Negotiated Rulemaking

***Negotiated Rulemaking CP***
Notes
Brought to you by CFJPM(K)
CDM=collaborative decision making
For NEGyou can find more AT some of the AFF answers under solvency or in the net
benefits
If youre aff, the perm do the CP, conventional rulemaking>reg neg, and no solvency cards
are pretty good. Litigation turns are fine too. Read the causes more litigation stuff as a
solvency deficit to the CPif they cant reach a consensus, the Cp doesnt result in the
plan.
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 minusit doesnt mandate the plan, just that a regulatory negotiations
committee is created to discuss the plan
And, it competesreg neg is not normal means
USDA 06
(The U.S. Department of Agricultures Agricultural Marketing Service administers programs that facilitate the efficient, fair marketing
of U.S. agricultural products, including food, fiber, and specialty crops What is Negotiated Rulemaking?. Last updated June 6th 2014.
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5089434) //ghs-kw)
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.
How
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-
They then must make sure that all views are heard and that each committee member
agrees to a set of ground rules for the negotiated rulemaking process. The ultimate goal is to reach
decision making.
consensus on a text that all parties can accept . The agency is represented at the table by an official who is sufficiently
senior to be able to speak authoritatively on its behalf. Negotiating sessions are chaired by a neutral mediator or
facilitator skilled in assisting in the resolution of multiparty disputes. The ChecklistAdvantages as
well as Misperceptions The advantages of negotiated rulemaking include: Producing greater information sharing and better communication;
Enhancing public awareness and involvement; Providing a reality check to agencies and other interests; Encouraging discovery of
more creative options for rulemaking; Increasing compliance with rules; Saving time, money and effort in the long run; Allowing earlier
implementation dates; Building cooperative relationships among key parties; Increasing the certainty of the outcome for all and thus
enabling better planning; Producing superior rules on technically complex topics because of the input of all parties; Giving rise to fewer
legislative end runs against the rule; and Reducing post-issuance contentiousness and litigation. What negotiating rulemaking does not do:
It does not cause the agency to delegate its ultimate obligation to determine the content of the proposed and final regulations; It does not
exempt the agency from any statutory or other requirements; It does not eliminate the agencys obligation to produce any economic analysis;
paperwork or other regulatory analysis requirements imposed by law or agency policy; It does not require parties or non-parties to set aside
their legal or political rights as a condition of participating; and It is not compulsory, participation is voluntary, for the agency and for others.
<Insert specific solvency advocate or read generic Knaster card>

Reg neg solvesempirics 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 actiononly the CP solves
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
3. Legislation It is likely that Congress will pass some form of climate change legislation in the near future. Due to the pressing need to take
aggressive action quickly, the legislation will probably require a considerable amount of federal rulemaking within a short period of time .
It is
not likely that the legislation will include many statutory provisions specifically compelling
collaborative decision-making.56 While there has been a great design of a cap-and-trade program and other aspects of a climate
change bill, little attention has been paid to the institutional or organizational approach to
implementing such legislation.57 The American Clean Energy and Security Act, Collaborative decision-making could
help to achieve successful implementation of rulemaking under a climate bill . 58 passed by
the House of Representatives, would require federal agencies to promulgate many
regulations in a short period of time. Under Title III, Reducing Global Warming Pollution, alone, as much as sixty-five regulations would
have to be promulgated and, in most cases, the regulations will have to be completed within the first two years of enactment.59 This is a
huge task particularly because of the complexity of the issues. Traditional rulemaking can
result in an adversarial game in which information becomes a weapon
making
rather than a tool for decision-
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.
Doesnt link to politicsempirics prove

USDA 6/6
(The U.S. Department of Agricultures Agricultural Marketing Service administers programs that facilitate the efficient, fair marketing
of U.S. agricultural products, including food, fiber, and specialty crops What is Negotiated Rulemaking?. Last updated June 6th 2014
@ http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5089434) Deng
Congress endorsed use by federal agencies of
negotiated rulemaking
History In 1990,
an alternative procedure known as "
,"'' also
called "regulatory negotiation," or "reg-neg." It has been used by agencies to bring interested parties into the rule-drafting process at an early stage, under circumstances that foster cooperative efforts to achieve solutions to regulatory
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.
problems. Where successful, negotiated rulemaking can lead to better, more acceptable rules, based on a clearer understanding of the concerns of all those affected.
Alternate CP Text
Text: the United States federal government should engage in binding regulatory negotiation
over ______________________________________________________________ <insert
plan>______________
______________________________________________________________________________
____________________________________ with [the mandates of the plan] as the best
alternative to a negotiated agreement.
2NC O/V
The counterplan convenes a regulatory negotiation committee to discuss the
implementation of the plan. Stakeholders decide how and if the plan is implementedthen
implements the decision - solves better than the AFF:
1. Agency actiontraditional notice-and-comment rulemaking incentivizes actors to
withhold information which prevents agency action and guts implementation of the plan
CP facilitates cooperationthats Siegel 9.
2. Collaborationreg neg facilitates government-civilian cooperation, results in greater
satisfaction with regulations and better compliance after implementationsocial
psychology and empirics prove
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and
environmental law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto,
and a Master of Laws in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for
Energy and Climate Change in the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and
institutional design, and a leading thinker on collaborative and contractual approaches to governance. After leaving the White
House, she advised the National Commission on the Deepwater Horizon oil spill on topics of structural reform at the Department of
the Interior. She has been appointed to the Administrative Conference of the United States, the government think tank for
improving the effectiveness and efficiency of federal agencies, and is a member of the American College of Environmental Lawyers.
Laura I Langbein is the Professor of Quantitative Methods, Program Evaluation, Policy Analysis, and Public Choice and American
College. She holds a PhD in Political Science from the University of North Carolina, a BA in Government from Oberlin College.
Freeman, J. Langbein, R. I. Regulatory Negotiation and the Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000.
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf//ky)
D. Compliance The compliance implications of consensus-based processes remain a matter of speculation.360 No one has yet produced
empirical data on the relationship between negotiated rulemaking and compliance, let alone data comparing the compliance implications of
negotiated and conventional rules.361 However, the Phase II results introduce interesting new findings into the debate. The
data
shows reg-neg participants to be significantly more likely than conventional rulemaking
participants to report the perception that others will be able to comply with the final
rule.362 Perceiving that others will comply might induce more compliance among competitors, along the lines of game theoretic models,
at least until evidence of defection emerges.363 Moreover, to the extent that compliance failures are at
least partly due to technical and information deficitsrather than to mere political
resistanceit seems plausible that reports of the learning effect and more horizontal
sharing of information might help to improve compliance in the long run.364 The claim
that reg-neg could improve compliance is consistent with social psychology studies
showing that in both legal and organizational settings, fair procedures lead to greater
compliance with the rules and decisions with which they are associated .365 Similarly,
negotiated rulemaking might facilitate compliance by bringing to the surface some of
the contentious issues earlier in the rulemaking process, where they might be solved collectively rather
than dictated by the agency. Although speculative, these hypotheses seem to fit better with Kerwin and Langbeins data than do the rather
negative expectations about compliance. Higher
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 betternegotiated rulemaking solves the

entirety of the aff economic, environmental, and pragmatic focus along with
regulation modeling and spill overmeans 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.)//ky
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists
and the industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome
emissions, particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly
concerned about the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast,
the plating industry rejected the need for further precaution. The industry believed the current level of control from fume suppressants was
unquestionably sufficient and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt
that the modeled emissions offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these
positions clashed in such a fundamental way that reaching a consensus appeared very
unlikely. It took some time for the parties, and the industry in particular, to feel that a
true negotiation was occurring. (130) However, a number of forces were at work that
suggested the existence of underlying flexibilities in the parties' positions not
immediately apparent from the parties' public statements. While the industry publicly
opposed further regulation, (131) many of its representatives privately concluded that
some form of further regulation was inevitable . (132) Although the District's ATCP supported this conclusion,
the industry's reasoning was primarily political. Given the large amount of publicity over the Barrio Logan incident in San Diego, the
industry concluded that the large
public outcry almost certainly must result in some further

regulatory response by the District. (133) This conclusion motivated the industry to participate in the negotiation in an
attempt to influence the District's response. (134) Furthermore, the industry viewed the District's
decision to conduct negotiations on a "parallel" track with its rulemaking process as a
validation of its conclusion regarding the likelihood of more stringent regulation. (135)
Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its interests. A second factor
motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like the District, was also
likely to adopt some additional form of regulation. Faced with this probability,
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, well win new net benefits here that ALL turn the aff
a. Delayscps regulatory negotiation means that rules wont be challenged during the
regulation creation processempirics 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 EPAs 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 negs actual performance is much
better than that. Interestingly and consistently, the average time for all of EPAs reg negs when viewed in context is virtually
identical to that of the sample drawn by Kerwin and Furlong77 differing by less than a month. Furthermore, if all of the reg negs that
were conducted by all the agencies that were included in Coglianeses table78 were analyzed along the same lines as discussed here,79 the
average time for all negotiated rulemakings drops to less than 685 days.80 No Substantive
Review of Rules Based on Reg Neg Consensus. Coglianese argues that negotiated rules are actually subjected to a higher incident of
judicial review than are rules developed by traditional methods, at least those issued by EPA.81 But, like his analysis of the time it takes to
develop rules, Coglianese fails to look at either what happened in the negotiated rulemaking itself or the nature of any challenge. For
example, he makes much of the fact that the Grand Canyon visibility rule was challenged by interests that were not a party to the
negotiations;82 yet, he also points out that this rule was not developed under the Negotiated Rulemaking Act83 which explicitly establishes
procedures that are designed to ensure that each interest can be represented. This challenge demonstrates the value of convening
negotiations.84 And, it is significantly misleading to include it when discussing the judicial review of negotiated rules since the process of
reg neg was not followed. As for Reformulated Gasoline, the rule as issued by EPA did not reflect the consensus but rather was modified by
EPA under the direction of President Bush.85 There were, indeed, a number of challenges to the application of the rule,86 but amazingly
little to the rule itself given its history. Indeed, after the proposal was changed, many members of the committee continued to meet in an
effort to put Humpty Dumpty back together again, which they largely did; the
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 EPAs Disinfectant By-Products Rule91 was withdrawn. In short, the rules
that have emerged from negotiated rulemaking have been remarkably resistant to substantive challenges. And, indeed, this far into the
development of the process, the standard of review and the extent to which an agreement may be binding on either a signatory or someone
whom a party purports to represent are still unknown the speculation of many an administrative law class.92 Thus, here too,
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 sharingcollaboration between the government and the private sector solves best
industry has specific information that is key to regulatingthe plan cant 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.)//ky
VI. EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS This section evaluates the "success" of the negotiations. It does so
through the lens of seven specific features of the negotiation process: 1) the role of information, 2) expansion of the universe of outcomes,
3) the effect of public agency institutional arrangements, 4) the scale of the negotiation, 5) the role of civility and trust, 6) the threat of a
unilateral alternative, and 7) the tractability of the dispute. These features, commonly cited in the literature on negotiated rulemaking, (169)
are useful indicators for contrasting the negotiation process with the norm of notice and comment rulemaking. A. The Role of Information:
Gathering and Exchange 1. The Debate on the A vailability of Information The traditional administrative law model envisions that agency
experts will propose a regulation and then provide opportunity for public comment before final adoption of the rule. (170) While the
"reformation" of administrative law called into question the model of administrative action based on agency expertise, (171) the
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. Litigationthe plans 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.) //ky
2. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies
and affected interest groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state
levels of government, 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 subject to a lawsuit, many agencies
supplemented this required process to get input earlier. This
supplemental process came to be called
Negotiated Rulemaking or "reg-neg."

d. More democraticreg neg encourages private sector participationmeans that
regulations arent unilaterally created by the USFGCP results in a fair playing field for
the entirety of the private sector
(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
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
groups was no greater in negotiated rulemaking than in conventional rulemaking. So,
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 committeeonly does the
plan if and only if the committee decides to do sothat 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 mustits 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
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
Partridge quotation infra note 15.
of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60
Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to
mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215
(Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should
disregard false testimony").
Severance is a voting issuethe AFF must defend the entirety of the planwe only need to
defend implementationcompetes in certaintymeans they sever the results of the plan.
Severance is bad, reject the team
1. Kills advocacy skillsaff becomes a shifting target, so they never have to defend
anything
2. Kills educationwe cant debate about the aff is the aff changes halfway through
the round
3. Kills neg groundallows them to shift out of our DA links and make CPs noncompetitive
Conventional rulemaking isnt reg neg
Harter 99
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. Its a terminal shield against any solvency deficit
2. Its a reason why the negotiation will succeedbusinesses have an incentive to come to
the table because they know if they dont 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 inefficiencieslow compliance, high costs, negative economic
implications and lack of cooperation
CNA 4
(The Center for Negotiation Analysis (CNA) is a not-for-profit research institute established in 1993 devoted to studying, training, and
providing practical advisory support concerning negotiations, mediation, and other forms of conflict resolution at the national, regional
and international levels. Topic: Regulatory Negotiations. Last updated February 01, 2004 @ http://negotiations.org/reg-neg1.htm)
Deng
The traditional
process 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 doubleedged sword. Stakeholder reactions to top-down regulatory development can have negative implications. If
penalties are increased to discourage noncompliance, businesses may migrate into a
"shadow economy," thereby fueling corruption, reducing tax revenues and evading the
regulatory regime altogether. In some societies, lengthy and costly litigation in the courts is sometimes
pursued by civil society groups to modify or eliminate imposed regulations. Antagonistic and
adversarial relations between regulatory agencies and the regulated parties may ensue, resulting
in delay or outright disregard for the regulations intent. The lack of effective and frank dialogue between the
regulators and the regulated is usually blamed for these negative consequences. There is an alternative approach to the
traditional process of regulatory formulation and implementation negotiated rulemaking or regulatory negotiation
(reg-neg). Negotiated rulemaking brings together affected stakeholder groups -- businesses, organizations, and citizens -- with the relevant
government agency and a neutral mediator or facilitator to build a consensus on the features of a new regulation before it is proposed officially by
the agency. Regulatory provisions are developed as a bottom-up participatory process of negotiation. Negotiated
rulemaking is a
fully collaborative process, in which all interested groups are convened in an "Advisory
Committee." Key issues and concerns are identified, the interests of all sides are compared and contrasted,
negotiations take place, and hopefully, agreements based on consensus are developed. In the United States, negotiated rulemaking became an
officially recommended approach to develop new regulations by federal government agencies in 1990 when the Negotiated Rulemaking Act (5
U.S.C. 561-570) was passed by Congress. A September 1993 Executive Order from the White House requires all federal agencies to consider
applying negotiated rulemaking strategies in future regulatory actions. However, the approach has been used informally by government agencies
since the 1970s. The Department of Labor, the Environmental Protection Agency (EPA), and the Department of the Interior, are its principal
proponents. By far, the EPA has been the most frequent user of negotiated rulemaking. Over 50 federal negotiated rulemaking cases have been
documented between 1982 and 1995; many more applications have been conducted in the United States at the state level . Examples of
environmental regulations developed using negotiated rulemaking in the United States include: Penalties for businesses for noncompliance with
the Clean Air Act Exceptions for licensing pesticides Performance standards for wood burning stoves Controls on volatile organic chemical
equipment leaks Standards for transporting hazardous wastes Standards for chemicals used in manufacturing wood furniture. The
experience with negotiated rulemaking in the United States has produced several benefits :
While negotiated rulemaking takes more time and effort upfront than traditional modes of developing regulations, all the stakeholders, including
government agencies, are more satisfied with the results. Participants find that with a negotiated process, the resulting regulations tend not to be
challenged in court. (In contrast, about 80 percent of all EPA regulations have been challenged in court and about 30 percent have been changed
as a result.) Less
time, money and effort are expended on enforcing the regulations. Final
regulations are technically more accurate and clear to everyone. Final regulations can be implemented
earlier and with a higher compliance rate. More cooperative relationships are established
between the agency and the regulated parties.
Reg neg is better than conventional rulemaking

(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 betterlegitimacy, regulation quality, and ease of implementation

%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-toface 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 acceptablethat is, more legitimate. Greater
legitimacy could be particularly valuable at a time of heightened frustration with
conventional rulemaking and broad dissatisfaction with government regulatio n.37 In turn,
enthusiasts hoped that greater acceptability would yield other instrumental benefits ,
including easier implementation (because obstacles to implementation would likely surface and be addressed in the
negotiations) and higher rates of compliance (because parties that consent to the rule in advance would be more likely to comply with it).38
Surely the parties would be more likely to implement a rule they helped to develop, and less inclined to sue.39 Early proponents also anticipated
that
reg neg might reduce the transaction costs associated with conventional rulemaking .40 In
the experience of many practitioners, traditional notice and comment rulemaking under section 553 of the Administrative Procedure Act had
grown needlessly time consuming and unnecessarily adversarial. As
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 rules
%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 betterClean Air Act proves
Knaster 10
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 thirtyone members.136 Each
of the key interests was organized into interest caucuses. For example, there
were forty-nine cities that would be directly affected by the rule.137 They agreed to
representation by five individuals, coordinated by the executive director of the Association of State and Local Air Pollution
Control Officials.138 The petroleum interests were divided into three separate caucuseslarge and
medium sized companies, small refiners, and alternative energy refiners. Public interest
groups, including several national and regional environmental coalitions, agreed to five seats at the table, with the
designated negotiators assuming responsibility for obtaining input from the larger group .139
The organization of the group allowed for participation in work groups around each of the
key topics . The use of work groups allowed more participation by individual stakeholder
groups who did not have seats at the table, but had expertise in a particular area and
enabled them to participate more fully in caucus decision-making. The negotiations centered on the issue
of modeling and testing of formulas.140 One side argued for laboratory testing of formulas to ensure compliance with the legislation. Others
noted that in order to meet the deadlines, modeling of the formulas was the only feasible solution. The final settlement incorporated a simpler
model than had been originally contemplated, but included a process for incorporating new data. The
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 best
Knaster 10
The first draft of this article began with the premise that one of the key elements necessary for achieving a consensussharing 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 rulemaking
In this article, we present an original analysis and summary of new empirical evidence from Neil Kerwin and Laura Langbein's two-phase study
of Environmental Protection Agency (EPA) negotiated rulemakings. n5 Their qualitative and (*62) quantitative data reveal more about reg neg
than any empirical study to date; although not published in a law review article until now, they unquestionably bear upon the ongoing debate
among legal scholars over the desirability of negotiating rules. Most importantly, this is the first study to compare participant attitudes toward
negotiated rulemaking with attitudes toward conventional rulemaking. The findings of the studies tend, on balance, to undermine arguments made
by the critics of regulatory negotiation and to bolster the claims of proponents. Kerwin and Langbein found that, according to participants in the
study, reg
neg generates more learning, better quality rules, and higher satisfaction compared
to conventional rulemaking. n6 At the same time, stakeholder influence on the agency
remains about the same using either approach. n7 Based on the results, we recommend
more frequent use of regulatory negotiation, accompanied by further comparative and
empirical study, for the purposes of establishing regulatory standards and resolving
implementation and compliance issues. This recommendation contradicts the prevailing
view that the process is best used sparingly, n8 and even then, only for narrow questions of
implementation. n9
Reg negs solve better
Harter 99
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
recognized in the Administrative Procedure Act
a form of representational democracy not explicitly
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 negotiations
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962//ghs-kw)
There are reasons to be optimistic about what regulatory negotiations can produce in even
a troubled administrative state. Jody Freeman noted that one important finding from the Kerwin and Langbein studies were
that parties involved in negotiated rulemaking were able to use the face-to-face contact as a
learning experience.49 Barton Thompson has noted in his article on common-pool resources problems50 that one reason that resource
users resist collective action solutions is that it is evidently human nature to blame others for the existence
of resource shortages. That in turn leads to an extreme reluctance by resource users to
agree to a collective action solution if it involves even the most minimal personal sacrifices. Thompson suggests that the
one hope for curing resource users of such self-serving myopia is face-to-face contact and the
exchange of views. The vitriol surrounding some environmental regulatory issues suggests that there is a similar human
reaction occurring with respect to some resource conflicts.51 Solutions to environmental problems and
resource conflicts on which regulated parties and environmental organizations hold such strong and disparate views may require face-toface contact to defuse some of the tension and remove some of the demonization that has arisen in
the these conflicts. Reinvention, with the emphasis on negotiations and face-to-face contact, provides such an
opportunity. 52 Farber has argued for making the best of this trend towards regulatory negotiation characterizing negotiated rulemaking
and reinvention. 53 Faced with the reality that some negotiation will inevitably take place because of the
slippage inherent in our system of regulation, Farber argues that the best model for allowing it to
go forward is a bilateral one. A system of bilateral negotiation would clearly be superior to
a system of self-regulation, as such a Farber has argued for making the best of this trend towards regulatory negotiation
characterizing negotiated rulemaking and reinvention. A system of bilateral negotiation would clearly be superior to a system of self-regulation,
as such a system would inevitably descend into a tragedy of the commons.54 But a
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 betterfinanced regulated parties.55 The
correct balance between regulatory flexibility and accountability ,

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
argues Farber, is
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
%20benefit.pdf//ky)
D. Compliance The compliance implications of consensus-based processes remain a matter of speculation.360 No one has yet produced empirical
data on the relationship between negotiated rulemaking and compliance, let alone data comparing the compliance implications of negotiated and
conventional rules.361 However, the Phase II results introduce interesting new findings into the debate. The
data shows reg-neg

participants to be significantly more likely than conventional rulemaking participants to
report the perception that others will be able to comply with the final rule .362 Perceiving that others
will comply might induce more compliance among competitors, along the lines of game theoretic models, at least until evidence of defection
emerges.363 Moreover,
to the extent that compliance failures are at least partly due to technical
and information deficitsrather than to mere political resistanceit seems plausible that
reports of the learning effect and more horizontal sharing of information might help to
improve compliance in the long run.364 The claim that reg-neg could improve compliance is
consistent with social psychology studies showing that in both legal and organizational
settings, fair procedures lead to greater compliance with the rules and decisions with
which they are associated.365 Similarly, negotiated rulemaking might facilitate compliance by
bringing to the surface some of the contentious issues earlier in the rulemaking process, where
they might be solved collectively rather than dictated by the agency. Although speculative, these hypotheses seem to fit better with Kerwin and
Langbeins data than do the rather negative expectations about compliance. Higher
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
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
Langbeins important work provides the only rigorous, empirical evaluation that compares
a number of factors of conventional and negotiated rulemaking. Their overall conclusion is: Our research
contains strong but qualified support for the continued use of negotiated rulemaking. The
strong support comes in the form of positive assessments provided by participants in
negotiated rulemaking compared to assessments offered by those involved in conventional
form of regulation development. Further, there is no evidence that negotiated rules
comprise an abrogation of agency authority, and negotiated rules appear no more (or less)
subject to litigation that conventional rules. It is also true that negotiated rulemaking at the EPA is used largely to
develop rules that entail particularly complex issues regarding the implementation and enforcement of legal obligations rather than those that set
the substantive standards themselves. However, participants assessments
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 Langbeins findings here too favor negotiated rules. Conclusion.
The benefits envisioned by the proponents of negotiated rulemaking have indeed been
realized. That is demonstrated both by Coglianeses own methodology when properly
understood and by the only careful and comprehensive comparative study . Reg neg has
proven to be an enormously powerful tool in addressing highly complex, politicized rules.

These are the very kind that stall agencies when using traditional or conventional
procedures.107 Properly understood and used appropriately, negotiated rulemaking does
indeed fulfill its expectations
Reg negs are cheaper
Langbein and Kerwin 00
(Laura I. Langbein is a quantitative methodologist and professor of public administration and policy at American University in
Washington, D.C. She teaches quantitative methods, program evaluation, policy analysis, and public choice. Her articles have appeared
in journals on politics, economics, policy analysis and public administration. Langbein received a BA in government from Oberlin
College in 1965 and a PhD in political science from the University of North Carolina at Chapel Hill in 1972. She has taught at American
University since 1973: until 1978 as an assistant professor in the School of Government and Public Administration; from 1978 to 1983 as
an associate professor in the School of Government and Public Administration; and since 1983 as a professor in the School of Public
Affairs. She is also a private consultant on statistics, research design, survey research, and program evaluation and an accomplished
clarinetist. Cornelius Martin "Neil" Kerwin (born April 10, 1949)(2) is an American educator in public administration and president of
American University. A 1971 undergraduate alumnus of American University, Kerwin continued his education with a Master of Arts
degree in political science from the University of Rhode Island in 1973. In 1975, Kerwin returned to his alma mater and joined the
faculty of the American University School of Public Affairs, then the School of Government and Public Administration. Kerwin
completed his doctorate in political science from Johns Hopkins University in 1978 and continued to teach until 1989, when he became
the dean of the school. Langbein, L. I. Kerwin, C. M. Regulatory Negotiation versus Conventional Rule Making: Claims,
Counterclaims, and Empirical Evidence, Journal of Public Administration Research and Theory, July 2000.
http://jpart.oxfordjournals.org/content/10/3/599.full.pdf//ghs-kw)
Our research contains strong but qualified support for the continued use of negotiated
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
assessments are
significantly more positive than those of participants in conventional rule making. In short, the process
itself seems to affect participants' views of the rule making, independent of differences
between the types of rules chosen for conventional and negotiated rule making, and
independent of differences among the participants, including differences in their views of
the economic net benefits of the particular rule. This finding is consistent with theoretical expectations regarding the
relatively less complex. But even when these and other variables are controlled, reg neg participants' overall
importance of participation and the importance of face-to-face communication to increase the likelihood of Pareto-improving social outcomes.
With respect to participation, previous research indicates that compliance
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 betterCoglianeses results concluded neg when properly
interpreted
Harter 99
and

Reg neg is bettersolves faster
Harter 99
Properly understood, therefore,
the average length of EPAs 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 negs actual performance is much better than that.
Interestingly and consistently, the average time for all of EPAs reg negs when viewed in context is virtually identical to that of the sample drawn
by Kerwin and Furlong77 differing by less than a month. Furthermore, if all of the reg negs that were conducted by all the agencies that were
included in Coglianeses table78 were analyzed along the same lines as discussed here,79 the
average time for all negotiated
rulemakings drops to less than 685 days.80 No Substantive Review of Rules Based on Reg Neg Consensus. Coglianese
argues that negotiated rules are actually subjected to a higher incident of judicial review than are rules developed by traditional methods, at least
those issued by EPA.81 But, like his analysis of the time it takes to develop rules, Coglianese fails to look at either what happened in the
negotiated rulemaking itself or the nature of any challenge. For example, he makes much of the fact that the Grand Canyon visibility rule was
challenged by interests that were not a party to the negotiations;82 yet, he also points out that this rule was not developed under the Negotiated
Rulemaking Act83 which explicitly establishes procedures that are designed to ensure that each interest can be represented. This challenge
demonstrates the value of convening negotiations.84 And, it is significantly misleading to include it when discussing the judicial review of
negotiated rules since the process of reg neg was not followed. As for Reformulated Gasoline, the rule as issued by EPA did not reflect the
consensus but rather was modified by EPA under the direction of President Bush.85 There were, indeed, a number of challenges to the application
of the rule,86 but amazingly little to the rule itself given its history. Indeed, after the proposal was changed, many members of the committee
continued to meet in an effort to put Humpty Dumpty back together again, which they largely did; the
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 EPAs Disinfectant By-Products Rule91 was withdrawn. In short, the rules that have emerged from negotiated
rulemaking have been remarkably resistant to substantive challenges. And, indeed, this far into the development of the process, the standard of
review and the extent to which an agreement may be binding on either a signatory or someone whom a party purports to represent are still
unknown the speculation of many an administrative law class.92 Thus, here too, 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.) Deng
b. Negotiated rulemaking Negotiated rulemaking, also known as regulatory negotiation or "reg neg", has emerged in the last two decades as an alternative to the
standard Administrative Procedure Act rulemaking process for federal agencies. n266 It has been used in connection with the development of environmental
regulations in an effort to make requirements more functional and (*88) practicable. n267 Regulatory negotia-tion uses a process of informal negotiation involving the
regulatory agency, regulated industry, and other stakeholders (including environmental and consumer groups and state and local governments) in an effort to obtain
consensus on a proposed rule that is then subject to the standard no-tice-and-comment rulemaking procedure. n268 Regulatory negotiation seeks to reduce the cost and
delay of the standard process, which has be-came somewhat "ossified," n269 and to fashion rules that are more responsive to the concerns of inter-ested stakeholders.
n270 Proponents of regulatory negotiation argue that it leads to more workable rules that are based on better information and enjoy greater perceived legitimacy,
resulting in less litigation and greater compliance. n271 By enlisting the regulated community and other stakeholders in the devel-opment of new rules, and by
encouraging a free give and take of information and ideas, the process may ameliorate some of the problems faced by centralized regulators in acquiring and
processing in-formation and in devising appropriate commands to govern the conduct of many different firms and facilities. As discussed in the previous section, there
is little prospect in the United States of using the European model of macrocontract environmental agreements between government and regulated in-dustry as an
alternative to traditional government regulation. Regulatory negotiation is the closest U.S. equivalent to the European practice. The important differences are that the
negotiation process in-volves not only the regulatory agency and regulated industry, but also environmental and consumer groups and other stakeholders. n272 The
results of the negotiation must subsequently go through the standard rulemaking procedures and are subject to judicial review. n273 The resulting rule becomes an
official legally binding instrument of public law (*89) enforceable as such. n274 Accordingly, regu-latory negotiation is a hybrid in which the standard model of
administrative regulation and procedure plays the predominant role; it therefore represents only a very limited degree of acceptance by the U.S. regulatory system of a
bargaining or corporatist model of administrative law. The Administrative Conference of the United States first published a set of criteria for using nego-tiation in
connection with federal agency rulemaking and non- binding guidelines for its conduct in 1982. n275 EPA became one of the pioneers of negotiated rulemaking
within the federal government, employing it successfully on two occasions in 1985. n276 EPA continues to employ negotiated rulemak-ing more often than any other
federal agency. n277 In the wake of these experiences, "reg neg" devel-oped considerable support, resulting in enactment of the Negotiated Rulemaking Act of 1990.
n278 The negotiated rulemaking process begins when either the agency proposes a new rule or an inter-ested party requests that "reg neg" be used for a proposed rule.
If the agency decides that the issue is one that might be appropriate for negotiated rulemaking, a neutral convener, who is selected, conducts a feasibility analysis.
n279 After a final determination to (*90) use the negotiation process is made and interested stakeholders are identified, a notice is published in the Federal Register.
n280 Any addi-tional interested parties may request to be included in the negotiations. n281 When the parties are chosen, a negotiation committee is established and
chartered under the Federal Advisory Committee Act. n282 The negotiations typically last approximately six months. They seek to obtain consensus on the lan-guage
of the rule to be proposed by the agency. n283 After a proposed agency rule is drafted on the basis of the negotiations and is publicized by the agency, the rulemaking
enters the normal public comment period, followed by agency analysis of the comments and promulgation of the final rule. The negotiation committee has no formal
role in the rulemaking process. The process thus takes place within the confines of the Administrative Procedure Act, and thus, unlike contractual agreements between
benefits of negotiated
rulemaking, where used appropriately, are several. First, the process can shorten the length of time
required from the beginning of the process until the issuance of the final rule . Consensus on
the part of the principal stakeholders greatly reduces or eliminates adverse com-ments on a proposed role and the time and effort
(which may include gathering new data and con-ducting new studies and analyses) needed for the agency to respond. In a recent study, Kerwin and
Furlong found that EPA rules that were developed using the negotiation process took an average of
2.1 years from start to finish, against an average of 3.0 years for the typical EPA rule. n284 Additionally, anecdotal
regulators and regulated parties, serious ques-tions about the legality of negotiated rules have not been raised. The
evidence indicates that in (*91) some cases, proposals for rules that had been languish-ing for as long as ten years were resolved relatively quickly after going through
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
the negotiated rule-making process. n285 A
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 nonparticipants 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 deadlock

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. 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) Deng
WHAT 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 publics 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 governments 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 faster

%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 EPAs first commissioned study of its first seven reg negs concluded that
negotiated rulemaking produced rules more quickly than conventional rulemaking and
was less resource intensive .62 While acknowledging heavy investment in front-end negotiations, the EPA calculated
that when it negotiated rules, it spent approximately half the time and money it ordinarily
would have spent to collect and analyze data and to respond to public comments .63 In
addition, the report claimed that negotiating rules increased the likelihood that
rulemaking would be completed on time , saving significant staff hours. Still, the EPA conceded that the data were
inconclusive with respect to whether negotiation resulted in a net saving of resources.
Democratic Process/Fairness
Reg Neg leads to a better democratic process
Seidenfeld 13
(Mark Seidenfeld is a Professor of Administrative Law @ The Florida State University College of Law Annual Review of
Administrative Law: Foreword: The Role of Politics in a Deliberative Model of the Administrative State Published August 2013. Print)
Deng
B. Collaborative Governance Collaborative
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 democratic

%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 fair
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. 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." 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 questionand sometimes flatly

contradictmost of the theoretical criticisms of reg neg that have surfaced in the scholarly
literature over the last twenty years. There is no evidence that negotiated rulemaking
abrogates an agency's responsibility to implement legislation. Nor does it appear to
exacerbate power imbalances or increase the risk of capture. When asked whether any
party seemed to have disproportionate influence during the development of the rule, about
the same proportion of reg neg and conventional participants said yes. Parties perceived
their influence to be about the same for conventional and negotiated rules, undermining
the hypothesis that reg neg exacerbates capture.
Reg neg is more fair
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
2.
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 cant solvereg neg accesses private sector innovation
Selmi 5
VI. EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS This section evaluates the "success" of the negotiations. It does so through
the lens of seven specific features of the negotiation process: 1) the role of information, 2) expansion of the universe of outcomes, 3) the effect of
public agency institutional arrangements, 4) the scale of the negotiation, 5) the role of civility and trust, 6) the threat of a unilateral alternative,
and 7) the tractability of the dispute. These features, commonly cited in the literature on negotiated rulemaking, (169) are useful indicators for
contrasting the negotiation process with the norm of notice and comment rulemaking. A. The Role of Information: Gathering and Exchange 1.
The Debate on the A vailability of Information The traditional administrative law model envisions that agency experts will propose a regulation
and then provide opportunity for public comment before final adoption of the rule. (170) While the "reformation" of administrative law called
into question the model of administrative action based on agency expertise, (171) the
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, t he
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
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/amperehour for hard chrome, and 2.6 mg/ampere-hour for decorative chrome and chromic acid anodizing. (200) Ultimately, the Technical Subcommittee
agreed on an uncontrolled emission factor of 4.4 mg/ampere-hour for all hexavalent chrome plating and chromic acid anodizing. (201) The
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 fumesuppressant 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 rules
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. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and
affected interest groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of
government, 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 subject 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 table early on, before the rule has been drafted and before
the required regulatory approval process is triggered, to see if the affected parties can reach agreement. By setting
up a negotiating forum before drafting the rule, the agency can engage those who are most likely to be
affected by (and most likely to challenge) a rule. The nature of this negotiation is drastically different than the nature
of the formal rule making process because the parties have an opportunity to talk to each other instead of directing all comments through the
agency.
They can share information about what is important to them and what is not. They
are free to collectively explore and evaluate different regulatory possibilities. If all the
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 information, 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 following 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 example, reg-negs were effective in negotiating permit
modifications under the Resource Conservation Recovery Act ("RCRA"), setting emissions standards for wood stoves, and implementing underground injection controls."-3 Parties involved in the permit modifications under RCRA felt as though they would not have been able to reach the
consensus that they did with the conventional 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 situations. When deciding appropriateness, factors taken into consideration should also include
the opportunity for trade-offs among parties, the level of conict, and the importance of gathering information 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 mechanisms, and decommissioning.
Regulation Quality
Reg negs result in better rules
%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-toface 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 acceptablethat is, more legitimate. Greater
legitimacy could be particularly valuable at a time of heightened frustration with
conventional rulemaking and broad dissatisfaction with government regulatio n.37 In turn,
enthusiasts hoped that greater acceptability would yield other instrumental benefits ,
including easier implementation (because obstacles to implementation would likely surface and be addressed in the
negotiations) and higher rates of compliance (because parties that consent to the rule in advance would be more likely to comply with it).38
Surely the parties would be more likely to implement a rule they helped to develop, and less inclined to sue.39 Early proponents also anticipated
that
reg neg might reduce the transaction costs associated with conventional rulemaking .40 In
the experience of many practitioners, traditional notice and comment rulemaking under section 553 of the Administrative Procedure Act had
grown needlessly time consuming and unnecessarily adversarial. As
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.
and better rules
Stewart 1

Rollback
SQ rulemaking risks rollback from unpopularity and court challenges---Reg Neg solves
best
NPS 2
(The National Park Service is an agency of the United States federal government that manages all U.S. national parks, many American
national monuments, and other conservation and historical properties with various title designations. It carries out its responsibilities in
parks and programs under the authority of federal laws, regulations, and Executive Orders, and in accord with policies and Director's
Orders established by the Director of the National Park Service and the Secretary of the Interior. NEGOTIATED RULEMAKING
Published October 23rd 2002 @ http://www.nps.gov/fiis/parkmgmt/upload/RegNeg_Process_6-20-2002.pdf) Deng
The idea of negotiated rulemaking, or reg-neg for short, is simple. In some cases, it is valuable to bring together representatives of a rulemaking
agency and stakeholders to jointly prepare the text of a proposed rule in a consensus seeking negotiation before the agency formally submits the
Traditionally rulemaking
processes often do not have the agency making the rules include stakeholders in an effective
and meaningful way early in the process of rulemaking. Agencies may draft the comments
in-house with little or no public consultation. Public hearings and meetings held to gather
comments on draft regulations typically do not encourage detailed, sophisticated, and ongoing dialogue about the issues that results in broad consensus. Consequently, traditional
rulemaking processes can produce rules that are difficult to understand, difficult to
implement, and difficult to enforce. Traditional rulemaking may result in rules that do not
have broad support from the citizens and organizations concerned with the issues and are
rule to the formal rulemaking process. Reg-Negs versus More Conventional Approaches to Rulemaking
later challenged in court . Re-negs allow the agency and stakeholders who care about the
resources under regulation to work closely to together to design rules that carefully balance
the interests of diverse parties. Together, agencies and stakeholders jointly frame issues, surface underlying assumptions,
explore interests, consider options for how the rules might be structured, and package overall rules that take into account diverse parties concerns
and interests. At its best, negotiated
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.
and better rules
Stewart 1

Reg neg solves rollback

Nolon 11
2. Negotiated Rule Making Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and
affected interest groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of
government, 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 subject 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
litigation
Siegel 9
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, publicprivate partnership, deliberative democracy, constructive engagement, and collaborative
problem solving. The varied use of these terms demands clear definition when designing and describing processes.14 For purposes of
this article, collaborative decision making will be considered broadly and is characterized by a range of processes, some
agreement-seeking and some not, in which the government involves outside stakeholders in the
governments decision making. In some cases, where the government has no greater authority than other stakeholders,
collaborative decision making can involve an equal partnership among the stakeholders,
including the government; or the government can serve in a supporting role to facilitate
efforts of outside stakeholders in their own decision making processes. 2. General Attributes of
Collaborative Decision Making Collaborative decision making holds great promise for addressing
difficult public policy issues. There are a number of general attributes that are worth considering at the outset before discussing
why decisions on climate change are uniquely qualified to benefit from collaborative
approaches. Collaborative decision making can provide a forum for broad participation
by multiple stakeholders , facilitate cooperative learning among the participants, and
result in selection of the best policy choices.15 It ensures an opening for group creativity
and innovation
that is often lacking in traditional regulatory processes. Collaborative decision making can be particularly powerful in
the context of complex public policy issues, such as climate change, because
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 governments authorities are clear
and purposeful. 21 Likewise, stakeholders retain their right to any alternatives to the collaborative process that are otherwise available to
them.22 Collaborative decision-making is not a panacea alternative to traditional environmental regulation and will not always be the appropriate
means of making environmental decisions. 23 It does not guarantee that cooperation among stakeholders will come easily nor does its adoption
mean that resolution of complex issues will be achieved. However, it
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 involvement
FMCS 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, FMCSs involvement in multi-party
negotiations continued to grow. The results have been very positive. By formulating rules and policies
in a public negotiating process, potential or actual antagonists become partners in helping
the agency solve a regulatory problem. Thus, the likelihood of subsequent challenges to a
new regulation is greatly reduced. How Negotiated Rulemaking Works Authorized by the Administrative Dispute Resolution
Act of 1996, FMCS offers government regulatory and enforcement agencies a better way to formulate new rules and regulations. In the
traditional rulemaking process, agency personnel draft a new regulation with little or no
outside input, publish the draft regulation in the Federal Register for the required public
comment period, and then wait for the inevitable criticism, and even legal challenges, from
those affected by the new regulation. In contrast, FMCS convenes and facilitates Regulatory Negotiations, a
process in which those who will be affected by a regulation sit down with the government
agency to write a proposed rule or regulation by consensus. Experience has shown that by bringing potential
or even actual antagonists into participation in a public process, they become invested in helping the agency solve its problem. The result
is usually better regulation and because those who will be regulated have taken part in the
process, the likelihood of subsequent challenges are greatly reduced. The Service assists federal and some
state agencies by convening and facilitating/mediating regulatory negotiations as well as less formal, public policy dialogues under the authority
of the 1996 Administrative Dispute Resolution Act. Government agencies have chosen the use of negotiated rulemaking and other highly
interactive negotiating models as a constructive way to diminish litigation and enhance relationships with their constituencies. To assist them,
FMCS has provided skills building training in the areas of communication, mediation, problem-solving and meeting planning over three decades
of experience in successful rulemakings.
Reg neg solves -- stakeholder involvement ensures solvency

DOI 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-NegotiatedRulemaking.cfm#)
Negotiated Rulemaking: Negotiated
Rulemaking Act of 1996.
rulemaking is an administrative procedure sanctioned by the Negotiated

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
: In negotiated
rulemaking, the agency appoints and identifies and appoints a limited, specific number of
individuals who can represent the views of their stakeholding group on the negotiating
committee. Most committees include twenty (20) to thirty (30) participants, though some may include as many as fifty (50). Additional
and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants
participation may include appointment of alternates, use of subcommittee where membership is not constrained, and a period during each
negotiating session for the general public to comment. Kinds of Participants: Negotiated
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 committees ground rules).
Negotiated rulemaking is a formalized, specific kind of consensus building.
Traditional regulatory process sparks backlash with stakeholders -- reg neg solves
Spector 99 (Bertram I., the Executive Director of the Center for Negotiation Analysis and Technical
Director of Management Systems International, where he leads the anticorruption and governance
practice area, "Negotiated Rulemaking: A Participative Approach to Consensus-Building for Regulatory
Development and Implementation", May 1999, http://www.negotiations.org/Tn-10%20-%20Negotiated
%20Rulemaking.pdf)
Regulations are a common mechanism used by governments to guide and facilitate the implementation, management, and enforcement of policy
change. Through regulations, governments establish the rules that specify, control, and direct compliance with new decisions. However, if these
rules are not complied with as intended, policy implementation may not proceed smoothly. Research has shown that the effectiveness
of
many regulations is strongly influenced by the process by which they were initially
formulated. This paper describes a participative process used to formulate regulations successfully. The traditional process
of regulatory development is typically top-down. Government initiates, formulates and
proposes the rules. In centralized or closed systems, regulations are imposed; in more open
systems, groups or individuals may comment on the proposals in public hearings , but with little
possibility of making major structural and functional modifications to the regulations. This process, while well-intentioned,
often leaves civil society stakeholders feeling far removed from the process and
disempowered. They may feel that they have minimal voice in designing the regulations,
standards and provisions that must be obeyed, and, as a result, compliance may be low and
enforcement costs high -- a double-edged sword. Stakeholder reactions to top-down
regulatory development can have negative implications, as observed in a variety of countries (Pritzker and
Dalton, 1995). If penalties are increased to discourage noncompliance, businesses may migrate into a shadow economy, thereby fueling
corruption, reducing tax revenues and evading the regulatory regime altogether. In some societies, lengthy and costly litigation in the courts is
sometimes pursued by civil society groups to modify or eliminate imposed regulations. Antagonistic and adversarial relations between regulatory
agencies and the regulated parties may ensue, resulting in delay or outright disregard for the regulations intent. The
lack of effective
and frank dialogue between the regulators and the regulated is usually blamed for these
negative consequences.
The CP solves better -- empirically proven

%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 aff

%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 plan
%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 governments
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
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists and the
industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions,
particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about
the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast, the plating industry
rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient
and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions
offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these
positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,
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 addon technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The
environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put
companies out of business or force them to relocate out of the South Coast Air Basin.
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 solvesempirics prove
Knaster 10
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.
Selmi 5



Collaborative Processes are successful and use multiple mechanisms empirics prove
Siegel 9
Collaborative 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 governments experience with environmental collaborative decision making provides an
excellent foundation for its use in the context of climate change. 83 resolution.84 Environmental
conflict resolution is
defined by IECR to include collaborative problem solving.85 IECR meets with senior agency
staff quarterly to provide guidance and facilitate information exchange on collaboration
and other forms of environmental conflict resolution within the federal government.86 Several
federal agencies have their own institutional structures to support collaborative decision making on environmental issues. For example, EPA
established the Conflict Prevention and Resolution Center in 1999, 87 the Department of Interior established the Collaborative Action and
Dispute Resolution Center in 2001,88 and the Federal Energy Regulatory Commission established a similar service in 1999.89 In addition to
institutional structures such as IECR and agency environmental conflict resolution centers, there
have been important policy

developments to support collaborative decision making in the federal government. Building on
IECRs 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 Policymaking, 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, stakeholder
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.
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
None of these types of involvement is more desirable than another, or mutually exclusive.
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 arctic
Haley et al 11
(Sharman Haley, Ph.D., Economics, University of California, Berkeley, 1994 Fields of Concentration: Public Finance, Methodology and
History of Economic Thought, and Labor Dissertation Title: Economic Methodology for Policy Analysis: The Modeling of Corporate
Taxation B.A. (cum laude), Social Studies and Computer Science, Radcliffe College, Harvard University, 1974 International School of
America, Asia, field study in Cultural Anthropology, 1971-72 University of Alaska, Juneau, 24 credits, Economics and Alaska Native
Cultures, 1977-1983 University of Washington, Seattle, 12 credits, Economics and Management, 1976, 1984. TEACHING EXPERIENCE
2014: Affiliate Professor, Evans School of Public Affairs, University of Washington. Courses taught: Research Methods 2006-2010:
Professor, Program in Public Administration, College of Business and Public Policy, University of Alaska Anchorage Courses taught:
Research Methods 2001-2006: Associate professor, Program in Public Administration, College of Business and Public policy, University
of Alaska Anchorage Courses taught: Research Methods 1994-2000: Assistant professor, Program in Public Administration, College of
Business and Public Policy, University of Alaska Anchorage Courses taught: Research Methods, Natural Resource Policy, Policy
Analysis, Program Evaluation, and Current Issues in Public Policy, specifically including Race Class and Culture in Public Policy, and
Alaska Native Self-Governance and Intergovernmental Relations 1993: Instructor, Environmental Economics, Department of
Environmental Studies, Merritt College, Oakland, California 1987-90: Co-coordinator and team teacher, Econ 98/198: Alternative
Approaches to Economics, Department of Economics, U.C. Berkeley 1986: Teaching assistant, Principles of Economics, Department of
Economics, U.C. Berkeley. For more quals, see: http://www.iser.uaa.alaska.edu/people/haley/haley-cv.pdf Haley, S. Chartier, L. Gray, G.
Meek, C. Powell, J. Rosenberg, A. Rosenberg, J. Strengthening Institutions for Stakeholder Involvement and Ecosystem-Based
Management In the US Arctic Offshore, Section 6.6 of North by 2020: Perspectives on Alaskas Changing Social-Ecological Systems,
University of Chicago Press, 2011. http://www.iarc.uaf.edu/sites/default/files/nx2020/si/papers/Northby2020_ch_6.6.pdf//ghs-kw)
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 stakeholdersnational and local,
In this chapter, we argue that as
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,
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.
administrative, or technical. In the course of that discussion, we also explore ways in which
Stakeholder involvement is key to solve for arctic resource management

Haley et al 11
For millennia the Iupiat have sustained themselves in a harsh environment by hunting and gathering marine mammals, birds, fish, and
vegetation. Observing this long social-ecological history, Dasmann has called the Iupiat an ecosystem people because of their deep
connections to and dependence on the local ecosystem for their survival and identity (Dasmann 1975). Change, from disturbances to the natural
environment and contacts with other peoples, has been a regular feature of that history. But in the twentieth and twenty-first centuries western
influence, especially since the
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 Alaskas arctic offshore. Participatory
Democracy and Complex Systems Our argument here is quite simply that complexity is the challenge, and democratization is the way to address
it. Recent scholarship on the politics of ecosystem management demonstrates the benefits of participatory and deliberative methods of decision
making for finding equitable solutions to conflicts over natural resources; but there is still room for argument over the best ways to design
democratic institutions. Although those arguments cannot be settled here, by using complexity and democratic theories we
can
elaborate a set of principles for effective management of complex social-ecological systems
for Arctic Alaska. In Table 6.6.1, we list general criteria for building institutions that are both efficient
and effective in dynamic, complex social-ecological systems (Farrell 2004; Rosenberg 2007). These guidelines
address three issues at the heart of democratic decision making: (1) Representation addresses
the fundamental political questions of who participates, how, and how effectively; (2)
Institutional design relates to the search for processes capable of responding to changing
relationships among stakeholders and the challenges of simultaneously addressing local,
national, and international concerns; (3) Problem articulation refers to the need to
comprehend the different ways that stakeholders perceive what is at stake for them and the
different ways they communicate and pursue their interests.
Climate Change
NOAA fails, CDM key to climate modeling and resource management
Siegel 9
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 agencys particular niche, the need to
communicate inherent uncertainties in climate change data and modeling, and the importance of providing better downscale modeling to meet
state information needs.234 In June 2009, a meeting of northeast regional federal agency officials was held to discuss roles and responsibilities
with respect to climate change adaptation. 235 The purpose of the meeting was to establish a foundation for federal agencies with climate related
responsibilities to communicate and collaborate effectively and efficiently236 on climate change adaptation. The meeting participants identified
a number of key issues for coordination including developing regional consensus on climate scenarios, data sets, models, and projections for
New England.237
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 over
Siegel 9
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 governments unique role in responding to
natural disasters; (5)
the international trans-boundary nature of impacts and solutions ; and (6) the
anticipated stress on infrastructure and resources due to climate change . A number of these factors also reflect the
importance of the federal government as an agent for collaborative decision making. Each of
these six factors are discussed below. While they are by no means exclusive, these factors represent some of the most compelling reasons for why
collaborative decision making should be embraced as a process solution to climate change. 1. Decision Making in the Face of Uncertainty: The
Need for Adaptive Management Climate change planning is fraught with uncertainty.
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 capand-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 Governments 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
5. 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 Nations water supply and seek new collaborative arrangements.68 The American West
and other parts of the country are projected to experience severe drought, early springtime water runoff, and more competition for limited
resources. Existing
compacts designed to ensure adequate water supply to the Western states

may be in jeopardy as water resources become scarcer and competition grows between
states.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 CMSP
US 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 nations oceans
and coasts . In order to be both useful and comprehensive, the process for developing
coastal and marine spatial plans needs to be participatory,
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 CMSP
Gopnik 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-planningpaper.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 Universitys
Nicholas Institute for Environmental Policy Solutions has worked to bring the ocean stakeholder community into the CMSP debate, with a
particular focus on informing and listening to the ocean user community.
CP is key to MSP
Ehler 11
(Charles Ehler is a consultant to UNESCO. He was a senior executive in NOAA and EPA for 32 years. In 2007 he received an award from
the IPCC for his contribution to its award of the Nobel Peace Prize. He is the author of over 100 publications including a 2009 UNESCO
guide to marine spatial planning for IOC and a 2011 report on the future of the UNESCO World Heritage Marine Program. From 19681973 he taught regional planning at the University of Michigan, UCLA, and Stony Brook University. Ehler, C. N. MARINE SPATIAL
PLANNING IN THE ARCTIC: A first step toward ecosystem-based management, part II of The Shared Future: A Report of the
Aspen Institute Commission On Arctic Climate Change, 2011.http://www.unesco-iocmarinesp.be/uploads/documentenbank/36694190bf816835fa78d988adc79907.pdf//ghs-kw)
Why Is Stakeholder Participation Critical to Marine Spatial Planning?
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 actionand
agree upon the management measures to be takenthey will be part of the enforcement process, at least to the extent of encouraging compliance;
and 3.
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 agencys need. It often
incorporates consideration of stakeholder concerns with respect to environmental impacts,
watershed effects, carbon footprint, etc. Many times these stakeholders extend beyond county or state boundaries.
Stakeholders are organizations and individuals with a vested interest in the outcome of
an action or decision. Inside stakeholders include city government leaders (mayor, regulatory agencies, water board, etc.), who
need to be regularly updated and consulted throughout the process to enable them to make informed decisions. Outside stakeholders can be
civic groups, environmental groups, neighbours, etc.
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 projects
Knaster 10
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 renewablessolar 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 issues
Knaster 10
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
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 faceto-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 selfregulation, 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
Selmi 5


Exploration
CP key to solve exploration
CSIRO 10
(Commonwealth Scientific and Industrial Research Organisation (CSIRO) is Australia's national
science agency. Exploring the Foundations for Effective Stakeholder Engagement in Marine
Aggregates Mining: Experiences in the U.K. and the U.S. August 2010.
http://d1180280.u211.pipeten.co.uk/wp-content/uploads/csiro2.pdf//ghs-kw)
Australia has a small seafloor exploration and mining (SEM) industry that is set to increase with growing demand
for sand and gravels for building and beach renourishment activities. CSIROs Wealth from Oceans Flagship is conducting a program of research
focused on Understanding the social dimensions of an expansion to the seafloor exploration and mining industry in Australia. This program has
conducted a range of social research to identify stakeholders values
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 Australias 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 Australias 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
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 policygreenhouse gas
regulation of motor vehicles. The automobile industry, California, and other states have
been in litigation for years over state greenhouse gas emissions standards for motor
vehicles .167 Compounding the complexity of the issues was EPAs decision in 2008 to deny California a waiver from preemption under the
Clean Air Acts motor vehicle provisions168 and DOTs delayed promulgation of fuel economy standards under the Energy Policy and
Conservation Act.169
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
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962/)
Finally, EPA created an office to facilitate the redevelopment of "brownfields," or lands that in some way suffer from the taint of contamination
by hazardous substances, and therefore remain undeveloped because of the fear of CERCLA liability.7 Where hazardous substance contamination
is concerned, the taint need not have any legal recognition in order to effectively preclude any development -- the mere threat of liability is
enough to scare away potential developers. The wastefulness of idling such a large amount of land 8 was the impetus for finding ways to
encourage development of contaminated or potentially contaminated land. Tax breaks, liability relief, and other incentives
aimed at defraying the cost of cleanup have been proposed as incentives to stimulate the
redevelopment of such properties. While the Clinton Administration readily took credit for reinvention, the roots of reinvention were sown
in the early 1980s, when negotiated rulemaking became a widely accepted agency practice.9 Negotiated rulemaking is a frontend add-on to a regulatory rulemaking that seeks to head off possible objections to regulations by
including affected stakeholders in the development of the rule. The Negotiated Rulemaking Act of
1990,10 which solidified agency authority to engage in negotiated rulemaking, authorizes agencies to assemble a
"negotiated rulemaking committee," a panel of stakeholders to discuss and negotiate the development of a rule, and to use
the discussions as a guideline for the actual rule proposed by the agency. The agency must still proceed with
typical rulemaking procedures, such as providing for notice of the proposed and actual rules in the Federal Register,11 in addition to providing
notice of the intention to establish a negotiated rulemaking committee.12 Although such preliminary discussions have no binding effect upon the
agency, proponents argue that rules developed with the participation of regulated parties enjoy greater
"legitimacy" in their eyes than rules developed without their input, and are thus less likely to be
challenged judicially and more likely to enjoy high compliance rates .13 Also, proponents of negotiated rulemaking
argue that the traditional rulemaking process discourages the sharing of information and encourages
regulated parties to assume extreme positions to prepare for a judicial challenge .14 Negotiated
rulemaking, it is argued, represents a retreat from this traditionally adversarial mode of
rulemaking, and hence ameliorates these counter-productive tendencies.
Marine Energy
Stakeholder involvement is specifically key to marine renewablesCP generates
experience to create social acceptability
MERiFIC 13
(Marine Energy in Far Peripheral and Island Communities Project. It is a government project in Europe. The MERiFIC project seeks to
advance the adoption of marine energy across the two regions of Cornwall and Finistre and the island communities of le Parc Naturel
Marin dIroise and the Isles of Scilly. Project partners will work together to identify the specific opportunities and issues faced by
peripheral and island communities in exploiting marine renewable energy resources with the aim of developing tool kits and resources
for use by other similar communities. The project will develop and deliver joint activities between the two regions, looking at issues such
as Marine energy resource assessment/mapping; Policy issues and potential barriers to marine energy development; Business and
commercial opportunities for island/mainland communities; Island/mainland interaction on appropriate infrastructure and Community
and stakeholder engagement with key groups (e.g. fishing, wave farm developers, and investors). MERiFIC, Civil society involvement
and social acceptability of marine energy projects: Best practices of the marine energy sector, February 2013.
http://www.merific.eu/files/2011/08/MERiFIC-6.1.2-Civil-society-involvement.pdf//ghs-kw)
Although marine energy technologies have been identified as energy sources with potentia l
at European level, their development is, among other reasons, conditioned upon their social acceptability.
Social acceptability is important at three levels or dimensions: namely Public or Sociopolitical acceptance, Market acceptance and Community Acceptance (Wstenhagen et al., 2007). At
this stage it is at Community Acceptance, at each individual project level that the need is
more critical. Renewable marine energy, with the exception of offshore wind turbines are not mature
technologies, and there is limited sector experience in managing the challenges of social
acceptability . That said, and despite some limitations such as their current limited scale or early stages of conception, some key
lessons can be identified, complemented by the more advanced offshore wind experience.
Social acceptability of a given project is the result of a shared effort between developers
and stakeholders to set the ideal conditions for integrating the project within its
environmental and human context (ENEA, 2012). The key conditions that contribute to
reaching social acceptability at community /project leve are: Common knowledge base
Sense of ownership Direct benefits Actual ownership through shareholding (this is not
a pre-condition but favours acceptability) From an operational perspective, and in preparation to the development of the toolbox16 , lessons
on good practice can be synthesised into overall principles, actions (Preparatory work and engagement
activities) and support measures. The main points are presented in the Figure 5 below. Overall principles: - Be open and start early Go beyond minimal regulatory requirements - Embed the project in an legitimate local sustainable development plan following the priorities and
conditions already identified Actions: These actions aim at build a common knowledge base to foster a sense of ownership, enhance benefit
sharing and, in cases to make stakeholders into shareholders. Support measures: These activities will provide support to the main thrust of the
engagement by providing dedicated liaison officers, a web site ,and a media strategy.
Oceans
Negotiations result in non-conflicting ocean regulations
Adams 14
(Alexandra Adam, BA of Science in Journalism from the University of Florida and MA of Arts in Environmental Studies from Brown
University, 5-20-2014, A Win for Oceans with Reauthorization of the Water Resources Development Act, Switchboard: Natural
Resources Defense Council Staff Blog, NRDC, http://switchboard.nrdc.org/blogs/aadams/a_win_for_oceans_with_reauthor.html) AJ
Planning for the future health of our oceans and coastlines just became a little easier after a
Congressional committee agreed on the reauthorization of a key waterway management
law. The final outcome has many who rely on our oceans and coasts breathing a sigh of
relief, as a damaging ocean rider was stricken while a new program to protect our coasts has been authorized. After months of
negotiating , a House-Senate conference committee released the final language of the Water
Resources Development Act (WRDA) which will be voted on this week in the House and Senate . WRDA
addresses management of our countrys waterways and coasts and encompasses billions of dollars in projects that impact a majority of our
citizens. I last reported on this bill when it went to conference in November to resolve differences between the House and Senate versions.
Provisions had been added on the House and Senate floor that placed the health of our
oceans on the negotiating table . When negotiations began, the House had passed a
partisan amendment offered by Congressman Bill Flores (R-TX) that would block the Corps
from implementing the National Ocean Policy. This Policy promotes smart ocean planning and ocean protection.
The Senate had taken an entirely different approach by including an important provision, offered by Senator Sheldon Whitehouse (D-RI),
which would establish a National Endowment for the Oceans (NEO) to support conservation
and restoration of ocean resources. The Flores rider would have restricted any funding for U.S. Army Corps of Engineers
projects connected to the National Ocean Policy, a policy that addresses key ocean challenges, and promotes responsible ocean management.
Flores damaging rider would have hindered our ability to protect important habitat and
ocean wildlife, address changing ocean conditions like ocean acidification, build climate resilience,
encourage sustainable use and provide greater certainty for businesses and other ocean
users. With the failure of the Flores provision, Congress preserved a policy that promotes smart ocean planning and science-based
management of our resources. In addition, the final WRDA Bill includes some gains for ocean resource management, notably, a provision crafted
by Senator Sheldon Whitehouse (D-R.I.) to develop a new Army Corps program focused on ocean and coastal resiliency. This program authorizes
the Corps, in coordination with states, nonprofit organizations, and other stakeholders, to conduct studies to determine the feasibility of projects
to enhance ocean and coastal ecosystem resilience. The studies will help the Corps identify specific projects to carry out that could include
restoring wetlands that offer protection from storms, making beaches more resilient to erosion and helping ecosystems adapt to sea level rise.
Our oceans and coasts are economic engines supporting tens of millions of jobs and billions
of dollars in income from both the seafood industry and ocean-related tourism and
recreation. With the climate changing and our oceans becoming busier and more stressed, the preservation of the National Ocean Policy
and the inclusion of a new WRDA program focused on resilience will help ensure that the oceans can continue to provide us all we ask of them.
The millions of Americans and coastal communities that rely on healthy oceans will all certainly benefit from this positive outcome
Oil and Gas

Current institutions failstakeholder involvement is key to solve oil and gas
Haley et al 11
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 stakeholdersnational and local, public and private. Inclusion
(understood as substantive participation in critical decisions on resource use) must be characterized by policymaking,
policy implementation, and policy evaluation. In particular, we are concerned about the inability
of current institutional arrangements to give central importance to the interests of placebound stakeholders,
namely, the permanent residents of the Beaufort and Chukchi coastal zones. These are the people who have the
most direct and critical interests in the sustainable management of the resources and the strongest, most direct historical claim to the arctic
offshore. In
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 drillingits key to solve multiple technical issues
Black 11
(Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the Bureau of Indian
Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as Acting BIA Director
since March 18, 2010. Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the
Bureau of Indian Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as
Acting BIA Director since March 18, 2010. Mr. Black graduated from Aberdeen Central High School in 1982. He received a B.S. degree
in Mechanical Engineering from the South Dakota School of Mines and Technology in 1986. Black, M. S. Letter from the Bureau of
Indian Affairs, Department of the Interior. Subject: Determination of the Need for Negotiated Rulemaking on Leasing of Osage Lands
for Oil and Gas Mining. October 6, 2011. http://bia.gov/cs/groups/xregeasternok/documents/text/idc-020645.pdf//ghs-kw)
In accordance with 5 U.S.C. 563,1 have determined that there
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 pollution
Selmi 5
3. The Staff's Perspective The viewpoint of the District's staff differed somewhat from the views normally associated with environmental
regulatory agencies. As noted above, no
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
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 agencys particular niche, the need to
communicate inherent uncertainties in climate change data and modeling, and the importance of providing better downscale modeling to meet
state information needs.234 In June 2009, a meeting of northeast regional federal agency officials was held to discuss roles and responsibilities
with respect to climate change adaptation. 235 The purpose of the meeting was to establish a foundation for federal agencies with climate related
responsibilities to communicate and collaborate effectively and efficiently236 on climate change adaptation. The meeting participants identified
a number of key issues for coordination including developing regional consensus on climate scenarios, data sets, models, and projections for
New England.237
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 over
Siegel 9
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 governments unique role in responding to
natural disasters; (5)
the international trans-boundary nature of impacts and solutions ; and (6) the
anticipated stress on infrastructure and resources due to climate change . A number of these factors also reflect the
importance of the federal government as an agent for collaborative decision making. Each of
these six factors are discussed below. While they are by no means exclusive, these factors represent some of the most compelling reasons for why
collaborative decision making should be embraced as a process solution to climate change. 1. Decision Making in the Face of Uncertainty: The
Need for Adaptive Management Climate change planning is fraught with uncertainty.
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 capand-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 Governments 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
5. 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 Nations water supply and seek new collaborative arrangements.68 The American West
and other parts of the country are projected to experience severe drought, early springtime water runoff, and more competition for limited
resources. Existing
compacts designed to ensure adequate water supply to the Western states

may be in jeopardy as water resources become scarcer and competition grows between
states.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
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 Nations water supply and seek new collaborative arrangements.68
The American West and other parts of the country are projected to experience severe
drought, early springtime water runoff, and more competition for limited resources .
Existing compacts designed to ensure adequate water supply to the Western states may be
in jeopardy as water resources become scarcer and competition grows between states.6 9
The federal government may need to serve in a similar capacity, using collaborative
decision making , with respect to changes in our energy supply and transmission. The U.S. Department of Energy has already launched a collaborative
project with the Western Governors Association to designate zones for renewable energy projects and plan for power transmission from those zones to western load
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
centers.
disruption to existing energy supply distribution systems in the United States due to weather related impacts from
climate change.71 There will likely be increasing opportunities for the federal government to use
collaborative decision making in other resource and infrastructure contexts such as
transportation, grazing rights, pipeline access, and natural resource management, among
others.
Satellites
Satellite data is inaccuratestakeholder involvement is key to provide technical data and
verify satellite data from the ground
Kritkausky 11
(Randy Kritkausky is the President and co-founder of ECOLOGIA. Trained as a sociologist and historian, his intellectual interests have
focused on societies undergoing profound economic and social transitions. He become involved with environmental and sustainable
development issues when he lived in Northeastern Pennsylvania, which was severely impacted by the legacies of coal mining, heavy
industry, and toxic waste disposal. During the 1970s Mr. Kritkausky was instrumental in promoting public participation in
environmental and economic decision-making in Pennsylvania. In the 1980s he traveled to the Soviet Union to investigate change in the
region and to integrate this understanding into his college teaching. From this work ECOLOGIA emerged with a distinct model of
constructive and scientifically grounded public participation. In recent years, Mr. Kritkausky has become involved in promoting
partnerships between community based organizations and private enterprise. This work has involved him in the global governance
arena, and particularly with the creation and implementation of global standards such as those developed by the International
Organization for Standardization (ISO). Mr. Kritkausky is a Research Scholar in Environmental Studies at Middlebury College in
Middlebury Vermont, and Visiting Scholar in Corporate Social Responsibility and Sustainability at the Monterey Institute ofInternational Studies. He holds a B.A. from the University of Pennsylvania, and an M.A. from Binghamton University. Kritkausky, R.
Better Risk Management Through Stakeholder Involvement, November 2011.
http://www.ecologia.org/isosr/RiskManagement.pdf//ghs-kw)
Good risk asesment and effective risk management both assume a high degree of
information disclosure. Due dilgence usualy relies on writen records and walk through audits of manufacturing facilties or service
providers. As a twenty year old international NGO with a long history of activites on local as wel as global evels, ECOLOGIA knows that
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 birds 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 repositonings 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 datasolves
%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 affairsOsage prove
Black 11
(Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the Bureau of Indian
Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as Acting BIA Director
since March 18, 2010. Michael S. Black, an enrolled member of the Oglala Sioux Tribe in South Dakota, was appointed Director of the
Bureau of Indian Affairs in the U.S. Department of the Interior on April 25, 2010. Prior to his appointment, Mr. Black had served as
Acting BIA Director since March 18, 2010. Mr. Black graduated from Aberdeen Central High School in 1982. He received a B.S. degree
in Mechanical Engineering from the South Dakota School of Mines and Technology in 1986. Black, M. S. Letter from the Bureau of
Indian Affairs, Department of the Interior. Subject: Determination of the Need for Negotiated Rulemaking on Leasing of Osage Lands
for Oil and Gas Mining. October 6, 2011. http://bia.gov/cs/groups/xregeasternok/documents/text/idc-020645.pdf//ghs-kw)
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
In accordance with 5 U.S.C. 563,1 have determined that
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
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
at stake, "
settlement of the litigation and the express desire by the Osage Tribe and the Interior Department to proceed in good faith in addressing and improving administration
a committee
will reach a consensus on the proposed rule within a fixed period of time." Id. 563(a)(3)(A) & (a)(4).
Indeed, the Osage Tribe and the Interior Department have already identified some of the areas
that need to be addressed as part of the negotiated rulemaking, including, but not limited to: 1. Identifying the
and management of the Osage Mineral Estate as soon as practicable to avoid future litigation, I find that "there is a reasonable likelihood that
appropriate information needed from all operators, purchasers and payers who are associated with the Osage mineral estate and developing and implementing
standardized reporting to manage diligently production and accounting; 2. Identifying the source, manner, and format of transmission whereby the information
required by Subsection 9(a) will be provided to the Osage Minerals Council; 3. Identifying appropriate revisions to the methods for calculating royalties and rentals
for oil and gas, including but not limited to royalty rates, royalty value (pricing), and rental rates; 4. Identifying the best feasible practices for developing and
conducting onsite inspection programs; 5. Identifying the feasibility of implementing technological enhancements for generating run tickets and other production data
for reporting that information to the Osage Tribe and the United States; 6. Identifying the best feasible practices for gauging oil and gas production and the resources
needed to implement the strategy selected; 7. Identifying and implementing the best feasible practices for tank battery gauging; 8. Determining and documenting the
formal communication needed to manage diligently the Osage mineral estate between the Osage Nation, the Osage Minerals Council and the United States. See
563(a)(5). The existing agreement on these matters indicates that a negotiated rulemaking procedure will not unduly delay the proposed rulemaking or a final rule.
the Bureau of Indian Affairs has the necessary resources it needs throughout the
negotiated rulemaking process and I will ensure that the agency uses, to the maximum
extent possible, the consensus of the committee with respect to development of a proposed
rule for notice and comment. Id. 563(a)(6), (7). Based on the foregoing, the Osage Agency and the Office of the Solicitor are to proceed with
Furthermore,
a negotiated rulemaking related to the Osage Mineral Estate currently governed by 25 C.F.R. Part 226.
Wind
Reg Neg solves offshore wind better---prefer specific solvency mechanisms
Nolon 11
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) Deng
This Article will focus specifically on three practices that can help to create an implementable wind
energy policy: participator}' planning, negotiated rule making, and siting negotiations. The
proposed framework in Section IV explains how each approach should be used to accomplish a designated goal as part of a comprehensive
citizen involvement plan. Participatory planning can be used to poll a large, representative group of citizens to identify their priorities on
appropriate locations for wind turbines, the amount of wind power desired, and the rate at which fossil fuel use should be phased out.
Negotiated rule making can be used to convene a discrete group of affected parties in their effort to reach
agreement on the contents of model ordinances, recommended lease provisions ,
compensation mechanisms, appropriate mitigation measures, and decommissioning
provisions. Finally, siting negotiations can be used to ensure that the siting process for individual turbines is tailored to local conditions.
1. Participatory Planning Participatory planning refers to practices that engage citizens to serve a central advisory role in making important and
often complicated policy decisions that do not require specified technical experience or knowledge. These processes have been used to provide
valuable information about how to manage financial resources,159 set energy priorities,160 manage natural resources,161 and enable
disadvantaged populations to assess their current circumstances."12 Some of the labels for these techniques include participatory planning,
citizen juries, deliberative polling,163 participator}' budgeting,164 and citizen boards/advisory committees. As compared to negotiated
rulemaking, participator}' planning approaches are not used to reach agreement among a discrete group of stakeholders, but to
identify priorities among broad swaths of the community. These approaches can be used to
identify appropriate areas for wind turbines , the amount of wind energy desired, and if
desired, the
amount of fossil fuels to be reduced . In fact, deliberative pollinga popular form of participatory planning
has already been used in Texas to gauge the public's interest in building out the renewable energy infrastructure.165 2. Negotiated Rule Making
Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected interest groups
negotiate the terms of a proposed administrative rule.166 Historically, it has been used at the federal and stale levels of government, but it has
applicability at the local level as well. The Negotiated Rulemaking Act of 1990 provides the basic structure for agencies to design and
implement appropriate processes.167 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in
the early 1980s.l6S Negotiated rulemaking was seen as a way to deal with what seemed like a never-ending cycle of regulations being adopted
and then being overturned after years of legal appeals.169 Instead of being limited to the minimal process required for promulgating rules with
notice, public comment, and publication of a rule that would then be subject to a lawsuit, many agencies supplemented this required process to
get input earlier. This supplemental process came to be called Negotiated Rulemaking or "reg-neg." Negotiated rulemaking brings interested
parties around the table early on, before the rule has been drafted and before the required regulatory approval process is triggered, to see if the
affected parties can reach agreement. By setting up a negotiating forum before drafting the rule, the agency can engage those who are most likely
to be affected by (and most likely to challenge) a rule. The nature of this negotiation is drastically different than the nature of the formal rule
making process because the parties have an opportunity to talk to each other instead of directing all comments through the agency. They can
share information about what is important to them and what is not. They are free to collectively explore and evaluate different regulatory
possibilities. If all the parlies can reach agreement, Ihen the text of their rule becomes the proposed rule thai is then subject to the required
regulator}' process. The
benefits of reg-neg include greater access to key information, 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 following
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 example, reg-negs were effective
in negotiating permit modifications under the Resource Conservation Recovery Act ("RCRA"), setting emissions standards for wood stoves, and
implementing underground 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
situations. When deciding appropriateness, factors taken into consideration should also include the opportunity for trade-offs among parlies,
the level of conflict, and the importance of gathering information from affected parlies, among others. As described further in the nexl section,
reg-neg can be helpful to develop policy on model ordinances, required lease provisions, compensation mecha-nisms, and decommissioning.
Regulations and civilian involvement in wind turbine development key to conservation and
national security
Nolon 11
In addition to the limitations of expense, storage. and transmission, wind turbines present other limitations. Adverse
environmental impact can result from the construction of, and to a lesser degree, the operation of
wind turbines." While some of these impacts 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 transmission lines through undeveloped
and sometimes sensitive habitat. Turbines may have impacts on avian and bat populations
and habitat destroyed by construction and operation. Wind turbines also have national security and
transportation implications because they can interfere with radar technology. Adequately
addressing these impacts requires the involvement of citizens in decision-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 depending on who is using it and the context in which it is used. In the context of the minimal
governmental procedures that are required 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 citizen 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 involvement In decision-making view the citizens as unlnfonned and
parochial and involving them will only give strength to Not-in-My- Back-Yard ("NIMBY") sentiment ."
Simply dismissing
citizen opposition as self-interested. NIMBY whiners ignore the two realities addressed in
this Article: (I) that many facility proposals subject to citizen opposition will impose
significant. uncompensated burdens on communities: and (2) that successful citizen
involvement is more than a statement of principle-it must be implemented following the
best practices of consensus building and collaboration."
Aff failsrisk assessment with siting of wind power key to solve defense, bioD, and
warming
Nolon 11
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 utilities and need additional approval from the state utility commissions 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 statewide 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 environmental 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 impacts, mitigation
measures, and any adverse environmental effects that cannot be avoided." In New York. the State Environmental Quality Review Act ("SEQRA")
requires local government agencies to mitigate the adverse impacts of any proposed actions-like approving the siting of a wind turbine. SEQRA
requires the completion of an environmental impact statement if a proposed action "is detennined to have a potentially significant adverse
environmental 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
attempt to catalog the adverse impact on land use is incredibly

complex 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 commercial aviation; reduced property values; lack of corporate
accountability; catastrophic failure of turbines; injuries to community: 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 maintenance of wind turbines ."
Some of the specific conditions are described in more detail below.
Aff fails- status quo opposition stops development, CP avoids this and accesses benefits of
NIMBY opposition
Nolon 11
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-InMy-Back-Yard" ("NIMBY") opposition. These are citizens who seem to greet any
development with staunch opposition. According to a simplistic and derisive vision of NIMBYS they are people motivated
solely by self-interest, afraid of change and uninformed of the benefits that result from new develop ment.88 Their protests over-emphasize the
costs of a project, exaggerate the risks of negative impacts on the community, and treat any benefits as illusory and inadequate. NIMBYS are
often characterized as selfish, simple-minded, ignorant, arrogant and parochial. Their efforts to highlight real and perceived risks are pursued with
callous disregard for any community benefits that may result from the proposed project. 89
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 wind
Nolon 11
3. 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 decisionmaking 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 improving 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 reducing opposition by dealing directly with the psychological phenomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the
brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease opposition. 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 individual, 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 substance of a proposal is just one of many factors considered by citizens 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 opportunities 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 section 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/) Deng
In his recent book, Between Facts and Norms, Habermas tries to resolve these two implausibilities of deliberative democratic theory. n111 He
previously argued that the rationalization
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 warming

Levine 07
(Peter Levine is the Lincoln Filene Professor of Citizenship & Public Affairs in Tufts Universitys 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 Marylands
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 Committees 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 Earths atmosphere with respect to the historical fluctuations of global
temperature changes; and (b) the overwhelming majority of the worlds scientific community is in agreement
about the risks of a potential catastrophic global climate change. That is, if we humans continue to ignore this problem
and do nothing, if we continue dumping huge quantities of greenhouse gases into Earths biosphere,
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 ) .
2NC Int Link

Civic engagement decreases opposition and increases trust
Nolon 11
3. 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 decisionmaking 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 improving 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 reducing opposition by dealing directly with the psychological phenomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the
brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease opposition. 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 individual, 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 substance of a proposal is just one of many factors considered by citizens 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 opportunities 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 section 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 trust
Ackerman 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 AntiCorruption Agenda: Civil Society, Human Rights and Democracy* Published 2014, Print) Deng
IV. 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 Husermann 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
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
control of his or her life, a participant in his or her own process of development. n114 Nevertheless,
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
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
through the celebration of democratic elections. n126
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
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
sustain equity ... . Bringing governance squarely into the frame,
summarizes the above-mentioned five central elements of the human rights approach to development: Table 1: The Human Rights Approach to Development Core
Concept Traditional Approach Human Rights Approach Service Provision Charity/Help Obligation The Poor Beneficiaries/ Consumers Citizens Participation Topdown Bottom-up Economic & Less Urgent than Civil & Indivisibility of Human Social Rights Political Rights Rights Power Structure Unimportant or Ignored Central
to Overcoming Poverty Social accountability initiatives may or may not fall within the category of human rights approaches to development. n130 The fact that (*322)
they have to do with accountability and improving governance does not guarantee that they also have to do with human rights. A more accountable government is not
necessarily one that approaches the task of development from a human rights perspective. It is easy to imagine a government that informed its citizens about and
justified every one of its actions in a pro-active manner and exposed its public servants to clear sanctions depending on their performance, but still approached the
poor in a paternalistic, charity-based manner. The involvement of civil society in pro-accountability initiatives does not necessarily guarantee their human rights
component either. As discussed above, "participation" can take many different forms. "Beneficiaries" can participate by replacing government officials in the delivery
of goods and services. n131 "Consumers" can participate in service delivery by sending market signals about their preferences. n132 The people at large can
"participate" by making their opinions known or responding to specific invitations made by the government. n133 None of these modalities truly fulfills the promise
of the human rights perspective. This perspective requires a bottom-up approach to participation in which empowerment comes before opportunity and rights come
before efficiency. Only when social accountability initiatives are grounded in a vision of service providers as duty-bearers, that sees the poor as citizens, stimulates
participation from the bottom-up, emphasizes the indivisibility of human rights, and is oriented towards changing the overall power structure can we speak of a human
rights approach in action. n134 But how can we judge whether this is the case or not? What (*323) are the specific indicators of the presence of a human rights
approach in social accountability initiatives? For each element of the human rights approach we can design specific indicators, which will reveal whether the element
exists. First, with regard to the charity (or obligation) criteria, an excellent indicator is whether formal legal instruments are encouraged as a means by which citizens
can claim their rights. n135 The encouragement of legal recourse demonstrates that service providers are being conceptualized as duty-bearers, since it is the law that
ultimately grounds the duty to uphold human rights. n136 If legal recourse is not encouraged, this puts in doubt the idea that the service provider is obligated to
perform effectively. Second, with regard to the beneficiaries/consumer/citizen criteria, we can examine to what extent the participants in the social accountability
initiatives are encouraged to engage in a broad debate about the underlying sources of the problems which they encounter daily in their interaction with the
government. n137 Are citizens only expected to give their opinions and participate in the solutions concerning the delivery of specific services, or are they taken
seriously as political actors who can participate in constructing and implementing broader national or international solutions? Third, with regard to the "direction" of
participation, are the participatory mechanisms designed externally and then "imposed" on the population, or are previously existing community forms of participation
taken as the starting point for the design of the mechanisms? Is participation carefully controlled and limited to previously existing spaces or is it encouraged to
multiply and expand beyond these spaces? (*324) Fourth, are violations of economic, social, and cultural rights placed at the same level as the violations of political
and civil rights? Specifically, are patience and tolerance to violations of so-called second generation rights preached, or is the initiative inspired by a push for
immediate action? Fifth, with regard to the issue of the overarching power structure, a crucial indicator is whether the actors and forces, which oppose improving
government accountability, are explicitly named and engaged with or simply not mentioned. n138 Insofar as these opposing forces are not explicitly taken into
account, this is an indicator of a tendency to sweep larger structural problems under the rug. n139 The following table (Table 2) summarizes the indicators for each
one of the elements of the human rights approach: Table 2: Indicators of the Human Rights Approach in Social Accountability Initiatives Core Element Indicator
Service Providers as Is formal legal recourse encouraged? Duty-Holders Participants as Citizens Are citizens encouraged to think beyond immediate and localistic
concerns? Bottom-up Participation Is participation expansive and does it build on previously existing practices? Indivisibility of Human Is the initiative inspired by a
an important
challenge with regard to implementing a (*325) human rights approach is the institutionalization of social accountability initiatives. As Walter Eberlei has
written, a certain "event culture" tends to prevail when the concepts of societal participation and civic
engagement are brought to the table. n140 Many public officials seem to believe that all that these
concepts imply is the holding of a series of hearings, workshops, and consultations, not the
establishment of a long-term participatory dialogue with civil society. n141 There are three different levels at
which participatory mechanisms can be institutionalized in the state. First, participatory mechanisms can be built into the
strategic plans of government agencies, with rules and procedures mandated that require
"street-level bureaucrats" to consult or otherwise engage with societal actors. n142 Second, specific
government agencies can be created that have the goal of assuring societal participation in
government activities or act as a liaison in charge of building links with societal actors. n143
Third, participatory mechanisms can be inscribed in law, requiring individual agencies or the
government as a whole to involve societal actors at specific moments of the public policy
process. n144 Although the first level of institutionalization is more or less widespread and the second level is relatively common, the third level is extremely
push for Rights immediate and urgent action? Power Structure Are opposing forces explicitly named and engaged with? In general,
rare. There are of course some important exceptions, including the Administrative Procedures Act in the United States, Bolivia's Popular Participation Law, Porto
Alegre's Participatory (*326) Budgeting framework, Mexico City's Citizen Participation Law, and the wave of freedom of information laws that has swept the world
over the past two decades. n145 Nevertheless, these exceptions only prove the rule that participatory mechanisms are usually vastly under-institutionalized, depending
too much on the ingenuity and good will of individual bureaucrats. Why this is the case is more or less evident. Law making under democratic conditions involves the
messy process of legislative bargaining and a full role for political parties. n146 State reformers and multilateral agencies tend to shy away from such arenas,
especially when they are dominated by opposing parties or factions. n147 Therefore, reformers usually settle for executive procedures, special agencies, or innovative
individual bureaucrats to carry out their participative strategies. This is a mistake. If dealt with in a creative fashion, partisanship can be just as effective as isolation in
the search for effective accountability mechanisms. n148 It is absolutely crucial to involve political parties and the legislature to fully institutionalize participative
mechanisms through the law. In addition to the institutionalization of social accountability mechanisms in the state, we can also speak of their institutionalization in
society. Good laws, open institutions, and pro-active public servants will do very little if civil society itself is not able to take advantage of these openings. On the one
hand, civil society organizations and groups need to build their capacity to dialogue with government and hold it to account. n149 This endeavor involves including
the education and training of civil society as a central element of any social accountability initiative. n150 On the other (*327) hand, civil society groups ought to band
together to assure the long-term continuity and "institutionalization" of social accountability initiatives. n151 With many groups participating in coordinated fashion,
the permanence of the effort is much more likely guaranteed. Nevertheless, there is such a thing as "over-institutionalization." n152 Once participation is legally
recognized and socially organized, it is also controlled by those forces. Institutionalization can work as a double-edged sword. In general, the risk is the creation of an
elite class of individuals or civil society organizations who supposedly speak for the people but do not have social base or legitimacy to back up this voice. n153 The
debate with regard to the nature of institutionalized participation is an old one, going back to discussions of the corporatist form of interest mediation during the
1970s. At that time the important distinction was made between "state corporatism" and "societal corporatism." The former category includes those states who created
new labor and business "corporations" out of whole cloth and controlled them from above. n154 The latter category refers to those states in which previously existing
labor and business groups negotiated their entrance into the state from a position of power. n155 A similar distinction can be made with respect to the
institutionalization of civic engagement for accountability. When this institutionalization leaves the state with the power to divide, co-opt, and control civil society we
have reached the problematic situation of "over-institutionalization," or "statist institutionalization." n156 When it empowers previously existing societal actors to
make their voices heard and to apply sanctions on misbehaving or ineffective (*328) governments, we have the much more productive case of what can be called
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
"societal institutionalization." n157 In addition to being under-institutionalized,
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
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
independence and the autonomy that societal actors (*329) maintain with respect to state actors." n162
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
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
mistake. As Eberlei argues, "
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
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,
keeps government officials on their toes. Second, "
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
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 proaccountability initiatives. We should be careful not to fall prey to depoliticized or neutral ideas of civil society that see "cooperative" or
denunciation of non-obedience." n180 Third,
"moderate" forms of social organization as the only ones that can positively influence the construction of accountability arrangements. n182 In the end, we should
question the commonly accepted idea that the absence of partisanship and political conflict is the only fertile ground for neutrality and accountability. Professionalism
and independence are necessary but by no means sufficient to assure the long-term survival of accountability. To survive, pro-accountability structures need to be
legitimated by society both at their founding moment and during their everyday operations. n183 This requires the multiplication, not the reduction, of "external eyes"
and the diversification, not unification, of political and ideological perspectives. n184 Indeed, sometimes the most effective strategy for (*333) state reformers might
be to stimulate dynamic social movements and social protest and let them take the lead in pressuring and undermining the power of recalcitrant elements of the state.
Federalism
1NC
Failure to use reg neg results in a federalism crisisREAL ID proves
Ryan 11
(Erin Ryan holds a B.A. 1991 Harvard-Radcliffe College, cum laude, M.A. 1994 Wesleyan University, J.D. 2001 Harvard Law School,
cum laude. Erin Ryan teaches environmental and natural resources law, property and land use, water law, negotiation, and federalism.
She has presented at academic and administrative venues in the United States, Europe, and Asia, including the Ninth Circuit Judicial
Conference, the U.S.D.A. Office of Ecosystem Services and Markets, and the United Nations Institute for Training and Research. She
has advised National Sea Grant multilevel governance studies involving Chesapeake Bay and consulted with multiple institutions on
developing sustainability programs. She has appeared in the Chicago Tribune, the London Financial Times, the PBS Newshour and
Christian Science Monitors Patchwork Nation project, and on National Public Radio. She is the author of many scholarly works,
including Federalism and the Tug of War Within (Oxford, 2012). Professor Ryan is a graduate of Harvard Law School, where she was an
editor of the Harvard Law Review and a Hewlett Fellow at the Harvard Negotiation Research Project. She clerked for Chief Judge
James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before practicing environmental, land use, and local government
law in San Francisco. She began her academic career at the College of William & Mary in 2004, and she joined the faculty at the
Northwestern School of Law at Lewis & Clark College in 2011. Ryan spent 2011-12 as a Fulbright Scholar in China, during which she
taught American law, studied Chinese governance, and lectured throughout Asia. Ryan, E. Boston Law Review, 2011.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583132//ghs-kw)
b. A Cautionary Tale: The REAL ID Act The value
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 topdown fed-eral requirements for state-issued licenses. n294 The resulting DHS rules have been bitterly opposed by the
majority of state governors, legislatures, and motor vehicle administrations, n295 prompting
a virtual state rebellion that cuts across the red-state/blue-state political divide. n296 No state
met the December 2009 deadline initially contemplated by the statute, and over half have enacted or
considered legislation prohibiting compliance with the Act, defunding its implementation,
or calling for its repeal. n297 In the face of this unprecedented state hostility, DHS has extended
compliance deadlines even for those that did not request extensions, and bills have been introduced in both houses of
Congress to repeal the Act. n298 Efforts to repeal what is increasingly referred to as a "failed" policy have
won endorsements [*58] from or-ganizations across the political spectrum. n299 Even the Executive
Director of the ACLU, for whom federalism concerns have not historically ranked highly, opined in USA Today that the REAL ID Act violates
the Tenth Amendment. n300
US federalism will be modelled globallysolves human rights, free trade, war, and
economic growth
Calabresi 95
(Steven G. Calabresi is a Professor of Law at Northwestern University and is a graduate of the Yale Law School (1983) and of Yale
College (1980). Professor Calabresi was a Scholar in Residence at Harvard Law School from 2003 to 2005, and he has been a Visiting
Professor of Political Science at Brown University since 2010. Professor Calabresi was also a Visiting Professor at Yale Law School in the
Fall of 2013. Professor Calabresi served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court, and he also
clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter. From 1985 to 1990, he served in the Reagan and first
Bush Administrations working both in the West Wing of the Reagan White House and before that in the U.S. Department of Justice. In
1982, Professor Calabresi co-founded The Federalist Society for Law & Public Policy Studies, a national organization of lawyers and law
students, and he currently serves as the Chairman of the Societys Board of Directors a position he has held since 1986. Since joining
the Northwestern Faculty in 1990, he has published more than sixty articles and comments in every prominent law review in the country.
He is the author with Christopher S. Yoo of The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press
2008); and he is also a co-author with Professors Michael McConnell, Michael Stokes Paulsen, and Samuel Bray of The Constitution of
the United States (2nd ed. Foundation Press 2013), a constitutional law casebook. Professor Calabresi has taught Constitutional Law I
and II; Federal Jurisdiction; Comparative Law; Comparative Constitutional Law; Administrative Law; Antitrust; a seminar on
Privatization; and several other seminars on topics in constitutional law. Calabresi, S. G. Government of Limited and Enumerated
Powers: In Defense of United States v. Lopez, A Symposium: Reflections on United States v. Lopez, Michigan Law Review, Vol 92, No 3,
December 1995. Ghs-kw)
We have seen that a
desire for both international and devolutionary federalism has swept across the
world in recent years. To a significant extent, this is due to global fascination with and emulation of our
own American federalism success story. The global trend toward federalism is an enormously positive development that
greatly increases the likelihood of future peace, free trade, economic growth, respect for
social and cultural diversity, and protection of individual human rights. It depends for its
success on the willingness of sovereign nations to strike federalism deals in the belief that
those deals will be kept.233 The U.S. Supreme Court can do its part to encourage the future striking of
such deals by enforcing vigorously our own American federalism deal. Lopez could be a first step in
that process, if only the Justices and the legal academy would wake up to the importance of what is at stake.
Federalism solves economic growth

Bruekner 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.cesifogroup.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 papers 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 instability

National Intelligence Council, 12 (December, Global Trends 2030: Alternative Worlds
http://www.dni.gov/files/documents/GlobalTrends_2030.pdf)
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 powersparticularly
India and Chinacould spark increased rivalries. However, a reinvigorated US would not necessarily be a panacea. Terrorism,
Big Stakes for the International System The optimistic scenario of
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
A weaker and less secure international

community would reduce its aid efforts, leaving impoverished or crisis-stricken countries to fend for themselves, multiplying the
chances of grievance and peripheral conflicts. In this scenario, the US would be more likely to lose
influence to regional hegemonsChina and India in Asia and Russia in Eurasia. The
Middle East would be riven by numerous rivalries which could erupt into open conflict,
potentially sparking oil-price shocks. This would be a world reminiscent of the 1930s when
Britain was losing its grip on its global leadership role.
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer.
2NC Int Link

Reg negs are better and solves federalismplan fails
Ryan 11
1. Negotiated Rulemaking Although the most conventional of the less familiar forms, " negotiated
rulemaking" between federal

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
agencies and state stakeholders is a sparingly used tool that holds
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 noticeand-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 statefederal communication within negotiated rulemaking enhances the likelihood that federal
agencies will appreciate and understand the full extent of state [*54] con-cerns. Just as the consensusbuilding process invests participating stakeholders with respect for the competing concerns of other stake-holders, it invests
participating agency personnel with respect for the federalism concerns of state
stakeholders. n274 State-side federalism bargainers interviewed for this project
consistently reported that they always prefer negotiated rulemaking to notice and
comment--even if their ultimate impact remains small--because the products of fully
informed federal consultation are always preferable to the alternative. n275
Reg negs solve federalismtraditional rulemaking fails
Ryan 11
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 nonconsensual 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


global and regional challenges would be addressed. A stronger US economy dependent on trade in
the growing
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
2NC Econ Impact

Econ decline causes global catastrophe and nuclear war
Harris and Burrows, 9 *counselor in the National Intelligence Council, the principal drafter of Global Trends 2025, **member of the NICs 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. Terrorisms appeal will decline if
economic growth continues in the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the diffusion of
technologies and scientific knowledge will place some of the worlds most dangerous capabilities within their reach. Terrorist groups in 2025 will likely be
a combination of descendants of long established groupsinheriting organizational structures, command and control processes, and training procedures necessary to
conduct sophisticated attacksand newly emergent collections of the angry and disenfranchised that become self-radicalized, particularly in the absence of
economic outlets that would become narrower in an economic downturn. The most dangerous casualty of any economically-induced drawdown of U.S. military
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
presence would almost certainly be the Middle East. Although Irans acquisition of nuclear weapons is not inevitable,
War would emerge naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella could lead
to an unintended escalation and broader conflict if clear red lines between those states involved are not well established. The close proximity of potential nuclear rivals
combined with underdeveloped surveillance capabilities and mobile dual-capable Iranian missile systems also will produce inherent difficulties in achieving reliable
indications and warning of an impending nuclear attack. The lack of strategic depth in neighboring states like Israel, short warning and missile flight times, and
uncertainty of Iranian intentions may place more focus on preemption rather than defense, potentially leading to
escalating crises. Types of conflict that the world continues to experience, such as over resources, could reemerge, particularly if protectionism
grows and there is a resort to neo-mercantilist practices. Perceptions of renewed energy scarcity will drive countries to take actions to assure their future access to
energy supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy resources, for example, to be essential
for maintaining domestic stability and the survival of their regime. Even actions short of war, however, will have important geopolitical implications. Maritime
security concerns are providing a rationale for naval buildups and modernization efforts, such as Chinas and Indias development of blue water naval capabilities. If
the fiscal stimulus focus for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval capabilities could
lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for multinational cooperation in protecting critical sea lanes.
With water also becoming scarcer in Asia and the Middle East, cooperation to manage changing water resources is likely to be increasingly difficult both within and
between states in a more dog-eat-dog world.
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.
Crises could potentially be the trigger for decreased trade expectations either on its own or because it triggers protectionist
moves by interdependent states.4 Third, others
have considered the link between economic decline and external

armed conflict at a national level. Blomberg and Hess (2002) find a strong correlation between internal
conflict and external conflict, particularly during periods of economic downturn. They write: The linkages between
internal and external conflict and prosperity are strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn
returns the favour. Moreover, the presence of a recession tends to amplify the extent to which international and
external conflicts self-reinforce each other . (Blomberg & Hess, 2002. p. 89) Economic decline has also been linked
with an increase in the likelihood of terrorism (Blomberg, Hess, & Weerapana, 2004), which has the capacity to spill across
borders and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government. "Diversionary theory"
suggests that, when facing unpopularity arising from economic decline, sitting governments have increased
incentives to fabricate external military conflicts to create a 'rally around the flag' effect. Wang
(1996), DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find supporting evidence showing that economic decline and use of force are
at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the tendency towards
diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are
generally more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that
periods of weak economic performance in the U nited S tates, and thus weak Presidential popularity, are statistically
linked to an increase in the use of force. In summary, recent economic scholarship positively correlates economic
integration with an increase in the frequency of economic crises, whereas political science scholarship links economic
decline with external conflict at systemic, dyadic and national levels.5 This implied connection between integration,
crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.
2NC Econ/Nationalism Impact

Econ collapse leads to worst forms of nationalism escalates to nuclear use
Merlini 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 institutions
Judis 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-thegreat-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 war
Khalilzad 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)//BB
economic
trends pose the most severe long-term threat to the United States position as global leader. While
the United States suffers from
low economic growth, the economies of rival powers are developing
Today,
and fiscal
fiscal imbalances and
rapidly. continuation
The
system, leading
in turn
to
of these two trends
increased
could lead to a shift from
geopolitical rivalry and
even
American primacy toward a multi-polar global
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
interest rates
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If
would crowd out other spending
were to rise significantly, annual interest payments which already are larger than the defense budget
or require substantial tax increases that would undercut economic
growth. Even worse, if unanticipated events trigger what economists call a sudden stop in credit markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would almost certainly compel a radical retrenchment
It was the economic devastation of Britain and France

that
led both countries to relinquish their empires
the United States would be
compelled to retrench,
shedding international commitments We face this domestic challenge
of the United States internationally. Such scenarios would reshape the international order.
during World War II, as well as the rise of other powers,
. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a presence east of Suez. Soviet economic weakness, which crystallized under
Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
reducing its military spending and
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.
act
competition among major powers,
and other powers continue to grow, it is not a question of whether but when a new international order will emerge.
risk of escalation.
U.S. leadership
between the United States and its rivals
If U.S. policymakers fail to

could intensify geopolitical
the higher
the longest period of peace among the great powers has been the era of
increase incentives for local powers to play major powers against one another,
The stakes are high. In modern history,
. By contrast,
The closing of the gap

and
undercut our will to preclude or respond to international crises because of
multi-polar systems have been unstable, with
their competitive dynamics resulting in frequent crises and
major wars among
American retrenchment could have devastating consequences

there would be a heightened possibility of arms races,
miscalculation, or other crises spiraling into all-out conflict
weaker powers may shift their
geopolitical posture away from the United States.
hostile states would be emboldened to make aggressive
moves in their regions
the great powers.
Failures of multi-polar international systems produced both world wars.
Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario,
. Alternatively, in seeking to accommodate the stronger powers,
Either way,
Slow growth leads to hegemonic wars relative gap is key

Goldstein 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 states 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 Gilpins argument logically encourages pessimism about the
implications of a rising China. It leads to the expectation that international trade, investment, and technology transfer will result in a
steady diffusion
of American economic power, benefiting the rapidly developing states of the world,
including China. As the US simultaneously scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic
problem of overextension), it will be unable to devote sufficient resources to maintain or restore its former
advantage over emerging competitors like China. While the erosion of the once clear American advantage
plays itself out, the US will find it ever more difficult to preserve the order in Asia that it
created during its era of preponderance. The expectation is an increase in the likelihood for
the use of force either by a Chinese challenger able to field a stronger military in support of its demands for greater
influence over international arrangements in Asia, or by a besieged American hegemon desperate to head off
further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpins theory are
Chinas expanding share of world trade and wealth(much of it resulting from the gains made possible by the
international economic order a dominant US established); its acquisition of technology in key sectors that have both
civilian and military applications (e.g., information, communications, and electronics linked with to forestall, and the challenger becomes
increasingly determined to realize the transition to a new international order whose contours it will define. the revolution in military affairs);
and an expanding military burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that
limits the resources it can devote to preserving its interests in East Asia.14 Although similar to Gilpins work insofar as it emphasizes the
importance of shifts in the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler
present in The War Ledger focuses more closely on the allegedly dangerous phenomenon of crossover the point at which a dissatisfied
challenger is about to overtake the established leading state.15 In such cases, when
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 Kuglers powertransition theory is less clear about the dangers while a potential challenger still lags far behind and faces a difficult struggle to catch
up. This clarification is important in thinking about the theorys relevance to interpreting Chinas rise because a broad consensus prevails among
analysts that Chinese military capabilities are at a minimum two decades from putting it in a league with the US in Asia.16 Their theory,
then, points
with alarm to trends in Chinas growing wealth and power relative to the
United States, but especially looks ahead to what it sees as the period of maximum danger that
time when a dissatisfied China could be in a position to overtake the US on dimensions
believed crucial for assessing power. Reports beginning in the mid-1990s that offered
extrapolations suggesting Chinas growth would give it the worlds largest gross domestic product
(GDP aggregate, not per capita) sometime in the first few decades of the twentieth century fed these sorts of
concerns about a potentially dangerous challenge to American leadership in Asia.17 The huge gap between Chinese and American military
capabilities (especially in terms of technological sophistication) has so far discouraged prediction of comparably disquieting trends on this
dimension, but inklings of similar concerns may be reflected in occasionally alarmist reports about purchases of advanced Russian air and naval
equipment, as well as concern that Chinese espionage may have undermined the American advantage in nuclear and missile technology, and
speculation about the potential military purposes of Chinas manned space program.18 Moreover, because
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 Kuglers 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 legitimacybreeds distrust and makes rule of law
ineffective
Breger 07
(Marshall J. Breger holds a B.A. and M.A., 1967, from University of Pennsylvania, a B.Phil., 1970, from Oriel College, Oxford
University; and a J.D., magna cum laude 1973, from the University of Pennsylvania Law School, where he was an editor of the law
review and a member of the Order of the Coif. Professor Breger is a professor of law at the Columbus School of Law, The Catholic
University of America. From 1993-95, he was a senior fellow at the Heritage Foundation, Washington, D.C. During the George H.W.
Bush Administration he served as Solicitor of Labor, the chief lawyer of the Labor Department with a staff of over 800. During 1992 by
presidential designation he served concurrently as Acting Assistant Secretary for Labor Management Standards. He is Vice-President of
of the Jewish Policy Center, a think tank. From 1985-91 Breger was chairman of the Administrative Conference of the United States, an
independent federal agency. During 1987-89 he also served as alternate delegate of the U.S. to the U.N. Human Rights Commission in
Geneva. From 1982-84 he served as special assistant to President Reagan and his liaison to the Jewish Community. In Fall 2002, Breger
was Lady Davis Visiting Professor of Law at the Hebrew University of Jerusalem. In Fall 2003 he was Distinguished Sy-Cip Fulbright
Lecturer in the Philippines. Breger is a contributing columnist to Moment magazine. He writes and speaks regularly on legal issues and
has published over 25 law review articles in publications including the Stanford Law Review, Boston University Law Review, Duke Law
Journal and North Carolina Law Review. He has published as well in periodicals such as the Middle East Quarterly, the National
Interest, the Los Angeles Times, the Wall Street Journal, the Washington Post, and the New York Times. He has testified more than 30
times before the United State Congress. His subjects include constitutional law, arbitration, foreign relations law of the United States,
and a seminar on the Middle East peace process. Breger, M. J. The Quest for Legitimacy in American Administrative Law, Catholic
University of America Scholarship Repository, 2007. http://scholarship.law.edu/cgi/viewcontent.cgi?article=1104&context=scholar//ghskw)
This undercurrent of American history is dwarfed by a fundamental continuum of American political thought- Americans
distrust
bureaucracy.2 This "deep uneasiness," as James Freedman has put it, "about the coercive and
dehumanizing influence of bureaucratic organizations"23 has a number of sources. One
reason is the belief that bureaucracies "too often appear concerned primarily with
formalistic adherence to their own rules , rather than with seeking a personalized response
to the peculiarities of [the individual's] specific circumstances . 2 4 This concern that the letter of the law
often undercuts its "spirit" is well described in Philip Howard's best seller, The Death of Common Sense.2 1 Howard argues that while " we
don't trust bureaucrats," giving them discretion is "the only way for them to do anything, and the only way for us to know who to
blame."26 Thus, he wants to give bureaucrats flexibility to waive rules or not to waive rules, to accept individuated compliance solutions; in
short, to ignore the letter of the law to accomplish its "spirit. '27 Ironically, Howard's remedy for pervasive over- and under- inclusiveness in
regulatory enforcement is to empower bureaucrats by giving them even more responsibility (or in administrative law terms more discretion) to
take matters into their own hands.2 As Howard explains, "if there is no flexibility for the regulator, there is no flexibility for us. 29 A second
strand of distrust of bureaucracy is reflected by critics like former Congressmen Newt Gingrich or Tom Delay
who believe that "[r]egulatory agencies have run amuck and need to be reformed,"30 and that
laissez-faire or market-based solutions are presumptively superior to regulatory regimes. While they want fewer regulations, they also
want to place substantial burdens on the regulatory process itself. Thus, they seek to restrict the flexibility
and discretion of administrative agencies through procedural constraints." As Howard incisively points out, "[o]ne of the worst elements of the
Republicans' plan for regulatory reform is that they want to make it even harder to pass a new rule"32 Indeed many would prefer "clogging the
wheels of the federal bureaucracy," 33 taking ironic pride in "add[ing] more red tape and judicial oversight,"" if not admitting that such action is a
"recipe for paralysis."3'5 For, as former Congressman David McIntosh suggests, "many Americans think paralyzing the federal government
would be a good thing."36 Some have argued that we are now at a kind of "constitutional moment," to borrow from Bruce Ackerman,37 where
American politics defaults to market-based solutions and where the proponents
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
proposed new approaches to government intervention based on informal
approaches to regulatory management. These initiatives, variously termed "democratic experimentalism,"39
cooperative regulation," and "the Renew Deal,"41 are all premised in the view that "Americans still want
government to tackle... [large problems]; they just don't want government to tackle these problems via the characteristic
academics) have
institutional form of the New Deal-Great Society constitutional order, namely, bureaucracy. 4 2 Thus they
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 decisionmaking 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

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
1.
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.
breeds disagreement, these results continue to accord with the hypothesis that
If conflict
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 decisionmaking 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."
Thats key to Maintain Peacelack of legitimacy Creates Chaos
Dugan, 04
(Maire Dugan, Developer of the Masters in Conflict Resolution curriculum at Columbia College, Dr. Dugan is a member of the Board of
Directors for the SCCCR. She developed the "nested theory", Ph D, January 2004, Beyond Intractability, Legitimacy,
http://www.beyondintractability.org/essay/legitimacy)
legitimacy tends to be needed to maintain control . In the legal system, for example,
some people obey the laws simply because they believe in the rule of law and the
appropriateness of the state making and enforcing the laws. In fact, if the majority did not
accept this, it would take massive amounts of time, weaponry and energy to enforce it . Thus
the rule of law itself is sufficient for the vast majority of "law abiding," citizens. Beyond this, it is largely their support that
allows the state to enforce the law on those who do not accept its legitimacy. Fear of the lack
of public support was seen in the immediate aftermath of the capture of Saddam Hussein in
Some form of
Iraq. Charles Gibson of ABC's Good Morning America asked an advisor to the interim Iraqi government whether a trial of Hussein in Iraq
would have legitimacy with the Iraqi people given that they have not yet constituted their own government. The newscaster asked the same
question of a former U.S. ambassador to the United Nations who was being interviewed at the same time. The
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 legitimacy
Harter 09
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 resolution
Dugan, 04
(Maire Dugan, Developer of the Masters in Conflict Resolution curriculum at Columbia College, Dr. Dugan is a member of the Board of
Directors for the SCCCR. She developed the "nested theory", Ph D, January 2004, Beyond Intractability, Legitimacy,
http://www.beyondintractability.org/essay/legitimacy)
In working on resolving environmental conflicts, one or more groups may not be sufficiently
established to have legitimacy. In this case, it is not a question that the group is considered
illegitimate ; it simply does not have sufficient recognition and legitimacy to negotiate
agreements , which impact a wider group. Dukes and Firehock associate the legitimacy of such groups with balance and inclusiveness in
representation: " a
group seen as representative will have legitimacy that a group that is seen as
excluding interests will not have, and any agreements will be less likely to be attacked ."(7)
Oftentimes, however, in intractable conflicts, the problem is not simply that the parties do not have
legitimacy; one or more of them are seen by some significant sector of the society as
illegitimate. In that case, a negotiation is likely to be fruitless. Party A does not believe the promises Party B is making, or, even if Party A
is willing to presume good faith, they may be concerned about whether Party B can actually make their promises happen. Conflict
resolution , in such cases, must be concerned with the restoration and extension of legitimacy . In
this case, it is wise to consider the sources of legitimacy. Max Weber, often quoted on the topic, identifies four: tradition:
valid is that which has always been; affectual, especially emotional, faith: valid is that which is newly revealed or exemplary; value-rational faith:
valid is that which has been deduced as an absolute; positive enactment which is believed to be legal. Such
legality may be
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 controversyno link to ptix

Harter 99
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 Th e
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 betterreduced costs and increased satisfaction

assessments are



outcomes.
Negotiated rules increase legitimacy and ensures agency solvency

Selmi 5
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 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, consensusbased 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 satisfaction

%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 legitimate
%20benefit.pdf/)
Although reg
neg participants report higher satisfaction with the overall process than their conventional
parties might be more satisfied because of
the kinds of issues that tend to arise in regulatory negotiation, because they feel negotiation
improves rule quality, or because they value particular features of the process, such as the
opportunity to engage each other face to face. Higher satisfaction might be due to a factor that Kerwin and Langbein
counterparts, many of the reasons for that satisfaction remain unclear. The
did not test. To more closely identify the reasons for satisfaction (and dissatisfaction), Kerwin and Langbein used a multiple regression analysis to
isolate individual factors by holding others constant. Their
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 wellthat 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
Two process variables

exerted an impact on overall evaluations, when the other variables were held constant. The
on an 11-point scale) than was detected when the primary issue concerns compliance or implementation.344
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 expenseif
they capture the agency, for exampleor 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 median 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 inclusivemore 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 legitimacy

Breger 07
(Marshall J. Breger holds a B.A. and M.A., 1967, from University of Pennsylvania, a B.Phil., 1970, from Oriel College, Oxford
University; and a J.D., magna cum laude 1973, from the University of Pennsylvania Law School, where he was an editor of the law
review and a member of the Order of the Coif. Professor Breger is a professor of law at the Columbus School of Law, The Catholic
University of America. From 1993-95, he was a senior fellow at the Heritage Foundation, Washington, D.C. During the George H.W.
Bush Administration he served as Solicitor of Labor, the chief lawyer of the Labor Department with a staff of over 800. During 1992 by
presidential designation he served concurrently as Acting Assistant Secretary for Labor Management Standards. He is Vice-President of
of the Jewish Policy Center, a think tank. From 1985-91 Breger was chairman of the Administrative Conference of the United States, an
independent federal agency. During 1987-89 he also served as alternate delegate of the U.S. to the U.N. Human Rights Commission in
Geneva. From 1982-84 he served as special assistant to President Reagan and his liaison to the Jewish Community. In Fall 2002, Breger
was Lady Davis Visiting Professor of Law at the Hebrew University of Jerusalem. In Fall 2003 he was Distinguished Sy-Cip Fulbright
Lecturer in the Philippines. Breger is a contributing columnist to Moment magazine. He writes and speaks regularly on legal issues and
has published over 25 law review articles in publications including the Stanford Law Review, Boston University Law Review, Duke Law
Journal and North Carolina Law Review. He has published as well in periodicals such as the Middle East Quarterly, the National
Interest, the Los Angeles Times, the Wall Street Journal, the Washington Post, and the New York Times. He has testified more than 30
times before the United State Congress. His subjects include constitutional law, arbitration, foreign relations law of the United States,
and a seminar on the Middle East peace process. Breger, M. J. The Quest for Legitimacy in American Administrative Law, Catholic
University of America Scholarship Repository, 2007. http://scholarship.law.edu/cgi/viewcontent.cgi?article=1104&context=scholar//ghskw)
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
barriers of access to the
courts'
57 and to
its heyday, the participation project led to a lowering of

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 solvencyreg neg solves
NPR 1
(National Partnership for Reinventing Government is a govt program headed by the Vice President and is made up of Federal
employees, representing agencies all over government,. Most serve 3 months to a year and then return to their home agencies to continue
the work of reinvention. Each staff person serves on a project team, with most teams focused on building partnerships with federal
agencies and private organizations around key reinvention initiatives.
http://www.ai.mit.edu/ARCHIVE/org/npr/documents/commentable/npr.ovp.eop.gov.us/1993/9/6/383.html)
REG03: Encourage Consensus-Based Rulemaking Background The traditional model for rulemaking is that of agency experts deciding the best way to regulate,
offering the public an opportunity to comment on the agency's proposed rule or to object to its adoption, and then issuing binding rules telling regulated entities what
to do. Even if the agency experts choose wisely, the traditional model has very little buy-in from outside the agency, which undermines the rule's effectiveness. This
traditional process encourages adversarial, uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which
frequently leads to protracted litigation. Agencies routinely find themselves under attack from various private parties who are unhappy with the rule. This has been
particularly true in controversial areas such as environmental regulation or the health and safety of workers. The
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
The long-term
benefits of negotiated rulemaking include: --more innovative approaches that may reduce
compliance costs, --less time, money, and effort spent on developing and enforcing rules,
--earlier implementation, --higher compliance rates, and --more cooperative relationships
between the agency and other affected parties.(Endnote 7) These benefits flow from the broader participation of the parties, the
use of the information it has obtained through the course of the negotiations. BENEFITS OF NEGOTIATED RULEMAKING.
opportunity for creative solutions to regulatory problems, and the potential for avoiding litigation. If the parties reach consensus, the resulting rule is likely to be easier
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
to implement and the probability of subsequent litigation is diminished.
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
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
also be important intangible benefits. Even in programs with no history of adversarial rulemaking,
at stake, who may otherwise feel relatively powerless. Rules drafted with assistance of persons who must ultimately be governed by them are more likely to be
practical, and therefore more acceptable. LIMITS ON REG NEG. Negotiated rulemaking is not appropriate for all rules. Certain characteristics of rulemaking
proceedings favor using reg neg. --The number of distinct interests concerned with the proposed rule, including any relevant government agencies, must be small
enough so that they can be fairly represented by not more than 20 to 25 negotiators. --There should be a number of diverse issues that participants can rank according
to their own priorities, so that there will be room for compromise on some of the issues as an agreement is sought. --It is essential that the issues to be negotiated not
require compromise of principles so fundamental to the parties that productive negotiations are unrealistic. --Parties must be willing to negotiate in good faith, and no
single interest should be able to dominate the negotiations. --The parties cannot have an incentive to stall; therefore, they must believe that the agency itself will issue
a rule if consensus is not reached. A statutory requirement that the agency issue some type of rule is often helpful. In rulemakings where reg neg is inappropriate for
these or other reasons, agencies should consider using policy discussion groups. The most significant deterrent to using negotiated rulemaking is its up-front cost.The
process can be resource-intensive in the short term for both the agency and the other participants. While there are likely to be considerable long-term savings in total
resources required, the concentrated investment of effort and expense in the short term may be a serious obstacle. This is particularly true if the savings and the costs
appear in the budgets of different operating components of the agency. Additional costs may include services of mediators and conveners, research conducted on
behalf of the negotiating committee, administrative support for the committee, expenses of participation for some of the negotiators, and some training costs. Action
Increase the use of negotiated rulemaking. (1) The President should encourage agencies to use reg neg. This is consistent with the new regulatory review executive
order. Regulatory agencies that have not used reg neg since enactment of the Negotiated Rulemaking Act of 1990 should identify at least one candidate for using reg
neg during the coming year or explain why it would not be feasible to do so.(Endnote 10) The administration should facilitate efforts to use reg neg by identifying and
removing any administrative barriers to its use. Reg neg should rarely, if ever, be required by statute for particular rulemakings because its success depends on the
voluntary participation of all participants, including the agency.(Endnote 11) Moreover, Congress should recognize that short statutory deadlines to issue proposed or
final rules, especially if they are shorter than two years, may preclude the use of negotiated rulemaking. CROSS-REFERENCES TO OTHER NPR
ACCOMPANYING REPORTS Department of Labor, DOL03: Expand Negotiated Rulemaking and Improve Up-front Teamwork on Regulations. Department of
Transportation, DOT03: Use a Consensus- Building Approach to Expedite Transportation and Environmental Decisionmaking. ENDNOTES 1. See Harter, Philip J.,
"Negotiating Regulations: A Cure for Malaise," Georgetown Law Journal, vol. 71 (1982), p. 1. 2. Administrative Conference of the United States, Recommendations
82-4 and 85-5, "Procedures for Negotiating Proposed Regulations," 1 C.F.R. 305.82-4 and 305.85-5 (1993); and Pritzker, David M., and Deborah S. Dalton, eds.,
ACUS, Negotiated Rulemaking Sourcebook (Washington, D.C., 1990). 3. Administrative Conference of the United States, "Federal Agency Experience with
Negotiated Rulemaking," (March 1, 1993), staff paper updating Chapter 10 of Pritzker and Dalton, Negotiated Rulemaking Sourcebook. 4. 5 U.S.C.A. 561-570 (1993
Supp.). 5. 5 U.S.C. App. (1988). 6. For a recent notice, see Environmental Protection Agency, Notice of Wood Furniture Manufacturing Negotiated Rulemaking
Committee, 58 FR 34011 (June 23, 1993). 7. It is difficult to obtain reliable data about the costs of regulatory proceedings. However, some information is available
that may give an indication of potential savings from using regulatory negotiations. Speaking in 1984, former EPA Administrator William Ruckelshaus estimated that
more than 80 percent of EPA's major rules were challenged in court and that approximately 30 percent of the rules were changed significantly as a consequence.
Ruckelshaus, W., "Environmental Negotiation: A New Way of Winning," address to the Conservation Foundation's Second National Conference on Environmental
Dispute Resolution 3, October 1, 1984, cited in Susskind and McMahon, "The Theory and Practice of Negotiated Rulemaking," vol. 3, Yale Journal on Regulation
(1985), p. 133. Ruckelshaus also estimated that the annual effort to handle this litigation took 50 person-years from EPA's Office of General Counsel, 75 person-years
from EPA program offices, 25 person-years from the Department of Justice, and 175 person-years on the part of plaintiffs' counsel. Administrator Lee Thomas, in a
1987 address to a colloquium of the Administrative Conference of the United States, pegged the level of litigation at more than 75 percent. Thomas, Lee, "The
Successful Use of Regulatory Negotiations by EPA," vol. 13, Admin Law News (Fall, 1987), p. 1. By contrast, of the first 10 negotiated rulemaking proceedings
brought to completion by EPA, only two were challenged in court, and both rules were essentially upheld. See Safe Buildings Alliance v. EPA, 846 F.2d 79 (D.C. Cir.
1988); and Natural Resources Defense Council v. EPA, 907 F.2d 1146 (D.C. Cir. 1990). Reduction of litigation rates from 75 percent to 20 percent obviously would
produce great savings if this level of improvement were maintained. 8. Kerwin, Cornelius M. and Scott R. Furlong, "Time and Rulemaking: An Empirical Test of
Theory," Journal of Public Administration Research and Theory, vol. 2 (1992), p. 124. In a study of 150 rules completed between October 1, 1986, and September 30,
1989, the rulemaking process (from development of the proposal to issuance of the final rule) took an average of 26 months for the four negotiated rulemakings in the
sample and 37 months for all rules in the sample. The article does not contain sufficient information to determine whether regulatory negotiations would be quicker for
rules with similar resources, complexity and prioritization. Based on a sample of seven reg negs, EPA estimates a saving of 6 to 18 months as compared to the normal
rulemaking process. Telephone interview with Chris Kirtz, Director, Consensus and Dispute Resolution Program, EPA, August 13, 1993. 9. McClintock, Mike,
"Regulating Wood-Stove Emissions," Washington Post (September 25, 1986), Home Section, p.5. 10. In this and all other recommendations in this report, "regulatory
agencies" are those agencies that are named to the Regulatory Coordinating Group (see REG01) and subagencies (or subdepartments) that are designated by
department or agency heads as engaging in significant regulatory activities. Generally, this should include those subagencies that are listed in the most recent Unified
Agenda of Federal Regulations as having over 40 regulatory issuances. The Negotiated Rulemaking Act of 1990, Pub. L. No. 101- 648 was enacted on November 29,
1990. 11. Three statutes have mandated that the Department of Education use reg neg for specific rulemakings and another statute required the Nuclear Regulatory
Commission (NRC) to do so. All were subject to relatively short statutory deadlines and these deadlines constrained the negotiation process. In addition, the NRC was
required to convene a regulatory negotiation on issues that most observers felt were non-negotiable.
Excessive litigations leads to court clog and hurts the economydecreases competitiveness
Post 11
(Ashley Post joined InsideCounsel as managing editor in 2010. In her position, she manages the magazines editorial content, tracks
litigation trends, interacts with top lawyers and consultants in the legal community, and aims to boost InsideCounsels new media
presence. She is a 2007 cum laude graduate of the University of Missouri-Columbia, where she majored in Magazine Journalism and
minored in French and Economics. Frivolous lawsuits clogging U.S. courts, stalling economic growth. Published June 22nd, 2011 @
http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco?page=5) Deng
Americans litigiousness and thirst for massive damages has been a boon to the legal profession. But some researchers and litigation
experts warn that the abundance of lawsuitsmany of them frivolousflooding U.S. courts is
severely weakening the economy. According to consulting firm Towers Watson, the direct cost of the U.S.
tort system in 2009 was approximately $250 billion, which was roughly 2 percent of the gross domestic product. The
amount is double the estimated tort expenses in other countries, including the U.K. and Japan. In May, the House Judiciary
Committee held a hearing that explored excessive litigations effect on the United States
global competitiveness. During his testimony, Skadden Partner John Beisner explained that plaintiffs counsel engage in five types of
litigation abuse that ultimately undermine economic growth: improperly recruiting plaintiffs, importing foreign claims, filing suits that piggyback
off government investigations and actions, pursuing aggregate litigation and seeking third-party litigation financing. Americas litigious nature
has caused serious damage to our countrys productivity and innovation. The
root cause is that we have created

incentives to sueand to invest in litigationinstead 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 Beisners stance on the necessity of tort reform to ameliorate the countrys
economy. The
entrepreneurial system that weve developed for litigation in this country has
always been an impetus to bringing cases that are close to the line or even over the line, says
Dechert Partner Sean Wajert. When you have that kind of encouragement, you have a slippery slope, which sometimes people will slide down
and get into questionable and even abusive and frivolous claims along the way. The
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 war

Harris and Burrows, 9 *counselor in the National Intelligence Council, the principal drafter of Global Trends 2025, **member of the NICs 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. Terrorisms appeal will decline if
economic growth continues in the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the diffusion of
technologies and scientific knowledge will place some of the worlds most dangerous capabilities within their reach. Terrorist groups in 2025 will likely be
a combination of descendants of long established groupsinheriting organizational structures, command and control processes, and training procedures necessary to
conduct sophisticated attacksand newly emergent collections of the angry and disenfranchised that become self-radicalized, particularly in the absence of
economic outlets that would become narrower in an economic downturn. The most dangerous casualty of any economically-induced drawdown of U.S. military
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
presence would almost certainly be the Middle East. Although Irans acquisition of nuclear weapons is not inevitable,
War would emerge naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella could lead
to an unintended escalation and broader conflict if clear red lines between those states involved are not well established. The close proximity of potential nuclear rivals
combined with underdeveloped surveillance capabilities and mobile dual-capable Iranian missile systems also will produce inherent difficulties in achieving reliable
indications and warning of an impending nuclear attack. The lack of strategic depth in neighboring states like Israel, short warning and missile flight times, and
uncertainty of Iranian intentions may place more focus on preemption rather than defense, potentially leading to
escalating crises. Types of conflict that the world continues to experience, such as over resources, could reemerge, particularly if protectionism
grows and there is a resort to neo-mercantilist practices. Perceptions of renewed energy scarcity will drive countries to take actions to assure their future access to
energy supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy resources, for example, to be essential
for maintaining domestic stability and the survival of their regime. Even actions short of war, however, will have important geopolitical implications. Maritime
security concerns are providing a rationale for naval buildups and modernization efforts, such as Chinas and Indias development of blue water naval capabilities. If
the fiscal stimulus focus for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval capabilities could
lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for multinational cooperation in protecting critical sea lanes.
With water also becoming scarcer in Asia and the Middle East, cooperation to manage changing water resources is likely to be increasingly difficult both within and
between states in a more dog-eat-dog world.
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 doesnt 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 plans 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%9Dremarks-david-chavern-chief //um-ef)
A strong business environment doesnt 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 doesnt 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)
the NPR sought to turn agencies away from traditional command-and-control rules, it
also took aim at what it called the "traditional model for rulemaking." n80 The review equated the
traditional model with the procedure for informal, notice-and-comment rulemaking
delineated in the Federal Administrative Procedure Act. n81 As described by the NPR, the traditional
2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as
model relies on "agency experts" to decide "the best way to regulate," then to provide "the
public an opportunity to comment on the agency's proposed rule or to object to its adoption," and finally to issue
"binding rules telling regulated entities what to do." n82 The central failing of traditional
notice-and-comment rulemaking, in the NPR's view, is that it is excessively "adversarial ." n83 The
adversarial nature of traditional rulemaking, according to the NPR, has created considerable dysfunction. First, the traditional model frustrates helpful public
participation in the rulemaking process. n84 The opportunity to comment on a proposed rule does not foster "a real dialogue between the public and the agency or
among different segments of the public." n85 Moreover, after the time and effort expended to formulate and publish a proposed rule, the agency may not welcome
comments calling for a significant change. n86 Thus, the public's written comments are too little and too late. As a response to this failing, the NPR encouraged earlier
and more "interactive" public participation in the rulemaking process. n87 Interestingly, the review explicitly linked this recommended process change to its
preference for market strategies over traditional, command-and-control regulation. The NPR believed that notice-and-comment rulemaking reinforces the traditional
primacy of "agency experts" who decide "the best way to regulate" and issue "binding rules telling regulated entities what to do." n88 By breaking the notice-and[*435] comment routine, the NPR hoped that agencies would be more open to the development of "innovative regulation," n89 by which it meant incentive-based
A second problem that the NPR associated with traditional,

notice-and-comment rulemaking was its frequent failure to produce "cooperative efforts
systems that produce more decentralized and flexible decisionmaking. n90
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/CHRG113hhrg79725/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/CHRG113hhrg79725.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 oppositionCP solves
Selmi 5
B. 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
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 policygreenhouse gas
regulation of motor vehicles. The automobile industry, California, and other states have
been in litigation for years over state greenhouse gas emissions standards for motor
vehicles .167 Compounding the complexity of the issues was EPAs decision in 2008 to deny California a waiver from preemption under the
Clean Air Acts motor vehicle provisions168 and DOTs delayed promulgation of fuel economy standards under the Energy Policy and
Conservation Act.169
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
litigation
Siegel 9
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, publicprivate partnership, deliberative democracy, constructive engagement, and collaborative
problem solving. The varied use of these terms demands clear definition when designing and describing processes.14 For purposes of
this article, collaborative decision making will be considered broadly and is characterized by a range of processes, some
agreement-seeking and some not, in which the government involves outside stakeholders in the
governments decision making. In some cases, where the government has no greater authority than other stakeholders,
collaborative decision making can involve an equal partnership among the stakeholders,
including the government; or the government can serve in a supporting role to facilitate
efforts of outside stakeholders in their own decision making processes. 2. General Attributes of
Collaborative Decision Making Collaborative decision making holds great promise for addressing
difficult public policy issues. There are a number of general attributes that are worth considering at the outset before discussing
why decisions on climate change are uniquely qualified to benefit from collaborative
approaches. Collaborative decision making can provide a forum for broad participation
by multiple stakeholders , facilitate cooperative learning among the participants, and
result in selection of the best policy choices.15 It ensures an opening for group creativity
and innovation
that is often lacking in traditional regulatory processes. Collaborative decision making can be particularly powerful in
the context of complex public policy issues, such as climate change, because
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 governments authorities are clear
and purposeful. 21 Likewise, stakeholders retain their right to any alternatives to the collaborative process that are otherwise available to
them.22 Collaborative decision-making is not a panacea alternative to traditional environmental regulation and will not always be the appropriate
means of making environmental decisions. 23 It does not guarantee that cooperation among stakeholders will come easily nor does its adoption
mean that resolution of complex issues will be achieved. However, it
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


global and regional challenges would be addressed. A stronger US economy dependent on trade in
the growing
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
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.
Crises could potentially be the trigger for decreased trade expectations either on its own or because it triggers protectionist
moves by interdependent states.4 Third, others have considered the link between economic decline and external
armed conflict at a national level. Blomberg and Hess (2002) find a strong correlation between internal
conflict and external conflict, particularly during periods of economic downturn. They write: The linkages between
internal and external conflict and prosperity are strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn
returns the favour. Moreover, the presence of a recession tends to amplify the extent to which international and
external conflicts self-reinforce each other . (Blomberg & Hess, 2002. p. 89) Economic decline has also been linked
with an increase in the likelihood of terrorism (Blomberg, Hess, & Weerapana, 2004), which has the capacity to spill across
borders and lead to external tensions. Furthermore, crises generally reduce the popularity of a sitting government. "Diversionary theory"
suggests that, when facing unpopularity arising from economic decline, sitting governments have increased
incentives to fabricate external military conflicts to create a 'rally around the flag' effect. Wang
(1996), DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find supporting evidence showing that economic decline and use of force are
at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the tendency towards
diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are
generally more susceptible to being removed from office due to lack of domestic support. DeRouen (2000) has provided evidence showing that
periods of weak economic performance in the U nited S tates, and thus weak Presidential popularity, are statistically
linked to an increase in the use of force. In summary, recent economic scholarship positively correlates economic
integration with an increase in the frequency of economic crises, whereas political science scholarship links economic
decline with external conflict at systemic, dyadic and national levels.5 This implied connection between integration,
crises and armed conflict has not featured prominently in the economic-security debate and deserves more attention.
2NC Econ/Nationalism Impact

Econ collapse leads to worst forms of nationalism escalates to nuclear use
Merlini 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 institutions
Judis 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-thegreat-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 war
Khalilzad 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)//BB
economic
trends pose the most severe long-term threat to the United States position as global leader. While
the United States suffers from
low economic growth, the economies of rival powers are developing
Today,
and fiscal
fiscal imbalances and
rapidly. continuation
The
system, leading
in turn
to
of these two trends
increased
could lead to a shift from
geopolitical rivalry and
even
American primacy toward a multi-polar global
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
interest rates
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If
would crowd out other spending
were to rise significantly, annual interest payments which already are larger than the defense budget
or require substantial tax increases that would undercut economic
growth. Even worse, if unanticipated events trigger what economists call a sudden stop in credit markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would almost certainly compel a radical retrenchment
It was the economic devastation of Britain and France

that
led both countries to relinquish their empires
the United States would be
compelled to retrench,
shedding international commitments We face this domestic challenge
of the United States internationally. Such scenarios would reshape the international order.
during World War II, as well as the rise of other powers,
. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a presence east of Suez. Soviet economic weakness, which crystallized under
Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
reducing its military spending and
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.
act
competition among major powers,
and other powers continue to grow, it is not a question of whether but when a new international order will emerge.
risk of escalation.
U.S. leadership
between the United States and its rivals
If U.S. policymakers fail to

could intensify geopolitical
the higher
the longest period of peace among the great powers has been the era of
increase incentives for local powers to play major powers against one another,
The stakes are high. In modern history,
. By contrast,
The closing of the gap

and
undercut our will to preclude or respond to international crises because of
multi-polar systems have been unstable, with
their competitive dynamics resulting in frequent crises and
major wars among
American retrenchment could have devastating consequences

there would be a heightened possibility of arms races,
miscalculation, or other crises spiraling into all-out conflict
weaker powers may shift their
geopolitical posture away from the United States.
hostile states would be emboldened to make aggressive
moves in their regions
the great powers.
Failures of multi-polar international systems produced both world wars.
Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario,
. Alternatively, in seeking to accommodate the stronger powers,
Either way,
Slow growth leads to hegemonic wars relative gap is key

Goldstein 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 states 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 Gilpins argument logically encourages pessimism about the
implications of a rising China. It leads to the expectation that international trade, investment, and technology transfer will result in a
steady diffusion
of American economic power, benefiting the rapidly developing states of the world,
including China. As the US simultaneously scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic
problem of overextension), it will be unable to devote sufficient resources to maintain or restore its former
advantage over emerging competitors like China. While the erosion of the once clear American advantage
plays itself out, the US will find it ever more difficult to preserve the order in Asia that it
created during its era of preponderance. The expectation is an increase in the likelihood for
the use of force either by a Chinese challenger able to field a stronger military in support of its demands for greater
influence over international arrangements in Asia, or by a besieged American hegemon desperate to head off
further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpins theory are
Chinas expanding share of world trade and wealth(much of it resulting from the gains made possible by the
international economic order a dominant US established); its acquisition of technology in key sectors that have both
civilian and military applications (e.g., information, communications, and electronics linked with to forestall, and the challenger becomes
increasingly determined to realize the transition to a new international order whose contours it will define. the revolution in military affairs);
and an expanding military burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that
limits the resources it can devote to preserving its interests in East Asia.14 Although similar to Gilpins work insofar as it emphasizes the
importance of shifts in the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler
present in The War Ledger focuses more closely on the allegedly dangerous phenomenon of crossover the point at which a dissatisfied
challenger is about to overtake the established leading state.15 In such cases, when
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 Kuglers powertransition theory is less clear about the dangers while a potential challenger still lags far behind and faces a difficult struggle to catch
up. This clarification is important in thinking about the theorys relevance to interpreting Chinas rise because a broad consensus prevails among
analysts that Chinese military capabilities are at a minimum two decades from putting it in a league with the US in Asia.16 Their theory,
then, points
with alarm to trends in Chinas growing wealth and power relative to the
United States, but especially looks ahead to what it sees as the period of maximum danger that
time when a dissatisfied China could be in a position to overtake the US on dimensions
believed crucial for assessing power. Reports beginning in the mid-1990s that offered
extrapolations suggesting Chinas growth would give it the worlds largest gross domestic product
(GDP aggregate, not per capita) sometime in the first few decades of the twentieth century fed these sorts of
concerns about a potentially dangerous challenge to American leadership in Asia.17 The huge gap between Chinese and American military
capabilities (especially in terms of technological sophistication) has so far discouraged prediction of comparably disquieting trends on this
dimension, but inklings of similar concerns may be reflected in occasionally alarmist reports about purchases of advanced Russian air and naval
equipment, as well as concern that Chinese espionage may have undermined the American advantage in nuclear and missile technology, and
speculation about the potential military purposes of Chinas manned space program.18 Moreover, because
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 Kuglers 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 countrys leading opinion
research fi rms with offi ces in Washington, D.C., Oakland and Seattle. Ted specializes in crafting strategic initiatives
aimed at reframing old debates in ways that build power for his clients, The Death of Environmentalism, pg online @
http://www.thebreakthrough.org/images/Death_of_Environmentalism.pdf //um-ef)
Global warming is an apt example of why environmentalists must break out of their ghetto, said
Lance Lindblom, President and CEO of the Nathan Cummings Foundation. Our opponents use our inability to form effective
alliances to drive a wedge through our potential coalition . Some of this is a cultural problem. Environmentalists think,
Youre talking to me about your job Im talking about saving the world ! Developing new energy industries will clearly
help working families and increase national security, but theres still no intuition that all of
these are consistent concerns. The tendency to put the environment into an airtight
container away from the concerns of others is at the heart of the environmental
movements 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 Kerrys war record. The way to win is not to defend its to attack. Given the
movements adherence to fi xed and arbitrary categories its 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
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
warming need not be wrenching to our economy if we take simple sensible steps now.
more than $15 a month per household. In the online magazine Grist , Thad Miller approvingly cites a study done by MITs Joint Program on the Science and Policy
of Global Change that predicts household energy expenditures under the bill would increase by a modest $89. More good news from the environmental community:
not only wont we kill as many jobs as you think, we only want to raise your energy bill a little bit! For nearly every environmental leader we spoke to,
creation benefits
the job
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. Its a shift weve only started to make, so its not unexpected that its
of things like retrofi tting every home and building in America
happening slowly. The pressure becomes overwhelming as Canada and Japan begin to move on us. When asked what excites him the most about the movement
against global warming, Hal Harvey, too, pointed to economic development. Lets go for the massive expansion of wind in the Midwest make it part of the farm
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: its a frame that moves the environmental movement
away from apocalyptic global warming scenarios that tend to create feelings of helplessness
bill and not the energy bill. Lets highlight the jobs and farmers behind it, he said.
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.
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
Imagine how history would have turned out had King given an I have a nightmare speech instead.
worlds most effective leaders are not issue-identified but rather vision and valueidentified . These leaders distinguish themselves by inspiring hope against fear, love against
injustice, and power against powerlessness. A positive, transformative vision doesnt just
inspire, it also creates the cognitive space for assumptions to be challenged and new ideas to
surface. And it helps everyone to get out of their issue boxes.
Forging coalitions between environmentalists and industry key to popularity
Schellenberg and Nordhaus 5
(Michael Shellenberger is a strategist for foundations, organizations and political candidates. He is Executive Director of
the Breakthrough Institute, and Ted Nordhaus, Vice President of Evans/McDonough, one of the countrys leading opinion
research fi rms with offi ces in Washington, D.C., Oakland and Seattle. Ted specializes in crafting strategic initiatives
aimed at reframing old debates in ways that build power for his clients, The Death of Environmentalism, pg online @
http://www.thebreakthrough.org/images/Death_of_Environmentalism.pdf //um-ef)
The marriage between vision, values, and policy has proved elusive for environmentalists.
Most environmental leaders, even the most vision-oriented, are struggling to articulate proposals that have
coherence. This is a crisis because environmentalism will never be able to muster the
strength it needs to deal with the global warming problem as long as it is seen as a special interest .
And it will continue to be seen as a special interest as long as it narrowly identifi es the
problem as environmental and the solutions as technical. In early 2003 we joined with the Carol/Trevelyan Strategy
Group, the Center on Wisconsin Strategy, the Common Assets Defense Fund, and the Institute for Americas Future to create a proposal for a New Apollo Project
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. Apollos 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
aimed at freeing the US from oil and creating millions of good new jobs over 10 years. Our strategy was to
ideas into contested political spaces, define the debate, attract allies, and legislate . And it
uses big solutions to frame the problem not the other way around. Until now the Apollo Alliance has
focused not on crafting legislative solutions but rather on building a coalition of environmental, labor, business, and
community allies who share a common vision for the future and a common set of values. The Apollo vision was endorsed by 17 of the countrys leading
labor unions and environmental groups ranging from NRDC to Rainforest Action Network. Whether or not you believe that the New Apollo Project is on the mark, it
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
is at the very
the four wheels on the car needed to make an ecological U-turn. Van has extended the metaphor elegantly: We need all four wheels to be turning at the same time
and at the same speed. Otherwise the car wont go anywhere. Our point is not that Apollo is the answer to the environmental movements losing streak on global
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
warming. Rather we are arguing that all
environmental protections we need but also whether they will defi ne the debate, divide
our opponents and build our political power over time . It is our contention that the
strength of any given political proposal turns more on its vision for the future and the
values it carries within it than on its technical policy specifi cations. Whats so powerful about Apollo is not its
10-point plan or its detailed set of policies but rather its inclusive and hopeful vision for Americas future. There was a brief period of time when my colleagues
thought I was crazy to grab onto Apollo, said Sierra Club Executive Director Carl Pope, a co-chair of the Apollo Alliance. They kept looking at Apollo as a policy
reframing the issue
outcome and I viewed it as a way of

. They kept asking, How do you know [Teamsters President] Jimmy Hoffa, Jr. is going to get
the issue? I answered, Jimmy Hoffa, Jr. isnt! Im not doing policy mark-up here, Im trying to get the people that work for Jimmy Hoffa, Jr. to do something
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. Theres no guarantee that the environmental movement can fi x labors 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.
different.
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 mid1990s, 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, OMBs 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, GAOs pay-forperformance 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 CRSs 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
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,
executive branch actions, and
regarding whether the approach actually speeds rulemaking or reduces litigation.
Reg neg solves controversyno link to ptix

Harter 99
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 Th e
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 nongovernmental actors, who may possess the most relevant knowledge and who will be most
affected by the rule, is a prerequisite to effective regulation . n138 Increased participation also
leads to what Professor Harter considers the overarching benefit of negotiations: greater legitimacy . n139 Whereas traditional
rulemaking lends itself to adversarialism, n140 negotiated rulemaking is designed to foster
cooperation and accommodation . n141 Rather than clinging to extreme positions, parties prioritize the underlying
issues and seek trade-offs to maximize their overall interests. n142 Participants, including the
agency, discover and address one another's concerns directly. n143 The give-and-take of this process provides an opportunity
for parties with differing viewpoints to test data and arguments directly. n144 The resultant exploration of different approaches is
more likely than the usual notice and comment process to generate creative solutions and
avoid ossification . n145 [*230] Whether or not it results in a rule, negotiated rulemaking establishes valuable links
between groups that otherwise would only communicate in an adversarial context. n146 Rather than
trying to outsmart one another, former competitors become part of a team which must consider the needs of each member. n147 Working relationships developed during negotiations give
participants an understanding of the other side. n148 As one negotiator reflected, in "working with the opposition you find they're not quite the ogres you thought they were, and they don't hate
The chance to iron out what are often long-standing disagreements can
only improve future interactions. n150
you as much as you thought." n149
CP Makes it Popular
CP makes it popular (lol not sure about this card)
Gonski 13
(Sarah Gonski, B. A. from the University of Maryland College Park, J.D. Candidate at Harvard Law School, EASING GRIDLOCK IN
THE UNITED STATES CONGRESS THROUGH MEDIATION: LETTING OUR CITIES AND STATES TEACH US LESSONS ON
GETTING ALONG. 2013.
http://www.americanbar.org/content/dam/aba/events/dispute_resolution/lawschool/boskey_essay_contest/2013/easing_gridlock_in_the_u
nited_states_congress_through_mediation_letting_our_cities_and_states_teach_us_lessons_on_getting_along.authcheckdam.pdf//ghs-kw)
What if, instead of communicating mostly through the media and warring factions of interest groups with bumper-sticker slogans,
federal lawmakers gathered with a trained third-party neutral and discussed the benefits of
a real policy solution to some of the nations most intractable issues? What if party leadership and
relevant committees had a mediator to engage them in open, honest discussion about the substantive issues at hand without
the distraction of cameras and angry constituents screaming for a hard line? Americans desperately need our
Congress to function, and providing them with qualified third-party neutrals to serve as mediators
might be a way to loosen the death grip of partisanship and inaction. The presence of a thirdparty neutral could be particularly useful for lawmakers as a means of breaking the
adversarial pattern they are locked into.5 Mediators are neutral third parties that specialize in helping
parties better communicate and fostering a creative, solutions-generating environment in
which parties are encouraged to discuss, negotiate and find common ground on policy
issues. The mediator is not generally empowered to direct a resolution nor dictate the terms of the discussion, but instead
works with the parties to craft creative solutions that align with their respective interests .6
Legislative mediators would be politically neutral, objective third parties who would meet with members of
Congress and help them draft bipartisan bills, which the lawmakers would then present to the legislative body as a
whole for a floor debate and ultimately, a vote. In this way the integrity of the democratic process is intact and the lawmakers have an available
advocate for compromise and solutions-generating discussions. The
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)
the NPR sought to turn agencies away from traditional command-and-control rules, it also took aim
at what it called the "traditional model for rulemaking." n80 The review equated the traditional model with the procedure for informal, noticeand-comment rulemaking delineated in the Federal Administrative Procedure Act. n81 As described by the NPR, the traditional model relies on
"agency experts" to decide "the best way to regulate," then to provide "the public an
opportunity to comment on the agency's proposed rule or to object to its adoption," and finally to issue "binding rules telling regulated entities what to do." n82
The central failing of traditional notice-and-comment rulemaking, in the NPR's view, is that it is excessively
2. Delegalizing the Regulatory Process: Negotiated Rulemaking Just as
"adversarial ." n83 The adversarial nature of traditional rulemaking, according to the NPR, has created considerable dysfunction. First, the traditional model frustrates
helpful public participation in the rulemaking process. n84 The opportunity to comment on a proposed rule does not foster "a real
dialogue between the public and the agency or among different segments of the public." n85 Moreover, after the time and effort expended to formulate and publish a proposed rule, the
agency may not welcome comments calling for a significant change. n86 Thus, the public's written comments are too little and too late. As a response to
this failing, the NPR encouraged earlier and more "interactive" public participation in the rulemaking process.
n87 Interestingly, the review explicitly linked this recommended process change to its preference for market strategies over traditional, command-and-control regulation. The NPR believed that
notice-and-comment rulemaking reinforces the traditional primacy of "agency experts" who decide "the best way to regulate" and issue "binding rules telling regulated entities what to do." n88
By breaking the notice-and- [*435] comment routine, the NPR hoped that agencies would be more open to the development of "innovative regulation," n89 by which it meant incentive-based
that produce more decentralized and flexible decisionmaking
systems
. n90 A second problem that the NPR associated with
traditional, notice-and-comment rulemaking was its frequent failure to produce "cooperative efforts to resolve problems." n91 According to this critique, the "traditional process encourages
adversarial, uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which frequently leads to protracted litigation." n92 Thus, the NPR
depicted a model at war with itself. The agency assumes the position of rulemaker, but in doing so, it perpetuates a process that undermines the effectiveness of agency rules. n93 The threat of
litigation not only undermines government regulation, but also, according to the NPR, it causes a third problem. Fear of judicial review, the NPR claimed, drives agencies to add "numerous layers
of review and analyses" to the traditional, notice-and-comment process. n94 Because a successful lawsuit can bring a regulatory program into a "state of disarray," n95 agencies spend more time
than is "really beneficial" to prepare "extensive records" and to develop "detailed rationales for rules and responses to comments" to defend their rulemaking in court. n96 The result, once again,
has been agency dysfunction. As the NPR concluded, "the straightforward APA notice-and-comment rulemaking process has now become so formalized that its name - informal rulemaking seems a misnomer." n97 Notwithstanding this relentless criticism of notice-and-comment rulemaking, the NPR did not advocate its abandonment. Rather, the NPR sought to delegalize
rulemaking while working within the notice-and-comment structure. It did so with a number of recommendations. The NPR encouraged the President to "direct heads of regulatory agencies to
The NPR
review and streamline their internal rulemaking processes." n98

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
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
participation." n100 Each of these reforms would contribute to a deformalization of the rulemaking process. The centerpiece of the NPR's
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.
rulemaking, seen in this light, is the ultimate expression of
policymaking
Negotiated
decentralized, voluntary
The agency and regulated entities stand on equal footing and work
together to develop regulatory policy. As the NPR ex- [*438] plained, negotiated rulemaking "brings
together representatives of the agency and the various affected interests in a cooperative
effort to develop regulations that not only meet statutory requirements, but also are
accepted by the people who ultimately will have to live with regulations." n113
not imposed from above by authoritative agency experts
Rules are
They are
negotiated much like contracts, with binding provisions resulting only from the voluntary
acceptance by the regulated entities. By replacing an adversarial model with one grounded on
cooperation, the NPR expects better, more innovative regulation at less cost. n114 "Rules drafted with
.
assistance of persons who must ultimately be governed by them," the NPR concluded, "are more likely to be practical, and therefore more acceptable." n115
Participatory democracy is the only way to solve oppression and ensure value to life
Jerome Scott, Director of Project South: Institute for the Elimination of Poverty & Genocide and Walda
Katz-Fishman, board Chair of Project South and prof @ howard univ..10-26-4 [Popular Democracy
- a vision for our movement http://www.zmag.org/znet/viewArticle/7600]
When people talk about "democracy" we immediately think of "democracy for whom?" It's really important to say whose interests democracy serves - the interests of
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
the rich and powerful or the interests of working and poor people. We, of course, are
democracy. When we look deeper into popular democracy several principles and processes emerge as essential for understanding and organizing in our current
participatory decision-making, struggle and liberation. Equality means the equal sharing and access to all the
resources and goods and services we must have to satisfy our material, intellectual, cultural and spiritual needs. It also means that all people are
valued and treated equally and have equal rights regardless of race/ethnicity, nationality, gender, sexuality, age and
disability, etc. Going from the extreme polarization of today's wealth and poverty to equality among all peoples is an ongoing process as well as an essential
principle of popular democracy. Participatory decision-making involves full bottom-up and active participation in
making decisions that affect the lives of all of us - but especially of working and poor people. The involvement of those most
moment - equality,
adversely affected is key to this process. For this to happen we must all prepare ourselves through practice, education and information gathering and then come
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
together to share our analysis and reach collective agreements.
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
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,
- to value all people and our human rights and to respect nature and the ecological system we share on this earth.
our struggle to be free and liberation for humanity. Democracy = electoral politics ...What's wrong with this picture? The big lie? The American revolutionaries in
1776 thought they had arrived at "democracy" because they had defeated the British monarchy. Little did they know that the capitalists - the rich and powerful - had
other plans. Who "took power" - who voted, held political office, and had the major say in all important decisions - was this economic elite, not the people who were
the majority of those who had fought and won. Democracy has often been equated with electoral politics. We believe it is much more and this is why. To begin with, in
the early days of the United States voting was the privilege of the exclusive few - white men who owned property - about 15% of all the American people. Working
people of all racial/ethnic groups, including and especially peoples of color, and women were denied the right to vote and participate in the political process. During
reconstruction - the brief period following the Civil War and before Jim Crow or southern apartheid was the law of the land - black men gained the vote. But with Jim
Crow southern blacks and working class whites were again excluded from voting. American women - primarily white women - won the right to vote with the
ratification of the 19th amendment in 1920. Most African Americans and other oppressed racial and ethnic peoples finally got the vote with passage of the 1965 Voting
Rights Act. Even voting rights - the most minimal of democratic rights - were won for the vast majority only after intense political struggles and popular movements,
e.g., the Civil War, the women's suffrage movement and the modern civil rights movement. Today many immigrants - documented and not - are also in a struggle for
their voting rights. Also in a fight for voting rights are the 1000s of ex-felons who are currently denied the right to vote even after "serving their time." When the US
Supreme Court ruled in Buckley v. Valeo in 1975 that money equals free speech and this is "democracy," they made clear the class/wealth nature of the US political
and electoral system. Our struggle for participatory democracy must be part of a struggle for a political, economic and cultural system that values all people rather
than maximizing profits and transforms power relations fundamentally. From colony to empire - the world's people strike back It took a long time - 500+ years - to
perfect the evil of today's US empire. Rich white men - mostly slave owners - articulated a vision for post-colonial America in the late 1700s of manifest destiny. What
this meant was their pursuit of absolute control and domination of the entire North American continent south of Canada and from ocean to ocean primarily through
military might. They set about the business of accomplishing this task through the genocide of millions of indigenous inhabitants of the continent and the stealth of the
land and resources. They also enslaved millions of Africans and African descent peoples whose labor generated untold value and wealth. The additional exploitation of
all working women, children and men further sealed the deal. With the declaration of the Monroe Doctrine in 1823, the US ruling class laid claim to the entire western
hemisphere as their sphere of influence. This set the basis for the Mexican American War in which the US grabbed all of Mexico north of the Rio Grande in 1848,
fulfilling the vision of the early elite to extend the US territory from "ocean to ocean." In the Spanish American War of 1898 - at the turn of the 20th century - the US
finally gained some "colonial" and "neocolonial" possessions. Cuban resistance to direct occupation was so powerful the US had to make it a neocolony - but with
rights to have a permanent US military presence at Guantanamo Bay. The US also annexed Puerto Rico, Guam and the Philippines; but Philippine resistance was also
strong and the Philippines became another US neocolony. Throughout our history the American peoples have struggled against political and cultural domination and
economic exploitation by a small rich and powerful elite - from indigenous resistance, the abolition and black liberation struggles to labor, women's and immigrant
workers' struggles, and the fight for equal and human rights for all, etc. In the 20th century the American people have fought for and won many reforms and new laws
that we are seeing eroded and eliminated in the 21st century. Labor laws in the 1930s granted workers' rights to some workers - mainly white men. Civil rights laws
recognized the rights of racial/ethnic peoples and women in the 1950s-60s and made it illegal to discriminate. The anti-poverty laws expanded the social safety net for
working and poor people, including people of color and poor women in the 1960s-70s. And environmental laws in the 1970s-80s led to greater environmental
protections. We have voted and elected to office politicians we thought would serve our interests. And some, with great bottom-up popular pressure, supported policies
that improved our condition, at least for the time being. But we have never won a transformation of fundamental power relations and gotten rid of the overwhelming
interests of the rich and powerful in the political, economic and cultural system that shapes our daily lives. The earliest forms of political repression and economic
exploitation - genocide and slavery, forced labor and poverty - continue to be expressed in today's property and wealth privilege, white supremacy, male and
heterosexual dominance, and anti-immigrant prejudices and practices. The welfare state reforms - flawed though they were - of the 20th century have been
transformed into the growing police state and prison industrial complex at home and empire and war around the globe. In the 21st century electronic age of
globalization and neoliberalism we find many of the reforms of the 20th century - laws and policies we fought so hard to win - rolled back or gone altogether.
Throughout US history the rich and powerful have indeed practiced and experienced a "democracy" that serves their needs and interests. But for working and poor
women, men and youth of all racial/ethnic peoples here and around the world, US democracy is a myth that has been used to set in motion wars of conquest and
occupation abroad and perpetuate the big lie that "this is the best of all possible worlds" at home. Working people have never held power and had access to the
resources, goods and services needed for a full and satisfying life. Once every four years we get to vote for one of two pre-selected representatives of the ruling class.
Never have we had the opportunity to vote for a candidate who truly represents working peoples' interests. What would this look like? Today's movement moment winning popular democracy & keeping it Today our movement is challenged to learn for these lessons of our history and struggles and to chart a path to a victory that
we can win and hold onto. We think there are two key lessons for this moment - "how we build our movement" and "why it's possible to build our movement and
win." How we build our movement Too often in the past our movement has not recognized as important or tried to embrace, practice or struggle around the principles
and processes of popular democracy for building our bottom-up movement for justice, equality and liberation. This has resulted in a lack of sufficient internal struggle
around the privileges of wealth, white supremacy, legal status, male dominance, heterosexism, language, ability and age, etc. This has kept us divided and has
weakened our movement. Clearly in this movement moment we must challenge and struggle against all forms of privilege and oppression within our movement, as
well as in the larger society, and move forward together on the basis of equality and collectivity. A related task is to develop a broad and diverse collective leadership
so that our movement is not dependent on a single "leader" or "founder." How we build our movement is the very foundation of the new society we are struggling to
bring into being. So we must walk the talk - or we will not be able win. Why it's possible to build our movement and win The second key lesson is that the electronic
technology now available to humanity can provide for the material and cultural needs of
our communities world over. In the past we struggled to reform an unjust and unequal system, but one that was based on material scarcity. We
did not have within our grasp the real solution to the problem of how to meet the needs of all humanity. To collectively share the resources and things we need and
realize our principle of equality truly requires abundance - so all of us can get what we need. Today's new technology - automation, robotics, computers, digitization,
etc. - makes it possible to have an abundance of all the goods and services we need - food, housing, education, health care, transportation, cultural expressions and
The technology is also available to do this in a safe and sustainable way that
respects the total environment we live in and share with nature. This abundance means an end to scarcity and an
end to the inequality and power domination that comes with it and that we have known too long. For us popular democracy equality, participatory decision-making, struggle and liberation - is an essential set of organizing and educating principles and
processes for growing our movement for justice, equality and liberation and for transforming our society and reconstructing the new
time for family and friends.
world we are visioning and fighting for. Make it happen!
***AT Aff Args***
Solvency Deficits
Cost
Benefits outweigh the costsconsensus of participants proves
%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 elevenpoint 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 effective

Harter 99
and

Reg negs are cheaper

assessments are





outcomes.
Reg neg costs as much as conventional rulemaking

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 irresponsibility
%20benefit.pdf//ky)
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
Defenders of reg neg retorted that
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 responsiveness

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 representation
%20benefit.pdf//ky)
2. Reg Neg is Broadly Inclusive The
data call into question the validity of the criticism that reg negs
involve only highly organized and well-financed interests. 97 The majority of respondents
reported participation by all parties, including small, seemingly ad hoc citizen groups,
small businesses, and local government representatives.98 These types of participants were not in the majority,
but neither were they rare. The data therefore support the proposition that negotiated rulemaking is at least open to groups that complain about
When asked
whether all the interests that should have been involved in the negotiated rulemaking were
involved, 65% of respondents answered that there was full representation .99 The literature on reg
exclusion from other governmental processes, even if those groups are imperfect surrogates for ordinary citizens.
neg also identifies as a potential problem EPAs unwillingness to commit, up front, to accept the results of negotiations and use them as the basis
for the rule.
There is no evidence , however, that this factor affected parties decisions to
participate . In fact, no respondent expressed concerns in this regard.100

The process is equal and fair
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. 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." 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 questionand sometimes flatly
contradictmost of the theoretical criticisms of reg neg that have surfaced in the scholarly
literature over the last twenty years. There is no evidence that negotiated rulemaking
abrogates an agency's responsibility to implement legislation. Nor does it appear to
exacerbate power imbalances or increase the risk of capture. When asked whether any
party seemed to have disproportionate influence during the development of the rule, about
the same proportion of reg neg and conventional participants said yes. Parties perceived
their influence to be about the same for conventional and negotiated rules, undermining
the hypothesis that reg neg exacerbates capture.
Not truelarger groups arent more influential in reg negs
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 industry 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 disparities
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
regulators. Smaller, poorer groups also reported suffering from resource 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
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
communicate with the Administrator while the negotiations were underway was rebuffed. [FN263]
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 reached
Selmi 5
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

more favorably to their experience with
study-whether business, environmental, or government- reacted
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, consensusbased 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 compromise
Selmi 5


D) Reg neg produces participant satisfaction and reduces conflictconsensus will happen


assessments are



outcomes.
E) A consensus will be reachedparties have incentives to cooperate and compromise

Harter 09
Consensus is often misunderstood. It is typically used, derisively, to mean a group decision that is the consequence of a
"group think" that resulted from little or no exploration of the issues, with neither general inquiry, discussion, nor deliberation. A common
example would be the boss's saying, "Do we all agree? . . . Good, we have a consensus!" In this context, consensus is the acquiescence to an
accepted point of view. It is, as is often alleged, the lowest common denominator that is developed precisely to avoid controversy as opposed to
generating a better answer. It is a decision resulting from the lack of diversity. It is in fact actually a cascade that may be more extreme than the
views of any member! Thus, the question legitimately is, if this is the understanding of the term, would you want it if you could get it, or would
the result to too diluted? A number of articles posit, with neither understanding nor research, that it always results in the least common
denominator. Done right, however, consensus
is 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 constituents. 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 downthat least common denominator againthat 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 antagnistic, 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
the "wisdom of crowds." It enables the parties to make
sophisticated proposals in which they agree to do something, but only if other parties agree
to do something in return. These "if but only if offers cannot be made in a voting situation for fear that the offeror would not
obtain the necessary quid pro quo. It also enables the parties to develop and present information they might
otherwise be reluctant to share for fear of its being misused or used against them. A veto prevents that. If a party cannot control
the decision, it will logically amass as much factual information as possible in order to limit the
instead of a cascade, it generates
discretion available to the one making the decision; the theory is that if you win on the facts, the range of choices as to what to do on the policy
If
the decision is made by consensus, the parties do control the outcome, and as a result, they can
concentrate on making the final decision. The question for the committee then becomes, how much information do we
is considerably narrowed. Thus, records are stuffed with data that may wellbe irrelevant to the outcome or on which the parties largely agree.
need to make a responsible resolution? The committee may not need to resolve many of the underlying facts before a policy choice is clear.
Interestingly, therefore, the
use of consensus can significantly reduce the amount of defensive (or

that customarily attends adversarial processes. It
forces the parties to look at the agreement as a wholeconsensus 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 housethe entire thingyou
will purchase. It also means that the resulting decision will not stray from the statutory mandate .
probably more accurately, offensive) record-building
That is because one of the parties to the negotiation is very likely to benefit from an adherence to the statutory requirements and would not
concur in a decision that did not implement it. Finally,
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 BATNAstheyll cooperate
Perritt 86
(Professor Perritt earned his B.S. in engineering from MIT in 1966, a master's degree in management from MIT's Sloan School in 1970,
and a J.D. from Georgetown University Law Center in 1975. Henry H. Perritt, Jr., is a professor of law at IIT Chicago-Kent College of
Law. He served as Chicago-Kent's dean from 1997 to 2002 and was the Democratic candidate for the U.S. House of Representatives in
the Tenth District of Illinois in 2002. Throughout his academic career, Professor Perritt has made it possible for groups of law and
engineering students to work together to build a rule of law, promote the free press, assist in economic development, and provide refugee
aid through "Project Bosnia," "Operation Kosovo" and "Destination Democracy." Professor Perritt is the author of more than 75 law
review articles and 17 books on international relations and law, technology and law, employment law, and entertainment law, including
Digital Communications Law, one of the leading treatises on Internet law; Employee Dismissal Law and Practice, one of the leading
treatises on employment-at-will; and two books on Kosovo: Kosovo Liberation Army: The Inside Story of an Insurgency, published by
the University of Illinois Press, and The Road to Independence for Kosovo: A Chronicle of the Ahtisaari Plan, published by Cambridge
University Press. He is active in the entertainment field, as well, writing several law review articles on the future of the popular music
industry and of video entertainment. He also wrote a 50-song musical about Kosovo, You Took Away My Flag, which was performed in
Chicago in 2009 and 2010. A screenplay for a movie about the same story and characters has a trailer online and is being shopped to
filmmakers. His two new plays, Airline Miles and Giving Ground, are scheduled for performances in Chicago in 2012. His novel, Arian,
was published by Amazon.com in 2012. He has two other novels in the works. He served on President Clinton's Transition Team, working
on telecommunications issues, and drafted principles for electronic dissemination of public information, which formed the core of the
Electronic Freedom of Information Act Amendments adopted by Congress in 1996. During the Ford administration, he served on the
White House staff and as deputy under secretary of labor. Professor Perritt served on the Computer Science and Telecommunications
Policy Board of the National Research Council, and on a National Research Council committee on "Global Networks and Local Values."
He was a member of the interprofessional team that evaluated the FBI's Carnivore system. He is a member of the bars of Virginia
(inactive), Pennsylvania (inactive), the District of Columbia, Maryland, Illinois and the United States Supreme Court. He is a member of
the Council on Foreign Relations and served on the board of directors of the Chicago Council on Foreign Relations, on the Lifetime
Membership Committee of the Council on Foreign Relations, and as secretary of the Section on Labor and Employment Law of the
American Bar Association. He is vice-president and a member of the board of directors of The Artistic Home theatre company, and is
president of Mass. Iota-Tau Association, the alumni corporation for the SAE fraternity chapter at MIT. Perritt, H. H. Negotiated
Rulemaking in Practice, Journal of Policy Analysis and Management, Vol. 5, No 3, Spring 1986,
http://people.brandeis.edu/~woll/perrittnegotiatedrulemaking.pdf//ghs-kw)
Negotiation succeeds only when persons able to use other processes have an incentive to
participate in negotiation and to reach agreement. A useful conceptual structure for understanding incentives to
negotiate is the one offered by Roger Fisher and William Ury in their popular book on the negotiation process.14 They explain that the
participation of any party in a negotiation will be guided by that party's "Best Alternative
to Negotiated Agreement" (BATNA). If a party's BATNA is superior to what can be obtained in negotiation, the party will
not participate. A participant will not agree to an outcome worse than its BATNA. The BATNA idea is similar to the idea
of a "reservation price" in negotiations, but the BATNA concept emphasizes the idea that
reservation price is determined exogenously. For potential participants in a regulatory
negotiation, BATNA's are determined by perceptions of what the agency will do in the
absence of a negotiation .15 A rational, monolithic party will participate in regulatory
negotiation only if it perceives the potential negotiation outcome to be better than its
BATNA, determined by its estimate of probable unilateral agency action. Different parties are likely to have different BATNA's because they
predict the unilateral agency outcome differently, or because they place different values on the outcomes they predict. Relations within
constituency groups complicate the regulatory negotiation dynamics.
Stakeholder involvement means a consensus will be reached

FMCS 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, FMCSs involvement in multi-party
negotiations continued to grow. The results have been very positive. By formulating rules and policies
in a public negotiating process, potential or actual antagonists become partners in helping
the agency solve a regulatory problem. Thus, the likelihood of subsequent challenges to a
new regulation is greatly reduced. How Negotiated Rulemaking Works Authorized by the Administrative Dispute Resolution
Act of 1996, FMCS offers government regulatory and enforcement agencies a better way to formulate new rules and regulations. In the
traditional rulemaking process, agency personnel draft a new regulation with little or no
outside input, publish the draft regulation in the Federal Register for the required public
comment period, and then wait for the inevitable criticism, and even legal challenges, from
those affected by the new regulation. In contrast, FMCS convenes and facilitates Regulatory Negotiations, a
process in which those who will be affected by a regulation sit down with the government
agency to write a proposed rule or regulation by consensus. Experience has shown that by bringing potential
or even actual antagonists into participation in a public process, they become invested in helping the agency solve its problem. The result
is usually better regulation and because those who will be regulated have taken part in the
process, the likelihood of subsequent challenges are greatly reduced. The Service assists federal and some
state agencies by convening and facilitating/mediating regulatory negotiations as well as less formal, public policy dialogues under the authority
of the 1996 Administrative Dispute Resolution Act. Government agencies have chosen the use of negotiated rulemaking and other highly
interactive negotiating models as a constructive way to diminish litigation and enhance relationships with their constituencies. To assist them,
FMCS has provided skills building training in the areas of communication, mediation, problem-solving and meeting planning over three decades
of experience in successful rulemakings.
Reg neg solves -- stakeholder involvement ensures solvency

DOI 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
: In negotiated
rulemaking, the agency appoints and identifies and appoints a limited, specific number of
individuals who can represent the views of their stakeholding group on the negotiating
committee. Most committees include twenty (20) to thirty (30) participants, though some may include as many as fifty (50). Additional
and participants, and how the process relates to formal, final rulemaking. Required: No. Number of Participants
participation may include appointment of alternates, use of subcommittee where membership is not constrained, and a period during each
negotiating session for the general public to comment. Kinds of Participants: Negotiated
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 committees ground rules).
Negotiated rulemaking is a formalized, specific kind of consensus building.
Not Transparent
The process is transparent
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-negthat would bring interested parties on all sides of an issue into direct negotiations
with an agency in order to achieve consensus on a proposed draft rule. Thereafter, the draft
would then be submitted to the standard rulemaking procedures, after gaining the
endorsement of the all substantially affected interests. Harters analysis of the problemwhich he referred to as the
malaise affecting agency rulemaking was that the pronounced adversarialism that marked the modern rulemaking process led, in the context of difficult or
inherently political issues, to inefficiencies (especially in terms of delay), to a reliance on power rather than persuasion in the decisionmaking process, to
unimaginative and poorly crafted rules, and, ultimately, to a rejection of the result and/or the process and a consequent de-legitimizing of the agency decision among
the regulated interests and other affected persons. Taking seriously the suggestion of Professor Stewart and others, that the dynamics of administrative regulation could
be helpfully viewed using a contract metaphor, Harter proposed a process that explicitly conceived of rulemaking as bargaining between the various affected interests,
including the agency, the legislature, and members of the general public. Simply put, the idea of reg-neg was to unmask the reality behind the formalism of the modern
rulemaking process, and it offered the quite reasonable and theoretically-justified suggestion that cooperative or principled bargaining, rather than adversarial
posturing, legalism, and litigation, might lead to a better rule and would be accepted as just and fair by those who would have to live with the result. The notion that
important administrative policy-making could be conducted in a collaborative but principled framework found wide acceptanceparticularly, and most importantly,
among elected representatives and leaders of the executive branch and the agencies themselves. A few academic critics, while acknowledging reg-negs popularity,
seem to regard it as a disturbing fad. As I explain next, they see theoretical flaws in the process, and have questioned the existence of the benefits claimed by reg-negs
supporters. However, many of these concerns appear redolent of the old hostility towards private interests prevalent among administrative law scholars concerned
mostly with defending the existence of such agencies, and grounded in the view of the agency as a neutral expert operating above the political fray. Specifically, I
focus on the troubling claim made by some critics that reg-neg represents nothing less than the subversion of the public interest. IV. Critiquing Negotiated
Regulation: The Problem of Defining and Locating the Public Interest (T)the most difficult words in any form of discourse are rarely the polysyllabic ones that are
hard to spell and which send students to their dictionaries. The troublesome words are those whose meanings appear to be simple, like true, false, fact, law,
good, and bad. Critics of reg-neg have asserted that allowing individuals or other private interests substantially affected by agency actions the opportunity to
negotiate face-to-face with the agency and with representatives of all other interests, about the substance of a proposed administrative rule, is inherently contrary to the
public interest. The underlying theme of this critique is the questionable notion that such negotiations take away ultimate control of the decisionmaking authority
from the agency, and that they presume the agency is uniquely endowed with the ability to discern what is best for all. As to the first argument concerning agency
control of the decision, these criticisms frequently overlook or ignore that the agency retains the ultimate authority to issue a rule, and is not compelled to propose a
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 regrule with which it does not ultimately concur. This is true even though the
neg, however, hinges on the second argument: that administrative agencies are uniquely able to discern the public interest. Professor Funk, for example, embraces the
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.
notion of the agency as rational expert, seeking the one true answer that best reflects the needs of the nation. He states that:
Funk then demonstrates (perhaps unintentionally) the truth of his own observation, in offering his own definition of the public interest: I mean it to be the best
interests of the nation, the people, the body politic. Funks definition does little more than substitute one word (best) for another (public). This troublesome word
bestbegs the question, however, and Funks circular argument seems to comes down the assertion that the agency must avoid collaboration and make the decision
alone, becausewell, because thats what the theory says. Similarly, Michael McCloskey echoes this concern about moving towards explicit collaboration in the
production of administrative regulations. McCloskey focuses his concern on the use of consensus as a rule of decision in such negotiations, calling this a prescription
for frustrating the national will of the majority. McCloskey argues that: (T)he consensus rule serves to overthrow the basic suppositions of representative democracy.
Instead of the direction of public policy being set by those garnering the greatest support among the electorate, those directions would be set by collaborations in
which those with little support can thwart the will of the majority. This turns democracy on its head. Ironically, the consensus rule allows minorities to veto progress
along certain lines. This seems an odd claim coming from the (then) Chairman of the Sierra Club, a group that has devoted itselfadmirably in my opinion to
challenging the correctness of decisions made by these very administrative agencies. In any case, this analysis quickly breaks down. For one thing, the government
officials and employees who would otherwise formulate the rules are not themselves elected. Second, even if one accepts with McCloskey the proposition that the
will of the majority can be equated with progress, the failure in reg-neg to reach consensus does not thwart or veto anything, except the ability of the
negotiating committee to determine the contents of a proposed rule. In cases where no consensus is reached, the agency is free to proceed and propose its own rule
and may do so with the added benefit of whatever useful information was gained from the failed negotiations. Thus, even assuming as McCloskey does that the
agency is the rightful repository of the public interest, nothing is lost by the failure to reach consensus. Finally, his assertion that public policy is normatively set by
the majority of the electorate is simply disingenuous. As the head of arguably the nations most prominent environmental group, he is intimate with the nature of
interest group politics in Washington and elsewhere, and he understands the nuances and complexity of our representative democracy and how that differs from
notions of direct democracy. McCloskey is understandably troubled by the increased influence of local communities in the administrative process affecting forest and
timber regulations, which seems to be the animating concern behind his critique. However, McCloskeys broad assertion that collaboration and sharing of
decisionmaking authority in the formulation of administrative rules is fundamentally undemocratic and contrary to the public interest is based on little more than a
questionable faith that the agency can and will effectuate the public interest. Finally, Cary Coglianese is perhaps the most persistent critic of reg-neg. Like,
McCloskey, Professor Coglianese also focuses his attention on the perceived dangers of consensus as a decision rule in negotiated rulemaking. And while most of his
efforts are aimed at disproving the claims of reg-neg advocates concerning the benefits of the process, Coglianese goes further and asserts that reg-neg represents a
retreat from the public interest as the primary goal of government officials. That conclusion, however, does not easily follow from the claimed failure of reg-neg to
achieve certain efficiencies, nor is it directly substantiated by empirical evidence. At most, it might be said that reg-neg represents (for its advocates) a new approach
to achieving the same desired resulti.e., the best decision for the public. So what are we to make of the complaint that reg-neg subverts the public interest?
Certainly, we may say that a criticism is incompetent when it depends entirely on terms which have no ascertainable meaning, or for which the critic can supply none.
Such criticism is unhelpful, moreover, as it does nothing to further a serious debate about serious issues. Can we, then, just dismiss these claims, tossing them in the
junk pile of criticism? I think not. Critics such as Coglianese are, of course, correct that we must look at the underlying theory and assumptions around reg-neg and
attempt to assessempirically and otherwisehow it is performing. The question of whether reg-neg is serving the public interest is an important one, even if it has,
until now, been used mostly to vent the hostile suspicions of a fading tradition. General linguistic and philosophical objections regarding the use of the term public
interest, moreover, are themselves somewhat too broad and subject to the criticism that they, too, fail to move the debate forward. What then? Professor Freeman
argues that, while (t)here is no purely private realm and no purely public one, these dichotomous notions nonetheless are meaningful signifiers helpful ways of
referring to areas of life that we experience as more or less under our control, more or less coercive, more or less alienating. Perhaps the public interestlike the
related concept of legitimacyis a usefully vagueadministrative law theory, serving as a vessel into which scholars could pour their most pressing concerns about
administrative power. If we understand the public interest in this pragmatic sense, then it seems the task is to provide some suggested content(s) for it, so that it may
be employed helpfully and with appropriate nuance to explore the difficult questions about reg-neg. Freeman suggests that the focus for this exploration should not be
on agencies, qua agencies, but rather on the pervasive interdependence that characterizes administrative functioning, its inputs and outputs, and which may be viewed
as a set of negotiated relationships. Where do we look for such content? Analogy is a time-honored method in the law for supplying new content, as it is in literature
a fact that seems appropriate to note in passing, since the present analysis has, arguably, moved into a realm where there is discernable overlap in these traditions.
Accordingly, it may be appropriate to look beyond administrative law to see if debates about the public interest in other fields could provide helpful guidance. V.
Other Debates About the Public Interest: Legal Ethics and Professionalism Administrative law and reg-neg are not the only realms in which disagreements occur over
what is in the public interest, and whether there is such a thing. For example, it is commonly accepted that lawyers representing governmental entities are imbued with
a responsibility to act in and protect the public interest, a responsibility that is not shared by attorneys representing private interests. Some critics of this notion
respond that government attorneys cannot work to pursue the public interest because the very concept of a public interest is unintelligible and cannot provide a
workable guidepost for government attorneys with regard to the choices and decisions that they must make in their professional capacities. One response to the
resulting conceptual divide, offered by Steven Berenson, is to characterize public and private in terms of the characteristic values commonly implied by the use of
those terms. Thus, private values encompass ideas such as individual choice, autonomy, and pursuit of economic self-interest, and public values encompass
ideas such as connection to others, community, collective action, group interaction, and discourse. Berenson also suggests that private might be understood as selfregarding and public as other-regarding. Such distinctions seem to fall into a category we might call procedural or instrumental values, and it is not hard to see
why they do not provide Berenson with easy answers to the question of whether and how a government attorney can act in the public interest. Berensons categories
could suggest for reg-neg a communitarian perspective, in which the question of whether a proposed rule was in the public interest is measured by the impact it would
have on individual and collective relationships in affected communities, and between communities. Factors such as the expected impact of a proposal for the physical
and mental health of a community, along with the expected impacts on the economy, would seem difficult to exclude from such an analysis. In another example,
Professor Rhode notes that similar questions arise in the debate over whether lawyersbeing members of a professionhave an obligation to some set of
transcendent values associated with the profession and aligned with the public interest. After acknowledging the arguments against the use of the term public
interest, she offers her view that: Defining the common good will often be complex and contested, but that is no reason to avoid either the effort or the concept.
One may accept that there may, ultimately, be no objective right answers about issues involving morals or values, she continues, but that does not prevent us from
concluding that (s)ome positions are more coherent, free of bias or self-interest, and supported by reliable evidence. She also cites Political theorist Richard
Flathman for the suggestion that the term public interest can appropriately apply to policies whose effect on the general welfare has been fully justified. Although
not easy to apply in any definitive sense, this standard suggests that an element of thorough, principled, and open investigation of public impacts should underlie any
conclusion that a particular action is consistent with the public interest. VI. Conclusion: Arguing for the Public Interest in the context of Negotiated Regulations I say
arguing for the public interestrather than about itfor the reason that, as with the environment, nobody is (publicly) against the public interest. That is
precisely the problem raised in this paper: everybodywith the exception perhaps of those who, even provisionally, are unwilling to admit to its existenceagrees
public interest ought to be served by administrative rulemaking
that the
. The problem is that people, including
scholars, frequently neglect to make clear what they mean by that term, and this is particularly apt to be the case when they wish to define what they believe it is not. I
agree with Professors Rhode, Berenson, Freeman and even Professor Funk, that we ought to continue in our various discourses the debate over the public interest, as
difficult as it may be to define, as a means of testing and asserting various goals and values representing something more than a single self-interested viewpoint, and
that we believe to be especially salutary. Primarily, this is due to my faith that the many questions raised thereby will more than justify the difficulty we will surely
encounter in convincing others of the correctness of our views. But I also think it is highly incumbent upon those who do so to make an honest and serious effort to
provide a definition of the public interest, and that will likely mean an explicitly provisional and contextualized definition. Perhaps such a definition will be procedural
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
and instrumental in nature, and
those drawn from communitarian analysis, would allow a determination along broader lines than available by looking only at an aggregation of disparate individual
impacts. At this juncture, I can offer no more than these initial speculations on the content of any standard for assessing the public interest in the context of reg-neg.
My purpose here has been mostly to point out the need for doing so. I suspect, moreover, that the need for a definitioneven if only provisional in naturewill
continue to arise in the context of the specific products of this newer form of participative democracy, and that this context will be helpful in moving the debate
forward.
Perm
Perm do the CP
Reg neg is different from agencies traditional rulemaking
Fiorino 88
(Daniel J. Fiorino holds a PhD & MA in Political Science from Johns Hopkins University and a BA in Political Science & Minor in
Economics from Youngstown State University. Daniel J. Fiorino is the Director of the Center for Environmental Policy and Executive in
Residence in the School of Public Affairs at American University. As a faculty member in the Department of Public Administration and
Policy, he teaches courses on environmental policy, energy and climate change, environmental sustainability, and public management.
Dan is the author or co-author of four books and some three dozen articles and book chapters in his field. According to Google Scholar,
his work has been cited some 2300 times in the professional literature. His book, The New Environmental Regulation, won the Brownlow
Award of the National Academy of Public Administration (NAPA) for excellence in public administration literature in 2007. Altogether
his publications have received nine national and international awards from the American Society for Public Administration, Policy
Studies Organization, Academy of Management, and NAPA. His most recent refereed journal articles were on the role of sustainability in
Public Administration Review (2010); explanations for differences in national environmental performance in Policy Sciences (2011); and
technology innovation in renewable energy in Policy Studies Journal (2013). In 2009 he was a Public Policy Scholar at the Woodrow
Wilson International Center for Scholars. He also serves as an advisor on environmental and sustainability issues for MDB, Inc., a
Washington, DC consulting firm.. Regulatory Negotiations as a Policy Process, Public Administration Review, Vol 48, No 4, pp 764-772,
July-August 1988. http://www.jstor.org/discover/10.2307/975600?uid=3739728&uid=2&uid=4&uid=3739256&sid=21104541489843//ghskw)
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 educationwe need to be able to debate the desirability of the plans
regulatory process; testing all angles of the AFF is key to determine the best policy
option
2. Key to neg groundits the only CP we can run against regulatory AFFs
At worse, reject the argument, not the team
Its predictable and fairtheres a huge lit base
Applegate 98
(John S. Applegate holds a law degree from Harvard Law School and a bachelors 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 Universitys 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 Universitys 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 schools 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 skills
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. Dan joined American University in 2009 after a career at the U.S. Environmental Protection Agency
(EPA). Among his positions at EPA were the Associate Director of the Office of Policy Analysis, Director of the Waste and Chemicals
Policy Division, Senior Advisor to the Assistant Administrator for Policy, and the Director of the National Environmental Performance
Track. The Performance Track program was selected as one of the top 50 innovations in American government 2006 and recognized by
Administrator Christine Todd Whitman with an EPA Silver Medal in 2002. In 1993, he received EPAs Lee M. Thomas Award for
Management Excellence. He has appeared on or been quoted in several media outlets: the Daily Beast, Newsweek, Christian Science
Monitor, Australian Broadcasting Corporation, Agence France-Presse, and CCTV, on such topics as air quality, climate change, the BP
Horizon Oil Spill, carbon trading, EPA, and U.S. environmental and energy politics. He currently is co-director of a project on
Conceptual Innovations in Environmental Policy with James Meadowcroft of Carleton University, funded by the Canada Research
Council on Social Sciences and the Humanities. He is a member of the Partnership on Technology and the Environment with the Heinz
Center, Environmental Defense Fund, Nicholas Institute, EPA, and the Wharton School. He is conducting research on the role of
sustainability in policy analysis and the effects of regulatory policy design and implementation on technology innovation. In 2013, he
created the William K. Reilly Fund for Environmental Governance and Leadership within the Center for Environmental Policy, working
with associates of Mr. Reilly and several corporate and other sponsors. He is a Fellow of the National Academy of Public Administration.
Dan is co-editor, with Robert Durant, of the Routledge series on Environmental Sustainability and Public Administration. He is often
is invited to speak to business and academic audiences, most recently as the keynote speaker at a Tel Aviv University conference on
environmental regulation in May 2013. In the summer of 2013 he will present lectures and take part in several events as the Sir Frank
Holmes Visiting Fellow at Victoria University in New Zealand. Fiorino, D. J. Regulatory Negotiations as a Policy Process, Public
Administration Review, Vol 48, No 4, pp 764-772, July-August 1988. http://www.jstor.org/discover/10.2307/975600?
uid=3739728&uid=2&uid=4&uid=3739256&sid=21104541489843//ghs-kw)
Thus, in its premises, objectives, and techniques, regulatory
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 governancereg neg is key to real world education about climate and
government policy
Harter 09
A corollary of this is that public
policy debates are more contentious, and hence, making public decisions through
issues need to be considered in a relatively
legislation or regulation is more difficult than in quieter times. Yet important
short time frame: what
to do about global warming and the limitation on greenhouse 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 structures 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
governmentand "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
societywe as a body politic; government officials; academics; leaders of the private sector. The
thesis of this paper is that collaborationthe 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 collaborationa recognition that others
have important viewpointsshould 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 education
Spector 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 USAIDs 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 researchCoglianeses
results conclude neg when corrected
Harter 99
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 process35 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, Coglianeses
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 wrong

%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 participantssuggesting that either EPA's departure from
consensus or some other aspect of the rule besides the outcomes produced by reg neg
provoked the litigation.
Coglianeses study is flawed
Harter 99
The Methodology is Flawed: Anatomy of a Misunderstanding. To illustrate the second shortcoming of
Coglianeses analysis that an agencys immediate goal may not be the issuance of a final
rule it may be helpful to look at the Coast Guards negotiated rulemaking concerning
Vessel Response Plans. Congress passed the Oil Pollution Act of 199043 (OPA90) in the wake of the Valdez disaster. Among other
things, OPA90 required that operators of oil tankers must develop and file a plan that describes how they will deal with an oil spill. These plans
were due 30 months after the date of enactment (which would be February 18, 1993); after that date a tanker may not handle, store, or transport
oil unless the owner or operator thereof has submitted such a plan to the President.44 Obviously,
the 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 agencys 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.
Coglianeses methods are wrongdisregard their ev

Harter 99
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 Coglianeses 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,
Coglianeses 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 Coglianeses
methodology, its erroneous inclusion had a significant effect on the ultimate conclusion.
Second, his methodology measures the wrong thing: it fails to account for what the agency
was actually trying to accomplish in several major proceedings, and hence his results are
misleading in that the agency achieved its objective a far less time than is calculated by the
numbers used. Third, he does not differentiate a substantive judicial challenge to a rule
that was issued substantially as the committee agreed from either those instances in which
the agency itself significantly changed the rule after the committee reached consensus and
those petitions for review that were filed while the petitioner and EPA worked out minor
details. Finally, the proponents of negotiated rulemaking also envisioned benefits beyond
the savings of time and judicial review; rather, they were in many instances seen as derived
from the other benefits. His methodology does not consider these other values . Properly
understood negotiated rulemaking has been remarkably successful in fulfilling its promise .
In particular, EPAs experience has been that reg neg has cut the time for rulemaking by a third, knocking a
full year off the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the
parties agree not to challenge it has ever been the subject of a substantive judicial review even though they tend to be far more controversial
and complex than average rules. And, finally, the participants and those otherwise affected by rules find a range of values in negotiated
rulemakings than those developed traditionally.33
AT: Kerwin and Langbein

Kerwin and Langbeins qualitative data is better than empiricsreg neg is better than
conventional rulemaking
%20benefit.pdf/)
In this article, we present an original analysis and summary of new empirical evidence from Neil Kerwin
and Laura Langbeins

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 studywhether business, environmental, or government
reacted more favorably to their experience with negotiated rules than do participants of
conventional rulemaking. Contrary to the critics expectations, Kerwin and Langbein found that negotiation of rules
reduced conflict between the regulator and regulated entities, and it was no less fair to regulated entities
than conventional rulemaking.11 The data contradict claims that regulatory negotiation abrogates an agencys responsibility to
implement laws written by Congress; indeed, the process may better enable the agency to fulfill that role Regulatory negotiation
clearly emerges, moreover, as a superior process for generating information, facilitating
learning, and building trust.13 Most significantly, consensus-based negotiation increases
legitimacy, defined as the acceptability of the regulation to those involved in its
development. 14 This legitimacy benefit, which was observed independently of the types of
rules chosen for conventional versus negotiated rulemaking, and independently of
differences among the participants, including their affiliation,15 is no small
accomplishment and we argue that, in any event, it is more important than reducing transaction costs
***AFF***
2AC Stuff
2AC Block
1. CP cant solve any of the case:
<insert solvency deficits and specific cards OR read the generic Williams card>
2. Reg negs are an epic failinvolving the public results in a stacked regulatory committee,
violence, and mass chaos
Williams 12
(Williams, T. The Battle Over A North Carolina Beach Continues, Audubon Magazine, September-October 2012.
http://www.audubonmagazine.org/articles/conservation/battle-over-north-carolina-beach-continues//ghs-kw)
Meanwhile, the
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 issuesteals AFF ground by taking the entirety of the
1AC and kills topic educationwe dont learn about oceans if we debate about which
regulatory process is better.
4. AND, the AFFs new conventional rulemaking processes are better than reg negssolves
the net benefit and doesnt link to your offense
Siegler 97
(Ellen Siegler is a Senior Attorney at the American Petroleum Institute (API). The API has participated in numerous reg negs. Sieler, E.
Regulatory Negotiations and Other Rulemaking Processes: Strengths and Weaknesses From and Industry Viewpoint, Duke Law
Journal, Vol 46, 1997. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1008&context=dlj//ghs-kw)
From API's standpoint,
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
API
has been involved in this "improved traditional rulemaking" process in connection with a
number of Clean Air Act regulations over the past several years. The process works as follows. In
advance of a regulation's proposal date, API develops data and analyses, and it
recommends and discusses regulatory approaches with the agency staff in individual
meetings. Sometimes the data used will have been generated jointly by EPA and the industry . After
initial meetings, API may generate additional data, analyses, and proposals in response to
comments and questions from EPA representatives, who will have performed their own
analyses of the relevant data. This process may continue after a rule has been proposed and even after promulgation if API has initiated
litigation. The content of any industry-EPA meetings is recorded in written summaries and is available as part of the public
record. EPA, API and others have used this procedure effectively in recent years in three rules EPA has
process can be an efficient way to develop a regulation if the regulation is not of broad applicability and is not particularly controversial.
promulgated pursuant to section 112(d) of the Clean Air Act.' These rules are designed to restrict emissions of hazardous air pollutants from
refineries,29 marine loading operations, 0 and gasoline distribution facilities.3' This process involves more uncertainty than does a reg neg. The
agency does not make a commitment that a rule will not change significantly before its proposal; changes may be
made for a variety of reasons, such as in response to concerns raised by other interested parties with EPA staff. There is also a
greater chance that the proposed rule may change between proposal and promulgation, and a corresponding increased possibility of litigation.
Uncertainty also stems from EPA control over the process itself. As
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 conclusion s with
respect to control options,47 and identified a number of issues needing additional data and further consideration.48 While API retains its
general concerns with respect to the Presumptive MACT process described above, it has been satisfied with the process in
connection with the Refinery MACT II rule. EPA staff has been available to discuss
relevant issues with API in meetings and conference calls, often with the participation of state
representatives. The Presumptive MACT document does not appear to have formed the basis of any final requirement of which API is
aware at this time. As the experiences described above demonstrate, the evolving traditional
rulemaking process can, given the right circumstances, confer many of the benefits of a
reg neg without the disadvantages of a reg neg. API can discuss issues with EPA staff to
develop sound, and even creative, regulatory approaches. EPA remains free to meet with
other interested parties as well, and EPA can invite some or all interested parties to meet
together if it decides such a meeting would be useful.
5. Perm do the CPeven if Congress doesnt mandate reg negs, agencies do it anyways due
to federal oversight
Hsu 02
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 counterintuitive 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 bindeither perm do the CP solves or the CP causes more conflictmeans
a consensus cant be reached and the CP doesnt result in the plan
Coglianese 01
(Cary Coglianese holds a JD, a PhD in political science and a master's in public policy all from the University of Michigan. His
undergraduate degree is from the College of Idaho. Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political
Science at the University of Pennsylvania, where he currently serves as the director of the Penn Program on Regulation and has served as
the law schools Deputy Dean for Academic Affairs. He specializes in the study of regulation and regulatory processes, with an emphasis
on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government
relations in policy making. He has published widely on a variety of regulatory issues, including the uses of information technology in the
regulatory process. His most recent books include Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, Import Safety:
Regulatory Governance in the Global Economy, and Regulation and Regulatory Processes. Prior to joining Penn Law, Coglianese spent a
dozen years on the faculty at Harvard Universitys John F. Kennedy School of Government, and he also has taught as a visiting professor
at the Stanford and Vanderbilt law schools. He founded the Law & Society Associations international collaborative research network on
regulatory governance, served as a founding editor of the peer-reviewed journal Regulation & Governance, and created and now advises
the daily production of RegBlog.org. A co-chair of the American Bar Associations administrative law section committee on e-government
and past co-chair of its committee on rulemaking, he has led a National Science Foundation initiative on e-rulemaking, served on the
ABAs task force on improving Regulations.Gov, and chaired a task force on transparency and public participation in the regulatory
process that offered a blueprint to the Obama Administration on open government. He has served as a consultant to the Administrative
Conference of the United States, Environment Canada, the U.S. Department of Transportation, and the U.S. Environmental Protection
Agency. Coglianese, M. Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, N. Y. U. Environmental Law
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship//ghs-kw)
Over the years, advocates of negotiated rulemaking consistently claimed that the procedure would eliminate subsequent litigation filed
challenging administrative rules.11,1 Yet until I undertook my research, no one had sought to assess these claims by collecting comprehensive
data on court filings for negotiated and conventional rules. Having collected this data for the EPA. I find that six
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 decisionmaking.1^4 As one can plainly see. the aim of
avoiding litigation motivated both the original ACUS recommendation urging agencies to pursue negotiated rulemaking and EPA's decision to
launch its regulatory negotiation project. Admittedly, over
the 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 challenges.'-11 Since he never defines what he means by a "'substantive
challenge," it not possible to test or respond to his claim fully. Once again, Harters approach may well be understandable as a form of advocacy,
but it is unacceptable as a basis for empirical analysis of negotiated rulemaking.1,141 If, in claiming that 1 fail to distinguish between
"substantive" and other types of challenges, Harter means to imply that I fail to report that most of the challenges to negotiated rules were settled
out of court, then again a casual reading of Assessing Consensus is enough to show that he is mistaken.ls- Harter notes that several of the
challenges to negotiated rules were withdrawn after settlement talks in several cases, but in each case I already note this in Assessing
Consensus.^3, In fact, I specifically report that "only two of the six challenged rules reached an appellate panel for a decision." the rest having
been voluntarily dismissed by the parties.1S4 I also reportand this is most crucialthat most petitions for review of EPA rules are voluntarily
dismissed by the parties. Indeed, settlement is more common in litigation challenging EPA rules than with other litigation. As I report in an earlier
study cited in Assessing Consensus, "(the settlement rate for EPA rule challenges in the DC Circuit ... is nearly twice that for all appeals . . . and
substantially more than the rate for all administrative appeals." Organizations filing suits challenging EPA rules often do so to preserve the
opportunity to work out additional changes in the rule, aware that the underlying environmental statutes authorizing judicial review require such
suits to be filed, if at all, within a few months of the promulgation of the final rule.187 For many organizations filing petitions for review of EPA
rules, the petition simply signals the beginning of a new round of working out the details of the rule with the agency, Industry and environmental
groups frequently treat litigation as a continuation of the rulemaking process, albeit with a smaller number of participants. Thus when Harter
suggests that negotiated rulemaking has spared EPA highly protracted litigation because many of the challenges to these rules were eventually
withdrawn, he is actually describing the normal pattern of challenges Lo EPA. As I report in Assessing Consensus: For all challenges to EPA rules
filed in the D.C. Circuit between 1979-1990, only 29% were resolved through adjudication before an appellate panel. Negotiation and settlement
discussions typically follow the filing of challenges to any EPA rule. In the aggregate, negotiated rulemaking has not generated any substantial
difference in the way that legal challenges get resolved. Indeed,
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 teamprocess CPs are bad:
1. topic specific educationwe dont learn about oceans if were arguing about
regulations
2. aff groundallows the neg to steal the entirety of the 1AC
3. advocacy skillsprevents us from debating the merits of implementation of the plan
since the CP does the plan; also kills neg advocacy skillsthey dont have to defend
anything if they can just steal the 1AC
4. critical thinkingwe dont get to weigh our impacts against the negs impacts;
prevents us from conducting cost benefit analysis
Counter Interpretation: NEG gets CPs that dont result in the entire plan.
Reject the teamthis CP is uniquely abusiveat least we have some ground VS actor CPs
but they do the entire 1AC
No Solvency
Generic
Generic
Reg negs are an epic failinvolving the public results in a stacked regulatory committee,
violence, and mass chaos
Williams 12
(Williams, T. The Battle Over A North Carolina Beach Continues, Audubon Magazine, September-October 2012.
http://www.audubonmagazine.org/articles/conservation/battle-over-north-carolina-beach-continues//ghs-kw)
Meanwhile, the
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.
Its hopelessreg negs fail

Coglianese 97
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)
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
Why has negotiated rulemaking failed to achieve its principal objectives?
example, that in some cases negotiated rulemaking did not cause litigation, but that litigation came about because of unclear or ineffectual
statutes. They might also argue that delays have not been caused by the negotiations themselveswhich have sometimes been concluded over
several months' timebut from delays within the agency after the negotiations have ended. Whatever the merits of these claims, such attempts to
deflect the responsibility for litigation or time delays away from the negotiated rulemaking process ultimately miss the point. Although there is
good reason to think that negotiated rulemaking does create additional conflicts in the administrative process, the underlying issue to which my
Despite
the many hopes for negotiated rulemaking, it has shown itself incapable of preventing the
conflict that leads to regulatory delays and petitions for review.
analysis speaks is not whether negotiated rulemaking causes lawsuits or time delays. Rather, the issue is whether it prevents them.
Case Specific
Aquaculture
Group Participation Creates Bias Decisions and Difficulty- Only Congress Ensures
Bargaining With Group Interests
Grimes, 01
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, i t is difficult to imagine an agency
being less objective than a group of regulated persons who represent only a portion of the
population, many of whom make their living through the exploitation of a resource that
they are entrusted with regulating. It seems to be a shirking of regulatory responsibility to
allow regulated interests to have such significant input, if not effective control of the
regulatory process. While it is apparent that resource users should have some input into the regulatory process to ensure that it
accounts for their well being and that regulations effectively regulate their activity, it should not be at such a high level. Special interests should
still retain some representation on the Councils to champion their views, and may still avail themselves of the traditional informal means of
special interest influence with which they have been so successful historically. In fisheries management, all regulations are subject to the approval
of the Secretary of Commerce, who is appointed by the President, and is to some extent politically accountable 0 for agency actions. In fact, some
might argue that the influence of presidential political oversight extends much further down the chain of command. Further,
whose members are certainly politically accountable,
budgetary process
Congress ,
has a great deal of influence over the agency via the
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 cant solve aquaculture

GPO, 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 faillack of experience leads to mass confusion
Ryan 01
(Clare M. Ryan holds a B.S. Environmental Science, Western Washington University, a M.S., Natural Resource Policy and
Administration, University of Michigan, and a PhD, Natural Resource and Environmental Policy, University of Michigan. Clare M. Ryan
is the Director of the Program on the Environment, and also a Professor of Environmental and Natural Resource Policy at the School of
Environmental and Forest Sciences. She has adjunct faculty appointments in the Daniel J. Evans School of Public Affairs, the School of
Marine and Environmental Affairs, and the School of Law. Her research and teaching focuses on applications of policy formation and
implementation, collaborative governance, and urban ecology theories to the field of natural resource management. Recently, she
completed research projects and publications examining best practices in National Environmental Policy Act (NEPA) implementation;
use of best available science in regulation development; and institutional analyses of collaborative watershed planning groups. Prior to
joining the University of Washington, Dr. Ryan worked as an environmental scientist and regulatory specialist for state (Washington
Department of Ecology) and federal (U.S. Environmental Protection Agency) resource management agencies. Ryan, C. M. Leadership in
Collaborative Policy-Making: An Analysis of Agency Roles in Regulatory Negotiations, Policy Sciences, Volume 34, Issue 3-4, pp 221245, December 2001. http://link.springer.com/article/10.1023%2FA%3A1012655400344//ghs-kw)
Despite enthusiastic encouragement from upper management to initiate and participate in regulatory negotiation processes,
at times EPA representatives were not sure how to behave in a regulatory negotiation setting .
Because of this uncertainty, many EPA participants appeared to be entering into and conducting
negotiations with a high degree of confusion regarding what their role in the process
should be, which in turn led to high levels of frustration on the part of non-agency
participants.
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 failterrible for industry
Siegler 97
A reg neg is a cumbersome process for everyone involved. It is particularly complicated for a trade association,
however, because several negotiations are conducted simultaneously during the reg neg process. At API,
decisions on regulatory issues are made by a committee process; committees are composed
of representatives of member companies who, it should be noted, are competitors. In all
regulatory matters, members negotiate in committees; they often must then report the results of
the negotiations to, and have them approved by, committees at their respective companies
before they can agree on an API consensus position. This type of intra-association negotiation is
more intense in a reg neg than in a traditional rulemaking because member companies
realize that if the reg neg is successful, the trade association will agree to not litigate if the
agency promulgates a rule consistent with the agreement reached! Because the stakes are
so high for the industry, tentative commitments made in a reg neg require a higher level of
ratification. Negotiations conducted on behalf of a trade association in a reg neg are also
complicated by the frequent need for those representing the organization in the reg neg to
check back with committee members before responding to proposals or counter-proposals
made by others at the reg neg table. While official representatives are given some latitude, there may
be significant limits placed on their ability to negotiate because proposals affect
competitors within the trade association differently. Standards that one company can easily
achieve (for example, because the company has controls already in place as a result of stringent state requirements) may be very
expensive for another company. In a highly competitive industry where profit margins are
low, like the petroleum refining industry, these differences can significantly impact a company's
fortunes. A second sphere of negotiations exists when several different industries are
involved in the reg neg. In the equipment leaks reg neg, the chemical industry and the petroleum industry had to
negotiate on some issues because certain control requirements are easier to achieve in chemical plants than in refineries. In the fuels reg neg,
there were even greater differences among industry participants. For example, refiners sought
the greatest amount of flexibility in fuels requirements; but too much flexibility presented difficulties
for the automobile manufacturers, who would design engines to use the new fuels. Finally, of course, the reg neg involves
intense negotiations at the formal reg neg table, at which representatives of state and
federal agencies, public interest environmental groups, and perhaps others, join industry
representatives. Building enough trust among these groups to reach an agreement is a long
and difficult undertaking. The complex and cumbersome nature of the reg neg process is one reason why API does not
greet with enthusiasm invitations to participate in a reg neg.
Inefficient
Negotiated Rule-Making Is Inefficient- Too Many Interest Groups
Grimes, 01
Finally, if one assumes that Coglianese's findings are accurate and equally applicable to the regional councils, that is, that rules promulgated by
the Councils do not save time or result in fewer challenges than they would if affected interests were not allowed voting membership, there
would appear to be no benefit to utilizing the current structure. Given the realities of more modem issue
networks"' and interest in fisheries manage ment, it is more than likely that his findings hold just as true here. Not only does the
inclusion of such members on the Council require more negotiation and inevitably slow
the rulemaking process, it is doubtful that their representation actually reduces the
number of regulations challenged in court. The days of the recreational/commercial
dichotomy have changed and continue to change as more organized interests begin to form
and realize their stake in the well being of the country's fishery resources .8 2 Why should only
recreational and commercial users be allowed representation? Why are divers, swimmers, and preservationists or other environmentally oriented
interests not represented per se? Given
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 consensusreg negs fail
Coglianese 97
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, negotia ted
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.
Cant Solve- Party Consensuses are Difficult and Negotiations Alter Original Policies
Grimes, 01
commentators have examined negotiated rulemaking to see how well the process
accomplishes its stated objectives of increasing the acceptability of rules, improving their
substance, reducing likelihood that affected parties will resist rules or challenge them in
court, and decreasing the amount of time required for promulgation . In particular, Professor Cary Coglianese
Other
performed "an empirical assessment of the impact of negotiated rulemaking on two of its principal goals: reducing overall rulemaking time and decreasing the number
of judicial challenges to agency rules." He assembled and analyzed a dataset of "all negotiated rulemakings across all federal agencies ' in order to assess how well
negotiated rulemaking had achieved these goals. He concluded, to the surprise of many,
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 Interests
Grimes, 01
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, i t is difficult to imagine an agency
being less objective than a group of regulated persons who represent only a portion of the
population, many of whom make their living through the exploitation of a resource that
they are entrusted with regulating. It seems to be a shirking of regulatory responsibility to
allow regulated interests to have such significant input, if not effective control of the
regulatory process. While it is apparent that resource users should have some input into the regulatory process to ensure that it
accounts for their well being and that regulations effectively regulate their activity, it should not be at such a high level. Special interests should
still retain some representation on the Councils to champion their views, and may still avail themselves of the traditional informal means of
special interest influence with which they have been so successful historically. In fisheries management, all regulations are subject to the approval
of the Secretary of Commerce, who is appointed by the President, and is to some extent politically accountable 0 for agency actions. In fact, some
might argue that the influence of presidential political oversight extends much further down the chain of command. Further,
whose members are certainly politically accountable,
budgetary process
Congress ,
has a great deal of influence over the agency via the
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 solvencylack of legal binding means
that the CP can be overturned
Harter 96
(Philip J. Harter served as the Director of the Program on Consensus, Democracy and Governance at Vermont Law School He was a
member of the Honors Program of the US Department of Transportation and then practiced law with the firm of Shea & Gardner in
Washington, DC. He served as senior staff attorney for the Administrative Conference of the United States from 1975 to 1977; in 1976 he
was co-chair of President Ford's Task Force on the Revision of OSHA Safety Standards. Professor Harter served as chair of the Section
of Administrative Law and Regulatory Practice of the American Bar Association in 1995-1996 and was co-chair of the ABA's Task Force
on Regulatory Reform in which capacity he represented the ABA in the regulatory reform debates before Congress. He was the official
observer for the Section of Administrative Law and Regulatory Practice to the Uniform Mediation Act, and the reporter for multi-section
committee that developed Standards for Ombuds which were adopted by the ABA. He is the founding chair of the Committee on
Collaborative Governance of the Administrative Law Section. He was formerly the Chair of the Environment and Public Policy
Committee and a member of the nominating committee of the Section of Dispute Resolution of the ABA. The United States Court of
Appeals for the District of Columbia Circuit appointed him as a mediator to assist the court in the resolution of its cases. His awards
include the Federal Bar Association's prestigious Gellhorn Award for "improving the fairness and efficiency of the administrative
process" and the Center for Public Resources' for "outstanding achievement for excellence and innovation in alternative dispute
resolution." He has taught Administrative Law for 30 years at The American University, the University of Maryland, and Vermont Law
School. He has taught Public Policy Dispute Resolution for 17 years at Vermont Law School. He has taught at the University of Paris II,
Humboldt University in Berlin, and the University of the Western Cape in Cape Town. First Judicial Review of Reg Neg a
Disappointment. Published Fall 1996 @ http://apps.americanbar.org/adminlaw/news/vol22no1/harter.html) Deng
Negotiated rulemaking, or "reg-neg" for short (based on an earlier name that did not last), has been around for at least fifteen years. The Administrative Conference
recommended its use in 1982, and almost immediately agencies began using it to address some of their most intractable problems. Congress codified the procedures in
the Negotiated Rulemaking Act of 1990 (5 U.S.C. 581-90); it was used to implement a number of major, complex environmental issues in the Reagan and Bush
administrations; and the Clinton administration has supported its use through Executive Orders and direct encouragement to agencies. Given this history, it has been
rather remarkable that until this spring not a single court discussed the process in the review of a rule developed by reg-neg. The first case to do so came in an opinion
by Judge Richard Posner in USA Group Loan Services, Inc. v. Riley, 82 F.3d 708 (7th Cir. 1996). While the court reaches what is probably the right conclusion, it
displays a remarkable ignorance of the process and provides only a superficial analysis. Although negotiated rulemaking is fully legal and feasible without specific
legislation, Congress enacted the Negotiated Rulemaking Act in part to provide explicit general authorization to use the process so that Congress itself would be less
tempted to write in directives to use it to develop rules when enacting substantive requirements. That goal notwithstanding, the 1992 Amendments to the Higher
Education Act requires the Department of Education to hold a series of regional meetings to obtain public involvement in the development of the proposed regulations
and, before publishing proposed regulations in the Federal Register, to "submit such regulations to a negotiated rulemaking process." 20 U.S.C. 1098a. Although one
section of the statute calls for selecting a committee that reflects the "diversity in the industry," another calls for the participation of the full range of interests,
including students, schools, financial institutions, guarantors, lenders, and secondary markets. The committees that were established reflected the broader scope. The
Department then held a whole series of reg-negs to develop the rules under the Act. As called for by the Act, the agency held public meetings at which the issues were
discussed, then empaneled a number of reg neg committees to address the individual rules. One of them focused on rules for the "servicers" of student loans. They are
the middlemen among the students, banks, and the guarantors of the student loans. The issue in contention centered on the Department's rule that imposed strict
liability on the servicers for violation of a statute, regulation, or contract -- that is, liability would accrue for an innocent mistake in the processing of a loan if the
Department is unable to collect from the student or bank. The court readily found that regulation well within the statute, and indeed largely an expression of existing
common law liability. The servicers also challenged the rule on the procedural ground that the Department violated its procedural duties to use reg neg by negotiating
in bad faith. They contended that the Department repudiated an agreement that was reached in the negotiations as to the nature of the servicers' liability and, moreover,
removed a cap on that liability that was under discussion. The servicers contended there was an agreement as to the latter issue, but the Department disagreed. The
court begins its procedural analysis by characterizing negotiated rulemaking as "a novelty in the administrative process." While that might be an invitation for an
authoritative opinion of first impression, the court did not accept it; as a result, the phrase seems more designed to trivialize the process than any sort of historical
description. Instead of examining the history of reg neg, the ACUS recommendations (which are mentioned in the legislation, not the Negotiated Rulemaking Act), or
the Negotiated Rulemaking Act itself to understand how the process generally works, Judge Posner characterized reg neg as a process that authorizes the agency to
submit draft regulations "to the industry or other groups that are likely to be significantly affected by the regulations." While a scant reading of the Higher Education
Act itself could lead to that narrow conclusion, he ignores the much broader practice, and the one that in fact was followed in this case, in which a concerted outreach
is made to identify the interests that would be affected and to put together a committee reflecting the breadth of those interests. A reg neg committee is not just "the
industry" or any one side of the issue. The process is designed to ensure that the full range of concerns, facts, and issues will be raised while developing the rule -- not
simply commenting on a draft prepared by the agency. Typically, a reg neg committee is able to identify those issues and potential solutions in far greater depth than if
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
the agency left to its own. The court's narrow, erroneous perspective colored the rest of the analysis.
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
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
rather the decision of the officer of the United States to adopt the proposal.
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
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
agreement without modification would render any subsequent notice and comment a nullity.
varying levels of detail depending on the circumstances. It would be interesting to know just how much explanation the agency should give when it is abandoning an
agreement reached in a reg neg independent of any comments received. Alas, a missed opportunity and a superficial approach by the court. The procedure aside,
there seems little doubt that the official can indeed change his or her mind as to the policy
to be followed and is not legally bound by the agreement. The enforcement is political, not
legal. If the agency repudiates agreements too often, then -- as in any other situation -- its word will not be worth much, and folks will not likely reach agreements
with it in the future. As to the disagreement concerning whether or not there was a consensus reached on certain issues, two points should be made. The first is that the
court is clearly right in dismissing any challenge to a rule for failure to implement offers that were made during the negotiations. Second, the parties need to make
the court's 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,
quite clear just what is and what is not part of an agreement. While the end results are likely right,
the court's lack of understanding only confuses the ultimate issues and makes the ultimate task more difficult.
Public Interest
Reg Neg failsinability to accommodate public interests, limited testing and no incentive
to cooperate
Stewart 1
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 nonparticipants can simply sit out the negotiations and let others do the work, only to
challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge Wald
argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how
many parties agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She
rejects the idea that everyone must either demand to participate or trust a participating interest group to represent his or her interests. Echoing
some of Professor Funk's concerns, Judge Wald argues that, as only a limited num-ber of groups can take part in the negotiations, they should not
be allowed to bind everyone. n299 Thus, the court should apply the same scope of review and criteria of legality to every rule, regardless of
whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This appears to be the current law. In
conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders agree that
negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible;
when there is no easy "objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that
negotiated rulemaking has a use-ful yet limited role. This experience confirms that the European approach to environmental contracting cannot be
transplanted to the United States, and that the negotiated rulemaking hybrid can make only a limited contribution to improvement of the
command environmental regulatory system
Renewables
Agency interests and low probability of cooperation overwhelm attempts to meet public
interest---internal link turns the net benefit
Funk 97
(William Funk is a Professor of Law, Lewis and Clark Law School. B.A. 1967, Harvard College; J.D. 1973, Columbia University.
BARGAINING TOWARD THE NEW MILLENNIUM: REGULATORY NEGOTIATION AND THE SUBVERSION OF THE PUBLIC
INTEREST Published April 1997, Print. Accessed @
http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T20294998790&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T20294998794&ci
sb=22_T20294998793&treeMax=true&treeWidth=0&csi=7336&docNo=5) Deng
D. The Search for the Public Interest Underlying the APA and all other statutes directing or authorizing agencies to adopt regulations is the notion that the agency will
be acting in the public interest. In some cases the public interest may be largely undefined, as in the charge to the Federal Trade Commission to protect against "unfair
methods of competition" n192 or to the Federal Communications Commission to regulate the broadcast spectrum as required by the "public convenience, interest, or
necessity." n193 In other cases it may be relatively better defined, as when a statute requires an agency to set an air emission standard as "the best system of emission
reduction which (taking into account the cost of achieving such reduction (*1383) and any nonair quality health and environmental impact and energy requirements)
the Administrator determines has been adequately demonstrated." n194 Nevertheless, in all cases much is left to the discretion and judgment of the agency to
determine how to best achieve the statutory goals. Congress presumes that the exercise of that discretion and judgment will aim to further the public interest. Today we
might interpret the oath required of all officers to support the Constitution n195 as nothing less than an oath to serve the public interest pursuant to the statutes and
Constitution of the United States. What is meant by the public interest is not always clear. I mean it to be the best interests of the nation, the people, the body politic.
So expressed, it is clear that determining the public interest is not a task one achieves; it is a goal one strives for. It encompasses the ideal notions of a James Landis
n196 as well as the more modern notions of civic republicans. n197 Whatever it is, it is to be distinguished from the public choice or interest representation models of
the administrative state. n198 Public choice theory arose out of studies of legislative and administrative processes to explain why the outcomes of those processes did
not seem to achieve the public interest, but rather to reflect the capture of government processes by special interests. n199 The answer was that legislators and
bureaucrats would act in their own self-interest (to get reelected or to enhance their agency's power and responsibility) and therefore would ally themselves with
whatever special interest would further that end. n200 In this sense, public choice theory is a descriptive, not a normative (*1384) theory, although it has been used to
argue for deregulation on the grounds that the unregulated market will be more efficient than government regulation and at least as moral. n201 The conflict between
public choice theory and a public interest concept of regulation is obvious. Interest representation theory, on the other hand, is both descriptive and normative. It starts
from the proposition that there is no "objective "public interest,'" no "ascertainable "national welfare' as a meaningful guide to administrative decision." n202 This
assumption implies that agencies are adrift in their discretion, and the means traditionally employed to control their discretion are merely illusory. To supplant those
traditional means of control, the interest representation model suggests that organized interests can themselves constrain agency discretion through expansive
participation in agency processes. n203 The courts play an important role in administrative decisionmaking by protecting all parties' rights to adequate participation
and directing agencies to attend to the interests of those participating. Interest representation theory implies that the true metal of regulation will emerge out of the fire
of clashing interests. The agency is merely the filter through which this process operates. The relationship between interest representation theory and the theory of
negotiated rulemaking is obvious. How interest representation theory could lead to public choice theory also seems obvious: the clash of interests results in one
interest capturing the regulatory process. It is not the place of this Article to address the descriptive validity of either public choice or interest representation models of
the administrative state. This Article does maintain, however, that modern regulatory systems and statutes do not reflect a conscious embrace of the cynicism of public
choice theory or an endorsement of the normative values of interest representation theory. This conclusion with respect to public choice theory should be self evident.
If public choice theory were both accepted and consciously acknowledged by lawmakers it would destroy any legitimacy (*1385) their laws would otherwise have.
This conclusion with respect to interest representation is less obvious. Many laws besides the Negotiated Rulemaking Act encourage and support methods to provide a
voice for affected interests in developing rules that affect them. The APA's notice-and-comment requirement is an obvious beginning; the National Environmental
Policy Act's notice-and-comment procedure for environmental impact statements is another. n204 The various substantive statutes including hybrid rulemaking
provisions are other examples. n205 Moreover, the generic requirements beyond the APA for rulemakings of various types, such as the Regulatory Flexibility Act,
n206 the Unfunded Mandates Reform Act, n207 and the Paperwork Reduction Act n208 are still other examples. Nevertheless, an inspection of all these laws rebuts
any suggestion that these enhanced public participation requirements substitute for the agency's responsibility to engage in reasoned decisionmaking in search of the
public interest. For example, environmental impact statement requirements are consistently described as intended to improve the agency's decisionmaking. n209 The
substantive statutes with hybrid procedures likewise are laden with requirements to assure the agency is making a rational decision, not just adding up the votes of the
interested parties. n210 And the primary focus of generic rulemaking requirements beyond the APA is cost/benefit or risk assessment analysis to assure that the rules
adopted are plainly (*1386) adapted to their purpose - the public interest. n211 Thus, while modern rulemaking seeks full participation by interested persons, the
agency still determines the public interest. Modern rulemaking has not substituted interest representation theory for traditional notions of administrative rulemaking.
negotiated rulemaking. After all, the process has been carefully crafted to fit within
traditional rulemaking requirements. Here, again, however, no matter how faithful negotiated
rulemaking may be to the formalities of traditional rulemaking, its effect is to subvert the
principles of that rulemaking. This is reflected once again in Harter's revealing statement that the legitimacy of the
regulation "would lie in the overall agreement of the parties." n212 Note the use of the word "parties." The
rulemaking has "parties" who make the agreement. They make the agreement among and
for themselves. They bargain and deal to achieve their own interests. There is no mention of
the "public." The wisdom and fairness of the rule is equated with the satisfaction of the parties. n213 Public law has been subtly
transformed into private law relationships. Moreover, negotiated rulemaking succeeds if the parties reach consensus. To the extent
that agencies are taught that regulatory negotiation is a process to be used in the place of conventional notice-and-comment rulemaking, agencies learn
that achieving consensus of the parties is the measure of success. The statistics in Professor Coglianese's article
further confirm this lesson - if the consensus is not reached, or if the agency does not abide by the
consensus, the likelihood of lawsuits increases, and the "benefits" of negotiated rulemaking
evaporate. n214 Thus, agencies are influenced to see their role not as serving the public interest,
The same could be said for
but as generating a consensus among the parties to the negotiation. Public choice theory is not resisted; it is
adopted with a vengeance. The effect on the culture and identification of the agency may outlive the particular negotiation. That is, when the negotiation is (*1387)
over, the consensus is obtained, and the rule is promulgated, where is the agency's interest in assuring compliance with the rule, in assuring that the rule continues to
agency does not have the same sense of responsibility for the rule, because it
does not reflect the agency's considered determination as serving the public interest;
instead, it reflects the bargain of the parties. It is the parties' rule, not the agency's.
serve its purposes? The
Perm Stuff
2AC
Perm do both
Perm is key, federal resources key to ensure enough experts for proper rulemaking
Selmi 5
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 CPeven if Congress doesnt mandate reg negs, agencies do it anyways due to
federal oversight
Hsu 02
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 counterintuitive 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 CPits functionally the same thing
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 justifiedits functionally the same
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
Turnnegotiations take longer; CP fails to solve in time
Selmi 5
D. The Scale of the Negotiation: Time and Resources 1. Time as a False Indicator An ongoing point of contention in the literature is whether
regulatory negotiation saves time in comparison to traditional rulemaking. Such savings were originally cited as a principal justification for
undertaking the negotiation process. (253) Recently, however, critics have contended that time savings do not occur. (254) Moreover,
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 dont solve faster

Coglianese 97
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
A. The Length of Negotiated Rulemaking Proceedings
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
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
completeCoast 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 standard deviation
proclaimed efficiency, the
of 577); the median has been 651, or over one and three quarters years. Of course, a couple of years may seem short compared with the decades that certain notorious
rulemakings sometimes seem to last, or it may seem somewhat long compared with the speed that some might expect of the government in addressing serious public
concerns. What is needed is a standard for comparison, a group of comparable rules developed using conventional notice-and-comment procedures. Any number of
variables may offset the length of the rulemaking process, including the agency promulgating the rule, the complexity of the rule to be issued, and the priority the rule
holds for the agency. Establishing the comparability of two regulations is no easy matter, but Kerwin and Furlong made an initial attempt in their valuable study of the
length of rulemaking at EPA. They compared the time of four negotiated EPA rulemakings with the average time for all EPA rulemakings that entered into the agency's
internal regulatory development management system during fiscal years 1987-1990. The latter group amounted roughly to the most substantial 15 percent of all EPA
rules adopted during this period. In calculating the length of a rulemaking, Kerwin and Furlong relied on internal EPA files to determine the date when each rule
entered into the agency's regulatory development management system and the date when it was finalized. They found that the rules in their study took an average of
3.0 years (1108 days) from start to finish. In contrast, the four negotiated rules initiated during the time period of their study took an average of only 2.1 years (778
days) to complete, a time savings of eleven months. Although Kerwin and Furlong acknowledged that the number of negotiated rules in their study was small, they
interpreted their data to demonstrate that negotiated rulemaking is "more expeditious" than conventional rulemaking. Their analysis underlies the National
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
Performance Review report's claim that regulatory negotiation is faster than conventional rulemaking. Of course,
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 timefrom notice of
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
intent to final ruleprobably itself understates the amount of time devoted to negotiated rulemaking. After all,
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 cant solve time or litigation
Coglianese 01
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-andcomment 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
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 litigationhowever, the difference is in the
direction opposite to what has been expected. Negotiated rules are challenged fifty percent
of the time, while other comparable, significant EPA rules are challenged only thirty-five
percent of the time.4tJ These results indicate all too clearly that negotiated rulemaking has failed to
accomplish its goals of preventing litigation and saving time. Negotiation simply does not
"cure" regulatory malaise.
Reg Negs dont resolve delays or litigation---best empirically validated research
Coglianese 01
Journal, Volume 9. 2001. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2334&context=faculty_scholarship/) Deng
I Is Negotiated Rulemaking a "Cure"? In his original 1982 article on negotiated rulemaking, Philip Harter advocated negotiated rulemaking as a cure for "the malaise
of administrative law, which has marched steadily toward reliance on the judiciary to settle disputes and away from direct participation of affected parties." n12 He
decried the time and expense of administrative rulemaking under conventional procedures, observing that: (*390) We have grown accustomed to rulemaking
procedures that take several years to complete at the agency level and, in the event judicial review is sought, another year or two in the courts. The cost of participating
in such a proceeding for both the agency and the private parties can be staggeringly high. n13 For Harter, negotiated rulemaking provided an alternative that would
"reduce the time and cost of developing regulations." n14 He argued that it offered agencies an antidote to "the traditional battle" of conventional rulemaking. n15 In
negotiated rulemaking, a negotiation process takes place before an agency issues a proposed regulation. n16 The agency (*391) convenes a committee comprised of
representatives from regulated firms, trade associations, citizen groups, and other affected organizations, as well as members of the agency staff. n17 The committee
meets publicly to negotiate a proposed rule. If the committee reaches consensus, defined as a unanimous concurrence of all the interests, the agency uses the
agreement as a basis for its proposed rule and then proceeds according to the notice-and-comment provisions of the Administrative Procedure Act. n18 Harter's 1982
article proved instrumental in garnering support for negotiated rulemaking as an alternative to conventional rulemaking. The article was based on a report to the
Administrative Conference of the United States (ACUS), which then formed the basis for ACUS's recommendation that federal agencies pursue negotiated
rulemaking. n19 The initial ACUS recommendation noted that under the existing form of notice-and-comment rulemaking, "long periods of delay result, and
participation in rulemaking proceedings can become needlessly expensive." n20 ACUS's recommendation was premised on the expectation that negotiated rulemaking
would overcome the delays, litigation, and other adverse consequences associated with conventional rulemaking and would result in rules more acceptable to the
interests affected by agency decisions. n21 In the years following Harter's article and ACUS's recommendation, agencies began to experiment with negotiated
rulemaking and Congress began to consider legislation to provide clear authorization for its use. n22 Legislative debate in Congress, along with extensive commentary
by academics and practitioners, emphasized that negotiated rulemaking would help (*392) reduce the delays and litigation that were thought to dominate the
conventional rulemaking process. n23 In the years leading up to the passage of the Negotiated Rulemaking Act of 1990, n24 regulatory negotiation was consistently
advocated as a means of improving what was thought to be a time-consuming, litigation-prone regulatory process. From 1983, when the Federal Aviation
Administration (FAA) initiated the first federal negotiated rulemaking, n25 to 1996, the year the Negotiated Rulemaking Act was permanently reauthorized, n26 about
a dozen federal agencies used the procedure to develop and issue at least one rule. All told, federal agencies had completed thirty-five rules using negotiated
rulemaking, a number that amounted to less than 0.01% of all rules issued during the same period. n27 As of 1996, EPA had completed twelve negotiated rulemakings,
, EPA has not
new negotiated rulemaking since 1993
n28 more than any other agency. Interestingly

initiated any
. 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
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
process. Harter and other
of the procedure was at best extremely thin. Only a few minor efforts existed that compared the results of negotiated rulemaking directly with the results of
conventional rulemaking. n39 In the first such effort, (*396) Neil Kerwin and Scott Furlong conducted a study of the duration of EPA rulemakings in which they
briefly mentioned that they compared the duration of the four negotiated rules in their sample with the duration of the larger sample of 150 of the most significant EPA
rules completed through the conventional rulemaking process. n40 Using dates from EPA's internal regulatory management system as their basis for operationalizing
the duration of rulemaking, Kerwin and Furlong found that, on average, the four negotiated rules went through the entire rulemaking process about eleven months
faster than did the average conventional rule in their sample. n41 A second effort to compare the outcomes of negotiated and conventional rulemakings could be found
in the Clinton Administration's National Performance Review (NPR) report "Improving Regulatory Systems." n42 The NPR report made brief but explicit claims
comparing EPA's negotiated rules with its conventional rules in terms of both time and the incidence of litigation. n43 In addition to citing the time savings reported
by the Kerwin and Furlong study, the author of the NPR report stated that at EPA negotiated rulemakings had shortened the rulemaking process by up to eighteen
months when compared with conventional rulemaking. n44 The report also asserted that negotiated rulemaking reduced the litigation rate for EPA rules from around
seventy-five to eighty percent to twenty percent for negotiated rules. n45 (*397) In my research, I have also taken a comparative approach in evaluating the impact of
negotiated rulemaking on the duration of rulemaking and the subsequent incidence of litigation. As I state in Assessing Consensus: My purpose ... is simply to assess
negotiated rulemaking on its own terms, using the standards that have been set for it by those legislators, agency officials, practitioners, and scholars who have
advocated its use over the years. The goals of saving time and reducing litigation are by far the most prominent ones invoked in the literature and the legislative
history. n46 My research follows appropriate standards for empirical research and overcomes major limitations of the two prior efforts to make comparative
assessments of negotiated rulemaking. Unlike Kerwin and Furlong (who, in fairness, never really set out to evaluate negotiated rulemaking), I include in my
assessment all the negotiated rulemakings completed by EPA during the study period. Unlike the NPR report, I rely on primary source data on the filings of suits
challenging EPA rules and thus provide an accurate account of litigation filed against both negotiated and conventional rules. By carefully applying empirical research
on average it has taken EPA about three years to develop a rule, regardless of
whether the agency used negotiated rulemaking or conventional rulemaking procedures . n47
The median duration is also about the same for negotiated and conventional rules. n48 Negotiated
methods, I find that
rulemaking does seem to make a difference when it comes to litigation - however, the difference is in the direction opposite to what has been expected.
Negotiated rules are challenged fifty percent of the time, while other comparable,
significant EPA rules are challenged only thirty-five percent of the time. n49 These results indicate all too
clearly that negotiated rulemaking has failed to accomplish its goals of preventing litigation and saving time. Negotiation simply does not "cure" regulatory malaise.
(*398) II Evaluating the Duration of Negotiated Rulemaking Harter disagrees with these findings. He first criticizes how I evaluate negotiated rulemaking's impact on
the duration of the regulatory process, arguing that I should exclude from my study one rule that EPA negotiated - the farmworker protection rule - because its
committee failed to reach a consensus. n50 In a few other cases, he also questions my reliance on the publication of the final rule to mark the completion of the
rulemaking process. n51 In total, Harter criticizes my data with respect to the four EPA negotiated rulemakings that took the agency the longest to complete. As a
result, Harter claims that once his modifications to the data are made, the average duration of negotiated rulemakings is shorter than the duration of conventional
rulemakings. n52 He is correct that the average duration would decline if the longest negotiated rules were to be excluded or their length were to be truncated. He is
wrong, however, to suggest that such modifications should be made. The farmworker protection rule, while a failure in terms of achieving consensus, still represented
an earnest effort by the EPA to negotiate the rule and merits inclusion in any evaluation of negotiated rulemaking. n53 The other modifications Harter urges fail to
adhere to the basic precepts of consistency and reliability in empirical analysis. n54 Moreover, even if one were to be persuaded by Harter's advocacy, his
modifications would only affect the average duration of negotiated rulemaking, and not the more appropriate measures of rulemaking time. n55 The median duration
of negotiated rulemaking remains largely unchanged even after Harter's modifications. n56 More significantly, whatever one makes of the duration of rules from start
to finish, the overall investment of staff time and effort by agencies and outside organizations remains indisputably and significantly greater for negotiated rulemaking.
(*399) A. EPA's Negotiated Rulemaking on Farmworker Protection Harter first seeks to exclude from analysis what he calls the "peculiar case" of the farmworker
protection rulemaking. n57 In 1985, EPA initiated a negotiated rulemaking process to establish a regulation that would reduce the exposure of agricultural workers to
the spray of pesticides. n58 The agency convened a negotiation committee comprising representatives from farming organizations, farmworker unions, agricultural
and forest products trade associations, state and local governments, the U.S. Department of Agriculture, and the EPA. n59 The committee met as a plenary group on
several occasions, established a series of five working groups, and developed and circulated working drafts of a proposed regulation. n60 As the committee neared
completion of a final draft of the proposed rule, the negotiations reached an impasse, n61 and the representatives from the farmworker organizations decided to end
their involvement with the negotiations. n62 The EPA attempted to bring the farmworkers' representatives back into the discussions and continued to meet with the
remaining members of the committee. n63 In the end, however, the agency was unable to secure a meaningful consensus without the involvement of the farmworkers'
representatives, whom the agency failed to bring back to the table officially. Harter claims the farmworker protection rule should be excluded from my analysis of the
effectiveness of negotiated rulemaking. n64 He asserts that the farmworker protection negotiated rulemaking was "abandoned" by EPA and that the bulk of the time
associated with this regulation should not be attributed to negotiated rulemaking because it took place after the negotiations (*400) collapsed. n65 Yet what happened
in the farmworker protection rulemaking could happen in any negotiated rulemaking. Negotiation does not always yield a consensus, and the mere fact that consensus
is not reached is no reason to exclude from evaluation those rules for which the agency otherwise earnestly tried to use negotiation. If we are to determine whether
negotiated rulemaking is effective in achieving its goals, both common sense and conventional empirical research methods dictate that we look at all the cases where
the technique was used, not only those cases where it succeeds. Although negotiated rulemakings should be excluded when they were genuinely abandoned, I
specifically state in Assessing Consensus that by "abandoned" negotiated rulemakings "I do not mean that the participants failed to reach consensus." n66 Rather, in a
passage that Harter quotes, n67 I treat as "abandoned" those rulemakings for which the agency, at some point after publication of an intent to negotiate, either (1)
"decided not to commence negotiations," (2) "disbanded the committee before seeking even a limited agreement," or (3) "withdrew the underlying regulatory action
altogether." n68 Rulemakings that meet any one of these three criteria are rulemakings for which the agency failed to use the negotiation process earnestly as a means
of developing a rule, or for which the agency declared its decision to issue no rule at all. n69 They are cases where the agency essentially decided to forego altogether
the experimental treatment called negotiated rulemaking. The EPA did commence and earnestly pursue negotiations in the farmworker protection rule. The agency
worked diligently and responsibly to seek an agreement in this case, and apparently even came close to doing so. n70 When problems arose, the agency (*401) and the
other parties offered to replace the facilitator in an effort to keep the farmworkers' representatives on the committee. n71 The EPA continued to hold meetings with the
rest of the committee, "hoping that the farmworkers' representatives would return." n72 In addition, the EPA reportedly continued to share drafts of the proposed rule
with the farmworkers' representatives before the opening of the notice-and-comment period. n73 EPA did not "abandon" the farmworker protection negotiated
rulemaking; rather, one non-governmental interest abandoned the negotiation committee - the committee simply failed to reach a consensus. n74 EPA did eventually
issue a final farmworker protection rule, and in doing so the agency made a point of crediting the negotiation process for having "helped shape the proposed
regulation." n75 Harter himself suggests that the agency learned much from the negotiation process and that the discussion draft that emerged from the negotiations
formed a basis for its final rule. n76 In making this suggestion, however, Harter essentially concedes that the farmworker protection rule was, after all, a negotiated
rulemaking. One cannot consistently treat the rule as a negotiated rulemaking in order to claim credit for some benefits, only (*402) to exclude it when it comes to
assessing whether negotiated rulemaking achieves other benefits. Significantly, no one ever claimed that the farmworker protection rule should be treated as anything
but a completed negotiated rulemaking until after my research results were published. Lee Thomas, who served as the EPA Administrator during the negotiations and
through the publication of the proposed rule, counted the farmworker protection rule among EPA's negotiated rules. n77 When the EPA's Office of Policy, Planning
and Evaluation set out to assess how well negotiated rulemaking worked, it included the farmworker protection rule in its study. n78 Indeed, on eight separate
occasions, the EPA listed the farmworker protection rule as an example of one of its negotiated rulemaking in the Federal Register. n79 The rule has appeared in three
separate (*403) reports issued by ACUS, again listed as one of EPA's negotiated rulemakings. n80 EPA's Consensus and Dispute Resolution Program has kept its own
internal list of EPA negotiated rulemakings, on which the farmworker protection rule can be found. n81 Finally, the director of the Consensus and Dispute Resolution
Program, Chris Kirtz, published an article listing the farmworker protection rule as one of EPA's negotiated rulemakings. n82 Interestingly, EPA's internal list of
negotiated rulemakings was recently modified to add a sentence to the description of the farmworker protection rulemaking stating that the "negotiation was
abandoned." n83 This statement never appeared in three earlier versions of this EPA list of negotiated rulemakings, n84 making it reasonable to wonder why EPA staff
would change its description in this document more than five years after EPA issued its final rule and more than ten years after the farmworkers reconsidered their
involvement in the negotiations. Perhaps part of (*404) the explanation lies in the fact that EPA made a point to distribute copies of its altered list at the 1998
Association of American Law Schools panel organized around my research. n85 When the farmworker protection proceeding was described earlier by the agency in
the Federal Register, EPA never described the negotiated rulemaking as having been "abandoned" (the same word used to label the category of rules excluded from my
study). Rather, EPA noted that representatives from four groups "decided to discontinue participation in the Regulatory Negotiation process" and that afterwards the
agency still scheduled four additional meetings with the remaining members of the negotiation committee. n86 Notwithstanding Harter's and EPA's efforts to revise
the historical record, the farmworker protection rule is properly considered one of the agency's negotiated rules. Administrative law scholars have considered it as
such. n87 Moreover, Laura Langbein and Neil Kerwin, whose research Harter considers "rigorous" and "the only careful and comprehensive" empirical research on
negotiated rulemaking, n88 initially included the farmworker protection rule in their study. n89 They eventually dropped it from their sample of negotiated rules, but
not because of any principled (*405) or methodological reason for excluding it from a study of the performance of negotiated rulemaking. Rather, Langbein and
Kerwin dropped it simply because they were unable to locate enough of the participants in the rulemaking to interview. n90 Furthermore, Harter has himself
acknowledged that the farmworker protection rulemaking was a negotiated rulemaking, going so far as to reprint the organizational protocol for the negotiations as an
appendix to an earlier article. n91 It is understandable why an advocate would now like to treat the farmworker protection rulemaking as if it were not a negotiated
rulemaking for the purpose of determining the average duration of negotiated rules. The farmworker protection rule took longer to complete than any other. n92 As
Harter points out, removing this one rule from the group of EPA negotiated rulemakings has the effect of decreasing the average duration of these rules by
approximately four months. n93 Yet Harter fails to note that in using Federal Register notices to compute the duration of negotiated rulemakings, I actually understate
the average duration by about the same amount of time. As I note in Assessing Consensus, "Federal Register listings yield an average time for the four negotiated rules
in the Kerwin and Furlong study of 1.8 years (647 days), more than four months shorter than the average they report for the same rules (778 days)." n94 My approach
therefore underestimates rulemaking duration because it excluded the agency work that precedes the publication of a notice of intent and which leads the agency to
make the decision to engage (*406) in a negotiated rulemaking. In this and other ways, my approach relies on conservative measures that in effect create a "deliberate
bias in favor of finding a time savings in rules developed with negotiated rulemaking procedures." n95 As a result, even supposing the farmworker protection rule
should be excluded as a negotiated rulemaking, the resulting average time decrease caused by excluding it is still within the bounds of what can be explained by the
conservative measure I used for the duration of negotiated rulemaking. n96 It is simply not possible to conclude with any confidence that negotiated rulemaking has
made the rulemaking process significantly shorter. B. Calculating Rulemaking Duration Harter critiques my analysis of rulemaking duration in other ways. He claims,
for example, that by using a "strictly numerical methodology" for evaluating the duration of rulemaking I have ignored "the varying complexity of rules." n97 He
notes that "rulemaking is an inherently political activity" and argues that "counting days between two events disregards all the dynamics of political activity." n98
Although Harter never clearly states what inference he thinks should be drawn from these vague points, he appears to be suggesting either (1) that negotiated
rulemaking should not be subject to empirical evaluation n99 or (2) that omitted, perhaps even unmeasurable, variables influence the duration of the rulemaking
process, making quantitative analysis unreliable. There is no reason to support the first claim that negotiated rulemaking should be exempt from the kind of evaluation
to (*407) which other policies or procedures are normally subjected. n100 Even advocates of negotiated rulemaking recognize that it should be subject to evaluation.
n101 The second claim raises a concern that should be considered for all empirical research, but it matters only if there is reason to suspect that omitted variables are
relevant and systematically biasing the results in one direction. n102 Harter offers no credible reason to suspect that the so-called "dynamics" inherent to all
rulemaking systematically operate to lengthen the time it would otherwise take to complete the rulemakings that were negotiated, nor does he specify any particular
variable that should have been included in my analysis. In contrast, I extensively scrutinize the possibility of omitted variable bias in Assessing Consensus. n103 All
the available evidence indicates that the rules selected for negotiation tend to involve underlying issues and interests that made them more - not less - likely to succeed
in achieving a timely outcome. n104 EPA has not used negotiated rulemaking for (*408) the rules affecting the broadest number of organizations nor for those rules
raising the most contentious policy issues. Rather, the agency has tended to follow the advice of negotiation consultants, as well as the guidelines of the Negotiated
Rulemaking Act, to select rules for negotiation for which the agency determines there is a preexisting likelihood of success within a limited amount of time. n105
Admittedly, on some occasions the agency has selected significant rulemakings to negotiate and, as we know, it has also sometimes misjudged whether a consensus
could be attained in a fixed time period. n106 Overall, though, the agency has tended to select rules that are expected to take less time to promulgate. n107 Harter also
claims that instead of using a consistent, verifiable method of calculating rulemaking duration, I should have imputed different ending points to negotiated rules based
on "the actual, immediate goal the agency hoped to accomplish" and "what those who would be affected by the agency's action thought." n108 Harter asserts that
because I used the date when the agency published its final rule, rather than imputing ending (*409) points for negotiated rulemakings, I fail "to conduct an accurate
empirical study of rulemaking." n109 Actually, the danger is just the opposite. If researchers studying the duration of rulemaking were to make their own ad hoc
decisions about when a rulemaking begins and ends, their research would lack reliability. n110 Without clear criteria for collecting data and making measurements,
individual researchers would have to make their own decisions about when an agency's rulemakings ended. Such an approach would make it exceedingly difficult, if
not impossible, to verify and interpret results across studies. n111 Thus, it is important for researchers to operationalize rulemaking duration using a consistent,
verifiable indicator such as Federal Register notices or other uniform administrative indicators. This is almost certainly the reason that Neil Kerwin and Scott Furlong
opted for such an approach, relying on the dates found in EPA's internal regulatory tracking system rather than their own interpretation of when individual
rulemakings were completed. n112 More recently, political scientists John Wright and Steven Balla conducted a further study of the length of negotiated rulemaking again using the dates of notices in the Federal Register. n113 Choosing the date on which a final rule is promulgated (*410) is particularly appropriate given that this is
the point at which the agency has taken a final, legally reviewable action. n114 Since one of the main goals attributed to negotiated rulemaking is to reduce subsequent
litigation over agency rules, it is entirely appropriate to use the publication of the final rule as the ending point of a negotiated rulemaking for purposes of evaluation.
Even Langbein and Kerwin, in the study that Harter praises, regard the outcome of the negotiated rulemaking as the promulgation of the final rule. n115 Moreover, as
any administrative lawyer knows, the rulemaking process does not necessarily end once the agency issues a final rule. Even putting aside any subsequent litigation,
agencies do revisit their final rules, amend and revise them, and even occasionally rescind them. n116 Researchers who free themselves from a consistent data
collection rule face an extremely wide range of potential starting and ending points for any particular rulemaking. For example, as I note in Assessing Consensus, the
negotiated rulemaking over drinking water standards for disinfectant byproducts had, by 1996, resulted in a final rule governing the collection of drinking water
information even though the substantive drinking water standards based on the negotiations still remained as proposed rules. n117 I use the date of the "first final rule
to emerge from this negotiated rulemaking process, even though it is an information collection rule and not a drinking water standard" simply to ensure that my
estimates are employed consistently and conservatively. n118 The farmworker protection rule is yet another example of a rulemaking that did not really end with the
promulgation of a final rule. As I note in Assessing Consensus, debate over the farmworker protection rule persists: "EPA has issued extensions and changes to the
rule, (*411) Congress has entered the fray, and outside groups have threatened litigation." n119 Opening measurement to ad hoc judgments would not only enable
some to claim that rulemaking was shorter in some cases, but it would also allow others to claim that rulemaking was still longer in other cases. The approach I take in
my empirical research adheres to sound social science research standards in that it relies on neutral, consistent methods of calculating the duration of rulemaking.
Harter's approach, on the other hand, tips the scales in favor of finding a time savings for negotiated rulemaking. He makes adjustments that shorten the process for
negotiated rulemaking, but he never acknowledges the need to be consistent and make similar adjustments to the comparison group of rules adopted through
conventional notice-and-comment procedures. n120 Harter claims, for example, that an earlier ending date should be used for the equipment leaks rule because the
EPA issued an early notice of the agreement in the equipment leaks rulemaking "so industry could begin taking actions to comply." n121 In an earlier article, Harter
notes that many firms "were complying with the rule long before it was in effect." n122 He similarly argues that the ending date of the reformulated gasoline rule
should be moved up by about eight months because that was the time when the EPA held a series of workshops "so that those affected could (*412) comply." n123 Yet
what Harter fails to acknowledge is that regulated entities often take steps to comply with looming environmental regulations well in advance of agency rules coming
into effect. In many corporations and trade associations, lawyers and managers regularly work to anticipate the EPA's regulatory agenda, taking steps to bring their
organizations and members into compliance before the final rules take effect. n124 This is especially the case with regard to regulations affecting equipment or
production processes, as compliance can require significant capital expenditures and lead time for planning. It is in firms' interests to avoid the risk of business
interruption or regulatory liability, so firms often plan ahead and begin taking steps to comply after an agency issues a proposed or interim rule or otherwise signals its
regulatory direction. n125 Overall, Harter presents his data in such a way as to favor negotiated rulemaking. He argues that if one negotiated rule is excluded from
study, and if the duration of two other rules is shortened, the average duration of the EPA's negotiated rulemakings is only 751 days instead of 1,013 days, or thirtyfive percent shorter than the average duration reported in my study. n126 This reduction in average duration arises because the (*413) one rule that Harter argues
should be excluded - the farmworker protection rule - happened to be the negotiated rulemaking with the longest duration. In addition, the two other rules - the
equipment leaks and reformulated gasoline rules - were among those negotiated rules with the longest durations. Harter also questions the dates I use to calculate the
duration of a fourth rule - the drinking water collection rule - although he does not change the dates I use in making his alternative calculation. n127 In all, Harter
disputes my time computations for the four EPA negotiated rules that had the longest rulemaking duration. Due to the nature of an average (or mean) as a statistical
measure, the average duration of negotiated rulemaking would indeed drop substantially if one were to remove the longest negotiated rulemaking from the group and
also considerably shorten the duration of other rulemakings that took a longer time. This is explainable as a property of the statistic, since averages tend to be sensitive
to outlying cases. Indeed, when analyzing a distribution of data with outliers in only a positive direction - such as with income or time, which can never be less than
zero - the average will tend to be pulled upwards. n128 In such cases, the median will generally be a more suitable indicator of the typical case, as it is less sensitive to
extreme outliers. n129 It is especially appropriate for a researcher to report the median in these cases, something that I did and Kerwin and Furlong did, but Harter did
not. Table 1: Duration of EPA Rulemakings (in days) (SEE TABLE IN ORIGINAL) As Table 1 shows, Kerwin and Furlong report an average rulemaking duration
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
(1108 days) that was higher than the median duration (872 days). My
negotiate as the starting point for each rule, rather than EPA's internal records (the Kerwin and Furlong approach), n131 my study understates the duration of
negotiated rulemaking by about 131 days compared with the approach used by Kerwin and Furlong. n132 (*415) C. Negotiated Rulemaking Demands More Time and
negotiated
rulemaking still demands more time and effort on the part of the participants than does conventional
rulemaking. n133 Even if the overall duration of negotiated rulemakings could be shown to be shorter, n134 the
intensity of negotiated rulemakings still translates into additional time. As Harter himself acknowledges,
Effort by Participants No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process,
"reg negs are intense activities: participating in one can be expensive and time consuming." n135 The Langbein and Kerwin study, which Harter considers "rigorous"
and "careful," n136 shows that participants in negotiated rulemakings report spending nearly twice as much overall in organizational resources as did their
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
counterparts in conventional rulemakings. n137 Strikingly,
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
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,
rest having been voluntarily dismissed by the parties. n184 I also report - and this is most crucial - that
"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
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
appeals." n186
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
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
process, albeit with a smaller number of participants. n188 Thus
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
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
Engenders Additional Conflict
expectations is in part explained by the fact that conventional rulemaking at EPA has been much more resistant to litigation than anyone previously believed. n194 It is
consensus is
not always attainable, and even when it is, it may only temporarily hide underlying conflicts. n195 Negotiated rulemaking also creates new sources
also the case that negotiation efforts do not resolve all conflicts, and, in some ways, they can even engender new conflicts. As we have seen,
of conflict that do not exist with other methods of policy making. n196 Conflicts can arise over the selection of participants in the negotiations, the meaning of
agreements that are reached, and whether the final rule is consistent (*428) with those agreements. n197 Disagreements can even arise about the implications of
silence in the agreement over particular terms or issues. n198 None of these additional kinds of conflict arise in the absence of negotiated rulemaking. A recent
negotiated rulemaking effort at the Department of Housing and Urban Development (HUD) illustrates one of these new sources of conflict. HUD had originally
named four public housing organizations to serve on negotiated rulemaking committees for regulations addressing subsidies and capital funds. n199 After the housing
organizations subsequently filed a petition against the agency over a separate matter, HUD officials unilaterally declared that the organizations could no longer bargain
with the agency in good faith and removed them from the negotiated rulemaking committees. n200 The housing groups filed for a court order reversing their removal
from the committee, arguing that HUD's action discriminated against them in the exercise of their fundamental right of petition. n201 HUD eventually capitulated and
reinstated the organizations as members of the negotiated rulemaking committees, but the experience demonstrates a profound new source of litigated conflict that,
ironically, is found only in the very process that was intended to reduce litigation.
AT: Democracy/Fairness
Reg Neg cant solve, information asymmetries allow certain parties to control negotiations
%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 informationthought 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
Turnreg negs are exclusive and fundamentally undemocratic
%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 arms-length interest representationwhich preserves the agencys hierarchical authorityto 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 participate
%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 unfairbig businesses have more influence

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 postcomment stage, the adversarial patterns thought to characterize conventional rulemaking may
emerge among interest groups , and richer, larger interests may find themselves in a
superior position, due to their ability to monitor, communicate with, and influence the
agency.
But it is not clear that reg neg exacerbates this disparity.
Reg Negs dont solve democracy---empirically fails

Seidenfeld 13
(Mark Seidenfeld is a Professor of Administrative Law @ The Florida State University College of Law Annual Review of
Administrative Law: Foreword: The Role of Politics in a Deliberative Model of the Administrative State Published August 2013. Print)
Deng
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) Deng
In 1996 and in 1997, Congress ordered the Secretary of Health and Human Services to undertake a process of negotiated rulemaking, which is
authorized under the Negotiated Rulemaking Act of 1990, on three separate rulemaking matters. Other Federal agencies, including the
Environmental Protection Agency and the Occupational Health and Safety Administration, have also made use of this procedure. As part of the
program to reinvent government, President Clinton has issued an executive order requiring federal agencies to engage in some negotiated
rulemaking procedures. I present an analytic, interpretative and critical approach to looking at the statutory and regulatory provisions for
negotiated rulemaking as related to issues of democratic governance surrounding the problem of delegation of legislative power. The paradigm of
law delineated by Jrgen Habermas, which sets law the task of achieving social or value integration as well as integration of systems, provides
the background theory for a critique of such processes. My research questions are two. First, why should a citizen obey a regulation which is the
result of negotiation by directly interested parties? Second, what
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 decisions
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)
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. Funks definition does little more than substitute one word (best) for another (public). This
troublesome wordbestbegs the question, however, and Funks circular argument seems to comes down the assertion that the agency must avoid collaboration
and make the decision alone, becausewell, because thats what the theory says. Similarly, Michael McCloskey echoes this concern about moving towards explicit
collaboration in the production of administrative regulations. McCloskey focuses his concern on the use of consensus as a rule of decision in such negotiations, calling
(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
this a prescription for frustrating the national will of the majority. McCloskey argues that:
devoted itselfadmirably in my opinion to challenging the correctness of decisions made by these very administrative agencies. In any case, this analysis quickly
breaks down. For one thing, the government officials and employees who would otherwise formulate the rules are not themselves elected. Second, even if one accepts
with McCloskey the proposition that the will of the majority can be equated with progress, the failure in reg-neg to reach consensus does not thwart or veto
anything, except the ability of the negotiating committee to determine the contents of a proposed rule. In cases where no consensus is reached, the agency is free to
proceed and propose its own ruleand may do so with the added benefit of whatever useful information was gained from the failed negotiations. Thus, even
assuming as McCloskey does that the agency is the rightful repository of the public interest, nothing is lost by the failure to reach consensus. Finally, his assertion that
public policy is normatively set by the majority of the electorate is simply disingenuous. As the head of arguably the nations most prominent environmental group,
he is intimate with the nature of interest group politics in Washington and elsewhere, and he understands the nuances and complexity of our representative democracy
and how that differs from notions of direct democracy. McCloskey is understandably troubled by the increased influence of local communities in the administrative
broad assertion
that collaboration and sharing of decisionmaking authority in the formulation of
administrative rules is fundamentally undemocratic and contrary to the public interest is
based on little more than a questionable faith that the agency can and will effectuate the
public interest. Finally, Cary Coglianese is perhaps the most persistent critic of reg-neg. Like, McCloskey, Professor Coglianese also focuses his attention
process affecting forest and timber regulations, which seems to be the animating concern behind his critique. However, McCloskeys
on the perceived dangers of consensus as a decision rule in negotiated rulemaking. And while most of his efforts are aimed at disproving the claims of reg-neg
advocates concerning the benefits of the process, Coglianese goes further and asserts that reg-neg represents a retreat from the public interest as the primary goal of
government officials. That conclusion, however, does not easily follow from the claimed failure of reg-neg to achieve certain efficiencies, nor is it directly
substantiated by empirical evidence. At most, it might be said that reg-neg represents (for its advocates) a new approach to achieving the same desired resulti.e., the
best decision for the public. So what are we to make of the complaint that reg-neg subverts the public interest? Certainly, we may say that a criticism is
incompetent when it depends entirely on terms which have no ascertainable meaning, or for which the critic can supply none. Such criticism is unhelpful, moreover, as
it does nothing to further a serious debate about serious issues. Can we, then, just dismiss these claims, tossing them in the junk pile of criticism? I think not. Critics
such as Coglianese are, of course, correct that we must look at the underlying theory and assumptions around reg-neg and attempt to assessempirically and
otherwisehow it is performing. The question of whether reg-neg is serving the public interest is an important one, even if it has, until now, been used mostly to vent
the hostile suspicions of a fading tradition. General linguistic and philosophical objections regarding the use of the term public interest, moreover, are themselves
somewhat too broad and subject to the criticism that they, too, fail to move the debate forward. What then? Professor Freeman argues that, while (t)here is no purely
private realm and no purely public one, these dichotomous notions nonetheless are meaningful signifiers helpful ways of referring to areas of life that we
experience as more or less under our control, more or less coercive, more or less alienating. Perhaps the public interestlike the related concept of legitimacyis a
usefully vagueadministrative law theory, serving as a vessel into which scholars could pour their most pressing concerns about administrative power. If we
understand the public interest in this pragmatic sense, then it seems the task is to provide some suggested content(s) for it, so that it may be employed helpfully and
with appropriate nuance to explore the difficult questions about reg-neg. Freeman suggests that the focus for this exploration should not be on agencies, qua agencies,
but rather on the pervasive interdependence that characterizes administrative functioning, its inputs and outputs, and which may be viewed as a set of negotiated
relationships. Where do we look for such content? Analogy is a time-honored method in the law for supplying new content, as it is in literaturea fact that seems
appropriate to note in passing, since the present analysis has, arguably, moved into a realm where there is discernable overlap in these traditions. Accordingly, it may
be appropriate to look beyond administrative law to see if debates about the public interest in other fields could provide helpful guidance.
AT: Legitimacy/Conflict
Negotiated Legislation Restricts Public Opinion- Creates Backlash
Grimes, 01
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

Turnreg negs cause more litigation and are costlierconventional rulemaking solves best
Coglianese 97
Negotiated rulemaking's promise has been an alluring one. Policymakers and scholars have increasingly looked to negotiated rulemaking to
minimize delays and conflict in the regulatory process. In exchange for an up-front investment in the pursuit of consensus early in the rulemaking
process, agencies have been promised attractive dividends, namely shortened rulemaking time and reduced litigation over agency rules.
Advocates have claimed other benefits from negotiated rulemaking, sometimes seeming to offer the potential for creating nearly flawless
regulations if only agencies would affirm decisions reached by interest group representatives. Yet these
other purported
benefits of negotiated rulemakingamong them better information, shared learning, or
heightened feelings of communityhave over the years been side attractions to the main
event, as they do not depend on a quest for consensus. Policymakers and scholars have
focused most of their attention on negotiated rulemaking's potential to reduce litigation
and shorten rulemaking time, benefits that necessarily depend on the successful
maintenance of consensus.
Although this quest for consensus has held out the promise of a faster and less conflictual regulatory
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.
Turnreg-negs increase litigation
Coglianese 01
out of the twelve

A. Avoiding




is
reduce litigation.
Turnreg negs cause more conflict
Coglianese 97
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 agreementwhat 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 doesnt solve litigation
%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 dont cause litigationimpact is
exaggerated
Coglianese 97
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
rate has even been inflated to 85 percent. Amazingly,
the 80 percent
no EPA analyses underlay the origin of
this statistic, even though it has taken on a life of its own. In order to test the validity of the statistic, I collected
data from the EPA's litigation docket as well as from the dockets at the U.S. Court of
Appeals for the District of Columbia Circuit. The EPA dockets included litigation filed against the agency in any
federal court during 1987-1991. During this time, the EPA issued 1568 rules and was named as a defendant in 411 cases in the U.S. Courts of
Appeals, where rule challenges must be filed. The major environmental statutes typically require that petitions for judicial review be filed within
a few months after the EPA promulgates a rule, so most petitions for review of a rule are filed in the year when the rule is published. Some small
portion of suits are not filed in the same year as the rule, but aggregating the entire five-year period minimizes any error due to such a time lag.
The litigation rate for rules issued during the 1987-1991 period covered by the EPA docket, even conservatively calculated, turned out to be much
lower than widely believed:
only 26 percent of rules issued were challenged . In calculating this rate, I have used
what I take to be the most realistic estimate for EPA rules. I have relied on a computer search of the Federal Register which specifically excluded
those rules that were minor corrections, technical amendments, or clarifications of other rules. When other available estimates of the total number
of EPA rules were used, the litigation rate dropped even lower. For instance, using Office of Management and Budget (OMB) data on the number
of final EPA rules promulgated during the same time period, the litigation rate amounted to only 19 percentprecisely the opposite of the rate
widely assumed. As is sometimes acknowledged, the
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 higher35
percentbut still well under the .80 percent rate that scholars have previously cited. More
than previously thought, litigation over EPA rules occurs selectively, if not infrequently. How does EPA's track record for
negotiated rules compare with its track record for rules overall? The National Performance
Review's 20 percent litigation rate was based on an incomplete review of the first ten
negotiated rulemakings finalized by EPA. However, when all twelve of these rules are included, and when a more
complete search of court records is made, the actual litigation rate is much higher. On the basis of my review of records at
the D.C. Circuit Court of Appeals, at least six of EPA's twelve finalized rules developed using
negotiated rulemaking have been subject to petitions for judicial review filed in federal
court . The challenged regulations include those addressing: 1) asbestos in school buildings;
2) the underground injection of hazardous wastes; 3) reformulated fuels; 4) chemical
equipment emissions leaks; 5) wood furniture coatings; and 6) the collection of information
on disinfectant byproducts. I have already discussed the judicial challenges filed against the EPA's reformulated gasoline rule,
challenges which involved both participants in the negotiated rulemaking process, such as the American Petroleum Institute, as well as outsiders
like the National Tank Truck Carriers. The additional challenged reg negs show that a similar set of actors filed petitions for review. Many
petitioners have been participants in the negotiated rulemaking proceedings. However, sometimes the petitioners were not members of the
rulemaking committee, as with the Grand Canyon visibility rule and reformulated gasoline rule. One additional rulethe wood furniture coating
regulationdrew petitions from trade associations that were not represented on the negotiated rulemaking committee. A brief review of these
additional challenges demonstrates the range of petitions filed over negotiated rules. Asbestos in School Buildings. The EPA used negotiated
rulemaking to establish methods for public schools to follow in identifying and mitigating asbestos exposure. After the EPA promulgated its final
rule, the Safe Buildings Alliance (an asbestos industry trade association), two building products manufacturers, and two individuals filed petitions
for review. A third building products company, GAF Corporation, intervened in the case, as did the American Association of School
Administrators and various state attorneys general. Although the Safe Buildings Alliance had signed the limited consensus statement which
concluded the negotiated rulemaking, the industry nevertheless challenged the rationality of EPA's action, specifically objecting to its failure to
define a safe level of asbestos exposure and arguing that its decision to allow the removal of asbestos would raise the level of asbestos fibers in
the air. The arguments were briefed and presented to a panel of the D.C. Circuit Court, which in the end upheld the rule against all the challenges.
Underground Injection of Hazardous Wastes. The EPA's underground injection rule established standards for the use of underground methods
for disposing of and storing hazardous wastes. After EPA completed the rulemaking, five petitions were filed by interests represented in the
negotiated rulemaking, including the waste treatment industry, the chemical industry, and an environmental group. These petitions were
consolidated and three major trade associationsthe American Petroleum Institute, the American Iron and Steel Institute, and the Institute for
Chemical Waste Managementintervened in the case. The chemical industry challenged the rule's permitting process, its application of the
statute's "no migration" standard, and the agency definition of "no migration," which included even the migration of hazardous constituents of
hazardous wastes. The Natural Resources Defense Council and the Hazardous Waste Treatment Council also challenged the EPA's application of
the "no migration" standard, arguing that it should apply to the seepage of hazardous constituents from otherwise non-hazardous waste.
Petitioners also challenged the rule's definition of "injection zone" and its standards for injection into salt domes, underground mines, and caves.
A panel of the D.C. Circuit upheld the rule against all but one of the challenges, remanding the standards for salt domes, mines, and caves for a
finding that these standards satisfied the statutory requirements. Chemical Equipment Leaks. The equipment leaks rule was designed to control
releases of hazardous emissions from valves, flanges, and other connecting points in chemical manufacturing facilities. Through a series of
negotiation sessions, the participating chemical companies and environmental groups reached an agreement on procedures for monitoring leaks.
Before the agency could promulgate the rule, Congress passed amendments to the Clean Air Act and the EPA incorporated the negotiated
agreement into a broader set of national emissions standards for hazardous air pollutants (NESHAP) generated by the chemical industry. The final
rule, known as the Hazardous Organic NESHAP, or HON rule for short, regulated releases from heat exchange systems, wastewater streams,
process vents, and storage vessels, as well as from equipment leaks. The equipment leaks portion of the rule remained largely as the negotiated
rulemaking committee had agreed. Following the promulgation of the final rule, the Chemical Manufacturers Association and Dow Chemical
Company, both of whom were represented in the negotiated rulemaking, filed petitions for review challenging numerous aspects of the HON rule.
Although most of their objections were leveled at aspects of the rule which were not subject to the negotiated rulemaking, they also raised
concerns about certain parts of subpart H, the equipment leaks portion of the final rule. The petitioners and the EPA entered settlement
discussions within a few months and eventually reached an agreement on dozens of changes to the final rule. The agency subsequently
promulgated revisions to subpart H of the rule, including changes to the control options for leaks from compressors, an issue that had been
overlooked by the chemical industry during the negotiations. Wood Furniture Coatings. Like the HON rule, the wood furniture coatings rule
established national emissions standards for hazardous air pollutants. The negotiated rulemaking process brought together representatives from
the wood furniture industry, suppliers of wood coatings, and environmental groups. During these negotiations, environmental representatives
expressed concern that the furniture industry might substitute other potentially hazardous chemicals not specifically covered under the rule. The
parties subsequently agreed to incorporate into the rule a list of other chemicals (not currently used by the wood coatings industry) labeled as "of
potential concern." After EPA promulgated the final rule, three chemical industry trade associations not represented in the negotiations filed
petitions for review challenging the listing of additional chemicals as "of potential concern." As of November, 1996, the EPA was engaged in
settlement discussions with the Chemical Manufacturers Association, the Halogenated Solvents Industry Alliance, and the Society of Plastics
Industry over this issue. Disinfectant Byproducts. The most recently challenged reg neg established monitoring requirements that allow the EPA
to collect data on drinking water quality. To control microbial contamination, water suppliers treat drinking water with disinfectants. Responding
to concerns about the chemical byproducts created when disinfectants react with chemicals already in the water, the EPA convened a negotiated
rulemaking proceeding to develop enhanced standards for microbial and new standards for disinfectant byproducts. The negotiations resulted in
two proposed rules on disinfectant byproducts and water treatment, and a final rule governing the collection of information the agency needs
before finalizing the two proposed rules. Following EPA's promulgation of the information collection rule, the American Water Works
Association (AWWA), a member of the rulemaking committee, reported that it "was surprised and disappointed by some significant provisions of
the regulation." AWWA argued that the EPA established a statistically unreliable monitoring procedure in its final rule which was not included in
the proposed rule. Faced with a limited statutory deadline for filing a petition for judicial review, AWWA filed a petition in the D.C. Circuit Court
challenging the information collection rule. AWWA objected to the time period for water suppliers to complete the required monitoring, as well as
to the specific monitoring tests required under the final rule. After several months of discussions with the EPA, AWWA decided to withdraw its
petition. AWWA reported that some of the issues related to the compliance schedule had been resolved, and that the EPA was inclined to consider
its concerns about the testing procedure. Following the filing of AWWA's petition, for example, EPA's Science Advisory Board's Drinking Water
Committee met to examine the reliability of the new monitoring requirements imposed by the agency. Given the ongoing nature of the EPA's
actions on microbial and disinfectant byproducts, AWWA decided to pursue its "fundamental disagreement" with the EPA outside of court and in
the context of ongoing discussions with the agency and other organizations over the final substantive standards. These ongoing discussions with
participants in the negotiated rulemaking have sometimes engendered disagreement over what the parties actually agreed to in their negotiations
over the substantive (drinking water standards. As
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.
these examples,
In each of
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 cant solve litigationempirics prove
Coglianese 97
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.

Coglianese 01
have grown



Coglianese 01
, EPA has not

initiated any
. The


negotiated



appeals." n186


consensus is
AT: Information Sharing

Negotiations fail unequal levels of expertise stops information sharing
Selmi 5
3. 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, faceto-face technical discussions and meetings among interested parties are very rare. However, in
a regulatory negotiation, lack of expertise becomes a significant hindrance, changing the
dynamic and, as a consequence, the outcome of the negotiation. In short, a party's lack of
expertise can, from its perspective, jeopardize the chances for a successful outcome. The
lack of negotiation resources available to some parties, particularly public interest groups,
has been a significant ground of criticism of negotiated rulemakings. Critics claim that the
imbalance in expertise can affect the outcome and thus taint the legitimacy of the process.
(210) At the least, lack of expertise can prevent full participation of all parties in all issues being negotiated. (211) In a negotiation
centered on technical issues, knowledge is power, and access to expertise is therefore
essential. (212) In the metal plating negotiations, the environmentalists clearly recognized the problem caused by their lack of technical
expertise. They complained about the lack of a "level playing field" as the technical issues took center stage.
AT: Reg neg>Conventional Rulemaking

Reg neg is worse than conventional rulemakingprefer our evidence, Siegler has firsthand
experience in the field
Siegler 97
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 betterthey arent actually and the normal regulations
are better
Coglianese 01
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 better
Coglianese 97
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 rulemakingwith its quest for consensusby 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
Yet since
negotiated rulemaking is characterized by a quest for consensus, we should ask whether
learning depends on that quest. In other words, do we need negotiated rulemaking for
learning to take place? Or can it be equally well achieved with discussion-oriented sessions
that do not seek the achievement of a consensus? To show that learning and information exchange result from a quest
for consensus, we would need to compare negotiated rulemaking with other equally intensive agency workshops. Proceedings that
negotiation consultants like to call "facilitated joint brainstorming," and which agencies
call roundtables, workshops, and "enhanced participatory rulemakings," also aim at
information exchange and learning, but without the quest for consensus. Such proceedings
for consultants and lawyers. With investments as large as these, we should hope that participants are learning something.
may well achieve comparable gains in terms of information exchange without generating
the same level of position-taking as negotiated rulemaking and without raising unrealistic
expectations about what participants will receive from their investment of time.
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 failconventional rulemaking solve better
Coglianese 01
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 deliberationnot the consensusthat 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 alter native 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 decisionsan 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

Turnreg negs cause more conflict
Coglianese 97
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 agreementwhat 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.
Turnreg-negs increase litigation
Coglianese 01
out of the twelve

A. Avoiding



is
reduce litigation.
Turnreg negs cause more litigation and are costlierconventional rulemaking solves best
Coglianese 97
Negotiated rulemaking's promise has been an alluring one. Policymakers and scholars have increasingly looked to negotiated rulemaking to
minimize delays and conflict in the regulatory process. In exchange for an up-front investment in the pursuit of consensus early in the rulemaking
process, agencies have been promised attractive dividends, namely shortened rulemaking time and reduced litigation over agency rules.
Advocates have claimed other benefits from negotiated rulemaking, sometimes seeming to offer the potential for creating nearly flawless
regulations if only agencies would affirm decisions reached by interest group representatives. Yet these
other purported
benefits of negotiated rulemakingamong them better information, shared learning, or
heightened feelings of communityhave over the years been side attractions to the main
event, as they do not depend on a quest for consensus. Policymakers and scholars have
focused most of their attention on negotiated rulemaking's potential to reduce litigation
and shorten rulemaking time, benefits that necessarily depend on the successful
maintenance of consensus.
Although this quest for consensus has held out the promise of a faster and less conflictual regulatory
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 doesnt solve litigation
%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 dont cause litigationimpact is
exaggerated
Coglianese 97
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
rate has even been inflated to 85 percent. Amazingly,
the 80 percent
no EPA analyses underlay the origin of
this statistic, even though it has taken on a life of its own. In order to test the validity of the statistic, I collected
data from the EPA's litigation docket as well as from the dockets at the U.S. Court of
Appeals for the District of Columbia Circuit. The EPA dockets included litigation filed against the agency in any
federal court during 1987-1991. During this time, the EPA issued 1568 rules and was named as a defendant in 411 cases in the U.S. Courts of
Appeals, where rule challenges must be filed. The major environmental statutes typically require that petitions for judicial review be filed within
a few months after the EPA promulgates a rule, so most petitions for review of a rule are filed in the year when the rule is published. Some small
portion of suits are not filed in the same year as the rule, but aggregating the entire five-year period minimizes any error due to such a time lag.
The litigation rate for rules issued during the 1987-1991 period covered by the EPA docket, even conservatively calculated, turned out to be much
lower than widely believed:
only 26 percent of rules issued were challenged . In calculating this rate, I have used
what I take to be the most realistic estimate for EPA rules. I have relied on a computer search of the Federal Register which specifically excluded
those rules that were minor corrections, technical amendments, or clarifications of other rules. When other available estimates of the total number
of EPA rules were used, the litigation rate dropped even lower. For instance, using Office of Management and Budget (OMB) data on the number
of final EPA rules promulgated during the same time period, the litigation rate amounted to only 19 percentprecisely the opposite of the rate
widely assumed. As is sometimes acknowledged, the
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 higher35
percentbut still well under the .80 percent rate that scholars have previously cited. More
than previously thought, litigation over EPA rules occurs selectively, if not infrequently. How does EPA's track record for
negotiated rules compare with its track record for rules overall? The National Performance
Review's 20 percent litigation rate was based on an incomplete review of the first ten
negotiated rulemakings finalized by EPA. However, when all twelve of these rules are included, and when a more
complete search of court records is made, the actual litigation rate is much higher. On the basis of my review of records at
the D.C. Circuit Court of Appeals, at least six of EPA's twelve finalized rules developed using
negotiated rulemaking have been subject to petitions for judicial review filed in federal
court . The challenged regulations include those addressing: 1) asbestos in school buildings;
2) the underground injection of hazardous wastes; 3) reformulated fuels; 4) chemical
equipment emissions leaks; 5) wood furniture coatings; and 6) the collection of information
on disinfectant byproducts. I have already discussed the judicial challenges filed against the EPA's reformulated gasoline rule,
challenges which involved both participants in the negotiated rulemaking process, such as the American Petroleum Institute, as well as outsiders
like the National Tank Truck Carriers. The additional challenged reg negs show that a similar set of actors filed petitions for review. Many
petitioners have been participants in the negotiated rulemaking proceedings. However, sometimes the petitioners were not members of the
rulemaking committee, as with the Grand Canyon visibility rule and reformulated gasoline rule. One additional rulethe wood furniture coating
regulationdrew petitions from trade associations that were not represented on the negotiated rulemaking committee. A brief review of these
additional challenges demonstrates the range of petitions filed over negotiated rules. Asbestos in School Buildings. The EPA used negotiated
rulemaking to establish methods for public schools to follow in identifying and mitigating asbestos exposure. After the EPA promulgated its final
rule, the Safe Buildings Alliance (an asbestos industry trade association), two building products manufacturers, and two individuals filed petitions
for review. A third building products company, GAF Corporation, intervened in the case, as did the American Association of School
Administrators and various state attorneys general. Although the Safe Buildings Alliance had signed the limited consensus statement which
concluded the negotiated rulemaking, the industry nevertheless challenged the rationality of EPA's action, specifically objecting to its failure to
define a safe level of asbestos exposure and arguing that its decision to allow the removal of asbestos would raise the level of asbestos fibers in
the air. The arguments were briefed and presented to a panel of the D.C. Circuit Court, which in the end upheld the rule against all the challenges.
Underground Injection of Hazardous Wastes. The EPA's underground injection rule established standards for the use of underground methods
for disposing of and storing hazardous wastes. After EPA completed the rulemaking, five petitions were filed by interests represented in the
negotiated rulemaking, including the waste treatment industry, the chemical industry, and an environmental group. These petitions were
consolidated and three major trade associationsthe American Petroleum Institute, the American Iron and Steel Institute, and the Institute for
Chemical Waste Managementintervened in the case. The chemical industry challenged the rule's permitting process, its application of the
statute's "no migration" standard, and the agency definition of "no migration," which included even the migration of hazardous constituents of
hazardous wastes. The Natural Resources Defense Council and the Hazardous Waste Treatment Council also challenged the EPA's application of
the "no migration" standard, arguing that it should apply to the seepage of hazardous constituents from otherwise non-hazardous waste.
Petitioners also challenged the rule's definition of "injection zone" and its standards for injection into salt domes, underground mines, and caves.
A panel of the D.C. Circuit upheld the rule against all but one of the challenges, remanding the standards for salt domes, mines, and caves for a
finding that these standards satisfied the statutory requirements. Chemical Equipment Leaks. The equipment leaks rule was designed to control
releases of hazardous emissions from valves, flanges, and other connecting points in chemical manufacturing facilities. Through a series of
negotiation sessions, the participating chemical companies and environmental groups reached an agreement on procedures for monitoring leaks.
Before the agency could promulgate the rule, Congress passed amendments to the Clean Air Act and the EPA incorporated the negotiated
agreement into a broader set of national emissions standards for hazardous air pollutants (NESHAP) generated by the chemical industry. The final
rule, known as the Hazardous Organic NESHAP, or HON rule for short, regulated releases from heat exchange systems, wastewater streams,
process vents, and storage vessels, as well as from equipment leaks. The equipment leaks portion of the rule remained largely as the negotiated
rulemaking committee had agreed. Following the promulgation of the final rule, the Chemical Manufacturers Association and Dow Chemical
Company, both of whom were represented in the negotiated rulemaking, filed petitions for review challenging numerous aspects of the HON rule.
Although most of their objections were leveled at aspects of the rule which were not subject to the negotiated rulemaking, they also raised
concerns about certain parts of subpart H, the equipment leaks portion of the final rule. The petitioners and the EPA entered settlement
discussions within a few months and eventually reached an agreement on dozens of changes to the final rule. The agency subsequently
promulgated revisions to subpart H of the rule, including changes to the control options for leaks from compressors, an issue that had been
overlooked by the chemical industry during the negotiations. Wood Furniture Coatings. Like the HON rule, the wood furniture coatings rule
established national emissions standards for hazardous air pollutants. The negotiated rulemaking process brought together representatives from
the wood furniture industry, suppliers of wood coatings, and environmental groups. During these negotiations, environmental representatives
expressed concern that the furniture industry might substitute other potentially hazardous chemicals not specifically covered under the rule. The
parties subsequently agreed to incorporate into the rule a list of other chemicals (not currently used by the wood coatings industry) labeled as "of
potential concern." After EPA promulgated the final rule, three chemical industry trade associations not represented in the negotiations filed
petitions for review challenging the listing of additional chemicals as "of potential concern." As of November, 1996, the EPA was engaged in
settlement discussions with the Chemical Manufacturers Association, the Halogenated Solvents Industry Alliance, and the Society of Plastics
Industry over this issue. Disinfectant Byproducts. The most recently challenged reg neg established monitoring requirements that allow the EPA
to collect data on drinking water quality. To control microbial contamination, water suppliers treat drinking water with disinfectants. Responding
to concerns about the chemical byproducts created when disinfectants react with chemicals already in the water, the EPA convened a negotiated
rulemaking proceeding to develop enhanced standards for microbial and new standards for disinfectant byproducts. The negotiations resulted in
two proposed rules on disinfectant byproducts and water treatment, and a final rule governing the collection of information the agency needs
before finalizing the two proposed rules. Following EPA's promulgation of the information collection rule, the American Water Works
Association (AWWA), a member of the rulemaking committee, reported that it "was surprised and disappointed by some significant provisions of
the regulation." AWWA argued that the EPA established a statistically unreliable monitoring procedure in its final rule which was not included in
the proposed rule. Faced with a limited statutory deadline for filing a petition for judicial review, AWWA filed a petition in the D.C. Circuit Court
challenging the information collection rule. AWWA objected to the time period for water suppliers to complete the required monitoring, as well as
to the specific monitoring tests required under the final rule. After several months of discussions with the EPA, AWWA decided to withdraw its
petition. AWWA reported that some of the issues related to the compliance schedule had been resolved, and that the EPA was inclined to consider
its concerns about the testing procedure. Following the filing of AWWA's petition, for example, EPA's Science Advisory Board's Drinking Water
Committee met to examine the reliability of the new monitoring requirements imposed by the agency. Given the ongoing nature of the EPA's
actions on microbial and disinfectant byproducts, AWWA decided to pursue its "fundamental disagreement" with the EPA outside of court and in
the context of ongoing discussions with the agency and other organizations over the final substantive standards. These ongoing discussions with
participants in the negotiated rulemaking have sometimes engendered disagreement over what the parties actually agreed to in their negotiations
over the substantive (drinking water standards. As
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.
these examples,
In each of
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 cant solve litigationempirics prove
Coglianese 97
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.

Coglianese 01
have grown




Coglianese 01
, EPA has not

initiated any
. The


negotiated



appeals." n186

consensus is
AT: Politics
Empirics prove the unpopularity of Reg Negs in Congress---2007 Food Amendments
Marchant et al. 11
(Gary Marchant is the Lincoln Professor Emerging Technologies, Law and Ethics at the Sandra Day OConnor College of Law
at Arizona State University. He is also a Professor of Life Sciences at ASU and Executive Director of the ASU Center for the Study of
Law, Science and Technology. Professor Marchant has a a Ph.D. in Genetics from the University of British Columbia, a Masters of Public
Policy degree from the Kennedy School of Government , and a law degree from Harvard. Braden R. Allenby (born 1950) is an American
environmental scientist, environmental attorney and Professor of Civil and Environmental Engineering, and of Law, at Arizona State
University. Allenby graduated from Yale University in 1972, received his Juris Doctor from the University of Virginia Law School, his
Masters in Economics from the University of Virginia, his Masters in Environmental Sciences from Rutgers University, and his Ph.D. in
Environmental Sciences from Rutgers. Joseph R. Herkert is a Lincoln Associate Professor of Ethics and Technology @ for the Arizona
State University School of Applied Arts and Sciences. The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight:
The Pacing Problem (The International Library of Ethics, Law and Technology) Published May 21st 2011 @
http://books.google.com/books?
id=cgViTg_XcgwC&pg=PA173&lpg=PA173&dq=reg+neg+unpopular&source=bl&ots=SYwVfPIenk&sig=k_8qSeUrxbNOz8359JNVuX
8eHIk&hl=en&sa=X&ei=trLNU-z4G_Kf7AbjkoCABQ&ved=0CD4Q6AEwBQ#v=onepage&q=reg%20neg%20unpopular&f=false)
Deng
While negotiated rulemaking is theoretically sound, supported by valid intentions and intuition, the
empirical implementation record of forming rules through negotiation is underwhelming,
even downright disappointing. Forecast as the remedy for an ineffective and sluggish regulatory procedure, negotiated
rulemaking seems to have fallen far short of its expectations . A vivid demonstration of the unpopularity of this tool
is during the 2007 amendments to the Federal Food, Drug and Cosmetic Act, then
Secretary of Health and Human Services Michael Leuvitt wrote to Congress to oppose a proposed
requirement for the FDA to use reg neg on the grounds that reg neg is too "time consuming
and resource intensive" (Cited in Kohick 2010). Notwithstanding the relatively dismal empirical record to dale, it is conceivable that
reg neg could be a potentially useful tool in limited situations (Note 1981). First, for a reg neg to work, all affected interests must be adequately
represented in the negotiation process (Hollcy-Walker 2007). Regulatory issues that involve a large number of affected interests may therefore not
be appropriate candidates for reg neg. Second, not only must all interested parties participate in the negotiations, they must be willing to negotiate
in good faith, so some level of trust and spirit of engagement and cooperation is a necessary prerequisite for meaningful negotiation. Third, the
subject of the reg neg must be ready and appropriate for negotiation, meaning that the subject matter must be sufficiently developed and narrow
enough in scope that the parties can realistically resolve it. For at least some regulatory issues involving rapidly emerging technologies, these
conditions may apply. If these prerequisites for successful negotiation are met. regulatory negotiation may provide an opportunity for agencies to
improve the slow, expensive, and ineffective traditional system of regulation in specific, appropriate contexts. Regulatory negotiation allows for
informed debate, encourages parties to make concessions for the greater good, and provides a forum for stakeholders to advocate for what they
consider to be important provisions, and most importantly, involves them in the decision making process. These aspects of negotiated rulemaking,
when present, can improve the chances that a rule created through collaboration has a higher likelihood of acceptance by the parties that helped
create it.
Reg Negs are unpopular and dont solve--govt agencies dont perceive benefits
McKinney 99
(Matthew J. McKinney received his Ph.D. from the University of Michigan in Natural Resources Policy and Conflict Resolution and is a
member of the Montana Consensus Council. Negotiated Rulemaking: Involving Citizens In Public Decisions. Published Summer 1999,
Print. Accessed http://www.lexisnexis.com.proxy.lib.umich.edu/lnacui2api/results/docview/docview.do?
docLinkInd=true&risb=21_T20294998790&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T20294998794&ci
sb=22_T20294998793&treeMax=true&treeWidth=0&csi=222557&docNo=4) Deng
Reasons For Not Using Negotiated Rulemaking When asked to explain why they have not engaged in a formal negotiated rulemaking process,
the departments replying to the survey offered three primary responses. First, several
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 hackhe ignores empirics
Coglianese 01
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
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
achieved its goals and made any demonstrable improvement over existing regulatory practices."
findings. In Part I, 1 provide a summary of my original research and briefly review some elementary principles of research that apply to any
empirical evaluation. Since negotiated rulemaking has long been advertised as a "cure" for regulatory ills, its effectiveness should be evaluated as
neutrally as any potential cure for illness should be evaluated. The remaining parts of this Article are organized around the three principal
arguments Harter advances. He criticizes the way I measure the length of the rulemaking process, claims that I fail to appreciate differences in
litigation, and suggests that, in any case, my results do not matter since negotiated rulemaking achieves demonstrably better rules than existing
regulatory practices. In Part II, I reply to Mailer's criticisms of my measure of the duration of negotiated rulemakings, explaining in particular
why it is entirely appropriate to include EPA's farmworker protection rule in a study of negotiated rulemaking. In Part III, I show how Harter is
similarly mistaken in his criticisms of my analysis of negotiated rulemaking and litigation. In Part IV, I respond to Harter" s claim that negotiated
rulemaking has resulted in better rules, explaining why there is no more evidence to support this claim than there is to support claims that
the absence of
empirical support for the many years worth of enthusiastic claims made for negotiated
rulemaking, serves only to underscore the conclusion of my original research. The promises made for negotiated
rulemaking remain unfulfilled.
negotiated rulemaking would save time and avoid litigation. The absence of support for Harters criticisms, like
Langbein and Kerwin

Langbein and Kerwins methods are incorrecteven they admit it
Coglianese 01
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 studythe hazardous waste manifest rulemakinghad not resulted in a final rule at the time of then-interviews.225 This is significant
because nineteen respondents in their study came from this one rulemaking, more than from any other rulemaking in their study except the
reformulated gasoline rulemaking which had twenty respondents.22'' As a result, nearly twenty percent of the negotiated rulemaking respondents
(nineteen out of 101. }227 in the Langbein and Kerwin study could not express any meaningful satisfaction with the "eventual outcome (i.e., the
final rule)" because EPA had simply not yet issued any final rule on hazardous waste manifests.22'15 Langbein and Kerwin nevertheless included
responses from the participants in the hazardous waste manifest negotiations in their analysis.229 Putting these concerns to the side, it is
conceivable that an appropriate comparison of participant perceptions of final rules might still result in higher average ratings for negotiated rules
than for conventional rules. However, even if this were so, it
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,
negotiated rules really are more resistant to legal challenge.
this does not mean that
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 roseregardless of the changes made to the work schedule, lighting, methods of pay, and other conditions under study.251 The
workers in the experimental group outperformed everyone else due to the high level of morale they associated with being in an experiment and
because they knew they were being observed.252 Anyone who studies the perceptions of participants in negotiated rulemaking must be mindful
that the Hawthorne effect may play a role be-cause negotiated rulemaking is a novelty in the administrative process and has often been treated as
an experiment.-53 Those serving on a negotiated rulemaking may well be boosted in their morale or satisfaction just from knowing that they are
participating in a special, experimental regulatory process. Philip Harter has himself earlier acknowledged that the
Hawthorne effect
can arise in cases of negotiated rulemaking.-54 A final possible explanation for more favorable perceptions of negotiated
rules stems from the work of social psychologist Tom Tyler and others on procedural justice. The procedural justice literature supports the claim
that how people value process independently of how they value outcomes. Langbein and her coauthors favor this theory, arguing that negotiated
rulemaking fosters increased satisfaction, or a "warm glow/' because participants are treated with respect and have a greater opportunity to
provide their input. Of course, as already suggested, such a "warm glow" may also come in this case from cognitive dissonance, or perhaps from
the Hawthorne effect, rather than from considerations of procedural justice. Indeed, it may well be that cognitive dissonance or the Hawthorne
effect provide the better explanation, if for no other reason than that it is hard to see why negotiated rulemaking should be viewed as more
procedurally legitimate than a full, open rulemaking process. Langbein and Kerwin never asked their respondents to rate the fairness of the
rulemaking processes in which they participated, although they did ask them to rate the extent to which public participation affected agency
policy.-54 As they write in their Phase II report, "'in both eases (of negotiated and conventional rulemaking), public participation is viewed as
open, unbiased, and influential. The two rulemaking processes are seen as equally receptive and responsive to public involvement."-1110 If
Langbein and Kerwin are correct that these two processes are equally responsive. then it would seem that researchers
should look
beyond procedural justice theory for an explanation of the ''warm glow" allegedly fostered
by negotiated rulemaking. No matter which of these three theories best explains the more
favorable ratings that participants might give to their experiences with negotiated
rulemaking, the main point is that such perceptions do not provide a sound basis for
drawing any inferences about the underlying efficacy and efficiency of regulations. Harter
is simply wrong to claim that the results of the Langbein and Kerwin study show that
negotiated rulemaking has succeeded in achieving better rules.
Kerwin and Furlong

Kerwin and Furlong are wrongeven they admit it; their sample pool is too small and regs
are slower
Coglianese 97
the law schools 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 improvement
Selmi 5
V. THE PATH OF THE NEGOTIATION A. The Initial Perspectives 1. The Industry's Perspective The industry's initial position showcased
arguments typically made by business interests. First, the
industry argued it was already stringently regulated ,

entire
negotiation began from a "flawed premise" that more regulation was necessary. (100) The
emphasizing that the District had previously adopted two sets of rules that applied to it. As one industry member asserted, 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.

Negotiated Rulemaking

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Negotiated Rulemaking

Uploaded by

Copyright:

Available Formats

***Negotiated Rulemaking CP***

What is Reg Neg?

reg-neg differs from traditional notice-and-comment rulemaking The traditional

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

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

Sometimes the law itself will specify which interests are to be

<Insert specific solvency advocate or read generic Knaster card>

rather than a tool for decision-

Doesnt link to politicsempirics prove

Congress endorsed use by federal agencies of

Negotiated rules may be

satisfaction could well translate into better long-term

investigate as well whether compliance

Possibly, relationships struck during the negotiated rulemaking make a difference at

3. <Insert specific solvency here> OR Solves betternegotiated rulemaking solves the

public outcry almost certainly must result in some further

the industry thought that any

the principal difficulty involved

the average length of EPAs negotiated rulemakings the time it

fact that the rule had been

Coglianese paints a substantially misleading picture by failing to distinguish substantive

of information legislation is in effect

theory, the negotiation model allows for information gathering where

c. Litigationthe plans regulation process results in litigation and FUNCTIONAL

Ne- gotiated Rulemaking Act of "1990

supplemental process came to be called

Negotiated Rulemaking or "reg-neg."

Negotiated Rulemaking Is Fairer to Regulated Parties than Conventional

while smaller groups did report

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

2NC Perm do the CP

Should means mustits certain

should" is synonymous with ought or must

Certain contexts mandate a construction of the term "should" as more

Reg neg good 2NC AT: no consensus BATNA

Even if negotiations fall through, the plan gets implemented

process of regulatory development is typically top-down. Government initiates, formulates and

Reg neg is better than conventional rulemaking

Reg negs solve betterlegitimacy, regulation quality, and ease of implementation

of regulatory negotiation advocated its use for a variety of reasons, chief

it had evolved, the process encouraged parties

Complex Rules Are More Likely To Be Settled Through Negotiated Rulemaking

rulemaking participants more often admitted to being uninformed of the

neg participants tended to develop

differences in complexity might

association between learning and

of fundamentally changing how petroleum would be refined in the

tradeoff for use of these

use of mediated negotiations remains a viable tool for addressing

benefits of negotiated solutions over those imposed by

has many advantages

time and litigation

a form of representational democracy not explicitly

as resulting in rules that are substantively better and

system of bilateral negotiation

correct balance between regulatory flexibility and accountability ,

data shows reg-neg

satisfaction could well translate into

investigate as well whether compliance

and Langbein conducted

of the resulting rules are more

proven to be an enormously powerful tool in addressing highly complex, politicized rules.

rule making. The strong support

Negotiated Rulemaking CP