Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Abstract

Over its thirteen year history, the negotiated rulemaking process has yielded only thirty-five final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and- comment process. Why have federal agencies relied so little on negotiated rulemaking? I examine this question by assessing the impact of negotiating rulemaking on its two major purposes: (1) reducing rulemaking time; and (2) decreasing the amount of litigation over agency rules. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated and that the limitations of negotiated rulemaking have been understated. Negotiated rulemaking by all accounts consumes more resources for agencies and stakeholders than does notice-and-comment rulemaking, yet it fails to yield any significant impact on the levels of litigation or controversy which normal rulemaking occasionally engenders. Indeed, 6 out of the 12 negotiated rules adopted by the U.S. Environmental Protection Agency (EPA) have resulted in court challenges, a litigation rate higher than the overall rate for EPA rules. My findings draw into question the growing call among scholars and policymakers for reforming the regulatory process to rely more extensively on formal negotiated rulemaking, suggesting that formal negotiation can actually expand the range of potential conflicts in the regulatory process rather than reduce them.