The promise and limits of negotiated rulemaking: evaluating the negotiation of a regional air quality rule.

Extract

---

The promise and limits of negotiated rulemaking: evaluating the negotiation of a regional air quality rule.

I. INTRODUCTION II. THE REGULATORY BACKGROUND OF THE NEGOTIATION A. Emissions from Electroplating and Anodizing B. Regulation of Toxic Air Emissions 1. California Regulation 2. South Coast District Regulation 3. Federal Regulation 4. The Calculus of Further Regulation III. THE PARTIES TO THE RULEMAKING: A CHARACTERIZATION A. The Metal Plating Industry B. The Regulating Agency. C. The Environmental Groups IV. REGULATORY NEGOTIATION: A BRIEF SUMMARY V. THE PATH OF THE NEGOTIATION A. The Initial Perspectives 1. The Industry's Perspective 2. The Environmentalists' Perspective 3. The Staffs Perspective 4. The Facilitator's Perspective B. The Final Outcome of the Negotiations C. The Path to Consensus 1. The Factors Promoting Compromise 2. The Features of the Compromise a. Interests and Framework b. The Core Agreement c. The Search for Pollution Prevention d. The Closure Method. 3. The Outcome In Perspective: Goal Attainment. VI. EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS A. The Role of Information: Gathering and Exchange 1. The Debate on the Availability of Information 2. The Effective Exchange of Information 3. Affording Technical Assistance to Parties B. Expanding the Universe of Outcomes 1. Shaping Options That Respond to Interests 2. Benefit Creation 3. The Limits of Benefit Distribution 4. Paradigm-Shifting Solutions C. The Effect of Public Agency Institutional Arrangements 1. The Decisiveness of Commitments 2. The Structure of Agency Decisionmaking D. The Scale of the Negotiation: Time and Resources 1. Time as a False Indicator. 2. Resource Constraints E. The Role of Civility and Trust 1. The Benefits of a Cooperative Environment 2. Outcomes from Cooperation: An Example F. The Threat of the Unilateral Alternative G. The Tractability of the Dispute VII. CONCLUSION I. INTRODUCTION

For almost 25 years the possibility of utilizing negotiation as a means of breaking deadlocks over administrative rulemaking has attracted the attention of academic commentators. (1) Even after all this time, however, the prospects for negotiated rulemaking remain very much subject to debate. (2) Proponents see negotiated rulemaking as providing a variety of benefits, including a non-adversarial, creative approach to environmental problem solving. They view negotiation as facilitating improved outcomes that are less likely to result in litigation. (3) Some envision negotiated rulemaking as part of a much larger trend toward either a "contractarian" (4) or "pragmatic" approach to administrative lawmaking. (5)

In contrast, opponents of negotiated rulemaking primarily raise concerns relating to the integrity of the administrative process. The overarching criticism is that bargained agreements between government and private interests will be treated as elements of public law rather than as private contracts. (6) Some also claim negotiated rulemaking fails to meet the two prominent efficiency goals promoted for it: preventing litigation and saving time in the regulatory process. (7)

Traditionally, the literature on negotiated rulemaking has largely centered on case-by-case evaluations. Many are "first-person" accounts by participants, often in the context of rulemakings undertaken by federal agencies. The participants analyze and describe their reactions to the process, and many of these evaluations have been favorable to negotiated rulemaking. (8) Others, however, criticize these studies as too narrow and as not providing a systematic comparison of negotiated rules with non-negotiated rules. (9) Critics also label some of the favorable case studies as focused only on the successful negotiations and note that they typically are not written by independent observers. (10)

At least partially in response to this body of criticism, academics have begun to employ empirical research as a tool for reaching more general conclusions about whether negotiated rulemaking achieves the benefits it advertises. (11) These empirical studies have tried to compare outcomes by relying on interviews and questionaires filled out by participants in those regulatory negotiations. (12) However, as was the case with the previous debates over negotiated rulemaking, the literature is in sharp conflict. (13) Two recent empirical studies found broad benefits in negotiated rulemaking, (14) while another concluded that the suggested benefits of negotiated rulemaking are overstated. (15)

The recent trend toward empirical research is a natural and welcome evolution in the study of negotiated rulemaking. Sufficient experience with regulatory negotiation now exists to begin drawing tentative conclusions about its overall efficacy. Nonetheless, case-specific studies of regulatory negotiations still can serve important purposes. By focusing on a specific negotiation, such studies shed light on whether and how the interaction among the parties to a negotiated rulemaking is different from the interaction in a normal notice and comment rulemaking. Case-specific s...

See the full content of this document

---