Reg neg critical to solve- prior consultation critical

Failure to Reg Neg causes a political backlash to the plan

David, Queensland University of Technology Law School, Environmental Legal Systems, November, http://www.earthsharing.org.au/spaine.html

counterplan avoids politics

Philip, A.B. Kenyon College (1964); M.A. (Mathematics) Michigan (1966); J.D. Michigan (1969), 71 Geo. L.J. 1

reg-negs overcome legislative gridlock and change political perceptions of regs

Robert V., Professor of Law, Robert Stanton Scholar & Director, Environmental Law Program, University of Maryland School of Law, University of Chicago Legal Forum

Those who make a serious effort to "rethink regulation" ultimately will recognize that far more fundamental environmental progress could be accomplished by changing the nation's energy, agricultural, and transportation policies to make them more responsive to environmental concerns. The nation's tax system levies the vast majority of taxes on labor and capital rather than on waste and pollution. 215 However, fundamental reforms in tax  [*197]  or energy policy are quickly dismissed as politically unrealistic. Much more effort should be devoted to considering why such policies are so unattractive politically and what, if anything, can be done to change the political dynamics. The enactment of consensus food safety and safe drinking water legislation in 1996 demonstrates continuing bipartisan support for environmental protection. It also demonstrates that legislative gridlock can be overcome when measures are perceived to provide some benefits to both industry and environmental interests that traditionally have been antagonistic. The enactment of further environmental legislation may require the use of consensus-building processes that foster compromises necessary to overcome legislative gridlock.

giving industry input in implementation avoids political backlash to regulation

Mark, JD, West Virginia College of Law, U Iowa Journal of Corporation Law, Spring

The cost of complying with command-and-control is great. 20 However, the cost of compliance does not alone account for the condemnation that command-and-control regulation has received. 21 Most of the reproach stems from the fact that the cost of such regulations bears little relationship to the benefits achieved. 22 Indeed, in some cases the goal is not achieved even in the face of costly technological controls. 23 One reason for such inefficiency is that regulations, crafted by bureaucrats, are substituted for the judgment and experience of those within the industry who are intimately familiar with the business. One commentator has summarized this problem: To its critics, command-and-control regulation puts government in the position of making the business and operating decisions that the regulated industry should make. It displaces the judgment of people who should know their business with that of regulators who may not. The critics assert that while government is better able to determine what society's goals should be and build the necessary incentives and accountability mechanisms to get companies to achieve them, the private sector is in a better position to determine what mix of technologies, process changes, or management practices would achieve the regulatory goals. The reliance on detailed specification emphasizes design, process, or technology standards over more legitimate concern about performance. 24 Unfortunately, a collateral consequence of this phenomenon may be a loss of support from those who might otherwise support environmental goals. This loss of support may manifest itself in anti-environmental stands by members of regulated industries 25 and a presumption against any form of environmental regulation.

reg neg bipart

William, Deputy Director of the FMCS, FNS, 6-27

public supports regulatory negotiations

Cheri, JD Albany Law School, Albany Law Journal of Science and Technology

As the population gains confidence and popularity in mediation, its use is expanding to include other areas. One such area is that of environmental and social policy. 140 Another is that of "reg-negs," regulations that have been developed as a result of regulatory negotiations. 141 Policy dialogues and medical malpractice claims have also been submitted to mediation. 142 Medical malpractice is not the only area in which mediation has permeated the medical field; other areas include conflicts between doctors, administrators, and hospitals, HMOs, group practice, partnership disputes, medical staff, insurer denial of coverage or payment, bioethical disputes, credentialing conflicts and labor-management relations. 143

AT: Delay

the plan takes forever

Siobhan, Executive Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, Boston College Environmental Affairs Law Review, Fall

Another criticism of traditional rulemaking is that it is slow and cumbersome. 14 Major rules require an average of three and one-half years for their creation and promulgation. 15 A subsequent court challenge, which EPA estimates to be an eighty-five percent possibility for each of its regulations, may delay the implementation of a rule even further.

reg negs comparatively faster –

A) Empiricism

Richard B., Prof Law, NYU School of Law, Capital University Law Review

The 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 comments on a proposed role and the time and effort (which may include gathering new data and conducting 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. 284 Additionally, anecdotal evidence indicates that in  [*91]  some cases, proposals for rules that had been languishing for as long as ten years were resolved relatively quickly after going through the negotiated rulemaking process.

b) Litigation

Mark, JD West Virginia College of Law, U Iowa Journal of Corporation Law, Spring

1. Reg-Neg Versus the Traditional Method of Developing Regulations Under the traditional method of developing regulatory control, the government issues a notice describing the proposed regulation and affords the affected parties an opportunity to comment. 61 This type of "top-down" regulatory scheme has been the subject of the criticism discussed earlier. 62 By contrast, in a regulatory negotiation (reg-neg), the affected parties have the opportunity to participate in the formulation of the regulation. The reg-negs are conducted under the aegis of the Negotiated Rulemaking Act of 1990 63 and typically proceed as follows: * Agency representatives, along with a mediator, meet with the potentially affected groups prior to issuing draft regulations; * The parties on the proposed rule come to agreement after negotiations; * The proposed rule is published along with a vecitation of issues that arose during the negotiations. A successful reg-neg will result in regulations being issued much more quickly than they would be in the traditional draft and comment scenario. The successful reg-neg may also avoid the litigation that is often associated with the traditional method for issuing regulations. The reg-neg does not always work. However, even a failed reg-neg can lead to improved regulations because the issuing agency is aware of, and can consider, the affected parties' concerns.

c) avoids contentious disputes

Philip J., Visiting Associate Prof and Dir, Program on Consensus, Democracy, and Governance, Vermont Law School, Duke Law Journal, April

Moreover, a careful review of the experience with negotiated rulemakings indicates that those predictions have, indeed, been realized in diverse settings. 49 Negotiated rulemakings have been used by agencies to develop rules they knew would be controversial but which were required by statute to be issued in a very short period and for rules for which the customary notice-and-comment process simply had not worked. EPA's Clean Fuels reg neg developed the basis for reformulated gasoline and its surrounding regulatory requirements in an astonishingly short period given the magnitude of the task and the potential costs that the resulting rule would likely impose. 50 So, too, the Coast Guard turned to reg neg when it became clear that the controversies surrounding its vessel response plans meant that the rule would probably not be issued in time to meet a critically important statutory deadline that had enormous financial implications if the date were missed. The committee, an international set of representatives, was able to craft a notice of proposed rulemaking 51 that was published just seven months after the notice of intent to form the committee appeared; 52 the rule went into effect in another seven months. 53 In some instances, the reg neg committees have [*1403]  been able to develop rules in a relatively expeditious time when the issues have been languishing on the agency's dockets for years - precisely because the agency has not been able to resolve the underlying controversies. 54 And, in one of the few instances in which a negotiated rule was closely analogous to a rule developed by traditional means, the negotiated rulemaking took b to draft the rule and cost only half as much. 55

deadline solves

Professor of Urban Studies and Planning, Massachusetts Institute of Technology; Director, Public Disputes Programs, Program on Negotiation, Harvard Law School, Associate Director, Public Disputes Programs, Program on Negotiation, Harvard Law School, 3 Yale J. on Reg. 133

Seventh, the pressure of a deadline is necessary for successful negotiation. n44 Without a deadline, parties may purposefully delay or fail to focus on reaching a settlement

CONTINUED

Harter and others have argued for the importance of deadlines as a tool for keeping the negotiations moving and for avoiding dilatory tactics. n117 In most labor-management negotiations, the greatest progress traditionally occurs close to the final deadline. In accordance with this view, EPA initially set tight deadlines. In the first demonstration, the Agency actually shortened the deadline early in the process, thereby angering participants. n118 Somewhat to their surprise, however, participants were able to reach agreement even with the shortened schedule. Adverse effects became apparent when participants felt they needed more time to check back with their constituents for reactions to the proposed agreement.

AT Rollback

reg negs much less likely to be rolled back

Richard B., Prof Law, NYU School of Law, Capital University Law Review

AT: Who Is Involved

we only need to win one party would be involved – that encourages all other related parties to join

Professor of Urban Studies and Planning, Massachusetts Institute of Technology; Director, Public Disputes Programs, Program on Negotiation, Harvard Law School, Associate Director, Public Disputes Programs, Program on Negotiation, Harvard Law School, 3 Yale J. on Reg. 133

In both demonstrations, each group's BATNA was diminished by the willingness of all the other parties to participate in the demonstrations. Unless all the key groups refused to participate, any group that decided to hold out and challenge the rule in court at a later time would face difficulty mustering allies for such a challenge. Moreover, while the courts have not indicated whether they will set aside the "hard look" doctrine in instances where a well-managed negotiated rulemaking effort has been completed, the possibility of such a court response increases the uncertainty of a hold-out strategy and makes cooperation by all interested parties almost inevitable. n104

AT Perm DB

the perm designates too much power with the federal government – industry will only comply if they have the ability to change the outcome

Henry, Professor of Law, Villanova University, 74 Geo. L.J. 1625, Lexis

perm fails – parties will only participate if they feel that they have influence for compromise

Philip, A.B. Kenyon College (1964); M.A. (Mathematics) Michigan (1966); J.D. Michigan (1969), 71 Geo. L.J. 1

Although the agency retains the ultimate power to issue a regulation, the purpose of a regulatory negotiation is to draft a regulation, and not merely to lend advice and consultation to an agency. The netotiation process is likely to attract talented experts to spend the time and resources in negotiating a complex topic only if they have reasonable assurance that the agency will implement their proposal. Indeed, there would be little incentive to strike the hard  [*100]  bargain if the whole process could be easily overturned or "relitigated" before an agency issued the regulation. n547 Therefore, an essential ingredient of the success of the regulatory negotiation process is an agreement by the agency to publish the group's proposed regulation in a notice of proposed rulemaking, unless the agency has good cause for not doing so.

lie doesn’t solve – industry feels they have been duped

Philip, A.B. Kenyon College (1964); M.A. (Mathematics) Michigan (1966); J.D. Michigan (1969), 71 Geo. L.J. 1

the counterplan is mutually exclusive with the plan – the perm is impossible

Sara, J.D., University of Oregon School of Law, Journal of Environmental Law and Litigation, Spring

the perm cuts off negotiations mid-process which collapses compliance and links harder to the da

Herbert J., partner in the law firm of Crowell & Moring, Public Utilities Fortnightly, 3-1

The act also includes highly detailed provisions governing the use of binding arbitration in agency proceedings. The focus on arbitration and the level of detail devoted to it appears to be a function of the binding nature of this form of dispute resolution. The act allows the head of an agency to terminate an arbitration proceeding or vacate an arbitration award before it becomes final. If this power is exercised to vacate an award, parties may recover their attorney fees and expenses incurred in connection with the arbitration, unless the agency head determines that such recovery would be unjust. These provisions were inserted to satisfy the concerns of the Department of Justice that arbitration decisions binding the government would constitute an unlawful delegation of executive authority. The expectation is that this summary power will be exercised rarely; otherwise, parties will quickly lose faith in arbitrations involving the government. In fact, despite the focus on binding arbitration in the act, other nonbinding forms of dispute resolution may find greater favor in agency proceedings.