***Negotiated Rulemaking CP***

Notes

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CDM=collaborative decision making

For NEG—you can find more AT some of the AFF answers under solvency or in the net benefits

If you’re 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 CP—if they can’t reach a consensus, the Cp doesn’t result in the plan.

What is Reg Neg?What is Regulatory Negotiation?Regulatory negotiations are a common occurrence on most environmental projects.  These can involve communications, discussions and/or meetings with regulatory personnel of various federal, state and local government agencies.  These types of negotiations may be formal or informal, but are generally intended to resolve environmental issues of concern with the regulatory agencies in a practical, cost-effective manner that is protective of human health and the environment.

***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 minus—it doesn’t mandate the plan, just that a regulatory negotiations committee is created to discuss the plan

And, it competes—reg neg is not normal means

USDA 06(The U.S. Department of Agriculture’s 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)

How reg-neg differs from “traditional ” notice-and-comment rulemaking The “ traditional ” notice-and-comment rulemaking provided in the Administrative Procedure Act (APA) requires an agency planning to adopt a rule on a particular subject to publish a proposed rule (NPRM) in the Federal

Register and to offer the public an opportunity to comment . The APA does not specify who is to draft the proposed rule nor any particular procedure to govern the drafting process.

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. In negotiated rulemaking, the agency, with the assistance of one or more

neutral advisors known as “convenors,” assembles a committee of representatives of all

affected interests to negotiate a proposed rule. Sometimes the law itself will specify which interests are to be

included on the committee. Once assembled, the next goal is for members to receive training in interest-based problem-solving and consensus-

decision making. 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

consensus on a text that all parties can accep t . 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 Checklist—Advantages 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 agency’s 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.

<Insert specific solvency advocate or read generic Knaster card>

Reg neg solves—empirics prove

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)

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 action—only 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 co-chairs EPA Region 2’s 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.) //ky3. 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 rather than a tool for

decision-making and is used to thwart and delay agency action .60 In order to quickly develop

rules that are not only likely to be e ffective but also survive litigation, the federal government can benefit from applying the Negotiated Rulemaking Act 61 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.

Doesn’t link to politics—empirics prove

USDA 6/6 (The U.S. Department of Agriculture’s 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) Deng

History In 1990, Congress endorsed use by federal agencies of an alternative procedure known as "negotiated rulemaking,"'' 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

problems. Where successful, negotiated rulemaking can lead to better, more acceptable rules, based on a clearer understanding of the concerns of all those affected. Negotiated rules may be easier to enforce and less likely to be challenged in litigation . The results of reg-neg usage by the federal government, which began in the early 1980s, are impressive: large-scale regulators as the Environmental

Protection Agency, Nuclear Regulatory Commission, Federal Aviation Administration, and the Occupational Safety and Health Administration used the process on many occasions. Building on these positive experiences, several states, including Massachusetts, New York, and California, have also begun using the procedure for a wide range of rules. The very first

negotiated rule-making was convened by the Federal Mediation and Conciliation Service

(FMCS) working with the Department of Transportation, the Federal Aviation Administration, airline pilots and other interested groups to deal with regulations concerning flight and duty time for

pilots. The negotiated rulemaking was a success and a draft rule was agreed upon that became the final rule. Since that first reg-neg. FMCS has assisted in both the convening and

facilitating stages in many such procedures at the Departments of Labor, Health and Human Services (HRSA), Interior, Housing and Urban Development, and the

EPA, as well as state-level processes, and other forms of consensus-based decision-making programs such as public policy dialogues, hearings, focus groups, and meetings.

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 implemented—then implements the decision - solves better than the AFF:

1. Agency action —traditional notice-and-comment rulemaking incentivizes actors to withhold information which prevents agency action and guts implementation of the plan —CP facilitates cooperation—that’s Siegel 9.

2. Collaboration —reg neg facilitates government-civilian cooperation, results in greater satisfaction with regulations and better compliance after implementation—social 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 deficits—rather than to mere political resistance—it 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 Langbein’s data than do the rather

negative expectations about compliance. Higher satisfaction could well translate into better long-term compliance, even if litigation rates remained the same. Consistent with our contention that process matters,

we expect it to matter to compliance as well. In any event, empirical studies of compliance should no longer be so difficult to produce. A number of negotiated rules are now several years old, with some in the advanced stages of implementation. A study of compliance might compare numbers of enforcement actions for negotiated as compared to conventional rules,

measured by notices of violation, or penalties, for example.366 It might investigate as well whether compliance methods differ between the two types of rules: perhaps the enforcement of negotiated rules occurs more cooperatively, or informally, than enforcement of conventional rules.

Possibly, relationships struck during the negotiated rulemaking make a difference at the compliance stage.367 To date, the effects of how the rule is developed on eventual compliance remain a matter of speculation, even though it is ultimately an empirical issue on which both theory and empirical evidence must be brought to bear.

3. <Insert specific solvency here> OR Solves better—negotiated rulemaking solves the entirety of the aff – economic, environmental, and pragmatic focus along with regulation modeling and spill over—means parties will compromise and reach a consensus

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.)//kyC. 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, the industry thought 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 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, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely economic in nature. In

contrast, the environmentalists' concerns were based on moral and environmental

justice grounds, while the District staff's concerns were more pragmatic. Most

importantly, however, all parties had reason to compromise.

And, we’ll win new net benefits here that ALL turn the aff

a. Delays—cp’s regulatory negotiation means that rules won’t be challenged during the regulation creation process—empirics prove the CP solves faster than the AFF

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, the average length of EPA’s negotiated rulemakings — the time it

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 neg’s actual performance is much better than that. Interestingly and consistently, the average time for all of EPA’s 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 Coglianese’s 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 fact that the rule had been negotiated not only resulted in a much better rule,87 it enabled the rule to withstand in large part a massive assault. Coglianese also somehow attributes a challenge within the World Trade Organization to a shortcoming of reg neg even though such issues were explicitly outside the purview of the committee; to criticize reg neg here is like saying surgery is not effective when the patient refused to undergo it. While the Underground Injection rule was challenged, the committee never reached an agreement88 and, moreover, the convening report made clear that there were very strong disagreements over the interpretation

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 EPA’s 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,

Coglianese 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.

b. Info sharing—collaboration between the government and the private sector solves best—industry has specific information that is key to regulating—the plan can’t access this information but the CP facilitates information sharing – results in better regulations

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.)//kyVI. 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 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 of information legislation is in effect at both the federal and state levels. (178) However, these laws can be cumbersome to use, with resulting delays in response, and the documents produced may not provide the specific information sought. Industry can, of course, file written comments on

proposed rules, and agencies usually must respond in writing to these comments. (179) Additionally, the 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 theory, the negotiation model allows for information gathering where necessary to fill in gaps in the design of regulation. Regulatory negotiation emphasizes cooperative learning, (188) and the pragmatism of the negotiation process (189) should lead to a meaningful exchange of information. By committing to negotiate in good faith, (190) the parties agree that they will make every effort to provide sought-after data. In this process the facilitator serves as an enforcement officer of sorts, refereeing disputes and reminding parties of their commitment. In contrast, notice and comment rulemaking contains no similar cooperative dynamic among the parties.

c. Litigation—the plan’s regulation process results in litigation and FUNCTIONAL overturn of regulations

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.) //ky2. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state

levels of gov- ernment, but it has applicability at the local level as well. The Ne- gotiated Rulemaking Act of "1990 provides the basic structure for agencies to design and implement appropriate processes."7 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in the early l980s.'°" 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. '°9 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 sub- ject 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."

d. More democratic—reg neg encourages private sector participation—means that regulations aren’t unilaterally created by the USFG—CP results in a fair playing field for the entirety of the private sector

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. 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. Laura 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)

2. Negotiated Rulemaking Is Fairer to Regulated Parties than Conventional

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

groups was no greater in negotiated rulemaking than in conventional rulemaking. So, while smaller groups did report suffering from a lack of resources during regulatory negotiation, they reported the same in conventional rulemakings; no disparity existed between the two processes on this score. Finally, the data suggest that the agency is equally responsive to the parties in both negotiated and conventional rulemakings. This result, together with the finding that participants in regulatory negotiations perceived disproportionate influence to be about evenly distributed, suggests that reg neg is at least as fair to the parties as conventional rulemaking. Indeed,

because participant learning was so much greater in regulatory negotiation, the

process may in fact be more fair.

2NC Perm do the CP

CP is plan minus since it only mandates the creation of a reg neg committee—only does the plan if and only if the committee decides to do so—that means that the CP is uncertain. Perm severs the certainty of the plan:

Substantially means certain and real

Words and Phrases 1964 (40 W&P 759) (this edition of W&P is out of print; the page number no longer matches up to the current edition and I was unable to find the card in the new edition. However, this card is also available on google books, Judicial and statutory definitions of words and phrases, Volume 8, p. 7329)The words “outward, open, actual, visible, substantial, and exclusive,” in connection with a change of possession, mean substantially the same thing.

They mean not concealed; not hidden; exposed to view; free from concealment, dissimulation, reserve, or disguise; in full existence; denoting that 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.

Should means must—it’s certain

Supreme Court of Oklahoma 94(Kelsey v. Dollarsaver Food Warehouse of Durant, Supreme Court of Oklahoma, 1994. http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn14//ghs-kw)

The turgid phrase - "should be and the same hereby is" - is a tautological absurdity. This is so because "should" is synonymous with ought or must 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 Partridge quotation infra note 15. Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount 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 issue—the AFF must defend the entirety of the plan—we only need to defend implementation—competes in certainty—means they sever the results of the plan. Severance is bad, reject the team—

1. Kills advocacy skills—aff becomes a shifting target, so they never have to defend anything

2. Kills education—we can’t debate about the aff is the aff changes halfway through the round

3. Kills neg ground—allows them to shift out of our DA links and make CPs non-competitive

Conventional rulemaking isn’t 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

Reg neg good – 2NC AT: no consensus – BATNA

The CP text says the plan is negotiated as the best alternative to a negotiated agreement. That means that in a world of no consensus, the plan is implemented. This means two things:

1. It’s a terminal shield against any solvency deficit

2. It’s a reason why the negotiation will succeed—businesses have an incentive to come to the table because they know if they don’t that the plan come into effect

BATNA is what the agency does if negotiation fails

Mee ‘97(Siobhan Mee, Executive Editor, Fall 1997, Boston College Environmental Affairs Law Review, pg lexis)In considering the likelihood of good-faith negotiations, an agency should evaluate participants' incentives to reach negotiated agreement. 82 A party's incentive to engage in the negotiation process is determined by what it considers to be its "best alternative to negotiated agreement" (BATNA). 83 Where a party believes its BATNA is superior to all of the possible negotiation outcomes, it has no incentive to participate. To draw an analogy to the resolution of a dispute between litigants, a plaintiff who expects a jury verdict to result in a certain net gain will negotiate a settlement only if the defendant is willing to offer more than that sum. In the context of negotiated   [*223]  rulemaking, perceptions of what an agency will do in the absence of negotiation determine the BATNAs of interested parties.

Even if negotiations fall through, the plan gets implemented

Harter ‘97(Phillip J. Harter, expert in administrative law at Univ. of Vermont, April 1997, 46 Duke L.J. 1389)It is critical for the agency to participate in the rough and tumble of the negotiations very much like any other participant. If the agency approaches the negotiations as if it has all the answers and only seeks ratification, the negotiation will end with no agreement (since if solutions were so easy, there would not be any need to engage in a negotiated rulemaking 75 ), and anger on the part of the participants (since they would reasonably feel that they had wasted their time). At the other extreme, if the agency sits back and takes no position, the parties are not likely to reach any agreement - they will talk and talk, but not converge. The reason is that if the negotiations do not reach closure, the agency will issue the rule on its own; the agency's rule will then define the parties' "Best Alternative to a Negotiated Agreement" (BATNA). 76 The parties will keep talking in an effort to learn more about what the agency wants or will do on its own. Only then can the parties determine their BATNA, the standard by which they will judge whether a proposal is in their best interest.

Solvency

Solves Better

Generic

Reg neg solves SQ inefficiencies—low 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 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, businesses, 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 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. 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 regulation’s 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.

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/)

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

Reg negs solve better—legitimacy, regulation quality, and ease of implementationFreeman 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 of regulatory negotiation advocated its use for a variety of reasons, chief

among which were improved rule quality and legitimacy .34 Indeed, they defined legitimacy largely in terms of the attitudes of the most directly affected interest groups, using them (rightly or

wrongly) as a proxy for the larger public.35 Advocates such as Harter and Susskind believed not only that direct participation in rulemaking would produce better quality rules, but that it would also increase the rules’ acceptability to those most affected by them . Proponents expected that repeated face-to-

face interaction would lead to better information production, which in turn would improve rule quality. That is, not only would

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 acceptable—that is, more legitimate. Greater legitimacy could be particularly valuable at a time of heightened frustration with conventional rulemaking and broad dissatisfaction with government regulation.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 it had evolved, the process encouraged parties to marshal an enormous volume of irrelevant evidence, adopt extreme positions, and use information defensively. Responding to comments required considerable agency staff time, slowed the pace of rulemaking, and

produced unnecessary conflict. The academics and practitioners who proposed regulatory negotiation hoped that a consensus-based approach would temper the adversarial nature of rulemaking and help to channel resources in a more fruitful way. Among other things, they thought, the demands of negotiating would force parties to prioritize among their concerns, focus on key

issues, moderate their positions, and share information productively.41 Direct engagement with parties holding opposing views would prompt the interests on all sides of a regulatory issue to get to the heart of their disagreements faster, which would help to speed the process along.

Reg neg is better for complex rulesFreeman 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)

4. Complex Rules Are More Likely To Be Settled Through Negotiated Rulemaking 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 rulemaking participants more often admitted to being uninformed of the process for establishing issues (17% versus 0%) or offered that regulated entities set the issues (11% to 0%). A majority of both groups reported that the EPA or the governing legislation established at least some of the issues. Kerwin and Langbein found that the

types of issues indeed appeared to differ between negotiated and conventional rules. When

asked about the type of issues to be decided, 52% of participants in conventional groups identified issues regarding the standard, including its level, timing, or measurement (compared to 31% of negotiated rule participants),

while 58% of the negotiating group identified compliance and implementation issues (compared to 39%

of participants in the conventional group). More reg neg participants (53%) also cited compliance issues as causing the greatest conflict, compared to 32% of conventional participants. Conventional participants more often

reported that the rulemaking failed to resolve all of the issues (30% versus 14%), but also more often reported that they encountered no "surprise" issues (74% versus 44%). Participants perceived negotiated rules to be more complex, with more issues and more sides

per issue than conventional rules. Kerwin and Langbein learned in interviews that reg neg participants tended to develop a more detailed view about the issues to be decided than did their conventional counterparts. The researchers interpreted this disparity in reported detail as a perception of complexity. To measure it they computed a complexity score: the more issues and the more sides to each issue that respondents in a rulemaking could identify, relative to the number of respondents, the more nuanced or complex the rulemaking. Using this calculation, the rules ranged in com plexity from 1.9 to 5.0, with a mean complexity score of 3.6. The mean complexity score for reg negs (4.1) was significantly higher than the score (2.5) for conventional rulemaking. Reg neg participants also presented a clearer understanding of the issues to be decided than did conventional participants. To test clarity, Kerwin and Langbein developed a measure that would reflect the striking variation among respondents in the number of different issues and different sides they perceived in their rulemaking. Some respondents could identify very few separate issues and sides (e.g., "the level of the standard is the single issue and the sides are business, environmentalists, and EPA"), while others detected as many as four different issues, with three sides on some and two on others. Kerwin and Langbein's measurement was in units of issue/sides, representing a combination of the two variables, the recognition of which they were measuring; the mentions ranged from 3 to 10 issue/sides, with a mean of 7.9. Negotiated rulemaking participants mentioned an average of 8.9 issue/sides, compared to an average of 6issue/sides mentioned by their conventional counterparts, a statistically 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 differences in complexity might be explained by the higher reported rates of learning by reg neg participants, rather than by differences in the types of rules processed by reg neg versus conventional rulemaking.

Kerwin and Langbein found that complexity and clarity were both positively and significantly

correlated with learning by respondents , but the association between learning and complexity/clarity disappeared when

the type of rulemaking was held constant. However, when the amount learned was held constant, the association between complexity/clarity and

the type of rulemaking remained positive and significant. This signifies that the association between learning and complexity/clarity was due to the negotiation process. In other words, the differences in complexity/clarity are not attributable to higher learning but rather to differences between the processes .

The evidence is consistent with the hypothesis that issues selected for regulatory negotiation are different from and more complicated than those chosen for conventional rulemaking. The data associating reg negs with complexity, together with the finding that more issues settle in reg negs, are consistent with the proposition that issues with more (and more di verse) sub-issues and sides settle more easily than simple issues.

CP solves better—Clean Air Act provesKnaster 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)

A. Negotiated Rulemaking on Reformulated and Oxygenated Gasoline128 The Clean Air Act Amendments of 1990 required the Environmental Protection Agency (EPA) to promulgate complicated gasoline regulations within one year.129 The provisions of the Act included mandates to certify reformulated gasoline and make it available for sale by 1995 in the nine U.S. cities that had the worst air pollution.130 The regulations would have to address reduction in emission of toxic and ozone producing chemicals, and establish procedures for ensuring that the gasoline sold elsewhere would not worsen air quality elsewhere.131 In addition, the amendments required changes to the

oxygen formula of gasoline delivered to several cities in the country that were in nonattainment for carbon monoxide.132 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 of fundamentally changing how petroleum would be refined in the

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 thirty-

one 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 caucuses—large 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 tradeoff for use of these models was that industry agreed to meet Phase II reformulated gasoline requirements earlier than was required by law. At the end of six months, a consensus was reached on an outline for a proposed rule . The final rule was published well in advance of the regulatory

deadline .141 The case example demonstrates the value of the mediated negotiations process in allowing direct negotiations on complex issues in a constrained timeline. It also demonstrates the type of creative exchange of ideas and solutions that can occur in a process that is designed to accommodate and enfranchise a larger number of diverse interests and individual organizations, while keeping the number negotiators small.

Reg neg solves bestKnaster 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)The first draft of this article began with the premise that one of the key elements necessary for achieving a consensus—sharing common ground— exists regarding the need to address climate change. The tone of that draft was far more optimistic about the opportunities for collaboration on

how environmental 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 use of mediated negotiations remains a viable tool for addressing climate change conflicts despite this additional challenge. As the criteria for

determining whether a mediated negotiation is feasible have been considered, it appears that a number of conflict scenarios in the climate change arena lend themselves to a mediated approach. There are overlapping jurisdictions and diverse interests that must be accommodated. There is uncertainty regarding the outcome of future regulations. Litigants who have filed against a particular project are not interested in “fixing” an EIR, but in getting a seat at the table to revise a proposed project. The cost of winning is onerous for many of the disputants, and although delay may be an immediate goal, lengthy delay may raise the cost of the ultimate project or the cost of compliance. In many of the conflict arenas, there is a need to preserve a long term relationship among government agencies and an interested public. In conclusion,

mediation is an effective tool for addressing complex, multi-party conflicts and for forging

collaboration on contentious issues that require tradeoffs and negotiations among

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 rulemakingFreeman 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 betterHarter 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 benefits of negotiated solutions over those imposed by 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 has many advantages over the adversarial process. The parties participate directly and immediately in the

decision. They share in its development and concur in it, rather than “participate” by submitting information that the decisionmaker considers in reaching the decision. Frequently, those who participate in the negotiations are closer to the ultimate decisionmaking authority of the interest they represent than traditional intermediaries that represent the interest in an adversarial proceeding. Thus, participants in negotiations can make substantive decisions, rather than acting as experts in the decisionmaking process. In addition, negotiation can be a less expensive means of decisionmaking because it reduces the need to engage in defensive research in anticipation of arguments made by adversaries. Undoubtedly the prime benefit of direct negotiations is that it enables the participants to focus

squarely on their respective interests .99 The article quotes John Dunlop, a true pioneer in using negotiations among the

affected interests in the public sphere,100 as saying “In our society, a rule that is developed with the involvement of the parties who are affected

is more likely to be accepted and to be effective in accomplishing its intended purposes.”101 Reducing time and litigation 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 — a form of representational democracy not explicitly

recognized in the Administrative Procedure Act — as resulting in rules that are substantively “better” and

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 negotiationsHsu 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-to-face 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 system of bilateral negotiation between agencies and regulated parties would even be superior to a system of multilateral negotiation, due to the transaction costs of assembling all of the affected stakeholders in a multilateral effort, and the difficulties of reaching a consensus among a large number of parties. Moreover, multilateral negotiation gives rise to the troubling idea that there should be joint governance among the parties. Since environmental organizations lack the resources to participate in post-negotiation governance, there is a heightened danger of regulatory capture by the better-

financed regulated parties.55 The correct balance between regulatory flexibility and accountability,

argues Farber, is to allow bilateral negotiation but with built-in checks to ensure that the negotiation process is not captured by regulated parties. Built-in checks would include transparency, so that 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 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 deficits—rather than to mere political resistance—it 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 Langbein’s data than do the rather negative expectations about compliance. Higher satisfaction could well translate into better long-term compliance, even if litigation rates remained the same. Consistent with our

contention that process matters, we expect it to matter to compliance as well. In any event, empirical studies of compliance should no longer be so difficult to produce. A number of negotiated rules are now several years old, with some in the advanced stages of implementation. A study of compliance might compare numbers of enforcement actions for negotiated as compared to

conventional rules, measured by notices of violation, or penalties, for example.366 It might investigate as well whether compliance methods differ between the two types of rules: perhaps the enforcement of negotiated rules occurs more cooperatively, or informally, than enforcement of conventional rules. Possibly, relationships struck during the negotiated rulemaking make a difference at the compliance stage.367 To date, the effects of how the rule is developed on eventual compliance remain a matter of speculation, even though it is ultimately an empirical issue on which both theory and empirical evidence must be brought to bear.

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 Langbein conducted 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 Langbein’s 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 of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Further, participants’ assessments are also more positive when the issues to be decided are relatively more complex. Our research would support a recommendation that negotiated rulemaking continue to be applied to complex issues, and more widely applied to include those entailing the standard itself.106 Their findings are particularly powerful when comparing individual attributes of negotiated and conventional rules. Table 3 contains a summary of those comparisons. Importantly,

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 Langbein’s 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 Coglianese’s 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 rule making. The strong support comes in the form of positive assessments provided by participants in negotiated rule making compared to assessments offered by those involved in conventional forms of regulation development. There is no evidence that negotiated rules comprise an abrogation of agency authority, and negotiated rules appear no more (or less) subject to litigation than conventional rules. It is also true that

negotiated rule making at the EPA is used largely to develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than rules that set substantive standards. However, participants' assessments of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Participants' assessments are also more positive when the issues to be decided are

relatively less complex. But even when these and other variables are controlled, reg neg participants' overall 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 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 with a law or regulation and support for policy choice are more likely to be forthcoming not only when it is economically rational but also when the process by which the decision is made is viewed as fair (Tyler 1990; Kunreuther et al. 1993; Frey and Oberholzer-Gee 1996). While we did not ask respondents explicitly to rate the fairness of the rule-making process in which

they participated, evidence 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 neg appears more likely than conventional rule making to leave participants with a warm glow about the decision-making process. While the regression results show that the costs and benefits of the rule being promulgated figure prominently into the

respondents' overall assessment of the final rule, process matters too. Participants care not only about how

rules and policies affect them economically, they also care about how the authorities who make and implement rules and policies treat them (and others). In fact, one reg neg respondent, the owner of a small shop that 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 costs are different for 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 the agency probably knows less about each group's costs and benefits than the group knows about its own costs and benefits, the rule that emerges from direct negotiation should be a more accurate reflection of net benefits than one that is written by the agency (even though the agency tries to be responsive to the affected

parties). In effect, 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.

Delays/Speed

Reg negs solve faster and better—Coglianese’s 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 and Langbein conducted 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 Langbein’s 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 of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Further, participants’ assessments are also more positive when the issues to be decided are relatively more complex. Our research would support a recommendation that negotiated rulemaking continue to be applied to complex issues, and more widely applied to include those entailing the standard itself.106 Their findings are particularly powerful when comparing individual attributes of negotiated and conventional rules. Table 3 contains a summary of those comparisons. Importantly,

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 Langbein’s 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 Coglianese’s 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 better—solves 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, the average length of EPA’s negotiated rulemakings — the time it

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 neg’s actual performance is much better than that. Interestingly and consistently, the average time for all of EPA’s 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 Coglianese’s 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 fact that the rule had been negotiated not only resulted in a much better rule,87 it enabled the rule to withstand in large part a massive assault. Coglianese also somehow attributes a challenge within the World Trade Organization to a shortcoming of reg neg even though such issues were explicitly outside the purview of the committee; to criticize reg neg here is like saying surgery is not effective when the patient refused to undergo it. While the Underground Injection rule was challenged, the committee never reached an agreement88 and, moreover, the convening report made clear that there were very strong disagreements over the interpretation 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 EPA’s 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, Coglianese 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.) Dengb. 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

regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The 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 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

the negotiated rule-making process. n285 A second benefit of negotiated rulemaking is that the likelihood of subsequent court challenge is substantially diminished because the consensus obtained should indicate a "signoff" by interested par-ties. n286 This may explain in part why EPA has become such a strong supporter of negotiated rulemak-ing; it has been widely reported that approximately 75% of the final rules promulgated by EPA are challenged judicially. n287 Third, stakeholder input and acceptance of a rule may also make it easier to implement and will lead to greater levels of compliance, due to what EPA refers to as "ownership" of the rule. Where the parties have reached a consensus and taken part in the formation of the rule, they have an interest in seeing the

process succeed and develop a commitment to the end result. Finally, the greatest potential benefit of negotiated rulemaking may be that it leads to better rules. As Judge Wald has pointed out, the normal rulemaking process is adversarial in 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

Cooperation fosters trust and prevents deadlockSelmi 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.)//ky2. Outcomes from Cooperation: An Example After the parties expended considerable effort clarifying technical issues, they agreed on the content of a rule. (268) The framework for the agreement centered on special provisions governing facilities close to sensitive receptors. The actions required of the industry depended on the risk factor associated with the emissions from the particular facility in question. At this point in the negotiation process, it appeared that the only step left was to formalize the agreement in a memorandum, a common method for completing a

regulatory negotiation. (269) At this time, however, the District staff uncovered a simple mathematical miscalculation that, at least initially, appeared to have profound consequences. The miscalculation concerned how many amp-hours could be used by a small facility located less than 25 meters from a sensitive receptor or facility before that facility exceeded the ten in one million risk threshold for the use of fume suppressants. (270) The "cut off' should have been listed at 365,000 amp-hours, rather than 460,000 amp-hours. (271) The error, on the order of approximately twenty percent, had potentially significant consequences. Most importantly, it raised the possibility that more facilities than estimated could not remain under the ten in a million threshold when using a certified fume suppressant, thus subjecting these facilities to stricter controls. In short, by increasing the number of facilities affected, the error threatened to undermine a crucial assumption on which the agreement rested. In a more adversarial environment, a mistake of

this importance would breed distrust and possibly lead to a complete failure of the negotiations. The 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)

Reg Negs solve faster than normal regulatory processes

EPA 95 (The United States Environmental Protection Agency(2) (EPA or sometimes USEPA) is an agency of the U.S. federal government which was created for the purpose of protecting human health and the environment by writing and enforcing regulations based on laws passed

by Congress. “Negotiated Rulemaking Fact Sheet” Published 1995 @ http://www.epa.gov/adr/factsheetregneg.pdf) DengWHAT IS A RULE? A rule or regulation is the equivalent of an operating or implementation manual for a part of a statutue or act of Congress. A rule gives those subject to its requirements more detailed instructions or prohibitions regarding activities that are addressed by the statute. HOW ARE RULES USUALLY WRITTEN? Generally a federal agency's staff drafts the text of a proposed rule. After circulation and comment within the agency, the rule will be printed in the Federal Register as a proposed rule. The public is then invited to comment on the rule. After reading and analyzing the public’s comment the agency may revise the rule to incorporate suggestions or eliminate problems identified as a result of the analysis. The rule is then published in final form in the Federal Register and becomes effective on the date listed in the notice. It is then incorporated in the government’s Code of Federal Regulations, which lists all applicable regulations. WHAT IS NEGOTIATED RULEMAKING? Negotiated rulemaking is a process which brings together representatives of various interest groups and a federal agency to negotiate the text of a proposed rule. The goal of a negotiated rulemaking proceeding is for the committee to reach consensus on the text of a proposed rule. HOW IS NEGOTIATED RULEMAKING DIFFERENT? In a negotiated rulemaking proceeding, a well-balanced group representing the regulated public, community and public interest groups, state and local governments, joins with a representative of the federal agency in a federally chartered advisory committee to negotiate the text or the outline or concept of a rule before it is published as a proposed rule in the Federal Register. If the committee reaches consensus on the rule then the federal agency can use this consensus as a basis for its proposed rule. The proposed rule is still subject to public comment. If consensus is not reached then the agency proceeds with its normal rulemaking activities. WHAT ARE THE ADVANTAGES OF NEGOTIATED RULEMAKING? Federal agencies that have used negotiated rulemaking have

identified several advantages to developing a rule by negotiation before notice and comment. The regulatory 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.

Reg negs are empirically fasterFreeman 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/)

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 focused on the more easily measured instrumental benefits of time, cost,

and litigation rates.61 The EPA’s 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 processSeidenfeld 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 governance, as most notably developed by Jody Freeman, n239 provides a

second possible approach for transcending the debate about deliberation and democratic accountability. n240 The workings of this approach are difficult to pin down, because its demands vary with context, but the fundamental idea of collaborative

(*1436) governance is to encourage stakeholder representatives to interact directly in a problem-solving mode about matters that call for regulatory solutions. n241 The goal is for these interactions to allow participants to overcome traditional adversarial postures, and ultimately to arrive at consensus win-win solutions. n242 In

the context of agency regulation, Freeman discusses negotiated rulemaking as a promising vehicle for implementing collaborative governance in appropriate contexts. n243 Although Freeman developed collaborative

governance as a means to alter the usual criteria for accountability and legitimacy, at least in the context of rulemaking, n244 the approach can be characterized as an attempt to import democratic influence into regulatory decisions via deliberation by representatives selected by each stakeholder group.

As James Madison recognized and our Constitution reflects, n245 there are distinct advantages in relying on chosen representatives of the people rather than the people themselves to make the value choices embedded in regulation. n246 Representatives will be chosen for their knowledge about and dedication to addressing issues that affect their stakeholder groups. n247 They are therefore capable of assessing the trade-offs that result from available regulatory choices and are motivated to do so. n248 Reliance on representatives can also keep the individuals who have to interact in the deliberative process to a manageable number. Though it would be ludicrous to think that the thousands or sometimes millions of direct stakeholders in a rulemaking will ever reach consensus on what action is appropriate, it is at least possible that twenty or so representatives could actually agree on a best rule. n249

Reg neg is more democraticFreeman 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/)

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 fairFreeman 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 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, more¬over, 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. Moreover, as we have seen, reg neg participant re¬ports of higher

satisfaction could not be explained by their as¬sessments 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." 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." At a minimum, the data call into question—and sometimes flatly contradict—most 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.

Reg neg is more fairFreeman 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)

2. Negotiated Rulemaking Is Fairer to Regulated Parties than Conventional 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 groups was no greater in negotiated rulemaking than in

conventional rulemaking. So, while smaller groups did report suffering from a lack of resources during regulatory negotiation, they reported the same in conventional rulemakings; no disparity existed between the two processes on this score. Finally, the data suggest that the agency is equally responsive to the parties in both negotiated and conventional rulemakings. This result, together with the finding that participants in regulatory negotiations perceived disproportionate influence to be about evenly distributed, suggests

that reg neg is at least as fair to the parties as conventional rulemaking. Indeed, because participant learning was so

much greater in regulatory negotiation, the process may in fact be more fair.

Info Sharing

AFF can’t solve—reg neg accesses private sector innovationSelmi 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.)//kyVI. 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 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 of information legislation is in effect at both the federal and state levels. (178) However, these laws can be cumbersome to use, with resulting delays in response, and the documents produced may not provide the specific information sought. Industry can, of course, file

written comments on proposed rules, and agencies usually must respond in writing to these comments. (179) Additionally, the 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 theory, the negotiation model allows for information gathering where necessary to fill in gaps in the design of regulation. Regulatory negotiation emphasizes cooperative learning, (188) and the pragmatism of the negotiation process (189) should lead to a meaningful exchange of information. By committing to negotiate in good faith, (190) the parties agree that they will make every effort to provide sought-after data. In this process the facilitator serves as an enforcement officer of sorts, refereeing disputes and reminding parties of their commitment. In contrast, notice and comment rulemaking contains no similar cooperative dynamic among the parties.

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 information compiled played a significant role in 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/ampere-hour 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 information exchange went beyond "discovery" of existing data; it included affirmative efforts to compile new data. For example, an important technical question was the number of sources that would need to install HEPA filters under the proposal the negotiating parties were considering. The additional controls would depend upon the extent that fume-suppressant technology could achieve certain control levels. Here, the data revealed a surprising result: Only a small number of facilities would need the additional controls. (202) This fact proved critical to the negotiations. The avoidance of widespread imposition of the more expensive HEPA filter technology made it much easier for industry to accept the rule change. Another example of the importance of technical information concerned the analysis of the metal plating industry's total chrome emissions into the environment. Originally, the estimate was a total of 150

pounds per year. However, as a result of more detailed technical analysis, that figure was reduced to seventy pounds per year. (203) For its part, 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 rule adoption is likely to be preceded by the submission of lengthy comment letters designed to exhaust administrative remedies, and thus lay the groundwork for litigation, rather than to clarify and possibly to resolve issues. A recent empirical study concluded that negotiated rule participants "are far more likely to say that they gained new technical information, better knowledge of the issue, and new information about the positions of other parties." (206) The metal finishing negotiations confirm this conclusion. Furthermore, at least in the case of the plating negotiations, the claim was not borne out that increased learning simply increases the number of issues upon which parties can disagree. (207) The new data served to clarify existing contentions issues, rather than to raise new disputes.

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 data was a "legitimacy benefit" produced by the negotiation. (209)

Reg neg is key to information sharing and pragmatic rulesNolon 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.) //ky2. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of

gov- ernment, but it has applicability at the local level as well. The Ne- gotiated Rulemaking Act of "1990 provides the basic structure for agencies to design and implement appropriate processes."7 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in

the early l980s.'°" 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.'°9 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 sub- ject to a lawsuit, many agencies supplemented this required process to get input earlier. This supplemental process can1e to be called Negotiated Rulemaking or "reg-neg." Negotiated rulemaking brings interested parties around the ta- ble early on, before the rule has been drafted and

before the re- quired 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 com- ments 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 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 under- ground 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 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. All parties involved would have the opportunity to express their opinions and why those opinions are important. Negotiated rulemaking is certainly not appropriate for all situ- ations. When deciding appropriateness, factors taken into consid- eration should also include the opportunity for trade-offs among parties, the level of conflict, and the importance of gathering infor- mation from affected parties, among others. As described further in the next section, reg-neg can be helpful to develop policy on model ordinances, required lease provisions, compensation mecha- nisms, and decommissioning.

Regulation Quality

Reg negs result in better rulesFreeman 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 of regulatory negotiation advocated its use for a variety of reasons, chief

among which were improved rule quality and legitimacy .34 Indeed, they defined legitimacy largely in terms of the attitudes of the most directly affected interest groups, using them (rightly or

wrongly) as a proxy for the larger public.35 Advocates such as Harter and Susskind believed not only that direct participation in rulemaking would produce better quality rules, but that it would also increase the rules’ acceptability to those most affected by them . Proponents expected that repeated face-to-

face interaction would lead to better information production, which in turn would improve rule quality. That is, not only would

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 acceptable—that is, more legitimate. Greater legitimacy could be particularly valuable at a time of heightened frustration with conventional rulemaking and broad dissatisfaction with government regulation.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 it had evolved, the process encouraged parties to marshal an enormous volume of irrelevant evidence, adopt extreme positions, and use information defensively. Responding to comments required considerable agency staff time, slowed the pace of rulemaking, and

produced unnecessary conflict. The academics and practitioners who proposed regulatory negotiation hoped that a consensus-based approach would temper the adversarial nature of rulemaking and help to channel resources in a more fruitful way. Among other things, they thought, the demands of negotiating would force parties to prioritize among their concerns, focus on key

issues, moderate their positions, and share information productively.41 Direct engagement with parties holding opposing views would prompt the interests on all sides of a regulatory issue to get to the heart of their disagreements faster, which would help to speed the process along.

Reg Neg solves best---faster implementation, no risk of rollback, more agency cooperation, and better rulesStewart 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.) Dengb. 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

regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The 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 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

the negotiated rule-making process. n285 A second benefit of negotiated rulemaking is that the likelihood of subsequent court challenge is substantially diminished because the consensus obtained should indicate a "signoff" by interested par-ties. n286 This may explain in part why EPA has become such a strong supporter of negotiated rulemak-ing; it has been widely reported that approximately 75% of the final rules promulgated by EPA are challenged judicially. n287 Third, stakeholder input and acceptance of a rule may also make it easier to implement and will lead to greater levels of compliance, due to what EPA refers to as "ownership" of the rule. Where the parties have reached a consensus and taken part in the formation of the rule, they have an interest in seeing the

process succeed and develop a commitment to the end result. Finally, the greatest potential benefit of negotiated rulemaking may be that it leads to better rules. As Judge Wald has pointed out, the normal rulemaking process is adversarial in 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 bestNPS 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) DengThe 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

rule to the formal rulemaking process. Reg-Negs versus More Conventional Approaches to Rulemaking 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 on- going 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

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 rulemaking increases citizen participation, results in more creative solutions, shortens the ultimate length of time necessary to produce a rule, eases implementation, increases compliance, and reduce future conflict and litigation.

Reg Neg solves best---faster implementation, no risk of rollback, more agency cooperation, and better rulesStewart 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.) Dengb. 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

regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The 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 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

the negotiated rule-making process. n285 A second benefit of negotiated rulemaking is that the likelihood of subsequent court challenge is substantially diminished because the consensus obtained should indicate a "signoff" by interested par-ties. n286 This may explain in part why EPA has become such a strong supporter of negotiated rulemak-ing; it has been widely reported that approximately 75% of the final rules promulgated by EPA are challenged judicially. n287 Third, stakeholder input and acceptance of a rule may also make it easier to implement and will lead to greater levels of compliance, due to what EPA refers to as "ownership" of the rule. Where the parties have reached a consensus and taken part in the formation of the rule, they have an interest in seeing the

process succeed and develop a commitment to the end result. Finally, the greatest potential benefit of negotiated rulemaking may be that it leads to better rules. As Judge Wald has pointed out, the normal rulemaking process is adversarial in 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

Reg neg solves rollbackNolon 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.) //ky2. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of

gov- ernment, but it has applicability at the local level as well. The Ne- gotiated Rulemaking Act of "1990 provides the basic structure for agencies to design and implement appropriate processes."7 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in

the early l980s.'°" 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. '°9 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 sub- ject to a lawsuit, many agencies supplemented this required process to get input earlier. This supplemental process can1e to be called Negotiated Rulemaking or "reg-neg."

Collaboration solves - increases innovation while preventing litigation and rollback through litigationSiegel 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 co-chairs EPA Region 2’s 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

1. Defining Collaborative Decision Making There are many forms of collaborative processes. The Association for Conflict 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, public-

private 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 government’s 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 it can create a dialogue based on hope16 that can transcend the despair that leads to inaction.17 By promoting ownership and empowerment among the stakeholders, collaborative decision-making can increase the

likelihood of prompt action while reducing the likelihood of litigation .18 While intensive because it

often requires investment of more time upfront, it can ultimately produce results faster and with fewer resources than traditional processes.19 As a result of up-front efforts that engender buy-in from multiple stakeholders, decisions made through collaborative processes are more lasting and more likely to be implemented than decisions made via traditional processes.20 Collaborative decision-making does not mean that the government cedes its authority to make decisions. It retains ultimate authority to impose its own solutions using traditional processes. In fact,

collaborative decisions may actually thrive when the government’s 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 is an important option to be considered, particularly for intractable problems like climate change, where government needs to take advantage of a wide range of opportunities for making progress. The following section discusses why collaborative decision making is particularly well suited for addressing climate change.

Generic Solvency -- Stakeholder

Reg neg is effective -- consensus due to stakeholder involvementFMCS No Date (The Federal Mediation and Conciliation Service, An independent agency whose mission is to preserve and promote labor-management peace and cooperation. Headquartered in Washington, DC, with two regional offices and more than 70 field offices, the agency provides mediation and conflict resolution services to industry, government agencies and communities, "Multi-Stakeholder Processes", http://www.fmcs.gov/internet/itemDetail.asp?categoryID=48&itemID=15957)

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, FMCS’s 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.

Reg neg solves -- stakeholder involvement ensures solvencyDOI No Date (Department of the Interior, The U.S. Department of the Interior is a Cabinet-level agency that manages America's vast natural and cultural resources. Secretary of Interior Sally Jewell heads our department, which employs 70,000 people, including expert scientists and resource-management professionals, in nine technical bureaus, "Negotiated Rulemaking", http://www.doi.gov/pmb/cadr/projects/collaborationframeworkworkshop/Factsheet-Negotiated-Rulemaking.cfm#)

Negotiated Rulemaking: Negotiated rulemaking is an administrative procedure sanctioned by the Negotiated

Rulemaking Act of 1996. An agency promulgating a new or revised regulation or rule convenes a

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

and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants : 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 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 rulemaking is usually geared toward both government and non-government stakeholders, be that other bureaus, other federal, state, and local agencies and governments, private industry, local governments, and/or NGOs. Principles: Negotiated rulemaking strategies must adhere to such federal guidelines as the Negotiated Rulemaking Act of 1996, Administrative Dispute Resolution Act of 1996 and the Federal Advisory Committee Act (FACA). FACA requires negotiated rulemakings to have a clear charter, maintain a balanced membership, publicly notice and hold public meetings (though private caucuses can be called from

time to time), and keep minutes of the meeting. Intent : Negotiated Rulemaking strategies are agreement seeking. By 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 committee’s ground rules).

Negotiated rulemaking is a formalized, specific kind of consensus building.

Traditional regulatory process sparks backlash with stakeholders -- reg neg solvesSpector 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 regulation’s intent. The lack of effective and frank dialogue between the regulators and the regulated is usually blamed for these negative consequences.

The CP solves better -- empirically provenSpector 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)

Regulation through Negotiation 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 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 – government, business and citizen 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 (Pritzker and Dalton, 1995). 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 negotiated rulemaking approach has been applied in other countries as well. The Council of State and the Economic and Social Council in France, the Socio-Economic Council and Labor Foundation in the Netherlands, and the Council of State in Greece, have all applied consensus-building approaches to rulemaking (Perton, 1997). Japanese and German business and government leaders develop health and safety regulations collaboratively through negotiation and still arrive at stringent standards (Reich, 1981). Negotiated regulatory development has been practiced in New Zealand as well since 1985. Their approach dictates that a “regulatory impact statement” be prepared by the government regulatory agency to assess the likely costs and benefits of the regulation ahead of time (Perton, 1997). The procedure includes exploration of “alternative compliance mechanisms” by which the regulated parties can propose and negotiate options on how they will comply with future regulations without degrading regulatory standards. Regulatory reform developed using consensus-building and negotiations is also being introduced into the transitional economies in Eastern Europe and the Newly Independent States by Western and

international donor agencies (Moore, 1993). The experience with negotiated rulemaking in the United States has produced several benefits (Pritzker and Dalton, 1995): • 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.

Reg Neg solves comparatively better than the affSpector 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)

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 planSpector 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 rulemaking encourages participative decision making. It provides a detailed structure and set of procedures for promoting participation in formulating policy

and formulating how policy can best be implemented by encouraging the stakeholders themselves to create the implementation approach. It provides a way of building public support for policy outcomes by involving those who will be regulated in the process of making the regulations. In its search for

consensus among the stakeholders, negotiated rulemaking highlights and, hopefully, pre-empts conflicts among them which, in and of itself, will help to streamline the implementation of policy reforms. Unlike most negotiation and mediation approaches that are initiated by conflicts over a controversial policy reform or

implementation, negotiated rulemaking targets elimination of disputes among stakeholders before they become manifest. It is a preventive technique. Negotiated rulemaking has matured beyond the experimentation phase – it has been used, tested and proven to be effective in many diverse, complex and contentious situations. Applied rigorously, negotiated rulemaking can empower stakeholder groups, yield better policy reforms and implementation approaches, improve compliance with reforms, and generate more cooperative relationships between government and civil society. It also represents an important link between

democratic governance and economic growth interests. While stimulating direct public involvement in policy making, it also can enhance the business and investment climate and reduce government’s enforcement costs as well.

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.)//kyC. 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, the industry thought

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 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, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely economic in nature. In contrast, the environmentalists' concerns were based on moral

and environmental justice grounds, while the District staff's concerns were more

pragmatic. Most importantly, however, all parties had reason to compromise.

Reg neg solves—empirics prove

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)

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.)//kyC. 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, the industry thought

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 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, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely

economic in nature. In contrast, the environmentalists' concerns were based on moral

and environmental justice grounds, while the District staff's concerns were more

pragmatic. Most importantly, however, all parties had reason to compromise.

Collaborative Processes are successful and use multiple mechanisms – empirics proveSiegel 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 co-chairs EPA Region 2’s 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.) //kyCollaborative Processes in the Federal Government on Environmental Issues: A Foundation for Collaborative Decision Making on Climate

Change Although the Obama Administration has established a new emphasis on transparency and open government, 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 government’s 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 have been important policy developments to support collaborative decision making in the federal government. Building on

IECR’s mission, a joint Memorandum issued by the Office of Management and Budget and the Council on Environmental Quality

in 2005 instructed federal agencies to employ collaborative problem solving and, in recognition of the potential for improved outcomes and reduced costs, asked agency leadership to “recognize and support needed upfront investments in collaborative

processes .” 90 In reality, many federal agencies have policies to ensure that public involvement, consultation, and collaborative decision making is part of the way they do business with respect to environmental issues.91 The Forest Service views collaborative decision making in the context of natural resource

management, wherein “ groups with different interests come together to address management

issues across a large geographic region such as a forest, watershed, or landscape .”92 The

Department of Interior (DOI) has adopted the “4 Cs” representing conservation through cooperation, communication, and consultation. 93

The DOI emphasizes “cooperation” to foster voluntary action, partnerships, and

collaboration, “communication” to ensure accountability, transparency, and innovation

through exchange of ideas, and “consultation” with those who possess knowledge and

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 Policy-making, Planning and Management, FAO Corporate Document Repository,

http://www.fao.org/docrep/003/ab412e/ab412e32.htm) AJ

The emergence of stakeholder involvement in policy-making, planning and management has arisen out of a new general development model which seeks a different role for the state, which is based on

pluralistic structures, political legitimacy and consensus . In aquaculture, as in other areas, sta keholder

involvement in policy-making, planning and management is expected to lead to more

realistic and effective policies and plans, as well as improve their implementation . The reasons for this are that greater information and broader experiences make it easier to develop and implement realistic policies and plans, new initiatives can be embedded into existing legitimate local institutions,

there is less opposition and greater political support, local capacities will be developed and political interference minimized. Stakeholder involvement can be classified into three types: i) instructive, ii) consultative and iii) cooperative. Instructive involvement is where government makes the decisions but mechanisms exist for information exchange. Consultative involvement is where government is the decision-maker but stakeholders have a degree of influence over the process and outcomes. Cooperative involvement is where primary stakeholders act as partners with government in the decision-making

processes. None of these types of involvement is more desirable than another, or mutually exclusive. Much depends on the tasks to be undertaken and the political and social norms, as well as the capabilities and aspirations of the stakeholders themselves.

Critical aspects of stakeholder involvement in aquaculture policy-making, planning and

management include: the institutional capacity of stakeholder organizations; legitimacy of

the organizations and process, costs of stakeholder involvement, degree of stakeholder

competition, and level(s) at which stakeholders are involved.

Negotiated Rule-Making Create Improved Aquaculture Legislations

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. 187-188, http://mainelaw.maine.edu/academics/oclj/pdf/vol06_1/vol6_oclj_187.pdf) 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 arcticHaley 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 Alaska’s 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)

In this chapter, we argue that as changing conditions in both the human and natural environments of the Alaska arctic offshore spotlight shortcomings in the existing management regimes, the time has come to rethink and redesign the fragmented array of institutions governing resource use in the region. The analysis and recommendations for further study that we present in this chapter are guided by a

single, overarching assumption about good institutional design. Management of these valuable and fragile arctic resources

requires the active and substantive inclusion of all stakeholders—national 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 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 political terms, what we propose is a more directly and comprehensively democratic approach to resource management than is currently available. Therefore, we begin our analysis by questioning the sufficiency of conventional notions of democracy based on norms of majority rule and representation and make an argument for participatory democracy even in areas normally thought of as bureaucratic,

administrative, or technical. In the course of that discussion, we also explore ways in which the complexity of the challenges and the array of stakeholders could be better reflected in the institutional arrangements that bring stakeholders together to deliberate. We then suggest how ecosystems-based approaches can guide a process of discovering, constructing, and implementing new or substantially renovated institutional arrangements that will avoid some of the failures that have already been witnessed in the region. These failures that are likely to become more frequent as oil and gas development go forward if institutions for participatory management are not strengthened. 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.

Stakeholder involvement is key to solve for arctic resource managementHaley 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 Alaska’s 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 Iñupiat 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 Iñupiat 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 discovery of oil in Prudhoe Bay, has added complexity and accelerated the rate of change. Broad environmental trends, including climate change, further complicate the situation in ways that are both fundamental and immediate (Chapin et al. 2009).

These changes challenge the capacity of existing institutional resources. To remain

effective, institutions need to account for increasingly complex and dynamic social and ecological relationships and

facilitate working relationships across multiple levels of governance and among increasingly diverse sets of stakeholders (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 Alaska’s 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 co-chairs EPA Region 2’s 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 order to effectively deploy any of the collaborative processes along the spectrum, from information exchange through stakeholder action, the federal government must strategically draw upon its resources. After eight years of an Administration that did not sufficiently acknowledge or address the seriousness of climate change,226 the federal Executive Branch under President Obama has a lot

of catching up to do. Given 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.

Notwithstanding the challenges of coordination, no single agency can adequately address

climate change on its own and, therefore, collaborative approaches within the federal

family can help each agency achieve its mission. There are many functions performed by the federal Executive

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 agency’s 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 efficiently”236 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 Included among the many important collaborative opportunities identified in the breakout sessions were: (1) working with stakeholders to identify their needs; (2) coordinating monitoring efforts across agencies; (3) conducting sea level rise mapping / bridging communication gaps; (4) forming an interagency group on knowledge sharing; and (5 ) identifying the most important indicators required for modeling climate change

effects .238 Perhaps one of the most significant issues identified as needing regional federal collaboration was downscaling climate

predictions to spatial and temporal scales meaningful to decision makers in the regional area.239 In the Pacific Northwest, EPA, USGS, NOAA, the National Park Service, and the U.S. Fish and Wildlife Service recently formed the Pacific Northwest Climate Change Collaboration (C3) to, among other things, strengthen federal coordination on climate change, align resources, and exchange and coordinate regional tools, data, and

scientific knowledge.240 C3 has identified four initial projects they will undertake, including: (1) comparing existing agency policy and guidance on how to account for climate change impacts; (2) defining time and

scale for climate change analyses ; (3) conducting an inventory of research, tools, assessments, and downscaled global climate models; and (4) providing education and outreach materials.241 In addition to the above-referenced regional efforts, on August 22, 2008, EPA and the Departments of Commerce, Defense, Interior, and Agriculture entered into an interagency memorandum to cooperate on adaptation management of waterrelated consequences of climate change. 242 Recognizing the impacts from rising sea levels, changes in rain and snow levels, and storm intensity, the memorandum empowers agency senior staff to coordinate on four items: (1) the sharing of water-related climate change information and data; (2) the exchange of information about climate change programs and activities related to water; (3) the consideration of research priorities related to climate change and water; and (4) the cooperative implementation of water-related climate change adaptation programs and projects.243 It is likely, however, that adequate collaboration within the federal government will not be fully realized without a central coordinating body. The National Research Council has recommended a national initiative for climate-related decision support that “will require unusually effective collaboration among many federal agencies” and “will demand strong leadership from the Executive Office of the President, including the science adviser and the new coordinator of energy and climate policy.”244 Recognizing the importance of a coordinated effort within the federal government, the American Clean Energy and Security Act of 2009, passed by the House of Representatives, includes a provision for a National Climate Service. 245 Pursuant to Section 452(d) of the bill, the President is required to initiate a process through the National Science and Technology Council and the Office of Science and Technology Policy to evaluate alternative structures to support “a collaborative, interagency research and operation program.”246 The goal of the program is to “meet the needs of decision makers” within the federal government as well as state, local, tribal and regional government entities and other stakeholders “for reliable, timely, and relevant information related to climate variability and change.”247 Section 342 of a Senate bill, introduced by Senators Kerry and Boxer on September 30, known as the Clean Energy Jobs and American Power Act, also would create a National Climate Service.248 A more comprehensive bill to establish a National Climate Service was introduced in the House of Representatives in May 2009.249 Pursuant to that bill, the National Climate Service would, among other things, be charged with coordinating with federal agencies and collaborating with state, local, and tribal governments, academia, nonprofits, the private sector and other stakeholders.250 Whether or not a climate bill succeeds in Congress and a National Climate Service is established, the federal government must build capacity in collaborative decision making by vastly increasing the

number of staff capable of planning and facilitating collaborative processes on climate change. While there appears to be recognition that skilled facilitation of decision making processes is valuable, the benefits will not be fully realized without a sufficient commitment of resources. Adequate funding for collaborative decision making planners and facilitators should be complemented by a new institutional structure that creates a network for coordination within the federal government. The effort should take place across the agencies to foster both interagency coordination and outside stakeholder collaborative opportunities.

The CP is a pre-req to establish an international framework to solve climate change, uniquely key to international spill overSiegel 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 co-chairs EPA Region 2’s 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

While building process capacity may not always flow from the need to build substantive capacity on any particular environmental issue, 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 government’s unique role in responding to

natural disasters; (5) the international trans-boundary nature of impacts and solutions ; a nd (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. First, on the global scale, despite an already existing robust body of data on climate change impacts, there is uncertainty about the precise timing and extent of those impacts. Additionally, scientists are constantly refining models and other predictive tools. The trend in new projections has been toward worsening impacts;33 Given these three areas of uncertainty, decisions on climate change will have to be fashioned with the recognition that there may be a large range of probabilistic outcomes. and if this trend continues, policy makers may find the need to revise their mitigation planning in a more aggressive manner. Second, while scientists have made significant advances in developing more reliable downscale models for regional and local impact projections, great uncertainty still remains. As a result,

efforts to adapt to climate change will need to be revisited and updated frequently. Third, technological and other solutions will have to be selected and implemented without complete certainty about their effectiveness because we are in a race against time. Once implemented, these solutions might, in some cases, fail to help us mitigate or adapt and, in other cases, be rejected because they result in new environmental problems. 34 In addition, political will to take action appears to be on the rise35 and can be expected to rise further as the voting public begins to experience, and gain awareness of actual climate change impacts.36 As a result, more aggressive regulatory measures, which are unthinkable today, may become possible. Given the scientific, technological, and political uncertainty, decisions on climate change mitigation and adaptation require a significant level of flexibility. A constant stream of new information will create the need to be nimble as policy makers find cause to update decisions. As such, decisions must be made in an experimental context with the recognition that some actions will fail37 Collaborative decision-making can “foster innovative, prompt, and efficient responses to changing conditions” and therefore provide the flexibility needed to adapt. and opportunities for more effective options will arise. 38 The basic premise of adaptive management is that, as stakeholders obtain more information about a problem, they can adapt the way they manage the problem. This feedback loop allows the stakeholders to make decisions in the face of uncertainty with the recognition that they will modify decisions as they learn more. The term “adapt” in this context is distinguishable from the more typical usage of climate change adaptation, for example, by building a bigger sea wall. Instead, it refers to adapting our “management” of the problem, for example, by revisiting over time how high the sea wall needs to be. This concept applies to decisions made about both mitigation and adaptation and is often referred to as “adaptive management.” Collaborative decision-making can be initiated with the goal of designing an adaptive management strategy. It can also create the necessary trust and shared experience among stakeholders to successfully carry out the ongoing decisions necessary for adaptive management. 39 Adaptive management is used in the resource management world as a way to deal with problems in large complex systems. As such, the approach would appear to have significant import for the problem of climate change.40 In fact, the U.S. Climate Change Science Program recognizes adaptive management as a strategy for dealing with the uncertainty of climate change: “(t)his method (adaptive management) supports managers in taking action today using the best available information while also providing the possibility of ongoing future refinements through an iterative learning process.”41 The principle of adaptive management can be applied to aspects of climate change other than resource management. For example, it could prove useful when considering controversial technological fixes, such as carbon capture and sequestration, for mitigation purposes. While the precautionary principle 42 would favor acquiring sufficient knowledge before introducing a new technology into an ecosystem, adaptive management would recognize both the pressing need to take action and the potential for harm to an ecosystem when introducing the new technology.43 The potential for harm arises because decision makers and stakeholders cannot wait for all questions to be

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, State, and Regional Action Collaborative processes can help to build and maintain the trust among stakeholders needed for ultimate success given that there may be failures along the way. Moreover, collaborative processes can also provide a communication and process

framework for bringing the same stakeholders back to the table as new information arises. Given the inherent uncertainty in fashioning climate change responses, collaborative decision making is more likely to result in selection of decisions that are better in the first instance, require fewer revisions, and are more adaptable when revisions are necessary. Another factor that makes climate change planning well suited for collaborative decision-making is the important role that many states and local governments have already played in fashioning solutions. In the vacuum of eight years of federal inaction, states have taken the lead on climate change. As of April 2009, thirty-five states had completed or were poised to complete climate action plans, twenty states had adopted greenhouse gas reduction targets, and seventeen states had developed or were developing mandatory greenhouse gas reporting rules.46 In addition, thirty-three states were participants or observers in three major regional cap-and-trade initiatives: (1) the Regional Greenhouse Gas Initiative (RGGI); (2) the Western Climate Initiative (WCI); and (3) the Midwest Greenhouse Gas Reduction Accord.47 Strong motivation to take action on climate change also was experienced at the local level. More than 900 mayors signed the U.S. Conference of Mayors Climate Protection Agreement and pledged to meet or beat Kyoto Protocol targets in their communities.48 As discussed earlier, 49 the Obama Administration has clearly signaled its intention to take aggressive steps on climate change and Congress is closer to a climate bill than it has ever been in the past. However, the traditional model where the federal government makes decisions and the states implement those decisions is not likely to be successful. States have already invested a great deal of time and resources into fashioning their own individual responses to climate change50 and will not want to be cast aside. Moreover, the federal government can benefit from lessons learned at the state and local level. The most significant import of state innovation on climate change may not be the emissions reductions they have achieved, but rather their ability to inform decisions on a national program.51 As “laboratories of innovation,” future state strategies can continue to inform federal policy and be a basis for revising federal programs.52 In addition, states exercise primary authority in many areas, such as; land use, building codes, municipal waste, water supply, and transportation planning.53 Therefore, a collaborative approach to comprehensive greenhouse gas mitigation and adaptation will serve to maximize the relative opportunities of the states

and federal government to address climate change. As the federal government goes forward, it can also benefit from lessons learned by the states on the process by which they have generated the state climate change action plans. The state plans were developed using “bottom-up stakeholder and technical-work-group-driven processes.”54 Thus, the state experience in developing a response to climate change has been one rooted in collaborative decision making. This experience will likely inform state expectations for how the federal government will interact with state, local, and other stakeholders.55 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 deal of debate and discussion over the last several years about the 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 rather than a tool for decision-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. 4. Natural Disasters and the Federal Government’s Unique Role Another factor that suggests the importance of using collaborative decision making to address climate change is the impact from anticipated increases in extreme weather events and natural weather related disasters. As the effects of climate change become more widespread, the federal government will increasingly be called upon to take action to respond to those effects. Catastrophic weather events, like Hurricane Katrina, will

become more prevalent.62 5. International Engagement State government officials will not always have the resources to address the needs of their citizens. In addition to providing resources such as disaster relief

funds and personnel, the federal government can act as a convener or facilitator of collaborative processes to assist with the many decisions that will have to be made among multiple stakeholders regarding repair, rebuilding, resiliency, and relocation of displaced people.

The global nature of climate change suggests the importance of collaborative decision

making on the international level. The climate change crisis cannot be properly addressed

without international engagement from the United States . While some state and regional organizations have

achieved limited success with international outreach,63 there is little dispute that the global crisis of climate change

cannot be properly addressed without participation of the federal government. Indeed ,

many significant emitters among the developing nations will not agree to an international

framework unless the U.S. government has engaged in the process. International efforts

by the United States on a broad scale, as in a post-Kyoto agreement,64 as well as on a

smaller bilateral65 or project-specific multilateral scale,66 can benefit from collaborative

approaches.67

Collaboration in the USFG on solving climate change spills over internationally and solves water scarcitySiegel 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 co-chairs EPA Region 2’s 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.) //ky5. International Engagement The global nature of climate change suggests the importance of collaborative decision making on the international

level. The climate change crisis cannot be properly addressed without international engagement from the United States. While some state and regional organizations have achieved limited success with international

outreach,63 there is little dispute that the global crisis of climate change cannot be properly addressed without participation of the federal government. Indeed, many significant emitters among the developing nations

will not agree to an international framework unless the U.S. government has engaged in the process. International efforts by the United States on a broad scale, as in a post-Kyoto agreement,64 as well as on a smaller bilateral65 or project-specific multilateral scale,66

can benefit from collaborative approaches.67 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.

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 Nation’s 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.69 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 centers. Stronger federal government involvement may be necessary to address water resource concerns just as it was to address trans-boundary air pollution. The federal government may be able to serve as convener or facilitator in seeking agreement between the states affected by shrinking water supplies. 70 The federal government may also need to play a role in addressing potential 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.

CMSP (Coastal and Marine Spatial Planning)

Stakeholder involvement is key to solve CMSPUS Institute of Environmental Conflict Resolution 11(The U.S. Congress established the Udall Foundation as an independent executive branch agency in 1992 to honor Morris K. Udall's 30 years of service in the U.S. House of Representatives. In 2009, Congress enacted legislation to honor Stewart L. Udall and add his name to the Foundation. It is now known as the Morris K. Udall and Stewart L. Udall Foundation. As set forth in the founding legislation, the purposes of the Foundation are to: Increase the awareness of the importance of, and promote the benefit and enjoyment of, the nation's natural resources; Foster a greater recognition and understanding of the role of the environment, public lands and resources in the development of the United States; Identify critical environmental issues; Develop resources to train professionals properly in environmental and related fields; Provide educational outreach regarding environmental policy; Develop resources to train Native American and Alaska Native professionals in health care and public policy; Through the U.S. Institute for Environmental Conflict Resolution, provide assessment, mediation, and other related services to resolve environmental disputes involving federal agencies. U.S. Institute of Environmental Conflict Resolution of the Morris K. Udall and Steward L. Udall Foundation, “Principles for Stakeholder Involvement in CMSP,” December 2011, https://www.ecr.gov/pdf/StakeholderPrinciplesCMSP.pdf//ghs-kw)

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 nation’s oceans and coasts . In order to be both useful and comprehensive, the process for developing

coastal and marine spatial plans needs to be participatory, ecosystem based, and adaptive. The National

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. An essential element in the CMSP process is

stakeholder engagement , which can support a participatory and adaptive approach to proactive planning for current and future economic, cultural and environmental uses of the ocean. In the CMSP decision-making process, as outlined in the NOP, decision-making authority is provided to the regional planning bodies,

which are composed of federal, tribal, and state officials. The NOP recognizes that the coastal and marine spatial plans will need to respond to the needs of all who rely on the marine environment for economic and environmental services, and that effective consultation with the full range of these groups is essential to build the relationships needed to achieve national and regional goals for ocean management.

Stakeholder involvement is critical to CMSPGopnik 10(Dr. Gopnik holds a M.Sc. in Environmental Engineering from Caltech and a Ph.D. in Marine Science and Conservation from Duke University. Morgan Gopnik works as an environmental policy consultant for foundations, associations, and nonprofit organizations. Current projects focus on the practice of marine spatial planning. Previously, Dr. Gopnik served as Director of Ocean Studies at the National Academy of Sciences, Sr. Advisor to the U.S. Ocean Commission, and Sr. V-P at the Ocean Conservancy. Gopnik, M. Fieseler, C. Crowder, L. “Stakeholder Participation in CSMP,” Nicholas Institute for Environmental Policy Solutions, Duke University, 2010. http://www.nicholasinstitute.duke.edu/sites/default/files/publications/stakeholder-participation-in-coastal-marine-spatial-planning-paper.pdf//ghs-kw)

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 regional spatial plans are approved, they should be

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. Introduction Effective coastal

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 University’s

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 1968-1973 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-ioc-marinesp.be/uploads/documentenbank/36694190bf816835fa78d988adc79907.pdf//ghs-kw)

Why Is Stakeholder Participation Critical to Marine Spatial Planning? Involving key stakeholders in the

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 individuals, groups or organizations that are in one way or another affected, involved or interested in MSP can be considered stakeholders. However, involving too many stakeholders at the wrong moment or in the wrong form can be very time consuming and can distract resources from the expected or anticipated result. To involve stakeholders effectively (e.g., leading toward expected results) and efficiently (e.g., producing expected results at least-cost), three questions should be asked: • Who should be involved? • When should stakeholders be involved? • How should stakeholders be involved? Where no legal obligations exist, it is important to define what type of stakeholder participation will be most suitable for a successful result. For instance, involving indigenous people in MSP efforts may not be a legal requirement, but they could however be greatly affected (positively or negatively) by MSP management measures, and should therefore participate. Wide-ranging and innovative approaches to stakeholder

participation and proactive empowerment should be used in the MSP process. Stakeholder participation and

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 action—and

agree upon the management measures to be taken—they will be part of the enforcement process, at least to the extent of encouraging compliance;

and 3. The monitoring and evaluation (post-implementation) phase: Stakeholders should be involved in the evaluation of the overall effectiveness of MSP in achieving goals and objectives. The post-evaluation effort should involve all stakeholders in a discussion to identify plan results, evaluate results against objectives, and plan for the next phase of planning.

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 water demands plus declining supplies imply that some communities will have to weigh difficult trade-offs among agricultural, urban, ecological, industrial, and recreational water uses against developing new sources of water (with their associated environmental, property value, and water rate impacts). This decision-making process is a

joint effort between the water utility, state regulators, and local municipal and private

stakeholders. Stakeholders Are Intrinsic to the Decision-Making Process Engineering is not just defining a

technical problem and developing a technical solution to fit a given agency’s 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. Stakeholder involvement is now an important piece of

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 projectsKnaster 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 would be particularly effective in the negotiation of implementing regulations. A reg neg type process would address the shape of the table, facilitate dialogue on complex scientific and technical issues, and hopefully avoid costly political wrangling and litigation. A package of measures could be crafted establishing specific formulas, alternatives for compliance, incentives and enforcement parameter. A

negotiations process might also consider how to balance competing environmental considerations that characterize many of the alternative energy innovations . Is there a threshold for

a project that would achieve a significant reduction in GHGs and also allow an exception to potentially conflicting statutes? Development of a “cap and trade” policy would also be well suited for a negotiated rulemaking that could accommodate multiple interests and achieve a tradeoff balance.

And, there is a widespread push to include energy policy in regulatory negotiations

Diamond 11 (Michael, Ohio State University College of Law, Ohio State Journal on Dispute Resolution, “’Energized Negotiations’: Mediated Disputes over the Siting of Interstate Electric Transmission Lines”, Lexis)A Department of Energy-commissioned study of the national electric grid described the

public trust in the transmission siting process as "crucial and volatile" to its success , exhorting managers of the

process to act in a manner to maintain the public's confidence. n225Greater integration of the public would help to achieve this end by making agency decisionmaking more accountable to the public and subject to institutional oversight. n226 Particularly in the federal system, agencies are not directly linked to any [*251] majoritarian political process because their officials are unelected. n227 When these officials oversee the government taking of privately owned land, this creates a unique challenge to the democratic ideal, as landowners have little influence, practically or even theoretically, over their

appointment. The widespread push for increased accountability and public participation

opportunities in state eminent domain procedures evidences citizens' desires to be

involved in decisions relating to their property and communities. n228¶ Using eminent domain only as the last resort, and attempting

to first engage the public in participatory planning, often avoids the need for condemnation, and lends it legitimacy when it does occur.

n229Literature suggests that this "legitimacy benefit" already occurs when applied to regulatory negotiations under the Environmental Protection Agency. n230 Here,

empirical studies have found that public participation reduces conflict and yields

increased satisfaction from participants in both the procedure and results of collaborative rulemaking. n231

Public unpopularity blocks renewables—solar and wind

Tyson 12 (Rae Tyson pioneered the environmental beat at USA Today in the 1980s and helped found the Society of Environmental Journalists. He is a senior correspondent for the OnEarth online news agency which is supported by the Natural Resources Defense Council and writes for the Daily Climate. “NIMBY Protests Take Aim at Renewable Energy” Published January 10th 2012 @

http://www.onearth.org/article/nimby-protests-take-aim-at-renewable-energy) Deng

So-called "NIMBY" activism, once reserved for projects like landfills, prisons, and big box stores, has 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 New Jersey, a planned solar panel installation in Greenwich Township attracted more than 100 angry residents at a public hearing. In another northern New Jersey community, residents protested a utility's plan to install solar panels on existing power poles. "I don't understand

that," said Greene. "Power poles aren't exactly aesthetically pleasing to begin with." At the University of Massachusetts, a proposed two-megawatt solar farm drew similar opposition. In Vermont, residents and environmentalists joined forces to protest the erection of 21 wind turbines in the state's sparsely populated

northeastern corner, on one of the largest pieces of privately held land in the state. A similar reaction greeted a proposed wind farm project in Maine's Highland Mountains. Even proponents acknowledge that some renewable projects could have a negative impact on air and water quality -- and endangered or threatened species. Solar thermal installations, for example, can require significant quantities of water. And both wind and solar power require the construction of a transmission network to carry the juice to existing electrical grids. "Do we say, 'Screw the environment for the sake of renewables' or do we say, 'Screw renewables for the sake of the environment'?" asked Greene. Researchers say that, while public opinion polls show strong support for renewables as an antidote to energy

production that contributes to climate change, the support wanes if the proposed project is nearby. In Oklahoma, the Osage Nation filed a lawsuit to block the construction of an 8,300-acre wind farm. The tribe was concerned that 94 wind turbines and their network of electrical lines and roads would harm the tallgrass prairie. "In some areas, those big projects just cannot get over those hurdles," said Frank Maisano, an energy specialist with the Washington, D.C.-based law firm Bracewell & Guiliani, which represents

the wind power industry. In Michigan, a $235 million, 56-turbine wind farm was greeted by a public protest and a lawsuit to block the project. Among the reasons for opposition: Turbine noise and diminished property

values. The 101-megawatt project was to be completed in 2012. Now, the completion date is uncertain. Meanwhile, efforts to build a 200-turbine, 1,000-megawatt offshore wind farm in Lake Michigan have stalled in the face of public hearings packed with irate residents and skeptical local officials. To the east, in Ontario, legislators in February enacted a moratorium on all off-shore projects -- two years after passing the Green Energy Act calling for a 20 percent increase in renewable energy generation by 2015. A University of California, Santa Barbara, study (pdf) identified the basis for that opposition. Wind power in general has overwhelming support -- roughly 72 percent of the public say they support it. But when a site is close to home, support drops to 53 percent, researchers found. "A distrust of developer objectives, and lack of local ownership (are) the foremost reasons why they oppose wind farms," the study concluded. Opposition to biofuels, particularly ethanol, a federally-mandated fuel additive, is a little more complex, according to Paul Thompson, a Michigan State University professor of agricultural, food and community ethics. The opposition is based, in part, on economics and the impact on food prices, notably corn-based commodities. "The first is the food-fuel trade-off," he wrote in a 2008 study (pdf). "We should not be surprised that people make an association between reports about food riots in Haiti or Mexico and the thought that farmers are devoting larger and larger portions of their output to ethanol production." But the second ethical issue concerns the environmental implications of the push toward biofuels, Thompson said. And that has NIMBY implications. In Delray Beach, Florida, local residents opposed a biofuels project because it included a plant to produce oil from jatropha seeds. Neighbors did not object to the crop; they balked at the construction of a facility to crush the seeds. Proponents are starting to push back. California Governor Jerry Brown, committed to reducing his state's reliance on traditional energy sources, this summer asked a federal court to dismiss an injunction by environmentalists to block a 370-megawatt solar plant in the Mojave Desert. Opponents said the project could have a significant impact on the habitat of native tortoises. "When local communities try to block the installation of photovoltaic, we act to overcome the opposition. Some kinds of opposition you have to crush," Brown said in a speech.

Environment

Reg neg solves environmental issuesKnaster 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 structured mediation process is able to accommodate dozens of individual groups utilizing designated representatives, spokespersons, and technical workgroups. While there may be seventy-five individual stakeholder groups represented, the number of negotiators may be limited to

twenty-five. Reaching a consensus implies that there will be compromise, while the needs of the individual parties have been substantially met.49 Although reaching 100% agreement is a difficult and time

consuming goal to attain, participants have indicated that the durability of these agreements has outweighed the cost and effort.50 Nevertheless, mediated negotiations have successfully resolved

disputes over extremely controversial and complex public policy issues including

standards for pollution control, ecosystem restoration, and economic revitalization of

distressed communities. Faced with strict deadlines and onerous requirements, many leaders who are also strong advocates of public involvement are questioning the practicality of initiating consensus processes to address initiatives, especially if these efforts could be forestalled by extreme groups on either side of the negotiations table.51 In some instances, government leaders and dispute resolution professionals who are considering mediated negotiations are suggesting that consensus be redefined as

acceptance by a super majority.52 The discussion below focuses on how mediated negotiations can be employed to effectively resolve the disputes that are likely to arise at the state, regional, and local levels in the climate change

arena. Several examples of the use of mediation at different levels of government are provided to demonstrate the effectiveness of mediation in resolving complex disputes and to provide an institutional framework that can be applied in a variety of contexts.

Negotiations key to avoid delays and the tragedy of the commons

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//ky)III. Why We Are Stuck With Regulatory Negotiations and What We Can Do About It Daniel Farber has noted a persistent and widespread

diversion between what is mandated by environmental law and what actually occurs.38 Missed deadlines, failure to adhere

to mandated standards, and noncompliance by regulated parties are examples of "negative slippage" -- technical but not serious violations of statutory mandates.39 Regulatory agencies also affirmatively create differences between what environmental statutes call for and what is required of regulated parties; this is what Farber calls "positive slippage," and includes, among other things, the replacement of standards by negotiated agreement, the hallmark of reinvention. What Farber does not discuss is the causal

relationship between negative slippage and positive slippage. One reason that regulatory agencies created positive slippage in the form of reinvention projects is because they are faced with either impossible enforcement problems or impossible political obstacles to carrying out their mandates, both of which create pressure for negative slippage. That is to say, positive slippage is a way of building in some flexibility into statutes that otherwise suffer from negative slippage or worse yet, suffer significant legislative or judicial weakening. For example, Habitat Conservation Planning under the Endangered Species Act, as an example of positive slippage, is a Fish and Wildlife Service attempt to address negative slippage stemming from two realities faced by the Service: (1) that strict enforcement of the Act would bring down a firestorm of political protest from Westerners,40 and (2) that the Service lacks the resources and the political will to vigilantly enforce the Endangered Species Act anyway. 41 As well, Habitat Conservation Planning is a mechanism for building in some flexibility into Endangered Species Act regulation. Differences in habitat quality, landowner resources, and economic factors (which are not supposed to play a significant role in ESA regulation42), have caused the Service to at least seek out flexibility, whether the ESA allows it or not. Similarly, Project XL, developed in 1995 while the Clinton Administration was busy fending off legislative proposals to weaken several pollution control statutes, was developed to build flexibility into statutory mandates that even EPA found to be frustrating at times.43 New Source Review standards,44 which apply to all new stationary sources of air pollution (and whnich have often been targeted for repeal or amendment), have been relaxed in several Project XL proposals.45 40 The Endangered Species Act was in danger of fairly dramatic reform, when an unlikely ally emerged: then-House speaker Newt Gingrich. In an unusual meeting that included the Speaker and noted ecologists including Edward O. Wilson, Gingrich assured the scientists that the a draconian amendment of the ESA would not reach the floor as long as he was speaker. He kept his promise, as a bill sponsored by House Resource Chair Don Young and Rep. Richard Pombo that effectively neutered the ESA sailed through Young's committee by a vote of 27-17, only to meet Gingrich's refusal to bring it up on the House floor. Michael J. Bean, "The Gingrich That Saved the ESA," Environmental Forum, Jan/Feb. 1999, p.26. Suffice it say, however, numerous sweeping reforms to several environmental laws have been proposed since 1994, and Congess has flirted with passage of several of them. Is it desirable to avoid either negative or positive slippage? A strong argument can be made that both kinds of slippage provide some much-needed flexibility in a system of environmental laws that fail to address the complexities of individual cases. If, as John Dwyer argues, environmental laws are really unrealistic manifestos that politicians have created to satisfy environmentally-minded constituents,46 then negative slippage may be a necessary lubricant for making imperfect environmental laws work as best they can. Positive slippage, as well, can effect minor, common sense amendments to environmental laws that should gain easy passage in Congress, but meet with failure in a partisan and gridlocked Congress. Some commentators have noted that reinvention is part of a larger paradigm shift in the way regulatory agencies govern, resulting from a Congressional failure to address statutory shortcomings.47 In that sense, reinvention reflects the reality that the traditional regulatory regime was failing in its overly centralized approach to regulation, and to the extent that reinvention provides for additional regulatory flexibility, it represents a further evolution of our administrative state.48 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 discouraging the construction of new and generally cleaner facilities, and

encourages firms to maintain their old, less efficient, and generally dirtier facilities. 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-to-face 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 system would inevitably descend into a tragedy of the commons.54 But a system of bilateral negotiation between agencies and regulated parties would even be superior to a system of multilateral negotiation, due to the transaction costs of assembling all of the affected stakeholders in a multilateral effort, and the difficulties of reaching a consensus among a large number of parties. Moreover, multilateral negotiation gives rise to the troubling idea that there should be joint governance among the parties. Since environmental organizations lack the resources to participate in post-negotiation governance, there is a heightened danger of regulatory capture by the better-financed regulated parties.55 The correct balance between regulatory flexibility and accountability, argues Farber, is to allow bilateral negotiation but with built-in checks to ensure that the negotiation process is not captured by regulated parties. Builtin checks would include transparency, so that 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.

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.)//kyC. 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, the industry thought

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 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, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely economic in nature. In contrast, the environmentalists' concerns were based on moral

and environmental justice grounds, while the District staff's concerns were more

pragmatic. Most importantly, however, all parties had reason to compromise.

Exploration

CP key to solve explorationCSIRO 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. CSIRO’s 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 and concerns relating to the prospect of an expanded SEM industry in Australia. Phase 1 of this program found that the future viability of seafloor exploration and mining in Australia would be highly dependent on Australia’s ability to improve the knowledge base underpinning its regulatory regime and to generate open and transparent communications between stakeholders. In particular, there was a need for a process that would

identify where communication challenges exist, or are emerging, and suggest possible

solutions (Littleboy & Boughen, 2007). The second phase of the research program involves social research to inform the design and

implementation of biophysical investigations into the environmental impact of SEM in

Australia. This phase of social research aims to better understand stakeholder concerns and perceptions of risk regarding SEM, the information they need to evaluate whether SEM is an acceptable prospect for Australia’s future, and the expectations that stakeholders have regarding a prospective SEM industry in Australia (Mason and Boughen, 2009; Paxton and Mason, 2009; Parsons et al., 2010). This integrated approach is designed to ensure that the biophysical research is responsive to stakeholders’ information needs and concerns, so that Australian stakeholders have the necessary information to make

decisions regarding the future of SEM in Australia (Mason et al., 2010). One outcome of the research thus far is a clear indication that, in order to evaluate the acceptability of a future SEM industry in Australia, stakeholders will require greater clarity regarding how SEM activities in Australia will be regulated to ensure that interests of the environment and of stakeholders are integrated into decision making (Mason et al., 2010). To begin addressing this need, a desktop review of existing regulatory frameworks and their prescribed processes for stakeholder engagement has been conducted. Given the currently limited precedent for SEM activities in Australia, this review focused on countries with more developed SEM activities and regulatory frameworks, namely the US, the UK and Japan. Since marine aggregates are the most likely offshore resource to be developed in Australia (Johns 2008), the scope of this research focused on the marine aggregates (sand and gravel) mining industry as a case study. Findings from this work, and possible applications in an Australian context, are presented in a report entitled International regulatory regimes and stakeholder consultation for the offshore aggregate industry: Models for good practice in Australia (Johns, 2010) Effective processes of stakeholder engagement will be pivotal to ensuring that stakeholder interests will be integrated into any decisions made regarding the future of

SEM in Australia. The term stakeholder engagement is a broad one and encompasses any process that involves stakeholders in some form of collaborative effort. It may be undertaken in many contexts, such as administrative decision-making (including the issue of licences and permits for certain regulated activities), broader planning activities or even to facilitate behaviour change (Gardner et al., 2009; Harding,

1998). 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 co-chairs EPA Region 2’s 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 processes are those designed to reach a mutually acceptable decision through agency/stakeholder consensus that the parties agree to implement.162 The agreement may or may not be legally binding but, regardless, is likely to create a sense of ownership among the stakeholders that encourages widespread support for implementation.163 The classic example of an agreement-seeking collaborative process is a negotiated rulemaking.164 As noted earlier, in light of the

potential deluge of rulemaking165 that may flow from climate change legislation, negotiated rulemaking is an excellent option for collaborative decision-making. However, agreement-seeking collaborative processes arise in quite a wide range of contexts, including settlement agreements, statements of principles, consensus permits, among others, as illustrated by the examples below. 1. Multi-Stakeholder Motor Vehicle Agreement On May 19, 2009, President

Obama 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 policy—greenhouse 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 EPA’s decision in 2008 to deny California a waiver from preemption under the

Clean Air Act’s motor vehicle provisions168 and DOT’s delayed promulgation of fuel economy standards under the Energy Policy and

Conservation Act.169 As a result of the collaborative effort that led to the White House

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, the design of each collaborative effort must be tailored to the specifics of the situation and needs of the parties.

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 front-end 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 renewables—CP 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 Finistère and the island communities of le Parc Naturel Marin d’Iroise 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 potential

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 Socio-political acceptance, Market acceptance and Community Acceptance (Wüstenhagen 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 country’s 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

Oil and Gas

Current institutions fail—stakeholder involvement is key to solve oil and gas

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 Alaska’s 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)

In this chapter, we argue that as changing conditions in both the human and natural environments of the

Alaska arctic offshore spotlight shortcomings in the existing management regimes , the time has

come to rethink and redesign the fragmented array of institutions governing resource use

in the region. The analysis and recommendations for further study that we present in this chapter are guided by a single, overarching assumption

about good institutional design. Management of these valuable and fragile arctic resources requires the active and

substantive inclusion of all stakeholders—national 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 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 political terms, what we propose is a more directly and comprehensively democratic approach to resource management than is currently available. Therefore, we begin our analysis by questioning the sufficiency of conventional notions of democracy based on norms of majority rule and representation and make an argument for participatory democracy even in areas normally thought of as bureaucratic, administrative, or technical. In the course of that

discussion, we also explore ways in which the complexity of the challenges and the array of stakeholders could be better reflected in the institutional arrangements that bring stakeholders together to deliberate. We then suggest how ecosystems-based approaches can guide a process of discovering, constructing, and implementing new or substantially renovated institutional arrangements that will avoid some of the failures that have already been witnessed in the region. These failures that are likely to become more frequent as oil and gas development

go forward if institutions for participatory management are not strengthened. 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 drilling—it’s 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 is a need for regulatory negotiation with respect 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 is a reasonable likelihood that a committee can be

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 is a reasonable likelihood that 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 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 pollutionSelmi 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.)//ky3. 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 California statute or federal law required the District to adopt more stringent controls on chrome plating facilities. (112) Instead, two concerns motivated the staff: evidence amassed about public health risks and environmental justice initiatives. First, in its ATCP (113) the District had committed to investigate additional controls on the metal finishing industry. (114) This commitment arose out of a comprehensive study by the District of toxic risks in the South Coast Air Basin, (115) which showed high residual risks--particularly risks of human cancer--from this industry. (116) As a result, the District staff members were convinced that protection of the public health required new regulatory steps. Second, the District's commitment to its so-called "Environmental Justice Initiative" further motivated it to act. (117) Under this

previously adopted policy initiative, the District recognized that the distribution of emissions from air

polluters fell disproportionately on low-income communities and communities of color . The

District Governing Board had committed to take steps that would address this issue. (118) 4. The Facilitator's Perspective The facilitator chosen by the District to head the negotiations was a member of the California Center for Public Dispute Resolution. (119) He had extensive mediation experience in a variety of environmental matters, and he had no previous affiliation with the District. (120) However, the facilitator had limited experience with air pollution, although he had worked with chrome plating in the context of a negotiation involving a brownfields redevelopment, and his academic background was in environmental

science. Thus, he brought neutrality , but relatively little technical expertise, to the bargaining table.

Resource Management/Resource Wars

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 co-chairs EPA Region 2’s 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 order to effectively deploy any of the collaborative processes along the spectrum, from information exchange through stakeholder action, the federal government must strategically draw upon its resources. After eight years of an Administration that did not sufficiently acknowledge or address the seriousness of climate change,226 the federal Executive Branch under President Obama has a lot

of catching up to do. Given 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.

Notwithstanding the challenges of coordination, no single agency can adequately address

climate change on its own and, therefore, collaborative approaches within the federal

family can help each agency achieve its mission. There are many functions performed by the federal Executive

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 agency’s 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 efficiently”236 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 Included among the many important collaborative opportunities identified in the breakout sessions were: (1) working with stakeholders to identify their needs; (2) coordinating monitoring efforts across agencies; (3) conducting sea level rise mapping / bridging communication gaps; (4) forming an interagency group on knowledge sharing; and (5 ) identifying the most important indicators required for modeling climate change

effects .238 Perhaps one of the most significant issues identified as needing regional federal collaboration was downscaling climate

predictions to spatial and temporal scales meaningful to decision makers in the regional area.239 In the Pacific Northwest, EPA, USGS, NOAA, the National Park Service, and the U.S. Fish and Wildlife Service recently formed the Pacific Northwest Climate Change Collaboration (C3) to, among other things, strengthen federal coordination on climate change, align resources, and exchange and coordinate regional tools, data, and

scientific knowledge.240 C3 has identified four initial projects they will undertake, including: (1) comparing existing agency policy and guidance on how to account for climate change impacts; (2) defining time and

scale for climate change analyses ; (3) conducting an inventory of research, tools, assessments, and downscaled global climate models; and (4) providing education and outreach materials.241 In addition to the above-referenced regional efforts, on August 22, 2008, EPA and the Departments of Commerce, Defense, Interior, and Agriculture entered into an interagency memorandum to cooperate on adaptation management of waterrelated consequences of climate change. 242 Recognizing the impacts from rising sea levels, changes in rain and snow levels, and storm intensity, the memorandum empowers agency senior staff to coordinate on four items: (1) the sharing of water-related climate change information and data; (2) the exchange of information about climate change programs and activities related to water; (3) the consideration of research priorities related to climate change and water; and (4) the cooperative implementation of water-related climate change adaptation programs and projects.243 It is likely, however, that adequate collaboration within the federal government will not be fully realized without a central coordinating body. The National Research Council has recommended a national initiative for climate-related decision support that “will require unusually effective collaboration among many federal agencies” and “will demand strong leadership from the Executive Office of the President, including the science adviser and the new coordinator of energy and climate policy.”244 Recognizing the importance of a coordinated effort within the federal government, the American Clean Energy and Security Act of 2009, passed by the House of Representatives, includes a provision for a National Climate Service. 245 Pursuant to Section 452(d) of the bill, the President is required to initiate a process through the National Science and Technology Council and the Office of Science and Technology Policy to evaluate alternative structures to support “a collaborative, interagency research and operation program.”246 The goal of the program is to “meet the needs of decision makers” within the federal government as well as state, local, tribal and regional government entities and other stakeholders “for reliable, timely, and relevant information related to climate variability and change.”247 Section 342 of a Senate bill, introduced by Senators Kerry and Boxer on September 30, known as the Clean Energy Jobs and American Power Act, also would create a National Climate Service.248 A more comprehensive bill to establish a National Climate Service was introduced in the House of Representatives in May 2009.249 Pursuant to that bill, the National Climate Service would, among other things, be charged with coordinating with federal agencies and collaborating with state, local, and tribal governments, academia, nonprofits, the private sector and other stakeholders.250 Whether or not a climate bill succeeds in Congress and a National Climate Service is established, the federal government must build capacity in collaborative decision making by vastly increasing the

number of staff capable of planning and facilitating collaborative processes on climate change. While there appears to be recognition that skilled facilitation of decision making processes is valuable, the benefits will not be fully realized without a sufficient commitment of resources. Adequate funding for collaborative decision making planners and facilitators should be complemented by a new institutional structure that creates a network for coordination within the federal government. The effort should take place across the agencies to foster both interagency coordination and outside stakeholder collaborative opportunities.

The CP is a pre-req to establish an international framework to solve climate change, uniquely key to international spill overSiegel 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 co-chairs EPA Region 2’s 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

While building process capacity may not always flow from the need to build substantive capacity on any particular environmental issue, 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 government’s unique role in responding to

natural disasters; (5) the international trans-boundary nature of impacts and solutions ; a nd (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. First, on the global scale, despite an already existing robust body of data on climate change impacts, there is uncertainty about the precise timing and extent of those impacts. Additionally, scientists are constantly refining models and other predictive tools. The trend in new projections has been toward worsening impacts;33 Given these three areas of uncertainty, decisions on climate change will have to be fashioned with the recognition that there may be a large range of probabilistic outcomes. and if this trend continues, policy makers may find the need to revise their mitigation planning in a more aggressive manner. Second, while scientists have made significant advances in developing more reliable downscale models for regional and local impact projections, great uncertainty still remains. As a result,

efforts to adapt to climate change will need to be revisited and updated frequently. Third, technological and other solutions will have to be selected and implemented without complete certainty about their effectiveness because we are in a race against time. Once implemented, these solutions might, in some cases, fail to help us mitigate or adapt and, in other cases, be rejected because they result in new environmental problems. 34 In addition, political will to take action appears to be on the rise35 and can be expected to rise further as the voting public begins to experience, and gain awareness of actual climate change impacts.36 As a result, more aggressive regulatory measures, which are unthinkable today, may become possible. Given the scientific, technological, and political uncertainty, decisions on climate change mitigation and adaptation require a significant level of flexibility. A constant stream of new information will create the need to be nimble as policy makers find cause to update decisions. As such, decisions must be made in an experimental context with the recognition that some actions will fail37 Collaborative decision-making can “foster innovative, prompt, and efficient responses to changing conditions” and therefore provide the flexibility needed to adapt. and opportunities for more effective options will arise. 38 The basic premise of adaptive management is that, as stakeholders obtain more information about a problem, they can adapt the way they manage the problem. This feedback loop allows the stakeholders to make decisions in the face of uncertainty with the recognition that they will modify decisions as they learn more. The term “adapt” in this context is distinguishable from the more typical usage of climate change adaptation, for example, by building a bigger sea wall. Instead, it refers to adapting our “management” of the problem, for example, by revisiting over time how high the sea wall needs to be. This concept applies to decisions made about both mitigation and adaptation and is often referred to as “adaptive management.” Collaborative decision-making can be initiated with the goal of designing an adaptive management strategy. It can also create the necessary trust and shared experience among stakeholders to successfully carry out the ongoing decisions necessary for adaptive management. 39 Adaptive management is used in the resource management world as a way to deal with problems in large complex systems. As such, the approach would appear to have significant import for the problem of climate change.40 In fact, the U.S. Climate Change Science Program recognizes adaptive management as a strategy for dealing with the uncertainty of climate change: “(t)his method (adaptive management) supports managers in taking action today using the best available information while also providing the possibility of ongoing future refinements through an iterative learning process.”41 The principle of adaptive management can be applied to aspects of climate change other than resource management. For example, it could prove useful when considering controversial technological fixes, such as carbon capture and sequestration, for mitigation purposes. While the precautionary principle 42 would favor acquiring sufficient knowledge before introducing a new technology into an ecosystem, adaptive management would recognize both the pressing need to take action and the potential for harm to an ecosystem when introducing the new technology.43 The potential for harm arises because decision makers and stakeholders cannot wait for all questions to be

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, State, and Regional Action Collaborative processes can help to build and maintain the trust among stakeholders needed for ultimate success given that there may be failures along the way. Moreover, collaborative processes can also provide a communication and process

framework for bringing the same stakeholders back to the table as new information arises. Given the inherent uncertainty in fashioning climate change responses, collaborative decision making is more likely to result in selection of decisions that are better in the first instance, require fewer revisions, and are more adaptable when revisions are necessary. Another factor that makes climate change planning well suited for collaborative decision-making is the important role that many states and local governments have already played in fashioning solutions. In the vacuum of eight years of federal inaction, states have taken the lead on climate change. As of April 2009, thirty-five states had completed or were poised to complete climate action plans, twenty states had adopted greenhouse gas reduction targets, and seventeen states had developed or were developing mandatory greenhouse gas reporting rules.46 In addition, thirty-three states were participants or observers in three major regional cap-and-trade initiatives: (1) the Regional Greenhouse Gas Initiative (RGGI); (2) the Western Climate Initiative (WCI); and (3) the Midwest Greenhouse Gas Reduction Accord.47 Strong motivation to take action on climate change also was experienced at the local level. More than 900 mayors signed the U.S. Conference of Mayors Climate Protection Agreement and pledged to meet or beat Kyoto Protocol targets in their communities.48 As discussed earlier, 49 the Obama Administration has clearly signaled its intention to take aggressive steps on climate change and Congress is closer to a climate bill than it has ever been in the past. However, the traditional model where the federal government makes decisions and the states implement those decisions is not likely to be successful. States have already invested a great deal of time and resources into fashioning their own individual responses to climate change50 and will not want to be cast aside. Moreover, the federal government can benefit from lessons learned at the state and local level. The most significant import of state innovation on climate change may not be the emissions reductions they have achieved, but rather their ability to inform decisions on a national program.51 As “laboratories of innovation,” future state strategies can continue to inform federal policy and be a basis for revising federal programs.52 In addition, states exercise primary authority in many areas, such as; land use, building codes, municipal waste, water supply, and transportation planning.53 Therefore, a collaborative approach to comprehensive greenhouse gas mitigation and adaptation will serve to maximize the relative opportunities of the states

and federal government to address climate change. As the federal government goes forward, it can also benefit from lessons learned by the states on the process by which they have generated the state climate change action plans. The state plans were developed using “bottom-up stakeholder and technical-work-group-driven processes.”54 Thus, the state experience in developing a response to climate change has been one rooted in collaborative decision making. This experience will likely inform state expectations for how the federal government will interact with state, local, and other stakeholders.55 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 deal of debate and discussion over the last several years about the 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 rather than a tool for decision-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. 4. Natural Disasters and the Federal Government’s Unique Role Another factor that suggests the importance of using collaborative decision making to address climate change is the impact from anticipated increases in extreme weather events and natural weather related disasters. As the effects of climate change become more widespread, the federal government will increasingly be called upon to take action to respond to those effects. Catastrophic weather events, like Hurricane Katrina, will

become more prevalent.62 5. International Engagement State government officials will not always have the resources to address the needs of their citizens. In addition to providing resources such as disaster relief

funds and personnel, the federal government can act as a convener or facilitator of collaborative processes to assist with the many decisions that will have to be made among multiple stakeholders regarding repair, rebuilding, resiliency, and relocation of displaced people.

The global nature of climate change suggests the importance of collaborative decision

making on the international level. The climate change crisis cannot be properly addressed

without international engagement from the United States . While some state and regional organizations have

achieved limited success with international outreach,63 there is little dispute that the global crisis of climate change

cannot be properly addressed without participation of the federal government. Indeed ,

many significant emitters among the developing nations will not agree to an international

framework unless the U.S. government has engaged in the process. International efforts

by the United States on a broad scale, as in a post-Kyoto agreement,64 as well as on a

smaller bilateral65 or project-specific multilateral scale,66 can benefit from collaborative

approaches.67

Collaboration in the USFG on solving climate change spills over internationally and solves water scarcity

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 co-chairs EPA Region 2’s 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.) //ky5. International Engagement The global nature of climate change suggests the importance of collaborative decision making on the international

level. The climate change crisis cannot be properly addressed without international engagement from the United States. While some state and regional organizations have achieved limited success with international

outreach,63 there is little dispute that the global crisis of climate change cannot be properly addressed without participation of the federal government. Indeed, many significant emitters among the developing nations

will not agree to an international framework unless the U.S. government has engaged in the process. International efforts by the United States on a broad scale, as in a post-Kyoto agreement,64 as well as on a smaller bilateral65 or project-specific multilateral scale,66

can benefit from collaborative approaches.67 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.

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 Nation’s 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.69 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 centers. Stronger federal government involvement may be necessary to address water resource concerns just as it was to address trans-boundary air pollution. The federal government may be able to serve as convener or facilitator in seeking agreement between the states affected by shrinking water supplies. 70 The federal government may also need to play a role in addressing potential 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.

CDM solves water and resource wars

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 co-chairs EPA Region 2’s 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.) //ky6. 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 . 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 Nation’s 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 centers. Stronger federal government involvement may be necessary to address water resource concerns just as it was to address trans-boundary air pollution. The federal government may be able to serve as convener or facilitator in seeking agreement between the states affected by shrinking water supplies. 70 T he federal government may also need to play a role in

addressing potential 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 inaccurate—stakeholder involvement is key to provide technical data and verify satellite data from the groundKritkausky 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 of- International 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

corporations, government agencies, auditors, standards certifying bodies, and insurance companies are to often deceived by superficial apearances and incomplete documentation. Investment or insurance decisions are frequently made on the basis of such inadequate information. This is especialy harmful when information has ben deliberately designed to

omit reporting of problems, and to conceal risks and illegal activites. Stakeholder

engagement, when done profesionaly and with genuine “two way communication”, is a

tool which can increase the accuracy of risk asesment. When combined with the more traditonal forms of

asesment, stakeholder engagement adds the dimension of “ground truthing” and can help managers, investors and/or insurers more adequately evaluate the risks and benefits involved in a business decision. Remote Sensing and Ground Truthing Geographers and planet scientists frequently use satellites for “ remote sensing ” , in order to gather information about geological formations, water quality, air polution,

temperature changes and forest growth paterns. The bird’s eye view from a distance of hundreds of kilometers can provide valuable knowledge;

the extra distance and new perspective can reveal paterns that were dificult to se close up. However, “remote sensing” has its limits, and interpreting the remote data has its pitfalls. For example, infra-red indicators may suggest tree growth, but may confuse hickory tres with oak tres. Methane emisions may be interpreted as identifying leaks in a gas line or from ilegal mining in a certain area, but hose emisions might in fact be caused by bogs decaying and thawing. “Remote sensing” can also be vulnerable to deliberate deception. Remote military inteligence may miss troop movements and missile re-

positonings because these were conducted on cloudy days, in order to prevent satelite cameras from detecting miltary activites. Scientists

who use remote sensing also know that data need to be verified from the ground, or

“ground truthed”. 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 truthing can verify, or challenge, the information obtained by remote sensing. In the busines context, there are times when company managers turn on the pollution reduction equipment only when they expect environmental inspectors or auditors. Underage workers may be dismissed for a few days when labor inspectors visit. Dangerous working conditons can be corected temporarily when safety inspectors are expected.1 In summary, industrial facilities can routinely conduct risky activity under “cloud cover.” It would be a costly mistake to asume that these routine deceptions are a normal part of doing business, and to ignore their existence. A culture of deception can be an important indicator of a management culture that wil put investors, customers, and insurers at risk.

Needles to say, it can also harm workers and communites. How to Deal with the Problems of Incomplete Information and/or Deception

ECOLOGIA advocates addresing this problem by involving stakeholders in meaningful, careful communications. Stakeholders (workers, customers, supliers, community

members) can participate constructively in inspections, management decisions and

processes, and standards compliance audits or verifications . When managed well, these stakeholders can provide acurate and low-cost information with which to “ground truth” the data compiled by inspectors and found in formal documents.

Science

Reg neg overcomes lack of scientific data—solves

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 asked who determined the issues, the most frequent response was “the participants” (44%), followed by “the statute the rule will implement” (28%) and “EPA” (24%).114 From the interviews, it appears that negotiating committees usually did not consider issues in a rigid pre-determined way; rather participants reported that discussions “take on a life of their own,” and that parties acted on issues as they emerged and when it seemed that consensus was within reach.115 There is no discernible pattern in the substance of the issues that emerged for negotiation, nor is there a pattern for issues that did not. With regard to how

parties resolved conflicts,116 the respondents’ reported that “nearly 80% of issues were either

successfully negotiated or resolved through the presentation of objective data” or

analysis.117 This suggests that regulatory negotiation may produce sufficient scientific and

technical information to enable parties to participate effectively in rulemaking , contradicting speculation in the literature that the process merely clarifies interests and facilitates bargaining.118

Whaling

Reg negs solve Native American affairs—Osage 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)

In accordance with 5 U.S.C. § 563,1 have determined that there is a need for regulatory negotiation with respect 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 is a reasonable likelihood that a committee can be 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 is a reasonable likelihood that 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 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. Furthermore, 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

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 pro¬posed 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, representa¬tive group of citizens to identify their priorities on appropriate lo¬cations 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 mecha¬nisms, appropriate mitigation measures, and decommissioning pro¬visions. 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 pro¬vide valuable information about how to manage financial re¬sources,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 par¬ticipatory 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 iden¬tify 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 polling—a popular form of participatory plan¬ning—

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 inter¬est groups negotiate the terms of a proposed administrative rule.166 Historically, it has been used at the federal and stale levels of gov¬ernment, but it has applicability at the local level as well. The Ne¬gotiated 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 sub¬ject 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 ta¬ble early on, before the rule has been drafted and before the re¬quired 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 com¬ments 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 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.17" The regulatory negotiation process also facilitates more informed, workable,

and pragmatic rules than traditional rulemaking provides .171 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.172 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 under¬ground injection controls.173 Parties involved in the permit modifications under RCRA felt as though they

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 situ¬ations. When deciding appropriateness, factors taken into consid¬eration should also include the opportunity for trade-offs among parlies, the level of conflict, and the importance of gathering infor¬mation 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 environ- mental 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 agencies resist more robust levels of citi- zen involvement at the policy development stage. preferring to rely on the minimal processes with which they are familiar. Resistance to this level of citizen involvement is endemic and springs from beliefs (and experiences) that engaging citizens takes too long. is too costly. and results in sub-optimal solutions." The assumption is that a more streairilined decision-making process. guided and informed by knowledgeable bureaucrats. will produce better_ and timelier results?" Adher_e_nts to minimal citizen involve- ment In decision-making view the citizens as unlnfonned and

paro- chial and involving them will only give strength to Not-in-My- Back-Yard ("NIMBY") sentiment." 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 fails—risk 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 general pattern is that local and regional governments are also responsible for the siting of wind turbines." In some states. such as in New York. location and operation of wind turbines is largely a function of local governments with little to no authority retained by the state." Some large wind

farms are treated as utili- ties and need additional approval from the state utility commis- sions on matters related to rate setting. Some states segregate wind projects based on size. sending larger turbines to regional or state siting boards or agencies and allowing local governments to approve smaller turbines." Other states, such as Maine. use state- wide siting boards to make all decisions regarding wind turbines." In addition. some state legislatures have voted

to ban turbines from significant landscapes." Depending on the authority of the siting board. turbines can be conditioned or denied based on a variety of reasons. such as impacts to biodiversity, the environment, human safety, aesthetics, cultural resources. noise, and light. Some states require environ- mental impact statements to be completed as part of the approval process. For example, the Minnesota Public Utilities Commission requires an analysis of the potential environmental and wildlife im- pacts, mitigation measures, and any adverse environmental effects that cannot be avoided." In New York. the State Environmental Quality Review Act ("SEQRA") requires local government agen- cies to mitigate the adverse impacts of any proposed actions-like approving the siting of a wind turbine. SEQRA requires the com- pletion of an environmental impact statement if a proposed action "is detennined to have a potentially significant adverse environ- mental impact."5' 3. Mitigating Adverse Impacts of Wind Turbines In addition to the advantages of harvesting energy from the wind. there are significant impacts that must be addressed. The regulation of wind turbines is designed to address impacts that arise during construction

and operation of wind turbines. An at- tempt to catalog the adverse impact on land use is incredibly com- plex and depends heavily on local circumstances, local and state land use patterns, zoning ordinances. cultural resources in the area, and other factors. For example. construction of wind turbines can cause interruptions in communication infrastructure (i.e.. cell phone towers, fiber optic data cables)? and operation can impact national defense by interrupting radar capabilities." According to some anti-wind advocates. wind turbines are "gi- gantic wind machines . . . gut(ting) the landscape. killing wildlife. destroying culturally significant viewsheds. devaluing property, and creating major disturbances for those who live nearby."5' A recent newsletter pondered the following possible impacts: damaged roads; increased traffic: changes to water supplies, streams and wetlands; blasting; habitat fragmentation; increased mortality of birds, bats and other wildlife and domestic animals; reduced quality of life; aesthetics; increased noise; human health; dangers to com- mercial aviation; reduced property values; lack of corporate accountability; catastrophic failure of turbines; injuries to commu- nity: and greenhouse gas emissions." Opponents can find many reasons to make the case against wind turbines. Generally, state and local governments have attempted to mitigate adverse wind turbine effects on wildlife and natural resources by conducting risk assessments prior to construction and imposing conditions on location. size. operation. construction and mainte- nance of wind turbines." Some of the specific conditions are de- scribed in more detail below.

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. citizen involvement is synonymous with opposition. The belief that opposition often serves as an impasse to implementing well-developed and planned wind energy infra structure

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-In-My-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 As many developers and government officials know, NIMBY campaigns should not be taken lightly; they are

incredibly effective at stopping developments , for better or for worse. An equally simplistic, but

favorable vision of NIMBYS is that of David against Goliath. The courageous and resourceful citizen: who take an unpopular cause defending

valuable. but under-protected, community resources against well-funded, ruthless and rapacious corporations.9° This is the NIMBY as savior who, at risk of great personal and financial loss, sets out to hold governmental officials accountable, to make sure that treasured community resources are not stolen, and rail against back-room deals that only line the pockets of a select few. There are many examples of citi

zens who have done "good" by opposing ill-conceived proposals.9 Many of the pivotal moments in environmental

law are the result of NIMBY-like opposition that produced broad benefits , for which many are thankful." On balance, citizen opposition plays an important role in making wise use of community resources. The siting of wind turbines provides an opportunity to observe the full landscape of oppositional

behaviors. A number of group have formed to oppose site-specific turbine projects." The effectiveness of these groups has been mixed, but, as efforts to site new turbines increase, these groups can be expected to respond with increased sophistication and effectiveness. To realize the potential for wind energy generation, the proponents must effectively en gage this growing opposition and

use it productively. Doing so re quires a more nuanced appreciation of citizen involvement

and th- nature of opposition.

Civic engagement solves offshore windNolon 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.) //ky3. From Opponents to Advocates (or "How the Typical Decision-Making Process Ignores Emotions and What Can Be Done About It") In Descartes' Error, Antonio Damasio makes the case that nind and body are inextricably linked and that our attempts to ;eparate rational discourse from feelings and emotions inaccurately iepict how the brain functions!" We can see this Cartesian error .n the way most required decision-making processes operate. Through notice of an action and opportunity to be heard on the nerits, the citizenry should be content to have the proposed action rationally explained. No space is created to deal with the feelings and emotions associated with the proposed action and any attempt :o express them is met with ambivalence, if not hostility. While :he last twenty years of scientific research have debunked the sepa- ration of mind and body,'-"3 society (and especially government) mas been slow to adopt new practices that more accurately reflect :he connection between rational thought and feelings.'39 Realizations about these links are critically important for im- proving the way wind turbines are sited.

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 metaphori- cal."° 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 process of proposing a wind farm begins long before the application is filed. The process must include opportu- nities for the citizen to process metaphorical threats in

the same way that it would deal with an actual threat, to explore our aver- sion to particular ideas, and to reframe conflicting realities. Our brains will only be satisfied after we have had a chance to investi-gate Iurther. It is arguable that robust and authentic Involvement in the decision-making process satisfies this need for investigation. An effective approval process must provide similar opportunities for the participants to investigate on their own. The following sec- tion provides a framework for how that process can be structured to allow for that involvement on multiple levels.

***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/) DengIn 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 of Western consciousness enables us to achieve the emancipatory possibilities inherent in human language. In a rationally, as opposed to a traditionally,

ordered world, we might interact with other human beings by means of communicative action, which is speech directed toward reaching mutual understanding, rather than through strategic action, which is speech designed to achieve the speaker's private purposes. n112 Thus, (*752) the rationalization of Western society would no longer lead to the proliferation of a morally disconnected, instrumental rationality, as Weber envisioned, but to a rational discussion of empirical data, moral positions, and personal emotions, that would abolish oppression, enabling individuals to reach their full potential. n113 In other words, we would break out of Weber's iron cage. What prevents us from doing so is the colonization of the lifeworld by the steering mechanisms of money and power. n114 These place the forces operating on individuals outside of

their personal control and comprehension, thus limiting the emancipatory possibilities of communicative action. Deliberative democracy is a solution to this problem, in Habermas's view, because it institutionalizes communicative action. The collective opinion and will formation that occurs within civil society becomes the steering mechanism for the government, and for the economic system it controls. n115 As a result, the lifeworld of the individual regains the dominance it possessed in traditional society, but it is now a rationalized lifeworld that contains the possibility of emancipation - a possibility that can be realized through the interaction between civil society and the political system. In a metaphor derived from Bernard Peters, Habermas envisions political institutions such as the legislature in the center of society, the administrative agencies surrounding it in a concentric ring, and civil society surrounding the entire government as a second concentric ring. n116 The mechanisms of representative government constitute channels or "sluices" by which the opinions formed in

civil society can be communicated to the political institutions at the center. Communicative action enables civil society to generate, or constitute, a "public sphere," which autonomously produces opinions and decisions that influence the political system through these structurally established channels. n117

Civic engagement solves warmingLevine 07(Peter Levine is the Lincoln Filene Professor of Citizenship & Public Affairs in Tufts University’s Jonathan Tisch College of Citizenship and Public Service and Director of CIRCLE, The Center for Information and Research on Civic Learning and Engagement. He has a secondary appointment in the Tufts philosophy department. Levine graduated from Yale in 1989 with a degree in philosophy. He studied philosophy at Oxford on a Rhodes Scholarship, receiving his doctorate in 1992. From 1991 until 1993, he was a research associate at Common Cause. From 1993-2008, he was a member of the Institute for Philosophy & Public Policy in the University of Maryland’s School of Public Policy. During the late 1990s, he was also Deputy Director of the National Commission on Civic Renewal. Levine is the author of We Are the Ones We Have Been Waiting For: The Promise of Civic Renewal in America (Oxford University Press, 2013), five other scholarly books on philosophy and politics, and a novel. He has served on the boards or steering committees of AmericaSpeaks, Street Law Inc., the Newspaper Association of America Foundation, the Campaign for the Civic Mission of Schools, Discovering Justice, the Kettering Foundation, the American Bar Association Committee’s for Public Education, the Paul J. Aicher Foundation, and the Deliberative Democracy Consortium. Levine, P. “Global Warming and Civic Participation.” July 13, 2007. http://www.peterlevine.ws/mt/archives/2007/07/global-warming.html//ghs-kw)

We believe that global warming is a profound challenge. Unless we reduce carbon emissions by two percent per year starting very soon, civilization is in danger. We trust scientists on this question, regardless of what democratically elected officials may say. Yet we also believe that civic

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 Earth’s atmosphere with respect to the historical fluctuations of global temperature changes; and (b) the overwhelming majority of the world’s 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 Earth’s biosphere,

humanity will be at dire risk  (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 ) .

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Civic engagement decreases opposition and increases trustNolon 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.) //ky3. From Opponents to Advocates (or "How the Typical Decision-Making Process Ignores Emotions and What Can Be Done About It") In Descartes' Error, Antonio Damasio makes the case that nind and body are inextricably linked and that our attempts to ;eparate rational discourse from feelings and emotions inaccurately iepict how the brain functions!" We can see this Cartesian error .n the way most required decision-making processes operate. Through notice of an action and opportunity to be heard on the nerits, the citizenry should be content to have the proposed action rationally explained. No space is created to deal with the feelings and emotions associated with the proposed action and any attempt :o express them is met with ambivalence, if not hostility. While :he last twenty years of scientific research have debunked the sepa- ration of mind and body,'-"3 society (and especially government) mas been slow to adopt new practices that more accurately reflect :he connection between rational thought and feelings.'39 Realizations about these links are critically important for im- proving the way wind turbines are sited.

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 metaphori- cal."° 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 process of proposing a wind farm begins long before the application is filed. The process must include opportu- nities for the citizen to process metaphorical threats in

the same way that it would deal with an actual threat, to explore our aver- sion to particular ideas, and to reframe conflicting realities. Our brains will only be satisfied after we have had a chance to investi-gate Iurther. It is arguable that robust and authentic Involvement in the decision-making process satisfies this need for investigation. An effective approval process must provide similar opportunities for the participants to investigate on their own. The following sec- tion provides a framework for how that process can be structured to allow for that involvement on multiple levels.

Public inclusion in regulatory frameworks is key to governance---enhances civic engagement and governmental trustAckerman 14 (John M. Ackerman is a Professor at the Institute for Legal Research of the National Autonomous University of Mexico ("UNAM"). Teaches Constitutional Law, Election Law, and Administrative Law at the UNAM. M.A. and Ph.D. in Political Sociology from the University of California, Santa Cruz. B.A. in Philosophy (Magna Cum Laude, Phi Beta Kappa) from Swarthmore College, Swarthmore, PA. “Bribes Without Borders: The Challenge of Fighting Corruption in the Global Context: Article: Rethinking the International Anti-Corruption Agenda: Civil Society, Human Rights and Democracy*” Published 2014, Print) DengIV. HUMAN RIGHTS AND SOCIAL ACCOUNTABILITY What has come to be called the "human rights based approach" to development offers a good starting point for undergirding a solid commitment to social accountability in anti-corruption policy. n104 The Office of the High Commissioner for Human Rights ("OHCR") understands this as an approach that "links poverty reduction to questions of obligation, rather than welfare or charity." n105 The British Department for International Development ("DFID") defines this approach as "empowering people to take their own decisions, rather than being the passive objects of choices made on their behalf." n106 The World Bank has also claimed that "social accountability is a right" and that such initiatives are grounded in "a new manifestation of citizenship based on the right to hold governments accountable by expanding people's responsibility." n107 (*317) The core objective of the human rights approach to development is to invert the power relationships between service providers and the poor. n108 Instead of envisioning development as a process by which governments, foundations, or international agencies channel resources to help excluded groups overcome poverty and suffering, the human rights approach starts by acknowledging the entitlements of the poor. n109 As a result, according to this perspective, "service providers" are better conceptualized as "duty-bearers." n110 It is their obligation, not their choice, to guarantee the human rights of the poor, the "rights-holders." n111 This approach gives a very different taste to development. As Andrea Cornwall has argued, instead of talking about "beneficiaries with needs" or "consumers with choices" the human rights approach speaks of "citizens with rights." n112 Citizens are active subjects in the political sphere, not objects of intervention by government programs or passive choosers in the marketplace. Citizenship necessarily implies empowerment and the active participation of the poor in the design, control, oversight, and evaluation of the development projects that affect them. Indeed, (*318) according to authors such as Clare Ferguson and Julia Håusermann the right to participation should be seen as the foundational base of the rights approach since it is the prerequisite to claiming all of the rest of the human rights. n113 The very act of demanding the fulfillment of one's rights requires an

active subject, who is in control of his or her life, a participant in his or her own process of development. n114 Nevertheless, not just any sort of participation will do the trick. It is not sufficient for a government only to open up controlled spaces for opinion-giving or popular consultation for it to claim that it is applying a human rights approach. n115 The value-added of the human rights approach is that "it offers the possibility of shifting the frame of participatory interventions away from 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 through the celebration of democratic elections. n126 It is not enough to "be empowered." The structure of political decision-making itself must put citizens in a position of power. The same applies for economic and social rights . It is not enough for citizens to participate

in planning local development projects or speak out against poor service delivery to fulfill the

human rights (*321) approach. 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 sustain equity ... . Bringing governance squarely into the frame, exclusion becomes in itself a denial of rights and the basis for active citizens to make demands, backed by legal instruments. n129 The following table 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 Top-down 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 push for Rights immediate and urgent action? Power Structure Are opposing forces explicitly named and engaged with? In

general, 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 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 "societal institutionalization." n157 In addition to being under-institutionalized, another risk is for pro-accountability initiatives grounded in civic engagement to be "under-involved " or too "externalist."

Consultations and workshops are common and protests and elections are frequent; but it is very difficult to find cases in which societal actors are "invited into the kitchen." n158 For instance, transparency laws often only give access to documents that report on concluded processes, not permitting citizens to have access to information about the process that led up to the decision or action. n159 Governments usually claim the need to

protect personal privacy and national security as their 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 independence and the autonomy that societal actors (*329) maintain with respect to state actors."

n162 According to this point of view, pro-accountability initiatives based on civic engagement need to defend the autonomy of society. There is indeed a point at which individual citizens or civil society groups go so far into the state that they end up being consumed by the monster that 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 mistake. As Eberlei argues, "The circle of participating actors established must be gradually and systematically expanded, in order to broaden the scope of dialogue and make it largely inclusive," n173 Such broad-based participation is crucial for

three reasons. First, civic engagement for accountability is usually more effective precisely when government officials do not know what to expect from civil society. n174 When public officials and society actors form part of the same "epistemic community," officials can anticipate exactly when, where, and how they will be observed, judged, and held accountable. Some level of predictability is positive insofar as it allows for coherent 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 keeps government officials on their toes. Second, "well behaved" civil society groups are usually considered so because they "trust" government to do a good job. n177

Although some level of social trust in government is necessary for national cohesion, too much trust can be counterproductive. As Catalina Smulovitz has pointed out, 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 denunciation of non-obedience." n180 Third, pro-accountability initiatives that involve a wide range of interests and ideological positions are much more legitimate than those operated by a small, handpicked group of professionals. n181 Expanding the circle of participation is clearly a challenge, but it is the only way to achieve broad-based acceptance and ownership in such pro-accountability initiatives. We should be careful not to fall prey to depoliticized or neutral ideas of civil society that see "cooperative" or "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

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Failure to use reg neg results in a federalism crisis—REAL ID provesRyan 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 Monitor’s “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 of negotiated rulemaking to federalism bargaining may be best understood in relief against the failure of alternatives in federalism-sensitive [*57]

contexts. Particularly informative are the strikingly different state responses to the two approaches Congress has recently taken in tightening

national security through identifi-cation reform--one requiring regulations through negotiated rulemaking, and the other through traditional notice and comment. After the 9/11 terrorist attacks, Congress ordered the Department of Homeland Security (DHS) to establish rules regarding valid identification for federal purposes (such as boarding an aircraft or accessing federal

buildings). n291 Recognizing the implications for state-issued driver's licenses and ID cards, Congress required DHS to use ne-gotiated 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 top-

down 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 globally—solves human rights, free trade, war, and economic growthCalabresi 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 Society’s 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.

Federalism solves economic growthBruekner 05(Jan K. Bruekner is a Professor of Economics University of California, Irvine. He is a Member member of the Institute of Transportation Studies, Institute for Mathematical Behavioral Sciences, and a former editor of the Journal of Urban Economics. Bruekner, J. K. “Fiscal Federalism and Economic Growth,” CESifo Working Paper No. 1601, Novermber 2005. https://www.cesifo-group.de/portal/page/portal/96843357AA7E0D9FE04400144FAFBA7C//ghs-kw)

The analysis in this paper suggests that faster economic growth may constitute an additional benefit of fiscal

federalism beyond those already well recognized. This result, which matches the conjecture of Oates (1993) and the expectations of most empirical researchers who have studied the issue, arises from an unexpected source: a greater incentive to save when public-good levels are tailored under federalism

to suit the differing demands of young and old consumers. This effect grows out of a novel interaction between the rules of public-good provision which apply cross-sectionally at a given time and involve the young and old consumers of different generations, and the savings decision of a given generation, which is intertemporal in nature. This cross-sectional/intertemporal interaction

yields the link between federalism and economic growth. While it is encouraging that the paper’s results match recent empirical findings showing a positive growth impact from fiscal decentralization, additional theoretical work exploring other possible sources of such a link is clearly needed. The present results emerge from a model based on very minimal assumptions, but exploration of richer models may also be fruitful.

US economic growth solves war, collapse ensures instabilityNational Intelligence Council, ’12 (December, “Global Trends 2030: Alternative Worlds” http://www.dni.gov/files/documents/GlobalTrends_2030.pdf)Big Stakes for the International System The optimistic scenario of a reinvigorated US economy would increase the prospects that

the growing global and regional challenges would be addressed. A stronger US economy dependent on trade

in services and cutting-edge technologies would be a boost for the world economy, laying the basis for stronger multilateral cooperation. Washington would have a stronger interest in world trade, potentially

leading a process of World Trade Organization reform that streamlines new negotiations and strengthens the rules governing the

international trading system. The US would be in a better position to boost support for a more democratic Middle East and prevent the slide of failing states. The US could act as balancer ensuring regional stability, for example, in Asia where the rise of multiple powers—particularly India and China—could spark increased rivalries. However, a reinvigorated US would not necessarily be a panacea. Terrorism, 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 hegemons—China 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.

2NC Int Link

Reg negs are better and solves federalism—plan failsRyan 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 Monitor’s “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)

1. Negotiated Rulemaking Although the most conventional of the less familiar forms, "negotiated rulemaking" between federal

agencies and state stakeholders is a sparingly used tool that holds promise for facilitating sound administrative policymaking in disputed federalism contexts, such as those implicating environmental law, national security, and consumer safety. Under the Administrative Procedure Act, the traditional " notice and

comment" administrative rulemaking pro-cess allows for a limited degree of participation

by state stakeholders who comment on a federal agency's proposed rule. The agency publishes the

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 notice and comment, public participation is limited to criticism of well-formed rules in which the agency is already substantially invested. n260 By contrast, stakeholders in negotiated rulemaking collectively design a proposed rule that takes into account their respective interests and expertise from the beginning. n261 The concept, outline, and/or text of a rule is hammered out by an advisory committee of carefully balanced representation from the agency, the regulated public, community groups and NGOs, and state and local governments. n262 A professional intermediary leads the effort to ensure that all stakeholders are appropriately involved and to help interpret prob-lem-solving opportunities. n263 Any consensus reached by the group becomes the basis of the proposed rule, which is still subject to public comment through the normal notice-and-comment procedures. n264 If the group does not reach consensus, then the agency proceeds through the usual notice-and-comment process. n265 The negotiated rulemaking process, a tailored version of interest group bargaining within established legisla-tive constraints, can yield

important benefits. n266 The process is usually more subjectively satisfying [*53] for all stakeholders, including the government agency representatives. n267 More cooperative relationships are estab-lished between the regulated parties and the agencies, facilitating future implementation and enforcement of new rules. n268 Final regulations include fewer technical errors and are clearer to stakeholders, so that less time, money and effort is expended on enforcement. n269 Getting a proposed rule out for public comment takes more time under negotiated rulemaking than standard notice and

comment, but thereafter, negotiated rules receive fewer and more moderate public comment, and are less frequently challenged in court by regulated entities. n270 Ultimately, then, final regulations can be implemented more quickly following their debut in the Federal Register, and with greater compliance from stakeholders. n271 The process also confers valuable learning benefits on participants, who come to better understand the concerns of other stakeholders, grow invested in the consensus they help create, and ulti-mately campaign for the success of the regulations within their own constituencies. n272 Negotiated rulemaking offers additional

procedural 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 state-federal 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

consensus-building 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 federalism—traditional rulemaking failsRyan 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 Monitor’s “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 in which the normative leverage of federalism values heavily influences the ex-change offers the most reliable interpretive tools, smoothing out leverage imbalances and focusing bargainers' in-terlinking interests. n619 Negotiations in which participants are motivated by shared regard for checks, localism, accountability, and synergy naturally foster constitutional process and hedge against non-

consensual dealings. All federalism bargaining trades on the normative values of federalism to 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 the massive number of municipalities involved, the fact that the rule faced legal challenge from only a handful of Texas municipalities testifies to the strength of the consensus through which it was created. By contrast, the iterative exchange within standard notice-and-comment rulemaking --also an

example of feder-alism bargaining-- can frustrate state participation by denying participants

meaningful opportunities for consulta-tion, collaborative problem-solving, and real-time

accountability The contrast between notice-and-comment and negotiated rulemaking,

exemplified by the two phases of REAL ID rulemaking, demonstrates the difference be-tween more and less

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 in contexts of overlap least suited for negotiated rulemaking include those in which the need for immediate policy overcomes the need for broad participation--but even these leave open possibilities for incremental rulemaking, in which the initial federal rule includes mechanisms for periodic reevaluation with local input.

2NC Growth Impact

US economic growth solves war, collapse ensures instability

National Intelligence Council, ’12 (December, “Global Trends 2030: Alternative Worlds” http://www.dni.gov/files/documents/GlobalTrends_2030.pdf)Big Stakes for the International System The optimistic scenario of a reinvigorated US economy would increase the prospects that

the growing global and regional challenges would be addressed. A stronger US economy dependent on trade

in services and cutting-edge technologies would be a boost for the world economy, laying the basis for stronger multilateral cooperation. Washington would have a stronger interest in world trade, potentially

leading a process of World Trade Organization reform that streamlines new negotiations and strengthens the rules governing the

international trading system. The US would be in a better position to boost support for a more democratic Middle East and prevent the slide of failing states. The US could act as balancer ensuring regional stability, for example, in Asia where the rise of multiple powers—particularly India and China—could spark increased rivalries. However, a reinvigorated US would not necessarily be a panacea. Terrorism, 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 hegemons—China 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.

2NC Econ Impact

Econ decline causes global catastrophe and nuclear warHarris and Burrows, 9 – *counselor in the National Intelligence Council, the principal drafter of Global Trends 2025, **member of the NIC’s Long Range Analysis Unit “Revisiting the Future: Geopolitical Effects of the Financial Crisis”, Washington Quarterly, http://www.twq.com/09april/docs/09apr_burrows.pdf)Increased Potential for Global Conflict Of course, the report encompasses more than economics and indeed believes the future is likely to be the result of a number of intersecting and interlocking forces. With so many possible permutations of outcomes, each with ample opportunity for unintended consequences, there is a growing

sense of insecurity. Even so, history may be more instructive than ever. While we continue to believe that the Great Depression is not likely to be repeated,

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 potential for greater conflict could grow would seem to be

even 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. Terrorism’s 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 world’s 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 presence would almost certainly be the Middle East. Although Iran’s acquisition of nuclear weapons is not inevitable, worries about a nuclear-armed Iran

could lead states in the region to develop new security arrangements with external powers, acquire additional weapons, and consider pursuing their own nuclear ambitions. It is not clear that the type of stable deterrent relationship that existed between the great powers for most of the Cold 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 China’s and India’s 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.

Economic decline causes global war Royal 10 (Jedediah, Director of Cooperative Threat Reduction – U.S. Department of Defense, “Economic Integration, Economic Signaling and the Problem of Economic Crises”, Economics of War and Peace: Economic, Legal and Political Perspectives, Ed. Goldsmith and Brauer, p. 213-215)Less intuitive is how periods of economic decline ma y increase the likelihood of external conflict . Political science literature has contributed a moderate degree of attention to the impact of economic decline and the security and defence behaviour of interdependent states. Research in this vein has been considered at systemic, dyadic and national levels. Several notable contributions follow.

First, on the systemic level, Pollins (2008) advances Modelski and Thompson's (1996) work on leadership cycle theory, finding that rhythms 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 . C rises 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 s trong correlat ion 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 States, 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.

2NC Econ/Nationalism Impact

Econ collapse leads to worst forms of nationalism – escalates to nuclear useMerlini 11 – Senior Fellow @ Brookings, nonresident senior fellow at the Center on the United States and Europe and chairman of the Board of Trustees of the Italian Institute for International Affairs (IAI) in Rome (Cesare, “A Post-Secular World?”) Survival, 53.2

Two neatly opposed scenarios for the future of the world order illustrate the range of possibilities, albeit at the risk of oversimplification. The first scenario entails the premature crumbling of the post-Westphalian system. One or more of the acute tensions apparent today evolves into

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 unlimited exercise of national sovereignty, exclusive self-interest and rejection of outside interference would likely be amplified, emptying, perhaps entirely, the half-full glass of multilateralism, including the UN and the European Union. Many of the more likely conflicts, such as between Israel and Iran or India and

Pakistan, have potential religious dimensions. Short of war, tensions such as those related to immigration might become unbearable. Familiar issues of creed and identity could be exacerbated . One way or another,

the secular rational approach would be sidestepped by a return to theocratic absolutes, competing or converging with secular absolutes such as unbridled nationalism.

2NC Econ/International Institutions Impact

Breaks down international institutionsJudis 11 – MA in Philosophy @ Cal, author of best-selling economics text according to The Economist (John) The New Republic, http://www.npr.org/2011/08/08/139080654/new-republic-a-lesson-from-the-great-depression

The first consideration has to do with the sheer gravity of the situation. What is at stake goes beyond an abstract rate of unemployment, or the prospect of a Republican White House in 2012, or even the misery of the long-term unemployed. From the beginning, this recession has been

global. Germany has to take leadership in Europe, but the United States is still the world's largest economy, the principal source of consumer and investment demand, and the banking capital of the world. If the United States fails to revive its economy, and to lead in the restructuring of the international

economy, then it's unlikely that other economies in the West will pull themselves out of the slump. And as the experience of the 1930s testified, a prolonged global downturn can have profound political and geopolitical repercussions. In the U.S. and Europe, the downturn has already

inspired unsavory, right-wing populist movements. It could also bring about trade wars and intense

competition over natural resources, and the eventual breakdown of important

institutions like European Union and the World Trade Organization. Even a shooting war is possible. So while the Obama administration would face a severe challenge in trying to win support for a boost in government spending, failing to do so would be far more serious than the ruckus that Tea Party and Republican opposition could create over the next year.

2NC Heg Impact

Fast growth promotes US leadership and solves great power warKhalilzad 11 – PhD, Former Professor of Political Science @ Columbia, Former ambassador to Iraq and Afghanistan(Zalmay Khalilzad was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George W. Bush and the director of policy planning at the Defense Department from 1990 to 1992. "The Economy and National Security" Feb 8 http://www.nationalreview.com/articles/259024/economy-and-national-security-zalmay-khalilzad)//BBToday, economic and fiscal trends pose the most severe long-term threat to the United States’ position as global leader. While the United States suffers from fiscal imbalances and low economic growth , the economies of rival powers are developing

rapidly. The continuation of these two trends could lead to a shift from American primacy toward a multi-polar global

system, leading in turn to increased geopolitical rivalry and even war among the great powers . The current recession is the result of a deep financial crisis, not a

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. Without faster economic growth and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If

interest rates were to rise significantly, annual interest payments — which already are larger than the defense budget — would crowd out other spending 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

of the United States internationally. Such scenarios would reshape the international order. It was the economic devastation of Britain and France during World War II, as well as the rise of other powers,

that led both countries to relinquish their empires. 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, the United States would be compelled to retrench, reducing its military spending and shedding international commitments. We face this domestic challenge while other major powers are experiencing rapid economic growth. 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. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when a new international order will emerge. The closing of the gap between the United States and its rivals could intensify geopolitical competition among major powers, increase incentives for local powers to play major powers against one another, and undercut our will to preclude or respond to international crises because of the higher risk of escalation . The stakes are high. In modern history, the longest period of peace among the great powers has been the era of

U.S. leadership . By contrast, multi-polar systems have been unstable, with their competitive dynamics resulting in frequent crises and major wars among

the great powers. Failures of multi-polar international systems produced both world wars. American retrenchment could have devastating consequences .

Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races, miscalculation, or other crises spiraling into all-out conflict. Alternatively, in seeking to accommodate the stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way, hostile states would be emboldened to make aggressive moves in their regions.

Slow growth leads to hegemonic wars – relative gap is keyGoldstein 7 - Professor of Global Politics and International Relations @ University of Pennsylvania, (Avery Goldstein, “Power transitions, institutions, and China's rise in East Asia: Theoretical expectations and evidence,” Journal of Strategic Studies, Volume30, Issue 4 & 5 August, EBSCO)Two closely related, though distinct, theoretical arguments focus explicitly on the consequences for international politics of a shift in power

between a dominant state and a rising power. In War and Change in World Politics, Robert Gilpin suggested that   peace prevails

when a dominant state’s capabilities enable it to ‘govern’ an international order that it has shaped. Over time, however, as economic and technological   diffusion proceeds   during eras of peace and development, other states are empowered .   Moreover, the burdens of international governance drain and distract the reigning hegemon,

and challengers   eventually emerge   who seek to rewrite the rules of governance.   As the power advantage of the   erstwhile   hegemon ebbs, it may become desperate enough to resort to   theultima ratio of international politics, force, to forestall the   increasingly urgent  demands of a rising challenger. Or   as the power of the challenger rises, it may be tempted to press its case with   threats to use  force.   It is the rise and fall of the great powers that creates   the circumstances under

which major wars, what Gilpin labels ‘ hegemonic wars’ ,   break out.13 Gilpin’s 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 Gilpin’s theory are China’s 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 Gilpin’s 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 the   power gap narrows, the 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 Kugler’s power-transition 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 theory’s relevance to interpreting China’s 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 China’s 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 China’s growth would give it the world’s 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 China’s manned space program.18 Moreover, because   a   dominant state may react   to the prospect of a crossover and   believe that it is wiser to   embrace the logic of preventive war   and act early   to delay a transition   while the task is more manageable ,

Organski and Kugler’s power-transition theory   also provides grounds for concern about the period prior to the possible crossover . 19

Legitimacy/Conflict NB

1NC Shell

Traditional agency rulemaking lacks legitimacy—breeds 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//ghs-kw)

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 of regulation have, as it were, the burden both of production and of proof." A third source of American skepticism of federal bureaucracy

comes from our belief in subsidiarity, or in our constitutional terminology, federalism . The French view that

every classroom in the country should have the same teaching schedule has historically not set well with Americans. Some areas are

constitutionally left to the states to regulate, and thus federal bureaucracy is structurally limited as to its range of activity. Some commentators (usually academics) have 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 institutional form of the New Deal-Great Society constitutional order, namely, bureaucracy. 4 2 Thus they use techniques such as "contracting out,"43 "public-private partnership,"" and "reflexive" or "individuated" regulation45 all of which attenuate the federal bureaucracy's involvement in the regulatory process. While democratic deficits have been noted in other jurisdictions (including the EU Commission),46 the deficit has been overcome by appeal to a technocratic paradigm, i.e., the

experts know best. Not so in the US, where American distrust of bureaucracy creates what is the central goal of American administrative law: a "normative yearning," in Peter Lindseth's words "for democratic legitimacy."47 Put simply, administrative law and the actions of administrative

agencies are not instinctively legitimate -as the administrators do not obviously reflect the will of the people and the

administrators in the modem administrative state are given significant discretion. This raises the question of whether the nature of administrative decision-making is not consonant with a "rule of law" regime.48 As I suggested above, this is not a problem in France and in numerous other legal jurisdictions. This kind of difference in political and social philosophy challenges the view that administrative law worldwide has a common evolving structure, a view reflected perhaps in the efforts of academics at NYU law school to discern (I would say create) a "single global administrative space" in international law. 49

Reg neg is more legitimate and reduces conflict

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)

1. Negotiated Rulemaking Reduces Conflict a. Satisfaction and Conflict If conflict breeds dissatisfaction, the results of Phase II are consistent with the contention that reg neg reduces conflict. Participants in regulatory negotiation report higher satisfaction than their conventional rulemaking counterparts; in addition, the reg neg participants' ratings of the efficiency, cost effectiveness, and the overall process are significantly higher than ratings for conventional rules. In our view, these

data suggest that negotiated rulemaking confers a legitimacy benefit. The higher satisfaction result obtains even

when a variety of substance and process variables are held constant. That is, participants in negotiated rulemakings

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. If conflict

breeds disagreement, these results continue to accord with the hypothesis that negotiation reduces conflict . The reported

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 learn more in negotiated processes and . . . negotiated processes are more horizontal in their sources of information." Nearly 20% of conventional rule participants reported learning nothing new, but not a single reg neg participant offered that response.

Negotiated rulemaking participants responded more often that they gained new technical information, better knowledge 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, learning can reduce

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 may have inherent value, and in this dimension, negotiated rulemaking is clearly superior to conventional rulemaking. c. Consensus Decision Rules and Conflict Consensus decision rules used in reg neg are thought to en-gender two different effects: while they raise conflict and cost during the decision-making process itself, 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. 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," 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. "What EPA wanted" does not de-scribe 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. Moreover, the standard deviation of judgments was smaller under reg neg. These results support

the theory that relatively more consensual decision rules lead to greater satisfaction with

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."

That’s key to Maintain Peace—lack of legitimacy Creates ChaosDugan, 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)

Some form of 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 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 two interviewees

agreed on the essence of their answer: procedures were being set up for the indictment and the trial in conformity to international standards, and these procedures, carefully followed, will confer legitimacy to

the process, a conviction, and a penalty. Time will tell if they are being accurate in their predictions; what is

interesting to note is the degree to which legitimacy arose as an issue even in the midst of news coverage of the arrest itself.

2NC Int Link

Reg neg solves controversy and increases legitimacyHarter 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)

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 resolutionDugan, 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 defined as legitimate because: it derives from a voluntary agreement of the interested parties; it is imposed by an authority which is held to be legitimate and therefore meets with compliance.(8) In communities or

societies that have been torn by deep divisions and destructive conflict, the first three sources may be limited in their capacity to offer a base for legitimacy to any party to the conflict.(9) While one should not fly in the face of local norms as suggested by tradition, affect and faith, it may help to build legitimacy if one utilizes international legal norms as a primary base for generating legitimacy. Weber himself contends that currently the most common form

of legitimacy is the "belief in legality," (10). Focusing on internationally accepted procedures and with the endorsement of parties credible to the constituencies, third parties can assist parties to gain sufficient legitimacy to function as negotiators and sufficient skills to be effective as negotiators. Utilizing this base, any agreement reached should have sufficient legitimacy with the citizenry that they are willing to support it. Over time, the parties' adherence to the agreement will lend additional credibility to themselves and to the process.

Reg neg solves controversy—no link to ptixHarter 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)

Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies have used reg neg to develop some of their most contentious rules. For example, the Federal Aviation Administration and the National Park Service used a variant of the process to write the regulations and policies governing sightseeing flights over national parks; the issue had been sufficiently controversial that the President had to intervene and direct the two agencies to develop rules “for the management of sightseeing aircraft in the National Parks where it is deemed necessary to reduce or prevent the adverse effects of such aircraft.”22 The Department of Transportation used it to write a regulation governing the delivery of propane and other compressed gases when the regulation became ensnared in litigation and Congressional 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 The Forest Service has just published a notice of intent to establish a reg neg committee to develop policies governing the use of fixed anchors for rock climbing in designated wilderness areas administered by

the Forest Service.25 This issue has become extremely controversial.26 Negotiated rulemaking has proven enormously successful in developing agreements in highly polarized situations and has enabled the parties to address the best, most effective or efficient way of solving a regulatory controversy. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have eluded closure by means of traditional rulemaking procedures

Reg negs are better—reduced costs and increased satisfactionLangbein 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 rule making. The strong support comes in the form of positive assessments provided by participants in negotiated rule making compared to assessments offered by those involved in conventional forms of regulation development. There is no evidence that negotiated rules comprise an abrogation of agency authority, and negotiated rules appear no more (or less) subject to litigation than conventional rules. It is also true that

negotiated rule making at the EPA is used largely to develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than rules that set substantive standards. However, participants' assessments of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Participants' assessments are also more positive when the issues to be decided are

relatively less complex. But even when these and other variables are controlled, reg neg participants' overall 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 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 with a law or regulation and support for policy choice are more likely to be forthcoming not only when it is economically rational but also when the process by which the decision is made is viewed as fair (Tyler 1990; Kunreuther et al. 1993; Frey and Oberholzer-Gee 1996). While we did not ask respondents explicitly to rate the fairness of the rule-making process in which

they participated, evidence 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 neg appears more likely than conventional rule making to leave participants with a warm glow about the decision-making process. While the regression results show that the costs and benefits of the rule being promulgated figure prominently into the

respondents' overall assessment of the final rule, process matters too. Participants care not only about how rules and policies affect them economically, they also care about how the authorities who make and implement rules and policies treat them (and others). In fact, one reg neg respondent, the owner of a small shop that 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 costs are different for 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 the agency probably knows less about each group's costs and benefits than the group knows about its own costs and benefits, the rule that emerges from direct negotiation should be a more accurate reflection of net benefits than one that is written by the agency (even though the agency tries to be responsive to the affected

parties). In effect, 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.

Negotiated rules increase legitimacy and ensures agency solvencySelmi 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.)//kyIn 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 virtually every important qualitative dimension, all participants in this

study-whether business, environmental, or government- reacted more favorably to their experience with 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 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.' 4 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,'5 is no small accomplishment and we argue that, in any event, it is more important than reducing transaction costs.

Reg Neg reduces conflict and increases satisfactionFreeman 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/)

If conflict breeds dissatisfaction, the results of Phase II are consistent with the contention that reg neg reduces conflict. Participants (*110) in regulatory negotiation report higher satisfaction than their conventional rulemaking counterparts; n243 in addition, the reg neg participants' ratings of the efficiency, cost effectiveness, and the overall process are significantly higher than ratings for conventional rules. n244 In our view, these data suggest that negotiated rulemaking confers a legitimacy benefit. The higher

satisfaction result obtains even when a variety of substance and process variables are held constant. That is, participants in negotiated rulemakings 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 independently of their affiliation. n245 If conflict breeds disagreement, these results continue to accord with the hypothesis that negotiation reduces conflict. The reported 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. n246 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. 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 legitimateFreeman 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

counterparts, many of the reasons for that satisfaction remain unclear. The 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 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 results show that, overall, participants prefer reg neg to conventional rulemaking partly because they get a better rule out of the process, and partly because some aspects of the process, but not all, work well—that is, a combination of substance and process variables.342 Three substantive variables exerted a positive effect on satisfaction ratings, when other

variables were held constant. When respondents rate either the net benefits of the rule to their organization or the “economic efficiency” of the rule to society higher, their overall evaluation of the rule-writing experience goes up.343 In addition, when one of the primary issues to be decided concerned the standard (level, measurement, or timing), participant evaluations of the process are consistently and significantly higher (by 1 point

on an 11-point scale) than was detected when the primary issue concerns compliance or implementation.344 Two process variables

exerted an impact on overall evaluations, when the other variables were held constant. The perceived complexity or “messiness” of the rule contributed to lower evaluations,345 while clarity (participant understanding of the issues)

contributed to higher satisfaction.346 Recall that while complexity measures the number of issue/sides identified per participant in rulemaking, clarity measures the number of different issues or sides that respondents could identify. Specifically, each additional side or issue per respondent (more messiness) reduces the overall evaluation by 2 points on an 11 point scale, while the ability to see more different issues and sides had a consistently positive, but not particularly large, effect.347 However, although perceived complexity contributes to lower evaluations, and even though reg negs are perceived

as entailing greater complexity, reg neg participants continue to give higher ratings to the overall process, even after numerous statistical controls, including a control for complexity.348 We do not claim that acceptability to participants renders either the reg neg process or the outcomes of it, in some objective sense, fully or wholly legitimate. It is possible that some form, or forms, of cognitive consistency processes are really at play, and that they explain why participants evaluate reg neg so positively. Were this the case,

the legitimacy benefit might be limited to those closely connected to the particular reg neg process itself. Any claim to a legitimacy benefit under these conditions would rely on a less expansive understanding of legitimacy than we frequently encounter in administrative law and political theory.349 Certainly a process cannot be called legitimate if outsiders think insiders achieve gains at their expense—if

they capture the agency, for example—or if the results favor only a minority of interests. However, at a minimum, reg neg

should fare no worse when assessed on legitimacy grounds than conventional rulemaking,

at least according to positive political theory . That is, if politicians get re-elected by faithfully representing “outsiders” and unorganized interests, and if agencies garner support by being generally accountable within the bounds set by their politically elected principals, then neither rulemaking process should be more subject to capture than the other.350 Still, we recognize the possibility that outsiders to any process might view as illegitimate an outcome that insiders find satisfying. However, no empirical study we know of has tried to measure this potential insider/outsider split over legitimacy in the context of either conventional rulemaking or

regulatory negotiation. 351 It 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 note that non-participants in the conventional rulemaking process may choose not to participate out of satisfaction that their concerns have already been considered. So too with non-participants in the reg-negs, whose interests may be represented by other parties. Although Kerwin and Langbein did not directly investigate the potential insider/outsider split over legitimacy, no data emerged that

might fuel outsider suspicion about reg neg versus conventional rulemaking. For example, they found no evidence of skewed outcomes or results that seemed, on their face, to undermine the legitimacy of the reg neg process. Were the reg neg process exclusive to a few repeat players and disproportionately beneficial to them, we might worry more about the possibility that insider satisfaction could in fact undermine legitimacy rather than further it. However, the data suggest that the reg neg process is broadly inclusive—more so, specifically, than conventional rulemaking. There is no reason to believe that exclusive access and increased influence were the reasons for higher satisfaction rates, which might lead us to infer that “insider” legitimacy was procured at the expense of “outsider” legitima

Reg negs solve legitimacyBreger 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//ghs-kw)

The Participatory Project was an effort to increase public participation in the administrative rulemaking process.'47 It was believed that such participation would increase the legitimacy of the rulemaking process by serving as a functional substitute for elected legislatures-thus solving the "democratic deficit" of administrative law.'48 And as one proponent of interest-group participation

has concluded, "[a]gency decisions made after adequate consideration of all affected

interests.. .have... legitimacy based on the same principle as legislation ."' 49 This approach "drew force

from a general social trend that came to view agencies less as apolitical 'experts' administering a strictly rational process, and more as political bodies making choices among alternatives in response to social needs and political inputs."'50 The revolution in participation was not a single,

coherent movement. It included many disparate initiatives with widely variable effects. However, the driving force of the revolution was a lack of faith in the ability of established governmental institutions to understand the popular will and respond appropriately; again, a crisis of legitimacy . In the

1960s and 1970s, the American people experienced a transformative struggle for civil rights, unsatisfactorily explained assassinations of revered public figures, an unpopular war, political scandals, and a growing disaffection with government, which appeared unable to accomplish ambitious social objectives. 5' The motives of those seeking to expand public participation ranged from a near-paranoid mistrust of the government's own motives, to a populist belief that direct input from citizens would improve the quality of the government's decisions. Also prominent was a faith in participation as a means of empowering and involving the disenfranchised and unrepresented which "to its defenders" reflected "a quest to

expand the meaning and ractice of freedom." 15 2 Participation in the rulemaking process is guaranteed by the APA's notice-and-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 its heyday, the participation project led to a

lowering of barriers of access to the courts' 57 and to intervention in agency proceedings . 58 For a time, courts

required various 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

Impacts: Rule of Law

Rule of law prevents extinction

Institute for Energy and Environmental Research 3 (“Rule of Power or Rule of Law?”, http://www.lcnp.org/pubs/exesummary.pdf)The evolution of international law since World War II is largely a response to the demands of states and individuals living within a global

society with a deeply integrated world economy. In this global society, the repercussions of the actions of states, non-state 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 solvency—reg neg solves

NPR 1 (National Partnership for Reinventing Government is a gov’t 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 traditional process rarely 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

use of the information it has obtained through the course of the negotiations. BENEFITS OF NEGOTIATED RULEMAKING. 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 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

to implement and the probability of subsequent litigation is diminished. Negotiations that do not result in consensus on a draft rule can still be very useful to the agency by: --narrowing the issues in dispute, --identifying

information necessary to resolve issues, --ranking priorities, --finding potentially acceptable solutions, and --improving the agency's understanding of the real-world impact of alternative regulatory options. Negotiation sessions provide all participants with an opportunity to have their assumptions and data questioned and tested by parties with other perspectives. The dynamic nature of negotiating forces each party to participate in crafting solutions to issues that are on the table for resolution. In short, the process fosters creative activity by a broad spectrum of interested persons, targeted at producing better, more acceptable rules. In regulatory programs with a history of adversarial rulemaking, it is not unusual for parties to negotiate a settlement under the supervision of a court after the rule has been published. Particularly in such programs, negotiation of a rule prior to the agency's publication of a proposed rule can save the agency and other parties both time and resources. By avoiding litigation, programs become effective sooner and regulated businesses can plan capital expenditures or production changes earlier than if they faced years of litigation and uncertainty about the outcome. Moreover, at EPA (which is the most frequent user of the technique) regulatory negotiations, on average, take less time than other rulemakings.(Endnote 8) Time savings can translate into both monetary savings for industry and greater satisfaction all around. For example, because of a reg neg, EPA's wood-stove emission standards went into effect as much as two years earlier than expected. The participant from the Natural Resources Defense Council was quoted as expressing satisfaction on behalf of environmental interests that over 1.5 million wood-stoves sold during the 2-year period would be covered by the new regulation. Manufacturers were spared 2 years of uncertainty and could begin re-tooling for the new standards.(Endnote 9) There can

also be important intangible benefits. Even in programs with no history of adversarial rulemaking, the agency may obtain a better factual basis for the regulation and a better understanding of the practical consequences of different regulatory choices--whether or not consensus is attained. Regulatory negotiations can help enfranchise parties with important interests 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 economy—decreases competitivenessPost 11 (Ashley Post joined InsideCounsel as managing editor in 2010. In her position, she manages the magazine’s editorial content, tracks litigation trends, interacts with top lawyers and consultants in the legal community, and aims to boost InsideCounsel’s 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 lawsuits—many of them frivolous—flooding 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 litigation’s 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. “America’s litigious nature

has caused serious damage to our country’s productivity and innovation. … The root cause is that we have created incentives to sue—and to invest in litigation—instead of establishing disincentives for invoking judicial process unless absolutely necessary. Other countries discourage litigation; we nuture it,” Beisner said at the hearing. Many litigation experts resoundingly agree with Beisner’s stance on the necessity of tort reform to ameliorate the country’s

economy. “The entrepreneurial system that we’ve 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 result is clogged courts and corporate funds that finance defense costs instead of economic investment. Small businesses and startups with less than $20 million in revenue suffer the most because they pay a higher percentage of their revenues toward tort costs than larger companies do, and therefore they become less able to invest in research and development, create new jobs, and give raises and benefits to employees. One proposed solution to frivolous litigation is the Lawsuit Abuse Reduction Act (LARA), introduced in March in the House as H.R. 966 and Senate as S. 533 by House Judiciary Committee Chairman Lamar Smith, R-Tex., and Senate Judiciary Committee Ranking Member Chuck Grassley, R-Iowa, respectively. The bill would revise and strengthen portions of Rule 11 of the Federal Rules of Civil Procedure, which provides for sanctions against parties that file unwarranted or harassing claims. Proponents say LARA would increase plaintiffs’ accountability for meritless lawsuits and deter future frivolous claims. However, the bill faces some opposition and obstacles to becoming law.

Econ decline causes global catastrophe and nuclear warHarris and Burrows, 9 – *counselor in the National Intelligence Council, the principal drafter of Global Trends 2025, **member of the NIC’s Long Range Analysis Unit “Revisiting the Future: Geopolitical Effects of the Financial Crisis”, Washington Quarterly, http://www.twq.com/09april/docs/09apr_burrows.pdf)Increased Potential for Global Conflict Of course, the report encompasses more than economics and indeed believes the future is likely to be the result of a number of intersecting and interlocking forces. With so many possible permutations of outcomes, each with ample opportunity for unintended consequences, there is a growing

sense of insecurity. Even so, history may be more instructive than ever. While we continue to believe that the Great Depression is not likely to be repeated,

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 potential for greater conflict could grow would seem to be

even 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. Terrorism’s 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 world’s 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 presence would almost certainly be the Middle East. Although Iran’s acquisition of nuclear weapons is not inevitable, worries about a nuclear-armed Iran

could lead states in the region to develop new security arrangements with external powers, acquire additional weapons, and consider pursuing their own nuclear ambitions. It is not clear that the type of stable deterrent relationship that existed between the great powers for most of the Cold 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 China’s and India’s 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.

2NC Litigation Overview

Extend 1NC NPR – the plan will be overloaded by litigation and compliance costs in an attempt by angry stakeholders to prevent the plan from being implemented –

Turns and outweighs the case

a. Causes delays with implementation due to court action, which durable fiat doesn’t solve

b. Weighs down the economy and ensures the aff cant access their advantages – the government will be drawn into massive litigation pulling essential government funding away from the plan’s implementation

c. Turns U.S. Manufacturing and FDI – companies will head elsewhere rather than deal with extraneous regulations and litigation costs

Chavern 13(David Chavern Chief Operating Officer U.S. Chamber of Commerce, “Manufacturing: Driving Growth at Home and Competition Abroad” pg online @ https://www.uschamber.com/speech/%E2%80%9Cmanufacturing-driving-growth-home-and-competition-abroad%E2%80%9D-remarks-david-chavern-chief //um-ef)A strong business environment doesn’t burden manufacturers with overregulation and a broken tort system. A recent study commissioned by the Manufacturers Alliance for Productivity and

Innovation found that, over the next ten years, regulations will suppress output by 6% and drag

down U.S. competitiveness. And that study doesn’t even account for the regulatory tsunamis of the health care law and Dodd-Frank. Those laws alone could layer hundreds, if not thousands of new

regulations on business over the next two years. We need a rational regulatory regime that

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)2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as 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

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

systems that produce more decentralized and flexible decisionmaking. 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

And, that collapses the economy and competitiveness

Franks 13(Trent Franks, a Representative in Congress from The State Of Arizona, And Chairman, Subcommittee On The Constitution And Civil Justice, “Excessive Litigation's Impact On America's Global Competitiveness,” pg online @ http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79725/html/CHRG-113hhrg79725.htm //um-ef) During this Congress, this Subcommittee will examine various proposals to reform our Nation's civil

justice system. One of the animating factors behind all of these proposals will be how excessive

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.

Collapses competitiveness and FDI

Hinton 13(Paul J. Hinton, Nera Economic Consulting, “Excessive Litigation's Impact On America's Global Competitiveness,” pg online @ http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79725/html/CHRG-113hhrg79725.htm //um-ef)

U.S. Litigation, whether arising in tort claims or otherwise, affects the ability of American

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.

2NC Int Lin

Plan results in litigation and opposition—CP solvesSelmi 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.)//kyB. Expanding the Universe of Outcomes 1. Shaping Options That Respond to Interests The process of notice and comment rulemaking erects

disincentives to the creation of innovative solutions during the rulemaking process. (220) For example, 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 co-chairs EPA Region 2’s 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 processes are those designed to reach a mutually acceptable decision through agency/stakeholder consensus that the parties agree to implement.162 The agreement may or may not be legally binding but, regardless, is likely to create a sense of ownership among the stakeholders that encourages widespread support for implementation.163 The classic example of an agreement-seeking collaborative process is a negotiated rulemaking.164 As noted earlier, in light of the

potential deluge of rulemaking165 that may flow from climate change legislation, negotiated rulemaking is an excellent

option for collaborative decision-making. However, agreement-seeking collaborative processes arise in quite a wide range of contexts, including settlement agreements, statements of principles, consensus permits, among others, as illustrated by the examples below. 1. Multi-Stakeholder Motor Vehicle Agreement On May 19, 2009, President

Obama 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 policy—greenhouse 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 EPA’s decision in 2008 to deny California a waiver from preemption under the

Clean Air Act’s motor vehicle provisions168 and DOT’s delayed promulgation of fuel economy standards under the Energy Policy and

Conservation Act.169 As a result of the collaborative effort that led to the White House

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, the design of each collaborative effort must be tailored to the specifics of the situation and needs of the parties.

Collaboration solves - increases innovation while preventing litigation and rollback through litigationSiegel 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 co-chairs EPA Region 2’s 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

1. Defining Collaborative Decision Making There are many forms of collaborative processes. The Association for Conflict 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, public-

private 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 government’s 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 it can create a dialogue based on hope16 that can transcend the despair that leads to inaction.17 By promoting ownership and empowerment among the stakeholders, collaborative decision-making can increase the

likelihood of prompt action while reducing the likelihood of litigation .18 While intensive because it

often requires investment of more time upfront, it can ultimately produce results faster and with fewer resources than traditional processes.19 As a result of up-front efforts that engender buy-in from multiple stakeholders, decisions made through collaborative processes are more lasting and more likely to be implemented than decisions made via traditional processes.20 Collaborative decision-making does not mean that the government cedes its authority to make decisions. It retains ultimate authority to impose its own solutions using traditional processes. In fact,

collaborative decisions may actually thrive when the government’s 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 is an important option to be considered, particularly for intractable problems like climate change, where government needs to take advantage of a wide range of opportunities for making progress. The following section discusses why collaborative decision making is particularly well suited for addressing climate change.

2NC Growth Impact

US economic growth solves war, collapse ensures instabilityNational Intelligence Council, ’12 (December, “Global Trends 2030: Alternative Worlds” http://www.dni.gov/files/documents/GlobalTrends_2030.pdf)Big Stakes for the International System The optimistic scenario of a reinvigorated US economy would increase the prospects that

the growing global and regional challenges would be addressed. A stronger US economy dependent on trade

in services and cutting-edge technologies would be a boost for the world economy, laying the basis for stronger multilateral cooperation. Washington would have a stronger interest in world trade, potentially

leading a process of World Trade Organization reform that streamlines new negotiations and strengthens the rules governing the

international trading system. The US would be in a better position to boost support for a more democratic Middle East and prevent the slide of failing states. The US could act as balancer ensuring regional stability, for example, in Asia where the rise of multiple powers—particularly India and China—could spark increased rivalries. However, a reinvigorated US would not necessarily be a panacea. Terrorism, 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 hegemons—China 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.

2NC Econ Impact

Economic decline causes global war Royal 10 (Jedediah, Director of Cooperative Threat Reduction – U.S. Department of Defense, “Economic Integration, Economic Signaling and the Problem of Economic Crises”, Economics of War and Peace: Economic, Legal and Political Perspectives, Ed. Goldsmith and Brauer, p. 213-215)Less intuitive is how periods of economic decline ma y increase the likelihood of external conflict . Political science literature has contributed a moderate degree of attention to the impact of economic decline and the security and defence behaviour of interdependent states. Research in this vein has been considered at systemic, dyadic and national levels. Several notable contributions follow.

First, on the systemic level, Pollins (2008) advances Modelski and Thompson's (1996) work on leadership cycle theory, finding that rhythms 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 . C rises 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 s trong correlat ion 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 States, 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.

2NC Econ/Nationalism Impact

Econ collapse leads to worst forms of nationalism – escalates to nuclear useMerlini 11 – Senior Fellow @ Brookings, nonresident senior fellow at the Center on the United States and Europe and chairman of the Board of Trustees of the Italian Institute for International Affairs (IAI) in Rome (Cesare, “A Post-Secular World?”) Survival, 53.2

Two neatly opposed scenarios for the future of the world order illustrate the range of possibilities, albeit at the risk of oversimplification. The first scenario entails the premature crumbling of the post-Westphalian system. One or more of the acute tensions apparent today evolves into

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 unlimited exercise of national sovereignty, exclusive self-interest and rejection of outside interference would likely be amplified, emptying, perhaps entirely, the half-full glass of multilateralism, including the UN and the European Union. Many of the more likely conflicts, such as between Israel and Iran or India and

Pakistan, have potential religious dimensions. Short of war, tensions such as those related to immigration might become unbearable. Familiar issues of creed and identity could be exacerbated . One way or another,

the secular rational approach would be sidestepped by a return to theocratic absolutes, competing or converging with secular absolutes such as unbridled nationalism.

2NC Econ/International Institutions Impact

Breaks down international institutionsJudis 11 – MA in Philosophy @ Cal, author of best-selling economics text according to The Economist (John) The New Republic, http://www.npr.org/2011/08/08/139080654/new-republic-a-lesson-from-the-great-depression

The first consideration has to do with the sheer gravity of the situation. What is at stake goes beyond an abstract rate of unemployment, or the prospect of a Republican White House in 2012, or even the misery of the long-term unemployed. From the beginning, this recession has been

global. Germany has to take leadership in Europe, but the United States is still the world's largest economy, the principal source of consumer and investment demand, and the banking capital of the world. If the United States fails to revive its economy, and to lead in the restructuring of the international

economy, then it's unlikely that other economies in the West will pull themselves out of the slump. And as the experience of the 1930s testified, a prolonged global downturn can have profound political and geopolitical repercussions. In the U.S. and Europe, the downturn has already

inspired unsavory, right-wing populist movements. It could also bring about trade wars and intense

competition over natural resources, and the eventual breakdown of important

institutions like European Union and the World Trade Organization. Even a shooting war is possible. So while the Obama administration would face a severe challenge in trying to win support for a boost in government spending, failing to do so would be far more serious than the ruckus that Tea Party and Republican opposition could create over the next year.

2NC Heg Impact

Fast growth promotes US leadership and solves great power warKhalilzad 11 – PhD, Former Professor of Political Science @ Columbia, Former ambassador to Iraq and Afghanistan(Zalmay Khalilzad was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George W. Bush and the director of policy planning at the Defense Department from 1990 to 1992. "The Economy and National Security" Feb 8 http://www.nationalreview.com/articles/259024/economy-and-national-security-zalmay-khalilzad)//BBToday, economic and fiscal trends pose the most severe long-term threat to the United States’ position as global leader. While the United States suffers from fiscal imbalances and low economic growth , the economies of rival powers are developing

rapidly. The continuation of these two trends could lead to a shift from American primacy toward a multi-polar global

system, leading in turn to increased geopolitical rivalry and even war among the great powers . The current recession is the result of a deep financial crisis, not a

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. Without faster economic growth and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If

interest rates were to rise significantly, annual interest payments — which already are larger than the defense budget — would crowd out other spending 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

of the United States internationally. Such scenarios would reshape the international order. It was the economic devastation of Britain and France during World War II, as well as the rise of other powers,

that led both countries to relinquish their empires. 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, the United States would be compelled to retrench, reducing its military spending and shedding international commitments. We face this domestic challenge while other major powers are experiencing rapid economic growth. 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. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when a new international order will emerge. The closing of the gap between the United States and its rivals could intensify geopolitical competition among major powers, increase incentives for local powers to play major powers against one another, and undercut our will to preclude or respond to international crises because of the higher risk of escalation . The stakes are high. In modern history, the longest period of peace among the great powers has been the era of

U.S. leadership . By contrast, multi-polar systems have been unstable, with their competitive dynamics resulting in frequent crises and major wars among

the great powers. Failures of multi-polar international systems produced both world wars. American retrenchment could have devastating consequences .

Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races, miscalculation, or other crises spiraling into all-out conflict. Alternatively, in seeking to accommodate the stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way, hostile states would be emboldened to make aggressive moves in their regions.

Slow growth leads to hegemonic wars – relative gap is keyGoldstein 7 - Professor of Global Politics and International Relations @ University of Pennsylvania, (Avery Goldstein, “Power transitions, institutions, and China's rise in East Asia: Theoretical expectations and evidence,” Journal of Strategic Studies, Volume30, Issue 4 & 5 August, EBSCO)Two closely related, though distinct, theoretical arguments focus explicitly on the consequences for international politics of a shift in power

between a dominant state and a rising power. In War and Change in World Politics, Robert Gilpin suggested that   peace prevails

when a dominant state’s capabilities enable it to ‘govern’ an international order that it has shaped. Over time, however, as economic and technological   diffusion proceeds   during eras of peace and development, other states are empowered .   Moreover, the burdens of international governance drain and distract the reigning hegemon,

and challengers   eventually emerge   who seek to rewrite the rules of governance.   As the power advantage of the   erstwhile   hegemon ebbs, it may become desperate enough to resort to   theultima ratio of international politics, force, to forestall the   increasingly urgent  demands of a rising challenger. Or   as the power of the challenger rises, it may be tempted to press its case with   threats to use  force.   It is the rise and fall of the great powers that creates   the circumstances under

which major wars, what Gilpin labels ‘ hegemonic wars’ ,   break out.13 Gilpin’s 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 Gilpin’s theory are China’s 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 Gilpin’s 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 the   power gap narrows, the 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 Kugler’s power-transition 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 theory’s relevance to interpreting China’s 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 China’s 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 China’s growth would give it the world’s 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 China’s manned space program.18 Moreover, because   a   dominant state may react   to the prospect of a crossover and   believe that it is wiser to   embrace the logic of preventive war   and act early   to delay a transition   while the task is more manageable ,

Organski and Kugler’s power-transition theory   also provides grounds for concern about the period prior to the possible crossover . 19

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 country’s 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,

‘You’re talking to me about your job — I’m talking about saving the world !’ Developing new energy industries will clearly help working families and increase national security, but there’s 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

movement’s defensiveness on economic issues. Our defensiveness on the economy elevates the frame that action on global warming will kill jobs and raise electricity bills. The notion that environmentalists should answer industry charges instead of attacking those very industries for blocking investment into the good new jobs of the future is yet another symptom of literal-scleroris. Answering charges with the literal “truth” is a bit like responding to the Republican “Swift Boats for Truth” ad

campaign with the facts about John Kerry’s war record. The way to win is not to defend — it’s to attack. Given the movement’s adherence to fi xed and arbitrary categories it’s not surprising that even its best political allies fall into the same traps. At a Pew Center on Global Climate Change conference last June, Senator John McCain awkwardly and unsuccessfully tried to flip the economic argument on his opponents: “I think the economic impact [of climate change] would be devastating. Our way of life is in danger. This is a serious problem. Relief is not on the way.” Senator Lieberman did an even worse job, as one might expect from someone who makes conservative arguments for liberal initiatives: “Confronting global

warming need not be wrenching to our economy if we take simple sensible steps now.” There is no shortage of examples of environmentalists struggling to explain the supposed costs of taking action on global warming. A June poll conducted for environmental backers of McCain- Lieberman found that 70 percent of Americans support the goals of the Climate Stewardship Act “despite the likelihood it may raise energy costs by more than $15 a month per household.” In the online magazine Grist , Thad Miller approvingly cites a study done by MIT’s 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 won’t 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, the job

creation benefits of things like retrofi tting every home and building in America were, at best, afterthoughts . A few, however,

like Eric Heitz of the Energy Foundation, believe that the economic development argument should be front and center. “I think the Apollo angle is the best angle,” he said. “There are real economic benefits here. The environmental community is focused too much on the problem. It’s a shift we’ve only started to make, so it’s not unexpected that it’s 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. “Let’s go for the massive expansion of wind in the Midwest — make it

part of the farm bill and not the energy bill. Let’s highlight the jobs and farmers behind it,” he said. Talking about the millions of jobs that will be created by accelerating our transition to a clean energy economy offers more than a good defense against industry attacks: it’s a frame that moves the environmental movement away from apocalyptic global warming scenarios that tend to create feelings of

helplessness 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. Imagine how history would have turned out had King given an “I have a nightmare” speech instead. In the absence of a bold vision and a reconsideration of the problem, environmental leaders are effectively giving the “I have a nightmare” speech, not just in our press interviews but also in the way that we make our

proposals. The world’s most effective leaders are not issue-identified but rather vision

and value-identified . These leaders distinguish themselves by inspiring hope against fear, love against injustice, and power against powerlessness. A positive, transformative vision doesn’t 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 country’s 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 America’s Future to create a proposal for a “New Apollo Project”

aimed at freeing the US from oil and creating millions of good new jobs over 10 years. Our strategy was to create something inspiring.

Something that would remind people of the American dream: that we are a can-do people capable of achieving great

things when we put our minds to it. Apollo’s focus on big investments into clean energy, transportation and effi ciency is part of a hopeful and patriotic story that we are all in this economy together. It allows politicians to inject big

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 country’s 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

is at the very least a sincere attempt to undermine the assumptions beneath special interest environmentalism. Just two years old, Apollo offers a vision that can set the context for a myriad of national and local Apollo proposals, all of which

will aim to treat labor unions, civil rights groups, and businesses not simply as means to an end but as true allies whose interests in economic development can be aligned with strong action on global warming. Van Jones, the up-and-coming civil rights leader and co-founder of the California Apollo Project, likens these four groups to 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 won’t go anywhere.” Our point is not that Apollo is the answer to the environmental movement’s losing streak on global

warming. Rather we are arguing that all proposals aimed at dealing with global warming — Kyoto, McCain-Lieberman,

CAFE, carbon taxes, WEMP, and Apollo – must be evaluated not only for whether they will get us the

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. What’s so powerful about Apollo is not its 10-point plan or its detailed set of policies but rather its inclusive and hopeful vision for America’s 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

outcome and I viewed it as a way of reframing the issue. They kept asking, “How do you know [Teamsters President] Jimmy Hoffa, Jr. is going to get the issue?’ I answered, ‘Jimmy Hoffa, Jr. isn’t! I’m not doing policy mark-up here, I’m trying to get the people that work for Jimmy Hoffa, Jr. to do something

different.’” Getting labor to do something different is no easier than getting environmentalists to.

Its problems are similar to those of the environmental movement: lack of a vision, a coherent set of values, and policy proposals that build its power. There’s no guarantee that the environmental movement can fi x labor’s woes or vice versa. But if we would focus on how our interests are aligned we might craft something more creative together than apart. By signifying a unified concern for people and the climate, Apollo aims to

deconstruct the assumptions underneath the categories “labor” and “the environment.”

Reg negs are bipartisan

Copeland 06(Curtis W. Copeland, PhD, was formerly a specialist in American government at the Congressional Research Service (CRS) within the U.S. Library of Congress. Copeland received his PhD degree in political science from the University of North Texas.His primary area of expertise is federal rulemaking and regulatory policy. Before coming to CRS in January 2004, Dr. Copeland worked at the U.S. General Accounting Office (GAO, now the Government Accountability Office) for 23 years on a variety of issues, including federal personnel policy, pay equity, ethics, procurement policy, management reform, the Office of Management and Budget (OMB), and, since the mid-1990s, multiple aspects of the federal rulemaking process. At CRS, he wrote reports and testified before Congress on such issues as federal rulemaking, regulatory reform, the Congressional Review Act, negotiated rulemaking, the Paperwork Reduction Act, the Regulatory Flexibility Act, OMB’s Office of Information and Regulatory Affairs, Executive Order 13422, midnight rulemaking, peer review, and risk assessment. He has also written and testified on federal personnel policies, the federal workforce, GAO’s pay-for-performance system, and efforts to oversee the implementation of the Troubled Asset Relief Program. From 2004 until 2007, Dr. Copeland headed the Executive Branch Operations section within CRS’s Government and Finance Division. Copeland, C. W. “Negotiated Rulemaking,” Congressional Research Service, September 18, 2006. http://crs.wikileaks-press.org/RL32452.pdf//ghs-kw)

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 try to reach consensus by evaluating their priorities and making tradeoffs, with the end result being a draft rule that is mutually

acceptable . Negotiated rulemaking has been encouraged (although not usually required) by both congressional and

executive branch actions, and has received bipartisan support as a way to involve affected parties in rulemaking before agencies have developed their proposals. Some questions have been raised, however, regarding whether the approach actually speeds rulemaking or reduces litigation.

Reg neg solves controversy—no link to ptixHarter 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)

Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies have used reg neg to develop some of their most contentious rules. For example, the Federal Aviation Administration and the National Park Service used a variant of the process to write the regulations and policies governing sightseeing flights over national parks; the issue had been sufficiently controversial that the President had to intervene and direct the two agencies to develop rules “for the management of sightseeing aircraft in the National Parks where it is deemed necessary to reduce or prevent the adverse effects of such aircraft.”22 The Department of Transportation used

it to write a regulation governing the delivery of propane and other compressed gases when the regulation became ensnared in litigation and Congressional 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 The Forest Service has just published a notice of intent to establish a reg neg committee to develop policies governing the use of fixed anchors for rock climbing in designated wilderness areas administered by

the Forest Service.25 This issue has become extremely controversial.26 Negotiated rulemaking has proven enormously successful in developing agreements in highly polarized situations and has enabled the parties to address the best, most effective or efficient way of solving a regulatory controversy. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have eluded closure by means of traditional rulemaking procedures

CP Solves Ptix Link

The counterplan breaks down adversarialism, is seen as legitimate, and is key to effective regulation

Mee ‘97(Siobhan, Jd, An Attorney In The Complex And Class Action Litigation Group, Focuses Her Practice On A Broad Range Of Commercial Litigation, “Negotiated Rulemaking And Combined Sewer Overflows (Csos): Consensus Saves Ossification?,” Fall, 1997 25 B.C. Envtl. Aff. L. Rev. 213, Pg Lexis//Um-Ef)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 non-

governmental 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

you as much as you thought." n149 The chance to iron out what are often long-standing disagreements can only improve future interactions. n150

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_united_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 nation’s 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 third-party 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 possible benefits of mediation as a tool to reduce Congressional infighting have become clearer as mediation gains in popularity in other contexts. 7 Mediation creates a more collaborative and less adversarial environment, which may encourage lawmakers to

compromise.8 (Id. “See Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 31 E.L.R. 10811

(2001) (evaluating empirical data relating to environmental regulatory negotiations and concluding that the consensus-building process improved rule quality)”) Mediated solutions are generally more effective at achieving their goals than policies made in a winner-take-all context like the

standard political process.9 They may also be cheaper in the long run as expensive litigation over the

law is reduced or avoided entirely. (10 Jody Freeman & Laura I. Langbein, Regulatory Negotiation and 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 that are stuck in endless cycles of stonewalling and posturing could use the mediation process to negotiate a way forward that minimizes future conflict and maximizes the benefit to all.

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)2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as 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 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

systems that produce more decentralized and flexible decisionmaking. 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 review and streamline their internal rulemaking processes." n98 The NPR also encouraged agencies to seek the repeal of [*436] statutes that "unnecessarily require cross-examination and other adjudicative fact-finding procedures in rulemakings." n99 It advised the President to "direct agency heads to provide opportunities for early, frequent and interactive public

participation." n100 Each of these reforms would contribute to a deformalization of the rulemaking process. The centerpiece of the NPR's proposed revision of the traditional model of

rulemaking was its endorsement of negotiated rulemaking . n101 Congress delineated the procedural framework for negotiated rulemaking in the Negotiated

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 such a process, the agency relinquishes its role as

primary regulatory decisionmaker . Instead, the agency becomes a member of a "negotiated rulemaking committee" that includes representatives of the interests likely to be "significantly affected" by the ultimate rule. n104 An impartial "facilitator," not the [*437] agency, leads the negotiating sessions. n105 Moreover, negotiations can produce a proposed rule only on the basis of "consensus," n106 which the Act defines as "unanimous

concurrence among the interests represented on a negotiated rulemaking committee." n107 If a consensus is reached, the proposed rule is published for notice and comment, with the hope that the comments will contain few surprises, that the agency's final rule will be identical to the negotiated proposal, and that the

risk of judicial review will be reduced substantially . n108 Although the NPR recognized that negotiated rulemaking was not invariably

appropriate, n109 it broadly endorsed the process. The NPR urged the President to encourage agencies to use negotiated rulemaking. n110 In Executive Order 12,866, President Clinton responded. He directed "each agency ... to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking." n111 The President added to that endorsement the more specific requirement that each agency undertake at least one negotiated rulemaking or explain to the OMB why it cannot do so. n112 The promise of negotiated

rulemaking to reverse the substantive and procedural shortcomings of the traditional model of rulemaking explains the NPR's embrace of that process. Negotiated

rulemaking, seen in this light, is the ultimate expression of decentralized, voluntary

policymaking . 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

not imposed from above by authoritative agency experts . 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

the rich and powerful or the interests of working and poor people. We, of course, are struggling for a democracy that puts the needs,

interests and voices of all working and poor women, children and men at the center of the process - and this is what we call popular democracy. When we look deeper into popular democracy several principles and processes emerge as essential for understanding and organizing in our current

moment - equality, 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 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

together to share our analysis and reach collective agreements. Struggle is the real fight we are in for our very lives against those who are pushing us into joblessness, poverty, homelessness, hunger, violence, incarceration, war and 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

- to value all people and our human rights and to respect nature and the ecological system we share on this earth. Popular democracy has no economic exploitation , political and cultural oppression, poverty, genocide or war and militarism. Rather, it is the opposite - it embodies and expresses the principles and processes of equality , participatory decision-making by all, 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

time for family and friends. 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 world we are visioning and fighting for. Make it happen!

***AT Aff Args***

Solvency Deficits

Cost

Benefits outweigh the costs—consensus of participants provesFreeman 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 (78%) of Participants Say That the Benefits Outweigh the Costs of 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 asked what their organization gained from negotiated rulemaking, 32% reported that they got a better rule, 28% referred to gaining a better understanding of some aspect of the substantive issue or the process of developing rules, and 11% expressed the belief that they had exercised a greater degree of influence in decision making; only 6%

stated that they gained nothing from their participation.194 When asked whether the benefits of participation outweighed the costs, 78% said that they did, 15% said that the costs outweighed the benefits, and 7% responded that the costs and benefits were roughly equal.195 The interviewers then asked respondents to rank the rule, on a number of dimensions, on an eleven-point scale from –5 to +5, with –5 meaning “the rule could not be worse” and +5 meaning “the rule could not be better.” On all of these important measures, participants reacted favorably, as shown in Table 1.196

Reg negs are more cost effectiveHarter 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 Langbein conducted 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 Langbein’s 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 of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Further, participants’ assessments are also more positive when the issues to be decided are relatively more complex. Our research would support a recommendation that negotiated rulemaking continue to be applied to complex issues, and more widely applied to include those entailing the standard itself.106 Their findings are particularly powerful when comparing individual attributes of negotiated and conventional rules. Table 3 contains a summary of those comparisons. Importantly,

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 Langbein’s 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 Coglianese’s 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 cheaperLangbein 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 rule making. The strong support comes in the form of positive assessments provided by participants in negotiated rule making compared to assessments offered by those involved in conventional forms of regulation development. There is no evidence that negotiated rules comprise an abrogation of agency authority, and negotiated rules appear no more (or less) subject to litigation than conventional rules. It is also true that

negotiated rule making at the EPA is used largely to develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than rules that set substantive standards. However, participants' assessments of the resulting rules are more positive when the issues to be decided

entail those of establishing rather than enforcing the standard. Participants' assessments are also more positive when the issues to be decided are

relatively less complex. But even when these and other variables are controlled, reg neg participants' overall 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 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 with a law or regulation and support for policy choice are more likely to be forthcoming not only when it is economically rational but also when the process by which the decision is made is viewed as fair (Tyler 1990; Kunreuther et al. 1993; Frey and Oberholzer-Gee 1996). While we did not ask respondents explicitly to rate the fairness of the rule-making process in which

they participated, evidence 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 neg appears more likely than conventional rule making to leave participants with a warm glow about the decision-making process. While the regression results show that the costs and benefits of the rule being promulgated figure prominently into the

respondents' overall assessment of the final rule, process matters too. Participants care not only about how rules and policies affect them economically, they also care about how the authorities who make and implement rules and policies treat them (and others). In fact, one reg neg respondent, the owner of a small shop that 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 costs are different for 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 the agency probably knows less about each group's costs and benefits than the group knows about its own costs and benefits, the rule that emerges from direct negotiation should be a more accurate reflection of net benefits than one that is written by the agency (even though the agency tries to be responsive to the affected

parties). In effect, 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.

Reg neg costs as much as conventional rulemakingFreeman 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)5. Negotiated Rulemaking Is No More Costly Than Conventional Rulemaking As in Phase I, in Phase II Kerwin and Langbein asked respondents

a series of questions about cost issues. Specifically, they asked about respondents' expenditures, 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, there were no significant

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 78% of all participants, in

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 irresponsibilityFreeman 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)

Defenders of reg neg retorted that negotiated rules were far from secret deals. The Negotiated Rulemaking Act of 1990 (“NRA”) requires federal agencies to provide notice of regulatory negotiations in the Federal Register,50 to formally charter reg neg committees,51 and to observe the transparency and accountability requirements52 of the Federal Advisory Committee Act.53

Any individual or organization that might be “significantly affected” by a proposed rule can apply for membership in a reg neg committee,54 and even if the agency rejects their application, they remain free to attend as spectators.55 Most significantly, the NRA requires that the agency submit negotiated rules

to traditional notice and comment.56 In addition, many public choice scholars argue that agencies have no incentive to shirk their accountability to congressional principals, who control agency budgets, appoint top personnel, and oversee agency authority. Agencies thus have no incentive to be less responsive to congressional preferences in negotiated rulemaking than in conventional rulemaking.57 Proponents of reg neg argued that, in view of these safeguards, agencies are equally accountable for negotiated and conventional rules. Moreover, external checks on agency decision making remain undisturbed by reg neg. Providing they meet traditional standing hurdles, any party may 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

No difference in agency responsivenessFreeman 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)3. Negotiated Rulemaking Does Not Abrogate the Agency's Responsibility to Execute Delegated Authority Overall, the evidence from Phase II is generally inconsistent with the theoretical but empirically untested claim that EPA has failed to retain its responsibility for writing rules in negotiated settings. Recall that theorists disagree over whether reg neg will increase agency responsiveness. Most scholars assume that EPA retains more authority in conventional rulemaking, and that participants exert commensurately less influence over conventional as opposed to negotiated rules. To test this hypothesis, Kerwin and Langbein asked participants about disproportionate influence and about agency

responsiveness to the respondent personally, as well as agency responsiveness to the public in general. The results suggest that the agency

is equally responsive to participants in conventional and negotiated rulemaking, consistent

with the hypothesis that the agency listens to the affected parties regardless of the method

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 rulemaking participants were significantly more likely to see excessive influence by one party in the process rather than in the rule itself, as compared to conventional participants (55% versus 13% respectively). However, when asked what it was about the process that fostered disproportionate influence, conventional rule participants were twice as likely as negotiated rule participants to point to the central role of EPA (63% versus 30% respectively). By contrast, negotiated rule participants pointed to other participants who were particularly vocal and active during the negotiation sessions (26% of negotiated rule respondents versus no conventional respondents). When asked about agency responsiveness, negotiated rule participants were significantly more likely than conventional rule participants to view both general participation, and their personal participation, as having a "major" impact on the proposed rule. By contrast, conventional participants were more likely to see "major" differences between the proposed and final rule and to believe that public participation and their own participation had a "moderate" or "major" impact on that change. These results conform to the researchers' expectations:

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

agency is equally responsive to both conventional and negotiated rule participants.

Disparities/Exclusive

Reg negs have full representationFreeman 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

exclusion from other governmental processes, even if those groups are imperfect surrogates for “ordinary citizens.” 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

neg also identifies as a potential problem EPA’s unwillingness to commit, up front, to accept the results of negotiations and use them as the basis

for the rule. There is no evidence , however, that this factor affected parties’ decisions to

participate . In fact, no respondent expressed concerns in this regard.10 0

The process is equal and fairFreeman 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 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, more¬over, 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. Moreover, as we have seen, reg neg participant re¬ports of higher

satisfaction could not be explained by their as¬sessments 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." 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." At a minimum, the data call into question—and sometimes flatly

contradict—most 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 true—larger groups aren’t more influential in reg negsFreeman 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 negotiation might enable partial capture, but no more so than conventional rulemaking. Further, if there is any capture in rulemaking processes, there is no evidence that the nature or extent of the capture produced through this consensus-based process is greater or more sinister than the capture that occurs through traditional notice and comment rulemaking. Powerful groups, such as in¬dustry trade associations or government agencies, may fare better in all decision contexts because of resource, information, and political asymmetries that work in their favor, but there is no

reason to believe that regulatory negotiation enhances their advantage. Although in this article we

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 disparitiesFreeman 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 disproportionate costs it imposes on smaller groups with comparatively fewer resources. 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 regula¬tors. Smaller, poorer groups also reported suffering from re¬source deficits as compared to their larger, richer negotiating partners. The

evidence of resource disadvantage provides em-pirical support for a frequent criticism of reg neg, but, impor-tantly, these 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

communicate with the Administrator while the negotiations were underway was rebuffed. [FN263] The participants tacitly agreed that it would not be feasible to develop a 'total package' to which the participants formally could agree. Instead, their objectives were to narrow differences, explore alternative ways of achieving objectives at less disruption to operational exigencies, and educate the FAA on practical issues. The mediator had an acute sense that the negotiation process should stop before agreement began to erode. Accordingly, he forbore to force explicit agreement on difficult issues, took few votes, and adjourned the negotiations when things began to unravel. In addition , the FAA, the mediator, and participants were tolerant of the

political need of participants to adhere to positions formally, even though signals were

given that participants could live with something else. Agency participation in the negotiating sessions was

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 was easy for the agency to proceed with a consensus standard because it had an evolving sense of the consensus. Without agency participation, a more formal step would have been necessary to communicate negotiating group views to the agency. Taking this formal step could have proven difficult or

impossible because it would have necessitated more formal participant agreement. In addition, the 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 reachedSelmi 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.)//kyIn 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 virtually every important qualitative dimension, all participants in this

study-whether business, environmental, or government- reacted more favorably to their experience with 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 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.' 4 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,'5 is no small accomplishment and we argue that, in any event, it is more important than reducing transaction costs.

C) Economic and environmental concerns means parties will compromiseSelmi 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.)//kyC. 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, the industry thought

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 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, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely economic in nature. In contrast, the environmentalists' concerns were based on moral

and environmental justice grounds, while the District staff's concerns were more

pragmatic. Most importantly, however, all parties had reason to compromise.

D) Reg neg produces participant satisfaction and reduces conflict—consensus will happenLangbein 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 rule making. The strong support comes in the form of positive assessments provided by participants in negotiated rule

making compared to assessments offered by those involved in conventional forms of regulation development. There is no evidence that negotiated rules comprise an abrogation of agency authority, and negotiated rules appear no more (or less) subject to litigation than conventional rules. It is also true that

negotiated rule making at the EPA is used largely to develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than rules that set substantive standards. However, participants' assessments of the resulting rules are more positive when the issues to be decided entail those of establishing rather than enforcing the standard. Participants' assessments are also more positive when the issues to be decided are

relatively less complex. But even when these and other variables are controlled, reg neg participants' overall 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 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 with a law or regulation and support for policy choice are more likely to be forthcoming not only when it is economically rational but also when the process by which the decision is made is viewed as fair (Tyler 1990; Kunreuther et al. 1993; Frey and Oberholzer-Gee 1996). While we did not ask respondents explicitly to rate the fairness of the rule-making process in which

they participated, evidence 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 neg appears more likely than conventional rule making to leave participants with a warm glow about the decision-making process. While the regression results show that the costs and benefits of the rule being promulgated figure prominently into the

respondents' overall assessment of the final rule, process matters too. Participants care not only about how rules and policies affect them economically, they also care about how the authorities who make and implement rules and policies treat them (and others). In fact, one reg neg respondent, the owner of a small shop that 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 costs are different for 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 the agency probably knows less about each group's costs and benefits than the group knows about its own costs and benefits, the rule that emerges from direct negotiation should be a more accurate reflection of net benefits than one that is written by the agency (even though the agency tries to be responsive to the affected

parties). In effect, 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.

E) A consensus will be reached—parties have incentives to cooperate and compromiseHarter 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)

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 deli¬beration. 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 exactly the opposite: it is the wisdom of crowds. It builds on the insights and experiences of diversity. And it is a vital element of collaborative governance in terms of actually reaching

agreement and in terms of the quality of the resulting agreement. That undoubtedly sounds counterintuitive, especially for the difficult, complex, controversial matters that are customarily the subject of direct negotiations among governments and their con¬stituents. Indeed, you often hear that it can't be done. One would expect that the controversy would make consensus unlikely or that if concurrence were

obtained, it would likely be so watered down—that least common denominator again—that it would not be worth much. But,

interestingly, it has exactly the opposite effect. Consensus can mean many things so it is important to understand

what 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 interest has a veto over the decision, and any party may block a final agreement by withholding concurrence. Consensus has a significant impact on how the negotiations actually function: ■ It makes it "safe" to come to

the table. If the committee were to make decisions by voting, even if a supermajority were required, a party might fear being outvoted. In that case, it would logically continue to build power to achieve its will outside the negotiations. Instead, it has the power inside the room to

prevent something from happening that it cannot live with . Thus, at least for the duration of the negotiations,

the party can focus on the substance of the policy and not build political might. ■ The committee is converted from a group of disparate, often antag¬nistic, interests into one with a

common purpose: reaching a mutually acceptable agreement. During a policy negotiation such as this, you 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—

instead of a cascade, it generates 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 some¬thing 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 discretion availa¬ble 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 is consi¬derably narrowed. Thus, records are stuffed with data that may wellbe irrelevant to the outcome or on which the parties

largely agree. 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 in¬formation do we 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 use of consensus can significantly reduce the amount of defensive (or probably more accurately, offensive) record-building that customarily attends adversarial processes. ■ It forces the parties to look at the agreement as a whole—consensus is reached only on the entire package, not its individual elements. The very essence of negotiation is that different parties value issues differently. What is important to

one party is not so important to another, and that makes for trades that maximize overall value. The resulting agreement can be analogized to buying a house: something is always wrong with any house you would consider buying (price, location, kitchen needs repair, etc.), but you cannot buy only part of a house or move it to another location; the choice must be made as to which house—the entire thing—you will purchase. ■ It also means that the resulting decision will not stray from the statutory mandate. That is because one of the parties to the negotiation is very likely to benefit from an adherence to the

statutory require¬ments and would not concur in a decision that did not implement it. ■ Finally, if all of the parties

represented concur in the outcome, the likelihood of a successful challenge is greatly

reduced so that the decision has a rare degree of finality.

Negotiating parties have terrible BATNA’s—they’ll cooperatePerritt 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.

Stakeholder involvement means a consensus will be reachedFMCS No Date (The Federal Mediation and Conciliation Service, An independent agency whose mission is to preserve and promote labor-management peace and cooperation. Headquartered in Washington, DC, with two regional offices and more than 70 field offices, the agency provides mediation and conflict resolution services to industry, government agencies and communities, "Multi-Stakeholder Processes", http://www.fmcs.gov/internet/itemDetail.asp?categoryID=48&itemID=15957)

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, FMCS’s 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.

Reg neg solves -- stakeholder involvement ensures solvencyDOI 13 (Department of the Interior, The U.S. Department of the Interior is a Cabinet-level agency that manages America's vast natural and cultural resources. Secretary of Interior Sally Jewell heads our department, which employs 70,000 people, including expert scientists and resource-management professionals, in nine technical bureaus, "Negotiated Rulemaking", Copyright 2013. http://www.doi.gov/pmb/cadr/projects/collaborationframeworkworkshop/Factsheet-Negotiated-Rulemaking.cfm#)

Negotiated Rulemaking: Negotiated rulemaking is an administrative procedure sanctioned by the Negotiated

Rulemaking Act of 1996. An agency promulgating a new or revised regulation or rule convenes a 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

and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants : 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 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 rulemaking is usually geared toward both government and non-government stakeholders, be that other bureaus, other federal, state, and local agencies and governments, private industry, local governments, and/or NGOs. Principles: Negotiated rulemaking strategies must adhere to such federal guidelines as the Negotiated Rulemaking Act of 1996, Administrative Dispute Resolution Act of 1996 and the Federal Advisory Committee Act (FACA). FACA requires negotiated rulemakings to have a clear charter, maintain a balanced membership, publicly notice and hold public meetings (though private caucuses can be called from

time to time), and keep minutes of the meeting. Intent : Negotiated Rulemaking strategies are agreement seeking. By 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 committee’s ground rules).

Negotiated rulemaking is a formalized, specific kind of consensus building.

Not Transparent

The process is transparentFreeman 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 rules were far from secret deals. The Negotiated Rulemaking Act of 1990 (“NRA”) requires federal agencies to provide notice of regulatory negotiations in the Federal Register,50 to formally charter reg neg committees,51 and to observe the transparency and accountability requirements52 of the Federal Advisory Committee Act.53 Any individual or organization that might be “significantly affected” by a proposed rule can apply for membership in

a reg neg committee,54 and even if the agency rejects their application, they remain free to attend as spectators.55 Most significantly, the NRA requires that the agency submit negotiated rules to traditional notice and comment.56

Govt Wont Listen

Reg Neg adheres with public interests---avoids unpopularity

ABA 13 (The American Bar Association is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation of model ethical codes related to the legal profession, “NEGOTIATED RULEMAKING AND THE PUBLIC INTEREST”. Published September 19th 2013. Print)III. The Rise of Negotiated Regulation One early response to the challenge described by Professor Stewart was suggested by Philip Harter. First in a report to the Administrative Conference of the United States, and then in his seminal article, Negotiating Regulations: A Cure for Malaise, Professor Harter outlined a process—

reg-neg—that 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. Harter’s analysis of the problem—which 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 acceptance—particularly, and most importantly, among elected representatives and leaders of the executive branch and the agencies themselves. A few academic critics, while acknowledging reg-neg’s 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-neg’s 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

rule with which it does not ultimately concur. This is true even though the agency assumes an obligation to negotiate in good faith to achieve a consensus on the draft rule, and ordinarily agrees to support the rule achieved through such consensus. An important

premise of reg-neg, of course, is that the agency has voluntarily and for strategic reasons chosen to sponsor the negotiation process. This does not, however, logically require or even suggest that the agency abdicate its responsibility to fulfill its legislative mandate and legal obligations. Most criticism of reg-neg, however, hinges on the second argument: that administrative agencies are uniquely able to discern the public interest. Professor Funk, for example, embraces the

notion of the agency as rational expert, seeking the one true answer that best reflects the needs of the nation. He states that: “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.” While this is undoubtedly true, he frankly admits that “(w)hat is meant by the public interest is not always clear.” 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.” Funk’s definition does little more than substitute one word (best) for another (public). This “troublesome” word—best—begs the question, however, and Funk’s circular argument seems to comes down the assertion that the agency must avoid collaboration and make the decision alone, because…well, because that’s 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 itself—admirably 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 nation’s 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, McCloskey’s 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 result—i.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 assess—empirically and otherwise—how 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 interest—like the related concept of legitimacy—is a “usefully vague…administrative 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 “self-regarding” 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. Berenson’s 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 lawyers—being members of a profession—have 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 interest—rather than “about” it—for the reason that, as with the “environment,” nobody is (publicly) against the public interest. That is precisely the problem raised in this paper: everybody—with the exception perhaps of those who, even provisionally, are unwilling to admit to its existence—agrees

that the public interest ought to be served by administrative rulemaking. 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

and instrumental in nature, and the standard used to assess whether a negotiated rulemaking is consistent with the public interest will look to whether all interested parties have been provided the opportunity to effectively participate in the negotiations. Perhaps a standard containing more substantive values, such as 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 definition—even if only provisional in nature—will 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//ghs-kw)

Negotiated rulemaking differs from conventional rulemaking in many of these same respect. In conventional rulemaking, the administrative agency makes decisions based on whatever consultation with

outside parties it thinks is appropriate. The agency's only legal obligation is to allow public comment on the substance of a proposed rule and then to respond to those comments before issuing a final rule. In conventional rulemaking, outside consultation is formal because the information and opinions exchanged are written; it is one-time because the commenter typically has one opportunity to make a case before the agency issues the final rule; it is often pro forma because public comments may be seen as argument so be rebutted or anticipated later in

litigation, left largely to technical and legal staff rather than considered carefully by decision makers; and it is constrained procedurally because of ex parte rules, requirements of the record, and the probability of judicial review. The agency acts as the authoritative, third-party decision maker; the affected and interested parties are pleaders, bound to whatever conclusions the agency reaches . Negotiation alters

this process. The administrative agency agrees to act as the theoretical equal of the other

parties by sitting at the table to negotiate and resolve issues. A decision is not made until the affected interests, through their representatives, consent to it. The agency is not delegating decision authority to affected interests but participating as one of them, with the same authority to block or promote consensus as any other party. What distinguishes the agency is that it is the only party with the authority to withdraw from the negotiations and propose a rule as its own. The equality of the parties around the table is in this sense a fiction, but it can be sustained if the agency and the other parties accept it. As in any alternative dispute settlement process, a breakdown in the negotiations means that the parties revert to a more conventional, adversarial, formal process-that of notice-and-comment rulemaking, with the agency shifting to its more traditional role as the authoritative, third-party decision maker.

Theory

Process CPs Bad

Counterinterp: process CPs are legitimate if we have a solvency advocate

AND, process CPs good:1. Key to education—we need to be able to debate the desirability of the plan’s

regulatory process; testing all angles of the AFF is key to determine the best policy option

2. Key to neg ground—it’s the only CP we can run against regulatory AFFs

At worse, reject the argument, not the team

It’s predictable and fair—there’s a huge lit baseApplegate 98(John S. Applegate holds a law degree from Harvard Law School and a bachelor’s degree in English from Haverford College. Nationally recognized for his work in environmental risk assessment and policy analysis, Applegate has written books and articles on the regulation of toxic substances, defense nuclear waste, public participation in environmental decisions, and international environmental law. He serves on the National Academy of Sciences Nuclear and Radiation Studies Board. In addition, he is an award-winning teacher, known for his ability to present complex information with an engaging style and wry wit. Before coming to IU, Applegate was the James B. Helmer, Jr. Professor of Law at the University of Cincinnati College of Law. He also was a visiting professor at the Vanderbilt University School of Law. From 1983 to 1987, Applegate practiced environmental law in Washington, D.C., with the law firm of Covington & Burling. He clerked for the late Judge Edward S. Smith of the U.S. Court of Appeals for the Federal Circuit. John S. Applegate was named Indiana University’s first vice president for planning and policy in July 2008. In March 2010, his portfolio was expanded and his title changed to vice president for university regional affairs, planning, and policy. In February 2011, he became executive vice president for regional affairs, planning, and policy. As Executive Vice President for University Academic Affairs since 2013, his office ensures coordination of university academic matters, strategic plans, external academic relations, enterprise systems, and the academic policies that enable the university to most effectively bring its vast intellectual resources to bear in serving the citizens of the state and nation. The regional affairs mission of OEVPUAA is to lead the development of a shared identity and mission for all of IU's regional campuses that complements each campus's individual identity and mission. In addition, Executive Vice President Applegate is responsible for public safety functions across the university, including police, emergency management, and environmental health and safety. In appointing him in 2008, President McRobbie noted that "John Applegate has proven himself to be very effective at many administrative and academic initiatives that require a great deal of analysis and coordination within the university and with external agencies, including the Indiana Commission for Higher Education. His experience and understanding of both academia and the law make him almost uniquely suited to take on these responsibilities.” In 2006, John Applegate was appointed Indiana University’s first Presidential Fellow, a role in which he served both President Emeritus Adam Herbert and current President Michael McRobbie. A distinguished environmental law scholar, Applegate joined the IU faculty in 1998. He is the Walter W. Foskett Professor of Law at the Indiana University Maurer School of Law in Bloomington and also served as the school’s executive associate dean for academic affairs from 2002-2009. Applegate, J. S. “Beyond the Usual Suspects: The Use of Citizen Advisory Boards in Environmental Decisionmaking,” Indiana Law Journal, Volume 73, Issue 3, July 1, 1998. http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1939&context=ilj//ghs-kw)

There is substantial literature on negotiated rulemaking . The interested reader might begin with the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570 (1994 & Supp. II 1996), Freeman,

supra note 53, Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. I (1982),

Henry E. Perritt, Jr., Negotiated Rulemaking Before Federal Agencies: Evaluation of the Recommendations by the Administrative Conference of the United States, 74 GEO. L.J. 1625 (1986),

Lawrence Susskind & Gerard McMahon, The Theory and Practice of Negotiated Rulemaking, 3 YALE J. ON REG. 133 (1985), and an excellent, just-published issue on regulatory negotiation, Twenty-Eighth Annual Administrative Law Issue, 46 DUKE L.J. 1255 (1997)

The reg neg CP is uniquely key to policy education and decision making skillsFiorino 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. 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 EPA’s 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 negotiation reflects the trend toward alternative dispute settlement. However, because regulatory negotiation is prospective and general in its application rather than limited to a specific dispute, it also reflects another theme in American public policy making. That theme is

pluralism, or what Robert Reich has described in the context of administrative rulemaking “interest-group mediation” (Reich 1985, pp.

1619-1620).[20] Reich's analysis sheds light on negotiation as a form of regulatory policy making, especially its

contrasts with more analytical policy models. Reich proposes interest-group mediation and net-benefit maximization as the two visions that dominate administrative policy making. The first descends from pluralist political science and was more influential in the 1960s and early 1970s. The second descends from decision theory and micro-economics, and it was more influential in the late 1970s and early 1980s. In the first, the administrator is a referee who brings affected interests into the policy process to reconcile their demands and preferences. In the net-benefit model, the administrator is an analyst who defines policy options, quantifies the likely consequences of each,

compares them to a given set of objectives, and then selects the option offering the greatest net benefit or social utility. Under 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 governance—reg 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

legislation or regulation is more difficult than in quieter times. Yet important issues need to be considered in a relatively

short time frame: what to do about global warming and the limitation on green¬house gases; the manner in which the financial sector is regulated and which firms will be regulated; the delivery of health care; the rebuilding of our transportation infrastructure; the role of the federal government in education and the standards that it may impose. No matter what the ultimate

decision as to the particular issue or the role of the government in addressing it is, some decision needs to be made in these areas, as well as many others. But here, too, difficulties arise. Many of our traditional

responses are no longer as effective as they once were, largely because the original targets

for which they were designed have already been addressed or are no longer relevant . Thus,

we need to create new approaches or , in many cases, recognize and hence legitimize approaches that have recently emerged. By and large, these new struc¬tures will need to be more flexible and adaptive than those deployed in the past. Further, many tend to blur any sort of rigid dichotomy between "public"—only the government—and "private"—only not government. Rather, the two will be intertwined as to who makes what decisions based on what sort of

process and with what type of participation by the other. As a consequence, we need to look beyond the procedures and conceptual models we have relied on for seventy-five years. A new archetype is needed both as to the tools that are available to address social issues and the procedures by which they will be developed and function. We are therefore at a critical juncture with respect to the role of government and how it operates. Resolving this debate will require the careful attention across

society—we as a body politic; government officials; academics; leaders of the private sector.

The thesis of this paper is that collaboration—the public and private spheres working together while recognizing the legitimate role of

each—should play a major role in making these important decisions. Can collaboration diminish the rancor?

Certainly not on its own, but it can lead people to recognize that others are listening and trying to

reach appropriate decisions. That alone has powerful political consequences. Should the

procedures described here be used for all public decisions? Of course not. But they should be considered for major ones precisely because they are effective, and a form of collaboration—a recognition that others have important viewpoints—should indeed pervade decision-making. Importantly, collaboration calls for strong and confident leadership on the part of both government and private parties. It is not to be confused with either being a bully or a wimp.

And, reg negs are key to policy educationSpector 99, (Bertram I. Spector, Senior Technical Director at Management Systems International (MSI) and Executive Director of the Center for Negotiation Analysis. Ph.D. in Political Science from New York University, May, 1999, Negotiated Rulemaking: A Participative Approach to Consensus-Building for Regulatory Development and Implementation, Technical Notes: A Publication of USAID’s

Implementing Policy Change Project, http://www.negotiations.org/Tn-10%20-%20Negotiated%20Rulemaking.pdf) AJ

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.

Indicts

AT: Coglianese

Inclusion of the farmworker protection reg neg results in flawed research—Coglianese’s 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)

Misapplication of the Methodology: The Peculiar Case of Farmworker Protection. Protecting farmworkers from exposure to agricultural pesticides has long been a difficult, controversial subject. Early in the history of its negotiated rulemaking project, EPA decided to tackle the issue by means of a negotiated rulemaking. EPA convened a committee34 in 1985 that began the arduous task of overcoming years of distrust and disagreement between labor and the growers to come up with a consensus recommendation. But, the divisiveness ran too deep, and the members of the committee who represented labor “decided to discontinue participation in the Regulatory Negotiation process”35 three months to the day later. That, of course, ended the negotiated rulemaking since the resulting committee no longer reflected the diversity of viewpoints or interests that are essential for a reg neg. To illustrate just how controversial the issue was, the final rule was not issued until seven years after the Notice of Intent

was published.36 But, Coglianese’s table describing the length of time required for completed negotiated rulemakings includes the Farmworker Protection Standard, and it is at the top — it took longer than any other.37 Although Coglianese was aware of the walk-out38 and hence that the reg neg was

terminated, he included this standard in his table even though he explicitly says elsewhere that

he is not counting “abandoned” reg negs .39 The inclusion of the Farmworker Protection Standard in calculating the average time it takes from the notice of intent (the “NOI” in negotiated

rulemaking parlance) to form the negotiating committee to final rule is misleading for two reasons. Even if it were a full-term reg neg, it took so much longer than any other conducted by EPA that it significantly skews any notion of “average.” Thus, if one wants to make much of “average” time

for development, then the aberrant nature of this case should be noted. But, more importantly, it should not be included as a negotiated rule according to the methodology established by Coglianese. The enormous time required

for the farmworkers standard to emerge as a final came after abandonment, while it was being developed as a regular, routine, traditional rule.40 Its inclusion causes a major change in the conclusion about the efficacy of negotiated rulemaking according to Coglianese: if it is not included, the average length of time for all the negotiated rulemakings dr ops from 1,013 days to 876,41 shaving three months off the

average time. 42

Coglianese is wrongFreeman 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 his article in this volume, Philip Harter challenges the validity of Coglianese's data, arguing that Coglianese's 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 participants—suggesting that either EPA's departure from consensus or some other aspect of the rule besides the outcomes produced by reg neg provoked the litigation.

Coglianese’s study is flawedHarter 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 Coglianese’s analysis — that an agency’s immediate goal may not be the issuance of a final rule — it may be helpful to look at the Coast Guard’s 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 Coast Guard, the agency charged with implementing the Act, was under tremendous pressure to set the standards for the response plans. Without them, the transportation of oil would stop. The Coast Guard published an advance notice of proposed rulemaking on August 30, 199145 and followed it with a public workshop on November 14, 1991. Nearly 200 people participated, and it turned out to be quite controversial. Virtually immediately, the Coast Guard decided to look at the potential for using reg neg to address the difficult issue of vessel response plans.46 On January 10, 1992 the Coast Guard published its notice establishing the committee.47 In a remarkably short 2 _ months, the committee developed a consensus on a proposed rule and signed an agreement on March 27.48 This is the equivalent of regulatory warp speed for any rule, let alone one of this magnitude and controversy. The Coast Guard formally published its NPRM on June 19, 1992.49 The goal, the need, and the animating force for this activity was to provide vessel owners and operators with sufficient information so they could submit their response plans by the magic date of February 18, 1993. The Coast Guard therefore issued a directive on September 23, 1992 that provided the requisite guidance to the marine industry for preparing response plans50 and announced that it would accept any response plan that conformed to the directive.51 This was then followed by the issuance of an Interim Final rule52 which called for comments on various provisions that had changed since the publication of

the NPRM. A final rule was then issued on January 12, 1996.53 As a result of this chronology, Coglianese calculates the Vessel Response Plan reg neg as taking a total of 1,516 days.54 What this misses is the fact that the agency’s goal was to get the policies in place to implement OPA90. That happened on September 23, 1992 after only 305 days. Thus, the relevant figure — the time when the agency fulfilled its need — was a scant 20 percent of the time attributed to the methodology used by Coglianese. In short, it is essential to understand the goals of the agency is seeking to achieve by the process being examined if you are to determine whether or not the process met the expectations and aspirations.

Coglianese’s methods are wrong—disregard their evHarter 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)Recent Criticism. Criticism has recently been leveled at negotiated rulemaking, however, on the ground that it has failed to achieve its

“instrumental goals.”27 Professor Cary Coglianese first undertook a review of the legislative history of negotiated rulemaking and found that “(p)roponents have emphasized that the primary purposes of negotiated rulemaking are to reduce rulemaking time and decrease litigation over regulations.”28 He then sought to measure whether negotiated rulemaking in fact saved time and reduced litigation, and he found it wanting in both dimensions. To demonstrate his thesis, Coglianese primarily analyzed negotiated rulemaking at the Environmental Protection Agency.29 Coglianese’s methodology for measuring the time involved in rulemaking was to examine all the rules in which EPA completed a negotiated rulemaking30 and “calculate 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.”31 He then compared the resulting times to those developed by traditional notice- and-comment rulemaking as reported in a study by Kerwin and Furlong.32 According to this research, the average length of time for rules developed by traditional means is about 3 years (1,108 days) and the average length of time for the negotiated rules was 2.8 years (1,013) — not a significant savings of time. As for the other “instrumental goal” — the saving of litigation — Coglianese likewise finds reg neg falls short, and indeed, he even concludes that it has an incidence of litigation that is actually higher than rules developed the traditional way.

Unfortunately, Coglianese’s research is significantly flawed and hence misleading concerning

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 Coglianese’s 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, EPA’s 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

AT: Kerwin and Langbein

Kerwin and Langbein’s qualitative data is better than empirics—reg neg is better than conventional rulemakingFreeman 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 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. 5 Their qualitative and 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 .6 At the same time, stakeholder influence on the agency remains about the same

using either approach.7 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,8 and even then, only for narrow questions of

implementation.9 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 virtually every important qualitative dimension, all participants in this study—whether 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 agency’s 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 can’t solve any of the case:

<insert solvency deficits and specific cards OR read the generic Williams card>

2. Reg negs are an epic fail—involving the public results in a stacked regulatory committee, violence, and mass chaosWilliams 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 park service was attempting a "negotiated rulemaking," bringing in the U.S. Institute for Environmental Conflict Resolution. The idea was to get the ORV and environmental communities to engage in rational discourse and compromise on regulations. Twenty-eight negotiators were selected. The four from state and federal governments said little. Of the remainder, 17 represented

motorized access; seven, wildlife-pedestrian interests. The facilitators directed negotiators to "commit to the principles of decency, civility, and tolerance," proscribed "personal attacks, name calling, and other such negative behaviors," and cheerily predicted that "the negotiated rulemaking process should not delay either the notice or the final regulation." One of the

negotiators was Golder . "They stacked the committee with ORV interests," he reports . "People were

screaming and yelling obscenities at us. The threats got bad enough that we asked to be

seated so we didn't have our backs to the audience. People were picketing along the roads

and standing at the entrances with all these hideous signs about how awful Audubon was.

The ORV folks' position was not to give in on anything that reduced vehicle access." Another negotiator, who requested anonymity, told me that his participation was "the worst thing he ever did," that the process was "extremely contentious," and that "the motorized faction was ugly, outrageous, and in your face." He's had to give up his passion, surf fishing, because he believes his life would be in danger if he set foot on the beach. Negotiators who

defended wildlife had nails thrown in their driveways, were refused service at restaurants,

and were warned to look under their cars before starting them. Directions to their houses were posted on the Internet. Their photos and names were printed on "wanted" posters worn on T-shirts and hung in public places, including at least one post office (though without authorization). A typical poster read: "Wanted for the economic ruin of Hatteras Island. The man is one of the

leaders of the beach ban. Consider him dangerous to your livelihoods and recreation." On March 30, 2009, after 14 months, 11 committee meetings, and scores of subcommittee meetings and workshops, facilitators of negotiated rulemaking gave up. This was just as well because the Park Service was then able to depend more on advice of wildlife scientists for the final plan. It's

hard to figure why, before the implosion of negotiated rulemaking, the agency felt constrained to ignore the advice of those scientists (many of whom it employs), seeking instead the advice of ORV operators who, for example, believe and publicly state that

piping plovers are invasive exotics.

3. AND, process CPs are a voting issue—steals AFF ground by taking the entirety of the 1AC and kills topic education—we don’t learn about oceans if we debate about which regulatory process is better.

4. AND, the AFF’s new conventional rulemaking processes are better than reg negs—solves the net benefit and doesn’t link to your offenseSiegler 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, the best approach to rulemaking often is what might be viewed as an

improved version of the traditional agency notice-and-comment rulemaking process. This

process can be an efficient way to develop a regulation if the regulation is not of broad applicability and is not particularly controversial. 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 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 in the fuels reg neg, EPA can decline to meet with API or other interests individually if EPA determines that it lacks sufficient time and resources. In contrast, once a reg neg has begun, the parties involved have made a commitment to listen to each other for at least a reasonable period of time. The improved traditional rulemaking process used to develop the three Clean Air Act rules mentioned above appears to have been beneficial to both API and EPA. EPA was able to meet its

deadlines for promulgating rules that will achieve significant reductions in emissions of hazardous air pollutants. Two of the three final rules (the petroleum refining rule and the marine vessel loading rule) escaped litigation. API did challenge the third

(gasoline distribution) rule,32 but the litigation was resolved through settlement discussions and minor amendments to the rule. In March 1995, EPA announced its intention to institute another variation in the traditional rulemaking process for developing rules pursuant to section 112(d) of the Clean Air Act.3 EPA was under the pressure of statutory deadlines to issue dozens of source category 4 regulations pursuant to section 112(d) by the year 2000 and announced a new "MACT Partnership" Program. The first phase of

the new approach to rulemaking, development of a "Presumptive MACT," involved several steps.37 In the first step, known as the

Presumptive MACT meeting, EPA and state and local agencies would develop a draft presumptive MACT based on currently available information and technology. This meeting would be followed by a consultation step, in which industry and environmental groups would offer comments on the

draft.3 9 Based on this input, EPA, in conjunction with state and local agencies, would generate a final Presumptive MACT and choose a path for development of a formal standard. The public would be given opportunities to comment on this final step of phase one.4' API, along with others in the industry, had concerns about the Presumptive MACT process when EPA first instituted it.42 One major concern was that the regulated community would be excluded from the initial meetings among EPA and the state and local agencies, which could possibly lead to misunderstandings about the industry and about available control technologies at a very early stage in the regulatory process. API believed these misunderstandings might lead to unnecessary delay and controversy. API also feared that a preliminary MACT determination, based on incomplete data or analysis, and without technical input from or review by industry, might be adopted prematurely as a final state or local requirement by a state or local agency, or even as a federal requirement if EPA failed to issue a federal rule on schedule.43 A final concern was that, once a preliminary MACT was developed, it might be difficult for industry experts to persuade EPA that significant changes were needed before a reasonable and practical proposed rule could issue. API has had experience with the Presumptive MACT process in connection with the development of a second rule restricting hazardous air pollutants from refinery processes, to be issued pursuant to section 112(d) of the Clean Air Act. This rule, referred to by the participants as "Refinery MACT II," is expected to be proposed in 1997 and promulgated in 1998. The Refinery MACT II rule will affect

emissions of hazardous air pollutants from three refinery process vents not addressed in the first refinery MACT rule. A Presumptive 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 conclusions 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 CP—even if Congress doesn’t mandate reg negs, agencies do it anyways due to federal oversightHsu 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.

Congressional representatives are wary of being viewed as seeking to weaken pollution control laws, and the jurisprudence of regulatory takings has not yet wandered into the realm of pollution control laws. By and large, pollution control laws administered by EPA would probably be considered a "background principle of law" that would survive a Lucas inquiry. By contrast, threats to biodiversity only seem to arouse a passion in Americans when they involve charismatic megafauna. For the most part, the most ecologically and economically important battles over biodiversity are fought over species that are not physically attractive, and the

extinction of would not cause a firestorm of protest. Also, there are hints that regulatory takings jurisprudence could 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 administrative state where bilateral negotiations may indeed be what we are stuck with, however. If that is the case, then mechanisms are needed for the constraint and monitoring72 of negotiations between agencies and regulated parties. Clear statutory standards that constrain the ability of agencies to make concessions are clearly needed in both the Project XL and the HCP contexts. Clearer standards would help ensure that negotiated agreements frustrate the basic goals of the underlying statutes, and would empower agencies at the negotiating table. Furthermore, clearer standards would communicate to regulated parties what will be expected of them as they develop plans for their property. Living with a more negotiation-oriented administrative state is also more tolerable if we can evaluate ex post the effectiveness of agencies in

carrying out their statutory mandate through negotiations. An empirical framework was presented in this article that demonstrates how this may be accomplished. While the data used for this empirical analysis does not permit robust conclusions to be drawn, the broader lesson from the empirical analysis is that if the generosity of negotiated agreements varies consistently with the environmental importance of the project, then we have reason to be concerned with the agency's bargaining position. This seems counter-intuitive – shouldn't the most ecologically sensitive areas receive the most protection, and the negotiated agreement be the least favorable to the landowner? Perhaps, but that does not mean that of those projects dealing with less ecologically sensitive areas, the landowner

should be given the run of her land. A negotiated agreement should result in both sides gaining something that accrues from the trading process, and there is no reason that the landowner should acquire all of the surplus. Finally, the transparency of negotiations must be protected, as organizations that play a watchdog role can only do so if their ability to

sue is protected. 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 bind—either perm do the CP solves or the CP causes more conflict—means a consensus can’t be reached and the CP doesn’t result in the planCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 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. Harter does not dispute that these challenges to negotiated rules were filed. Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. 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. 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. 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 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.151 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. As many as 80 percent of EPA's final rules are challenged—

often by both sides of an issue. A pilot program on regulators' negotiation offered an opportunity to test an alternative method

for proposing Agency rules that would permit all participants a face-to-face rule in decision¬making.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 years advocates of negotiated rulemaking have claimed a number of additional benefits from negotiated rulemaking.1^ but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules, 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. The Negotiated Rulemaking Act included in its preamble the

goal of reducing the likelihood of litigation. In addition. Republican and Democratic administrations endorsed 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 chal¬lenges.'-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, 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.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 report—and this is most crucial—that 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, 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 .'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 typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical challenge filed against a conventional rule. C. Negotiated Rulemaking Engenders Additional Conflict Not only does negotiated

rulemaking fail to eliminate litigation or reduce 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. 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

Process CPs Bad

Reject the team—process CPs are bad:

1. topic specific education —we don’t learn about oceans if we’re arguing about regulations

2. aff ground —allows the neg to steal the entirety of the 1AC

3. advocacy skills —prevents us from debating the merits of implementation of the plan since the CP does the plan; also kills neg advocacy skills—they don’t have to defend anything if they can just steal the 1AC

4. critical thinking —we don’t get to weigh our impacts against the neg’s impacts; prevents us from conducting cost benefit analysis

Counter Interpretation: NEG gets CPs that don’t result in the entire plan. Reject the team—this CP is uniquely abusive—at least we have some ground VS actor CPs but they do the entire 1AC

No Solvency

Generic

Generic

Reg negs are an epic fail—involving the public results in a stacked regulatory committee, violence, and mass chaosWilliams 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 park service was attempting a "negotiated rulemaking," bringing in the U.S. Institute for Environmental Conflict Resolution. The idea was to get the ORV and environmental communities to engage in rational discourse and compromise on regulations. Twenty-eight negotiators were selected. The four from state and federal governments said little. Of the remainder, 17 represented motorized

access; seven, wildlife-pedestrian interests. The facilitators directed negotiators to "commit to the principles of decency, civility, and tolerance," proscribed "personal attacks, name calling, and other such negative behaviors," and cheerily predicted that "the negotiated rulemaking process should not delay either the notice or the final regulation." One of the negotiators

was Golder . "They stacked the committee with ORV interests," he reports . "People were

screaming and yelling obscenities at us. The threats got bad enough that we asked to be

seated so we didn't have our backs to the audience. People were picketing along the roads

and standing at the entrances with all these hideous signs about how awful Audubon was.

The ORV folks' position was not to give in on anything that reduced vehicle access." Another negotiator, who requested anonymity, told me that his participation was "the worst thing he ever did," that the process was "extremely contentious," and that "the motorized faction was ugly, outrageous, and in your face." He's had to give up his passion, surf fishing, because he believes his life would be in danger if he set foot on the beach. Negotiators who

defended wildlife had nails thrown in their driveways, were refused service at restaurants,

and were warned to look under their cars before starting them. Directions to their houses were posted on the Internet. Their photos and names were printed on "wanted" posters worn on T-shirts and hung in public places, including at least one post office (though without authorization). A typical poster read: "Wanted for the economic ruin of Hatteras Island. The man is one of the leaders of

the beach ban. Consider him dangerous to your livelihoods and recreation." On March 30, 2009, after 14 months, 11 committee meetings, and scores of subcommittee meetings and workshops, facilitators of negotiated rulemaking gave up. This was just as well because the Park Service was then able to depend more on advice of wildlife scientists for the final plan. It's hard to figure why, before the implosion of negotiated rulemaking, the agency felt constrained to ignore the advice of those scientists (many of whom it employs), seeking instead the advice of ORV operators who, for example, believe and publicly state that piping plovers are invasive exotics.

It’s hopeless—reg negs failCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)

Why has negotiated rulemaking failed to achieve its principal objectives? At least three reasons can explain why the performance of negotiated rulemaking has failed to surpass the performance of conventional rulemaking. First, negotiated rulemaking actually creates new sources of potential conflict in the regulatory process, even though it is ostensibly designed to reduce conflict. Second, the structure of the regulatory process provides numerous opportunities to disrupt the consensus on which negotiated rulemaking depends. Third, conventional rulemaking has been more effective than previously thought, particularly in avoiding litigation. In this section, I explore these reasons and conclude that negotiated rulemaking, distinguished by its search for consensus, has

been an oversold solution to an overstated problem. At the outset, proponents of negotiated rulemaking might seek to explain negotiated rulemaking's performance differently by trying to shift some of the "blame." They might argue, for 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 themselves—which have sometimes been concluded over several months' time—but 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

analysis speaks is not whether negotiated rulemaking causes lawsuits or time delays. Rather, the issue is whether it prevents them. 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.

Case Specific

Aquaculture

Group Participation Creates Bias Decisions and Difficulty- Only Congress Ensures Bargaining With Group InterestsGrimes, 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. The management process sometimes requires that difficult

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, it 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, Congress ,

whose members are certainly politically accountable, has a great deal of influence over the agency via the

budgetary process and more informal oversight. These multiple avenues of oversight help ensure

some level of significant accountability that is sufficient to protect the legitimate interests

of affected persons without forcing the agency to engage in bargaining with the best interests of the public in

exchange for concessions from special interests with a strangle hold on the regulatory process.

Reg neg can’t solve aquacultureGPO, 01 (Government Printing Office, 01-16-2001, DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service (Docket No. 98-085-3) Aquaculture; Public Meeting AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of public meeting, http://www.gpo.gov/fdsys/pkg/FR-2001-01-16/html/01-1199.htm)

The commenters also suggested that any rulemaking initiated by APHIS be a negotiated rulemaking. In negotiated rulemaking, industry representatives and other interested persons meet with APHIS officials and draft proposed

regulations together. The proposed regulations are then published for public comment. Negotiated rulemaking is designed to ensure that all interested persons are involved together from the start in the

development of regulations. Unfortunately, negotiated rulemaking is not suitable for all

situations. It 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 fail—lack of experience leads to mass confusionRyan 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 221-245, 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. Often, the agency 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 regulatory negotiation setting is quite different (for both agency and other participants) than a traditional rulemaking setting. As a

result, EPA must adapt and learn to carry out its decision making activities in new ways. In the traditional rulemaking process, what the agency does and what is expected of it is clearly defined by a number of statutes and, for the most part, fulfilled in practice. In traditional rulemaking, agency staff is accustomed to filling a role as the ultimate decision maker and expert on regulatory or technical issues. Input from the public or other interested groups often consists of testimony at a single public hearing, or written comments submitted to the agency. The agency then

responds to comments, but does not engage in a direct dialogue with those who have commented on the proposed rule. However, 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 fail—terrible for industrySiegler 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 GroupsGrimes, 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) AJFinally, 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 the diverse interests that can claim to be substantially affected by regulating marine fishery resources , it would be hard to imagine that there was not an

interest group in the United States ready and willing to challenge a regulation

promulgated by a Council. However, it would be very difficult to include all such interests. It

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 consensus—reg negs failCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 if a search for consensus could avoid creating new kinds of conflicts, negotiated rulemaking still would have a difficult time succeeding in many cases for another reason altogether. Any procedure that depends for its success on the

maintenance of a consensus is, given the realities of the federal regulatory process, fighting

uphill . A consensus forged at the earliest stages of the rulemaking process is inherently fragile because the structure of the American administrative state provides numerous opportunities for that consensus to unravel. Even if all the participants in the negotiated rulemaking reach a consensus, the agency must still prepare a preamble to a proposed rule and provide an opportunity for public comment on that proposal. If the public comment period is to be meaningful, the agency must consider changing the proposed rule in light of any negative comments it receives on a proposal, even if such a change entails a retreat from a consensus. In addition, during the development of the proposed and final rule, the agency receives input from the Office of Management and Budget (and sometimes other executive branch officials) which may lead the agency to modify features of a rule. Members of Congress may step in and attempt to pressure the agency or change the underlying statute in such a way as to disrupt the consensus. As we have seen, other interest groups may also challenge the rule in court, which can lead an agency to change the rule further. Finally, even if a consensus reached during the early stages of rulemaking could remain intact through all the subsequent stages, the agency can decide at a later time to revise the rule. Theories predicting the success of negotiated rulemaking are based on the assumption that everyone who could ever conceivably take an interest in a rule will come to a complete and stable agreement on every particular aspect of that rule. If that could happen throughout government as well as throughout the interest group community, a rule could theoretically sail undisturbed through the entire

rulemaking process. Yet what is theoretically possible is different than what is realistically probable. The intervention by a few

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

maintaining consensus a bit like building a house of cards. Of course, negotiated rulemaking is not really even

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, it is not surprising that negotiated rulemaking has failed to achieve its principal objectives. Negotiated rulemaking does not change at all the features that make the regulatory process lengthy at times and susceptible to the pursuit of judicial redress. Moreover, these same features, namely the multiple avenues of input, tend to work against the

maintenance of consensus, which is the touchstone of negotiated rulemaking. In this sense, negotiated 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 same "embeddedness" that helps keep EPA and other regulatory agencies under control also makes it more difficult for these agencies to sustain agreements reached through negotiated rulemaking.

Can’t Solve- Party Consensuses are Difficult and Negotiations Alter Original Policies 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

Other 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 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, that the process did not appear to be

more 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 InterestsGrimes, 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. The management process sometimes requires that difficult

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, it 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, Congress ,

whose members are certainly politically accountable, has a great deal of influence over the agency via the

budgetary process and more informal oversight. These multiple avenues of oversight help ensure

some level of significant accountability that is sufficient to protect the legitimate interests

of affected persons without forcing the agency to engage in bargaining with the best interests of the public in

exchange for concessions from special interests with a strangle hold on the regulatory process.

Overturn

Court unpopularity and personal interests block solvency—lack of legal binding means that the CP can be overturnedHarter 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) DengNegotiated 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

the agency left to its own. The court's narrow, erroneous perspective colored the rest of the analysis. The court finds that neither the 1992

Amendments to the Higher Education Act nor the Reg-Neg Act specify a remedy for bargaining in bad faith, and it muses that the latter "strongly implies there is none." But, the court 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

rather the decision of the officer of the United States to adopt the proposal. The proposal, however, is crafted by the full diversity of interests and generally raises issues beyond those available to the agency if left to its own. The pejorative "consensus of the regulated industry" is both erroneous and only

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

agreement without modification would render any subsequent notice and comment a nullity. The typical practice in reg neg, however, is to make it clear that the agency will be required to change the proposal in response to meritorious comments received on the NPRM. The question presented here is

not that but rather whether the agency can have a change of heart and mind so that it simply repudiates the agreement. General principles of administrative law require the agency to explain the reasons for a significant deviation from its earlier proposal in 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 quite clear just what is and what is not part of an agreement. While the end results are likely right, the court's mischaracterization of the negotiated rulemaking process and labeling it as simply a "an administrative novelty" that provides a "consultative process in advance of the more formal arms' length procedure

of notice and comment rulemaking" are unfortunate. If that is the case, much of the power of reg neg would be lost,

since it is precisely the ability to reach closure on critical issues that separates it from a mere advisory committee or other consultative process. Several issues with respect to the judicial review of negotiated rules need resolving in an informed, authoritative manner. Not only was this case a missed opportunity to start on that process, the court's lack of understanding only confuses the ultimate issues and makes the ultimate task more difficult.

Public Interest

Reg Neg fails—inability to accommodate public interests, limited testing and no incentive to cooperateStewart 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 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

Renewables

Agency interests and low probability of cooperation overwhelm attempts to meet public interest---internal link turns the net benefitFunk 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&cisb=22_T20294998793&treeMax=true&treeWidth=0&csi=7336&docNo=5) DengD. 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.

The same could be said for 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, 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

serve its purposes? The 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.

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 District chose to fund the expert at a modest amount, a decision that on balance seems correct for several reasons. First, pragmatically, without the funding the environmentalists might well have concluded that they could not effectively participate further in the rulemaking. Under the protocol for the negotiation, all participants retained the

right to withdraw at any time. Funding the expert thus promoted an equality of participation in the process, and without that equality, the negotiation was probably doomed to failure. Second, because this negotiation was premised on the exchange of information, the District had some expectation that the money spent on the consultant would result in information that would be available to all the parties. In that sense, the information generated by the consultant did not become proprietary, but instead benefited all interests in the negotiation. A different situation would result if the consultant were to be used only for private advisement of a single party. Third, the consultant's efforts here brought a different viewpoint to the bargaining table. The consultant made a presentation to the Working Group in which he argued that the cost of fume suppressants, supposedly much lower than the installation of add-on controls, was actually more expensive than the add-ons when the analysis considered the costs that would be eliminated if HEPA filters were used. (214) The presentation also suggested that if add-on controls were required, the District might reduce industry recordkeeping requirements for the use of fume suppressants. Ironically, the parties disagree about whether the environmentalists' consultant played a large role in the outcome of the negotiations. An industry representative declared that the consultant added very little and disagreed with the consultant's opinion that the installation of add-on pollution control devices (e.g. HEPA filters) might well, in the long run, be cheaper than using fume suppressants. (215) In

contrast, 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 consultant's agreement on these issues came at a crucial stage in the negotiations, and his agreement played a role in beginning the process of bridging the gap in the positions of the environmentalists and the industry. While an expert will not perform this function in every case, here it proved crucial.

Perm do the CP

Perm do the CP—even if Congress doesn’t mandate reg negs, agencies do it anyways due to federal oversightHsu 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.

Congressional representatives are wary of being viewed as seeking to weaken pollution control laws, and the jurisprudence of regulatory takings has not yet wandered into the realm of pollution control laws. By and large, pollution control laws administered by EPA would probably be considered a "background principle of law" that would survive a Lucas inquiry. By contrast, threats to biodiversity only seem to arouse a passion in Americans when they involve charismatic megafauna. For the most part, the most ecologically and economically important battles over biodiversity are fought over species that are not physically attractive, and the

extinction of would not cause a firestorm of protest. Also, there are hints that regulatory takings jurisprudence could 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 administrative state where bilateral negotiations may indeed be what we are stuck with, however. If that is the case, then mechanisms are needed for the constraint and monitoring72 of negotiations between agencies and regulated parties. Clear statutory standards that constrain the ability of agencies to make concessions are clearly needed in both the Project XL and the HCP contexts. Clearer standards would help ensure that negotiated agreements frustrate the basic goals of the underlying statutes, and would empower agencies at the negotiating table. Furthermore, clearer standards would communicate to regulated parties what will be expected of them as they develop plans for their property. Living with a more negotiation-oriented administrative state is also more tolerable if we can evaluate ex post the effectiveness of agencies in

carrying out their statutory mandate through negotiations. An empirical framework was presented in this article that demonstrates how this may be accomplished. While the data used for this empirical analysis does not permit robust conclusions to be drawn, the broader lesson from the empirical analysis is that if the generosity of negotiated agreements varies consistently with the environmental importance of the project, then we have reason to be concerned with the agency's bargaining position. This seems counter-intuitive – shouldn't the most ecologically sensitive areas receive the most protection, and the negotiated agreement be the least favorable to the landowner? Perhaps, but that does not mean that of those projects dealing with less ecologically sensitive areas, the landowner

should be given the run of her land. A negotiated agreement should result in both sides gaining something that accrues from the trading process, and there is no reason that the landowner should acquire all of the surplus. Finally, the transparency of negotiations must be protected, as organizations that play a watchdog role can only do so if their ability to

sue is protected. 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 CP—it’s functionally the same thingFreeman 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 neg was not a dramatic departure from traditional rulemaking,

proponents pointed out that informal negotiation with stakeholders has always been an essential part of the rulemaking process. Negotiated rulemaking merely formalizes negotiation and utilizes it earlier

in the rulemaking process, when it is likely to be most useful. In this view, agencies actually conform to congressional intent by using processes like reg neg; consultation with the entities that might be harmed by legislation is precisely what Congress intends when it delegates decision-making authority to the agency.59

Perm do the CP is justified—its functionally the sameFreeman 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)

According to this view, Congress delegates the details of legislation to the agency when members are uncertain about how to achieve their goals; the agency merely behaves as Congress intends when, under conditions of uncertainty, it in turn consults the most affected parties about the details of a regulation . Even conventional rulemaking involves considerable negotiation

with affected parties, which Congress also intends and approves ; by formalizing these negotiations in the

form of reg neg, Congress simply enables itself to better monitor agency consultation with stakeholders. Thus, in this view, agencies are always responsive to affected parties because failure

to listen prompts congressional wrath.

AT

CP Solves Better

AT: Delay/Speed

Turn—negotiations take longer; CP fails to solve in timeSelmi 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.)//kyD. 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, observations made by participants in negotiated rulemakings confirm that negotiations require a greater time commitment than anticipated at their outset. (255) The metal-finishing rulemaking unquestionably fit the time-consuming pattern. During negotiations, both industry and environmentalists requested a sufficiently slow pace to

allow for the compilation of additional technical information. (256) If a negotiation includes a process to facilitate data exchanges and resolve outstanding technical issues, as this negotiation did, parties must expect that negotiations will lengthen substantially. The parties' attitude toward the length of the plating negotiation suggests that the academic debate over whether negotiations save time is misplaced. The question should not be whether a negotiated rule took longer to fashion than a rule adopted by notice and comment rulemaking. Instead, the focus should be on whether the benefits of the negotiated rule were worth the investment of extra time. As a general rule, a successful negotiation will provide a well-balanced and widely accepted rule, as well as a more complete record to support the rule. Extra time involved in lengthened negotiations seems, in most instances, a

fair trade for these benefits. The length factor, however, does serve to narrow the types of disputes suitable for negotiation at the state or regional level. Where the agency is under a time frame mandated by statute, regulation, commitment, or court order, it cannot be expected to employ a potentially time-intensive process like regulatory negotiation. For example, the CAA requires a state regulatory agency to implement measures adopted in a SIP, a mandate that may limit the agency's options as well as the time it

may take to act. The agency cannot afford the more open-ended, time-consuming process of a negotiation. The concern over length also suggests that more attention should be paid to whether the negotiation process can be shortened.

Some delay in negotiation is inevitable. For example, time delays from initial "posturing" and caucusing are inherent in the negotiation process. Other delays, however, might be avoided, perhaps through procedural miles. On a number of occasions during the metal finishing negotiation, for example, the agency produced technical information either right before or at a meeting. As a result, the parties could not adequately digest and respond to the information. More structure in the negotiation process might largely avoid this difficulty. Finally, more attention paid to the length of the negotiation might also provide another benefit. Creative facilitators may be able to turn the parties' general concern over undue length in the negotiation process to an advantage by pressuring the parties to identify and focus their true priorities more quickly. (257)

Reg negs don’t solve fasterCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)

A. The Length of Negotiated Rulemaking Proceedings One advantage formal negotiated rulemaking purportedly has over informal rulemaking is its ability to produce rules in less time. Yet the impact negotiation has on 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

proclaimed efficiency, the NPR authors also interestingly cautioned Congress not to impose "short statutory deadlines to issue proposed or final rules, especially if they are shorter than two years (because this may) preclude the use of negotiated rulemaking." In at least one instance, a federal agency decided that "negotiated rulemaking was not a practical option" for the development of regulations because of statutory time constraints. Although negotiated rulemakings may not be sufficiently fast when an agency must meet stringent deadlines, overall they have been thought to be potential time-savers. To measure the impact of negotiated rulemaking on

regulatory development time, I analyzed the federal negotiated rulemakings that have been completed to date. The average negotiated rulemaking takes a little less than two and a half years to complete, from the time the agency announces its intent to form a negotiated rulemaking committee to the time the final rule is published (see Table 3). Among all 35 regulatory negotiations that have yielded final rules, the shortest took only about half a year to

complete—Coast Guard regulations for drawbridges over the Chicago River (179 days). At the other extreme, the EPA's farmworker pesticide protection standards, which failed to achieve full consensus after one of the parties left the negotiation, took 2,528 days, or nearly seven years, to complete. The average number of days for completion so far has been 835 (with a stan¬dard deviation 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 dur¬ing 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

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. 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 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. 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

Department of Education "has reported that it realized no significant time savings

through the use of the process." In addition, it is important to keep in mind that the mere passage of chronological time—from notice of

intent to final rule—probably itself understates the amount of time devoted to negotiated rulemaking. After all, rules that the EPA issues m a shorter amount of "chronological time" may well reflect the expenditure of substantially more "aggregate time" by agency staff and interest group representatives. Rules that appear to take more chronological time may do so simply because they sit dormant while agency staff members tend to other matters. Even though negotiated rulemaking at the EPA takes at least the same amount of

chronological time as all rules studied by Kerwin and Furlong, by most accounts negotiated rulemaking demands much more

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." Once the negotiations are completed,

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 can’t solve time or litigationCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation.16 The agency rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. * Hatter'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.14 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. "2<i 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.- 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. 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,35 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized,2(1 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. As of 1996. EPA had completed twelve negotiated rulemakings,2^ more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and the Department of Education have also been

among the most frequent users of negotiated rulemaking.2iJ Has the use of negotiated rulemaking "cured" the malaise 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 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.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 don’t resolve delays or litigation---best empirically validated researchCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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/) DengI 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, n28 more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and (*393) the Department of Education have also been among the most frequent users of negotiated rulemaking. n29 Has the use of negotiated rulemaking "cured" the malaise 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. n30 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. n31 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. 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

process. Harter and other advocates of negotiated rulemaking have not adhered to these rudiments of empirical research and have written favorably about negotiated rulemaking without making careful, explicit comparisons between its outcomes and the outcomes of conventional rulemaking. At the time the Negotiated Rulemaking Act was re-authorized in 1996, n38 the evidentiary basis on which to draw conclusions about the success 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

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. n47

The median duration is also about the same for negotiated and conventional rules. n48 Negotiated 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 thirty-five 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

(1108 days) that was higher than the median duration (872 days). My analysis results in a similar distribution: a higher average duration for EPA's negotiated rulemakings (*414) (1013 days) than a median duration for these same rules (872 days). This suggests that conventional rulemaking has had its outlying cases, just as has negotiated rulemaking. Harter's average for

negotiated rulemaking is different, but only because he has truncated the data on negotiated rulemakings. Even though Harter's average duration is substantially lower

than what I find, his median duration for negotiated rulemaking, not surprisingly, differs very little. n130 When the data are properly analyzed, the median - as well as the average - duration of EPA's negotiated rulemakings is only ninety-five days shorter than the respective data from Kerwin and Furlong's comparison group. It should be remembered, of course, that by using the notice of intent to 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

Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process, 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, "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

counterparts in conventional rulemakings. n137 Strikingly, participants in negotiated rulemakings are three times more likely to complain that the process takes too much time and effort. n138 Whatever one makes of the 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

rest having been voluntarily dismissed by the parties. n184 I also report - and this is most crucial - that most petitions for review of EPA rules are voluntarily dismissed by the parties. n185 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." n186 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. 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

process, albeit with a smaller number of participants. n188 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 to 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. 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 Not only does negotiated rulemaking fail to eliminate litigation or reduce 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 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.

AT: Democracy/Fairness

Reg Neg can’t solve, information asymmetries allow certain parties to control negotiationsFreeman 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 many instances (60% of mentions), respondents replied that necessary information did not become available during the course of the reg neg.133 Technical and scientific information was deemed to be most lacking (20% of mentions), followed by information about the positions of others (13% of mentions), and economic or cost information (10%), while the remaining 40% of responses indicated that no essential information was lacking.134 This suggests, contrary to the critics’ assertions,135 that the process does expose much, albeit not all, of

the essential information for informed decision making. Reg neg participants reported as reasons for the absence of information, when it was missing, that it was known by some but not shared (31%), that it was too expensive to obtain (23%), or that it was simply not available (20%).136 However, of those who reported a lack of information, 23% indicated that it ultimately became available at some point in the

negotiation process.137 From the Phase I data, it appears that the strategic withholding of information—thought to be common in conventional rulemaking— was perceived by some participants (31%) to be an issue in reg neg as well.138When reservations about the quality of information surfaced, they were more likely to come from groups with limited resources.139 Environmentalists were the least likely to report that they had all of the information they needed; indeed, no environmental representative mentioned this, compared to 70% of business mentions and 36% of EPA mentions.140 Environmentalists were also most likely to report that they needed scientific and technical information: 64% of their mentions referred to this,

compared to about 25% for business and 0% for the EPA.141 Another dimension of information not directly probed in the interviews emerged when several respondents reported having difficulty absorbing and understanding the implications of information offered during the course of the negotiated rulemaking. 142 Others referred to a number of technical presentations that occurred simply to establish a minimum level of technical competence in the issue under presentation.143 This matter is significant for a number of reasons. As Kerwin and Langbein reported: The intense education that surely occurs in reg neg can properly be viewed as an effort to mitigate the information

asymmetries that critics of reg neg assume will persist with this technique. 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

Turn—reg 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 negotiation invites agency abdication of responsibility, they argued, by shifting the decision-making burden to stakeholders who owe no duty to the public or to Congress.

The process thus embodies what many administrative law theorists viscerally fear : the last step

from a system of arm’s-length interest representation—which preserves the agency’s hierarchical authority—to one of direct interest group bargaining.44 At a time when public choice theory and its unsentimental account of the legislative and administrative process was on the

ascendance in law schools, regulatory negotiation seemed to portend its darkest implications.45

Critics argued, moreover, that even if a consensus-based approach to rulemaking might meet democratic standards of legitimacy under some circumstances, surely regulatory

negotiation would not succeed in practice . First, the process is insufficiently inclusive because only a limited number of parties can participate without negotiations becoming unwieldy.46 Moreover, the power to convene a negotiating group carries with it the power to manipulate outcomes. Alone, or in collusion with powerful groups, the agency might rig outcomes in advance through the selection

of some stakeholders and the exclusion of others. In addition, critics anticipated that a consensus approach would favor more powerful, well-financed interests with access to money, information, and technical expertise.47 Trade associations and large firms in particular would enjoy significant advantages over smaller parties or parties with fewer resources, such as state

governments, environmental or labor groups, or small businesses. This advantage, critics believed, would translate into

influence over the outcomes . Moreover, even if agencies could balance negotiating committees with representatives from all sides, no single interest could adequately represent the average voter or consumer and, for this reason alone, the process would fall short of

American standards of democratic legitimacy. Indeed, critics suspected that regulatory negotiation would be more

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 participateFreeman 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

Reg neg is unfair—big businesses have more influenceFreeman 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)

At the same time, regulatory negotiation falls short of an ideal process. Participants perceive it to be more resource and information intensive than conventional rulemaking, and smaller, poorer participants disproportionately bear these costs. These same groups also suffer from information asymmetries. The data reveal a number of inequities which could, if not mitigated, harm smaller interests with fewer resources. Recall, for example, that smaller, poorer groups found the decision to participate in reg neg more difficult. During interviews, Kerwin and Langbein detected a fear among smaller, poorer participants that refusal to participate might seriously damage the group's interests. That is, even if they might have preferred a conventional rulemaking

because of the lower time and effort required, these groups felt pressured to join the reg

neg. Thus, unless EPA provides supplemental assistance to mitigate the resource drain on these groups, they might feel somewhat coerced into participation. Unequal access to information continues to be an ongoing problem in regulatory negotiation. Although the intense education and learning that occurs during negotiations

can help to mitigate information asymmetries, the disparities may still be substantial enough to give

disproportionate agenda-setting power to groups with greater resources. Information asymmetries

seem particularly problematic in this context, given its information-intensive nature. Finally, the data indicate that parties continue to

devote considerable time and resources to the rule after the negotiating committee disbands during the post-proposal phase. Indeed, as noted earlier, post-proposal activity generated changes in the proposed rules, most of which were minor, but some of which were substantial. At the post-

comment 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. But it is not clear that reg neg exacerbates this disparity.

Reg Negs don’t solve democracy---empirically failsSeidenfeld 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

Unfortunately, there 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 reason to be skeptical that collaborative governance can provide democratic legitimacy to deliberative administration stems from the improbability that interest group representatives will actually reach a consensus on val-ues underlying rulemaking choices. n256 A representative of a stakeholder group often is the individual most

(*1438) committed to the values underlying her group's interests. n257 She is not like an elected official, who is voted on by con-stituents to represent their interests, but does not have a direct interest in the matter herself. n258 Instead, interest group leaders are policy entrepreneurs who often have created the groups that they represent. n259 Given the time and energy it takes to organize such a group, especially one whose members share a diffuse interest in a regulatory matter, these representatives are less likely than individual

stakeholders to compromise or change their values. Moreover, the mech-anisms by which some interest groups maintain their viability create agency costs that reinforce group leaders' propen-sity not to amend their positions in light of deliberation. n260 A group, especially one that represents extreme preferences in heated controversies, may lose its raison d'etre if those controversies are resolved. n261 Intransigence and extreme stances often generate publicity that increases group membership, even when the true interests of group members might be better served in the long run by compromise

and more moderate positions. n262 In light of these observations, it is not surprising that experiments with collaborative governance have rarely suc-ceeded, or have succeeded only by abandonment of the principles of collaboration. First, it has remained relatively rare for agencies even to attempt negotiated rulemaking. n263 Among those agencies that have tried, only a few have suc-ceeded. n264

Many attempted negotiated rulemakings stalled because (*1439) of a lack of consensus among members of the negotiating committee; n265 at least one failed upon implementation because, although the proposed rule seemed to reflect consensus, it left contentious issues unresolved. n266 Other experiments such as the EPA's "Project XL" have achieved consensus only in select contexts, and then usually only because the Agency explicitly excluded hardline groups in the process of developing XL plans. n267

Reg Negs fail to uphold democracy---Abbott 98 (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) DengIn 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 Jürgen 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 is the potential effect of negotiated rulemaking on other institutions for deliberative democracy? For the internal critique I argue that the procedures for negotiated rulemaking will not produce among the participants the agreement and cooperation which is the legislative intent. For the external critique I argue that negotiated rulemaking will not result in democratically-legitimated regulation. In addition, the practice of negotiated rulemaking will further weaken the functioning of the public sphere, as Habermas theorizes it, as the central institution of deliberative democracy. The primary implication is the need to mitigate further development of administrative agencies as isolated, self-regulating systems, which have been loosened from the controls of democratic governance, through the development of a robust public sphere in which affected persons may achieve mutual understanding.

Reg Neg is undemocratic---allows those with less public support to make the decisionsABA 13 (The American Bar Association is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation of model ethical codes related to the legal profession, “NEGOTIATED RULEMAKING AND THE PUBLIC INTEREST”. Published September 19th 2013. Print)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 rule with which it does not ultimately concur. This is true even though the agency assumes an obligation to negotiate in good faith to achieve a consensus on the draft rule, and ordinarily agrees to support the rule achieved through such consensus. An important premise of reg-neg, of course, is that the agency has voluntarily and for strategic reasons chosen to sponsor the negotiation process. This does not, however, logically require or even suggest that the agency abdicate its responsibility to fulfill its legislative mandate and legal obligations. Most criticism of reg-neg, however, hinges on the second argument: that administrative agencies are uniquely able to discern the public interest. Professor Funk, for example, embraces the notion of the agency as rational expert, seeking the one true answer that best reflects the needs of the nation. He states that: “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.” While this is undoubtedly true, he frankly admits that “(w)hat is meant by the public interest is not always clear.” 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.” Funk’s definition does little more than substitute one word (best) for another (public). This “troublesome” word—best—begs the question, however, and Funk’s circular argument seems to comes down the assertion that the agency must avoid collaboration and make the decision alone, because…well, because that’s 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 itself—admirably 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 nation’s 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,

McCloskey’s 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 result—i.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 assess—empirically and otherwise—how 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 interest—like the related concept of legitimacy—is a “usefully vague…administrative 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.

AT: Legitimacy/Conflict

Negotiated Legislation Restricts Public Opinion- Creates BacklashGrimes, 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 do not "(substitute the participation requirements) for the agency's responsibility to engage in reasoned decisionmaking in search of the public interest.

AT: Litigation/Court Clog

Turn—reg negs cause more litigation and are costlier—conventional rulemaking solves bestCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 rulemaking—among them better information, shared learning, or heightened feelings of community—have 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

process, experience has so far shown otherwise. Negotiated rulemaking does not appear any more capable of limiting regulatory time or avoiding litigation than do the rulemaking procedures ordinarily used by agencies. The agency that has used negotiated rulemaking the most, the EPA, has not seen its negotiated rules emerge in final form any sooner than rules not subject to formal negotiation. Once promulgated, negotiated rules still find themselves subject to legal challenge .

The litigation rate for negotiated rules issued by the EPA has actually been higher than

that for other significant EPA rules. 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 negotiated rulemaking seeks to eliminate conflict, it also adds new sources of conflict and raises unrealistic expectations about what participants can gain from their participation. To meet negotiated rulemaking's instrumental goals, agencies must secure and maintain a consensus, something which is not easy to sustain throughout the entire regulatory process. The multiple avenues of input and oversight in the regulatory process increase the likelihood of policy changes that depart from an early agreement made by a select group of negotiators. Despite these multiple avenues of influence in the

regulatory process (or perhaps in part because of them), agencies are ordinarily more effective in

crafting rules that avoid litigation without formal negotiation. Agency staff members

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,

negotiated rulemaking demands a considerable investment of time, resources, and energy

from all who participate in the process. 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.

Turn—reg-negs increase litigationCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 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. Harter does not dispute that these challenges to negotiated rules were filed. Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. 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. 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. 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 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.151 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. As many as 80 percent of EPA's final rules are challenged—

often by both sides of an issue. A pilot program on regulators' negotiation offered an opportunity to test an alternative method

for proposing Agency rules that would permit all participants a face-to-face rule in decision¬making.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 years advocates of negotiated rulemaking have claimed a number of additional benefits from negotiated rulemaking.1^ but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules, 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. The Negotiated Rulemaking Act included in its preamble the

goal of reducing the likelihood of litigation. In addition. Republican and Democratic administrations endorsed 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 chal¬lenges.'-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, 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.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 report—and this is most crucial—that 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, 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 .'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 typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical challenge filed against a conventional rule. C. Negotiated Rulemaking Engenders Additional Conflict Not only does negotiated

rulemaking fail to eliminate litigation or reduce 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. 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.

Turn—reg negs cause more conflictCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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. The decision to use a select committee whose representatives will

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, even a small number of excluded parties can pose

a threat to the effectiveness of negotiated rulemaking. In Kerwin and Langbein's study, twelve percent of the

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 likelihood that an agency excludes even one organization from a negotiated rulemaking committee poses an inherent threat to the effectiveness of a procedure that depends on consensus to foreclose litigation. In addition to conflict over committee membership, negotiated rulemaking adds conflict over the meaning of any consensus and the extent to which an agency's decision reflects that meaning. Sometimes conflicts arise

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 can also arise over what was not agreed to in the negotiated agreement—what might be termed expressio unius disputes. These disputes center on whether a negotiated agreement's silence on an issue reflects an agreement that the agency take no action. In the reformulated gasoline case, the American Petroleum Institute charged that EPA's decision to impose second phase nitrogen oxide standards contravened the agreement because the agreement did not address second phase standards. The EPA rejected API's administrative petition, concluding that the agreement's silence allowed the agency to proceed without retreating from the

consensus. More notably, 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, we would expect the organization to perceive its interests to be more severely aggrieved in the latter case. Similarly, we might expect representatives of organizations excluded from a negotiation committee to react more acutely to an adverse portion of a rule if they knew the rule was developed in explicit consultation with other organizations having potentially divergent interests. In a more general sense , we can expect

negotiated rulemaking to heighten conflict simply because of the intensity with which

groups scrutinize the rules that are the subject of negotiations. 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 doesn’t solve litigationFreeman 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, if litigation measures conflict, then reg neg seems to perform as well (or as poorly) as conventional rulemaking. Litigation rates for both kinds of rules, according to Kerwin and Langbein, were about the same.263

Reg negs fail to solve and conventional regulations don’t cause litigation—impact is exaggerated 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)It has been widely believed that interest groups challenge virtually every EPA regulation in court. In arguing that judicial review has imposed undesirable costs on agency management, for example, political scientist James Q. Wilson emphasized that "(o)ver 80 percent of the three hundred or so regulations EPA issues each year wind up in the courts." Making a similar argument, Philip Howard invoked this statistic in his

best-selling critique of the modern regulatory state. As Appendix D shows, the belief that 80 percent of EPA rules get challenged in court has woven its way into an exhaustive body of work by journalists, governmental officials, and scholars. The original source of the 80 percent statistic has remained largely obscure. The statistic, which originated in speeches given by William Ruckelshaus, has been attributed at different times to at least two other EPA administrators: Lee Thomas and William Reilly. Part of the ambiguity of the 80 percent statistic stems from confusion about precisely what it means. In some accounts the 80 percent figure purports to be the litigation rate for all EPA "decisions;" in others it is the rate for all EPA "rules"

or "regulations;" and in still others it represents the litigation rate for all "non routine" or "major" rules. Sometimes the 80 percent rate has even been inflated to 85 percent. Amazingly, 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 percent—precisely the opposite of the rate

widely assumed. As is sometimes acknowledged, the 80 percent figure was not originally intended to describe 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 higher—35

percent—but 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 rule—the wood furniture coating regulation—drew 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 associations—the American Petroleum Institute, the American Iron and Steel Institute, and the Institute for Chemical Waste Management—intervened 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 this review of the several challenged EPA rules demonstrates, negotiated rules are vulnerable to a variety of legal objections .

Participants file judicial petitions when they believe the final rule is inconsistent with the

negotiated agreement or when it contains adverse provisions not addressed by the

negotiation. Nonparticipants also file petitions when a final rule adversely affects their

interests. In each of these examples, petitioners challenged EPA rules notwithstanding the fact that

the rules had been developed using the negotiated rulemaking process. Although only two of the six

challenged rules 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 negotiated rulemaking have touted it as the solution to a perceived problem of excessive litigation challenging federal regulations. Yet the prevailing perception of this problem has been overdrawn. The actual level of litigation over EPA rules is dramatically lower than

has been widely believed, and litigation itself often provides a forum for continued

negotiation in the rulemaking process. Just as the extent of the supposed problem of

litigation has been overstated, so too has the effectiveness of negotiated rulemaking as a

means of reducing litigation over federal regulations. The experience so far has been that legal 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 can’t solve litigation—empirics proveCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 other petroleum companies filed petitions raising objections to the reformulated gasoline rule. First, Fina Oil and Chemical Company objected to the individual baseline assigned to it in the rule. In response, EPA agreed to adjust Fina's baseline in an administrative proceeding. Second, Amerada Hess Corporation filed a judicial review petition objecting to the limits EPA placed on fuel parameters. The final rule relied on both a "simple

model" and a "complex model" to establish fuel parameters. Amerada Hess argued that the limits EPA placed under the "simple model" were inconsistent with those under the "complex model." EPA 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 of early 1997, these revisions were still undergoing the intra-agency review process before being proposed in the Federal Register . The litigation challenging the reformulated gasoline rule was only one

manifestation of the persistence of conflict, notwithstanding the agency's efforts to secure

consensus. The reformulated gasoline rule also distinguished itself by prompting intense

public criticism. While few EPA 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 reported headaches and dizziness associated with methyl tertiary butyl ether (MTBE), the additive used to comply with the new standards. Others complained about higher fuel prices. To this day, press reports about the rule continue, though now they focus on cases of groundwater contamination with MTBE, a substance which is reported to be a possible carcinogen. The API also subsequently challenged the final reformulated gasoline rule in an administrative action. It argued that the second phase of nitrogen oxide restrictions in the reformulated gasoline was inconsistent with the negotiated agreement and the Clean Air Act. Although EPA claimed that only the first phase restrictions were addressed by the negotiated rulemaking committee, it responded to API's petition by soliciting further comments on that portion of the rule. Eventually, EPA rejected API's administrative motion arguing that the second phase restrictions were ruled out by neither the negotiated agreement nor the

Clean Air Act. Finally, 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 of the Department of Education's negotiated rules have ended up in court. Student loan regulations, promulgated using negotiated rulemaking, have been challenged at both the district and appellate court levels. In contrast to the conventional view that negotiated rulemaking has eliminated legal challenges to federal regulations, it is plain that such challenges still arise even after an agency has used a negotiated rulemaking procedure. Of course, the fact that groups have challenged some negotiated rules does not fully respond to the claim that a consensus-based approach reduces the frequency of litigation. To determine whether the litigation rate for negotiated rules is notably lower than that for conventional rules, as the NPR report

suggested, it is first necessary to determine the actual litigation rate for conventional rules. Since the EPA has often been used as the benchmark, I use the EPA for purposes of my analysis as well.

Reg-negs can’t solve time or litigationCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation.16 The agency rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. * Hatter'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.14 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. "2<i 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.- 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. 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,35 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized,2(1 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. As of 1996. EPA had completed twelve negotiated rulemakings,2^ more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and the Department of Education have also been

among the most frequent users of negotiated rulemaking.2iJ Has the use of negotiated rulemaking "cured" the malaise 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 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.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 don’t resolve delays or litigation---best empirically validated researchCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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/) DengI 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, n28 more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and (*393) the Department of Education have also been among the most frequent users of negotiated rulemaking. n29 Has the use of negotiated rulemaking "cured" the malaise 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. n30 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. n31 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. 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

process. Harter and other advocates of negotiated rulemaking have not adhered to these rudiments of empirical research and have written favorably about negotiated rulemaking without making careful, explicit comparisons between its outcomes and the outcomes of conventional rulemaking. At the time the Negotiated Rulemaking Act was re-authorized in 1996, n38 the evidentiary basis on which to draw conclusions about the success 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

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. n47

The median duration is also about the same for negotiated and conventional rules. n48 Negotiated 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 thirty-five 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

(1108 days) that was higher than the median duration (872 days). My analysis results in a similar distribution: a higher average duration for EPA's negotiated rulemakings (*414) (1013 days) than a median duration for these same rules (872 days). This suggests that conventional rulemaking has had its outlying cases, just as has negotiated rulemaking. Harter's average for

negotiated rulemaking is different, but only because he has truncated the data on negotiated rulemakings. Even though Harter's average duration is substantially lower

than what I find, his median duration for negotiated rulemaking, not surprisingly, differs very little. n130 When the data are properly analyzed, the median - as well as the average - duration of EPA's negotiated rulemakings is only ninety-five days shorter than the respective data from Kerwin and Furlong's comparison group. It should be remembered, of course, that by using the notice of intent to 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

Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process, 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, "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

counterparts in conventional rulemakings. n137 Strikingly, participants in negotiated rulemakings are three times more likely to complain that the process takes too much time and effort. n138 Whatever one makes of the 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

rest having been voluntarily dismissed by the parties. n184 I also report - and this is most crucial - that most petitions for review of EPA rules are voluntarily dismissed by the parties. n185 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." n186 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. 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

process, albeit with a smaller number of participants. n188 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 to 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. 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 Not only does negotiated rulemaking fail to eliminate litigation or reduce 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 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.

AT: Information Sharing

Negotiations fail – unequal levels of expertise stops information sharing 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.)//ky3. Affording Technical Assistance to Parties The negotiations raised complex technical issues, including the feasibility and expense of control measures, the validity of emission factors used to calculate emissions from plating operations, and the feasibility of alternative plating materials.

Accordingly, technical expertise available--or not available--to the parties played an important role in the negotiations. In examining these technical questions, a consultant was available to the plating industry. He had worked with the

industry for many years, was fully familiar with the technical issues, and attended almost every meeting. The industry relied heavily on this technical expertise. The District also had internal expertise in the form of various staff members. The District assigned some staff to the rulemaking, and, as part of their duties, they researched the industry thoroughly. The District could also rely upon enforcement personnel who had visited the sites and had at least some personal knowledge of

operations. In contrast, the environmental groups had little technical expertise available. This lack of expertise was compounded by the fact that the environmentalists' basic position--that add-on controls, particularly HEPA filters, were the only reliable control measures that could achieve sufficient emission reductions--was technical in nature. In a notice and comment rulemaking, the

"paper" nature of the proceeding can mask a party's lack of expertise. In the setting of a traditional rulemaking, face-to-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.

AT: Reg neg>Conventional Rulemaking

Reg neg is worse than conventional rulemaking—prefer our evidence, Siegler has firsthand experience in the fieldSiegler 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)

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 that this benefit can be taken away by

an agency 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. In the fuels reg neg, they 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 the costs of a reg neg can far

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 better—they aren’t actually and the normal regulations are betterCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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

negotiated rulemakings tend to perceive the conventional rulemaking process in terms

better than those who file comments perceive the conventional rulemaking process.

Perceptions on the part of participants in negotiated rulemaking, formed as they are after

involvement in quite intensive processes, are likely explained by factors other than

genuine, underlying policy improvements . Indeed, there are good reasons to doubt that negotiated rulemaking will in fact lead to any systematic improvement at all in regulatory policy. Making consensus a precondition for policymaking will only likely exacerbate problems such as ambiguity, lowest common denominator results, and an undue emphasis on tractability. More significantly, whatever benefits negotiated rulemaking might presumably hold in terms or' generating information and dialogue over regulatory policy, these benefits appear to be just as achievable through alternative processes that encourage public participation but which do not demand consensus. Negotiated rulemaking's failure to achieve its goals of reducing rulemaking time and preventing litigation is simply not offset by any demonstrated improvements in the quality of regulatory policy when compared with other ways of developing regulations. Given that the promises made for negotiated rulemaking over the years

remain unfulfilled, agency officials seeking to involve the public in the rulemaking process should

continue to rely on other processes for developing regulations. Negotiated rulemaking demands a concentrated investment of time and resources by all involved, but without any clear corresponding return in terms of avoiding litigation or achieving other goals. Nothing in Harter's

latest effort to salvage negotiated rulemaking diminishes this conclusion. Agency officials, legislators, and other

observers of the regulatory process would do well to look elsewhere for a cure to whatever

ills the regulatory process.

Conventional rulemaking is betterCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)

3. The Success of Conventional Rulemaking. Although the embeddedness of rulemaking makes it difficult to sustain a formal negotiated agreement, it does not appear to keep agencies from achieving closure on most of their other regulatory decisions. Those features of the regulatory process that make it difficult to sustain an explicit, pre-proposal consensus do not make conflict and litigation inevitable in the usual course of rulemaking. As my findings

show, conventional rulemaking works far better in avoiding litigated conflict than has been

widely believed. The final reason why negotiated rulemaking has failed to achieve its goals therefore hinges on the comparative

success of conventional rulemaking. Agencies and interest groups seem quite capable of working with each other in the context of conventional rulemaking. If discussions about agency capture, revolving doors, and

policy networks over the years have had any truth to them at all, regulators have always kept in touch with affected organizations and their representatives. Cornelius Kerwin reports that nearly three quarters of the interest groups he surveyed either regularly, very frequently, or always had informal communications with agency staff before and after the agency proposed a

regulation that affected the group. The alternative to negotiated rulemaking is certainly not, and never has been, an agency that completely locks itself up in a room to settle on a rule. Indeed, the term "conventional" rulemaking is itself a misnomer because agencies use a wide array of procedures short of negotiated rulemaking for involving the public in the rulemaking process . The failure of negotiated rulemaking—with its quest for consensus—by no means

implies a failure of negotiation in the regulatory process . Negotiated rulemaking shows weak results in large part because of the strength of agencies in using less intensive methods of negotiation and public input in the context of conventional rulemaking. These methods, which include individual meetings, public hearings, and ongoing advisory committees, provide agencies with information about technical aspects of regulation as well

as the interests of affected parties. The aggregation of interests has sometimes been considered a primary purpose of 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 rulemaking can provide agencies with clearer information about the intensities of various groups' interests. Conventional rulemaking allows organizations to participate as actively or inactively as they like. Their level of participation, taking into account the organization's budgetary constraints, gives the agency additional information about the importance of the rule to the organization, information that can get truncated when an entire rulemaking proceeds by committee. Negotiated rulemaking has long been regarded as necessary to

avoid litigation and conflict. My analysis shows that this is not the case. Litigation is not the inevitable product of agency rulemaking. Many agencies, after all, do not face much conflict between interest groups. Among those agencies that do face conflicting interest groups, public managers appear much more adept than ordinarily assumed at anticipating interests and managing conflict in the normal rulemaking process . When conventional rulemaking works better than we thought and

negotiated rulemaking fares worse, there seems little reason to continue to pursue

negotiated rulemaking. 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

for consultants and lawyers. With investments as large as these, we should hope that participants are learning something. 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 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. The quest for 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 fail—conventional rulemaking solve betterCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 complete assessment of negotiated rulemaking needs to take into account both advantages and disadvantages, and then to compare these against the performance of alternative forms of public participation in the regulatory process. Although Harter does not acknowledge any problems with negotiated rulemaking, consensus-based processes actually present several potential limitations on the development of sound

public policy. * As explained earlier, negotiated rulemaking demands additional time and contributes new sources of conflict to the policy process.2M But the potential hazards of policy making by consensus run still deeper. By emphasizing the attainment of consensus, negotiated rulemaking tends to lead agencies to focus on more tractable issues, rather than the most important problems or those most deserving of additional time and effort. That agencies select rules based on tractability is evident in if

nothing else, the paucity of rules that agencies have developed through negotiated rulemaking. " Proponents of negotiated rulemaking have never claimed that consensus building would be appropriate for much more than about five to ten percent of all agency rulemakings, ^' and in practice the use of the procedure has been still more rare.2fi7 Agencies have eschewed negotiated rulemaking for federal rules having the broadest and most substantial impacts on industry and the public. An emphasis on consensus can lead not only to the selection at the outset of the more tractable policy issues for negotiation, but also to the selection of the more tractable issues within the negotiations themselves, even though these may not necessarily be the issues that are most important to the public. The fact that the negotiated rulemaking committee is charged with achieving consensus may inhibit some participants from raising important issues for fear of hindering the achievement of an agreement. In this way, a quest for consensus

may exacerbate the tendency for "groupthink" to take hold .2fW In the equipment leaks negotiated rulemaking, for example, an EPA official knew industry was overlooking issues related to an entire category of equipment in developing the rule, but never said a word about it during the negotiations.270 Only later, in the subsequent litigation over the rule, did the industry group raise the issue

of coverage of the neglected equipment.271 In many circumstances decision makers need conflict to help illuminate policy issues. The full articulation of opposing views, even structured in an adversarial process, may yield more useful information on

which to construct public policy than a truncated discussion between individuals who are striving to achieve consensus.272 In addition to giving priority to tractable issues, negotiated rulemaking may encourage imprecision or ambiguity.273 Since it is usually easier to achieve consensus at higher levels of abstraction, the potential always exists that negotiators wall adopt abstract or vague language.274 As Neil Kerwin has observed, when an agency commits itself to obtaining consensus, that is, "to pro-during a rule with which everyone with a recognized Interest can agree, the only way to break certain deadlocks is to produce a rule that ignores unresolved (or unresolvable) issues or deals with them

through vague language whose meaning will be disputed during the implementation process." Adopting vague language may serve to secure agreement for its own sake, but doing so can constrain the effectiveness of

any resulting public policy. Negotiated rulemaking's emphasis on unanimity also makes it more likely that the final outcome will succumb to the lowest-common-denominator problem. The outcome that is minimally acceptable to all the members of a negotiated rulemaking committee will not necessarily be optimal or effective in terms of achieving social goals. A recent study of negotiated rulemaking conducted by 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. Agencies can and regularly do engage the interests affected

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 they also avoid creating pressures to emphasize tractability, accept ambiguity, or descend to the lowest common denominator. After all. it is the deliberation—not the consensus—that generates the information that

enables agencies to craft their policy decisions. To the extent that public officials already employ participatory

processes that enable interested parties to share information, these alternative forums for deliberation within the conventional rulemaking process can provide comparable, if not superior, results. Harter and other proponents of negotiated rulemaking question whether anything short of negotiated rulemaking will do.2*11 Harter specifically lauds the

averaging approach EPA adopted in its reformulated gasoline regulation as a key innovation that was discovered only because the rule was negotiated.2,81 Under the averaging approach, refiners could meet fuel standards based on the average applied over entire stocks of fuel refined during the calendar year rather than applied on a per gallon basis.:s2 In return for the additional flexibility that this averaging approach provided to refiners, the final rule required refiners to meet a standard that was somewhat more stringent, thus satisfying this averaging provision, combined with the somewhat more stringent standard, was a significant innovation that EPA would not have developed had it not been engaged in a negotiated rulemaking. * EPA officials, though, did not need negotiated rulemaking in order to conceive and adopt such an averaging plan, EPA had already adopted high-profile emissions trading policies more than a decade before the reformulated gasoline rule, all of

which rely on averaging, but none of which grew out of negotiated rulemakings. ^ More specifically, EPA's fuel standards relied on averaging approaches since at least the 1970s, and averaging was integral to the EPA's program for phasing out leaded gasoline in the 1980s.286 Moreover, regulators at EPA hardly needed formal negotiations to tell them that environmental groups would more readily support an averaging approach if it was accompanied by more stringent standards. Indeed. EPA had made the same kind of trade-off in allowing emissions trading and banking for heavy-duty diesel engines, with a corresponding twenty percent reduction in standards, four years before its reformulated gasoline

rulemaking.287 In all of these earlier cases. EPA officials developed the same kind of innovation Harter

attributes to negotiated rulemaking, but they did so using conventional rulemaking

procedures. The more widely used forms of public participation in conventional rulemaking offer regulators the same opportunity to in-corporate the knowledge and practical experience of the public into regulatory decisions—an opportunity that advocates claim uniquely for negotiated rulemaking. However, using these alternative forms of public participation conventional rulemaking can improve regulatory policy while minimizing the problems that arise when consensus becomes the goal for regulatory policy, as occurs in negotiated rulemaking. The validity of my conclusion in Assessing Consensus remains undiminished: in the absence of negotiated

rulemaking's 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. "2*

AT: NBs

AT: Litigation/Court Clog

Turn—reg negs cause more conflictCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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. The decision to use a select committee whose representatives will

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, even a small number of excluded parties can pose

a threat to the effectiveness of negotiated rulemaking. In Kerwin and Langbein's study, twelve percent of the

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 likelihood that an agency excludes even one organization from a negotiated rulemaking committee poses an inherent threat to the effectiveness of a procedure that depends on consensus to foreclose litigation. In addition to conflict over committee membership, negotiated rulemaking adds conflict over the meaning of any consensus and the extent to which an agency's decision reflects that meaning. Sometimes conflicts arise

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 can also arise over what was not agreed to in the negotiated agreement—what might be termed expressio unius disputes. These disputes center on whether a negotiated agreement's silence on an issue reflects an agreement that the agency take no action. In the reformulated gasoline case, the American Petroleum Institute charged that EPA's decision to impose second phase nitrogen oxide standards contravened the agreement because the agreement did not address second phase standards. The EPA rejected API's administrative petition, concluding that the agreement's silence allowed the agency to proceed without retreating from the

consensus. More notably, 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, we would expect the organization to perceive its interests to be more severely aggrieved in the latter case. Similarly, we might expect representatives of organizations excluded from a negotiation committee to react more acutely to an adverse portion of a rule if they knew the rule was developed in explicit consultation with other organizations having potentially divergent interests. In a more general sense , we can expect

negotiated rulemaking to heighten conflict simply because of the intensity with which

groups scrutinize the rules that are the subject of negotiations. 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.

Turn—reg-negs increase litigationCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 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. Harter does not dispute that these challenges to negotiated rules were filed. Rather, he claims that negotiated rulemaking was never really meant to reduce litigation. 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. 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. 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 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.151 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. As many as 80 percent of EPA's final rules are challenged—

often by both sides of an issue. A pilot program on regulators' negotiation offered an opportunity to test an alternative method

for proposing Agency rules that would permit all participants a face-to-face rule in decision¬making.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 years advocates of negotiated rulemaking have claimed a number of additional benefits from negotiated rulemaking.1^ but from the very beginning proponents have consistently claimed that it will reduce legal challenges to agency rules, 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. The Negotiated Rulemaking Act included in its preamble the

goal of reducing the likelihood of litigation. In addition. Republican and Democratic administrations endorsed

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 chal¬lenges.'-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, 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.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 report—and this is most crucial—that 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, 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 .'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 typical challenge filed against an EPA negotiated rule does not differ in any discernible way from the typical challenge filed against a conventional rule. C. Negotiated Rulemaking Engenders Additional Conflict Not only does negotiated

rulemaking fail to eliminate litigation or reduce 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. 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.

Turn—reg negs cause more litigation and are costlier—conventional rulemaking solves bestCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 rulemaking—among them better information, shared learning, or heightened feelings of community—have 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

process, experience has so far shown otherwise. Negotiated rulemaking does not appear any more capable of limiting regulatory time or avoiding litigation than do the rulemaking procedures ordinarily used by agencies. The agency that has used negotiated rulemaking the most, the EPA, has not seen its negotiated rules emerge in final form any sooner than rules not subject to formal negotiation. Once promulgated, negotiated rules still find themselves subject to legal challenge .

The litigation rate for negotiated rules issued by the EPA has actually been higher than

that for other significant EPA rules. 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 negotiated rulemaking seeks to eliminate conflict, it also adds new sources of conflict and raises unrealistic expectations about what participants can gain from their participation. To meet negotiated rulemaking's instrumental goals, agencies must secure and maintain a consensus, something which is not easy to sustain throughout the entire regulatory process. The multiple avenues of input and oversight in the regulatory process increase the likelihood of policy changes that depart from an early agreement made by a select group of negotiators. Despite these multiple avenues of influence in the regulatory process (or perhaps in part because of them), agencies are ordinarily more effective in

crafting rules that avoid litigation without formal negotiation. Agency staff members

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,

negotiated rulemaking demands a considerable investment of time, resources, and energy

from all who participate in the process. 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 doesn’t solve litigationFreeman 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, if litigation measures conflict, then reg neg seems to perform as well (or as poorly) as conventional rulemaking. Litigation rates for both kinds of rules, according to Kerwin and Langbein, were about the same.263

Reg negs fail to solve and conventional regulations don’t cause litigation—impact is exaggerated 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)It has been widely believed that interest groups challenge virtually every EPA regulation in court. In arguing that judicial review has imposed undesirable costs on agency management, for example, political scientist James Q. Wilson emphasized that "(o)ver 80 percent of the three hundred or so regulations EPA issues each year wind up in the courts." Making a similar argument, Philip Howard invoked this statistic in his

best-selling critique of the modern regulatory state. As Appendix D shows, the belief that 80 percent of EPA rules get challenged in court has woven its way into an exhaustive body of work by journalists, governmental officials, and scholars. The original source of the 80 percent statistic has remained largely obscure. The statistic, which originated in speeches given by William Ruckelshaus, has been attributed at different times to at least two other EPA administrators: Lee Thomas and William Reilly. Part of the ambiguity of the 80 percent statistic stems from confusion about precisely what it means. In some accounts the 80 percent figure purports to be the litigation rate for all EPA "decisions;" in others it is the rate for all EPA "rules"

or "regulations;" and in still others it represents the litigation rate for all "non routine" or "major" rules. Sometimes the 80 percent rate has even been inflated to 85 percent. Amazingly, 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 percent—precisely the opposite of the rate

widely assumed. As is sometimes acknowledged, the 80 percent figure was not originally intended to describe 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 higher—35

percent—but 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 rule—the wood furniture coating regulation—drew 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 associations—the American Petroleum Institute, the American Iron and Steel Institute, and the Institute for Chemical Waste Management—intervened 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 this review of the several challenged EPA rules demonstrates, negotiated rules are vulnerable to a variety of legal objections .

Participants file judicial petitions when they believe the final rule is inconsistent with the

negotiated agreement or when it contains adverse provisions not addressed by the

negotiation. Nonparticipants also file petitions when a final rule adversely affects their

interests. In each of these examples, petitioners challenged EPA rules notwithstanding the fact that

the rules had been developed using the negotiated rulemaking process. Although only two of the six

challenged rules 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 negotiated rulemaking have touted it as the solution to a perceived problem of excessive litigation challenging federal regulations. Yet the prevailing perception of this problem has been overdrawn. The actual level of litigation over EPA rules is dramatically lower than

has been widely believed, and litigation itself often provides a forum for continued

negotiation in the rulemaking process. Just as the extent of the supposed problem of

litigation has been overstated, so too has the effectiveness of negotiated rulemaking as a

means of reducing litigation over federal regulations. The experience so far has been that legal 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 can’t solve litigation—empirics proveCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 other petroleum companies filed petitions raising objections to the reformulated gasoline rule. First, Fina Oil and Chemical Company objected to the individual baseline assigned to it in the rule. In response, EPA agreed to adjust Fina's baseline in an administrative proceeding. Second, Amerada Hess Corporation filed a judicial review petition objecting to the limits EPA placed on fuel parameters. The final rule relied on both a "simple

model" and a "complex model" to establish fuel parameters. Amerada Hess argued that the limits EPA placed under the "simple model" were inconsistent with those under the "complex model." EPA 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 of early 1997, these revisions were still undergoing the intra-agency review process before being proposed in the Federal Register . The litigation challenging the reformulated gasoline rule was only one

manifestation of the persistence of conflict, notwithstanding the agency's efforts to secure

consensus. The reformulated gasoline rule also distinguished itself by prompting intense

public criticism. While few EPA 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 reported headaches and dizziness associated with methyl tertiary butyl ether (MTBE), the additive used to comply with the new standards. Others complained about higher fuel prices. To this day, press reports about the rule continue, though now they focus on cases of groundwater contamination with MTBE, a substance which is reported to be a possible carcinogen. The API also subsequently challenged the final reformulated gasoline rule in an administrative action. It argued that the second phase of nitrogen oxide restrictions in the reformulated gasoline was inconsistent with the negotiated agreement and the Clean Air Act. Although EPA claimed that only the first phase restrictions were addressed by the negotiated rulemaking committee, it responded to API's petition by soliciting further comments on that portion of the rule. Eventually, EPA rejected API's administrative motion arguing that the second phase restrictions were ruled out by neither the negotiated agreement nor the

Clean Air Act. Finally, 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 of the Department of Education's negotiated rules have ended up in court. Student loan regulations, promulgated using negotiated rulemaking, have been challenged at both the district and appellate court levels. In contrast to the conventional view that negotiated rulemaking has eliminated legal challenges to federal regulations, it is plain that such challenges still arise even after an agency has used a negotiated rulemaking procedure. Of course, the fact that groups have challenged some negotiated rules does not fully respond to the claim that a consensus-based approach reduces the frequency of litigation. To determine whether the litigation rate for negotiated rules is notably lower than that for conventional rules, as the NPR report

suggested, it is first necessary to determine the actual litigation rate for conventional rules. Since the EPA has often been used as the benchmark, I use the EPA for purposes of my analysis as well.

Reg-negs can’t solve time or litigationCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation.16 The agency rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. * Hatter'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.14 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. "2<i 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.- 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. 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,35 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized,2(1 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. As of 1996. EPA had completed twelve negotiated rulemakings,2^ more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and the Department of Education have also been

among the most frequent users of negotiated rulemaking.2iJ Has the use of negotiated rulemaking "cured" the malaise 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 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.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 don’t resolve delays or litigation---best empirically validated researchCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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/) DengI 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, n28 more than any other agency. Interestingly, EPA has not initiated any new negotiated rulemaking since 1993. The Department of Transportation and (*393) the Department of Education have also been among the most frequent users of negotiated rulemaking. n29 Has the use of negotiated rulemaking "cured" the malaise 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. n30 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. n31 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. 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

process. Harter and other advocates of negotiated rulemaking have not adhered to these rudiments of empirical research and have written favorably about negotiated rulemaking without making careful, explicit comparisons between its outcomes and the outcomes of conventional rulemaking. At the time the Negotiated Rulemaking Act was re-authorized in 1996, n38 the evidentiary basis on which to draw conclusions about the success 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

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. n47

The median duration is also about the same for negotiated and conventional rules. n48 Negotiated 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 thirty-five 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

(1108 days) that was higher than the median duration (872 days). My analysis results in a similar distribution: a higher average duration for EPA's negotiated rulemakings (*414) (1013 days) than a median duration for these same rules (872 days). This suggests that conventional rulemaking has had its outlying cases, just as has negotiated rulemaking. Harter's average for

negotiated rulemaking is different, but only because he has truncated the data on negotiated rulemakings. Even though Harter's average duration is substantially lower

than what I find, his median duration for negotiated rulemaking, not surprisingly, differs very little. n130 When the data are properly analyzed, the median - as well as the average - duration of EPA's negotiated rulemakings is only ninety-five days shorter than the respective data from Kerwin and Furlong's comparison group. It should be remembered, of course, that by using the notice of intent to 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

Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process, 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, "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

counterparts in conventional rulemakings. n137 Strikingly, participants in negotiated rulemakings are three times more likely to complain that the process takes too much time and effort. n138 Whatever one makes of the 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

rest having been voluntarily dismissed by the parties. n184 I also report - and this is most crucial - that most petitions for review of EPA rules are voluntarily dismissed by the parties. n185 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." n186 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. 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

process, albeit with a smaller number of participants. n188 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 to 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. 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 Not only does negotiated rulemaking fail to eliminate litigation or reduce 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 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.

AT: Politics

Empirics prove the unpopularity of Reg Negs in Congress---2007 Food AmendmentsMarchant et al. 11 (Gary Marchant is the Lincoln Professor Emerging Technologies, Law and Ethics at the Sandra Day O’Connor 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_8qSeUrxbNOz8359JNVuX8eHIk&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 inef¬fective 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 don’t solve--gov’t agencies don’t perceive benefitsMcKinney 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&cisb=22_T20294998793&treeMax=true&treeWidth=0&csi=222557&docNo=4) DengReasons 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 agencies rely on informal conferences and consultations as a means of obtaining the viewpoints and advice of interested persons with respect to contemplated rulemaking. The departments explain that using these informal procedures, encouraged in section 2-4-305, MCA, is consistent with the intent of the Montana Negotiated Rulemaking Act. For

example, 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 reason for not using negotiated rulemaking is the costs to an agency, in both time and money. In short, it appears that state agencies in Texas feel much the same as state agencies in Montana: there are many ways to involve citizens in the rulemaking process, and given the costs associated with formal negotiated rulemaking, it should be used sparingly. At the federal level, Coglianese

suggests the performance of negotiated rulemaking has failed to surpass that of conventional rulemaking for three reasons. n62 First, the process may actually foster conflict stemming from determining membership on committees, the consistency of final rules with negotiated agreements, and the potential for heightened sensitivity to adverse aspects of rules. Second, given that negotiated rulemaking is designed to shape a proposed rule which is then subject to the formal process of public review and comment, the sponsoring agency may need to amend the proposed rule to accommodate new interests or information. Such amendments may require

a retreat from the consensus proposal. Third and finally, Coglianese argues that agencies and interest groups are quite capable of working with each other in the context of conventional rulemaking. Similar to the comments heard in Montana and Texas, Coglianese says that "Negotiated rulemaking shows weak results in large part because of the strength of agencies in using less intensive methods of negotiation and public input in the context of conventional (*512) rulemaking. These methods, which include individual meetings, public hearings, and ongoing advisory committees, provide agencies with information about technical aspects of regulation as well as the interests of affected parties." Harter agrees that agencies may include citizens and stakeholders in administrative rulemaking through a variety of processes, including negotiated rulemaking. n63 He is emphatic, however, that negotiated rulemaking should be reserved for "highly complex, politicized rules - the very kind that stall agencies when using traditional or conventional procedures." n64 And, he persuasively argues that evaluating the performance of negotiated rulemaking must be based on "what the agency itself sought to accomplish" by using reg-neg. n65 In other words, the utility of negotiated rulemaking should not be diminished because state or federal agencies rely on other methods to involve citizens and stakeholders. The value of reg-neg should be based on its core objectives - direct negotiations among stakeholders, including the agencies, that result in substantively better and more widely accepted rules. n66 From this perspective, Harter concludes, negotiated rulemaking "has proven to be an enormously powerful tool in addressing highly complex, politicized rules - the very kind that stall agencies when using traditional or conventional procedures." n67 He goes on to say that "Properly understood, reg-neg has been remarkable in fulfilling its promise <elip> reg-neg cuts the time for rulemaking by a third <elip> and no rule that implements a consensus reached by the committee has ever been challenged substantively in judicial review." n68 B. Interest in Future Use and Training Although Montana state agencies seem cautious in approaching negotiated rulemaking, when asked if they would be interested in using the process in the future, 11 of the 19 agencies responding to the survey said yes; 3 said maybe; 4 said (*513) probably not; and 1 did not respond to the question. The respondents cited several reasons for this interest. The Commissioner of Political Practices said that "It may help develop rules for complex situations that satisfy everyone's needs and interests. In addition, the expenses associated with resulting lawsuits may be avoided." n69 The Office of the State Auditor explained that it would be interested in using negotiated rulemaking if the parties affected by a proposed rule suggested using the process. n70 Many departments simply explained that they would be interested under the "right circumstances." On the more critical side,

some departments 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 hack—he ignores empiricsCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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 of negotiated rulemaking have made enthusiastic claims about how negotiated rulemaking would "break impasses," "cure malaise," and '"bypass lawyers"" in the administrative process. Strikingly, such advocates have expressed little interest over the years in systematically testing their claims by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. My research, in contrast, aims to do just that. Beginning several years ago. I set forth to test the widely stated claims about the superiority of negotiated rulemaking for preventing litigation and saving time in the regulatory process. Following exacting and

transparent standards of empirical evaluation, my research demonstrates al too clearly that negotiated rulemaking has failed

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

achieved its goals and made any demonstrable improvement over existing regulatory practices." In the absence of careful, systematic research, conscientious agency officials have no reliable way to evaluate negotiation advocates' claims and to determine whether one set of procedures performs better than the alternatives. This Article proceeds to show why Harter's criticisms miss their target and fail to weaken my original 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 negotiated rulemaking would save time and avoid litigation. The absence of support for Harter’s criticisms, like 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.

Langbein and Kerwin

Langbein and Kerwin’s methods are incorrect—even they admit itCoglianese 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 school’s 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 University’s 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 Association’s 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 Association’s 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 ABA’s 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)

A. Langbein 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 study conducted by Langbein and Kerwin does not demonstrate that such benefits have been realized. The data they report are at best evidence of the perceptions of participants, not evidence of the underlying qualities that would make for a better rule, such as efficiency or effectiveness. As Langbein and Freeman state in their recent discussion of the Langbein and Kerwin study, "(a)s to whether reg-neg produces 'belter rules' in some

objective sense, we cannot say."216 Before explaining why this is so, two other limitations of the Langbein and Kerwin data should be noted. First, the types of respondents in the negotiated rulemaking sample differ considerably from the types of respondents in the conventional rulemaking sample. Langbein and Kerwin report that of all the types of participants in negotiated rulemakings, the representatives from EPA and state government

gave negotiated rulemaking the highest overall ratings.-"17 This is important to recognize because approximately eleven 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 study—the hazardous waste manifest rulemaking—had 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 would not provide "powerful" support, as Harter suggests, -'0 for his belief that negotiated rulemaking leads to better rules. On the contrary, it would provide no reliable evidence at all for the underlying quality of the rules. To see why, consider Langbein and Kerwin's findings with

respect to litigation. They asked their respondents to rate the likelihood that the rules for which they were involved in the rulemaking process would resist legal challenge. The average rating

for negotiated rules (3.3) turned out to be significantly higher than the average rating given

for conventional rules (l.9).2M Of course, this does not mean that negotiated rules really are

more resistant to legal challenge. As we have seen, the evidence from 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"

perceptions of certain aspects of a final rule do not necessarily match reality. In fact, there are at

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 rose—regardless 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.

Kerwin and Furlong

Kerwin and Furlong are wrong—even they admit it; their sample pool is too small and regs are slowerCoglianese 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 school’s Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes. 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)

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 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. 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

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 improvementSelmi 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.)//kyV. 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 argued it was already stringently regulated,

emphasizing that the District had previously adopted two sets of rules that applied to it. As one industry member asserted, the entire negotiation began from a "flawed premise" that more regulation was necessary. (100) 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 industry argued that further regulation was unnecessary from a public health standpoint. It alleged that the use of fume suppressants had been found to reduce emissions by over 99 percent, and the risk presented by metal plating emissions contributes an insignificant portion of the overall cancer risk in the ambient air. The industry concluded that, rather than adopt more stringent regulation, the District should focus its efforts on identifying non-compliant facilities.