From Agitation to Collaboration: Clearing the Air through Negotiation

Abstract

National pollution control policy making has long been defined by conflict and delay. Environmentalists have portrayed their industrial rivals as evil incarnate, while industry has claimed environmentalists are zealots in the thrall of some romantic notion of a pre-industrial society. Amid this conflict, the Environmental Protection Agency (EPA) has tried to draft regulations that are both workable and effective in lengthy processes pitted by legal challenges, and stilted by the difficult search for accurate technical and political information, while state regulators fume waiting for the federal authority to begin enforcing the programs for which Congress holds them accountable (Harter, 1982; McGarity, 1992; Pritzker 1990; Mashaw and Harfst, 1990). Not surprisingly, it is estimated that 80 percent of all major rules issued by the EPA are litigated in lengthy court battles that are the stuff of legend in environmental politics (Council on Environmental Quality, 1985; Ruckelshaus, 1985). Yet in important cases, agitation and delay in environmental policy making is giving way to collaboration and timeliness. While the traditional notice-and-comment rule making procedure is still the dominant method for developing environmental regulations, as early as 1983 the EPA began to experiment with regulatory negotiations (or reg-negs) that bring environmentalists, state officials, and traditional business adversaries together in collaborative efforts to hammer out consensus-based rules. But the reg-neg is only one of several collaborative approaches the EPA is taking to develop regulations. 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. The EPA now promotes dozens of public-private partnerships that leverage scarce public resources by tapping private equity and expertise to fulfill environmental protection goals. Market-based incentives are being explored and implemented across the country, and are being promoted, in some cases, by traditional skeptics like environmental advocates and government regulators. The EPA is not alone in its search for and use of alternative means to resolve regulatory disputes. Within the framework established by the Negotiated Rulemaking Act of 1990 and under the guidelines established by the (now defunct) Administrative Conference of the United States (ACUS), regulatory negotiations are employed by federal agencies such as the Nuclear Regulatory Commission; the Federal Aviation Administration; the Federal Trade Commission; the Departments of Education, Interior, Agriculture and Transportation; and the Occupational Safety and Health Administration. Conventional wisdom presents the American political system as unable to utilize alternative, consensus-based policy mechanisms, and views policy making, particularly in the highly combative environmental arena, as increasingly conflictual, open, and competitive (Berry, 1989; Heclo, 1978; Wilson, 1981; Wilson, 1980; Rabe, 1988). A growing literature challenges this position by identifying collaborative efforts and the potential gains to be realized through their use, even when bitter adversaries of long standing are involved (Fisher and Ury, 1981; Fiorino and Kirtz, 1985; Susskind and McMahon, 1985; Kerwin and Furlong, 1992). It is argued that regulatory policy can be developed in a more timely fashion, at a lower cost to all participants, and can produce a more robust policy all participants will support, thus making regulation more effective in the long run. More recent research tempers the enthusiasm, suggesting costly barriers to participation in collaborative efforts for consumer and environmental advocacy organizations, in particular, and time demands similar to traditional regulatory proceedings (see Polkinghorn, 1995; Kerwin and Langbein, 1995; Coglianese, forthcoming; but see Weber, forthcoming, for a critique of these findings). …