Regulatory Negotiation as a Policy Process

Abstract

Regulatory negotiation is a process of policy formulation that brings representatives of affected interests together to reach consensus on the content and sometimes the language of a proposed rulemaking. Its use in environmental policy reflects a trend toward resolving controversies through consultation, mediation, and negotiation rather than through litigation or other forms of institutional confrontation. In Resolving Environmental Disputes, Gail Bingham documents the steady expansion in the use of consensus-based techniques, from a handful between 1974 and 1977 to an average of some 25 each year from 1980 to 1985 (Bingham, 1986). As in other areas of law and policy, parties to environmental disputes have found mediation and negotiation to be more satisfying, less expensive, and more constructive than an adversarial approach. Although negotiation can be viewed as part of this trend toward alternative dispute settlement, it differs from many of the forms of environmental mediation that Bingham and others have studied. First, the controversies that negotiated rulemaking aims to resolve extend beyond particular geographic sites or concrete disputes and have broad policy applicability. Second, regulatory negotiation is prospective in its orientation; its purpose is less to resolve specific disputes than to define general rules that will influence behavior later (Harter, 1982). In both respects, regulatory negotiation is more like the legislative than the judicial process as a framework for making policy (Eisenberg, 1976, p. 638). This paper examines regulatory negotiation as a policy process, stressing in particular its contrasts with conventional rulemaking, its relationship to environmental dispute settlement generally, and its comparisons with more analytically-based approaches to formulating regulatory policies. The purpose is to sketchat both a practical and theoretical level-the distinguishing features of negotiated rulemaking and-to suggest limits of its institutional usefulness, rather than to assess the inner workings of the process itself. The next section gives a brief overview of the use of negotiated rulemaking at the U.S. Environmental Protection Agency (EPA). The following sections consider negotiation from a practical and then a theoretical perspective. The first perspective consists of evidence from negotiations conducted by EPA to date. The second considers negotiation in the context of administrative policy making generally. The conclusion offers an assessment of negotiated rulemaking as a policy process. * Regulatory negotiation brings representatives of affected interests together to reach consensus on the content and sometimes the language of a proposed rulemaking. This article examines regulatory negotiation as a policy process, stressing in particular its contrasts with conventional rulemaking, its relationship to environmental dispute settlement generally, and its comparisons with more analytically-based approaches to making environmental policy. The article considers four of the seven negotiations conducted to date by the U.S. Environmental Protection Agency as cases for the analysis. Negotiation appears to offer a number of advantages over the conventional rulemaking process, including the parties' access to practical information that can be considered as it is needed; the opportunity to educate potential opponents and persuade them that adopting a particular provision will not harm their interests; and the parties' capacity to rank and trade off positions to maximize their own interests. A theoretical analysis, however, suggests limitations to the applications of negotiation-its theory of representation and its potential subordination of decision premises to the instrumental needs of the parties and the process. Within its limits, however, and with procedural safeguards, regulatory negotiation can offer a valuable complement to the conventional rulemaking process.