Arctic Oil/Gas Neg


Reg neg critical to solve- prior consultation critical



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Reg Neg

Reg neg critical to solve- prior consultation critical


Ebinger et al ‘14

 Charles K. Ebinger, John P. Banks and Alisa Schackmann, Brookings Institute, Offshore Oil and Gas Governance in the Arctic: A Leadership Role for the U.S., March 24, 2014, http://www.brookings.edu/research/reports/2014/03/offshore-oil-gas-governance-arctic



The private sector should be better integrated into efforts to strengthen Arctic governance. Since hy- drocarbon development in the Arctic will be un- dertaken by companies, they need to be involved in the process of establishing standards. This does not mean that oil and gas operators dictate their final form. Rather they should have a seat at the table of a collaborative process from the early stages of any effort. There are a number of indus- try entities undertaking such efforts, as well as ef- forts among consortia of companies researching oil spill response technology or providing mutual aid in response capabilities. Collaboration is the key to leverage the expertise and resources—both financial and in equipment and infrastructure while taking advantage of lessons learned and sharing best practices.

Reg-negs allow the government to quickly stimulate effective industry responses that are enforced and legitimate


Harter 97

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



The most well developed of these techniques, other than the public hearings and meetings that are adjuncts of the APA itself,  [*1400]  is negotiated rulemaking (reg neg). 43 Fifteen years ago, when the theory of negotiated rulemaking was just emerging, I predicted a number of major benefits from the practice. 44 Among them was the fact that the parties would be able to participate directly and immediately in the decision, thereby providing a legitimacy that is missing from hybrid rulemaking. In addition, the costs of developing the rule may be lower since the parties would not have to engage in as much adversarial research and positioning. The parties could focus on the issues that actually separate them and on the issues of importance to them. "Rulemaking by negotiation can reduce the time and cost of developing regulations by emphasizing practical and empirical concerns rather than theoretical predictions." 45 The parties have the experience and ability to focus on the details necessary to make a rule work day-to-day in the field. Interestingly, the lack of judicial review was not advocated as a prime benefit. It would be a likely ancillary benefit of the parties' mutual acceptance of the rule and its ensuing legitimacy, but was not an end in itself. Such were the predictions before any reg negs were actually undertaken. Formal evaluations are extraordinarily expensive and face the difficulties inherent in making counter-factual predictions (i.e., what would have happened if some other process were used to develop the rule), or finding a suitably analogous rule with which to compare a given proceeding. 46 As a result, few formal evaluations have been conducted, so that it is difficult to deter-  [*1401]  mine in a rigorous way the extent to which the theory has been borne out. One major evaluation has been undertaken to compare negotiated rules at the EPA with those developed by the traditional notice-and-comment process. The study is currently being conducted for the EPA by Cornelius M. Kerwin, Dean of the School of Public Affairs at American University and Professor Laura I. Langbein. They have released a draft report of their analysis of the reg neg portion of their study. 47 Their initial conclusions include: Based on the data presented above, negotiated rulemaking is successful on several critical dimensions. It is widely perceived by participants as an effective means for developing regulations on virtually all important qualitative dimensions. The criteria established in literature and law for the selection of candidates for reg neg appear to be relevant in the selection process used by EPA, although their importance appears to vary from case to case and the discretion exercised by key Agency officials in the use of techniques is obviously considerable. The opportunity to participate in the process appears to be extended broadly, albeit not universally, and EPA or the facilitator it secured were frequently identified as an initiator of participation. The process of negotiation itself emerges as a very powerful vehicle for learning what the participants in the process value highly, and there are many types of information that is exchanged. The interviews suggest further that what is learned has long-term value and is not confined to a particular rulemaking... The negotiation process employs a number of devices to subdivide issues, such as working groups and caucuses, that were viewed as effective by a substantial number of respondents. And the use of non-committee observers serves as a device to expand participation without inflating the negotiating groups past workable limits. Facilitators were generally viewed as competent, unbiased and providing a number of services that promoted consensus. [*1402] Most participants believe their participation had a substantial effect on the agreement that was produced and report that the opportunity to have an impact on the outcome was one of the aspects of the process they considered most valuable. 48

counterplan appeals to industry’s best alternative to the negotiated agreement (batna) – they will comply because they perceive the plan as threatening their industry


Perritt 86

Henry, Professor of Law, Negotiated Rulemaking Before Federal Agencies: Evaluation of Recommendations by the Administrative Conference of the United States, 74 Geo. L.J. 1625, ln



Regulatory negotiation is but one mechanism to accomplish political accommodation. Negotiation will succeed only when persons able to use other processes have an incentive to participate in negotiations and to reach negotiated agreement. Incentives operate at several different levels: at the level of the negotiation itself, and at lower levels, where negotiations within constituencies are necessary to produce party positions. The best way to understand incentives to negotiate is first to consider the viewpoint of a hypothetical, monolithic party. Having described the incentives for this hypothetical party, one then can overlay complications that influence real world regulatory negotiations, especially complications inherent in intragroup interest aggregation. A useful conceptual structure for understanding incentives to negotiate is the one offered by Professors Fisher and Ury in their book on the negotiation process. n53  [*1637]  They explain that the participation of any party to 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. n54 For potential participants in a regulatory negotiation, BATNAs are determined by perceptions of what the agency will do in the absence of a negotiation. n55 A rational, monolithic party will participate in regulatory negotiation only if it perceives the probable negotiation outcome to be superior to its BATNA, determined by the party's estimate of probable unilateral agency action. Different parties are likely to have different BATNAs because they predict the unilateral agency outcome differently, or because they have different predictions of the cost impact and benefit of agency action. The BATNA determined participation incentive is not invariant; it likely will change over time for each party, as the party gets additional information about the agency's intentions. Even more important, other negotiators, neutral mediators or convenors, and the agency itself can influence party BATNAs, and hence party incentives to negotiate and to agree. The most appropriate analogy to a regulatory negotiationg is not a traditional labor-management negotiation, where BATNAs are determined by each party's assessment of the opponent's ability to inflict injury to or offer rewards. Instead, the appropriate analogy is to civil litigation settlement negotiation in which party predictions of what a nonparty, the judge or jury, will do determine BATNAs. In regulatory negotiations, as in settlement negotiations, the third party decisionmaker can influence party perception of likely outcome in the absence of a negotiated settlement. In other words, the agency or judge changes BATNAs by what she says about her intentions. This model suggests that regulatory negotiations are most likely to be successful when the agency (or some other credible source) persuades each potential participant that unilateral agency action has undesirable consequences for that participant. Lower BATNAs mean greater incentives to negotiate a solution.

finally, setting a specific end-time encourages quicker action – avoids foot-dragging associated with the plan


Harter 82

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



The parties will not expend the resources required for negotiation unless they are convinced that they will benefit from negotiation. Parties frequently may benefit by delaying a decision, and it seems to be human nature to procrastinate until action is required. Thus, negotiations are likely to work best if a decision is inevitable, or even better, imminent. If the decision is inevitable or imminent, and the parties in interest fail to reach an agreement by negotiation, someone else will make the decision. In the regulatory context, this situation may occur if a statute, a court order, or an overriding political pressure requires agency action within a particular time. This situation also could occur if the agency has committed itself to a schedule in the regulatory agenda, n261 or has announced a schedule for action on an ad hoc basis. In such cases, if the parties fail to reach agreement, the agency itself, or in some situations, a court or Congress, makes the decision. n262 The most favorable climate for negotiation occurs when all the parties believe that there is some urgency for reaching a decision. n263 The inevitability of a decision creates that urgency [*48]  to a degree. The parties then feel pressure to reach a decision themselves before someone else makes the decision and deprives them of control. Despite the attraction of delay, in some instances a prompt decision may serve the parties' interests. For example, a company may wish to manufacture a new product or build a new plant and an agency plans to issue regulations that will control aspects of the decision. The company may be afraid to proceed because it fears that it may incur the substantial cost of modifying the product or plant in response to the new regulation. The company then would prefer a prompt decision if the regulation appears to effectuate that party's interest. In such a case, delay is not in the interest of either side. Even if delay is in a particular party's interest, such as when the regulation will necessitate expensive retrofitting or large capital expense, the issue still may be suitable for negotiation if the implementation date is among the issues negotiated. Assuming that some decision is inevitable, if the implementation date is included in the issues negotiated, the reluctant party may prefer the certainty of outcome. The party thus may be willing to negotiate if it stands to gain time to implement the regulation.

Solvency – Compliance



only the counterplan is viewed as legitimate – cognitive dissonance, and benevolence of the process


Freeman and Langbien 2k

Jody, Professor of Law, University of California, Los Angeles, Laura, Professor, School of Public Affairs, American University, 9 N.Y.U. Envtl. L.J. 60

 [*65]  At first glance, one might assume that cognitive dissonance explains the higher satisfaction rates - after all, participants devoted considerable time and resources to regulatory negotiation. But we think that this possibility, even if plausible, is largely irrelevant. n20 First, these sophisticated parties did not hesitate to criticize reg neg; despite their overall positive evaluations, fully 95% identified things they disliked. n21 Second, and more important, however, we simply reiterate the facts: regardless of the reason reported, participant satisfaction is higher for negotiated than for conventional rules (on which participants also expended effort), and the legitimacy of the outcomes in their eyes is also greater. Cognitive dissonance (or some other psychological mechanism) might help to explain how regulatory negotiation works, but it does nothing to diminish the value of the process, unless the intervening psychological mechanism responsible for the legitimacy benefit has some independent negative status. n22 In other words, reports of satisfaction may be "biased," but it makes no difference to the legitimacy benefit. n23

counteprlan increases likelihood of regulatory compliance


Freeman and Langbien 2k

Jody, Professor of Law, University of California, Los Angeles, Laura, Professor, School of Public Affairs, American University, 9 N.Y.U. Envtl. L.J. 60

The compliance implications of consensus-based processes remain a matter of speculation. n360 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. n361 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. n362 Perceiving that others will comply might induce more  [*131]  compliance among competitors, along the lines of game theoretic models, at least until evidence of defection emerges. n363 Moreover, to the extent that compliance failures are at least partly due to technical and information deficits - rather than to mere political resistance - it seems plausible that reports of the learning effect and more horizontal sharing of information might help to improve compliance in the long run. n364 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." n365 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 Langbein's 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  [*132]  with our contention that process matters, we expect it to matter to compliance as well.

Politics Net-Benefit

counterplan is popular and discourages industry backlash


Freeman and Langbien 2k

Jody, Professor of Law, University of California, Los Angeles, Laura, Professor, School of Public Affairs, American University, 9 N.Y.U. Envtl. L.J. 60



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, n256 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. n257 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," n258 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. n259 "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. n260 Moreover, the standard deviation of judgments was smaller under reg neg. n261 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.  [*113]  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." n262

Failure to Reg Neg causes a political backlash to the plan


Spain 96

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



Legislation cohering consensus policies stipulate a process by which measures are regularly & ethically negotiated (between bureaucrats & industry, perhaps with public input) on a case-by-case basis. In this vein may be mentioned a variety of co-operative measures such as state intervention (eg liming of acidified lakes) and demand management (eg peak rate hikes). Co-operative mutual restraint (which tends to become enshrined in custom) may be the only efficient method of environmental safeguard where the users are impoverished nomads (eg grazing vulnerable rangelands) or where thinly-spread resources are exploited (eg extraction of timber), with complicated impacts (eg canopy & habitat damage involved in cutting & snigging). The comparative abundance of well-informed & active citizenry in a modern democracy makes it dangerous for a government to impose any policy or strategic plan without exposing the draft for public comment: failure to take this course and sincerely listen can be perceived as arrogant and excite voter backlash. Even so, it is the developers & industrialists (unlike the unpaid, volunteer public) who have the most time & money to devote to such "negotiation", and it is they who tend to have the ear of bureaucrats & politicians. Thus, indigenous governmental intervention is quite likely not only to fail to address pollution but indeed to engender it: expensive high-stack smoke dispersal may achieved glorious blue sky over urban areas, such that a myriad local voters happily return the incumbent politician, but in reality the problem is merely displaced and engenders acid rainfall elsewhere…

counterplan avoids politics


Harter 82

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



If the subject of the regulation raises significant political issues, the negotiation group should keep Congress and the White House abreast of negotiation developments. If a mediator participates, he should touch base with relevant congressional committees and offices within the White House to permit the negotiation group to consider their views during the negotiations and to avoid political surprises. n548 The report of the consensus also should be furnished to Congress and to the White House to enable them to communicate any substantial concerns to the agency. Providing such notification to the political forces and permitting their concerns to be taken into account will help insulate the agency from political attack. In addition, this procedure would be a political prod to the agency because it would need a good reason to reject the consensus of competing forces. If the agency rejects the consensus without good reason it might appear that the agency is changing the results of the negotiations capriciously.

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


Percival 97

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


Stach 97

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


Liebman 96

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



Federal agencies possess the authority to engage in negotiated rulemaking under their enabling statutes and the Federal Advisory Committee Act, and a few agencies have used reg-neg for more than a decade. However, prior to passage of the Negotiated Rulemaking Act of 1990, 5 U.S.C. 561-570, many agencies were not using it, at least in part because of their unfamiliarity with the mechanics of the process and uncertainty about their authority to use reg-neg. The Negotiated Rulemaking Act received strong bi-partisan support in Congress which began to encourage more and more agencies to experiment with the process.

public supports regulatory negotiations


Ganeles 2

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


Mee 97

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


Stewart 1

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


Stach 97

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


Harter 97

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


Susskind and McMahon 85

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


Stewart 1

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



A 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 parties. 286 This may explain in part why EPA has become such a strong supporter of negotiated rulemaking; it has been widely reported that approximately 75% of the final rules promulgated by EPA are challenged judicially.

AT: Who Is Involved



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


Susskind and McMahon 85

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


Perritt 86

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



The relative attractiveness of negotiations will be influenced by these aspects of power. n95 Harter offered the following criteria to define situations where negotiation would be most effective. n96 He stressed that he did not envision mechanical application of the criteria or satisfaction of every criterion. n97
 
1. Countervailing Power n98 Each party must have power to affect the decisional outcome. This can flow from the capacity to influence the legislature, the ability to run an effective public relations campaign, substantial litigation resources, or any other way of obtaining an outcome favorable to the party, or from inflicting costs on opponents, in another forum. Negotiation will be effective as a decisional process only if no  [*1644]  one party has power sufficient to overwhelm the others. n99 Increased power on one side, however, strengthens incentives for opposing sides to seek a negotiated solution.

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


Harter 82

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


Harter 82

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



Although agencies could carry out a form of regulatory negotiation under current law by empaneling an advisory committee, the full benefits of the regulatory negotiation process could probably not be achieved through such devices. The Federal Advisory Committee Act requires open meetings that are controlled by the agency; the parties should be able to close the meetings when appropriate.Moreover, it is uncertain how a court would react to ex parte communications during the negotiation process, or challenges to a negotiated rule by interests that sat out the process or by negotiation participants that  [*113]  wished for more participation than they received in discussions. In addition, the agency may fear a stringent form of judicial review of underlying facts akin to the review of hybrid rulemaking because the negotiation process might not generate a record suitable for such a review. These doubts over the court's reaction could inhibit the full use of the negotiation process.

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


Pirk 2

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



Regulatory negotiation is an alternative to notice and comment participation and was developed to form dialogue among regulators, regulated parties, and interested parties. 33 It is used in rule-making and is considered an efficient way to form rules with which everyone can live. Regulatory negotiation is also considered a good method of public participation because it produces better results. Through negotiation over rules in a small forum, the groups involved are more likely to cooperate and problem-solve rather than take sides and defend their positions. Regulatory negotiation gives parties involved in following and enacting rules, as well as interest groups, a chance to directly participate in formulating rules that they will have to follow. This differs from notice and comment public participation where only the enacting agency makes the rules and then announces them to other parties who never had the chance to influence the decision making process when it counted. By having all the parties work together on the rules, working relationships are formed that can be beneficial in the future. The parties, including agencies such as the EPA, are more satisfied because they have a direct role in rule-making.

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


Martin 91

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.



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