The Negotiable Implementation of Environmental Law.

• Author: Owen, Dave

Abstract. Conventional wisdom describes environmental law as a field filled with rigid mandates. Many critiques of the field start with that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations.

This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without understanding where negotiations occur, who participates, and what is up for discussion.

Appreciating the centrality of negotiation to environmental law has important benefits beyond descriptive accuracy. The importance of negotiation partially undercuts important critiques of environmental law and complicates the policy prescriptions to which those critiques lead. But that understanding also exposes problems--and potential reforms. Most importantly, environmental regulatory agencies are not handling negotiations with as much transparency, efficacy, or equity as they could and should.

Table of Contents Introduction I. Command, Control, Slip Away A. Command and Control B. Slippage II. The Negotiable Implementation of Environmental Law A. Waste Site Cleanup B. Endangered Species Protection 1. Listing and delisting 2. Section 7 3. Section 9 C. Clean Water Act Permitting 1. NPDES 2. Section 404 3. Water quality standards and TMDLs D. Clean Air Act Permitting E. Environmental Impact Assessment F. Enforcement III. Implications A. Flexibility and Decentralization B. Slippage and Discretion IV. Improving Regulatory Negotiations A. Transparency B. Effectiveness C. Equity Conclusion Introduction

On the outskirts of an American city, a company wants to build a factory. Its preferred site has developable land, proximity to a trained workforce, and good transportation access, but developing the site will raise environmental challenges. Long ago, the site saw heavy industrial use, and its soil and groundwater are probably contaminated. Since those industrial uses lapsed, wildlife has come back, including some endangered species, and wetlands dot the terrain. Developing the site will require filling wetlands and paving over some of the upland habitat. Once the factory begins operating, it will emit air pollution and discharge treated wastewater into the adjacent river.

For the company's attorneys, addressing these environmental challenges will mean obtaining multiple permits and other regulatory approvals, which in turn will require extended interactions with regulators. Much of that interaction will involve negotiation--which, in this Article, refers to situations in which participants discuss proposals and counterproposals, but not to situations in which a regulator accepts input but makes a unilateral decision. Lawyers and consultants will meet, probably repeatedly, with regulators, send dozens of emails, and spend hours on the phone hammering out the terms of air and water quality permits; the protections for wetlands and upland habitats; the ways in which the company will compensate for the impacts it creates; the extent to which contamination must be cleaned up; and the land use restrictions that will protect the site's future occupants from contamination that remains in the ground. Behind the scenes, regulators may negotiate with each other and perhaps also with environmental groups, other community advocates, and--if the company has enough clout--the project's political supporters. Even after the project is built, some permits will require periodic renewals and the company may be subject to enforcement actions, each generating new negotiating rounds. Environmental law, as it applies to the factory, will be the product of these negotiations.

To many practicing environmental lawyers, this hypothetical scenario would sound routine. Negotiating the terms of compliance with environmental laws is what they do. But theoretical accounts of environmental law tend to miss the part negotiation plays in this story--as does traditional environmental-law education. (1) In much of the discourse of environmental-law implementation, negotiation is absent, except in a few celebrated and seemingly exceptional settings. (2) And when scholars and policy advocates do address the roles of negotiation, they tend to default to two competing conceptions. In one--call it the "command-and-control" view (3)--environmental law is centralized and rigid. (4) Its core provisions emerge from top-down federal rulemakings and apply uniformly across large sectors of regulated activity. (5) In the alternative conception--call it the "slippage" view--the rigid protections exist on paper but not in practice, and environmental-law implementation involves government regulators allowing regulated industries to get away with varying degrees of non-compliance. (6) In the command-and-control view, negotiation exists only in exceptional circumstances. (7) In the slippage view, negotiation is common, but it serves only to decide how far real-world practices can deviate from the law. (8)

As this Article will demonstrate, however, negotiation is a defining feature of environmental law. It recurs across substantive fields. It occurs at every level of policymaking and implementation--not just in legislative processes, where everyone would expect to find it, and in notice-and-comment rulemaking, but also all the way down to the crafting of individual permit terms, even in subfields widely perceived as prescriptive and rigid. (9) And negotiators aren't just deciding degrees of slippage, though sometimes that is their task. (10) Instead, in many realms of environmental law, the actual standards to be applied are up for negotiation, as are the nature of the actions being evaluated and the interpretation of key facts surrounding those actions. Negotiation therefore is not an evasion of governing statutory law--or, at least, it often is not such an evasion. Instead, it is a core element of the system's design. And while not everything in environmental law is negotiable, enough things are that framing the options for negotiation and specifying the situations when it may occur (or may be avoided) are both core tasks for the designers of environmental-law systems. One cannot understand environmental law, in other words, without understanding the roles of negotiation.

The centrality of negotiation has important and underappreciated implications for the field. For the command-and-control theorists, the implications are straightforward: There is a lot less centralization and rigidity than the theorists allege, and their prescribed fixes may be solutions in search of problems. (11) For the slippage critique, the implications are more nuanced. In most versions of this critique, negotiation is problematic; it is how public agencies give away the store. (12) But that critique misses the constitutive role that negotiations often play. It presumes that the nature of compliance is known to all parties at the outset and that the negotiations just determine how much deviation from those standards will be allowed. In reality, however, there is often neither a predefined legal standard for compliance, nor agreement about the relevant facts, nor even a fixed plan of action. Negotiation helps determine what the law will be, how it will apply, and what it will apply to. (13) Negotiation, in other words, often defines what compliance is, and thus helps create obligations, rather than determining what level of noncompliance is acceptable. It therefore is often a prerequisite rather than an impediment to effective environmental law.

This description casts environmental-law negotiations in a somewhat positive light, and deliberately so. Negotiation has its benefits. But the pervasiveness of negotiation also should raise concerns, for environmental law may not handle negotiations nearly as well as it should. The centrality of negotiation has developed somewhat organically and with little transparency. It is difficult to find documentation explaining what is negotiable, what the parameters of the negotiation should be, or how similar negotiations are resolved elsewhere in the same agency. Sophisticated entities can manage that problem; they can hire consultants and attorneys who understand the unwritten rules of the game. (14) But for disadvantaged communities--which often are acutely in need of the protections of environmental law (15)--and for smaller regulated entities, a negotiation-based system can create particularly difficult burdens. (16) Agency staff, meanwhile, often have spotty training in negotiation--a deficiency that also extends to environmental education, legal and otherwise. (17) The absence of training and a lack of systematic guidance within agencies mean that their efforts, while well-intentioned, can be erratic and inconsistent. (18) The absence of documentation also makes it difficult to evaluate current approaches to negotiation, but there is ample anecdotal evidence that negotiation-based systems do not serve the underlying values of environmental law nearly as well as they could or should. (19)

There are potential, if partial, fixes for these problems. Agencies can increase the transparency of negotiations by providing information about settings in which negotiations can occur and subjects that are appropriate for negotiations, and by explaining the kinds of documents and proposals that will help agency regulators, regulated entities, and interested environmental or community groups come to better deals. (20) Agencies also can boost transparency by providing more information about the outcomes of...