careful," n136 shows that participants in negotiated rulemakings report spending nearly twice as much overall in organizational resources as did their
impact of negotiation on the duration of rulemakings, there is no disputing that negotiated rulemaking is much more burdensome, in terms of the overall time and
expense, than conventional rulemaking. n139 (*416) III Negotiated Rulemaking and the Avoidance of Litigation Over the years, advocates of negotiated rulemaking
consistently claimed that the procedure would eliminate subsequent litigation filed challenging administrative rules. n140 Yet until I undertook my research, no one
had sought to assess these claims by collecting comprehensive data on court filings for negotiated and conventional rules. Having collected this data for the EPA, I
find that six out of the twelve completed EPA negotiated rules in my study have resulted in legal challenges, a litigation rate higher than that for all significant rules
under EPA's major statutes and almost twice as high as that for EPA rules generally. n141 Harter does not dispute that these challenges to negotiated rules were filed.
n142 Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. n143 He also claims that I fail to account for differences in litigation
and that when these differences are considered, negotiated rulemaking results in less protracted litigation. n144 In this Part, I demonstrate that Harter is wrong on both
counts: negotiated rulemaking has long aimed to reduce legal challenges to agency rules and it has failed to reduce both the number and intensity of these challenges.
(*417) A. Avoiding Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those who were present at
the creation of reg-neg sought neither expedition nor a shield against litigation." n145 Yet negotiation has long been offered, even in the early years, as an alternative
that would reduce the perceived adversarial relationship between business and government. n146 Former Secretary of Labor John Dunlop initiated interest in
negotiated rulemaking in the 1970s by calling attention to several problems with government regulation, one of which was "the legal game-playing between the
regulatees and the regulators." n147 According to Dunlop, typically the "regulatory agency promulgates a regulation; the regulatees challenge it in court; if they lose,
their lawyers may seek to find another ground for administrative or judicial challenge." n148 He urged regulators to involve affected parties in the development of new
rules so as to reduce the contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. n149 Philip Harter himself, in his original
article on negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" n150 regulatory process: Negotiations may reduce judicial
challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in its development. Indeed,
because the rule would reflect the agreement of the parties, even the most vocal constituencies should support (*418) the rule. This abstract prediction finds support in
experience in analogous contexts. For example, there has been virtually no judicial review of OSHA's recent safety standards that were based on a consensus among
the interested parties. Moreover, rules resulting from settlements have not been challenged. n151 Moreover, according to Judge Loren Smith, chairman of ACUS at the
time the Conference acted on Harter's report, "when we passed the first recommendation (encouraging agencies to use negotiated rulemaking)..., the Reagan
Administration's whole purpose on negotiated rulemaking was to keep things out of the courts." n152 In chronicling EPA's decision to launch its regulatory
negotiation project in 1983, Daniel Fiorino and Chris Kirtz observed that the ACUS recommendation was one of the factors prompting EPA to pursue negotiated
rulemaking. n153 Furthermore, they point explicitly to the desire by EPA officials to reduce litigation: Perhaps most importantly, people within the EPA were
becoming more aware of the limits of conventional, adversarial rulemaking under the Administrative Procedure Act. The standard rulemaking process had become too
susceptible to (*419) delay and litigation. As many as 80 percent of EPA's final rules are challenged - often by both sides of an issue. A pilot program on regulatory
negotiation offered an opportunity to test an alternative method for proposing Agency rules that would permit all participants a face-to-face role in decision-making.
n154 As one can plainly see, the aim of avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and
EPA's decision to launch its regulatory negotiation project. Admittedly, over the years advocates of negotiated rulemaking have claimed a number of additional
benefits from negotiated rulemaking, n155 but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules. n156
Numerous practitioners, academics, legislators, and agency officials have advocated negotiated rulemaking as a way of reducing subsequent litigation, which many
erroneously thought had reached the point where groups challenged four out of every five regulations EPA issued. n157 The Negotiated Rulemaking Act included in
its preamble the goal of reducing the likelihood of litigation. n158 In addition, Republican and Democratic administrations endorsed the use of negotiated rulemaking,
in no small part because of the belief that the procedure (*420) would minimize litigation. n159 Advocates have consistently emphasized negotiated rulemaking's
potential for reducing litigation, and even the earliest "pioneers" of the process have boasted (inaccurately) that the negotiation process has "almost eliminated"
subsequent litigation n160 and that "no rule crafted in this manner has been subjected to court action." n161 B. Negotiated Rulemaking Has Failed to Reduce
Litigation Even though Harter erroneously suggests that it does not really matter that negotiated rulemaking has generated a considerable number of legal challenges,
n162 he nevertheless makes several forcefully worded, but mistaken, criticisms of my analysis of negotiated rulemaking and litigation. n163 For example, he first
accuses me of "significantly misleading" the reader by including a discussion of the Grand Canyon visibility negotiation in Assessing Consensus, because it was not
technically a negotiated rulemaking. n164 At the same time, however, he readily acknowledges that my article "points out that this rule was not developed (*421)
under the Negotiated Rulemaking Act." n165 In addition to stating that the rule was not technically a negotiated rulemaking under the Act, I also expressly exclude the
Grand Canyon rule when calculating and discussing the overall litigation rate for EPA's negotiated rules. n166 Nevertheless, mentioning the litigation over the Grand
Canyon rule as I do is far from misleading - it is relevant and highly probative support for the proposition that "rules promulgated following a regulatory negotiation
are far from immune from legal challenge." n167 The Grand Canyon rule was probably the most well publicized of any EPA regulatory negotiation, having concluded
with a dramatic presidential ceremony near the edge of the Grand Canyon and prompting a front-page New York Times article hailing the negotiation process as a
model alternative to the "lawsuit system." n168 Moreover, at the time of my original research, the Grand Canyon rule had been heralded as a negotiated rulemaking
success story by one of the sponsors of the Senate bill permanently reauthorizing the Negotiated Rulemaking Act. n169 At that time, however, the rulemaking had
been discussed in the legal literature only "as a prototype 'win-win' solution of an environmental problem and a model for other regulatory negotiations." n170 Thus,
including mention of the Grand Canyon litigation actually helps to correct the misleading impression that regulatory negotiation eliminates subsequent legal
challenges to agency rules. (*422) Harter also charges that I fail to look into the details surrounding the challenged negotiated rules and their litigation. n171 This
claim is yet another example of Harter's advocacy. Even a cursory reading of Assessing Consensus reveals that I devote considerable attention to the details
surrounding all six EPA negotiated rulemakings that were subject to legal action, stating exactly who filed each petition for review, why, and to what effect. n172
Harter's claim that I fail to look at what happened in these cases is all the more interesting since he himself provides only two paragraphs in his article to the litigated
rules, compared with the more than eight pages contained in my original article. n173 He devotes a mere eleven words to the litigation challenging the disinfectant
byproducts rule compared with the page and a half I devote to that rule and its subsequent legal challenge. n174 Perhaps because his own discussion of the challenged
rules is so brief, Harter creates some confusion about the litigation filed against the reformulated gasoline rule and the equipment leaks rule. n175 Without denying
that court petitions were filed (*423) challenging these rules, he nevertheless mistakenly implies that the challenges I attribute to these two rules were actually filed
against related, but distinct EPA rules that were not negotiated. n176 Yet, even though petitions were filed against related (*424) rules, court records in both cases
show that petitioners also challenged the very rules which were developed through negotiated rulemaking. n177 Although those who advocate negotiated rulemaking
have created some ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged n178 as was the equipment leaks portion of the HON
rule which was developed through negotiated rulemaking. n179 Finally, Harter claims that I fail to distinguish "substantive challenges" from other kind of challenges,
and that negotiated rules have been "remarkably resistant" to such substantive challenges. n180 Since he never defines what he means by a "substantive challenge," it
not possible to test or respond to his claim fully. Once again, Harter's approach may well be understandable as a form of advocacy, but it is unacceptable as a basis for
empirical analysis of negotiated rulemaking. n181 If, in claiming that I fail to distinguish between "substantive" and other types of challenges, Harter means to imply
that I fail to report that most of the challenges to negotiated rules were settled out of court, then again a casual reading of Assessing Consensus is enough to (*425)
show that he is mistaken. n182 Harter notes that several of the challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I
already note this in Assessing Consensus. n183 In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision," the
"the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals ... and substantially more than the rate for all administrative
months of the promulgation of the final rule. n187 For many organizations filing petitions for review of (*426) EPA rules, the petition simply signals the beginning of
a new round of working out the details of the rule with the agency. Industry and environmental groups frequently treat litigation as a continuation of the rulemaking
in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement discussions typically
follow the filing of challenges to any EPA rule ... . In the aggregate, negotiated rulemaking has not generated any substantial difference in the way that legal challenges
get resolved. n189 Indeed, the litigation against negotiated rules turns out to be virtually the same as litigation against conventional rules along every dimension,
except that negotiated rules are challenged at a higher rate. n190 A single rule can, of course, be challenged by more than one organization. The data reveal not only
that negotiated rules are challenged at a higher rate, but also that each challenge involves on average a somewhat larger number of petitioners. As Table 2 shows, the
average number of petitions filed against negotiated rules is actually somewhat higher than the average number of petitions in challenges to conventional rules overall
(3.7 petitions per challenged negotiated rule versus 3.0 for challenged conventional rules). n191 The rate at which these challenges eventually reach a court for
decision is about the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
more generally in all challenges to EPA rules. n192 The typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical
challenge filed against a conventional rule. Table 2: Litigation Challenging EPA Rulemakings (SEE TABLE IN ORIGINAL) (*427) C. Negotiated Rulemaking
have been filed both by participants in negotiated rulemakings and by organizations who
were not part of the negotiation process. n193 As I explain in Assessing Consensus, the failure of negotiated rulemaking to live up to
expectations is in part explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. n194 It is
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can even engender new conflicts. As we have seen,
consensus is
not always attainable, and even when it is, it may only temporarily hide underlying conflicts. n195 Negotiated rulemaking also creates new sources
of conflict that do not exist with other methods of policy making. n196 Conflicts can arise over the selection of participants in the negotiations, the meaning of
agreements that are reached, and whether the final rule is consistent (*428) with those agreements. n197 Disagreements can even arise about the implications of
silence in the agreement over particular terms or issues. n198 None of these additional kinds of conflict arise in the absence of negotiated rulemaking. A recent
negotiated rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new sources of conflict. HUD had originally
named four public housing organizations to serve on negotiated rulemaking committees for regulations addressing subsidies and capital funds. n199 After the housing
organizations subsequently filed a petition against the agency over a separate matter, HUD officials unilaterally declared that the organizations could no longer bargain
with the agency in good faith and removed them from the negotiated rulemaking committees. n200 The housing groups filed for a court order reversing their removal
from the committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition. n201 HUD eventually capitulated and
reinstated the organizations as members of the negotiated rulemaking committees, but the experience demonstrates a profound new source of litigated conflict that,
ironically, is found only in the very process that was intended to reduce litigation.
the setting of a traditional rulemaking, faceto-face technical discussions and meetings among interested parties are very rare. However, in
a regulatory negotiation, lack of expertise becomes a significant hindrance, changing the
dynamic and, as a consequence, the outcome of the negotiation. In short, a party's lack of
expertise can, from its perspective, jeopardize the chances for a successful outcome. The
lack of negotiation resources available to some parties, particularly public interest groups,
has been a significant ground of criticism of negotiated rulemakings. Critics claim that the
imbalance in expertise can affect the outcome and thus taint the legitimacy of the process.
(210) At the least, lack of expertise can prevent full participation of all parties in all issues being negotiated. (211) In a negotiation
centered on technical issues, knowledge is power, and access to expertise is therefore
essential. (212) In the metal plating negotiations, the environmentalists clearly recognized the problem caused by their lack of technical
expertise. They complained about the lack of a "level playing field" as the technical issues took center stage.
There can be benefits to participating in a successful reg neg. First, the opportunity for participants to discuss
issues and confront each other sometimes leads to a more creative and more practical regulatory approach than would have occurred in a
traditional rulemaking process, in which parties with different, adverse positions would participate largely by submitting
written
comments on a proposed rule. Second, the consensus process-with its expectation of avoiding litigation over final rule-may persuade
the agency to adopt a more creative legal interpretation than it might have otherwise adopted for the purpose of reaching a
result that all parties agree makes sense. Third, a successful reg neg can provide greater certainty than the traditional rulemaking
process that a regulation will not change between agreement and proposal or between proposal and a final rule. This certainty is extremely
valuable to industry, especially if compliance entails major construction projects, which are costly and require years of advance planning. The
fuels reg neg demonstrates, however, that these benefits are not always realized even if the
reg neg ends in an agreement among the parties. For example, one of the most important benefits API sought
in the fuels reg neg was a degree of certainty that the informal agreement would be
implemented without major changes sufficient to allow API members to plan to meet Clean Air Act fuels requirements until
at least the year 2000. At the conclusion of the reg neg, API believed it had achieved this objective.
The events that occurred after completion of the reg neg-the NOx reduction requirements and
the ethanol mandate, including the ensuing litigation over the ethanol mandate and the petition for
reconsideration regarding the NOx requirement-taught API
for political or other reasons . The industry also thought it had secured sufficient lead time
by reaching a reg neg agreement over three years before the start of the RFG program.
However, the final RFG rule was issued two and one-half years after the reg neg agreement
was signed, leaving the industry with less than one year to implement the program. A second
lesson is that the costs to participate in a reg neg are greater for industry than for other
participants . This lesson is not new; API experienced the same phenomenon in the equipment leaks reg neg. The fuels reg neg,
however, placed even greater demands than the equipment leaks reg neg on the petroleum they are viewed in the context
of the disappearing benefits. In the context of the fuels reg neg, API was required to satisfy some of whom had interests adverse
to API's, about the production and distribution of motor vehicle fuels. API found it necessary to
prepare educational materials explaining these matters, as well as statistical concepts necessary
for an understanding of some of the technical issues involved. API had no assurance , of course, that this
information would not be used outside the reg neg. API representatives also continued to
divulge information by answering technical questions about refinery processes and
marketing practices throughout the negotiation. A second major resource drain was the
need for analysis of issues and for rapid communication within API. This need involved both
staff-level personnel and high-level management representatives of API member companies. Because fuels
issues are of great concern to the companies, communication was essential. A group of about twenty member company
executives made themselves available to participate in lengthy conference calls every two
weeks for a period of over six months.26 Another related lesson was that environmental group
participants have an advantage at the negotiating table.
were not
required to educate other participants. Consequently, they did not have to establish their
credibility as experts, as did most industry participants, who-in the fuels reg neg-had actually been selected because of their technical
expertise. Environmental representatives also enjoyed the advantages of having well-developed negotiating skills and experience. In addition,
they did not have to check back with their constituencies at every turn. State representatives shared some of these advantages with environmental
representatives. The experience of the fuels reg neg, in short, left API with the view that
outweigh its benefits and that the federal government can too easily find ways to walk
away from a deal.
Reg-negs are only perceived to be betterthey arent actually and the normal regulations
are better
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
The finding that negotiated rulemaking neither reduces rulemaking lime nor prevents
litigation could conceivably be viewed as somewhat less of a failure if it could be shown that
negotiated rulemaking systematically led to significantly better quality rules. Harter makes such
an assertion, but it too is unsupported by the available body of empirical research . The results of the
Langbein and Kerwin study cited by Harter are not easy to interpret, but at best they can be said to show
only
that
participants in
The final reason why negotiated rulemaking has failed to achieve its goals therefore hinges on the comparative
administrative law. Negotiated rulemaking has specifically been presented as an optimal means for revealing interests because participants can
make tradeoffs on various issues. While formal negotiation does allow for tradeoffs, it by no means guarantees against
bluffing and posturing. Since negotiated rulemaking encourages a give-and-take mentality among its participants, representatives on negotiated
rulemaking committees have little incentive not to take positions on issues that they might otherwise consider minor in conventional rulemaking.
In contrast, conventional
Of course, it may be argued that even if negotiated rulemaking fails to reduce time and litigation, it still
allows participants to learn from each other. It would not be surprising if negotiated rulemaking did foster learning. After all, anyone who
participates in a series of intensive sessions focused on a regulation typically will come away having learned more than if he had not attended at
all. Participants devote a substantial amount of their time and resources to studying the issues. Kerwin and Langbein find that during negotiations
organizations spend an average of 26 percent of all their available resources on the negotiations, with environmental groups reporting the highest
proportion (50%). Kerwin and Langbein also report that "big business" spends an average of $432,000 for research expenses and over $250,000
Yet since
negotiated rulemaking is characterized by a quest for consensus, we should ask whether
learning depends on that quest. In other words, do we need negotiated rulemaking for
learning to take place? Or can it be equally well achieved with discussion-oriented sessions
that do not seek the achievement of a consensus? To show that learning and information exchange result from a quest
for consensus, we would need to compare negotiated rulemaking with other equally intensive agency workshops. Proceedings that
negotiation consultants like to call "facilitated joint brainstorming," and which agencies
call roundtables, workshops, and "enhanced participatory rulemakings," also aim at
information exchange and learning, but without the quest for consensus. Such proceedings
for consultants and lawyers. With investments as large as these, we should hope that participants are learning something.
may well achieve comparable gains in terms of information exchange without generating
the same level of position-taking as negotiated rulemaking and without raising unrealistic
expectations about what participants will receive from their investment of time.
consensus has been the hallmark of negotiated rulemaking. In Philip Harter's words, "it is precisely the ability to reach closure on critical issues
that separates it from a mere advisory committee or other consultative process." Through the difficult task of finding and maintaining a
consensus, negotiated rulemaking offers agencies the hope of closure, reduced rulemaking time, and lessened litigation. Yet in
the
negotiated rulemakings that agencies have thus far completed, closure has been more
difficult to sustain than ever anticipated. Despite the many aspirations for negotiated rulemaking,
agencies' investment in it has yet to yield any demonstrable dividends in terms of saving
time or reducing litigation. The quest for consensus has produced less closure than has the
more practiced style of rulemaking on which agencies ordinarily rely.
Reg-negs failconventional rulemaking solve better
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
Harter not only misinterprets and overstates the results of the Langbein and Kerwin study, he also understates the problems engendered by
negotiated rulemaking and the effectiveness of alternative forms of public participation in the rulemaking process. As a form of advocacy, it may
be understandable for Harter to downplay the problems associated with negotiated rulemaking and to disregard the advantages of its alternatives.
However, a
Charles Caldart and Nicholas Ashford shows that in industries that are not likely to innovate in the absence of strong governmental regulation, the
lowest-common-denominator problem keeps negotiated rules from promoting the technological innovation needed to improve environmental and
safety performance. They conclude that because industry representatives in these types of industries will be reluctant to agree to regulations that
would compel firms to make dramatic investments in new technologies, "negotiated rulemaking's focus on consensus can effectively remove the
potential to spur innovation." Although these problems do not necessarily arise in every negotiated rulemaking, and some can surely occur even
in certain conventional rulemakings, a complete assessment of negotiated rulemaking needs to take these potential hazards into account. The
incentives created by a search for consensus tend to make these problems particularly more acute in regulatory negotiations. Moreover, a
complete assessment of negotiated rulemaking and the quality of regulatory policy must
compare negotiated rulemaking with alternative forms of policy deliberation that do not
aim for unanimity. Although advocates of negotiated rulemaking claim otherwise, it is possible to achieve many of
the asserted advantages of negotiated rulemaking by expanding participation in the
conventional rulemaking process, all without creating the perverse incentives that can
arise when policymakers seek consensus . The choice for agencies is not between developing rules through negotiated
rulemaking or developing rules inside a closet.
by rules through individual and collective forms of dialogue ."7* These alternative forms of deliberation, be
they individual meetings, public workshops, or formal advisory committees, provide the agency with the same kinds of opportunities for public
input into regulatory decision making as negotiated rulemaking.27'' But
AT: NBs
1. Sources of Conflict Introduced by Negotiated Rulemaking. In seeking consensus over the substance of
regulations, negotiated rulemaking has long been considered a means of reducing conflict in the regulatory process. Yet formal
negotiation can actually foster conflict. It adds three new sources of conflict stemming from
decisions about membership on negotiated rulemaking committees; the consistency of final
rules with negotiated agreements; and the potential for an overall heightened sensitivity to
adverse aspects of rules. The first of these new sources of conflict stems from agency decisions about
membership on negotiated rulemaking committees. As discussed above, the criteria for negotiated
rulemaking have led agencies to prefer rules that affect a limited range of parties. Even
with this tendency, agencies have sometimes still not been able to include all the
organizations who feel they will be affected by a rule. Although the Negotiated Rulemaking Act insulates the
agency from judicial review of its decisions about membership on negotiated rulemaking committees, the exclusion of groups
from membership on the committees adds a source of discontentment not otherwise
present in notice-and-comment rulemaking.
develop a draft rule apparently attracts even closer scrutiny by organizations not represented at the negotiating table. Not surprisingly, the
EPA has been criticized by parties who were not invited to participate on the agency's
negotiation committees. In the asbestos rule, for example, the negotiations were temporarily disrupted while additional parties
sought to participate in the negotiations. In the disinfectant byproducts negotiation, the chlorine industry complained that it had been "unfairly
excluded" from full participation in the negotiated rulemaking. As I have already shown, the reformulated gasoline rule elicited a legal challenge
from a tank truck trade association which was not represented on the negotiated rulemaking committee, as well as trade challenges from two
countries not included on the committee. The negotiations over the Grand Canyon visibility rule and the wood furniture coatings rule also
prompted litigation by groups not participating on the negotiation committee. One organization alone is capable of upsetting a consensus built on
unanimity or filing a petition for judicial review. Consequently,
respondents reported that they had to "press" the EPA to let them participate. Thirty-five percent of those same respondents reported that at least
one affected interest was not represented at the negotiating table, a noteworthy finding considering that it is based on responses by those who
were represented. The
simply between participants over what each thinks a negotiated agreement means. In the
disinfectant byproducts rule, for example, a representative from the Natural Resources Defense Council reportedly criticized the American Water
Works Association for subsequently urging EPA to set action levels rather than the more stringent maximum contaminant levels NRDC supported
in the negotiation. AWWA thought its position was consistent with the negotiations because it only agreed to support maximum contaminant
levels once the agency could provide adequate microbial data. Conflicts
conflicts arise over the extent to which the agency has adhered to the
stated terms of the negotiated agreement . For example, in the reformulated gasoline case, the
petroleum industry felt betrayed by the EPA's subsequent decision to issue a separate rule
favorable to the ethanol industry. Similarly, in the Department of Education's student loan rulemaking, loan servicers charged
that the Department breached commitments it made during the negotiated rulemaking. More recently, the petroleum industry criticized the
Department of Interior's Minerals Management Service when it decided to reopen the comment period over its natural gas royalties rulemaking.
Without an attempt at negotiated rulemaking, these conflicts over the commitment of the
agency to a negotiated agreement could not arise. The third way negotiated rulemaking
can add conflict is by heightening the sensitivity of the parties to adverse portions of a rule.
Negotiated agreements raise expectations. When the agency does not follow the negotiated
agreement, the existence of the agreement itself stirs up dissatisfaction. For example,
consider a conventional rulemaking in which an agency fails to follow the input provided
by an affected organization. In that case, the organization has mainly to complain about
how adversely the rule affects its interests and how its comments were not accepted. If the
agency were to enact the very same rule in contravention of a negotiated agreement, the
organization would suffer both the adverse effects of the rule as well as the impression that
it had been "sandbagged."
Such a reaction in this latter case would seem even more likely if the organization had compromised
on other portions of the rule in order to secure gains on the portion subsequently undercut by the agency. Even if the underlying rule were the
same in both cases,
One side benefit often attributed to negotiated rulemaking is that it facilitates learning,
both by agency staff and interest group representatives. The additional time and resources groups devote to discussing rules developed through
negotiation provides greater awareness of the issues underlying the rule. When groups invest these additional resources in negotiation, their
representatives presumably also learn more about how aspects of the rule may adversely affect their group interests. Groups
may also
find that the more time they invest in a rulemaking proceeding, the less willing they are to
overlook imperfections in the rule. In these ways, the quest for consensus unintentionally
contributes new sources of conflict to the regulatory process that can limit negotiated
rulemaking's ability to reduce rulemaking time and litigation.
Turnreg-negs increase litigation
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
Over the years, advocates of negotiated rulemaking consistently claimed that the procedure would eliminate subsequent litigation filed
challenging administrative rules.11,1 Yet until I undertook my research, no one had sought to assess these claims by collecting comprehensive
data on court filings for negotiated and conventional rules. Having collected this data for the EPA. I find that six
rules and it has failed to reduce both the number and intensity of these challenges.
A. Avoiding
Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those
who were present at the creation of reg-neg sought neither expedition nor a shield against litigation." Yet negotiation has long been offered, even
in the early years, as an alternative that would reduce the perceived adversarial relationship between business and government. Former Secretary
of Labor John Dunlop initiated interest in negotiated rulemaking in the 1970s by calling attention to several problems with government
regulation, one of which was "the legal game-playing between the regulatees and the regulators.'' According to Dunlop, typically the "regulatory
agency promulgates a regulation; the regulatees challenge it in court; if they lose, their lawyers may seek to find another ground for
administrative or judicial challenge." He urged regulators to involve affected parties in the development of new rules so as to reduce the
contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. Philip Harter himself, in his original article on
negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" regulatory process: Negotiations may reduce
judicial challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in
its development. Indeed, because the rule would reflect the agreement of the parties, even the most vocal constituencies should support the rule.
'His abstract prediction finds support in experience in analogous contexts. For example, there
for proposing Agency rules that would permit all participants a face-to-face rule in decisionmaking.1^4 As one can plainly see. the aim of
avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and EPA's decision to
launch its regulatory negotiation project. Admittedly, over
the use of negotiated rulemaking, in no small part because of the belief that the procedure would minimize litigation.
Advocates have consistently emphasized negotiated rulemaking's potential for reducing litigation, and even the earliest "pioneers" of the process
have boasted (inaccurately) that the negotiation process has "almost eliminated" subsequent litigation and that "no rule crafted in this manner has
been subjected to court action." B. Negotiated Rulemaking Has Failed to Reduce Litigation Even though Harter erroneously suggests that it does
not really matter that negotiated rulemaking has generated a considerable number of legal challenges.1'^ he nevertheless makes several forcefully
worded, but mistaken, criticisms of my analysis of negotiated rulemaking and litigation."1-1 For example, he first accuses me of "significantly
misleading" the reader by including a discussion of the Grand Canyon visibility negotiation in Assessing Consensus, because it was not
technically a negotiated rulemaking."1'4 At the same time, however, he readily acknowledges that my article "points out that this rule was not
developed under the Negotiated Rulemaking Act," In addition to stating that the rule was not technically a negotiated rulemaking under the Act, I
also expressly exclude the Grand Canyon rule when calculating and discussing the overall litigation rate for EPA's negotiated rules. Nevertheless,
mentioning the litigation over the Grand Canyon rule as I do is far from misleading- -it is relevant and highly probative support for the
proposition that "rules promulgated following a regulatory negotiation are far from immune from legal challenge.",fl7 'His Grand Canyon rule
was probably the most well publicized of any EPA regulatory negotiation, having concluded with a dramatic presidential ceremony near the edge
of the Grand Canyon and prompting a front-page New York Times article hailing the negotiation process as a model alternative to the "lawsuit
system." Moreover, at the time of my original research, the Grand Canyon rule had been heralded as a negotiated rulemaking success story by one
of the sponsors of the Senate bill permanently reauthorizing the Negotiated Rulemaking Act. At that time, however, the rulemaking had been
discussed in the legal literature only "as a prototype 'win-win' solution of an environmental problem and a model for other regulatory
negotiations." Thus, including mention of the Grand Canyon litigation actually helps to correct the misleading impression that regulatory
negotiation eliminates subsequent legal challenges to agency rules. Harter also charges that I fail to look into the details surrounding the
challenged negotiated rules and their litigation. This claim is yet another example of Harter's advocacy. Even a cursory reading of Assessing
Consensus reveals that I devote considerable attention to the details surrounding all six EPA negotiated rulemakings that were subject to legal
action, stating exactly who filed each petition for review, why, and to what effect. Harter's claim that I fail to look at what happened in these cases
is all the more interesting since he himself provides only two paragraphs in his article to the litigated rules, compared with the more than eight
pages contained in my original article. He devotes a mere eleven words to the litigation challenging the disinfectant byproducts rule compared
with the page and a half I devote to that rule and its subsequent legal challenge. Perhaps because his own discussion of the challenged rules is so
brief. Harter creates some confusion about the litigation filed against the reformulated gasoline rule and the equipment leaks rule. Without
denying that court petitions were filed challenging these rules, he nevertheless mistakenly implies that the challenges I attribute to these two rules
were actually filed against related, but distinct EPA rules that were not negotiated.17 (1 Yet, even though petitions were filed against related rules,
court records in both cases show that petitioners also challenged the very rules which were
developed through negotiated rulemaking. Although those who advocate negotiated rulemaking have created some
ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged as was the
equipment leaks portion of the HON rule which was developed through negotiated
rulemaking.17U> Finally. Harter claims that I fail to distinguish '"substantive challenges" from other kind of challenges, and that
negotiated rules have been "remarkably resistant" to such substantive challenges.'-11 Since he never defines what he means by a "'substantive
challenge," it not possible to test or respond to his claim fully. Once again, Harters approach may well be understandable as a form of advocacy,
but it is unacceptable as a basis for empirical analysis of negotiated rulemaking.1,141 If, in claiming that 1 fail to distinguish between
"substantive" and other types of challenges, Harter means to imply that I fail to report that most of the challenges to negotiated rules were settled
out of court, then again a casual reading of Assessing Consensus is enough to show that he is mistaken.ls- Harter notes that several of the
challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I already note this in Assessing
Consensus.^3, In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision." the rest having
been voluntarily dismissed by the parties.1S4 I also reportand this is most crucialthat most petitions for review of EPA rules are voluntarily
dismissed by the parties. Indeed, settlement is more common in litigation challenging EPA rules than with other litigation. As I report in an earlier
study cited in Assessing Consensus, "(the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals . . . and
substantially more than the rate for all administrative appeals." Organizations filing suits challenging EPA rules often do so to preserve the
opportunity to work out additional changes in the rule, aware that the underlying environmental statutes authorizing judicial review require such
suits to be filed, if at all, within a few months of the promulgation of the final rule.187 For many organizations filing petitions for review of EPA
rules, the petition simply signals the beginning of a new round of working out the details of the rule with the agency, Industry and environmental
groups frequently treat litigation as a continuation of the rulemaking process, albeit with a smaller number of participants. Thus when Harter
suggests that negotiated rulemaking has spared EPA highly protracted litigation because many of the challenges to these rules were eventually
withdrawn, he is actually describing the normal pattern of challenges Lo EPA. As I report in Assessing Consensus: For all challenges to EPA rules
filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement
discussions typically follow the filing of challenges to any EPA rule. In the aggregate, negotiated rulemaking has not generated any substantial
difference in the way that legal challenges get resolved. Indeed,
be virtually the same as litigation against conventional rules along every dimension, except
that negotiated rules are challenged at a higher rate .'1'0 A single rule can, of course, be
challenged by more than one organization. The data reveal not only that negotiated rules
are challenged at a higher rate, but also that each challenge involves on average a
somewhat larger number of petitioners . As Table 2 shows, the average number of petitions filed against negotiated rules
is actually somewhat higher than the average number of petitions in challenges to conventional rules overall (3.7 petitions per challenged
negotiated rule versus 3.0 for challenged conventional rules).'91 The rate at which these challenges eventuality reach a court for decision is about
the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
As I explain in Assessing Consensus, the failure of negotiated rulemaking to live up to expectations is in part
explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. It
is
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can
even engender new conflicts. As we have seen, consensus is not always attainable, and even when it is. it may only temporarily
hide underlying conflicts.1 Negotiated rulemaking also creates new sources of conflict that do not
exist with other methods of policy making .19''1 Conflicts can arise over the selection of
participants in the negotiations, the meaning of agreements that are reached, and whether
the final rule is consistent with those agreements. Disagreements can even arise about the
implications of silence in the agreement over particular terms or issues. None of these
additional kinds of conflict arise in the absence of negotiated rulemaking. A recent negotiated
rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new
sources of conflict. HUD had originally named four public housing organizations to serve on
negotiated rulemaking committees for regulations addressing subsidies and capital funds.
After the housing organizations subsequently filed a petition against the agency over a
separate matter, HUD officials unilaterally declared that the organizations could no longer
bargain with the agency in good faith and removed them from the negotiated rulemaking
committees.-"" The housing groups filed for a court order reversing their removal from the
committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition,'01 HUD
eventually capitulated and reinstated the organizations as members of the negotiated
rulemaking committees, but the experience demonstrates a profound new source of
litigated conflict that, ironically, is found only in the very process that was intended to
reduce litigation.
Turnreg negs cause more litigation and are costlierconventional rulemaking solves best
Coglianese 97
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, Duke Law Journal, Volume
46, No. 6. 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj//ghs-kw)
Negotiated rulemaking's promise has been an alluring one. Policymakers and scholars have increasingly looked to negotiated rulemaking to
minimize delays and conflict in the regulatory process. In exchange for an up-front investment in the pursuit of consensus early in the rulemaking
process, agencies have been promised attractive dividends, namely shortened rulemaking time and reduced litigation over agency rules.
Advocates have claimed other benefits from negotiated rulemaking, sometimes seeming to offer the potential for creating nearly flawless
regulations if only agencies would affirm decisions reached by interest group representatives. Yet these
other purported
benefits of negotiated rulemakingamong them better information, shared learning, or
heightened feelings of communityhave over the years been side attractions to the main
event, as they do not depend on a quest for consensus. Policymakers and scholars have
focused most of their attention on negotiated rulemaking's potential to reduce litigation
and shorten rulemaking time, benefits that necessarily depend on the successful
maintenance of consensus.
Although this quest for consensus has held out the promise of a faster and less conflictual regulatory
These results will no doubt seem surprising in light of the enthusiastic support
negotiated rulemaking has received over the years. They are only all the more surprising considering that agencies have deliberately selected
rules for formal negotiation in order to ensure the procedure's success. On reflection, negotiated rulemaking's weak results should not be as
surprising as they may at first seem. While
The analysis provided in this Article shows that negotiated rulemaking has not lived up to its promising potential to save
regulatory time or prevent litigation. From this perspective, it is understandable that agencies have so infrequently relied on negotiated
rulemaking and it is inadvisable that Congress and the President would direct agencies to do otherwise. As has long been recognized,
Such investments might once have been thought sound in light of the benefits
promised from a speedier, less contested regulatory process. In the absence of these promised benefits,
agencies' continued
reliance on public participation methods which do not depend on consensus would appear
the more sensible approach to making regulatory decisions.
Reg neg doesnt solve litigation
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
In sum, more consensual processes yielded significantly higher net benefit ratings and possibly more agreement. Kerwin and Langbein asked reg
neg participants what constituted consensus in their formal negotiation sessions, expecting that more consensual decision rules would be
associated with greater satisfaction, higher ratings of organizational net benefits, and less conflict (i.e., more homogeneity) about those
judgments. The results were consistent with these expectations: ratings of the overall process were lowest and the standard deviations were
usually highest when the decision rule was what EPA wanted.262 Overall, then, the study supports the claim that negotiated rulemaking is more
consensual than conventional rulemaking. Further,
the 80 percent
no EPA analyses underlay the origin of
this statistic, even though it has taken on a life of its own. In order to test the validity of the statistic, I collected
data from the EPA's litigation docket as well as from the dockets at the U.S. Court of
Appeals for the District of Columbia Circuit. The EPA dockets included litigation filed against the agency in any
federal court during 1987-1991. During this time, the EPA issued 1568 rules and was named as a defendant in 411 cases in the U.S. Courts of
Appeals, where rule challenges must be filed. The major environmental statutes typically require that petitions for judicial review be filed within
a few months after the EPA promulgates a rule, so most petitions for review of a rule are filed in the year when the rule is published. Some small
portion of suits are not filed in the same year as the rule, but aggregating the entire five-year period minimizes any error due to such a time lag.
The litigation rate for rules issued during the 1987-1991 period covered by the EPA docket, even conservatively calculated, turned out to be much
lower than widely believed:
only 26 percent of rules issued were challenged . In calculating this rate, I have used
what I take to be the most realistic estimate for EPA rules. I have relied on a computer search of the Federal Register which specifically excluded
those rules that were minor corrections, technical amendments, or clarifications of other rules. When other available estimates of the total number
of EPA rules were used, the litigation rate dropped even lower. For instance, using Office of Management and Budget (OMB) data on the number
of final EPA rules promulgated during the same time period, the litigation rate amounted to only 19 percentprecisely the opposite of the rate
widely assumed. As is sometimes acknowledged, the
the rate at which all EPA rules were litigated, but only those rules significant enough to be
published in the EPA's semiannual Regulatory Agenda. Since the rules appearing in the
Regulatory Agenda are by definition more significant, the litigation rate can be expected to
be higher than that for all EPA rules. Unfortunately, the EPA docket data do not permit one to distinguish between suits
involving those rules that are listed in the Regulatory Agenda and those that are not. Therefore I used court records from the D.C. Circuit to
determine the rate of litigation for significant EPA regulations promulgated under two major statutes, the Resource Conservation and Recovery
Act (RCRA) and the Clean Air Act, for the period 1980-1991. Any suits challenging significant, national rules under these statutes must be filed
in the United States Court of Appeals for the District of Columbia Circuit. A total of 220 nationally-applicable significant RCRA and Clean Air
Act rules were completed from 1980 to 1991. Of these, petitions for review were filed against 77, yielding an aggregate litigation rate of 35
percent. As Table 4 shows, Clean Air Act regulations were challenged less frequently (31%) than RCRA rules (43%) over this time period. Table
4. Litigation of Significant Clean Air Act and Resource Conservation and Recovery Act Rules, 1980-1991 CAA RCRA Total Rules 141 79 220
Challenges 43 34 77 Litigation Rate 31% 43% 35% Note: The "Rules" row lists the totals of all nationally-applicable rules that the EPA
considered significant enough to merit listing in its semi-annual regulatory agendas. These totals include those rules classified as "major" under
Executive Order 12,291 as well as other non-minor and non-routine rules. The "Challenges" row lists the subset of rules over which one or more
affected parties filed a petition for review in the United States Court of Appeals for the D.C. Circuit Since not all petitions for review reach an
appellate panel for a decision which can be reported, data on filings were obtained from the docket records at the D.C. Circuit Although
conventional wisdom and the legislative history of the Negotiated Rulemaking Act suggest
that only a minority of EPA rules escape litigation, a closer look at the available data
indicates that the prevailing view has things backwards. The majority of EPA rules escape
litigation, with petitions for review filed for at most about a quarter of them . The
litigation rate for significant rules under two major statutes is somewhat higher35
percentbut still well under the .80 percent rate that scholars have previously cited. More
than previously thought, litigation over EPA rules occurs selectively, if not infrequently. How does EPA's track record for
negotiated rules compare with its track record for rules overall? The National Performance
Review's 20 percent litigation rate was based on an incomplete review of the first ten
negotiated rulemakings finalized by EPA. However, when all twelve of these rules are included, and when a more
complete search of court records is made, the actual litigation rate is much higher. On the basis of my review of records at
the D.C. Circuit Court of Appeals, at least six of EPA's twelve finalized rules developed using
negotiated rulemaking have been subject to petitions for judicial review filed in federal
court . The challenged regulations include those addressing: 1) asbestos in school buildings;
2) the underground injection of hazardous wastes; 3) reformulated fuels; 4) chemical
equipment emissions leaks; 5) wood furniture coatings; and 6) the collection of information
on disinfectant byproducts. I have already discussed the judicial challenges filed against the EPA's reformulated gasoline rule,
challenges which involved both participants in the negotiated rulemaking process, such as the American Petroleum Institute, as well as outsiders
like the National Tank Truck Carriers. The additional challenged reg negs show that a similar set of actors filed petitions for review. Many
petitioners have been participants in the negotiated rulemaking proceedings. However, sometimes the petitioners were not members of the
rulemaking committee, as with the Grand Canyon visibility rule and reformulated gasoline rule. One additional rulethe wood furniture coating
regulationdrew petitions from trade associations that were not represented on the negotiated rulemaking committee. A brief review of these
additional challenges demonstrates the range of petitions filed over negotiated rules. Asbestos in School Buildings. The EPA used negotiated
rulemaking to establish methods for public schools to follow in identifying and mitigating asbestos exposure. After the EPA promulgated its final
rule, the Safe Buildings Alliance (an asbestos industry trade association), two building products manufacturers, and two individuals filed petitions
for review. A third building products company, GAF Corporation, intervened in the case, as did the American Association of School
Administrators and various state attorneys general. Although the Safe Buildings Alliance had signed the limited consensus statement which
concluded the negotiated rulemaking, the industry nevertheless challenged the rationality of EPA's action, specifically objecting to its failure to
define a safe level of asbestos exposure and arguing that its decision to allow the removal of asbestos would raise the level of asbestos fibers in
the air. The arguments were briefed and presented to a panel of the D.C. Circuit Court, which in the end upheld the rule against all the challenges.
Underground Injection of Hazardous Wastes. The EPA's underground injection rule established standards for the use of underground methods
for disposing of and storing hazardous wastes. After EPA completed the rulemaking, five petitions were filed by interests represented in the
negotiated rulemaking, including the waste treatment industry, the chemical industry, and an environmental group. These petitions were
consolidated and three major trade associationsthe American Petroleum Institute, the American Iron and Steel Institute, and the Institute for
Chemical Waste Managementintervened in the case. The chemical industry challenged the rule's permitting process, its application of the
statute's "no migration" standard, and the agency definition of "no migration," which included even the migration of hazardous constituents of
hazardous wastes. The Natural Resources Defense Council and the Hazardous Waste Treatment Council also challenged the EPA's application of
the "no migration" standard, arguing that it should apply to the seepage of hazardous constituents from otherwise non-hazardous waste.
Petitioners also challenged the rule's definition of "injection zone" and its standards for injection into salt domes, underground mines, and caves.
A panel of the D.C. Circuit upheld the rule against all but one of the challenges, remanding the standards for salt domes, mines, and caves for a
finding that these standards satisfied the statutory requirements. Chemical Equipment Leaks. The equipment leaks rule was designed to control
releases of hazardous emissions from valves, flanges, and other connecting points in chemical manufacturing facilities. Through a series of
negotiation sessions, the participating chemical companies and environmental groups reached an agreement on procedures for monitoring leaks.
Before the agency could promulgate the rule, Congress passed amendments to the Clean Air Act and the EPA incorporated the negotiated
agreement into a broader set of national emissions standards for hazardous air pollutants (NESHAP) generated by the chemical industry. The final
rule, known as the Hazardous Organic NESHAP, or HON rule for short, regulated releases from heat exchange systems, wastewater streams,
process vents, and storage vessels, as well as from equipment leaks. The equipment leaks portion of the rule remained largely as the negotiated
rulemaking committee had agreed. Following the promulgation of the final rule, the Chemical Manufacturers Association and Dow Chemical
Company, both of whom were represented in the negotiated rulemaking, filed petitions for review challenging numerous aspects of the HON rule.
Although most of their objections were leveled at aspects of the rule which were not subject to the negotiated rulemaking, they also raised
concerns about certain parts of subpart H, the equipment leaks portion of the final rule. The petitioners and the EPA entered settlement
discussions within a few months and eventually reached an agreement on dozens of changes to the final rule. The agency subsequently
promulgated revisions to subpart H of the rule, including changes to the control options for leaks from compressors, an issue that had been
overlooked by the chemical industry during the negotiations. Wood Furniture Coatings. Like the HON rule, the wood furniture coatings rule
established national emissions standards for hazardous air pollutants. The negotiated rulemaking process brought together representatives from
the wood furniture industry, suppliers of wood coatings, and environmental groups. During these negotiations, environmental representatives
expressed concern that the furniture industry might substitute other potentially hazardous chemicals not specifically covered under the rule. The
parties subsequently agreed to incorporate into the rule a list of other chemicals (not currently used by the wood coatings industry) labeled as "of
potential concern." After EPA promulgated the final rule, three chemical industry trade associations not represented in the negotiations filed
petitions for review challenging the listing of additional chemicals as "of potential concern." As of November, 1996, the EPA was engaged in
settlement discussions with the Chemical Manufacturers Association, the Halogenated Solvents Industry Alliance, and the Society of Plastics
Industry over this issue. Disinfectant Byproducts. The most recently challenged reg neg established monitoring requirements that allow the EPA
to collect data on drinking water quality. To control microbial contamination, water suppliers treat drinking water with disinfectants. Responding
to concerns about the chemical byproducts created when disinfectants react with chemicals already in the water, the EPA convened a negotiated
rulemaking proceeding to develop enhanced standards for microbial and new standards for disinfectant byproducts. The negotiations resulted in
two proposed rules on disinfectant byproducts and water treatment, and a final rule governing the collection of information the agency needs
before finalizing the two proposed rules. Following EPA's promulgation of the information collection rule, the American Water Works
Association (AWWA), a member of the rulemaking committee, reported that it "was surprised and disappointed by some significant provisions of
the regulation." AWWA argued that the EPA established a statistically unreliable monitoring procedure in its final rule which was not included in
the proposed rule. Faced with a limited statutory deadline for filing a petition for judicial review, AWWA filed a petition in the D.C. Circuit Court
challenging the information collection rule. AWWA objected to the time period for water suppliers to complete the required monitoring, as well as
to the specific monitoring tests required under the final rule. After several months of discussions with the EPA, AWWA decided to withdraw its
petition. AWWA reported that some of the issues related to the compliance schedule had been resolved, and that the EPA was inclined to consider
its concerns about the testing procedure. Following the filing of AWWA's petition, for example, EPA's Science Advisory Board's Drinking Water
Committee met to examine the reliability of the new monitoring requirements imposed by the agency. Given the ongoing nature of the EPA's
actions on microbial and disinfectant byproducts, AWWA decided to pursue its "fundamental disagreement" with the EPA outside of court and in
the context of ongoing discussions with the agency and other organizations over the final substantive standards. These ongoing discussions with
participants in the negotiated rulemaking have sometimes engendered disagreement over what the parties actually agreed to in their negotiations
over the substantive (drinking water standards. As
In each of
petitioners challenged EPA rules notwithstanding the fact that the rules had
reached an appellate panel for a decision, this relatively small number of adjudicated cases is typical of the overall pattern of judicial review
challenges. For all challenges to EPA rules filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an
appellate panel. Negotiation and settlement discussions typically follow the filing of challenges to any EPA rule, making the process of litigation
over regulations compatible with ongoing cooperation between representatives of litigating organizations and EPA staff. In the aggregate,
negotiated rulemaking has not generated any substantial difference in the way that legal challenges get resolved. For years, proponents
of
challenges persist, and at a noticeably higher rate at the EPA, even after the agency has
employed the negotiated rulemaking procedure. As a means of reducing litigation,
negotiated rulemaking has yet to show any demonstrable success.
Reg negs cant solve litigationempirics prove
Coglianese 97
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, Duke Law Journal, Volume
46, No. 6. 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj//ghs-kw)
The Grand Canyon visibility rulemaking has been described "as a prototype 'win-win'
solution of an environmental problem and a model for other regulatory negotiations." The
process was featured prominently in a front-page New York Times article on EPA's use of negotiation as an alternative to "the lawsuit system."
Yet what has not been reported is that, notwithstanding the "virtually unprecedented
cooperation between the governmental agency and the directly affected parties," the
Grand Canyon visibility rule still ended up in federal court. The rule was challenged not
by participants to the negotiation, but by outsiders to the negotiated rulemaking process:
the Central Arizona Water Conservation District and four other irrigation districts that
purchased electricity from NGS, each claiming the visibility rule would increase their energy costs. The same New York
Times article that hailed the visibility rule also referred to EPA's reformulated gasoline rule as a model of a successful
negotiated rulemaking. The 1990 Clean Air Act required the EPA to issue a rule mandating the use of oxygenated fuel to reduce urban smog in
nonattainment areas. The EPA chose to use a formal negotiated rulemaking process to develop a proposal for this rule. The EPA selected
representatives from the automobile, petroleum, and renewable fuel industries, as well as from the environmental community. After arduous and
fragile negotiations, the parties reached what one report described as a "nearly litigation-proof agreement." Yet in
terms of avoiding
litigation and eliminating conflict, the reformulated gasoline rule has turned out to be
anything but successful. Within ten days of the publication of the final reformulated
gasoline rule in the Federal Register, both the American Petroleum Institute (API) and
Texaco, Inc. filed petitions for judicial review , objecting to a provision in the final rule in which EPA would publish
refiners' individual baseline standards instead of keeping this information confidential. The American Automobile
Manufacturers Association, the Association of International Automobile Manufacturers,
and the Renewable Fuels Association intervened in these actions. Following settlement discussions and an
out-of-court agreement reached with the petitioners, EPA proposed and promulgated a revision to the final rule
under which EPA would release only part of the baseline information and would treat claims of business confidentiality in accordance with the
agency's ordinary standards for protecting confidentiality. Two
acknowledged the error and issued a direct final rule amending portions of the reformulated gasoline rule to
address these concerns. Although both of these petroleum companies were in theory represented on the Clean Fuel Negotiated Rulemaking
Committee by other petroleum companies and by API, one petitioner challenging the reformulated gasoline rule had no direct or indirect
representative on the committee. The
National Tank Truck Carriers (NTTC), a trade association representing about 200
common carrier fuel transporters, also filed a petition for review against EPA. NTTC objected to provisions of the final
reformulated gasoline rule that held common carrier tank truck companies liable if fuel they transported for refiners did not meet the standards set
out in the rule. NTTC
argued that the Clean Air Act granted EPA the authority to establish fuel
standards but not the authority to regulate the transportation of reformulated fuels. It also
argued that the final rule denied common carriers' equal protection rights because it left private carriers and jobbers immune from liability
without any rational basis. Following the submittal of NTTC's brief but before EPA submitted its response, both parties reached a settlement
agreement under which the EPA would revise the final reformulated gasoline rule. The judicial proceedings have been held in abeyance pending
the implementation of the settlement agreement. As
regulations receive attention in the popular media (even hi elite papers such as the New York Times), the reformulated gasoline rule splashed
across the papers following the introduction of the new fuel. Citizens
the reformulated gasoline rule also earned the distinction of being the first U.S. regulation
struck down by the World Trade Organization. Venezuela and Brazil successfully
challenged the foreign refiner baseline provisions in the reformulated gasoline rule as
discriminatory and in violation of trade rules. The EPA was forced to revisit issues in the reformulated gasoline rule
again, issuing a revised rule more than three years after publishing its original final rule. A rule that has been heralded as
one of negotiated rulemaking's success stories demonstrates instead that the achievement
of an initial consensus by no means guarantees the elimination of controversy.
The reformulated
gasoline rule and the Grand Canyon visibility rule are but two illustrations that negotiated rulemaking is no panacea for conflict in the regulatory
process. In addition to the challenges filed against EPA rules, several
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "(t)he malaise of administrative
law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." - He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: We
have grown
accustomed lo rulemaking procedures that take several years to complete at the agency
level and, in the event judicial review is sought, another year or two in the courts. The cost of
participating in such a proceeding for both the agency and the private parties can be staggeringly high.1' For Harter, negotiated rulemaking
provided an alternative that would "reduce the time and cost of developing regulations/*14 He argued that it offered agencies an antidote to "the
traditional battle" of conventional rulemaking.15 In
include in my assessment all the negotiated rulemakings completed by EPA during the study
period. Unlike the NPR report, I rely on primary source data on the filings of suits challenging EPA
rules and thus provide an accurate account of litigation filed against both negotiated and
conventional rules. By carefully applying empirical research methods, I find that on average it
has taken EPA about three years to develop a rule, regardless of whether the agency used
negotiated rulemaking or conventional rulemaking procedures.47 The median duration is
also about the same for negotiated and conventional rules.4S Negotiated rulemaking does
seem to make a difference when it comes to litigationhowever, the difference is in the
direction opposite to what has been expected. Negotiated rules are challenged fifty percent
of the time, while other comparable, significant EPA rules are challenged only thirty-five
percent of the time.4tJ These results indicate all too clearly that negotiated rulemaking has failed to
accomplish its goals of preventing litigation and saving time. Negotiation simply does not
"cure" regulatory malaise.
Reg Negs dont resolve delays or litigation---best empirically validated research
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship/) Deng
I Is Negotiated Rulemaking a "Cure"? In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "the malaise
of administrative law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." n12 He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: (*390) We have grown accustomed to rulemaking
procedures that take several years to complete at the agency level and, in the event judicial review is sought, another year or two in the courts. The cost of participating
in such a proceeding for both the agency and the private parties can be staggeringly high. n13 For Harter, negotiated rulemaking provided an alternative that would
"reduce the time and cost of developing regulations." n14 He argued that it offered agencies an antidote to "the traditional battle" of conventional rulemaking. n15 In
negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation. n16 The agency (*391) convenes a committee comprised of
representatives from regulated firms, trade associations, citizen groups, and other affected organizations, as well as members of the agency staff. n17 The committee
meets publicly to negotiate a proposed rule. If the committee reaches consensus, defined as a unanimous concurrence of all the interests, the agency uses the
agreement as a basis for its proposed rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. n18 Harter's 1982
article proved instrumental in garnering support for negotiated rulemaking as an alternative to conventional rulemaking. The article was based on a report to the
Administrative Conference of the United States (ACUS), which then formed the basis for ACUS's recommendation that federal agencies pursue negotiated
rulemaking. n19 The initial ACUS recommendation noted that under the existing form of notice-and-comment rulemaking, "long periods of delay result, and
participation in rulemaking proceedings can become needlessly expensive." n20 ACUS's recommendation was premised on the expectation that negotiated rulemaking
would overcome the delays, litigation, and other adverse consequences associated with conventional rulemaking and would result in rules more acceptable to the
interests affected by agency decisions. n21 In the years following Harter's article and ACUS's recommendation, agencies began to experiment with negotiated
rulemaking and Congress began to consider legislation to provide clear authorization for its use. n22 Legislative debate in Congress, along with extensive commentary
by academics and practitioners, emphasized that negotiated rulemaking would help (*392) reduce the delays and litigation that were thought to dominate the
conventional rulemaking process. n23 In the years leading up to the passage of the Negotiated Rulemaking Act of 1990, n24 regulatory negotiation was consistently
advocated as a means of improving what was thought to be a time-consuming, litigation-prone regulatory process. From 1983, when the Federal Aviation
Administration (FAA) initiated the first federal negotiated rulemaking, n25 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized, n26 about
a dozen federal agencies used the procedure to develop and issue at least one rule. All told, federal agencies had completed thirty-five rules using negotiated
rulemaking, a number that amounted to less than 0.01% of all rules issued during the same period. n27 As of 1996, EPA had completed twelve negotiated rulemakings,
an agency's rules, but instead have tended deliberately to select rules for negotiation only after concluding that the rule stands a reasonable likelihood of successful
negotiation. n32 Although a true experimental method (*394) is not possible given the nonrandom selection of rules for negotiation, careful social science research
still aims to adhere to the basic principles used in an experimental research design as much as possible. Since negotiated rulemaking is thought to be a treatment or a
"cure" for the delays and litigation generated by the normal rulemaking process, the appropriate way to evaluate its impact is to compare the outcomes of rules that
have been treated with negotiation with the outcomes of a comparison group of similar rules that have not had the negotiation treatment. This comparison group
permits researchers to make an inference about the counterfactual, or about what would have occurred in the treatment group absent the application of the negotiation
process. In comparing the outcomes of rules in the treatment group with rules in the comparison group, social scientists adhere to a number of exacting standards to
ensure that their research results are sound. n33 In assessing the recent claims made by Harter, three fundamental principles for neutral empirical analysis are
important to keep in mind. First, researchers need to develop and apply clear criteria for determining what constitutes a treatment and how to measure outcomes. n34
Social scientists call this the process of "operationalizing" key variables and collecting reliable data on them. n35 The measurement of a rulemaking's duration, for
example, should follow a clear standard. Otherwise, measurements become difficult, if not impossible, to interpret and replicate. Second, researchers should strive to
apply the same criteria and analysis to both the treatment group (negotiated rulemaking) and the comparison group (conventional rulemaking). n36 (*395) Since the
analysis aims to compare the outcomes of both groups, it is important that analysts try to measure the same outcomes consistently across both groups. To do otherwise
would be like having election officials in a contested election apply one rule when interpreting votes on ballots favoring one party and a different rule when
interpreting votes on ballots favoring the other party. Finally, it is essential to include in any impact analysis those cases where the treatment failed. n37 Just as it
would be obviously tautological to conclude that a medicinal cure was effective after examining only the cases where the medicine appeared to work, so too would it
be mistaken to declare the success of negotiated rulemaking without considering the cases where it failed. We can only know how well a treatment works if we study
all the cases in which it has been applied or tried. In the case of negotiated rulemaking - just as with medications - the treatment sometimes fails. Even if a consensus
is not reached, the attempted negotiation must still be analyzed and included in the treatment group for the purpose of assessing the effectiveness of the negotiation
of the procedure was at best extremely thin. Only a few minor efforts existed that compared the results of negotiated rulemaking directly with the results of
conventional rulemaking. n39 In the first such effort, (*396) Neil Kerwin and Scott Furlong conducted a study of the duration of EPA rulemakings in which they
briefly mentioned that they compared the duration of the four negotiated rules in their sample with the duration of the larger sample of 150 of the most significant EPA
rules completed through the conventional rulemaking process. n40 Using dates from EPA's internal regulatory management system as their basis for operationalizing
the duration of rulemaking, Kerwin and Furlong found that, on average, the four negotiated rules went through the entire rulemaking process about eleven months
faster than did the average conventional rule in their sample. n41 A second effort to compare the outcomes of negotiated and conventional rulemakings could be found
in the Clinton Administration's National Performance Review (NPR) report "Improving Regulatory Systems." n42 The NPR report made brief but explicit claims
comparing EPA's negotiated rules with its conventional rules in terms of both time and the incidence of litigation. n43 In addition to citing the time savings reported
by the Kerwin and Furlong study, the author of the NPR report stated that at EPA negotiated rulemakings had shortened the rulemaking process by up to eighteen
months when compared with conventional rulemaking. n44 The report also asserted that negotiated rulemaking reduced the litigation rate for EPA rules from around
seventy-five to eighty percent to twenty percent for negotiated rules. n45 (*397) In my research, I have also taken a comparative approach in evaluating the impact of
negotiated rulemaking on the duration of rulemaking and the subsequent incidence of litigation. As I state in Assessing Consensus: My purpose ... is simply to assess
negotiated rulemaking on its own terms, using the standards that have been set for it by those legislators, agency officials, practitioners, and scholars who have
advocated its use over the years. The goals of saving time and reducing litigation are by far the most prominent ones invoked in the literature and the legislative
history. n46 My research follows appropriate standards for empirical research and overcomes major limitations of the two prior efforts to make comparative
assessments of negotiated rulemaking. Unlike Kerwin and Furlong (who, in fairness, never really set out to evaluate negotiated rulemaking), I include in my
assessment all the negotiated rulemakings completed by EPA during the study period. Unlike the NPR report, I rely on primary source data on the filings of suits
challenging EPA rules and thus provide an accurate account of litigation filed against both negotiated and conventional rules. By carefully applying empirical research
on average it has taken EPA about three years to develop a rule, regardless of
whether the agency used negotiated rulemaking or conventional rulemaking procedures . n47
The median duration is also about the same for negotiated and conventional rules. n48 Negotiated
methods, I find that
rulemaking does seem to make a difference when it comes to litigation - however, the difference is in the direction opposite to what has been expected.
Negotiated rules are challenged fifty percent of the time, while other comparable,
significant EPA rules are challenged only thirty-five percent of the time. n49 These results indicate all too
clearly that negotiated rulemaking has failed to accomplish its goals of preventing litigation and saving time. Negotiation simply does not "cure" regulatory malaise.
(*398) II Evaluating the Duration of Negotiated Rulemaking Harter disagrees with these findings. He first criticizes how I evaluate negotiated rulemaking's impact on
the duration of the regulatory process, arguing that I should exclude from my study one rule that EPA negotiated - the farmworker protection rule - because its
committee failed to reach a consensus. n50 In a few other cases, he also questions my reliance on the publication of the final rule to mark the completion of the
rulemaking process. n51 In total, Harter criticizes my data with respect to the four EPA negotiated rulemakings that took the agency the longest to complete. As a
result, Harter claims that once his modifications to the data are made, the average duration of negotiated rulemakings is shorter than the duration of conventional
rulemakings. n52 He is correct that the average duration would decline if the longest negotiated rules were to be excluded or their length were to be truncated. He is
wrong, however, to suggest that such modifications should be made. The farmworker protection rule, while a failure in terms of achieving consensus, still represented
an earnest effort by the EPA to negotiate the rule and merits inclusion in any evaluation of negotiated rulemaking. n53 The other modifications Harter urges fail to
adhere to the basic precepts of consistency and reliability in empirical analysis. n54 Moreover, even if one were to be persuaded by Harter's advocacy, his
modifications would only affect the average duration of negotiated rulemaking, and not the more appropriate measures of rulemaking time. n55 The median duration
of negotiated rulemaking remains largely unchanged even after Harter's modifications. n56 More significantly, whatever one makes of the duration of rules from start
to finish, the overall investment of staff time and effort by agencies and outside organizations remains indisputably and significantly greater for negotiated rulemaking.
(*399) A. EPA's Negotiated Rulemaking on Farmworker Protection Harter first seeks to exclude from analysis what he calls the "peculiar case" of the farmworker
protection rulemaking. n57 In 1985, EPA initiated a negotiated rulemaking process to establish a regulation that would reduce the exposure of agricultural workers to
the spray of pesticides. n58 The agency convened a negotiation committee comprising representatives from farming organizations, farmworker unions, agricultural
and forest products trade associations, state and local governments, the U.S. Department of Agriculture, and the EPA. n59 The committee met as a plenary group on
several occasions, established a series of five working groups, and developed and circulated working drafts of a proposed regulation. n60 As the committee neared
completion of a final draft of the proposed rule, the negotiations reached an impasse, n61 and the representatives from the farmworker organizations decided to end
their involvement with the negotiations. n62 The EPA attempted to bring the farmworkers' representatives back into the discussions and continued to meet with the
remaining members of the committee. n63 In the end, however, the agency was unable to secure a meaningful consensus without the involvement of the farmworkers'
representatives, whom the agency failed to bring back to the table officially. Harter claims the farmworker protection rule should be excluded from my analysis of the
effectiveness of negotiated rulemaking. n64 He asserts that the farmworker protection negotiated rulemaking was "abandoned" by EPA and that the bulk of the time
associated with this regulation should not be attributed to negotiated rulemaking because it took place after the negotiations (*400) collapsed. n65 Yet what happened
in the farmworker protection rulemaking could happen in any negotiated rulemaking. Negotiation does not always yield a consensus, and the mere fact that consensus
is not reached is no reason to exclude from evaluation those rules for which the agency otherwise earnestly tried to use negotiation. If we are to determine whether
negotiated rulemaking is effective in achieving its goals, both common sense and conventional empirical research methods dictate that we look at all the cases where
the technique was used, not only those cases where it succeeds. Although negotiated rulemakings should be excluded when they were genuinely abandoned, I
specifically state in Assessing Consensus that by "abandoned" negotiated rulemakings "I do not mean that the participants failed to reach consensus." n66 Rather, in a
passage that Harter quotes, n67 I treat as "abandoned" those rulemakings for which the agency, at some point after publication of an intent to negotiate, either (1)
"decided not to commence negotiations," (2) "disbanded the committee before seeking even a limited agreement," or (3) "withdrew the underlying regulatory action
altogether." n68 Rulemakings that meet any one of these three criteria are rulemakings for which the agency failed to use the negotiation process earnestly as a means
of developing a rule, or for which the agency declared its decision to issue no rule at all. n69 They are cases where the agency essentially decided to forego altogether
the experimental treatment called negotiated rulemaking. The EPA did commence and earnestly pursue negotiations in the farmworker protection rule. The agency
worked diligently and responsibly to seek an agreement in this case, and apparently even came close to doing so. n70 When problems arose, the agency (*401) and the
other parties offered to replace the facilitator in an effort to keep the farmworkers' representatives on the committee. n71 The EPA continued to hold meetings with the
rest of the committee, "hoping that the farmworkers' representatives would return." n72 In addition, the EPA reportedly continued to share drafts of the proposed rule
with the farmworkers' representatives before the opening of the notice-and-comment period. n73 EPA did not "abandon" the farmworker protection negotiated
rulemaking; rather, one non-governmental interest abandoned the negotiation committee - the committee simply failed to reach a consensus. n74 EPA did eventually
issue a final farmworker protection rule, and in doing so the agency made a point of crediting the negotiation process for having "helped shape the proposed
regulation." n75 Harter himself suggests that the agency learned much from the negotiation process and that the discussion draft that emerged from the negotiations
formed a basis for its final rule. n76 In making this suggestion, however, Harter essentially concedes that the farmworker protection rule was, after all, a negotiated
rulemaking. One cannot consistently treat the rule as a negotiated rulemaking in order to claim credit for some benefits, only (*402) to exclude it when it comes to
assessing whether negotiated rulemaking achieves other benefits. Significantly, no one ever claimed that the farmworker protection rule should be treated as anything
but a completed negotiated rulemaking until after my research results were published. Lee Thomas, who served as the EPA Administrator during the negotiations and
through the publication of the proposed rule, counted the farmworker protection rule among EPA's negotiated rules. n77 When the EPA's Office of Policy, Planning
and Evaluation set out to assess how well negotiated rulemaking worked, it included the farmworker protection rule in its study. n78 Indeed, on eight separate
occasions, the EPA listed the farmworker protection rule as an example of one of its negotiated rulemaking in the Federal Register. n79 The rule has appeared in three
separate (*403) reports issued by ACUS, again listed as one of EPA's negotiated rulemakings. n80 EPA's Consensus and Dispute Resolution Program has kept its own
internal list of EPA negotiated rulemakings, on which the farmworker protection rule can be found. n81 Finally, the director of the Consensus and Dispute Resolution
Program, Chris Kirtz, published an article listing the farmworker protection rule as one of EPA's negotiated rulemakings. n82 Interestingly, EPA's internal list of
negotiated rulemakings was recently modified to add a sentence to the description of the farmworker protection rulemaking stating that the "negotiation was
abandoned." n83 This statement never appeared in three earlier versions of this EPA list of negotiated rulemakings, n84 making it reasonable to wonder why EPA staff
would change its description in this document more than five years after EPA issued its final rule and more than ten years after the farmworkers reconsidered their
involvement in the negotiations. Perhaps part of (*404) the explanation lies in the fact that EPA made a point to distribute copies of its altered list at the 1998
Association of American Law Schools panel organized around my research. n85 When the farmworker protection proceeding was described earlier by the agency in
the Federal Register, EPA never described the negotiated rulemaking as having been "abandoned" (the same word used to label the category of rules excluded from my
study). Rather, EPA noted that representatives from four groups "decided to discontinue participation in the Regulatory Negotiation process" and that afterwards the
agency still scheduled four additional meetings with the remaining members of the negotiation committee. n86 Notwithstanding Harter's and EPA's efforts to revise
the historical record, the farmworker protection rule is properly considered one of the agency's negotiated rules. Administrative law scholars have considered it as
such. n87 Moreover, Laura Langbein and Neil Kerwin, whose research Harter considers "rigorous" and "the only careful and comprehensive" empirical research on
negotiated rulemaking, n88 initially included the farmworker protection rule in their study. n89 They eventually dropped it from their sample of negotiated rules, but
not because of any principled (*405) or methodological reason for excluding it from a study of the performance of negotiated rulemaking. Rather, Langbein and
Kerwin dropped it simply because they were unable to locate enough of the participants in the rulemaking to interview. n90 Furthermore, Harter has himself
acknowledged that the farmworker protection rulemaking was a negotiated rulemaking, going so far as to reprint the organizational protocol for the negotiations as an
appendix to an earlier article. n91 It is understandable why an advocate would now like to treat the farmworker protection rulemaking as if it were not a negotiated
rulemaking for the purpose of determining the average duration of negotiated rules. The farmworker protection rule took longer to complete than any other. n92 As
Harter points out, removing this one rule from the group of EPA negotiated rulemakings has the effect of decreasing the average duration of these rules by
approximately four months. n93 Yet Harter fails to note that in using Federal Register notices to compute the duration of negotiated rulemakings, I actually understate
the average duration by about the same amount of time. As I note in Assessing Consensus, "Federal Register listings yield an average time for the four negotiated rules
in the Kerwin and Furlong study of 1.8 years (647 days), more than four months shorter than the average they report for the same rules (778 days)." n94 My approach
therefore underestimates rulemaking duration because it excluded the agency work that precedes the publication of a notice of intent and which leads the agency to
make the decision to engage (*406) in a negotiated rulemaking. In this and other ways, my approach relies on conservative measures that in effect create a "deliberate
bias in favor of finding a time savings in rules developed with negotiated rulemaking procedures." n95 As a result, even supposing the farmworker protection rule
should be excluded as a negotiated rulemaking, the resulting average time decrease caused by excluding it is still within the bounds of what can be explained by the
conservative measure I used for the duration of negotiated rulemaking. n96 It is simply not possible to conclude with any confidence that negotiated rulemaking has
made the rulemaking process significantly shorter. B. Calculating Rulemaking Duration Harter critiques my analysis of rulemaking duration in other ways. He claims,
for example, that by using a "strictly numerical methodology" for evaluating the duration of rulemaking I have ignored "the varying complexity of rules." n97 He
notes that "rulemaking is an inherently political activity" and argues that "counting days between two events disregards all the dynamics of political activity." n98
Although Harter never clearly states what inference he thinks should be drawn from these vague points, he appears to be suggesting either (1) that negotiated
rulemaking should not be subject to empirical evaluation n99 or (2) that omitted, perhaps even unmeasurable, variables influence the duration of the rulemaking
process, making quantitative analysis unreliable. There is no reason to support the first claim that negotiated rulemaking should be exempt from the kind of evaluation
to (*407) which other policies or procedures are normally subjected. n100 Even advocates of negotiated rulemaking recognize that it should be subject to evaluation.
n101 The second claim raises a concern that should be considered for all empirical research, but it matters only if there is reason to suspect that omitted variables are
relevant and systematically biasing the results in one direction. n102 Harter offers no credible reason to suspect that the so-called "dynamics" inherent to all
rulemaking systematically operate to lengthen the time it would otherwise take to complete the rulemakings that were negotiated, nor does he specify any particular
variable that should have been included in my analysis. In contrast, I extensively scrutinize the possibility of omitted variable bias in Assessing Consensus. n103 All
the available evidence indicates that the rules selected for negotiation tend to involve underlying issues and interests that made them more - not less - likely to succeed
in achieving a timely outcome. n104 EPA has not used negotiated rulemaking for (*408) the rules affecting the broadest number of organizations nor for those rules
raising the most contentious policy issues. Rather, the agency has tended to follow the advice of negotiation consultants, as well as the guidelines of the Negotiated
Rulemaking Act, to select rules for negotiation for which the agency determines there is a preexisting likelihood of success within a limited amount of time. n105
Admittedly, on some occasions the agency has selected significant rulemakings to negotiate and, as we know, it has also sometimes misjudged whether a consensus
could be attained in a fixed time period. n106 Overall, though, the agency has tended to select rules that are expected to take less time to promulgate. n107 Harter also
claims that instead of using a consistent, verifiable method of calculating rulemaking duration, I should have imputed different ending points to negotiated rules based
on "the actual, immediate goal the agency hoped to accomplish" and "what those who would be affected by the agency's action thought." n108 Harter asserts that
because I used the date when the agency published its final rule, rather than imputing ending (*409) points for negotiated rulemakings, I fail "to conduct an accurate
empirical study of rulemaking." n109 Actually, the danger is just the opposite. If researchers studying the duration of rulemaking were to make their own ad hoc
decisions about when a rulemaking begins and ends, their research would lack reliability. n110 Without clear criteria for collecting data and making measurements,
individual researchers would have to make their own decisions about when an agency's rulemakings ended. Such an approach would make it exceedingly difficult, if
not impossible, to verify and interpret results across studies. n111 Thus, it is important for researchers to operationalize rulemaking duration using a consistent,
verifiable indicator such as Federal Register notices or other uniform administrative indicators. This is almost certainly the reason that Neil Kerwin and Scott Furlong
opted for such an approach, relying on the dates found in EPA's internal regulatory tracking system rather than their own interpretation of when individual
rulemakings were completed. n112 More recently, political scientists John Wright and Steven Balla conducted a further study of the length of negotiated rulemaking again using the dates of notices in the Federal Register. n113 Choosing the date on which a final rule is promulgated (*410) is particularly appropriate given that this is
the point at which the agency has taken a final, legally reviewable action. n114 Since one of the main goals attributed to negotiated rulemaking is to reduce subsequent
litigation over agency rules, it is entirely appropriate to use the publication of the final rule as the ending point of a negotiated rulemaking for purposes of evaluation.
Even Langbein and Kerwin, in the study that Harter praises, regard the outcome of the negotiated rulemaking as the promulgation of the final rule. n115 Moreover, as
any administrative lawyer knows, the rulemaking process does not necessarily end once the agency issues a final rule. Even putting aside any subsequent litigation,
agencies do revisit their final rules, amend and revise them, and even occasionally rescind them. n116 Researchers who free themselves from a consistent data
collection rule face an extremely wide range of potential starting and ending points for any particular rulemaking. For example, as I note in Assessing Consensus, the
negotiated rulemaking over drinking water standards for disinfectant byproducts had, by 1996, resulted in a final rule governing the collection of drinking water
information even though the substantive drinking water standards based on the negotiations still remained as proposed rules. n117 I use the date of the "first final rule
to emerge from this negotiated rulemaking process, even though it is an information collection rule and not a drinking water standard" simply to ensure that my
estimates are employed consistently and conservatively. n118 The farmworker protection rule is yet another example of a rulemaking that did not really end with the
promulgation of a final rule. As I note in Assessing Consensus, debate over the farmworker protection rule persists: "EPA has issued extensions and changes to the
rule, (*411) Congress has entered the fray, and outside groups have threatened litigation." n119 Opening measurement to ad hoc judgments would not only enable
some to claim that rulemaking was shorter in some cases, but it would also allow others to claim that rulemaking was still longer in other cases. The approach I take in
my empirical research adheres to sound social science research standards in that it relies on neutral, consistent methods of calculating the duration of rulemaking.
Harter's approach, on the other hand, tips the scales in favor of finding a time savings for negotiated rulemaking. He makes adjustments that shorten the process for
negotiated rulemaking, but he never acknowledges the need to be consistent and make similar adjustments to the comparison group of rules adopted through
conventional notice-and-comment procedures. n120 Harter claims, for example, that an earlier ending date should be used for the equipment leaks rule because the
EPA issued an early notice of the agreement in the equipment leaks rulemaking "so industry could begin taking actions to comply." n121 In an earlier article, Harter
notes that many firms "were complying with the rule long before it was in effect." n122 He similarly argues that the ending date of the reformulated gasoline rule
should be moved up by about eight months because that was the time when the EPA held a series of workshops "so that those affected could (*412) comply." n123 Yet
what Harter fails to acknowledge is that regulated entities often take steps to comply with looming environmental regulations well in advance of agency rules coming
into effect. In many corporations and trade associations, lawyers and managers regularly work to anticipate the EPA's regulatory agenda, taking steps to bring their
organizations and members into compliance before the final rules take effect. n124 This is especially the case with regard to regulations affecting equipment or
production processes, as compliance can require significant capital expenditures and lead time for planning. It is in firms' interests to avoid the risk of business
interruption or regulatory liability, so firms often plan ahead and begin taking steps to comply after an agency issues a proposed or interim rule or otherwise signals its
regulatory direction. n125 Overall, Harter presents his data in such a way as to favor negotiated rulemaking. He argues that if one negotiated rule is excluded from
study, and if the duration of two other rules is shortened, the average duration of the EPA's negotiated rulemakings is only 751 days instead of 1,013 days, or thirtyfive percent shorter than the average duration reported in my study. n126 This reduction in average duration arises because the (*413) one rule that Harter argues
should be excluded - the farmworker protection rule - happened to be the negotiated rulemaking with the longest duration. In addition, the two other rules - the
equipment leaks and reformulated gasoline rules - were among those negotiated rules with the longest durations. Harter also questions the dates I use to calculate the
duration of a fourth rule - the drinking water collection rule - although he does not change the dates I use in making his alternative calculation. n127 In all, Harter
disputes my time computations for the four EPA negotiated rules that had the longest rulemaking duration. Due to the nature of an average (or mean) as a statistical
measure, the average duration of negotiated rulemaking would indeed drop substantially if one were to remove the longest negotiated rulemaking from the group and
also considerably shorten the duration of other rulemakings that took a longer time. This is explainable as a property of the statistic, since averages tend to be sensitive
to outlying cases. Indeed, when analyzing a distribution of data with outliers in only a positive direction - such as with income or time, which can never be less than
zero - the average will tend to be pulled upwards. n128 In such cases, the median will generally be a more suitable indicator of the typical case, as it is less sensitive to
extreme outliers. n129 It is especially appropriate for a researcher to report the median in these cases, something that I did and Kerwin and Furlong did, but Harter did
not. Table 1: Duration of EPA Rulemakings (in days) (SEE TABLE IN ORIGINAL) As Table 1 shows, Kerwin and Furlong report an average rulemaking duration
negotiate as the starting point for each rule, rather than EPA's internal records (the Kerwin and Furlong approach), n131 my study understates the duration of
negotiated rulemaking by about 131 days compared with the approach used by Kerwin and Furlong. n132 (*415) C. Negotiated Rulemaking Demands More Time and
negotiated
rulemaking still demands more time and effort on the part of the participants than does conventional
rulemaking. n133 Even if the overall duration of negotiated rulemakings could be shown to be shorter, n134 the
intensity of negotiated rulemakings still translates into additional time. As Harter himself acknowledges,
Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process,
"reg negs are intense activities: participating in one can be expensive and time consuming." n135 The Langbein and Kerwin study, which Harter considers "rigorous"
and "careful," n136 shows that participants in negotiated rulemakings report spending nearly twice as much overall in organizational resources as did their
impact of negotiation on the duration of rulemakings, there is no disputing that negotiated rulemaking is much more burdensome, in terms of the overall time and
expense, than conventional rulemaking. n139 (*416) III Negotiated Rulemaking and the Avoidance of Litigation Over the years, advocates of negotiated rulemaking
consistently claimed that the procedure would eliminate subsequent litigation filed challenging administrative rules. n140 Yet until I undertook my research, no one
had sought to assess these claims by collecting comprehensive data on court filings for negotiated and conventional rules. Having collected this data for the EPA, I
find that six out of the twelve completed EPA negotiated rules in my study have resulted in legal challenges, a litigation rate higher than that for all significant rules
under EPA's major statutes and almost twice as high as that for EPA rules generally. n141 Harter does not dispute that these challenges to negotiated rules were filed.
n142 Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. n143 He also claims that I fail to account for differences in litigation
and that when these differences are considered, negotiated rulemaking results in less protracted litigation. n144 In this Part, I demonstrate that Harter is wrong on both
counts: negotiated rulemaking has long aimed to reduce legal challenges to agency rules and it has failed to reduce both the number and intensity of these challenges.
(*417) A. Avoiding Litigation Has Long Been a Goal of Negotiated Rulemaking Harter suggests that it really does not matter that negotiated rulemaking has failed to
prevent litigation. According to Harter, negotiated rulemaking was not originally intended to reduce litigation. For example, he asserts that "those who were present at
the creation of reg-neg sought neither expedition nor a shield against litigation." n145 Yet negotiation has long been offered, even in the early years, as an alternative
that would reduce the perceived adversarial relationship between business and government. n146 Former Secretary of Labor John Dunlop initiated interest in
negotiated rulemaking in the 1970s by calling attention to several problems with government regulation, one of which was "the legal game-playing between the
regulatees and the regulators." n147 According to Dunlop, typically the "regulatory agency promulgates a regulation; the regulatees challenge it in court; if they lose,
their lawyers may seek to find another ground for administrative or judicial challenge." n148 He urged regulators to involve affected parties in the development of new
rules so as to reduce the contentiousness, delays, and lawsuits that he perceived to be afflicting the regulatory process. n149 Philip Harter himself, in his original
article on negotiated rulemaking, advocated negotiated rulemaking as a cure for a "bitterly adversarial" n150 regulatory process: Negotiations may reduce judicial
challenges to a rule because those parties most directly affected, who are also the most likely to bring suits, actually would participate in its development. Indeed,
because the rule would reflect the agreement of the parties, even the most vocal constituencies should support (*418) the rule. This abstract prediction finds support in
experience in analogous contexts. For example, there has been virtually no judicial review of OSHA's recent safety standards that were based on a consensus among
the interested parties. Moreover, rules resulting from settlements have not been challenged. n151 Moreover, according to Judge Loren Smith, chairman of ACUS at the
time the Conference acted on Harter's report, "when we passed the first recommendation (encouraging agencies to use negotiated rulemaking)..., the Reagan
Administration's whole purpose on negotiated rulemaking was to keep things out of the courts." n152 In chronicling EPA's decision to launch its regulatory
negotiation project in 1983, Daniel Fiorino and Chris Kirtz observed that the ACUS recommendation was one of the factors prompting EPA to pursue negotiated
rulemaking. n153 Furthermore, they point explicitly to the desire by EPA officials to reduce litigation: Perhaps most importantly, people within the EPA were
becoming more aware of the limits of conventional, adversarial rulemaking under the Administrative Procedure Act. The standard rulemaking process had become too
susceptible to (*419) delay and litigation. As many as 80 percent of EPA's final rules are challenged - often by both sides of an issue. A pilot program on regulatory
negotiation offered an opportunity to test an alternative method for proposing Agency rules that would permit all participants a face-to-face role in decision-making.
n154 As one can plainly see, the aim of avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and
EPA's decision to launch its regulatory negotiation project. Admittedly, over the years advocates of negotiated rulemaking have claimed a number of additional
benefits from negotiated rulemaking, n155 but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules. n156
Numerous practitioners, academics, legislators, and agency officials have advocated negotiated rulemaking as a way of reducing subsequent litigation, which many
erroneously thought had reached the point where groups challenged four out of every five regulations EPA issued. n157 The Negotiated Rulemaking Act included in
its preamble the goal of reducing the likelihood of litigation. n158 In addition, Republican and Democratic administrations endorsed the use of negotiated rulemaking,
in no small part because of the belief that the procedure (*420) would minimize litigation. n159 Advocates have consistently emphasized negotiated rulemaking's
potential for reducing litigation, and even the earliest "pioneers" of the process have boasted (inaccurately) that the negotiation process has "almost eliminated"
subsequent litigation n160 and that "no rule crafted in this manner has been subjected to court action." n161 B. Negotiated Rulemaking Has Failed to Reduce
Litigation Even though Harter erroneously suggests that it does not really matter that negotiated rulemaking has generated a considerable number of legal challenges,
n162 he nevertheless makes several forcefully worded, but mistaken, criticisms of my analysis of negotiated rulemaking and litigation. n163 For example, he first
accuses me of "significantly misleading" the reader by including a discussion of the Grand Canyon visibility negotiation in Assessing Consensus, because it was not
technically a negotiated rulemaking. n164 At the same time, however, he readily acknowledges that my article "points out that this rule was not developed (*421)
under the Negotiated Rulemaking Act." n165 In addition to stating that the rule was not technically a negotiated rulemaking under the Act, I also expressly exclude the
Grand Canyon rule when calculating and discussing the overall litigation rate for EPA's negotiated rules. n166 Nevertheless, mentioning the litigation over the Grand
Canyon rule as I do is far from misleading - it is relevant and highly probative support for the proposition that "rules promulgated following a regulatory negotiation
are far from immune from legal challenge." n167 The Grand Canyon rule was probably the most well publicized of any EPA regulatory negotiation, having concluded
with a dramatic presidential ceremony near the edge of the Grand Canyon and prompting a front-page New York Times article hailing the negotiation process as a
model alternative to the "lawsuit system." n168 Moreover, at the time of my original research, the Grand Canyon rule had been heralded as a negotiated rulemaking
success story by one of the sponsors of the Senate bill permanently reauthorizing the Negotiated Rulemaking Act. n169 At that time, however, the rulemaking had
been discussed in the legal literature only "as a prototype 'win-win' solution of an environmental problem and a model for other regulatory negotiations." n170 Thus,
including mention of the Grand Canyon litigation actually helps to correct the misleading impression that regulatory negotiation eliminates subsequent legal
challenges to agency rules. (*422) Harter also charges that I fail to look into the details surrounding the challenged negotiated rules and their litigation. n171 This
claim is yet another example of Harter's advocacy. Even a cursory reading of Assessing Consensus reveals that I devote considerable attention to the details
surrounding all six EPA negotiated rulemakings that were subject to legal action, stating exactly who filed each petition for review, why, and to what effect. n172
Harter's claim that I fail to look at what happened in these cases is all the more interesting since he himself provides only two paragraphs in his article to the litigated
rules, compared with the more than eight pages contained in my original article. n173 He devotes a mere eleven words to the litigation challenging the disinfectant
byproducts rule compared with the page and a half I devote to that rule and its subsequent legal challenge. n174 Perhaps because his own discussion of the challenged
rules is so brief, Harter creates some confusion about the litigation filed against the reformulated gasoline rule and the equipment leaks rule. n175 Without denying
that court petitions were filed (*423) challenging these rules, he nevertheless mistakenly implies that the challenges I attribute to these two rules were actually filed
against related, but distinct EPA rules that were not negotiated. n176 Yet, even though petitions were filed against related (*424) rules, court records in both cases
show that petitioners also challenged the very rules which were developed through negotiated rulemaking. n177 Although those who advocate negotiated rulemaking
have created some ambiguity on this point, the fact is that the reformulated gasoline rule itself was challenged n178 as was the equipment leaks portion of the HON
rule which was developed through negotiated rulemaking. n179 Finally, Harter claims that I fail to distinguish "substantive challenges" from other kind of challenges,
and that negotiated rules have been "remarkably resistant" to such substantive challenges. n180 Since he never defines what he means by a "substantive challenge," it
not possible to test or respond to his claim fully. Once again, Harter's approach may well be understandable as a form of advocacy, but it is unacceptable as a basis for
empirical analysis of negotiated rulemaking. n181 If, in claiming that I fail to distinguish between "substantive" and other types of challenges, Harter means to imply
that I fail to report that most of the challenges to negotiated rules were settled out of court, then again a casual reading of Assessing Consensus is enough to (*425)
show that he is mistaken. n182 Harter notes that several of the challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I
already note this in Assessing Consensus. n183 In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision," the
"the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals ... and substantially more than the rate for all administrative
months of the promulgation of the final rule. n187 For many organizations filing petitions for review of (*426) EPA rules, the petition simply signals the beginning of
a new round of working out the details of the rule with the agency. Industry and environmental groups frequently treat litigation as a continuation of the rulemaking
in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement discussions typically
follow the filing of challenges to any EPA rule ... . In the aggregate, negotiated rulemaking has not generated any substantial difference in the way that legal challenges
get resolved. n189 Indeed, the litigation against negotiated rules turns out to be virtually the same as litigation against conventional rules along every dimension,
except that negotiated rules are challenged at a higher rate. n190 A single rule can, of course, be challenged by more than one organization. The data reveal not only
that negotiated rules are challenged at a higher rate, but also that each challenge involves on average a somewhat larger number of petitioners. As Table 2 shows, the
average number of petitions filed against negotiated rules is actually somewhat higher than the average number of petitions in challenges to conventional rules overall
(3.7 petitions per challenged negotiated rule versus 3.0 for challenged conventional rules). n191 The rate at which these challenges eventually reach a court for
decision is about the same as for challenges to conventional rules, and courts have been equally deferential in adjudicated challenges to negotiated rules as they are
more generally in all challenges to EPA rules. n192 The typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical
challenge filed against a conventional rule. Table 2: Litigation Challenging EPA Rulemakings (SEE TABLE IN ORIGINAL) (*427) C. Negotiated Rulemaking
Engenders Additional Conflict
its intensity, it also results in more legal challenges than would otherwise be expected. These legal challenges
have been filed both by participants in negotiated rulemakings and by organizations who
were not part of the negotiation process. n193 As I explain in Assessing Consensus, the failure of negotiated rulemaking to live up to
expectations is in part explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. n194 It is
consensus is
not always attainable, and even when it is, it may only temporarily hide underlying conflicts. n195 Negotiated rulemaking also creates new sources
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can even engender new conflicts. As we have seen,
of conflict that do not exist with other methods of policy making. n196 Conflicts can arise over the selection of participants in the negotiations, the meaning of
agreements that are reached, and whether the final rule is consistent (*428) with those agreements. n197 Disagreements can even arise about the implications of
silence in the agreement over particular terms or issues. n198 None of these additional kinds of conflict arise in the absence of negotiated rulemaking. A recent
negotiated rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new sources of conflict. HUD had originally
named four public housing organizations to serve on negotiated rulemaking committees for regulations addressing subsidies and capital funds. n199 After the housing
organizations subsequently filed a petition against the agency over a separate matter, HUD officials unilaterally declared that the organizations could no longer bargain
with the agency in good faith and removed them from the negotiated rulemaking committees. n200 The housing groups filed for a court order reversing their removal
from the committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition. n201 HUD eventually capitulated and
reinstated the organizations as members of the negotiated rulemaking committees, but the experience demonstrates a profound new source of litigated conflict that,
ironically, is found only in the very process that was intended to reduce litigation.
AT: Politics
Empirics prove the unpopularity of Reg Negs in Congress---2007 Food Amendments
Marchant et al. 11
(Gary Marchant is the Lincoln Professor Emerging Technologies, Law and Ethics at the Sandra Day OConnor College of Law
at Arizona State University. He is also a Professor of Life Sciences at ASU and Executive Director of the ASU Center for the Study of
Law, Science and Technology. Professor Marchant has a a Ph.D. in Genetics from the University of British Columbia, a Masters of Public
Policy degree from the Kennedy School of Government , and a law degree from Harvard. Braden R. Allenby (born 1950) is an American
environmental scientist, environmental attorney and Professor of Civil and Environmental Engineering, and of Law, at Arizona State
University. Allenby graduated from Yale University in 1972, received his Juris Doctor from the University of Virginia Law School, his
Masters in Economics from the University of Virginia, his Masters in Environmental Sciences from Rutgers University, and his Ph.D. in
Environmental Sciences from Rutgers. Joseph R. Herkert is a Lincoln Associate Professor of Ethics and Technology @ for the Arizona
State University School of Applied Arts and Sciences. The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight:
The Pacing Problem (The International Library of Ethics, Law and Technology) Published May 21st 2011 @
http://books.google.com/books?
id=cgViTg_XcgwC&pg=PA173&lpg=PA173&dq=reg+neg+unpopular&source=bl&ots=SYwVfPIenk&sig=k_8qSeUrxbNOz8359JNVuX
8eHIk&hl=en&sa=X&ei=trLNU-z4G_Kf7AbjkoCABQ&ved=0CD4Q6AEwBQ#v=onepage&q=reg%20neg%20unpopular&f=false)
Deng
While negotiated rulemaking is theoretically sound, supported by valid intentions and intuition, the
empirical implementation record of forming rules through negotiation is underwhelming,
even downright disappointing. Forecast as the remedy for an ineffective and sluggish regulatory procedure, negotiated
rulemaking seems to have fallen far short of its expectations . A vivid demonstration of the unpopularity of this tool
is during the 2007 amendments to the Federal Food, Drug and Cosmetic Act, then
Secretary of Health and Human Services Michael Leuvitt wrote to Congress to oppose a proposed
requirement for the FDA to use reg neg on the grounds that reg neg is too "time consuming
and resource intensive" (Cited in Kohick 2010). Notwithstanding the relatively dismal empirical record to dale, it is conceivable that
reg neg could be a potentially useful tool in limited situations (Note 1981). First, for a reg neg to work, all affected interests must be adequately
represented in the negotiation process (Hollcy-Walker 2007). Regulatory issues that involve a large number of affected interests may therefore not
be appropriate candidates for reg neg. Second, not only must all interested parties participate in the negotiations, they must be willing to negotiate
in good faith, so some level of trust and spirit of engagement and cooperation is a necessary prerequisite for meaningful negotiation. Third, the
subject of the reg neg must be ready and appropriate for negotiation, meaning that the subject matter must be sufficiently developed and narrow
enough in scope that the parties can realistically resolve it. For at least some regulatory issues involving rapidly emerging technologies, these
conditions may apply. If these prerequisites for successful negotiation are met. regulatory negotiation may provide an opportunity for agencies to
improve the slow, expensive, and ineffective traditional system of regulation in specific, appropriate contexts. Regulatory negotiation allows for
informed debate, encourages parties to make concessions for the greater good, and provides a forum for stakeholders to advocate for what they
consider to be important provisions, and most importantly, involves them in the decision making process. These aspects of negotiated rulemaking,
when present, can improve the chances that a rule created through collaboration has a higher likelihood of acceptance by the parties that helped
create it.
Reg Negs are unpopular and dont solve--govt agencies dont perceive benefits
McKinney 99
(Matthew J. McKinney received his Ph.D. from the University of Michigan in Natural Resources Policy and Conflict Resolution and is a
member of the Montana Consensus Council. Negotiated Rulemaking: Involving Citizens In Public Decisions. Published Summer 1999,
Print. Accessed http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T20294998790&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T20294998794&ci
sb=22_T20294998793&treeMax=true&treeWidth=0&csi=222557&docNo=4) Deng
Reasons For Not Using Negotiated Rulemaking When asked to explain why they have not engaged in a formal negotiated rulemaking process,
the departments replying to the survey offered three primary responses. First, several
the Department of Agriculture replies, "We've never found it necessary. If we anticipate controversy, we
automatically include the affected public during the formative process <elip> which seems to be de facto negotiated
rulemaking." n51 The Office of the State Auditor reinforces this observation in stating, "Negotiated rulemaking merely adds formalities (e.g.,
publication of notice regarding committee appointment, use of a facilitator, and so on) to regular rulemaking which informally accomplishes the
same end." n52 The Department of Administration says "We have not had a real controversial rule. We do seek input from all constituencies prior
to notice and after. Mostly our rules reflect consensus now." n53 And the Department of Natural Resources and Conservation reiterates "We
generally solicit informal comments from constituent (*510) groups prior to commencing formal rulemaking. In the recent past, we have
developed rules where the traditional process was the most appropriate model to use." n54 Second, several
departments find
negotiated rulemaking too cumbersome. For example, the Department of Labor and
Industry states "The act has a number of specific requirements which are more
cumbersome and costly than the department's informal process. The department believes that its informal
negotiated rulemaking process tends to meet with the spirit and intent of the act." n55 The Public Service Commission echoes this sentiment: "We
find the negotiated rulemaking act extremely cumbersome relative to what can be accomplished under the Montana Administrative Procedure
Act. The Public Service Commission has engaged in numerous negotiated rulemakings through the use of MCA 2-4-304, which involves a series
of informal comments on proposed rules prior to the formal round of comments." n56 Third and finally, some
departments have
not used negotiated rulemaking because the appropriate situation has not emerged . For
example, the Commissioner of Political Practices says "We considered the procedure with regard to a rule regarding lobbying and reportable
expenditures. Since it was a procedure mandated by a supreme court decision, it was felt the normal procedure would be best." n57 The
Department of Environmental Quality says "The appropriate situation has never presented itself" and adds "the negotiated rulemaking process
still appears to be overly cumbersome and expensive." n58 The Departments of Corrections and Transportation simply found that "the occasion
has never arisen." n59 (*511) These three reasons for not using negotiated rulemaking in Montana are largely consistent with the conclusions of
recent studies on its use in Texas and at the federal level. In a recent Texas study, the Center for Public Policy Disputes concluded formal
negotiated rulemaking has only been used three times by Texas state agencies. n60 The most frequently cited reason for not using the process was
the absence of an appropriate rule. Texas state agencies also explained that they rely on the use of informal conferences, consultations, and
advisory committees to advise the agency about contemplated rulemakings. n61 A final
say that they are not interested in using negotiated rulemaking unless
value above and beyond the informal consultation process can be demonstrated. These
departments feel strongly that the informal consultation process is more flexible and therefore more efficient and effective.
Indicts
Harter
Harter is a hackhe ignores empirics
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
For many years, advocates
to meet these two prominent goals. It neither saves time nor reduces litigation.
In an essay
published in the previous issue of this journal, Philip Harter, a seasoned mediator and longtime advocate of negotiated rulemaking. offers a
critical response to my research, asserting that negotiated rulemaking "has been remarkably successful in fulfilling its promise.1'"'1 While it is
perhaps predictable that Harter would continue to advocate for negotiated rulemaking, his response to my research fails to meet ordinary, neutral
standards for empirical social science. He repeatedly interprets data to favor negotiated rulemaking." This may well be understandable as a form
of advocacy, but it does not satisfy appropriate standards for making sound empirical judgments. Harter
makes unfounded
assertions about my study, disregards basic principles of empirical analysis, and continues to advance
bold claims for negotiated rulemaking unsupported by reliable empirical analysis in short.
Harter is simply wrong about each of the many criticisms he levels against my research. Not one of his claims undercuts my
original findings in any way. Although
Harter's criticisms are without merit , they deserve a response for the same reason
that negotiated rulemaking and other administrative innovations need evaluation in the first place:
negotiated rulemaking
places significant new demands on those inside and outside of government and it can
present potentially significant obstacles to the development of sound public policy . Before
recommending that agencies increase their reliance on negotiated rulemaking, it only makes sense to assess whether this alternative procedure has
findings. In Part I, 1 provide a summary of my original research and briefly review some elementary principles of research that apply to any
empirical evaluation. Since negotiated rulemaking has long been advertised as a "cure" for regulatory ills, its effectiveness should be evaluated as
neutrally as any potential cure for illness should be evaluated. The remaining parts of this Article are organized around the three principal
arguments Harter advances. He criticizes the way I measure the length of the rulemaking process, claims that I fail to appreciate differences in
litigation, and suggests that, in any case, my results do not matter since negotiated rulemaking achieves demonstrably better rules than existing
regulatory practices. In Part II, I reply to Mailer's criticisms of my measure of the duration of negotiated rulemakings, explaining in particular
why it is entirely appropriate to include EPA's farmworker protection rule in a study of negotiated rulemaking. In Part III, I show how Harter is
similarly mistaken in his criticisms of my analysis of negotiated rulemaking and litigation. In Part IV, I respond to Harter" s claim that negotiated
rulemaking has resulted in better rules, explaining why there is no more evidence to support this claim than there is to support claims that
the absence of
empirical support for the many years worth of enthusiastic claims made for negotiated
rulemaking, serves only to underscore the conclusion of my original research. The promises made for negotiated
rulemaking remain unfulfilled.
negotiated rulemaking would save time and avoid litigation. The absence of support for Harters criticisms, like
and Kerwin s Study Does Not Address the Quality of Rules Laura Langbein
and Cornelius Kerwin interviewed 101 participants in eight EPA negotiated rulemakings
and fifty-one randomly selected individuals who had submitted comments in six
conventional rulemakings conducted by EPA.251* They asked both sets of respondents a series of questions about their
experience with the rulemaking in which they were involved and about their perceptions of the process and resulting rule.-11 Using an
eleven-point scale (from -5 to +5). participants were asked to rate the final rules on a number of criteria, including the economic
efficiency and cost-effectiveness of the final rule, the quality of the scientific evidence used to create the final rule, and the appropriateness of the
final rule's use of technology.2,2 Langbein and Kerwin found that the differences between the responses
of participants in
negotiated and conventional rulemakings were in many cases statistically significant and
resulted in more positive average ratings by the participants in negotiated rulemakings .213
Harter makes much of these differences, even to the point of including Langbein and Kerwin's data in a table in his article, and urges that they
demonstrate that negotiated rulemaking does achieve better rules.-M The Langbein and Kerwin study, he argues, shows that ''(t)he benefits
envisioned by the proponents of negotiated rulemaking have indeed been realized."215 Yet the
percent of
the negotiated rulemaking participants they interviewed were EPA officials and
approximately twenty-five percent were representatives from state and local government.21*
In contrast, the sample of individuals who filed comments in conventional rulemakings
obviously included no one from EPA-'1' and included only three representatives from state
and local government.--1' Thus, approximately thirty-six percent of the respondents from negotiated
rulemakings were individuals who might be considered "enthusiasts," given their higher
overall ratings, while only approximately six percent of the comparison group were.--1 We
should not be surprised, of course, if government regulators tend to rate government
regulations, whether negotiated or otherwise, more favorably than those whom the
regulations affect.2 In addition, we should also not be surprised if those who help to craft a
negotiated rule report more favorable ratings than those who file comments on a proposed
rule, since presumably people tend to file comments when they have complaints they wish
to air.
Notably, only twenty-four percent of the negotiated rulemaking respondents came from business, compared with sixty-seven percent
of the respondents in the conventional rulemaking sample. The differences in the average ratings reported by Langbein and Kerwin, and relied on
by Harter. seem likely to reflect these differences in the makeup of the samples.3 Second, although Langbein and Kerwin claim their data
reveal that participants in negotiated rulemakings have a "higher level of satisfaction with the final rule/1--4 one of the negotiated rulemakings in
their studythe hazardous waste manifest rulemakinghad not resulted in a final rule at the time of then-interviews.225 This is significant
because nineteen respondents in their study came from this one rulemaking, more than from any other rulemaking in their study except the
reformulated gasoline rulemaking which had twenty respondents.22'' As a result, nearly twenty percent of the negotiated rulemaking respondents
(nineteen out of 101. }227 in the Langbein and Kerwin study could not express any meaningful satisfaction with the "eventual outcome (i.e., the
final rule)" because EPA had simply not yet issued any final rule on hazardous waste manifests.22'15 Langbein and Kerwin nevertheless included
responses from the participants in the hazardous waste manifest negotiations in their analysis.229 Putting these concerns to the side, it is
conceivable that an appropriate comparison of participant perceptions of final rules might still result in higher average ratings for negotiated rules
than for conventional rules. However, even if this were so, it
(l.9).2M Of course,
court
filings shows otherwise: negotiated rules are challenged at a higher rate than conventional
rules.2-'- Along other dimensions, such as the average number of petitions filed and the rate of settlement, negotiated
rulemaking exhibits no greater degree of resistance to litigation.--1' It is precisely this kind
of data, not data on participants" perceptions, that is needed to make judgments about the
actual resistance of negotiated rules to legal challenge. Appropriately, Langbein and Kerwin
acknowledge as much .2,4 Nowhere in their published article do they discuss the statistically
significant and more favorable rating respondents give negotiated rules for their resistance
to legal challenge.255 Instead, they make a limited effort to report the actual litigation rates
for the rules included in their study.22"1 They admit "the limitations of the approach (they)
used to determine the occurrence and outcomes of litigation ."2-17 At best, they claim that" although our data
are not as comprehensive as Coglianese's, our evidence is consistent with his."- If participants in negotiated rulemakings tend to rate the resulting
rules more favorably when it comes to litigation, they certainly may do so when it comes to other qualities of FCTTLTES.?^ Participants"
least three well-accepted psychological explanations for why participants' perceptions would tend to be more favorable toward negotiated
rulemakings, none of which have anything to do with the underlying quality of the rules. Cognitive dissonance, the Hawthorne effect, and
procedural justice theory all can lead one to expect that respondents would give higher ratings to negotiated rulemaking. Social psychologists
have for many years told us that individuals adjust their views to avoid dissonance because the existence of incompatible or dissonant cognitions
is psychologically un-comfortable. One paradigmatic kind of cognitive dissonance, die so-called "effort justification paradigm," occurs as
individuals respond to the effort needed to achieve an outcome.2-11 The more effort an individual must expend at some task, and the more
unpleasant that effort, more dissonance is generated.2t: Individuals who find themselves in such situations reduce dissonance "by exaggerating
the desirability of the outcome,"241 In the classic study demonstrating this effect, women were asked to undertake either a severe or a mild rite of
"initiation" to join a discussion group.244 Although the discussion group was equally boring in either case, the women who were assigned to
undertake the more severe initiation evaluated the group more favorably than did the women who went through the mild initiation,245 As Elliot
Aronson has explained, "going through hell and high water to gain admission to a boring discussion group was dissonant with one's self-concept
as a smart and reasonable person, who makes smart and reasonable decisions.1'246 Negotiated rulemaking is similarly an effort-intensive form of
rulemaking. Since participants in negotiated rulemaking expend more effort (and complain more of the need to expend more effort),217 we can
expect that they will reduce their dissonance by viewing the outcome of this intensive process more favorably. What is striking from the Langbein
and Kerwin study is that they find no statistically significant differences between the responses from the negotiated and the conventional
rulemaking samples with regard to perceived net benefits from participation in the rulemaking process,24M The overwhelming majority of
respondents in both groups found that the benefits they realized from their participation equaled or exceeded the costs. When the costs of
participating in negotiated rulemaking are so much higher, individuals can be expected to exaggerate the desirable qualities of the outcome of the
rulemaking process, holding this net satisfaction level constant and avoiding cognitive dissonance. A second explanation for higher ratings by
negotiated rulemaking participants may be found in the so-called Hawthorne effect. This effect, named for the factory in which it was first
documented, refers to the artificial boost that occurs from the mere participation in an experiment or study.250 Researchers investigating the
effects of changes in working conditions on productivity found that, over a period of more than two years, the productivity of the experimental
group always roseregardless of the changes made to the work schedule, lighting, methods of pay, and other conditions under study.251 The
workers in the experimental group outperformed everyone else due to the high level of morale they associated with being in an experiment and
because they knew they were being observed.252 Anyone who studies the perceptions of participants in negotiated rulemaking must be mindful
that the Hawthorne effect may play a role be-cause negotiated rulemaking is a novelty in the administrative process and has often been treated as
an experiment.-53 Those serving on a negotiated rulemaking may well be boosted in their morale or satisfaction just from knowing that they are
participating in a special, experimental regulatory process. Philip Harter has himself earlier acknowledged that the
Hawthorne effect
can arise in cases of negotiated rulemaking.-54 A final possible explanation for more favorable perceptions of negotiated
rules stems from the work of social psychologist Tom Tyler and others on procedural justice. The procedural justice literature supports the claim
that how people value process independently of how they value outcomes. Langbein and her coauthors favor this theory, arguing that negotiated
rulemaking fosters increased satisfaction, or a "warm glow/' because participants are treated with respect and have a greater opportunity to
provide their input. Of course, as already suggested, such a "warm glow" may also come in this case from cognitive dissonance, or perhaps from
the Hawthorne effect, rather than from considerations of procedural justice. Indeed, it may well be that cognitive dissonance or the Hawthorne
effect provide the better explanation, if for no other reason than that it is hard to see why negotiated rulemaking should be viewed as more
procedurally legitimate than a full, open rulemaking process. Langbein and Kerwin never asked their respondents to rate the fairness of the
rulemaking processes in which they participated, although they did ask them to rate the extent to which public participation affected agency
policy.-54 As they write in their Phase II report, "'in both eases (of negotiated and conventional rulemaking), public participation is viewed as
open, unbiased, and influential. The two rulemaking processes are seen as equally receptive and responsive to public involvement."-1110 If
Langbein and Kerwin are correct that these two processes are equally responsive. then it would seem that researchers
should look
beyond procedural justice theory for an explanation of the ''warm glow" allegedly fostered
by negotiated rulemaking. No matter which of these three theories best explains the more
favorable ratings that participants might give to their experiences with negotiated
rulemaking, the main point is that such perceptions do not provide a sound basis for
drawing any inferences about the underlying efficacy and efficiency of regulations. Harter
is simply wrong to claim that the results of the Langbein and Kerwin study show that
negotiated rulemaking has succeeded in achieving better rules.
Any number of variables may offset the length of the rulemaking process, including the
agency promulgating the rule, the complexity of the rule to be issued, and the priority the
rule holds for the agency. Establishing the comparability of two regulations is no easy matter, but Kerwin and Furlong
made an initial attempt in their valuable study of the length of rulemaking at EPA. They
compared the time of four negotiated EPA rulemakings with the average time for all EPA
rulemakings that entered into the agency's internal regulatory development management
system during fiscal years 1987-1990. The latter group amounted roughly to the most substantial 15 percent of all EPA rules
adopted during this period. In calculating the length of a rulemaking, Kerwin and Furlong relied on internal EPA
files to determine the date when each rule entered into the agency's regulatory development
management system and the date when it was finalized. They found that the rules in their study took an average
of 3.0 years (1108 days) from start to finish. In contrast, the four negotiated rules initiated during the time period of their study took an average of
only 2.1 years (778 days) to complete, a
acknowledged that the number of negotiated rules in their study was small,
data to demonstrate that negotiated rulemaking is "more expeditious" than conventional rulemaking. Their analysis underlies the National
Performance Review report's claim that regulatory negotiation is faster than conventional rulemaking. Of course,
if all twelve of
EPA's negotiated rules are examined, rather than just four, the suggested time savings of
negotiated rulemaking could well be different . To determine the length of all EPA negotiated rulemakings, I
calculated the difference in time between the date the agency announced its intent to create a negotiated rulemaking committee and the date the
agency published its final rule in the Federal Register. Although this method differs from that used by Kerwin and Furlong in that it relies on
published government records instead of internal agency files, my reliance on published materials turns out to favor time savings for negotiated
rules. For example, Federal Register listings yield an average time for the four negotiated rules m the Kerwin and Furlong study of 1.8 years (647
days), more than four months shorter than the average they report for the same rules. The difference is likely explained by the considerable
amount of preparatory work that goes into deciding whether and how to conduct a negotiated rulemaking, work which precedes the publication of
a notice to establish a negotiation committee.
promulgated by the EPA is 2.8 years (1013 days). The four negotiated rules in the Kerwin
and Furlong study therefore turn out to be rather atypical, taking roughly half as long on
average as the other rules. In contrast to the eleven-month time savings suggested by Kerwin and Furlong, my analysis of
all of EPA's negotiated rules suggests (at most) little more than three months savings
compared with the rules issued in the period studied by Kerwin and Furlong, a difference
which could well be accounted for by choices of measurement . When the EPA's three
pending negotiated rules are added, the time savings between the two procedures
disappears altogether . If we were to assume, for sake of estimation, that the EPA had
promulgated all three pending rules at the end of December 1996, the average time for
promulgating negotiated rules at EPA would increase to 3.1 years (1129 days), three weeks
longer than the average reported by Kerwin and Furlong for all EPA rules.
***Misc***
Not sure this helps either side.
Increased regulations bankrupts small businesses and squo solves improvement
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
V. THE PATH OF THE NEGOTIATION A. The Initial Perspectives 1. The Industry's Perspective The industry's initial position showcased
arguments typically made by business interests. First, the
industry attempted to document this position, effectively emphasizing the demonstrated efficiency of the currently required control methods.
Indeed, during the rulemaking the District issued a report recognizing the high efficiencies of fume suppressants as a control device. (101) The
industry also argued that further regulation would be too expensive. It stressed that the
chrome plating industry was principally composed of small businesses lacking the
economic resources of larger industries. Additional regulation posed the threat of more
expensive pollution control hardware known as HEPA falters, and the industry contended
that such a requirement would force many small companies out of business. The industry's economic
concerns were quite real; for example, customers can ship parts to China for chroming (102) and then ship them back to the United States at a
cost competitive with the costs charged by domestic platers. (103) Finally, the