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Reg Neg CP

DDI 2008 CM
Balam Budwal

Reg Neg CP
Reg Neg CP..............................................................................................................................................................................................1
Reg Neg CP.............................................................................................................................................................1
Strat Notes................................................................................................................................................................................................3
Strat Notes..............................................................................................................................................................3
***Counterplans/Net Benefits***........................................................................................................................4
CP-Generic...............................................................................................................................................................................................5
CP-Generic.............................................................................................................................................................5
Generic NB..............................................................................................................................................................................................6
Generic NB.............................................................................................................................................................6
XTN: Industry Opposition.......................................................................................................................................................................7
XTN: Industry Opposition....................................................................................................................................7
XTN: Reg Negs →Coaltions...................................................................................................................................................................8
XTN: Reg Negs →Coaltions..................................................................................................................................8
CP-Patents................................................................................................................................................................................................9
CP-Patents..............................................................................................................................................................9
Patents Bizcon Links..............................................................................................................................................................................10
Patents Bizcon Links...........................................................................................................................................10
XTN: Reg Negs → Innovation..............................................................................................................................................................11
XTN: Reg Negs → Innovation............................................................................................................................11
CP-RPS..................................................................................................................................................................................................12
CP-RPS.................................................................................................................................................................12
XTN: Reg Negs Solve..........................................................................................................................................................................13
XTN: Reg Negs Solve..........................................................................................................................................13
CP-Brownfields......................................................................................................................................................................................14
CP-Brownfields....................................................................................................................................................14
CP-Feed-in Tariffs..................................................................................................................................................................................15
CP-Feed-in Tariffs................................................................................................................................................15
CP-Natives.............................................................................................................................................................................................16
CP-Natives............................................................................................................................................................16
XTN: Reg Neg Solves Natives..............................................................................................................................................................17
XTN: Reg Neg Solves Natives.............................................................................................................................17
CP-Nuclear.............................................................................................................................................................................................18
CP-Nuclear...........................................................................................................................................................18
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Reg Neg CP
DDI 2008 CM
Balam Budwal

***2NC Answers***............................................................................................................................................19
AT: Courts Rollback...............................................................................................................................................................................20
AT: Courts Rollback............................................................................................................................................20
AT: Takes Long Time.............................................................................................................................................................................21
AT: Takes Long Time...........................................................................................................................................21
AT: Conglianese.....................................................................................................................................................................................22
AT: Conglianese....................................................................................................................................................22
AT: Litigation.........................................................................................................................................................................................23
AT: Litigation.......................................................................................................................................................23
Consult Good.........................................................................................................................................................................................24
Consult Good........................................................................................................................................................24
Deadlines Key........................................................................................................................................................................................25
Deadlines Key.......................................................................................................................................................25

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Reg Neg CP
DDI 2008 CM
Balam Budwal

Strat Notes
I think this is pretty self explanatory. The CP has good game against Patents
and Natives, not sure about the others though.

If you want to be sleazy, when the 2AC says perm: do both, you can call it a
severance/timeframe perm, b/c the CP Text says “one year to negotiate”.
Which also means you can run politics as a CP. This essentially becomes a
delay CP, which is pretty cool. Though the 1AR has a pretty good abuse story.

Ideal Net Benefits for this are: Spending, Bizcon, Maybe Politics if you have
some lobby links (lobbies won’t get pissed off if they can decide how the policy
is implemented).

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Reg Neg CP
DDI 2008 CM
Balam Budwal

***Counterplans/Net Benefits***

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Reg Neg CP
DDI 2008 CM
Balam Budwal

CP-Generic
CP Text: The United States federal government should ________

The executive branch should engage in binding regulatory negotiations to


determine implementation. Parties will have no more than one year to
negotiate.

Reg Neg Solves- Empirical Proof


Philip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law
School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory
Reform of the American Bar Association., 2000 “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, 9
N.Y.U. ENVTL. L.J.
Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies have used reg neg to develop some of their
most contentious rules. For example, the Federal Aviation Administration and the National Park Service used a variant
of the process to write the regulations and policies governing sightseeing flights over national parks; the issue had been
sufficiently controversial that the President had to intervene and direct the two agencies to develop rules “for the management
of sightseeing aircraft in the National Parks where it is deemed necessary to reduce or prevent the adverse effects of such
aircraft.”22 The Department of Transportation used it to write a regulation governing the delivery of propane and other
compressed gases when the regulation became ensnared in litigation and Congressional action.23 The Occupational
Safety and Health Administration used it to address the erection of steel structures, an issue that had been on its docket for
more than a decade with two abortive attempts at rulemaking when OSHA turned to reg neg.24 The Forest Service has just
published a notice of intent to establish a reg neg committee to develop policies governing the use of fixed anchors for rock
climbing in designated wilderness areas administered by the Forest Service.25 This issue has become extremely
controversial.26 Negotiated rulemaking has proven enormously successful in developing agreements in highly polarized
situations and has enabled the parties to address the best, most effective or efficient way of solving a regulatory
controversy. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have
eluded closure by means of traditional rulemaking procedures.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

Generic NB
Companies will backlash against the plan killing solvency
GLOBAL CLEAN ENERGY, INC., 5-6-08, EDGAR Online, Lexis
Currently, the cost of electricity generated from gasification, without the benefit of subsidies or other economic incentives,
substantially exceeds the price of electricity in most significant markets in the world. As a result, the near-term growth of the
market for our BOO plants, which are designed to feed electricity to an on-site end-user, depends significantly on the
availability and size of government incentives and subsidies for gasification. As alternative energy becomes more of a
competitive threat to conventional energy providers, companies active in the conventional energy business may increase
their lobbying efforts in order to encourage governments to stop providing subsidies for alternative energy, including
gasification. We cannot predict the level of any such efforts, or how governments may react to such efforts. The reduction,
elimination or expiration of government incentives and subsidies, or the exclusion of gasification technology from those
incentives and subsidies, may result in the diminished competitiveness of gasification relative to conventional and non-
gasification alternative sources of energy. Such diminished competitiveness could materially and adversely affect the
growth of the gasification industry, which could in turn adversely affect our business, financial condition and results of
operations.

Regulatory Negotiations promote coalitions between industry and


environmentalists
Richard J. Curcio and Fran M. Wolf, Professor at Kent State University and Former Chairman of Dept of Finance, Associate
Professor at Youngstown State University, Summer 1996, Journal of Financial and Strategic Decisions Vol. 9 Num. 2,
http://www.studyfinance.com/jfsd/pdffiles/v9n2/curcio.pdf, BB
A good relationship with activist groups cannot be overemphasized. Lavelle (1993) reports that more than one half of
corporate attorney respondents in a National Law Journal/Arthur Andersen survey state that community activists impact
corporate behavior. “Reg-neg”, or regulatory negotiation between corporations and interested parties such as
environmental groups, has already been written into some environmental legislation. The firm and environmental
groups may agree on a plan that reduces costs by allowing the firm to bypass rigid command-and control regulation in
favor of an alternative that is better both for the firm and for the environment.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

XTN: Industry Opposition


And current attempts to increase alternative energy are doomed to failure
because they don’t take into account industry and labor opposition.
Peter Teague and Jeff Navin, Director of the Environment Program at the Nathan Cummings Foundation and former
environmental advisor to Senator Barbara Boxer, Managing Director of American Environics Strategies and former Research Director
for Senate Minority Leader Tom Daschle, June 26, 2007, “Global Warming in an Age of Energy Anxiety”, The American Prospect,
http://www.prospect.org/cs/articles?article=global_warming_in_an_age_of_energy_anxiety, BB
With a regulatory-only approach, we will end with a debate between environmentalists arguing about the cost of global
warming, and industry economists telling Americans how much more they'll pay for everything from electricity to
gasoline to consumer products. And they'll argue that these higher prices will result in job losses. Policy makers are
aware of this challenge and have added provisions to their regulatory bills that are aimed at easing voters' fears. There are
proposals for tax rebates and offsets and even the creation of a "Climate Change Credit Corporation" to help voters with the
anticipated increase in consumer energy costs. The trouble is that the bills either provide tiny amounts to authorize studies of
the problem, or they remain silent about how much help voters can expect. It's important to remember that the proponents of
Prop. 87 made a well-supported case that the initiative wouldn't raise energy costs at all. Its defeat demonstrates that it's going
to take more than good intentions about global warming and vaguely-worded proposals to convince voters. The Debate to
Come A recent NPR segment noted that the non-partisan Congressional Budget Office released a report on
environmentalists' preferred regulatory approach that says "low-income Americans and coal miners might suffer the
most if the government adopts a so called cap and trade program to reduce emissions of green house gasses." The NPR report
said, "Consumers will bear the cost of this kind of program. They would face higher prices for electricity, gasoline and
other products. Since low-income Americans spend a higher portion of their incomes on such costs, they'll be hit the
hardest." Keep in mind that this was NPR -- not Fox News. The "right-wing populist vs. liberal elite" frame is dropping into
place with the help of those calling for the deepest cuts in carbon. The deep-cut mantra, repeated without any real
understanding of what might be required to get to 60 or 80 percent reductions in emissions, ignores voters' anxieties. It
also reflects the questionable view that these changes can be achieved with little more than trivial disruptions in our lives -- a
view easier to hold if you're in a financial position to buy carbon credits for your beachfront house. Labor has indicated a
willingness to support action on climate change, but it won't support deep cuts if working people are the most affected.
This will leave environmentalists up against the well-financed business lobby. Good luck holding onto moderate
Democrats, let alone Republicans -- even those who are beginning to understand the need for action on global warming.
History teaches us that regulatory proposals that fail politically often lead to legislative paralysis. In 1993, the public was
adamant that action be taken to address health care, and it seemed inevitable that some sort of reform would soon be signed
into law. In 1994, the Clinton health care reform proposal failed before coming to a vote. In 1997, the Senate voted 95-0 to
reject the United Nations Kyoto framework before it was even fully developed. Voters are still waiting for action on health care
and global warming.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

XTN: Reg Negs →Coaltions


Reg Neg solves for effectiveness and environmental cohesion
Philip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law
School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory
Reform of the American Bar Association., 2000 “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, 9
N.Y.U. ENVTL. L.J.
Congressional and Presidential Support. Congress has twice embraced “reg neg.” Although agencies had successfully used
reg neg by following recommendations of the Administrative Conference of the United States14 by empanelling committees
under the Federal Advisory Committee Act,15 Congress provided its imprimatur on the process in 1990 when it enacted
the Negotiated Rulemaking Act of 1990.16 The original act sunsetted in 1996, and Congress then permanently reauthorized
it.17 Similarly, the Clinton Administration has repeatedly endorsed it and encouraged agencies to use it. For example, the
seminal regulatory document of the Administration — Executive Order 1286618 — provides that “Each agency . . . is
directed to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated
rulemaking.”19 Its National Performance Review (NPR), headed by the Vice President, resoundingly supported the process
after finding: 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 The solution to this problem, according to NPR, is to “increase the use of negotiated
rulemaking.”21

Negotiated Rulemaking provides a platform for cohesion


Philip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law
School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory
Reform of the American Bar Association., 2000 “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, 9
N.Y.U. ENVTL. L.J.
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.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

CP-Patents
CP Text: The United States federal government should require the executive
branch to increase revenue-neutral incentives for alternative energy. The
executive branch should engage in binding regulatory negotiations to
determine implementation. Parties will have no more than one year to
negotiate.

Reg Negs solve-- they result in innovation


Michael E. Porter and Claas van der Linde, C. Roland Christensen Professor of Business Administration, Harvard Business
School, faculty of the International Management Research Institute of St. Gallen University, Fall 95, Journal of Economic
Perspectives, Vol. 9 Issue 4, ebsco, BB
Coordination of environmental regulation can be improved in at least three ways: between industry and regulators, between
regulators at different levels and places in government, and between U.S. regulators and their international counterparts. In
setting environmental standards and regulatory processes to encourage innovation, substantive industry participation
in setting standards is needed right from the beginning, as is common in many European countries. An appropriate
regulatory process is one in which regulations themselves are clear, who must meet them is clear, and industry accepts
the regulations and begins innovating to address them, rather than spending years attempting to delay or relax them. In
our current system, by the time standards are finally settled and clarified, it is often too late to address them fundamentally,
making secondary treatment the only alternative. We need to evolve toward a regulatory regime in which the EPA and
other regulators make a commitment that standards will be in place for, say, five years; so that industry is motivated to
innovate rather than adopt incremental solutions.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

Patents Bizcon Links


Companies depends on predictable patents to inspire investor confidence and
fund the industry.
Dan Eramian, Vice President of Communications of BIO, 04, Patents Save Lives”, speech given at the Global Public Policy
Institute, June 24, http://bio.org/news/newsitem.asp?id=2005_0407_01
Last year, investors poured almost $17 billion into biotech companies, despite the fact that most have no products on the
market and will probably lose money years before turning profitable. And many will never become profitable. So why do
investors keep writing the checks? Because patents are in place that protect intellectual property. Patents attract
investors, because they assure a return if a risky research project is successful. But this investor support is fragile, and it
can be shaken by public-relations blunders, especially in the realm of patents. To give just one example of what can happen,
back in March of 2000, the U.S. genomics bubble popped when the press misread a statement from President Clinton
and British Prime Minister Tony Blair as a change in their governments' policies that would threaten gene patents.
Biotech stocks plunged 13 percent in a single day, a loss of more than $40 billion in value. And that was because of a
misinterpretation of single statement.

Predictability is key to the patent system


Lydia Nenow, Spring 2001, 23 Hous. J. Int'l L 569, Lexis
A patent's full commercial value can be realized only when patents are enforced with predictable reliability. The
inability to enforce a patent because of lack of clarity in the pertinent laws may result in the diminishing or complete
elimination of a company's incentive to invest in the development of new products and processes. The protection of a
predictable patent system is of particular importance to the biotechnology industry where success requires massive
investment. n78 It takes a quarter of a billion dollars and four to seven years to bring a biotech-based [*582]
pharmaceutical product to the market, n79 and an estimated ninety percent of biotechnology companies will have a drug
that fails or is delayed. n80 Hence, it is easy to understand why many would be deterred from biotech experimentation if
they are unable to recoup the sizable research and development costs. In addition, the uncertainty of patentability, or
enforceability of a granted patent, also raises a biotechnology company's legal costs and may ultimately create a
disincentive to innovation.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

XTN: Reg Negs → Innovation


Regulations encourage innovation-- Laundry List
Michael E. Porter and Claas van der Linde, C. Roland Christensen Professor of Business Administration, Harvard Business
School, faculty of the International Management Research Institute of St. Gallen University, Fall 95, Journal of Economic
Perspectives, Vol. 9 Issue 4, ebsco, BB
First, regulation signals companies about likely resource inefficiencies and potential technological improvements.
Companies are still inexperienced in measuring their discharges, understanding the full costs of incomplete utilization of
resources and toxicity, and conceiving new approaches to minimize discharges or eliminate hazardous substances. Regulation
rivets attention on this area of potential innovation.[3] Second, regulation focused on information gathering can
achieve major benefits by raising corporate awareness. For example, Toxics Release Inventories, which are published
annually as part of the 1986 Superfund reauthorization, require more than 20,000 manufacturing plants to report their releases
of some 320 toxic chemicals. Such information gathering often leads to environmental improvement without mandating
pollution reductions, sometimes even at lower costs. Third, regulation reduces the uncertainty. that investments to
address the environment will be valuable. Greater certainty encourages investment in any area. Fourth, regulation
creates pressure that motivates innovation and progress. Our broader research on competitiveness highlights the important
role of outside pressure in the innovation process, to overcome organizational inertia, foster creative thinking and mitigate
agency problems. Economists are used to the argument that pressure for innovation can come from strong competitors,
demanding customers or rising prices of raw materials; we are arguing that properly crafted regulation can also provide such
pressure. Fifth, regulation levels the transitional playing field. During the transition period to innovation-based
solutions, regulation ensures that one company cannot opportunistically gain position by avoiding environmental
investments. Regulations provide a buffer until new technologies become proven and learning effects reduce their costs.
Sixth, regulation is needed in the case of incomplete offsets. We readily admit that innovation cannot always completely
offset the cost of compliance, especially in the short term before learning can reduce the cost of innovation-based solutions. In
such cases, regulation will be necessary to improve environmental quality. Stringent regulation can actually produce
greater innovation and innovation offsets than lax regulation. Relatively lax regulation can be dealt with incrementally
and without innovation, and often with "end-of-pipe" or secondary treatment solutions. More stringent regulation,
however, focuses greater company attention on discharges and emissions, and compliance requires more fundamental
solutions, like reconfiguring products and processes. While the cost of compliance may rise with stringency, then, the
potential for innovation offsets may rise even faster. Thus the net cost of compliance can fall with stringency and may
even turn into a net benefit.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

CP-RPS
CP Text: The United States federal government should require the executive
branch to increase revenue-neutral incentives for alternative energy enough to
increase alternative energy to at least 20% of electricity production by 2020,
measured from the baseline of current production. The executive branch
should engage in binding regulatory negotiations to determine
implementation. Parties will have no more than one year to negotiate.

Regulatory Negotiations enable better solutions to environmental goals


Shari K. Grossartha and Alan D. Hecht, EPA Office of Policy, Economics, and Innovation, EPA Office of Research and
Development, May 2007, Ecological Engineering, Volume 30, Issue 1, pg. 1-8, science direct, BB
EPA has been exploring regulatory flexibility since its inception. Administrator Doug Costle (2001, speaking in a 1996
interview) realized that “command and control” regulation would only go so far and would not allow for adaptation to
changing circumstances. In 1979, Costle introduced the “bubble policy” for controlling stationary sources of pollution,
allowing industry to increase pollution at one point within a plant if reductions were achieved elsewhere in the facility. During
the late 1980s, especially while the Clean Air Act of 1990 was being developed, EPA increased its appreciation of the value of
consulting with industry while formulating regulations. The agency learned that firms subject to regulations possess relevant
expertise and understanding. Administrator Bill Reilly, 1990a and Reilly, 1990b observed that “regulatory negotiations are
extremely productive at getting a result that works for everybody” and emphasized the need to listen to industry, whose
leaders “often have a better, more intimate grasp of how to achieve [environmental goals], than we do.” Regulatory
flexibility and negotiation provide means for EPA to work with the regulated community and other stakeholders toward
achieving sustainable outcomes through pollution prevention, increased efficiencies, and systematic thinking.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

XTN: Reg Negs Solve


Regulatory negotiations lead to new and innovative solutions
Jody Freeman, Acting Professor of Law, University of California, October, 1997, 45 UCLA L. Rev. 1, lexis, BB
The actual solution, however, was a win-win result for everyone involved. Environmentalists secured an increasingly
stringent standard while industry bargained for phased implementation. As a result, both industry representatives and
the NRDC could "sell" the agreement to their constituencies as a victory. The EPA demonstrated a commitment to
working with stakeholders, a posture that would be well received by both Congress and the Clinton administration. The
agency could also credibly claim that while stakeholders were involved in the rule making, the bargain struck did not
undermine the public interest in reducing toxic air emissions. The consensus improved the likelihood of implementation
and reduced the chance that the rule would be legally challenged, potentially saving significant resources for all of the
parties. n135 On the traditional measures of cost, implementability, and legitimacy, as viewed by the parties, the reg-neg
was a success.

Regulatory negotiations facilitates unique solutions to environmental


problems.
Jody Freeman, Acting Professor of Law, University of California, October, 1997, 45 UCLA L. Rev. 1, lexis, BB
The parties did not merely bargain, but also drew upon a set of developments, including the emergence of total quality
management principles in both the chemical industry and at the EPA, to devise an unanticipated solution. The negotiated
consensus requires industry to pool information about worker training, technology, or management practices that most
effectively reduce emissions. n139 This element of the solution creates a badly needed feedback mechanism. Historically,
neither the EPA nor environmental groups had the means by which to judge which technologies or management practices
facilitated rule compliance because nothing forced the industry to disclose why it could not meet standards. This kind of
information disclosure, as opposed to the reporting only of leak rates, could enable better diagnosis of leak causes. By
requiring information sharing among companies about the most effective controls, the negotiated rule creates a
mechanism for increasing safety standards. The primary monitoring authority rests with the companies but is subject to
governmental oversight. Another important result of the problem-solving process was the recognition that the
production goals of chemical companies can coincide with the regulatory goal of controlling toxic emissions. The industry
was moving toward a "best practice" standard in any event, because such a standard was consistent with improving the quality
of the pumps and valves themselves. n140 In essence, the negotiated solution forces chemical [*48] companies to adopt
leak prevention measures that also achieve the goal of reducing air pollution. The solution is superior to a strict
emissions limit because it allows companies to devise process-specific and cost-effective methods for achieving
compliance. A Total Quality Management (TQM) approach guarantees closer monitoring of the components most likely to
leak. n141 It establishes a regime in which the penalty for noncompliance is to be more closely monitored and be required to
generate more information about why existing leak controls do not work. This facilitates adaptation and progress toward
regulatory goals without being unnecessarily punitive: a facility will never be in violation of the regulation so long as it
pursues the improvement program.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

CP-Brownfields
CP Text: The United States federal government should amend the
Comprehensive Environmental Response, Compensation, and Liability Act,
specifically to exempt local governments from CERCLA liability on the
condition that local governments take care with regards to contamination
during brownfields cleanup. The executive branch should engage in binding
regulatory negotiations to determine implementation. Parties will have no
more than one year to negotiate.

Reg Neg’s enable tailored local solutions


Edward P. Weber, Professor in Political Science, Director of the Thomas S. Foley Institute for Public Policy and Public Service, and
Affiliated Professor in WSU's Program in Environmental Science and Regional Planning in Washington State University, 1998, pg 10,
Georgetown University Press
Regulatory negotiations and consensus-based roundtable" rulemakings invite environmentalists, state officials, and
business interests to the bargaining table for the purpose of having tern help government regulators write (fill in the
details of) regulations. Public-private partnerships are at root a collaborative redefinition existing regulatory arrangements. At
the invitation of Amoco Oil, EPA spent three years studying an oil refinery to better match rules with pollution
problems and to prevent pollution instead of simply regulating its release. U.S. corporations in the iron and steel
industry, rte electronics and computer industry, the auto industry, and the printing industry, along with federal and
state regulators, national environmentalists, and locally based environmental justice groups, are attempting to
rationalize the existing regulatory rules for each industrial sector and construct a "common sense" approach to
environmental regulations (USEPA 1994a). In Colorado, four of the largest employers and polluters)-Coors Brewing, Martin
Marietta," Hewlett Packard, and the Public Service Company of Colorado - are collaborating with EPA, the League of Women
Voters, environmentalists, and the state o find innovative ways to prevent pollution (Pollution Prevention Partnership 1993).

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Reg Neg CP
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Balam Budwal

CP-Feed-in Tariffs

CP Text: The United States federal government should substantially increase


alternative energy incentives in the United States. Specifically, the executive
branch should engage in binding regulatory negotiations to determine
implementation. Parties will have no more than one year to negotiate.

Reg Negs solve-- they result in innovation


Michael E. Porter and Claas van der Linde, C. Roland Christensen Professor of Business Administration, Harvard Business
School, faculty of the International Management Research Institute of St. Gallen University, Fall 95, Journal of Economic
Perspectives, Vol. 9 Issue 4, ebsco, BB
Coordination of environmental regulation can be improved in at least three ways: between industry and regulators, between
regulators at different levels and places in government, and between U.S. regulators and their international counterparts. In
setting environmental standards and regulatory processes to encourage innovation, substantive industry participation
in setting standards is needed right from the beginning, as is common in many European countries. An appropriate
regulatory process is one in which regulations themselves are clear, who must meet them is clear, and industry accepts
the regulations and begins innovating to address them, rather than spending years attempting to delay or relax them. In
our current system, by the time standards are finally settled and clarified, it is often too late to address them fundamentally,
making secondary treatment the only alternative. We need to evolve toward a regulatory regime in which the EPA and
other regulators make a commitment that standards will be in place for, say, five years; so that industry is motivated to
innovate rather than adopt incremental solutions.

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Reg Neg CP
DDI 2008 CM
Balam Budwal

CP-Natives
CP Text: The United States federal government should establish a policy
increasing revenue-neutral alternative energy incentives to Native Americans.
The executive branch should engage in regulatory negotiations with Native
American groups to determine implementation. All representatives should be
granted a veto. Parties will have no more than one year to negotiate.

Regulatory Negotiations are key to Indian Self-Determination—Empirically


Proven
Lawrence Susskind and Liora Zion, Ford Professor of Urban and Environmental Planning at MIT and President of the Consensus
Building Institute, & Research Assitant, August 2002, “CAN AMERICA’S DEMOCRACY BE IMPROVED?”,
http://www.lawrencesusskind.com/content/contributions/democracy.pdf, BB
Negotiated rulemaking is a relatively new approach to developing regulations. In order to ensure that new regulations
are effective, realistic, and fair, and that those who will be bound by them will accept them more readily, lawmakers use
consensus building techniques to develop draft legislation. Thus, the stakeholders participate in shaping the regulations
about which they are concerned. During the negotiation process, the parties may ask experts to make presentations relevant
to the task at hand, or they might engage in joint fact-finding as part of the process. The development of a single negotiating
text is also a common technique used for rulemaking42. Example: Federal Negotiated Rulemaking One of the largest
negotiated rulemaking efforts to date was a consensus building process in 1996 to implement amendments to the Indian
Self-Determination Act. The group was to focus largely on arrangements concerning Native American tribes’ roles and
responsibilities in the delivery of federal programs, including schools, health facilities, and construction projects. The
consensus building process involved 63 people, including 48 representatives of Indian tribes and tribal organizations, and 15
representatives from more than 10 federal agencies and offices. These representatives comprised an Advisory Committee that
was charged with producing recommendations to the Department of the Interior and the Department of Health and Human
Services concerning which regulations, if any, should exist. The negotiations of the Advisory Committee were facilitated by
four cofacilitators of the Federal Mediation and Conciliation Service (FMCS). The negotiations began with a considerable
amount of distrust between the Indian and Federal representatives, since previous attempts to amend the regulations
had excluded the input of Native groups. However, the group agreed to operate by consensus, seeking unanimity for all
decisions, and so each representative was effectively granted a veto on the process. The group decided to follow a proposal
submitted by an Indian attorney to divide into six working groups to address different aspects of the law. As a group, the
representatives allocated different topics to the different working groups. The representatives then signed up to those work
groups addressing issues about which they had the greatest knowledge or in which they had the most interest. Since some
representatives enrolled in multiple working groups, the co-chairs tried to avoid scheduling more than three working group
meetings simultaneously, and representatives had to prioritize their interests. Each working group was co-chaired by a
federal and a tribal representative, and facilitated by one of the neutrals. The working groups produced regular updates on
their progress to share with the rest of the participants, notifying them, for example, when they had completed a draft of a
section of regulation. As the working groups agreed on specific sections of the regulation, they submitted them to the whole
group for approval. The working groups had to have reached an internal consensus before they could present any product to the
whole group, since those within the working groups, involved in formulating the proposals, were those who tended to be most
concerned about the issue under consideration. When the working groups presented their proposals, they took questions of
clarification first, and then the facilitators listed any questions concerning content. The co-chairs then decided whether to
address each question in the whole group, or within a tribal or federal caucus. Once the large group reached consensus, it
would adopt the recommendation. The process did not run without problems. Indian representatives’ concerns about the
process to review the Advisory Committee’s recommendations nearly prompted them to leave the negotiations. Other concerns
also arose, and the Advisory Committee was unable to resolve every substantive issue. For four issues that remained
outstanding, the federal and tribal teams each wrote a report stating their opinions on the matter. These reports were presented
to the chiefs of staff of both departments, who made final decisions, sometimes in favor of the federal team, and sometimes in
favor of the tribal team. Despite these problems, however, the Advisory Committee agreed by consensus on 34 pages of
detailed regulations to guide the process of making contracts between tribes and tribal organizations and the
Departments of the Interior and of Health and Human Services. Tribal and federal representatives expressed
satisfaction with the process, and the process has subsequently become a model for further negotiations involving
Native groups.
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XTN: Reg Neg Solves Natives


Reg Negs solve for Indians differing cultural views and increase government
collaboration
Brian D. Polkinghorn and Jeanmarie Pinto, Ph.D. is Associate Professor of Conflict Resolution and Executive
Director of the Center for Conflict Resolution at Salisbury University, & Research Associate with the Center for Conflict Resolution at
Salisbury University, 2002, International Negotiation 7: 209–233, “In Different Tongues: Making Room for Cultural Differences in
the Negotiated Rulemaking Process”, ebsco, BB
American Indians differ from non-Indians not only in their history but also in their general philosophies of life (Farella
1984; Fixico 1996;Wallace 1994; Yazzie 1994). For many Indian cultures, all living things are meant to be respected and
people are no more important than any other living thing. This view contrasts sharply with the typical view of most
“mainstream” Americans, who believe in humankind’s inherent superiority over all other living things (Clark 1989). Put
another way, Indians tend to see life as a community, where non-Indians tend to see it as a hierarchy. This is an
important point when one is looking at conflict and its resolution. A community view tends to focus more on healing and
restoration whereas a hierarchical view focuses on division in order to maintain the hierarchy (Austin 1992; Bluehouse
and Zion 1993, Stuart 1997; Weaver 1996). The aforementioned cultural differences and nuances are all-important
considerations that should be taken into account in the context of negotiation processes between Indians and non-
Indians. American Indians are not just another ethnic group vying for recognition in the United States, however.
Whether they are defined as distinct, sovereign entities, as most Indian nations see themselves, or as “domestic,
dependent nations,” as the U.S. government has defined them, the issue of sovereignty lends a unique twist to their
relationship with the mainstream society. Using a consensus-based reg-neg process to address Tribal-Federal
issues may be a culturally-sensitive and effective method not only for settling the issue on the table, but also
for healing and rebuilding the complex and troubled relationship between American Indians and the U.S.
government. The use of this process is a positive move away from an atmosphere of pure consultation to one
of increased collaboration between two legitimate governmental bodies.

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CP-Nuclear
CP Text: The United States federal government should increase revenue-
neutral nuclear energy incentives. The executive branch should engage in
binding regulatory negotiations to determine implementation. Parties will have
no more than one year to negotiate.

The Nuclear Regulatory Commission has used regulatory negotiations


National Partnership for Reinventing Government, The National Partnership for Reinventing Government (NPR),
originally the National Performance Review, was the Clinton-Gore Administration's interagency task force to reform and streamline
the way the federal government works, 21-May-2002, “Improving Regulatory Systems”,
http://govinfo.library.unt.edu/npr/library/reports/reg03.html
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]

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***2NC Answers***

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AT: Courts Rollback


Reg-Neg ensures acceptance in court
Robin McCall, J.D. Candidate 2007, University of California Hastings College of the Law, San Francisco, Winter, 2007, University
of California, Hastings College of the Law West-Northwest Journal of Environmental Law & Policy, Lexis.
A quiet revolution during the past few decades has been transforming this process. In negotiated rulemaking, nicknamed
"reg-neg," agencies share the table with concerned members of the public, or stakeholders. n143 Congress prefers agencies
to use reg-neg when it "enhances the informal rulemaking process." n144 Congress found that reg-neg 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." n145 Professor Ashutosh Bhagwat regards reg-neg as especially suited to managing public
property, because under such circumstances expertise may be irrelevant to most of the issues raised, and there are fewer
technical concerns where the potential for agency capture could pose a threat.

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AT: Takes Long Time


Reg Neg saves time
Cary Coglianese, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and
Affiliated Scholar at Harvard Law School., 4-97, Duke Law Journal, Lexis
One advantage formal negotiated rulemaking purportedly has over informal rulemaking is its ability to produce rules in less
time. Yet the impact negotiation has on the time it takes to develop a regulation remains unclear. In a 1987 article, former EPA
Administrator Lee Thomas stated that "as we look back upon our experiences with negotiated rules so far, they have
saved time. Regulatory negotiation shortened our total process on each one of them." n105 The National Performance
Review report on the regulatory process similarly stated that negotiated rulemaking at EPA has saved up to eighteen
months compared with conventional rulemaking. n106 Despite this proclaimed efficiency, the NPR authors also interestingly
cautioned Congress not to impose "short [*1279] statutory deadlines to issue proposed or final rules, especially if they are
shorter than two years [because this may] preclude the use of negotiated rulemaking." n107 In at least one instance, a federal
agency decided that "negotiated rulemaking was not a practical option" for the development of regulations because of statutory
time constraints. n108 Although negotiated rulemakings may not be sufficiently fast when an agency must meet stringent
deadlines, overall they have been thought to be potential time-savers. n109

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AT: Conglianese
Coglianese is wrong- 4 Reasons
Philip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law
School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory
Reform of the American Bar Association., 2000 “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, 9
N.Y.U. ENVTL. L.J.
Unfortunately, Coglianese’s research is significantly flawed and hence misleading concerning the actual experience with
negotiated rulemaking. First, he misapplies his own methodology by including a rule as a completed reg neg when in
fact the negotiations were abandoned early on; given the dynamics of the particular rule and Coglianese’s methodology, its
erroneous inclusion had a significant effect on the ultimate conclusion. Second, his methodology measures the wrong thing:
it fails to account for what the agency was actually trying to accomplish in several major proceedings, and hence his
results are misleading in that the agency achieved its objective a far less time than is calculated by the numbers used. Third, he
does not differentiate a substantive judicial challenge to a rule that was issued substantially as the committee agreed
from either those instances in which the agency itself significantly changed the rule after the committee reached
consensus and those petitions for review that were filed while the petitioner and EPA worked out minor details. Finally,
the proponents of negotiated rulemaking also envisioned benefits beyond the savings of time and judicial review; rather,
they were in many instances seen as derived from the other benefits. His methodology does not consider these other
values. Properly understood negotiated rulemaking has been remarkably successful in fulfilling its promise. In
particular, EPA’s experience has been that reg neg has cut the time for rulemaking by a third, knocking a full year off
the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the parties
agree not to challenge it has ever been the subject of a substantive judicial review — even though they tend to be far
more controversial and complex than average rules. And, finally, the participants and those otherwise affected by rules
find a range of values in negotiated rulemakings than those developed traditionally.

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AT: Litigation
Reg Negs solve Litigation
Cary Coglianese, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and
Affiliated Scholar at Harvard Law School., 4-97, Duke Law Journal, Lexis
As I showed in Part I, the goal of reducing litigation was a driving force behind the Negotiated Rulemaking Act. n133 According
to some, negotiated rulemaking has achieved this goal. Former EPA Administrator Lee Thomas asserted that at his agency
"regulatory negotiation has reduced litigation." n134 The National Performance Review reported a reduction in the 80
percent rate at which EPA rules are challenged to a rate of 20 percent following the introduction of negotiated
rulemaking. n135 The former research director of ACUS has written that agencies developing rules through negotiation have
succeeded in "dramatically reducing the rate of litigation over those rules." n136

Reg Neg avoid unnecessary litgation and delays in implementation


Edward P. Weber, Professor in Political Science, Director of the Thomas S. Foley Institute for Public Policy and Public Service, and
Affiliated Professor in WSU's Program in Environmental Science and Regional Planning in Washington State University, 1998, pg
127, Georgetown University Press
If a collaborative effort could produce a rule that better reflected the preferences of stakeholders and considered their
political and economic constraints, endless litigation and implementation delays might be avoided and players might
instead unite in support of an agreement. As one participant from the Department of Energy put it, the clean fuels
regulation was a good example of something that "cried out for collaboration. It was very complicated, and cooperation with
industry would result in better information with which the government could write the regulations" (interview 3/23/94). The
general perception was that a traditional notice-and-comment rulemaking procedure would limit the flow of technical
information on the reformulation process that was essential to an effective, implementable rule."

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Consult Good
Consult CPs are Good:
a. Best Policy Option- If we win that consultation is the best, than we win
b. Real World Education- Foreign Policy leaders consult all the time, it is
part of international policy making
c. Lit Checks Abuse- Literature limits the number of consultation CPs
d. Increase Strategic Thinking- Forces the 2ac to think about the plan in
light of international events
e. Neg Ground- The negative should be able to CP foreign policy methods
on a foreign policy topic
f. Key to test Resolved- The CP is offense against the resolution
g. Err neg on Theory- AFF bias, Infinite prep, 1st and last speech, 2ar
persuasion
h. Potential Abuse isn’t a voter
i. Reject the CP not the Team

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Deadlines Key
Deadlines are key to solve
Kevin Phillip Cichetti, J.D. Candidate, the Washington College of Law, Winter, 1996, 9 Admin. L.J. Am. U. 1183, lexis
Negotiated rulemaking is an open process in which all interested parties to a proposed regulation work together to find
a solution to the problem facing the agency. David M. Pritzker, Working Together for Better Regulations, 1992 A.B.A. Sec.
Natural Resources, Energy, and Envtl. Law 40. The EPA was one of the first agencies to institutionalize its own negotiated
rulemaking program and draft its own selection criteria. 48 Fed. Reg. 7494 (Feb. 22, 1983). The EPA's selection criteria
include: (1) it looks for a limited number of issues which are related to extremely controversial national policy; (2) there must
exist a well-developed factual base to permit a "meaningful discussion and resolution of the issues;" (3) there should exist
several ways to solve the problems; and (4) a firm deadline should exist for the resolution of the issues. David M. Pritzker
& Deborah S. Dalton, Negotiated Rulemaking Sourcebook 39 (1990) [hereinafter Pritzker & Dalton]. Determining the requisite
level of scienter a person must possess before the EPA commences a criminal investigation clearly fits within these criteria.

Deadlines are key to successful negotiations


Siobhan Mee, Executive Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 1997-1998. Fall, 1997, 25
B.C. Envtl. Aff. L. Rev. 213, lexis, BB
The Reg-Neg Act also directs agencies to assess the likelihood that the proposed committee will reach consensus within a
fixed period of time. n85 Deadlines often are perceived as an essential tool for moving negotiations and avoiding delay
tactics. n86 The pressure of an approaching deadline helps parties make the difficult choices that are necessary to reach
consensus. n87 Typically, deadlines are provided by the agency's commitment to develop the rule by itself if the
negotiations produce nothing by a certain date, or by a legislative or judicial mandate for agency action within a limited
time period. n88

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