Selecting Participants for a Regulatory Negotiation

Abstract

The US Environmental Protection Agency recently completed two regulatory negotiation demonstrations. These demonstrations suggest that the current EPA rule-making process could be improved through the introduction of face-to-face negotiation at the earliest stages of rulemaking. In the demonstrations, EPA (1) relied on a consensus building process to forestall litigation after the promulgation of the final rule; (2) Used a nonpartisan facilitator to convene the negotiations; (3) Defined criteria to determine which parties should be represented in the negotiation. From the perspective of participants, the negotiating consensus version of a draft regulation is a successful alternative to the traditional rulemaking process. It is still too soon to say negotiated rulemaking significantly reduces the likelihood of ligitation. The results of the demonstration indicate that it is possible for either an agency employee or a neutral outsider to facilitate the sessions. A successful negotiation also requires top level agency support as well as the confidence of the environmental community. The single most important outcome of the negotiations was that the participants developed a greater understanding of the interests of the other parties. The demonstrations also suggest possible changes in future regulatory negotiations.