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***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 inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state
levels of gov- ernment, but it has applicability at the local level as well. The

Ne- gotiated Rulemaking Act of "1990


provides the basic structure for agencies to design and implement appropriate
processes."7 This practice has been successfully employed in the U.S. with varying
frequency since it was introduced in the early l980s.'" Negotiated rulemaking was seen as a way to deal
with what seemed like a never-ending cycle of regulations being adopted and then
being overturned after years of legal appeals. '9 Instead of being limited to the minimal process required for
promulgating rules with notice, public comment, and publication of a rule that would then be sub- ject to a lawsuit, many agencies
supplemented this required process to get input earlier. This

supplemental process came to be called

Negotiated Rulemaking or "reg-neg."


d. More 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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and
environmental law. Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master
of Laws in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and
Climate Change in the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design,
and a leading thinker on collaborative and contractual approaches to governance. Laura Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from
the University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation
and the Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000.
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf//ghs-kw)

2.

Negotiated Rulemaking Is Fairer to Regulated Parties than Conventional

Rulemaking To test whether reg neg was fairer to regulated parties, Ker-win and Langbein asked respondents whether EPA
solicited their participation and whether they believed anyone was left out of the
process. They also examined how much the parties learned in each process, and whether they experienced resource or information disparities. Negotiated
rule participants were significantly more likely to say that the EPA encouraged their participation than conventional rule
participants (65% versus 33% respectively). Al-though a higher proportion of conventional rulemaking participants reported that a party that should have been
represented in the rulemaking was omitted, the difference is not statistically significant. Specifically, "a majority of both negotiated and conventional rule
participants believed that the parties who should have been involved were involved (66% versus 52% respectively)." In addition, as reported above, participants
in regulatory negotiations reported significantly more learning than their conventional rulemaking counterparts. Indeed, the disparity between the two types of
participants in terms of their reports about learning was one of the study's most striking results. At the same time, the resource disadvantage of poorer, smaller

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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)

The traditional model for rulemaking is that of agency experts deciding the best way to
regulate, offering the public an opportunity to comment on the agency's proposed rule or to
object to its adoption, and then issuing binding rules telling regulated entities what to do.
Even if the agency experts choose wisely, the traditional model has very little buy-in from outside the
agency , which undermines the rule's effectiveness. The traditional process encourages adversarial, uncooperative behavior on the part of
private industry or others who might be affected by an agency's decisions, which frequently leads to protracted litigation. Agencies routinely find
themselves under attack from various private parties who are unhappy with the rule. This has been particularly true in controversial areas such as
environmental regulation or the health and safety of workers.20

Reg neg good 2NC AT: no consensus BATNA


The CP text says the plan is negotiated as the best alternative to a negotiated agreement.
That means that in a world of no consensus, the plan is implemented. This means two
things:
1. 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


Freeman and Langbein 00

(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
On balance, the combined results of Phase I and II of the study suggest that reg neg is superior
to conventional rulemaking on virtually all of the measures that were considered. Strikingly, the process
engenders a significant learning effect, especially compared to conventional rulemaking; participants report, moreover,
that this learning has long-term value not confined to a particular rulemaking. Most significantly, the negotiation of
rules appears to enhance the legitimacy of outcomes. Kerwin and Langbein's data indicate that process matters to
perceptions of legitimacy. n323 Moreover, as we have seen, reg neg participant reports of higher satisfaction could
not be explained by their assessments of the outcome alone. Instead, higher satisfaction seems to arise in part from a
combination of process and substance variables. This suggests a link between procedure and satisfaction, which is
consistent with the mounting evidence in social psychology that "satisfaction is one of the principal consequences of procedural fairness." n324
This potential for procedure to enhance satisfaction may prove especially salutary precisely when participants do not favor outcomes. As Tyler
and Lind have suggested, "hedonic glee" over positive outcomes may "obliterate" procedural effects; perceptions of procedural fairness may
matter more, however, "when outcomes are negative (and) organizations have the greatest need to render decisions more palatable, to blunt
discontent, and to give losers reasons to stay committed to the organization." n325

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


Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Early proponents

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
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
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)
A. Negotiated Rulemaking on Reformulated and Oxygenated Gasoline128 The Clean Air Act Amendments of 1990 required
the Environmental Protection Agency (EPA) to promulgate complicated gasoline regulations within one year.129 The provisions of the Act
included mandates to certify reformulated gasoline and make it available for sale by 1995 in the nine U.S. cities that had the worst air
pollution.130 The regulations would have to address reduction in emission of toxic and ozone producing chemicals, and establish procedures for
ensuring that the gasoline sold elsewhere would not worsen air quality elsewhere.131 In addition, the amendments required changes to the
oxygen formula of gasoline delivered to several cities in the country that were in nonattainment for carbon monoxide.132 The

debate
over the amendments had been contentious and the EPA anticipated that developing
regulations would be equally difficult. They decided to propose engaging the stakeholders
in a reg neg even though the process would be time consuming, in order to provide the EPA with the
expertise, experience, and practical insight that would be required to weigh and balance
all of the competing interests and complex issues

of fundamentally changing how petroleum would be refined in the

United States.133 Although the negotiations would focus on micrograms of pollutants, all of the participants recognized that the

economic
stakes would be calculated in the billions of dollars. There were close to one hundred separate
organizations that had an interest in these negotiations.134 The Negotiating Rulemaking Act suggests that negotiating
committees be limited to twenty-five.135 Based on the recommendations of the co-mediators/conveners, the committee was expanded to 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
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)
The first draft of this article began with the premise that one of the key elements necessary for achieving a 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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
In this article, we present an original analysis and summary of new empirical evidence from Neil Kerwin and Laura Langbein's two-phase study
of Environmental Protection Agency (EPA) negotiated rulemakings. n5 Their qualitative and (*62) quantitative data reveal more about reg neg
than any empirical study to date; although not published in a law review article until now, they unquestionably bear upon the ongoing debate
among legal scholars over the desirability of negotiating rules. Most importantly, this is the first study to compare participant attitudes toward
negotiated rulemaking with attitudes toward conventional rulemaking. The findings of the studies tend, on balance, to undermine arguments made
by the critics of regulatory negotiation and to bolster the claims of proponents. Kerwin and Langbein found that, according to participants in the
study, reg

neg generates more learning, better quality rules, and higher satisfaction compared
to conventional rulemaking. n6 At the same time, stakeholder influence on the agency
remains about the same using either approach. n7 Based on the results, we recommend
more frequent use of regulatory negotiation, accompanied by further comparative and
empirical study, for the purposes of establishing regulatory standards and resolving
implementation and compliance issues. This recommendation contradicts the prevailing
view that the process is best used sparingly, n8 and even then, only for narrow questions of
implementation. n9
Reg negs solve better
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
The Primary Objective of Negotiated Rulemaking Is To Create Better and More Widely Accepted Rules. Coglianese argues throughout his article
that the primary benefits of negotiated rules were seen by its advocates as being the reduction in time and in the incidence of litigation.93 While,
both benefits have been realized, neither was seen by those who established it as the predominant factor in its use. For example, Peter Schuck
wrote an important early article in which he described the

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
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.

Cost
Reg negs are more cost effective
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)

Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin

and Langbein conducted


a study of negotiated rulemaking by examining what actually occurs in a reg neg versus the development of rules by
conventional means. To establish the requisite comparison, they collected data on litigation, data from the comments on proposed rules, and data
from systematic, open-ended interviews with participants in 8 negotiated rules . . . and in 6 comparable conventional rules.104 They
interviewed 51 participants of conventional rulemaking and 101 from various negotiated rulemaking committees.105 Kerwin

and
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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)

Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin

and Langbein conducted

a study of negotiated rulemaking by examining what actually occurs in a reg neg versus the development of rules by
conventional means. To establish the requisite comparison, they collected data on litigation, data from the comments on proposed rules, and data
from systematic, open-ended interviews with participants in 8 negotiated rules . . . and in 6 comparable conventional rules.104 They
interviewed 51 participants of conventional rulemaking and 101 from various negotiated rulemaking committees.105 Kerwin

and
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 neg is bettersolves faster
Harter 99
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Properly understood, therefore,

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 non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system

Cooperation fosters trust and prevents 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


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/)

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


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/)

Consensus decision rules used in reg neg are thought to engender two different effects: while they raise conflict and cost
during the decision-making process itself,256 they increase satisfaction once the parties reach agreement. This
view presupposes that conventional rulemaking involves no informal consensual decision making, a presupposition contradicted by the study. In
fact, conventional rulemaking participants reported informal contact with both EPA and other parties. One-quarter of conventional rule
participants reported that they engaged in informal negotiations.257 Despite this evidence of informal contact, the data suggest that

negotiated rulemaking achieved a higher level of consensus among participants. When asked what
constituted a consensus, 90% of reg neg participants responded either unanimity or what we could
all live with,258 both consistent with a consensual process. By contrast, 45% of conventional participants
responded what EPA wanted ; no reg neg respondents defined consensus in this
manner. 259 What EPA wanted does not describe a consensual process. When the more
consensual reg neg process was used, respondents reported greater satisfaction both with
the process and with the net benefits of the final rule to their organization.260 Moreover, the standard
deviation of judgments was smaller under reg neg.261 These results support the theory that relatively more consensual

decision rules lead to greater satisfaction with outcomes, greater homogeneity in judgments about those
outcomes, and less conflict.
The process is equal and fair
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
On balance, the combined results of Phase I and II of the study suggest that reg

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)

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
(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, 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
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
2. The Effective Exchange of Information The metal plating negotiations support the conclusion that negotiation

can produce a
heightened level of information exchange. The efforts of the parties to meaningfully exchange information far exceeded
the norm in a notice and comment rulemaking, (191) and the data exchange was substantial. (192) Furthermore, the flexibility
provided by the negotiation format allowed the initiation of processes for compiling
additional information that would not take place in notice and comment rulemaking . For
example, the parties to the metal finishing negotiation sent a number of specific information requests to the District staff. The parties also
exchanged informal requests for information about the underlying basis of their respective positions. Most of the data requests were sent by the
industry to the District staff, and the staff responded, although sometimes not as quickly as industry would have liked. (193) Indeed, the burden
on the staff was significant. (194) The District staff manager who led the negotiating team stated that the District had "never done this level of
policy analysis in a particular rule" (195) and estimated that the negotiation process took fifty percent longer to complete than the "normal" notice
and comment rulemaking. (196) Most importantly, the

information compiled played a significant role in

fashioning the final rule. One example of the effectiveness of the data exchange was the resolution of a dispute over emission
factors used to estimate the risk from chromic acid emissions. To estimate that risk, emissions from plating tanks must first be calculated. This
calculation requires multiplying an emission factor (milligrams per ampere-hour) by actual or estimated activity data for a tank (ampere-hours per
year). The resulting figure is then converted to mass emissions in pounds per year. (197) The emission factor used in this calculation is either
based on actual test data, or is assumed where that data is not available. (198) One recurring industry complaint was that the District had used one
set of emission factors during the calculation of the District rule in place prior to the negotiated rulemaking, but it used another set of emission
factors for compliance purposes. (199) To resolve this complaint, the parties to the negotiation attempted to find common technical ground on the
emission factor to be used. At the outset of the rule development process, the uncontrolled emission factor was assumed to be 5.2 mg/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 inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of
gov- ernment, but it has applicability at the local level as well. The

Ne- gotiated Rulemaking Act of "1990 provides


the basic structure for agencies to design and implement appropriate processes."7 This
practice has been successfully employed in the U.S. with varying frequency since it was introduced in
the early l980s.'" Negotiated rulemaking was seen as a way to deal with what seemed like a
never-ending cycle of regulations being adopted and then being overturned after years of
legal appeals.'9 Instead of being limited to the minimal process required for promulgating rules with notice, public comment, and
publication of a rule that would then be sub- ject to a lawsuit, many agencies supplemented this required process to get input earlier. This
supplemental process can1e to be called Negotiated Rulemaking or "reg-neg." Negotiated
rulemaking brings interested parties around the ta- ble early on, before the rule has been drafted and before
the re- quired regulatory approval process is triggered, to see if the affected parties can reach agreement. By setting
up a negotiating forum before drafting the rule, the agency can engage those who are most likely to be
affected by (and most likely to challenge) a rule. The nature of this negotiation is drastically different than the nature
of the formal rule making process because the parties have an opportunity to talk to each other instead of directing all com- ments through the
agency.

They can share information about what is important to them and what is not. They
are free to collectively explore and evaluate different regulatory possibilities. If all the
parties can reach agreement, then the text of their rule becomes the proposed rule that is
then subject to the required regulatory process. The benefits of reg-neg include greater
access to key informa- tion, ability to rank and trade off interests to maximize value, and
opportunities to interact with and educate other stakeholders and bureaucrats."' The
regulatory negotiation process also facilitates more informed, workable, and pragmatic
rules than traditional rulemaking provides."' Other studies have identified the follow- ing benefits: more
interaction builds relationships and increases commitment to a successful result, reg-neg is
a powerful vehicle for learning, and a majority of participants consider their contributions
to have major or moderate impact on the outcome"? For exam- ple, reg-negs were effective in negotiating permit
modifications under the Resource Conservation Recovery Act ("RCRA"), set- ting emissions standards for wood stoves, and implementing underground injection controls."-3 Parties involved in the permit modifications under RCRA felt as though they would not have been able to reach the
consensus that they did with the conven- tional approach to EPA rulemakingf" The

parties considered the open access to


information as one of the strengths of using reg-neg. That same open access to information can be used in wind
siting negotiations. All parties involved would have the opportunity to express their opinions and why those opinions are important. Negotiated
rulemaking is certainly not appropriate for all situ- ations. When deciding appropriateness, factors taken into consid- eration should also include
the opportunity for trade-offs among parties, the level of conict, and the importance of gathering infor- mation from affected parties, among
others. As described further in the next section, reg-neg can be helpful to develop policy on model ordinances, required lease provisions,
compensation mecha- nisms, and decommissioning.

Regulation Quality
Reg negs result in better rules
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Early proponents

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 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 non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system

Rollback
SQ rulemaking risks rollback from unpopularity and court challenges---Reg Neg solves
best
NPS 2
(The National Park Service is an agency of the United States federal government that manages all U.S. national parks, many American
national monuments, and other conservation and historical properties with various title designations. It carries out its responsibilities in
parks and programs under the authority of federal laws, regulations, and Executive Orders, and in accord with policies and Director's
Orders established by the Director of the National Park Service and the Secretary of the Interior. NEGOTIATED RULEMAKING
Published October 23rd 2002 @ http://www.nps.gov/fiis/parkmgmt/upload/RegNeg_Process_6-20-2002.pdf) Deng
The idea of negotiated rulemaking, or reg-neg for short, is simple. In some cases, it is valuable to bring together representatives of a rulemaking
agency and stakeholders to jointly prepare the text of a proposed rule in a consensus seeking negotiation before the agency formally submits the

Traditionally rulemaking
processes often do not have the agency making the rules include stakeholders in an effective
and meaningful way early in the process of rulemaking. Agencies may draft the comments
in-house with little or no public consultation. Public hearings and meetings held to gather
comments on draft regulations typically do not encourage detailed, sophisticated, and ongoing dialogue about the issues that results in broad consensus. Consequently, traditional
rulemaking processes can produce rules that are difficult to understand, difficult to
implement, and difficult to enforce. Traditional rulemaking may result in rules that do not
have broad support from the citizens and organizations concerned with the issues and are
rule to the formal rulemaking process. Reg-Negs versus More Conventional Approaches to Rulemaking

later challenged in court . Re-negs allow the agency and stakeholders who care about the
resources under regulation to work closely to together to design rules that carefully balance
the interests of diverse parties. Together, agencies and stakeholders jointly frame issues, surface underlying assumptions,
explore interests, consider options for how the rules might be structured, and package overall rules that take into account diverse parties concerns
and interests. At its best, negotiated

rulemaking increases citizen participation, results in more


creative solutions, shortens the ultimate length of time necessary to produce a rule, eases
implementation, increases compliance, and reduce future conflict and litigation.
Reg Neg solves best---faster implementation, no risk of rollback, more agency cooperation,
and better 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 non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known dissent from this view was expressed by Judge Patricia Wald. Judge
Wald argues that an appellate court has an "independent obligation to insure that the agency is not thwarting Con-gressional intent, regardless of how many parties
agree with the agency's rule." n298 Accordingly, the "interest test" should not intrude into (*94) the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests. Echoing some of Professor Funk's concerns, Judge Wald argues that,
as only a limited num-ber of groups can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court should apply the same scope
of review and criteria of legality to every rule, regardless of whether it is the product of negotiation consensus or traditional notice-and-comment rulemaking. This
appears to be the current law. In conclusion, negotiated rulemaking shows promise as an agency tool when used appropriately. It is most useful when the stakeholders
agree that negotiated rulemaking is their best option and feel that there is something to gain; when the number of parties is fairly small, and they are readily
identifiable; when the proposed rule is controversial; when the stakeholders are all eager to have the issue resolved; when tradeoffs are possible; when there is no easy
"objective" solution; and when whatever consensus may be reached will be easy to implement. Experience indicates that negotiated rulemaking has a use-ful yet
limited role. This experience confirms that the European approach to environmental contracting cannot be transplanted to the United States, and that the negotiated
rulemaking hybrid can make only a limited contribution to improvement of the command environmental regulatory system

Reg neg solves rollback


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 inter- est groups negotiate the terms of a proposed administrative rule!" Historically, it has been used at the federal and state levels of
gov- ernment, but it has applicability at the local level as well. The

Ne- gotiated Rulemaking Act of "1990 provides


the basic structure for agencies to design and implement appropriate processes."7 This
practice has been successfully employed in the U.S. with varying frequency since it was introduced in
the early l980s.'" Negotiated rulemaking was seen as a way to deal with what seemed like a
never-ending cycle of regulations being adopted and then being overturned after years of
legal appeals. '9 Instead of being limited to the minimal process required for promulgating rules with notice, public comment, and
publication of a rule that would then be sub- ject to a lawsuit, many agencies supplemented this required process to get input earlier. This
supplemental process can1e to be called Negotiated Rulemaking or "reg-neg."
Collaboration solves - increases innovation while preventing litigation and rollback through
litigation
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
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


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)
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
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)

Why use negotiated rulemaking? What are the implications for policy reform, the implementation of policy changes, and
conflict between stakeholders and government? First, the process generates an environment for dialogue that
facilitates the reality testing of regulations before they are implemented. It enables policy
reforms to be discussed in an open forum by stakeholders and for tradeoffs to be made that
expedite compliance among those who are directly impacted by the reforms. Second,
negotiated rulemaking is a process of empowerment . It encourages the participation and
enfranchisement of parties that have a stake in reform. It provides voice to interests,
concerns and priorities that otherwise might not be heard or considered in devising new
policy. Third, it is a process that promotes creative but pragmatic solutions . By encouraging a
holistic examination of the policy area, negotiated rulemaking asks the participants to
assess the multiple issues and subissues involved, set priorities among them, and make
compromises. Such rethinking often yields novel and unorthodox answers. Fourth, negotiated
rulemaking offers an efficient mechanism for policy implementation . Experience shows
that it results in earlier implementation; higher compliance rates; reduced time, money and
effort spent on enforcement; increased cooperation between the regulator and regulated
parties; and reduced litigation over the regulations. Regulatory negotiations can yield both
better solutions and more efficient compliance.
Reg Neg empirically solves -- more efficient and effective than the plan
Spector 99 (Bertram I., the Executive Director of the Center for Negotiation Analysis and Technical
Director of Management Systems International, where he leads the anticorruption and governance
practice area, "Negotiated Rulemaking: A Participative Approach to Consensus-Building for Regulatory
Development and Implementation", May 1999, http://www.negotiations.org/Tn-10%20-%20Negotiated
%20Rulemaking.pdf)
Conclusions Negotiated

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
(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 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
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)

Federal and international dispute resolution process models. There are also models in U.S. and
Canadian legislation supporting the use of consensus-based processes. These processes have
been successfully applied to resolve dozens of disputes that involved multiple stakeholder
interests, on technically and politically complex environmental and public policy issues. For
example, the Negotiated Rulemaking Act of 1990 was enacted by Congress to formalize a process for negotiating contentious
new regulations.118 The Act provides a process called reg neg by which representatives of interest groups
that could be substantially affected by the provisions of a regulation, and agency staff
negotiate the provisions.119 The meetings are open to the public; however, the process does enable
negotiators to hold private interest group caucuses. If a consensus is reached on the provisions of the rule, the
Agency commits to publish the consensus rule in the Federal Register for public
comment.120 The participants in the reg neg agree that as long as the final regulation is
consistent with what they have jointly recommended, they will not challenge it in court. The
assumption is that parties will support a product that they negotiated.121 Reg neg has been utilized
by numerous federal agencies to negotiate rules pertaining to a diverse range of topics
including safe drinking water, fugitive gasoline emissions, eligibility for educational loans,
and passenger safety .122 In 1991, in Canada, an initiative was launched by the National Task Force on Consensus and
Sustainability to develop a guidance document that would govern how federal, provincial, and municipal governments would address resource
management disputes. The document that was negotiated, Building Consensus for a Sustainable Future: Guiding Principles, was adopted by
consensus in 1994.123 The document outlined principles for building a consensus and process steps. The ten principles included provisions
regarding inclusivity of the process (this was particularly important in Canada with respect to inclusion of Aboriginal peoples), voluntary
participation, accountability to constituencies, respect for diverse interests, and commitment to any agreement adopted.124 The

consensus principles were subsequently utilized to resolve disputes over issues that included
sustainable forest management, siting of solid waste facilities, impacts of pulp mill
expansion, and economic diversification based on sustainable wildlife resources .125 The reg
neg and Consensus for Sustainable Future model represent codified mediated negotiation processes that
have withstood the test of legal challenge and have been strongly endorsed by the groups
that have participated in these processes.

Negotiated Rule making solves economic, environmental, and pragmatic focus along with
regulation modeling and spill over
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//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 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.
Collaborative Processes are successful and use multiple mechanisms empirics prove
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
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
(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)
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
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
VI. COLLABORATION AMONG FEDERAL AGENCIES In

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
(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
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
(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
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
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)
Implementing regulations and guidance documents. At the state level, mediation

would be particularly effective in the


negotiation of implementing regulations. A reg neg type process would address the shape of the
table, facilitate dialogue on complex scientific and technical issues, and hopefully avoid costly
political wrangling and litigation. A package of measures could be crafted establishing specific
formulas, alternatives for compliance, incentives and enforcement parameter. A negotiations
process might also consider how to balance competing environmental considerations that
characterize many of the alternative energy innovations . Is there a threshold for a project that would achieve a
significant reduction in GHGs and also allow an exception to potentially conflicting statutes? Development of a cap and trade policy would
also be well suited for a negotiated rulemaking that could accommodate multiple interests and achieve a tradeoff balance.

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


Diamond 11
(Michael, Ohio State University College of Law, Ohio State Journal on Dispute Resolution,
Energized Negotiations: Mediated Disputes over the Siting of Interstate Electric Transmission
Lines, Lexis)

A Department of Energy-commissioned study of the national electric grid described the


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

widespread push for increased accountability and public participation

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


involved in decisions relating to their property and communities. n228 Using eminent domain only as the last resort, and attempting
to first engage the public in participatory planning, often avoids the need for condemnation, and lends it legitimacy when it does occur.
n229Literature

suggests that this "legitimacy benefit" already occurs when applied


to regulatory negotiations under the Environmental Protection Agency. n230 Here,
empirical studies have found that public participation reduces conflict and yields
increased satisfaction from participants in both the procedure and results of
collaborative rulemaking. n231

Public unpopularity blocks 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
(Alana Knaster is the Deputy Director of the Resource Management Agency. She was Senior Executive in the Monterey County Planning
Department for five years with responsibility for planning, building, and code enforcement programs. Prior to joining Monterey County,
Alana was the President of the Mediation Institute, a national non-profit firm specializing in the resolution of complex land use planning
and environmental disputes. Many of the disputes that she successfully mediated, involved dozens of stakeholder groups including
government agencies, major corporations and public interest groups. She served in that capacity for 15 years. Alana was Mayor of the
City of Hidden Hills, California from 1981-88 and represented her City on a number of regional planning agencies and commissions. She
also has been on the faculty of Pepperdine University Law School since 1989, teaching courses in environmental and public policy
mediation. Knaster, A. Resolvnig Conflicts Over Climate Change Solutions: Making the Case for Mediation, Pepperdine Dispute
Resolution Law Journal, Vol 10, No 3, 2010. 465-501. http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Knaster
%20Article.pdf//ghs-kw)

Mediation has been utilized in the resolution of multi-party complex public disputes for
over thirty-five years at all government levels.48 Diverse stakeholder groups participate in a
structured process facilitated by a neutral mediator to address their conflicting viewpoints on issues or on a project with the goal of reaching a
consensus on an agreement. A carefully

structured mediation process is able to accommodate dozens


of individual groups utilizing designated representatives, spokespersons, and technical
workgroups. While there may be seventy-five individual stakeholder groups represented, the number of negotiators may be limited to
twenty-five. Reaching a consensus implies that there will be compromise, while the needs of the
individual parties have been substantially met.49 Although reaching 100% agreement is a difficult and time
consuming goal to attain, participants have indicated that the durability of these agreements has
outweighed the cost and effort.50 Nevertheless, mediated negotiations have successfully resolved
disputes over extremely controversial and complex public policy issues including
standards for pollution control, ecosystem restoration, and economic revitalization of
distressed communities. Faced with strict deadlines and onerous requirements, many
leaders who are also strong advocates of public involvement are questioning the practicality
of initiating consensus processes to address initiatives, especially if these efforts could be
forestalled by extreme groups on either side of the negotiations table.51 In some instances, government
leaders and dispute resolution professionals who are considering mediated negotiations are suggesting that consensus be redefined as acceptance
by a super majority.52 The discussion below focuses on how

mediated negotiations can be employed to


effectively resolve the disputes that are likely to arise at the state, regional, and local levels in the climate change
arena. Several examples of the use of mediation at different levels of government are provided
to demonstrate the effectiveness of mediation in resolving complex disputes and to provide
an institutional framework that can be applied in a variety of contexts.
Negotiations key to avoid delays and the tragedy of the commons
Hsu 02
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962//ky)
III. Why We Are Stuck With Regulatory Negotiations and What We Can Do About It Daniel Farber has noted a persistent and widespread
diversion between what is mandated by environmental law and what actually occurs.38 Missed

deadlines, failure to adhere

to mandated standards, and noncompliance by regulated parties are examples of "negative


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

reason that regulatory agencies created positive


slippage in the form of reinvention projects is because they are faced with either impossible
enforcement problems or impossible political obstacles to carrying out their mandates, both
of which create pressure for negative slippage. That is to say, positive slippage is a way of building in some flexibility
into statutes that otherwise suffer from negative slippage or worse yet, suffer significant legislative or judicial weakening. For example, Habitat
Conservation Planning under the Endangered Species Act, as an example of positive slippage, is a Fish and Wildlife Service attempt to address
negative slippage stemming from two realities faced by the Service: (1) that strict enforcement of the Act would bring down a firestorm of
political protest from Westerners,40 and (2) that the Service lacks the resources and the political will to vigilantly enforce the Endangered Species
Act anyway. 41 As well, Habitat Conservation Planning is a mechanism for building in some flexibility into Endangered Species Act regulation.
Differences in habitat quality, landowner resources, and economic factors (which are not supposed to play a significant role in ESA regulation42),
have caused the Service to at least seek out flexibility, whether the ESA allows it or not. Similarly, Project XL, developed in 1995 while the
Clinton Administration was busy fending off legislative proposals to weaken several pollution control statutes, was developed to build flexibility
into statutory mandates that even EPA found to be frustrating at times.43 New Source Review standards,44 which apply to all new stationary
sources of air pollution (and whnich have often been targeted for repeal or amendment), have been relaxed in several Project XL proposals.45 40
The Endangered Species Act was in danger of fairly dramatic reform, when an unlikely ally emerged: then-House speaker Newt Gingrich. In an
unusual meeting that included the Speaker and noted ecologists including Edward O. Wilson, Gingrich assured the scientists that the a draconian
amendment of the ESA would not reach the floor as long as he was speaker. He kept his promise, as a bill sponsored by House Resource Chair
Don Young and Rep. Richard Pombo that effectively neutered the ESA sailed through Young's committee by a vote of 27-17, only to meet
Gingrich's refusal to bring it up on the House floor. Michael J. Bean, "The Gingrich That Saved the ESA," Environmental Forum, Jan/Feb. 1999,
p.26. Suffice it say, however, numerous sweeping reforms to several environmental laws have been proposed since 1994, and Congess has flirted
with passage of several of them. Is it desirable to avoid either negative or positive slippage? A strong argument can be made that both kinds of
slippage provide some much-needed flexibility in a system of environmental laws that fail to address the complexities of individual cases. If, as
John Dwyer argues, environmental laws are really unrealistic manifestos that politicians have created to satisfy environmentally-minded
constituents,46 then negative slippage may be a necessary lubricant for making imperfect environmental laws work as best they can. Positive
slippage, as well, can effect minor, common sense amendments to environmental laws that should gain easy passage in Congress, but meet with
failure in a partisan and gridlocked Congress. Some commentators have noted that reinvention is part of a larger paradigm shift in the way
regulatory agencies govern, resulting from a Congressional failure to address statutory shortcomings.47 In that sense, reinvention reflects the
reality that the traditional regulatory regime was failing in its overly centralized approach to regulation, and to the extent that reinvention provides
for additional regulatory flexibility, it represents a further evolution of our administrative state.48 There are reasons to be optimistic about what
regulatory negotiations can produce in even a troubled administrative state. Jody Freeman noted that one important finding from the Kerwin and
Langbein studies were that parties involved in negotiated rulemaking were able to use the face-to-face contact as a learning experience.49 Barton
Thompson has noted in his article on discouraging the construction of new and generally cleaner facilities, and encourages firms to maintain their
old, less efficient, and generally dirtier facilities. common-pool resources problems50

that one reason that resource users


resist collective action solutions is that it is evidently human nature to blame others for the
existence of resource shortages. That in turn leads to an extreme reluctance by resource
users to agree to a collective action solution if it involves even the most minimal personal
sacrifices. Thompson suggests that the one hope for curing resource users of such self-serving myopia is face-to-face contact and the
exchange of views. The vitriol surrounding some environmental regulatory issues suggests that there is a similar human reaction occurring with
respect to some resource conflicts.51

Solutions to environmental problems and resource conflicts on


which regulated parties and environmental organizations hold such strong and disparate
views may require face-to-face contact to defuse some of the tension and remove some of
the demonization that has arisen in the these conflicts. Reinvention, with the emphasis on negotiations and 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
Negotiated Rule making solves economic, environmental, and pragmatic focus along with
regulation modeling and spill over
Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
C. The Path to Consensus 1. The Factors Promoting Compromise As outlined above, the initial differences between the environmentalists and the
industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions,
particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about
the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions. In contrast, the plating industry
rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient
and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions
offered by the environmentalists bore little relation to reality. At the beginning of the negotiations, these

positions clashed in
such a fundamental way that reaching a consensus appeared very unlikely. It took some
time for the parties, and the industry in particular, to feel that a true negotiation was
occurring. (130) However, a number of forces were at work that suggested the existence of
underlying flexibilities in the parties' positions not immediately apparent from the parties'
public statements. While the industry publicly opposed further regulation, (131) many of
its representatives privately concluded that some form of further regulation was
inevitable . (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large
amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost
certainly must result in some further regulatory response by the District. (133) This conclusion
motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the
industry viewed the District's decision to conduct negotiations on a "parallel" track with
its rulemaking process as a validation of its conclusion regarding the likelihood of more
stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its
interests. A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like
the District, was also likely to adopt some additional form of regulation. Faced with this probability,

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.

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
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
C. Agreements Agreement

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
(Shi-Ling Hsu is the Larson Professor of Law at the Florida State University College of Law. Professor Hsu has a B.S. in Electrical
Engineering from Columbia University, and a J.D. from Columbia Law School. He also has an M.S. in Ecology and a Ph.D. in
Agricultural and Resource Economics, both from the University of California, Davis. Professor Hsu has taught in the areas of
environmental and natural resource law, law and economics, quantitative methods, and property. Prior to his current appointment,
Professor Hsu was a Professor of Law and Associate Dean for Special Projects at the University Of British Columbia Faculty Of Law. He
has also served as an Associate Professor at the George Washington University Law School, a Senior Attorney and Economist for the
Environmental Law Institute in Washington D.C, and a Deputy City Attorney for the City and County of San Francisco. A Game
Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis, Harvard Environmental Law Review, Vol 26, No
2, February2002. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282962/)
Finally, EPA created an office to facilitate the redevelopment of "brownfields," or lands that in some way suffer from the taint of contamination
by hazardous substances, and therefore remain undeveloped because of the fear of CERCLA liability.7 Where hazardous substance contamination
is concerned, the taint need not have any legal recognition in order to effectively preclude any development -- the mere threat of liability is
enough to scare away potential developers. The wastefulness of idling such a large amount of land 8 was the impetus for finding ways to
encourage development of contaminated or potentially contaminated land. Tax breaks, liability relief, and other incentives

aimed at defraying the cost of cleanup have been proposed as incentives to stimulate the
redevelopment of such properties. While the Clinton Administration readily took credit for reinvention, the roots of reinvention were sown
in the early 1980s, when negotiated rulemaking became a widely accepted agency practice.9 Negotiated rulemaking is a frontend add-on to a regulatory rulemaking that seeks to head off possible objections to regulations by
including affected stakeholders in the development of the rule. The Negotiated Rulemaking Act of
1990,10 which solidified agency authority to engage in negotiated rulemaking, authorizes agencies to assemble a
"negotiated rulemaking committee," a panel of stakeholders to discuss and negotiate the development of a rule, and to use
the discussions as a guideline for the actual rule proposed by the agency. The agency must still proceed with
typical rulemaking procedures, such as providing for notice of the proposed and actual rules in the Federal Register,11 in addition to providing
notice of the intention to establish a negotiated rulemaking committee.12 Although such preliminary discussions have no binding effect upon the
agency, proponents argue that rules developed with the participation of regulated parties enjoy greater

"legitimacy" in their eyes than rules developed without their input, and are thus less likely to be
challenged judicially and more likely to enjoy high compliance rates .13 Also, proponents of negotiated rulemaking
argue that the traditional rulemaking process discourages the sharing of information and encourages
regulated parties to assume extreme positions to prepare for a judicial challenge .14 Negotiated
rulemaking, it is argued, represents a retreat from this traditionally adversarial mode of
rulemaking, and hence ameliorates these counter-productive tendencies.

Marine Energy
Stakeholder involvement is specifically key to marine renewablesCP generates
experience to create social acceptability
MERiFIC 13
(Marine Energy in Far Peripheral and Island Communities Project. It is a government project in Europe. The MERiFIC project seeks to
advance the adoption of marine energy across the two regions of Cornwall and Finistre and the island communities of le Parc Naturel
Marin dIroise and the Isles of Scilly. Project partners will work together to identify the specific opportunities and issues faced by
peripheral and island communities in exploiting marine renewable energy resources with the aim of developing tool kits and resources
for use by other similar communities. The project will develop and deliver joint activities between the two regions, looking at issues such
as Marine energy resource assessment/mapping; Policy issues and potential barriers to marine energy development; Business and
commercial opportunities for island/mainland communities; Island/mainland interaction on appropriate infrastructure and Community
and stakeholder engagement with key groups (e.g. fishing, wave farm developers, and investors). MERiFIC, Civil society involvement
and social acceptability of marine energy projects: Best practices of the marine energy sector, February 2013.
http://www.merific.eu/files/2011/08/MERiFIC-6.1.2-Civil-society-involvement.pdf//ghs-kw)

Although marine energy technologies have been identified as energy sources with potentia l
at European level, their development is, among other reasons, conditioned upon their social acceptability.
Social acceptability is important at three levels or dimensions: namely Public or Sociopolitical acceptance, Market acceptance and Community Acceptance (Wstenhagen et al., 2007). At
this stage it is at Community Acceptance, at each individual project level that the need is
more critical. Renewable marine energy, with the exception of offshore wind turbines are not mature
technologies, and there is limited sector experience in managing the challenges of social
acceptability . That said, and despite some limitations such as their current limited scale or early stages of conception, some key
lessons can be identified, complemented by the more advanced offshore wind experience.
Social acceptability of a given project is the result of a shared effort between developers
and stakeholders to set the ideal conditions for integrating the project within its
environmental and human context (ENEA, 2012). The key conditions that contribute to
reaching social acceptability at community /project leve are: Common knowledge base
Sense of ownership Direct benefits Actual ownership through shareholding (this is not
a pre-condition but favours acceptability) From an operational perspective, and in preparation to the development of the toolbox16 , lessons
on good practice can be synthesised into overall principles, actions (Preparatory work and engagement
activities) and support measures. The main points are presented in the Figure 5 below. Overall principles: - Be open and start early Go beyond minimal regulatory requirements - Embed the project in an legitimate local sustainable development plan following the priorities and
conditions already identified Actions: These actions aim at build a common knowledge base to foster a sense of ownership, enhance benefit
sharing and, in cases to make stakeholders into shareholders. Support measures: These activities will provide support to the main thrust of the
engagement by providing dedicated liaison officers, a web site ,and a media strategy.

Oceans
Negotiations result in non-conflicting ocean regulations
Adams 14
(Alexandra Adam, BA of Science in Journalism from the University of Florida and MA of Arts in Environmental Studies from Brown
University, 5-20-2014, A Win for Oceans with Reauthorization of the Water Resources Development Act, Switchboard: Natural
Resources Defense Council Staff Blog, NRDC, http://switchboard.nrdc.org/blogs/aadams/a_win_for_oceans_with_reauthor.html) AJ

Planning for the future health of our oceans and coastlines just became a little easier after a
Congressional committee agreed on the reauthorization of a key waterway management
law. The final outcome has many who rely on our oceans and coasts breathing a sigh of
relief, as a damaging ocean rider was stricken while a new program to protect our coasts has been authorized. After months of
negotiating , a House-Senate conference committee released the final language of the Water
Resources Development Act (WRDA) which will be voted on this week in the House and Senate . WRDA
addresses management of our countrys waterways and coasts and encompasses billions of dollars in projects that impact a majority of our
citizens. I last reported on this bill when it went to conference in November to resolve differences between the House and Senate versions.

Provisions had been added on the House and Senate floor that placed the health of our
oceans on the negotiating table . When negotiations began, the House had passed a
partisan amendment offered by Congressman Bill Flores (R-TX) that would block the Corps
from implementing the National Ocean Policy. This Policy promotes smart ocean planning and ocean protection.
The Senate had taken an entirely different approach by including an important provision, offered by Senator Sheldon Whitehouse (D-RI),
which would establish a National Endowment for the Oceans (NEO) to support conservation
and restoration of ocean resources. The Flores rider would have restricted any funding for U.S. Army Corps of Engineers
projects connected to the National Ocean Policy, a policy that addresses key ocean challenges, and promotes responsible ocean management.

Flores damaging rider would have hindered our ability to protect important habitat and
ocean wildlife, address changing ocean conditions like ocean acidification, build climate resilience,
encourage sustainable use and provide greater certainty for businesses and other ocean
users. With the failure of the Flores provision, Congress preserved a policy that promotes smart ocean planning and science-based
management of our resources. In addition, the final WRDA Bill includes some gains for ocean resource management, notably, a provision crafted
by Senator Sheldon Whitehouse (D-R.I.) to develop a new Army Corps program focused on ocean and coastal resiliency. This program authorizes
the Corps, in coordination with states, nonprofit organizations, and other stakeholders, to conduct studies to determine the feasibility of projects
to enhance ocean and coastal ecosystem resilience. The studies will help the Corps identify specific projects to carry out that could include
restoring wetlands that offer protection from storms, making beaches more resilient to erosion and helping ecosystems adapt to sea level rise.

Our oceans and coasts are economic engines supporting tens of millions of jobs and billions
of dollars in income from both the seafood industry and ocean-related tourism and
recreation. With the climate changing and our oceans becoming busier and more stressed, the preservation of the National Ocean Policy
and the inclusion of a new WRDA program focused on resilience will help ensure that the oceans can continue to provide us all we ask of them.
The millions of Americans and coastal communities that rely on healthy oceans will all certainly benefit from this positive outcome

Oil and Gas


Current institutions failstakeholder involvement is key to solve oil and gas
Haley et al 11
(Sharman Haley, Ph.D., Economics, University of California, Berkeley, 1994 Fields of Concentration: Public Finance, Methodology and
History of Economic Thought, and Labor Dissertation Title: Economic Methodology for Policy Analysis: The Modeling of Corporate
Taxation B.A. (cum laude), Social Studies and Computer Science, Radcliffe College, Harvard University, 1974 International School of
America, Asia, field study in Cultural Anthropology, 1971-72 University of Alaska, Juneau, 24 credits, Economics and Alaska Native
Cultures, 1977-1983 University of Washington, Seattle, 12 credits, Economics and Management, 1976, 1984. TEACHING EXPERIENCE
2014: Affiliate Professor, Evans School of Public Affairs, University of Washington. Courses taught: Research Methods 2006-2010:
Professor, Program in Public Administration, College of Business and Public Policy, University of Alaska Anchorage Courses taught:
Research Methods 2001-2006: Associate professor, Program in Public Administration, College of Business and Public policy, University
of Alaska Anchorage Courses taught: Research Methods 1994-2000: Assistant professor, Program in Public Administration, College of
Business and Public Policy, University of Alaska Anchorage Courses taught: Research Methods, Natural Resource Policy, Policy
Analysis, Program Evaluation, and Current Issues in Public Policy, specifically including Race Class and Culture in Public Policy, and
Alaska Native Self-Governance and Intergovernmental Relations 1993: Instructor, Environmental Economics, Department of
Environmental Studies, Merritt College, Oakland, California 1987-90: Co-coordinator and team teacher, Econ 98/198: Alternative
Approaches to Economics, Department of Economics, U.C. Berkeley 1986: Teaching assistant, Principles of Economics, Department of
Economics, U.C. Berkeley. For more quals, see: http://www.iser.uaa.alaska.edu/people/haley/haley-cv.pdf Haley, S. Chartier, L. Gray, G.
Meek, C. Powell, J. Rosenberg, A. Rosenberg, J. Strengthening Institutions for Stakeholder Involvement and Ecosystem-Based
Management In the US Arctic Offshore, Section 6.6 of North by 2020: Perspectives on 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)
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
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
3. The Staff's Perspective The viewpoint of the District's staff differed somewhat from the views normally associated with environmental
regulatory agencies. As noted above, no

California statute or federal law required the District to adopt


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

the District recognized that the distribution of emissions from air

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


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

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

Resource Management/Resource Wars


NOAA fails, CDM key to climate modeling and resource management
Siegel 9
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
VI. COLLABORATION AMONG FEDERAL AGENCIES In

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
(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
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
(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
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

(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
6. Resources and Infrastructure Climate change will stress existing resources and infrastructure and require new and creative uses of existing resources to meet the
basic needs of the American people

. 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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
5. The Parties Negotiate Issues in a Fluid Way and Resolve Nearly 80% of Disputes Through the Presentation of Objective Data Determining
which issues will be subject to negotiation represents a crucial dimension of the reg neg process. Here again, the process examined in the study
appeared to be dynamic but not entirely without structure. When

asked who determined the issues, the most


frequent response was the participants (44%), followed by the statute the rule will
implement (28%) and EPA (24%).114 From the interviews, it appears that negotiating
committees usually did not consider issues in a rigid pre-determined way; rather
participants reported that discussions take on a life of their own, and that parties acted
on issues as they emerged and when it seemed that consensus was within reach.115 There is no
discernible pattern in the substance of the issues that emerged for negotiation, nor is there a pattern for issues that did not. With regard to how
parties resolved conflicts,116 the

respondents reported that nearly 80% of issues were either

successfully negotiated or resolved through the presentation of objective data or


analysis.117 This suggests that regulatory negotiation may produce sufficient scientific and
technical information to enable parties to participate effectively in rulemaking ,
contradicting speculation in the literature that the process merely clarifies interests and
facilitates bargaining.118

Whaling
Reg negs solve Native American 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
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) Deng

This Article will focus specifically on three practices that can help to create an implementable wind
energy policy: participator}' planning, negotiated rule making, and siting negotiations. The
proposed framework in Section IV explains how each approach should be used to accomplish a designated goal as part of a comprehensive
citizen involvement plan. Participatory planning can be used to poll a large, representative group of citizens to identify their priorities on
appropriate locations for wind turbines, the amount of wind power desired, and the rate at which fossil fuel use should be phased out.

Negotiated rule making can be used to convene a discrete group of affected parties in their effort to reach
agreement on the contents of model ordinances, recommended lease provisions ,
compensation mechanisms, appropriate mitigation measures, and decommissioning
provisions. Finally, siting negotiations can be used to ensure that the siting process for individual turbines is tailored to local conditions.
1. Participatory Planning Participatory planning refers to practices that engage citizens to serve a central advisory role in making important and
often complicated policy decisions that do not require specified technical experience or knowledge. These processes have been used to provide
valuable information about how to manage financial resources,159 set energy priorities,160 manage natural resources,161 and enable
disadvantaged populations to assess their current circum- stances."12 Some of the labels for these techniques include participatory planning,
citizen juries, deliberative polling,163 participator}' budgeting,164 and citizen boards/advisory committees. As compared to negotiated

rulemaking, participator}' planning approaches are not used to reach agreement among a discrete group of stakeholders, but to
identify priorities among broad swaths of the community. These approaches can be used to
identify appropriate areas for wind turbines , the amount of wind energy desired, and if
desired, the

amount of fossil fuels to be reduced . In fact, deliberative pollinga popular form of participatory planning

has already been used in Texas to gauge the public's interest in building out the renewable energy infrastructure.165 2. Negotiated Rule Making
Negotiated rulemaking is generally defined as a supplemental process in which representatives from agencies and affected interest groups
negotiate the terms of a proposed administrative rule.166 Historically, it has been used at the federal and stale levels of government, but it has
applicability at the local level as well. The Negotiated Rulemaking Act of 1990 provides the basic structure for agencies to design and
implement appropriate processes.167 This practice has been successfully employed in the U.S. with varying frequency since it was introduced in
the early 1980s.l6S Negotiated rulemaking was seen as a way to deal with what seemed like a never-ending cycle of regulations being adopted
and then being overturned after years of legal appeals.169 Instead of being limited to the minimal process required for promulgating rules with
notice, public comment, and publication of a rule that would then be subject to a lawsuit, many agencies supplemented this required process to
get input earlier. This supplemental process came to be called Negotiated Rulemaking or "reg-neg." Negotiated rulemaking brings interested
parties around the table early on, before the rule has been drafted and before the required regulatory approval process is triggered, to see if the
affected parties can reach agreement. By setting up a negotiating forum before drafting the rule, the agency can engage those who are most likely
to be affected by (and most likely to challenge) a rule. The nature of this negotiation is drastically different than the nature of the formal rule
making process because the parties have an opportunity to talk to each other instead of directing all comments through the agency. They can
share information about what is important to them and what is not. They are free to collectively explore and evaluate different regulatory
possibilities. If all the parlies can reach agreement, Ihen the text of their rule becomes the proposed rule thai is then subject to the required
regulator}' process. The

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
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky
In addition to the limitations of expense, storage. and trans- mission, wind turbines present other limitations. Adverse

environmental impact can result from the construction of, and to a lesser degree, the operation of
wind turbines." While some of these im- pacts have technical solutions. most must be
addressed through policy development and siting procedures. For example, linking "high wind"
areas to population centers requires siting new trans- mission lines through undeveloped
and sometimes sensitive habitat. Turbines may have impacts on avian and bat populations
and habitat destroyed by construction and operation. Wind tur- bines also have national security and
transportation implications because they can interfere with radar technology. Adequately
ad- dressing these impacts requires the involvement of citizens in deci- sion-making
processes that set wind energy policies and site the turbines. Accordingly. this Article deals directly with a
central (and often overlooked) factor in successful policy development and facility siting: adequate and appropriate citizen involvement. "Citizen
involvement" as a label has different meanings de- pending on who is using it and the context in which it is used. In the context of the minimal
governmental procedures that are re- quired to make a legally defensible decision. it means notice and comment and possibly a public hearing.
However. in the context of decision-making intended to fully incorporate a range of concerns. "citizen involvement" refers to a more inclusive.
transparent and responsive process. Many

agencies resist more robust levels of citi- zen involvement at


the policy development stage. preferring to rely on the minimal processes with which they are familiar. Resistance to this level
of citizen involvement is endemic and springs from beliefs (and experiences) that engaging citizens takes too long. is too costly. and results in
sub-optimal solutions." The assumption is that a more streairilined decision-making process. guided and informed by knowledgeable bureaucrats.
will produce better_ and timelier results?" Adher_e_nts to minimal citizen involve- ment In decision-making view the citizens as unlnfonned and
paro- chial and involving them will only give strength to Not-in-My- Back-Yard ("NIMBY") sentiment ."

Simply dismissing
citizen op- position as self-interested. NIMBY whiners ignore the two realities addressed in
this Article: (I) that many facility proposals subject to citizen opposition will impose
significant. uncompensated burdens on communities: and (2) that successful citizen
involvement is more than a statement of principle-it must be implemented following the
best practices of consensus building and collaboration."
Aff failsrisk assessment with siting of wind power key to solve defense, bioD, and
warming
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky

2. State and Local Siting Authority In general. the principal authority in the United States for land use siting decisions is vested in local
government. as delegated by individual state legislatures. While authority varies from state to state. the

general pattern is that


local and regional governments are also responsible for the siting of wind turbines." In
some states. such as in New York. location and operation of wind turbines is largely a
function of local governments with little to no authority retained by the state." Some large wind
farms are treated as utili- ties and need additional approval from the state utility commis- sions on matters related to rate setting. Some
states segregate wind projects based on size. sending larger turbines to regional or state
siting boards or agencies and allowing local governments to approve smaller turbines." Other
states, such as Maine. use state- wide siting boards to make all decisions regarding wind turbines." In addition. some state legislatures have voted
to ban turbines from significant landscapes." Depending

on the authority of the siting board. turbines can be


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

at- tempt to catalog the adverse impact on land use is incredibly


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

Aff fails- status quo opposition stops development, CP avoids this and accesses benefits of
NIMBY opposition
Nolon 11
(Nolon, Sean F., Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School
where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC.
After spending several years litigating environmental and commercial matters, he now provides training and consensus-based legal
solutions to public and private interests through the entities named above. Mr. Nolon received a Bachelors of Science from Cornell
University and graduated cum laude from Pace University School of Law with a certificate in Environmental Law. , Negotiating the
Wind: A Framework to Engage Citizens in Siting Wind Turbines. Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011; Vermont
Law School Research Paper No. 11-19. Available at SSRN: http://ssrn.com/abstract=1898814.) //ky
A. The Conventional View of Citizen Inver To some applicants .

citizen involvement is synonymous with


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

policies must be balanced with the reality that opposition plays an important civic function. The goal for proponents of
wine turbine siting policies should be to design processes that minimize the destructive effects of typically adversarial processes that avoid
fanning the flames of opposition and still put together a proposal that will meet their objectives. Citizen involvement should not just be an
afterthought-an inconvenient consequence of participating in the approval process. Before exploring the nature of citizen opposition, an
exploration of the underlying assumptions is helpful to frame the circum stances under which opposition arises. Even

the most
disinterested observer of community dynamics is likely familiar with the notion of "Not-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
(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
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 im- proving the way wind turbines are sited.

Since dealing with local opposition involves emotional as well as rational engagement, any
process must address the emotions associated with the proposed action. The most effective
way to affect emotional pathways is through involvement, engagement and empowerment.
By involving citizens in the process authentically, they will trust it more. The more parties
trust in the process, the more likely they are to accept the outcome. Involvement has the

effect of re- ducing opposition by dealing directly with the psychological phe- nomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the

brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease op- position. Behavioral psychologists have found links
between unre- lated actions. Consider the following experiments: Volunteers were asked to recall either a moral or immoral act in their past.
Afterward, as a token of appreciation. (experimenter)offered the volunteers a choice between the gift of a pencil or of a package of antiseptic
wipes. And the folks who had just wal- lowed in their ethical failures were more likely to go for the wipes."'3 (V)olunteers were told to recall an
immoral act of theirs. After- ward, subjects either did or did not have the opportunity to clean their hands. Those who were able to wash were less
likely to respond to a request for help (that the experimenters had set up) that came shortly afterward."" Volunteers would meet one of the
experimenters, believing that they would be starting the experiment shortly. In reality, the experiment began when the experimenter, seemingly
stmggling with an armful of folders, asks the volunteer to briefly hold their coffee. As the key experimental manipulation, the coffee was either
hot or iced. Subjects then read a description of some indi- vidual, and those who had held the warmer cup tended to rate the individual as having a
warmer personality, with no change in ratings of other attributes."'5 These experiments show how process has a direct effect on how we perceive
a situation. They make a strong case that the sub- stance of a proposal is just one of many factors considered by citi- zens when evaluating how to
respond. Dr. Sapolsky points out that this neural confusion gives actions and symbols enormous power over our decision-making process. He
explains how Nelson Mandela welcomed the leader of a large Afrikaans resistance group into his homey living room instead of a formal
conference room. As a result, resistance between the two "melted away" and they were able to move on to the next chapter in governing South
Africa.'''' Applicants who are aware of the complex nature of cognition should embrace the need for well designed decision-making processes to
effectively manage the complicated phenomena that is opposition. The

process of proposing a wind farm begins


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

***Net Benefits***

Civic Engagement

1NC
The CP reorients democracy to a focus on communication---that allows for effective civic
engagement
Rubin 1
(Edward L. Rubin is a University Professor of Law and Political Science at Vanderbilt Law School. Ed Rubin specializes in
administrative law, constitutional law and legal theory. Previously, he was the Theodore K. Warner, Jr. Professor of Law at the University
of Pennsylvania Law School from 1998 to 2005, and the Richard K. Jennings Professor of Law at the Boalt Hall School of Law at the
University of California-Berkeley. Professor Rubin has been chair of the Association of American Law Schools' sections on
Administrative Law and Socioeconomics and of its Committee on the Curriculum. He graduated from Princeton and received his law
degree from Yale University in 1979, clerked for Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit. GETTING
PAST DEMOCRACY Published January 2011. Print. Accessed @
http://www.lexisnexis.com.proxy.lib.umich.edu/hottopics/lnacademic/) 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
(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
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 im- proving the way wind turbines are sited.

Since dealing with local opposition involves emotional as well as rational engagement, any
process must address the emotions associated with the proposed action. The most effective
way to affect emotional pathways is through involvement, engagement and empowerment.
By involving citizens in the process authentically, they will trust it more. The more parties
trust in the process, the more likely they are to accept the outcome. Involvement has the
effect of re- ducing opposition by dealing directly with the psychological phe- nomena
identified in the previous section. Much of this has to do with how our brains process threats, both actual and metaphorical." Since human brains were not created from scratch, but rather evolved from simpler platforms, our brains use identical pathways to
process both simple (an actual threat) and complex (metaphorical threats) thought processes. For example, the feeling of disgust associated with
smelling rotting meat is processed in the same location (the insula) as feelings that arise when experiencing a morally reprehensible act."'
Similarly, our brains use the same areas to process actual and metaphorical threats"? The rustling of leaves that might suggest a tiger preparing to
pounce fires a similar neurological pathway as the perceived threat of a proposed wind farm on a cherished ridgeline. By relying on redundant
pathways, the

brain links literal threats and the metaphorical threats, giving both the same
level of importance and impact. It is no wonder we see such passionate displays of emotion
when large projects are proposed. Behavioral studies have also revealed some clues to pathways that can be used to soothe
those fears. Because our brains process these seemingly different events (actual and metaphorical threats) through the same pathways, there are
linkages in behavior that shed light on why citizen involvement processes can decrease op- position. Behavioral psychologists have found links
between unre- lated actions. Consider the following experiments: Volunteers were asked to recall either a moral or immoral act in their past.
Afterward, as a token of appreciation. (experimenter)offered the volunteers a choice between the gift of a pencil or of a package of antiseptic
wipes. And the folks who had just wal- lowed in their ethical failures were more likely to go for the wipes."'3 (V)olunteers were told to recall an
immoral act of theirs. After- ward, subjects either did or did not have the opportunity to clean their hands. Those who were able to wash were less
likely to respond to a request for help (that the experimenters had set up) that came shortly afterward."" Volunteers would meet one of the
experimenters, believing that they would be starting the experiment shortly. In reality, the experiment began when the experimenter, seemingly
stmggling with an armful of folders, asks the volunteer to briefly hold their coffee. As the key experimental manipulation, the coffee was either
hot or iced. Subjects then read a description of some indi- vidual, and those who had held the warmer cup tended to rate the individual as having a
warmer personality, with no change in ratings of other attributes."'5 These experiments show how process has a direct effect on how we perceive
a situation. They make a strong case that the sub- stance of a proposal is just one of many factors considered by citi- zens when evaluating how to
respond. Dr. Sapolsky points out that this neural confusion gives actions and symbols enormous power over our decision-making process. He
explains how Nelson Mandela welcomed the leader of a large Afrikaans resistance group into his homey living room instead of a formal
conference room. As a result, resistance between the two "melted away" and they were able to move on to the next chapter in governing South
Africa.'''' Applicants who are aware of the complex nature of cognition should embrace the need for well designed decision-making processes to
effectively manage the complicated phenomena that is opposition. The

process of proposing a wind farm begins


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

Public inclusion in regulatory frameworks is key to governance---enhances civic


engagement and governmental 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
(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)
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
(Erin Ryan holds a B.A. 1991 Harvard-Radcliffe College, cum laude, M.A. 1994 Wesleyan University, J.D. 2001 Harvard Law School,
cum laude. Erin Ryan teaches environmental and natural resources law, property and land use, water law, negotiation, and federalism.
She has presented at academic and administrative venues in the United States, Europe, and Asia, including the Ninth Circuit Judicial
Conference, the U.S.D.A. Office of Ecosystem Services and Markets, and the United Nations Institute for Training and Research. She
has advised National Sea Grant multilevel governance studies involving Chesapeake Bay and consulted with multiple institutions on
developing sustainability programs. She has appeared in the Chicago Tribune, the London Financial Times, the PBS Newshour and
Christian Science Monitors Patchwork Nation project, and on National Public Radio. She is the author of many scholarly works,
including Federalism and the Tug of War Within (Oxford, 2012). Professor Ryan is a graduate of Harvard Law School, where she was an
editor of the Harvard Law Review and a Hewlett Fellow at the Harvard Negotiation Research Project. She clerked for Chief Judge
James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before practicing environmental, land use, and local government
law in San Francisco. She began her academic career at the College of William & Mary in 2004, and she joined the faculty at the
Northwestern School of Law at Lewis & Clark College in 2011. Ryan spent 2011-12 as a Fulbright Scholar in China, during which she
taught American law, studied Chinese governance, and lectured throughout Asia. Ryan, E. Boston Law Review, 2011.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583132//ghs-kw)
Unsurprisingly, bargaining

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


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


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
the growing

proliferation, regional conflicts, and other ongoing threats to the international order will be affected by the presence or absence of strong US leadership but are also driven by their own dynamics.

The US impact is much more clear-cut in the negative case in which the US fails to rebound
and is in sharp economic decline. In that scenario, a large and dangerous global power vacuum
would be created and in a relatively short space of time. With a weak US, the potential
would increase for the European economy to unravel. The European Union might remain, but as an empty shell around a fragmented
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
community would reduce its aid efforts, leaving impoverished or crisis-stricken countries to fend for themselves, multiplying the
chances of grievance and peripheral conflicts. In this scenario, the US would be more likely to lose
influence to regional hegemonsChina and India in Asia and Russia in Eurasia. The
Middle East would be riven by numerous rivalries which could erupt into open conflict,
potentially sparking oil-price shocks. This would be a world reminiscent of the 1930s when
Britain was losing its grip on its global leadership role.

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


Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)

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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States. Harter, P. J. Collaboration: The Future of Governance, Journal of Dispute Resolution,
Volume 2009, Issue 2, Article 7. 2009. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1581&context=jdr//ghs-kw)

Defuse Politicized Situations. Expanding public involvement is one way of reducing the
wrangling that surrounds some controversial policy choices. While to be sure not everyone will be happy with
the outcome whatever it may be, ensuring that all can readily express their views can make it more
likely that everyone will accept the outcome as a legitimate decision. Contrariwise, if little
outreach is attempted, those who oppose the outcome will also denounce it as the product of
a flawed, closed process that did not adequately consider opposing views. Further, broad
consultation reduces the pressure on the agency since it can be made to appear that the
decision is the product of a democratic choice. Democratic Legitimacy . Although administrative law has focused on
increasing public participation at least since the early 1970s, it has taken on a new emphasis as government has decentralized
and the potential contributions of the private sector have become recognized and
embraced. Thus, a more recent reason for stakeholder involvement is the notion that it is more in keeping with
democratic theory if those interested in and affected by a political decision have an
opportunity to express their views to those who will make the decision. Decisions made with greater
public participation are seen as more legitimate than those issued by the agency after
minimal outreach.
Legitimacy is key to conflict 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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies

have used reg neg to develop some of


their most contentious rules. For example, the Federal Aviation Administration and the National
Park Service used a variant of the process to write the regulations and policies governing
sightseeing flights over national parks; the issue had been sufficiently controversial that the
President had to intervene and direct the two agencies to develop rules for the management of sightseeing aircraft in the National
Parks where it is deemed necessary to reduce or prevent the adverse effects of such aircraft.22 The Department of Transportation used it to write
a regulation governing the delivery of propane and other compressed gases when the regulation became ensnared in litigation and Congressional
action.23 The Occupational Safety and Health Administration used it to address the erection of steel structures, an issue that had been on its
docket for more than a decade with two abortive attempts at rulemaking when OSHA turned to reg neg.24 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
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.

Negotiated rules increase legitimacy and ensures agency solvency


Selmi 5
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
In our view, empirical studies of negotiated rulemaking that examine cost, time, and litigation rates tell only part of the story and, we believe, not
the most important part. The studies summarized here go beyond these limited measures of success and provide a more textured picture of
regulatory negotiation. Along

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
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/)
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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf/)
Although reg

neg participants report higher satisfaction with the overall process than their conventional
parties might be more satisfied because of
the kinds of issues that tend to arise in regulatory negotiation, because they feel negotiation
improves rule quality, or because they value particular features of the process, such as the
opportunity to engage each other face to face. Higher satisfaction might be due to a factor that Kerwin and Langbein
counterparts, many of the reasons for that satisfaction remain unclear. The

did not test. To more closely identify the reasons for satisfaction (and dissatisfaction), Kerwin and Langbein used a multiple regression analysis to
isolate individual factors by holding others constant. Their

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 me- dian voter thinks of the
regulatory process, given that most complaints about its legitimacy or illegitimacy come
from either insiders, like lawyers, regulators, and politicians, or from academics, who represent only a narrow class of outsiders.352
As noted above, a lack of participation by outsiders does not necessarily signal dissatisfaction, nor does it indicate that they view the process as
illegitimate. We

note that non-participants in the conventional rulemaking process may choose


not to participate out of satisfaction that their concerns have already been considered . So
too with non-participants in the reg-negs, whose interests may be represented by other
parties. Although Kerwin and Langbein did not directly investigate the potential insider/outsider split over legitimacy, no data emerged that
might fuel outsider suspicion about reg neg versus conventional rulemaking. For example, they found no evidence of skewed
outcomes or results that seemed, on their face, to undermine the legitimacy of the reg neg
process. Were the reg neg process exclusive to a few repeat players and disproportionately
beneficial to them, we might worry more about the possibility that insider satisfaction
could in fact undermine legitimacy rather than further it. However, the data suggest that the
reg neg process is broadly 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
(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
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
(Joseph A. Siegel, Joe Siegel is a Senior Attorney and an Environmental Collaboration and Conflict Resolution Specialist with the U.S.
Environmental Protection Agency, Region 2, Office of Regional Counsel in New York. He has represented the Agency in administrative
and federal court enforcement and defensive litigation under the Clean Air Act over the course of his 26 year career at the EPA. Joe
specializes in climate change and air pollution law and policy, as well as facilitation and mediation of environmental matters. He cochairs EPA Region 2s Climate Change Workgroup and is the lead Regional attorney for climate change. Joe has been an Adjunct
Professor at Pace Law School since 2000 and teaches in the JD and LLM climate change track programs. He has taught the Clean Air
Act course, Climate Change Seminar, and Adaptation to Climate Change. He is also an Advisor to the Kheel Center on the Resolution of
Environmental Interest Disputes and was a member of the Advisory Group to the United Nations Environment Programme and
Permanent Court of Arbitration on Environmental Dispute Resolution and Dispute Avoidance. He was also an Adjunct Professor of
environmental law for 11 years at CUNY Law School at Queens College., Collaborative Decision Making on Climate Change in the
Federal Government, 27 Pace, Envtl. L. Rev. 257 (2009), http://digitalcommons.pace.edu/pelr/vol27/iss1/8.) //ky
C. Agreements Agreement

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
(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
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


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


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
the growing

proliferation, regional conflicts, and other ongoing threats to the international order will be affected by the presence or absence of strong US leadership but are also driven by their own dynamics.

The US impact is much more clear-cut in the negative case in which the US fails to rebound
and is in sharp economic decline. In that scenario, a large and dangerous global power vacuum
would be created and in a relatively short space of time. With a weak US, the potential
would increase for the European economy to unravel. The European Union might remain, but as an empty shell around a fragmented
continent. Progress on trade reform as well as financial and monetary system reform would probably suffer. A weaker and less secure international
community would reduce its aid efforts, leaving impoverished or crisis-stricken countries to fend for themselves, multiplying the
chances of grievance and peripheral conflicts. In this scenario, the US would be more likely to lose
influence to regional hegemonsChina and India in Asia and Russia in Eurasia. The
Middle East would be riven by numerous rivalries which could erupt into open conflict,
potentially sparking oil-price shocks. This would be a world reminiscent of the 1930s when
Britain was losing its grip on its global leadership role.

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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)
Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies

have used reg neg to develop some of


their most contentious rules. For example, the Federal Aviation Administration and the National
Park Service used a variant of the process to write the regulations and policies governing
sightseeing flights over national parks; the issue had been sufficiently controversial that the
President had to intervene and direct the two agencies to develop rules for the management of sightseeing aircraft in the National
Parks where it is deemed necessary to reduce or prevent the adverse effects of such aircraft.22 The Department of Transportation used it to write
a regulation governing the delivery of propane and other compressed gases when the regulation became ensnared in litigation and Congressional

action.23 The Occupational Safety and Health Administration used it to address the erection of steel structures, an issue that had been on its
docket for more than a decade with two abortive attempts at rulemaking when OSHA turned to reg neg.24 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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
17. A Majority

(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
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States.Harter, P. J. Assessing the Assessors: The Actual Performance of Negotiated
Rulemaking, December 1999. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808//ghs-kw)

Negotiated Rulemaking Has Fulfilled its Goals. If better rules were the aspirations for negotiated rulemaking, the
question remains as to whether the process has lived up to the expectations. From my own personal experience, t he rules that
emerge from negotiated rulemaking tend to be both more stringent and yet more cost
effective to implement. That somewhat paradoxical result comes precisely from the
practical orientation of the committee: it can figure out what information is needed to
make a reasonable, responsible decision and then what actions will best achieve the goal; it
can, therefore, avoid common regulatory mistakes that are costly but do not contribute
substantially to accomplishing the task. The only formal evaluation of negotiated rulemaking that has been conducted
supports these observations. After his early article analyzing the time required for negotiated rulemaking, Neil Kerwin undertook an evaluation of
negotiated rulemaking at the Environmental Protection Agency with Dr. Laura Langbein.103 Kerwin

and Langbein conducted

a study of negotiated rulemaking by examining what actually occurs in a reg neg versus the development of rules by
conventional means. To establish the requisite comparison, they collected data on litigation, data from the comments on proposed rules, and data
from systematic, open-ended interviews with participants in 8 negotiated rules . . . and in 6 comparable conventional rules.104 They
interviewed 51 participants of conventional rulemaking and 101 from various negotiated rulemaking committees.105 Kerwin

and

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.

Reg neg costs as much as conventional rulemaking


Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
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
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)

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


Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ky)
2. Reg Neg is Broadly Inclusive The

data call into question the validity of the criticism that reg negs
involve only highly organized and well-financed interests. 97 The majority of respondents
reported participation by all parties, including small, seemingly ad hoc citizen groups,
small businesses, and local government representatives.98 These types of participants were not in the majority,
but neither were they rare. The data therefore support the proposition that negotiated rulemaking is at least open to groups that complain about

When asked
whether all the interests that should have been involved in the negotiated rulemaking were
involved, 65% of respondents answered that there was full representation .99 The literature on reg
exclusion from other governmental processes, even if those groups are imperfect surrogates for ordinary citizens.

neg also identifies as a potential problem EPAs unwillingness to commit, up front, to accept the results of negotiations and use them as the basis
for the rule.

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
On balance, the combined results of Phase I and II of the study suggest that reg

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)

One might also suspect that higher satisfaction rates correspond to disproportionate
influence over the agency, which would suggest that the purported legitimacy benefit simply dis-guises capture of the agency by
interested parties. Based on the reported data, however, this is unlikely. The results of the study indicate that the agency was
equally responsive to stakeholders in both conventional and negotiated rulemaking
contexts. Al-though participants did perceive that some parties exerted dis-proportionate influence in the reg neg process, the types of
parties believed to have exerted that influence were fairly evenly distributed. In fact, the parties that
were perceived as exerting the most influence in both types of rulemakings were EPA itself and big business groups of all stripes. Environmental
groups were slightly more likely to be seen as exercising disproportionate influence in reg negs than in conventional rulemaking. Moreover,
perceptions of disproportionate influence in conventional rulemaking occurred with the same relative frequency as those in reg negs. We think it
would be inaccurate to suggest that satisfaction depends on, or disguises, undue influence over the agency that is exacerbated by reg neg. At
worst, then, we believe that regulatory

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the

University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
The study reveals some weaknesses of the reg neg process as well, most notably the

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
(Daniel P. Selmi. Professor of Law, MPA, Harvard University. His 2011 article, The Contract Transformation in Land Use Regulation,
published in the Stanford Law Review, was voted by peers in the field as one of the top 10 land use and environmental law articles of
the year and republished in the Land Use and Environmental Law Review. Professor Selmi is a former chair of the California State Bar
Committee (now Section) on Environmental Law. June 22, 2005, The promise and limits of negotiated rulemaking: evaluating the
negotiation of a regional air quality rule. http://www.thefreelibrary.com/The+promise+and+limits+of+negotiated+rulemaking
%3A+evaluating+the...-a0137756049.)//ky
In our view, empirical studies of negotiated rulemaking that examine cost, time, and litigation rates tell only part of the story and, we believe, not
the most important part. The studies summarized here go beyond these limited measures of success and provide a more textured picture of
regulatory negotiation. Along

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

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


Harter 09
(Philip J. Harter received his AB (1964), Kenyon College, MA (1966), JD, magna cum laude (1969), University of Michigan. Philip J.
Harter is a scholar in residence at Vermont Law School and the Earl F. Nelson Professor of Law Emeritus at the University of Missouri.
He has been involved in the design of many of the major developments of administrative law in the past 40 years. He is the author of
more than 50 papers and books on administrative law and has been a visiting professor or guest lecturer internationally, including at the
University of Paris II, Humboldt University (Berlin) and the University of the Western Cape (Cape Town). He has consulted on
environmental mediation and public participation in rulemaking in China, including a project sponsored by the Supreme Peoples Court.
He has received multiple awards for his achievements in administrative law. He is listed in Who's Who in America and is a member of the
Administrative Conference of the United States. Harter, P. J. Collaboration: The Future of Governance, Journal of Dispute Resolution,
Volume 2009, Issue 2, Article 7. 2009. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1581&context=jdr//ghs-kw)

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
Freeman and Langbein 00
(Jody Freeman is the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental
law. She holds a Bachelor of the Arts from Stanford University, a Bachelor of Laws from the University of Toronto, and a Master of Laws
in addition to a Doctors of Jurisdictional Science from Harvard University. She served as Counselor for Energy and Climate Change in
the Obama White House in 2009-2010. Freeman is a prominent scholar of regulation and institutional design, and a leading thinker on
collaborative and contractual approaches to governance. After leaving the White House, she advised the National Commission on the
Deepwater Horizon oil spill on topics of structural reform at the Department of the Interior. She has been appointed to the
Administrative Conference of the United States, the government think tank for improving the effectiveness and efficiency of federal
agencies, and is a member of the American College of Environmental Lawyers. Laura I Langbein is the Professor of Quantitative
Methods, Program Evaluation, Policy Analysis, and Public Choice and American College. She holds a PhD in Political Science from the
University of North Carolina, a BA in Government from Oberlin College. Freeman, J. Langbein, R. I. Regulatory Negotiation and the
Legitimacy Benefit, N.Y.U. Environmental Journal, Volume 9, 2000. http://www.law.harvard.edu/faculty/freeman/legitimacy
%20benefit.pdf//ghs-kw)
Defenders of reg neg retorted that negotiated

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