***Regulatory Negotiations CP
1NC
1NC Regulatory Negotiations CP
Text
The United States federal government should engage in binding regulatory
negotiations over <the thesis of the plan> with relevant and appropriate stakeholders.
The result of the negotiations will be submitted for notice and comment and finalized
as per APA guidelines. The United States government position in negotiations will
advocate that <thesis of plan>.
The Counterplan is Mutually Exclusive-Negotiated rulemaking does not guarantee an
increase in development or exploration. Any permutation would sever increase.
McKinney-PhD Conflict Resolution Michigan-99
60 Mont. L. Rev. 499
Negotiated rulemaking, sometimes referred to as regulatory negotiation or "reg-neg," emerged in the
1980s as an alternative to traditional procedures for drafting proposed regulations. 1 The essence of the
idea is simple: in certain situations, it is valuable to bring together representatives of the responsible
agency and the stakeholders to jointly prepare the text of a proposed rule before the agency submits
the rule to the formal rulemaking process. In the traditional draft-notice-comment approach to
administrative rulemaking, the agency may or may not consult people whose activities are regulated, or
who might otherwise be interested in the issue, to gather information that may be helpful in drafting
the proposed rule. And when an agency does seek the input and advice of stakeholders during the
process of drafting a rule, it typically consults with one stakeholder at a time. Such contacts are usually
informal and unstructured. In short, traditional rulemaking procedures do not necessarily encourage the
agency and all affected parties to sit down face-to-face and exchange ideas in an effort to reach
agreement prior to drafting the proposed rule. Negotiated rulemaking, by contrast, provides an
opportunity for all stakeholders and the responsible agency to work together to draft a proposed rule. In
some situations, additional negotiations among the agency and the stakeholders may be useful after the
formal public comment period and during implementation of the rule. By allowing the agency and all
affected interests to jointly frame the issues and search for mutually agreeable solutions, negotiated
rulemaking is supposed to increase citizen participation in public decision making; improve the
substance of a proposed rule; shorten the length of time necessary to implement a final rule; increase
the level of compliance; and reduce litigation. In theory, it can also foster cooperative working
relationships among the agency and stakeholders.
And, Negotiated rulemaking solves better and avoids the DAs.
Harter-President of Administrative Law Conference of the US-97
46 Duke L.J. 1389
Conclusion: What is the Grade? It
is currently popular to talk in terms of consensus and of public involvement, in
terms of "public-private partnerships," and of community involvement. Properly executed, these
processes can greatly expand an agency's knowledge and insight into an issue on which it must act,
expedite the agency's work by highlighting the contentious issues to which the agency can devote its
resources, [*1423] lead those affected to accept decisions they might otherwise oppose , develop
political support for decisions that would be played out in many fora , and resolve specific issues that
would otherwise end up in court or Congress . The resulting regulatory actions often are more creative
and subject the issues to more stringent scrutiny at lower costs than actions taken through more
traditional means. In short, the regulatory actions are often simply better by virtually any measure. These
are, indeed, powerful tools. A number of new approaches have been tried, and proven approaches have been tinkered with in an attempt to
see what is necessary and what is not. These processes clearly work best when those implementing them pay close attention to the factors that
have emerged from a generation of experience. To secure their wider endorsement, it will be necessary to convince the agency program
managers that it is in their interest to be full participants in processes that lead to a commitment. Program managers must realize that through
consensus processes, they learn a huge amount and can develop extraordinarily sophisticated decisions that otherwise would not be within
reach. Without this support, unfortunately, these potentially powerful tools will not be fully used and those used in their stead do not have
nearly the same benefits. Perhaps just as adolescents shy from commitment but soon emerge from their hesitancy to undertake wholesome
relationships, so too will the current experience with processes that are short of consensus lead to ones that embrace it so that we can gain
their full potential.
Theory
A2: CP Illegitimate
---In the context of regulatory policymaking PROCESS matters. The burden is on the
affirmativeto prove the counterplan isn’t a relevant consideration.
Freeman-professor of Law UCLA-2K 9 N.Y.U. Envtl. L.J. 60
REGULATORY NEGOTIATION AND THE LEGITIMACY BENEFIT
The results of this study are consistent with the possibility that satisfaction does not wholly depend on
perceptions of "winning" or exacting gains from other groups. Instead, the data suggest that the legitimacy
benefit turns, to a significant extent, on participation in a process, specifically one that presents an
opportunity to affect the outcome. This view is bolstered by the work of social psychologists, which indicates
that involvement in a process enhances perceptions of legitimacy among participants, independently of
whether outcomes ultimately favor these participants. 32 This interpretation is consistent with yet another
[*68] finding of the study: two-thirds of the participants in negotiated rulemakings, regardless of group
affiliation, believe that their effect on the outcome was substantial. 33 In sum, the data here support what
numerous other studies have already demonstrated: process matters. We believe not only that people
assess legitimacy on procedural as well as substantive grounds, but also that, when choosing a process,
legitimacy ought to concern us at least as much as cost, time, and litigation rates. This is especially so where
the difference between alternative processes on these three scores is not great, as with reg neg versus
conventional rulemaking. Given the legitimacy benefit, the learning effect, and the absence of evidence
of greater capture, we believe that the latest empirical evidence shifts the burden to those who
oppose regulatory negotiation to articulate when and why agencies ought not to use it.
---Net Benefits check abuse and provide a germane policy warrant for voting negative.
The logic of policymaking dictates that a policymaker would choose the superior
competitive option.
---Process/Substance distinction is arbitrary. First, the CP leaves open the possibility of
changes to the substantive mandates of the plan. Second, their interpretation ignores
the importance of implementation questions in policymaking which distorts education
and precision.
A2: Perm-Do Both (Do the CP)
---Links to all of our net benefits because it fails to engage in binding regulatory
negotiations which are necessary to achieve superior policy outcomes and diffuse
political opposition to the plan.
---Mutual Exclusivity-Extend our McKinney evidence from the 1NC that clarifies the
plan and counterplan as distinct policy options. The plan unconditionally increases
exploration or development. The counterplan does not guarantee an outcome and
leaves open the possibility of modifications to the plan. More evidence.
Lubbers-Fellow in Law and Government, American University-‘8 49 S. Tex. L. Rev. 987
As the ADR movement made its way from the courts to the agency hearing rooms in the 1980s, negotiated
rulemaking (sometimes called "regulatory negotiation" or simply "reg-neg") also emerged on a parallel track
as an alternative to traditional procedures for drafting proposed regulations. This exemplar of regulatory
reform was based on two insights: (1) that the usual process of written notice-and-comment rulemaking has
an intrinsic weakness because stakeholders engaged in it do not interact with each other or with the agency;
and (2) in certain situations, it is possible to bring together representatives of the agency and the various
affected interest groups to negotiate the text of a proposed rule. If the negotiators are able to achieve
consensus on a draft rule, the resulting final rule is likely to be issued more quickly, easier to implement, and
less likely to be subsequently challenged in court. Moreover, even in the absence of consensus on a draft rule,
the process may be valuable as a means of better informing the regulatory agency of the issues and the
concerns of the affected interests. For these reasons, negotiated rulemaking was seen as an appropriate
application of ADR principles to the quasi-legislative rulemaking process.
---Severs Increase which means to make larger
Merriam Webster
http://www.merriam-webster.com/dictionary/increase
to make (something) larger or greater in size, amount, number, etc.
Severance is illegitimate-Allowing the affirmative to pick and choose which parts of
the plan to defend destroys the ability for any counterplan to compete. Negative
strategy relies on a stable 1AC plan text.
“Should” means “must” and requires immediate legal effect
Summers 94 (Justice – Oklahoma Supreme Court, “Kelsey v. Dollarsaver Food Warehouse of Durant”,
1994 OK 123, 11-8,
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn13)
¶4 The legal question to be resolved by the court is whether the word "should" 13 in the May 18 order connotes
futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must
be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the
critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will
or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered
from the four corners of the entire record.16
[CONTINUES – TO FOOTNOTE]
13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of
meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH
LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge
quotation infra note 15. Certain
contexts mandate a construction of the term "should" as more than merely
indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of
damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory);
Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party
"should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to
include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should"
would mean the same as "shall" or
"must" when used in an instruction to the jury which tells the triers they "should disregard false testimony"). 14 In praesenti means
literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that
which in law is presently or immediately effective, as opposed to something that will or would become
effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).
---Textual Competition
A. The CP textually competes with increase since our interpretation precludes the
possibility of a negotiated outcome that results in regulation
B. Flawed interpretation. Would exclude all negotiation counterplans and allow ban
the plan permutations. You should defer to our competition distinctions that are
grounded in the literature.
A2: Perm-Do Both/Do the CP/Lie
---Engaging in nonbinding negotiation under the guise of binding negotiation links to
all the net benefits
Lubbers-Fellow in Law and Government, American University-‘8 49 S. Tex. L. Rev. 987
Misunderstanding between the agency and stakeholders can occur if the agency calls a meeting for
one purpose, but tries to achieve another. One example is convening a process for information sharing
and then expecting agreements to emerge. Another is holding meetings under the guise of consensus
building, when information gathering is the sole and intended purpose, or portraying a public
relations (opinion changing) initiative as a collaborative process. Misuse of collaborative processes
diminishes the likelihood of their future use. The same cynicism that sometimes marks public reaction to
government's efforts to solve problems can extend to improperly used collaborative processes. 84
more evidence
Harter-President of Administrative Law Conference of the US-97
46 Duke L.J. 1389
C. Consultation, not Consensus A negotiated rulemaking forces the parties to bring an enormous amount of
practical information to the table and hence expands the data base on which to build a regulation. The
practical insight contributed by those with first-hand experience also allows agency staff to focus
resources on areas with the greatest potential payback. While these may seem to be considerable
benefits of the process, a fair number of agency personnel feel it is inconsistent with their prerogative to
share the decision with others around the table. 104 For example, the Steel Erection Negotiated Rulemaking
Advisory Committee (SENRAC) at OSHA developed a rule addressing the erection of steel buildings and other
structures. 105 When the [*1419] rulemaking started, the primary, indeed virtually the only issue in
contention was how high an ironworker could climb before having to be secured or otherwise protected from
falls. It became clear as the negotiations progressed that many other factors would contribute
significantly to a safer work place. Although the fall protection scheme in SENRAC's recommendation is
based on an earlier standard developed by OSHA itself, and in many ways is more stringent than that
standard for comparable work, the standard has been opposed internally by OSHA staff. This opposition
has arisen despite the fact that OSHA had representatives on the committee (one formally, the other as
counsel) through whom its staff could have voiced its concerns, and despite the fact that senior officials and
committee members who strongly advocated safety concurred in the standard. The staff has delayed adoption
of the standard by 18 months, just as they did in OSHA's previous reg neg on MDA. This is certainly not an
example of the staff's being frozen out of the decisionmaking process, since it could have fully participated
both in internal caucuses and in the negotiating sessions. Because of the staff's feeling that it must preserve
its authority to ensure a "correct" decision on the issue, 106 there has been a reluctance to embrace consensual
processes in which the outcome is an agreement - a commitment on the part of private sector and agency
alike to abide by the agreement. Just why that resistance has grown in this administration is difficult to
explain. 107 Instead, there has been a broader endorsement of "consultative" processes or "consensus
recommendations" in which the committee provides advice to the agency for its due consideration. As dis[*1420] cussed above, 108 many of the benefits of the process are lost by this change.
**Solvency
General
Comparatively better than conventional rulemaking- higher compliance, improvement
of rules and legitimacy
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
In this article, we present an original analysis and summary of new empirical evidence from Neil Kerwin and Laura Langbein’s two-phase study
of Environmental Protection Agency (EPA) negotiated rulemakings.5 Their qualitative and quantitative data reveal more about reg neg than any
empirical study to date; although not published in a law review article until now, they unquestionably bear upon the ongoing debate among
legal scholars over the desirability of negotiating rules. Most importantly, this is the first study to compare participant attitudes toward
The findings of the studies tend, on balance, to
undermine arguments made by the critics of regulatory negotiation and to bolster the claims of
proponents. Kerwin and Langbein found that, according to participants in the study, reg neg generates more learning ,
negotiated rulemaking with attitudes toward conventional rulemaking.
better quality rules , and higher satisfaction compared to conventional rulemaking.6 At the same time,
stakeholder influence on the agency remains about the same using either approach.7 Based on the results, we
recommend more frequent use of regulatory negotiation, accompanied by further comparative and empirical study, for the purposes of
establishing regulatory standards and resolving implementation and compliance issues. This recommendation contradicts the prevailing view
that the process is best used sparingly, and even then, only for narrow questions of implementation.1' In our view, empirical studies of
negotiated rulemaking that examine cost, time, and litigation rates tell only part of the story and, we believe, not the most important part.
The studies summarized here go beyond these limited measures of success and provide a more textured
picture of regulatory negotiation. Along virtually every important qualitative dimension, all participants in this study—
whether business, environmental, or government— reacted more favorably to their experience with
negotiated rules than do participants in conventional rulemaking.10 Contrary to the critics' expectations, Kerwin and
Langbein found that negotiation of rules reduced conflict between the regulator and regulated entities,
and it was no less fair to regulated entities than conventional rulemaking.11 The data contradict claims
that regulatory negotiation abrogates an agency's responsibility to implement laws written by
Congress;12 indeed, the process may better enable the agency to fulfill that role. Regulatory negotiation
clearly emerges, moreover, as a superior process for generating information , facilitating learning ,
and building trust. 13 Most significantly, consensus-based negotiation increases legitimacy , defined as the
acceptability of the regulation to those involved in its development.14 This legitimacy benefit, which
was observed independently of the types of rules chosen for conventional versus negotiated
rulemaking, and independently of differences among the participants, including their affiliation,15 is no
small accomplishment and we argue that, in any event, it is more important than reducing transaction
costs.
Reg neg solves best- consensus, litigation, time, compliance and exchange of
information
Stewart 01 (Richard B. Stewart, University Professor and John Edward Sexton Professor of Law at New York University School of Law, “A
New Generation of Environmental Regulation, Capital University Law Review, 2001, 29 Cap. U.L. Rev. 21)
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. n284 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. n285 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. n286 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. n287 Third, stakeholder input and acceptance of a rule
may also make it easier to implement and will lead to greater levels of compliance , due to what EPA
refers to as "ownership" of the rule. Where the parties have reached a consensus and taken part in the
formation of the rule, they have an interest in seeing the process succeed and develop a commitment to
the end result. Finally, the greatest potential benefit of negotiated rulemaking may be that it leads to
better rules . As Judge Wald has pointed out, the normal rulemaking process is adversarial in nature.
This invites parties to take extreme positions in order to preserve later challenges, and leaves the
agency presented with polar views. n288 Not only does this make it more difficult for EPA to determine
what stakeholders' true priorities are, but it leads to the withholding of information which might be
useful to EPA in drafting a workable and appropriate rule. Thus the negotiation process may facilitate a
freer exchange of information among parties, producing [*92] more practical rules that can take
account of "real-world" consequences . EPA managers have reported that the negotiation exercises
that they participated in were worthwhile for this reason even where no consensus was reached.
Avoids Backlash
Process matters- perception of reg neg increases overall satisfaction
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
The results of this study are consistent with the possibility that
satisfaction does not wholly depend on perceptions
of "winning" or exacting gains from other groups. Instead, the data suggest that the legitimacy benefit turns, to a
significant extent, on participation in a process, specifically one that presents an opportunity to
affect the outcome. This view is bolstered by the work of social psychologists, which indicates that involvement in a
process enhances perceptions of legitimacy among participants, independently of whether
outcomes ultimately favor these participants.32 This interpretation is consistent with yet another finding of the study:
two-thirds of the participants in negotiated rulemakings, regardless of group affiliation,
believe that their effect on the outcome was substantial.33 In sum, the data here support what
numerous other studies have already demonstrated: process matters . We believe not only that people assess legitimacy on
procedural as well as substantive grounds, but also that, when choosing a process, legitimacy ought to concern us
at least as much as cost, time, and litigation rates. This is especially so where the difference between alternative
processes on these three scores is not great, as with reg neg versus conventional rulemaking. Given the legitimacy benefit ,
the learning effect , and the absence of evidence of greater capture , we believe that the
latest empirical evidence shifts the burden to those who oppose regulatory negotiation to
articulate when and why agencies ought not to use it.
Participants are more satisfied with the outcomes of reg neg
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the
Legitimacy Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U,
Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Moreover, when disaggregated, the Phase I data shed light on some interesting internal differences
among participants (bus- iness versus environmental groups, for example) in their reac- tions to the
process. Finally, the Phase I data provided the basis for the explicitly comparative analysis in Phase II: in
our view, presenting the findings from Phase I separately helps make the results of Phase II more easily
comprehensible. The Phase I findings indicate that parties view regulatory ne- gotiation as a flexible,
broadly inclusive, resource-intensive process through which they learn a great deal, particularly from
each other, and through which they exert significant influence on out- comes. Two-thirds of
participants consider their contributions to have had a major or moderate impact on the
outcome*4'1—indeed, participants report that the opportunity to make an impact on the outcome
was one of the aspects of the process they considered most valuable.*7 Participants perceive
negotiated rulemaking as an effective means for developing regulations on virtually all the important
qualitative dimensions.88 Participants' overall evaluations appeared to be consistent with these other
favorable impressions. The average overall evaluation was 2.1 on the aforementioned -5 to +5 scale,
with 79% giving a positive answer.89 Almost 80% of participants re- ported that the benefits of
participation outweighed the costs, although the costs at times were high and disproportionately so for
smaller groups.90 The participants* overall ratings of the process, and their ratings of their personal
experience with reg neg. are strongly and widely positive. Below, in more detail, we present the most
salient findings from Phase I. linking them, where appropriate, to the scholarly debate.
Compliance
CP solves better- compliance is higher because of increased involvement in rulemaking
process
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
The compliance implications of consensus-based processes remain a matter of speculation.360 No one has yet produced em- pirical data on the
relationship between negotiated rulemaking and compliance, let alone data comparing the compliance implications of negotiated and
conventional rules.361 However,
the Phase II results introduce interesting new findings into the de- bate. 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.362 Perceiving that others
will comply might induce more compliance among competitors, along the lines of game theoretic
models, at least until evidence of defection emerges.363 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.364 The claim that reg-neg could improve compliance is consistent with social psychology studies showing
that in both legal and organizational set- tings, "fair procedures lead to greater compliance with the
rules and decisions with which they are associated."365 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 with our contention that process matters, we expect it to matter to compliance as well. In any event, empirical
studies of compliance should no longer be so difficult to produce. A number of negotiated rules are now several years old. With some in the
advanced stages of implementation. A study of compliance might compare numbers of enforcement actions for negotiated as compared to
conventional rules, measured by notices of violation, or penalties, for example.366 It might investigate as well whether compliance methods
differ between the two types of rules: perhaps
the enforcement of negotiated rules occurs more cooperatively, or
in- formally, than enforcement of conventional rules. Possibly, relationships struck during the negotiated
rulemaking make a difference at the compliance stage.367 To date, the effects of how the rule is developed on eventual
compliance remain a matter of speculation, even though it is ultimately an empirical issue on which both theory and
empirical evidence must be brought to bear.
Better Resolutions
Collaboration allows for increased resolution of issues that influence rulemaking
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
The data clearly suggest that informal negotiations were an inevitable and important part of a process that involved multiple interests with
complex inter-relationships and long, sometimes intense, formal and semi-formal sessions.157 Participants
re- ported a great deal
of informal interaction with others outside of the full committee and established subgroups. When asked
about the nature of their communications, respondents characterized them as negotiations (43%), strategy sessions (10%), in- formational
sessions (27%), and other (20%).158 For those characterized as negotiations, Kerwin and Langbein asked participants to identify both the issues
and the parties involved. Once again, they
cited an enormous number and diversity of issues , and reported many
c ombinations of parties involved in the negotiations, both within and between coalitions and
caucuses.159 The interviewers then asked the respondents what these in- formal negotiations did and did not accomplish, whether the
results of the informal negotiations could be found in the rule, and their estimate of the magnitude of their contribution to the results of the
final regulation. The results were dramatic. Of
the 82 responses, only two stated that the informal negotiations
accomplished nothing.160 The most frequently mentioned functions of informal communication included
full or partial resolution of an issue in dispute (44% of responses), the ability to determine whether the participant
had the necessary support of his coalition or organization (18% of responses), and enhancement of information (35%).161 More than nine
out of every ten participants reported that some or all of the results of these informal communications
and negotiations could be found in the rule they developed.162 Despite these generally high values, there were, again,
significant differences reported across reg negs.163 A small number of interviewees (less than 10%) raised concerns about these informal
exchanges, and one expressed the belief that EPA and major interests had rigged the formal negotiation before it began through informal
agreements; others expressed a milder, but still significant, concern about the secret and exclusive nature of informal contacts.164
Reg neg increases information and understanding of issues- increases chance for
better resolutions
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Overall. Kerwin and Langbein's evidence upholds the expectation that, compared to
conventional rulemaking, which is
"participants learn more in negotiated processes and ... negotiated processes are
more horizontal in their sources of information."248 Nearly 20% of conventional rule participants reported
learning nothing new. but not a single reg neg participant offered that response.249 Negotiated rulemaking
participants responded more often that they gained new technical information, better knowledge of the issue, and
new information about the positions of other parties; overall. 62% of negotiated rulemaking participants offered that they
hierarchically directed by EPA,
had learned these sorts of new information, compared to only 17% of conventional rule participants.250 Moreover, researchers found that,
when asked what they liked about the process,
negotiated rule participants more often mentioned something that
they learned: indeed. 42% of these respondents volunteered that they liked learning about something
during the process, be it the positions of others (15%), the process itself (10%), the substantive issue
(9%), or the EPA or information for use in the future (8%).251 By contrast, just 13% of conventional rule participants mentioned learning
something as an example of what they liked about the process, and not a single conventional participant reported
"learning about the positions of others" among their "likes."252 Still, the relationship between greater learning and
conflict remains opaque. Recall that theorists disagree over whether more learning and information sharing among the parties engenders more
or less conflict. On the one hand, learning can reduce conflict by increasing mutual understanding;253 on the other it can exacerbate conflict by
multiplying the issues over which par- ties might disagree.254 By using "satisfaction" (calculated using a number of measures) as a proxy for
conflict, Kerwin and Langbein found no positive or negative relationship between learning and conflict in rulemaking.255 Thus, learning appears
to offer no clear instrumental value for conflict reduction. Still, learning may have inherent value, and in this dimension, negotiated rulemaking
is clearly superior to conventional rulemaking.
Agency Commitment
Increased interaction between parties involved yields to increased commitment for a
successful result
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Data from the interviews indicate that reaching agreement was perceived to be more important to some
participants than to others. Respondents explained the difference by citing a variety of reasons,
including the impact of the rule on one's organization (34%), commitment to the reg neg process (21%),
and the desire to eliminate uncertainty (12%).121 Of those who noted "commit- ment to the process" as
the reason why reaching agreement was important, several noted that the longer and harder the group
worked, and the more they developed working or personal rela- tionships with other participants, the
more important a successful result became.122 This finding underscores how group dynamics can
compete with the substance of issues as a factor in consensus building. However, the research also
demonstrated that commitment to the process had no detectable independent effect on the
respondent's overall evaluation of the reg neg process. This sug- gests that "commitment may be
important for bringing closure to the process, but is neutral with respect to the overall evaluation of the
process and outcome."123
Reg Neg Solvency- Empirics
Reg neg results in rulemaking efficiency- EPA proves
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
This debate remained largely theoretical until empirical evidence about regulatory negotiation began to emerge in the latter half of the 1980s
and 1990s. Early accounts were mostly anecdotal, written by participants in individual reg negs or by scholars studying a few reg negs at a
time.60 These studies largely ignored proponents' theoretical claims that reg neg would improve rule quality and increase legitimacy. Instead,
they focused on the more easily measured instrumental benefits of time, cost, and litigation rates.61 The
EPA's first commissioned
study of its first seven reg negs concluded that negotiated rulemaking produced rules more quickly than
conventional rulemaking and was less resource intensive.62 While acknowledging heavy investment in front-end
negotiations, the EPA calculated that when it negotiated rules, it spent approximately half the time and
money it ordinarily would have spent to collect and analyze data and to respond to public
comments.63 In addition, the report claimed that negotiating rules increased the likelihood that rulemaking would
be completed on time, saving significant staff hours. Still, the EPA conceded that the data were inconclusive with respect to
whether negotiation resulted in a net saving of resources.64
80% of all disputes are settled more easily through reg negs
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Determining which issues will be subject to negotiation rep- resents a crucial dimension of the reg neg
process. Here again, the process examined in the study appeared to be dynamic but not entirely without
structure. When asked who determined the issues, the most frequent response was "the participants"
(44%), followed by "the statute the rule will implement" (28%) and "EPA" (24%).114 From the
interviews, it appears that negotiating committees usually did not consider issues in a rigid predetermined way; rather participants reported that discussions "take on a life of their own," and that
parties acted on issues as they emerged and when it seemed that consensus was within reach.115 There
is no discernible pattern in the substance of the issues that emerged for negotiation, nor is there a
pattern for issues that did not. With regard to how parties resolved conflicts,116 the respondents'
reported that "nearly 80% of issues were either successfully negotiated or resolved through the
presentation of objective data" or analysis.117 This suggests that regulatory negotiation may produce
sufficient scientific and technical information to enable parties to participate effectively in
rulemaking, contradicting speculation in the literature that the process merely clarifies interests and
facilitates bargaining.118
Decisions are reached faster compared to conventional rulemaking- ‘Equipment Leaks’
rule proves
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
The first of the two rules is the “Equipment Leaks” rule. Chemical plants, like household sinks, can
develop leaks. That is particularly a problem if the compounds in the systems are toxic or have other
adverse environmental problems. EPA empaneled a negotiated rulemaking committee to address the
problem of fugitive emissions — leaks — of toxic chemicals from chemical plants. The Notice of Intent to
form the committee was issued on April 25, 1989.58 The committee crafted a highly innovative rule .59
For its own internal reasons, however, EPA decided to include the Equipment Leaks rule as part of its
broader rule covering Hazardous Organic Chemicals generally (known as the “HON”).60 The results of
the Equipment Leak negotiated rulemaking were announced in the Federal Register on March 6, 1991 so
industry could begin taking actions to comply with it. While the final rule was not issued for another
three years,62 no part of the delay was attributable to the Equipment Leaks portion, but rather to the
parts of the HON that were not negotiated. Indeed, the experience with the HON demonstrates that
reg neg is significantly faster , since the negotiated portion was done and waiting on the shelf while
the rest of the rule was developed through traditional means. Because the negotiated rulemaking
fulfilled EPA’s original goal by March 6, 1991, that is the date that should be used for measuring speed
and efficiency.63
‘Clean Fuels’ models success of reg negs- efficiency, consensus, and information gain
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
The second rule that requires more careful examination than Coglianese gave it is the “Clean Fuels” negotiated rulemaking. The Clean Air Act
Amendments of 1990 required EPA to develop new standards for the formulation of gasoline that would substantially reduce smog in the
dirtiest cities. The
new law imposed an impossibly short deadline on EPA, requiring the agency to issue a
Notice of Proposed Rulemaking a scant 6 months after the statute was enacted.65 The redesign of
gasoline and all the attendant issues is a hugely complex affair with many billions of dollars at stake
annually. Moreover, enormous dislocations could result if for some reason the new gasoline could not be
manufactured in sufficient quantities to meet the deadline for its mandatory use which was January 1,
1995. Precisely because of the short time available, the complexity of the rule, and the controversy
surrounding it, William Rosenberg, EPA’s Assistant Administrator for Air, decided to use negotiated rulemaking to
develop the rules.67 The Notice of Intent to Form a negotiated rulemaking committee was published on February 8, 1991.68 The
Committee reached full consensus on the outline of a proposed rule and formally signed an agreement on August 16.69 A substantive
agreement was therefore reached on an enormously complex rule in a mere six months. Some
extraordinary things happened on the way to the rule’s becoming final, however. In particular, deep into the Presidential campaign,
President Bush directed EPA to change the proposal from that agreed to by the Committee.70 Not surprisingly,
significant controversy ensued, with many of the parties to the original negotiations opposing the
unraveling of their work and seeking to re-establish the rule developed through the joint deliberative
process.71 A series of supplemental notices of proposed rulemaking and various workshops followed during which the ultimate
requirements emerged.72 The final rule was published on February 16, 1994.73 Note that this is less than a year before
the rule was to go into effect. After January 1, 1995 all gasoline sold in the affected cities would have to comply with it.74 That is
not enough time for the refiners to redesign their equipment, build or retrofit refineries, and manufacture sufficient quantities of gasoline to
satisfy the demand. Instead, as the Federal Register notice indicated, the
refiners — and all other interested parties — had
been made fully aware of the rule’s requirements through the workshops. This activity culminated in
the early summer of 1993, thereby giving ample notice of the requirements so that those affected
could comply. The rule itself was important at this stage for enforcement purposes. Thus, EPA fulfilled its immediate goal of
developing the standards for the reformulation of gasoline by the summer of 1993. The appropriate end date
for the “Clean Fuels” negotiated rulemaking therefore is then — July 1, 1993 is an appropriate date.
**ANSWERS TO**
Traditional Rulemaking Fails
Current rulemaking procedures fail- CP leads to more effective and accepted policies
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
To be sure, the Congressional findings that precede the Negotiated Rulemaking Act mention the savings
of time and litigation, but they are largely the by-product of far more significant benefits:102 (2)
Agencies currently use rulemaking procedures that may discourage the affected parties from meeting
and communicating with each other, and may cause parties with different interest to assume conflicting
and antagonistic positions and to engage in expensive and time-consuming litigation over agency rules.
(3) Adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face
negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of
the benefits of shared information , knowledge, expertise , and technical abilities possessed by the
affected parties. (4) Negotiated rulemaking, in which the parties who will be significantly affected by a
rule participate directly in the development of the rule, can provide significant advantages over
adversarial rulemaking. (5) Negotiated rulemaking can increase the acceptability and improve the
substance of rules , making it less likely that the affected parties will resist enforcement or challenge
such rules in court. It may also shorten the amount of time needed to issue final rules. Thus, those who
were present at the creation of reg neg sought neither expedition nor a shield against litigation. Rather,
they saw direct negotiations among the parties — a form of representational democracy not explicitly
recognized in the Administrative Procedure Act — as resulting in rules that are substantively “better”
and more widely accepted . Those benefits were seen as flowing from the participation of those
affected who bring with them a practical insight and expertise that can result in rules that are better
informed, more tailored to achieving the actual regulatory goal and hence more effective , and able to
be enforced.
A2: Analysis by Coglianese
Your studies are flawed- Coglianese’s analysis is miscalculated
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
In his article in this volume, Philip Harter challenges the validity of Coglianese's data, arguing that
Coglianese's research is "significantly flawed and hence misleading concerning the actual experience
with negotiated rulemaking."75 Harter points out that Coglianese simply miscalculated the start and end
dates of the negotiated rules, and that he improperly included an abandoned negotiated rulemaking as
if it had been completed."' Harter argues that reg neg cuts the time consumed by EPA rulemakings by
about 32% if the data on reg negs are properly measured and calculated to reflect consistent start and
finish dates, and to exclude the abandoned reg negs.77 Harter also points out that of the negotiated
rules challenged by litigation, none reflected the consensus rule proposed by participants—suggesting
that either EPA's departure from consensus or some other aspect of the rule besides the outcomes
produced by reg neg provoked the litigation.78
Coglianese’s studies aren’t the full picture- ignores complexity of reg neg processes
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
When the Goals are Understood, Reg Neg is Significantly Faster. As the Oil Spill example makes clear, the
immediate goal of an agency in using reg neg — or any other process for that matter — may well be
something other than publishing a final rule. In those cases, Coglianese’s methodology simply measures
the wrong thing. Rulemaking is an inherently political activity:55 It is in rulemaking, commonly known
as the “legislative” side of agency action, where the agency has to make the difficult, value laden choices
among competing factions when applying statutes that often do not finally resolve the major issues in
contention or leave major contentions open for resolution by the agency.56 Simply counting days
between two events disregards all the dynamics of political activity. A strictly numerical methodology
ignores the varying complexity of rules : the differing — and sometimes towering and debilitating —
controversies over rules;57 the actual, immediate goal of the agency hoped to accomplish which may
differ significantly from what appears on the surface; what those who would be affected by the agency’s
action thought, and what power they might bring to bear on the agency to influence its actions. To
understand a rulemaking, let alone to contrast several, one must fully appreciate each of these
elements. To conduct an accurate empirical study of rulemaking, scholars must understand what the
process sought to achieve and its internal dynamics. Only then can one determine whether the process
fit the need. Thus, if a study that counts days is to be meaningful in measuring whether an agency
fulfilled its objective, it is essential to understand just what that objective is. Coglianese failed to do so.
In his study, the ending dates of two of the rules do not accurately reflect what EPA was trying to
accomplish or the history of the rule. As a result, his findings are significantly misleading
Coglianese fails to evaluate important elements of reg negs
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
Unfortunately, Coglianese’s research is significantly flawed and hence misleading concerning the actual
experience with negotiated rulemaking. First, he misapplies his own methodology by including a rule
as a completed reg neg when in fact the negotiations were abandoned early on; given the dynamics of
the particular rule and Coglianese’s methodology, its erroneous inclusion had a significant effect on the
ultimate conclusion. Second, his methodology measures the wrong thing: it fails to account for what
the agency was actually trying to accomplish in several major proceedings, and hence his results are
misleading in that the agency achieved its objective a far less time than is calculated by the numbers
used. Third, he does not differentiate a substantive judicial challenge to a rule that was issued
substantially as the committee agreed from either those instances in which the agency itself significantly
changed the rule after the committee reached consensus and those petitions for review that were filed
while the petitioner and EPA worked out minor details. Finally, the proponents of negotiated rulemaking
also envisioned benefits beyond the savings of time and judicial review; rather, they were in many
instances seen as derived from the other benefits. His methodology does not consider these other
values. Properly understood negotiated rulemaking has been remarkably successful in fulfilling its
promise. In particular, EPA’s experience has been that reg neg has cut the time for rulemaking by a
third, knocking a full year off the typical schedule. Moreover, no rule that implements a consensus
reached by the committee in which the parties agree not to challenge it has ever been the subject of a
substantive judicial review — even though they tend to be far more controversial and complex than
average rules. And, finally, the participants and those otherwise affected by rules find a range of values
in negotiated rulemakings than those developed traditionally.33
Even if Coglianese’s studies are right, participants still overwhelmingly like reg negs
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Because Coglianese claimed that saved time and lower litigation rates were the most prominent of reg
neg's purported benefits, he concluded that a failure to outperform conventional rulemaking on these
scores amounted to a failure to deliver on reg neg's promise.354 In our view, however, focusing on
these two measures alone is reductive and potentially misleading. For us, time and litigation rates tell
only part of the story and although relevant, they remain secondary to improved rule quality and
legitimacy.355 Even if negotiated rules do take longer to promulgate, other benefits might offset the
cost of additional time. Interestingly, even though participants report spending more as a proportion of
available resources on reg negs. and despite the fact that many respondents cite cost as one of their
dislikes, the overwhelming majority still finds that the benefits of participation outweigh the costs.
Conventional rulemaking fails- creates more conflict from affected agencies
Harter 99 (Phillip Harter, “Assessing the Assessors: The Actual Performance of Negotiated Rulemaking”, his research provided the basis
for negotiated rulemaking and has served as the foundation for the subsequent practice. Harter was a principal draftsman of the Negotiated
Rule-making Act and of the Administrative Dispute Resolution Act, December 1999, accessed throughhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=202808)
Similarly, the Clinton Administration has repeatedly endorsed it and encouraged agencies to use it. For
example, the seminal regulatory document of the Administration — Executive Order 1286618 —
provides that “Each agency . . . is directed to explore and, where appropriate, use consensual
mechanisms for developing regulations, including negotiated rulemaking.”19 Its National Performance
Review (NPR), headed by the Vice President, resoundingly supported the process after finding: The
traditional model for rulemaking is that of agency experts deciding the best way to regulate, offering the
public an opportunity to comment on the agency's proposed rule or to object to its adoption, and then
issuing binding rules telling regulated entities what to do. Even if the agency experts choose wisely, the
traditional model has very little buy-in from outside the agency, which undermines the rule's
effectiveness . The traditional process encourages adversarial, uncooperative behavior on the part of
private industry or others who might be affected by an agency's decisions, which frequently leads to
protracted litigation . Agencies routinely find themselves under attack from various private parties who
are unhappy with the rule. This has been particularly true in controversial areas such as environmental
regulation or the health and safety of workers. The solution to this problem, according to NPR, is to
“increase the use of negotiated rulemaking.”21
Absent the CP, ecosystem collapse is inevitable
Stewart 01 (Richard B. Stewart, University Professor and John Edward Sexton Professor of Law at New York University School of Law, “A
New Generation of Environmental Regulation, Capital University Law Review, 2001, 29 Cap. U.L. Rev. 21)
The criticisms of the "first generation" system of centralized federal command- and-control regulation
are by now familiar. It has been criticized on the grounds that it is unduly rigid, cumbersome, and costly;
fails to accommodate and stimulate innovation in resource-efficient means of pollution prevention; fails
to prioritize risk management wisely; is patchwork in character, focusing in an uncoordinated fashion on
different environmental problems in different environmental media and often ignoring functional and
ecosystem interdependencies; and relies on a remote centralized bureaucratic apparatus that lacks
adequate democratic accountability. While acknowledging its past accomplishments, critics of the
command central planning system maintain that it is reaching its inherent limits and is no longer capable
of ensuring sustainable environmental progress at tolerable social cost.
A2: Agency Capture
No agency capture, influence difference is equally distributed- at worst, it’s not as bad
as conventional processes
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
higher satisfaction rates correspond to disproportionate influence over the agency, which would
suggest that the purported legitimacy benefit simply disguises capture of the agency by interested
parties. Based on the reported data, however, this is unlikely . The results of the study indicate that the agency
One might also suspect that
was equally responsive to stakeholders in both conventional and negotiated rulemaking contexts.24
Although participants did perceive that some parties exerted disproportionate influence in the reg neg
process, the types of parties believed to have exerted that influence were fairly evenly distributed . In fact,
the parties that were perceived as exerting the most influence in both types of rulemakings were EPA itself and big business groups of all
stripes.25 Environmental groups were slightly more likely to be seen as exercising disproportionate influence in reg negs than in conventional
rulemaking.26 Moreover, perceptions of
disproportionate influence in conventional rulemaking occurred with
the same relative frequency as those in reg negs.27 We think it would be inaccurate to suggest that
satisfaction depends on, or disguises, undue influence over the agency that is exacerbated by reg neg. At
worst, then, we believe that regulatory negotiation might enable partial capture, but no more so than
conventional rulemaking. Further, if there is any capture in rulemaking processes, there is no evidence
that the nature or extent of the capture produced through this consensus-based process is greater or
more sinister than the capture that occurs through traditional notice and comment rulemaking. Powerful
groups, such as industry trade associations or government agencies, may fare better in all decision contexts because of resource, information,
and political asymmetries that work in their favor, but there
is no rea- son to believe that regulatory negotiation
enhances their advantage. Although in this article we identify and recommend ways to ameliorate these
asymmetries among parties in the reg neg context, we doubt the differences can be eradicated.
Clear accountability from NRA, no incentive and judicial review check agency capture
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Defenders of reg neg retorted that negotiated rules
were far from secret deals. The Negotiated Rulemaking Act of 1990 ("NRA")
requires federal agencies to provide notice of regulatory negotiations in the Federal Register,50 to
formally charter reg neg committees,51 and to observe the transparency and accountability
requirements of the Federal Advisory Committee Act.53 Any individual or organization that might be "significantly
affected" by a proposed rule can apply for membership in a reg neg committee,54 and even if the agency
rejects their application, they remain free to attend as spectators.55 Most significantly, the NRA requires that
the agency submit negotiated rules to traditional notice and comment.56 In addition, many public choice scholars
argue that agencies have no incentive to shirk their accountability to congressional principals, who control
agency budgets, appoint top personnel, and oversee agency authority. Agencies thus have no incentive to
be less responsive to congressional preferences in negotiated rulemaking than in conventional
rulemaking.57 Proponents of reg neg argued that, in view of these safe- guards, agencies are equally accountable for negotiated and
conventional rules. Moreover, external checks on agency decision making remain undisturbed by reg neg.
Providing they meet traditional standing hurdles, any party may seek judicial review of a negotiated rule, and upon
review the rule is entitled to no greater deference for having been negotiated. Indeed, Congress
specifically declined to provide for a lower standard of review in the NRA.58 Finally, in an attempt to show that
reg neg was not a dramatic departure from traditional rulemaking, proponents pointed out that informal negotiation with stakeholders has
always been an essential part of the rulemaking process.
Negotiated rulemaking merely formalizes negotiation and
utilizes it earlier in the rulemaking process, when it is likely to be most useful. In this view, agencies actually
conform to congressional intent by using processes like reg neg; consultation with the entities that might be harmed by
legislation is precisely what Congress intends when it delegates decision-making authority to the
agency.59
Reg neg is overall embraced by parties involved- even if there are influence
differences, they happen all the time
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy
Benefit”, Prof of Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law
Reporter, July 2001, http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Kerwin and Langbein's Phase I study of eight negotiated rulemakings sheds light on many of the
hypotheses advanced in the scholarly literature on regulatory negotiation and tends to undermine a
number of criticisms of the process. In sum, the Phase I data reflect favorably on reg neg, supporting
claims that it is a flexible, inclusive, and information-intensive process that produces, in the eyes of
participants , good quality outcomes that participants think will survive judicial review and result in
successful implementation . The study also found that reg neg engenders significant learning , which
participants value highly. Perceptions of undue influence, when they arise, implicate al- most all of the
participants, to some degree or another; the data do not suggest that reg neg facilitates agency capture.
Nor is there any indication that the agency abdicates its role. Advocates of reg neg will no doubt find the
Phase I results encouraging. The degree to which participants embrace the process is striking, as are
their evaluations of its outcomes. The internal disparities uncovered by the data, moreover, appear not
to be solely a product of the reg neg process: information and re- source asymmetries likely
disadvantage the same groups in all forms of governmental decision making. Still, as noted above, these
data tell us nothing about the relative performance of negotiated rulemaking as compared to
conventional rulemaking. For this we turn to Phase II.
A2: Broadly Inclusive
Participants in reg negs include all types of parties and report 65% of full
representation
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
The data call into question the validity of the criticism that reg negs involve only highly organized and
well-financed interests.97 The majority of respondents reported participation by all parties, including
small, seemingly ad hoc citizen groups, small businesses, and local government representatives.98
These types of participants were not in the majority, but neither were they rare. The data therefore
support the proposition that negotiated rulemaking is at least open to groups that complain about
exclusion from other governmental processes, even if those groups are imperfect surrogates for
"ordinary citizens." When asked whether all the interests that should have been involved in the
negotiated rulemaking were involved, 65% of respondents answered that there was full representation
99 The literature on reg neg also identifies as a potential problem EPA's unwillingness to commit, up
front, to accept the results of negotiations and use them as the basis for the rule. There is no evidence,
however, that this factor affected parties' decisions to participate. In fact, no respondent expressed
concerns in this regard.100
A2: Ineffective Policy Making
Increased cooperation reduces conflict- dialogue facilitates consensus
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Coglianese recently argued that consensus-based processes increase conflict by encouraging participants to seek "an out- come which is
tangibly better than what they would otherwise have received."373 This hypothesis seems superficially plausible. Regardless of the process
used for rule development, sophisti-
cated parties always seek an outcome that is tangibly better than that
which they would have received under other circumstances. In every case, the parties weigh whether it serves their
interests to do something or nothing, file comments or stay silent, comply or litigate, or adopt any other course of action. Yet the idea that
pursuing better results in a consensus- based process uniquely leads to unrealistic expectations that in- crease conflict is curious. First,
as a
theoretical matter, other par- ties could presumably counter-balance unrealistic expectations. A little
experience with the reg neg process would do the same. So, at least for repeat players, we anticipate no "unrealistic" expectations. In any event, surely the solution to such a problem ought to focus on altering the misinformed
expectation and not on abandoning a consensus-based approach, particularly when it provides a
number of valuable benefits. Moreover, high expectations might have some positive im- plications as well. They could be
associated with a more intense psychological commitment to the process, for example, and a greater
willingness to cooperate. Several respondents reported that the longer and harder the group worked, and the
more they developed relationships with other participants, the more impor- tant success became.374 The
relationship between expectations, commitment, and conflict remains speculative, of course, in the absence of data on the psychological
effects of consensus-based versus other processes. However, in our view, it
would be a mis- take to infer too much about
these complicated dynamics from litigation rates alone.375 Although other processes might be equally effective at reducing conflict,37'' we have no data on this either way. Based on the empirical evidence we do have, however, we doubt that alternative processes, such as informal policy dialogues, are likely to produce conflict resolution as effectively
as regulatory negotia- tion. We suspect that processes in which the agency occupies a more hierarchical relationship to stakeholders,
where interaction is less direct, and where stakeholder contributions are more advi- sory than binding, will produce
comparatively lower satisfaction and comparatively greater conflict.
Reg neg is key to complex and controversial rules
McKinney 99 (Matthew McKinney, Ph.D. in Natural Resource Policy and Conflict Resolution from The University of Michigan,
“Negotiated Rulemaking: Involving Citizens in Public Decisions”, Scholarly Forum @ Montana Law,
http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1883&context=mlr)
Harter agrees that agencies may include citizens and stakeholders in administrative rulemaking through a variety of processes, including
negotiated rulemaking.63 He is emphatic, however, that negotiated rulemaking should be reserved for "highly complex, politicized rules—the
very kind that stall agencies when using traditional or conventional procedures."64 And, he persuasively argues that evaluating
the
performance of negotiated rulemaking must be based on "what the agency itself sought to accomplish"
by using reg-neg.65 In other words, the utility of negotiated rulemaking should not be diminished because state or
federal agencies rely on other methods to involve citizens and stakeholders. The value of reg-neg should be based
on its core objectives—direct negotiations among stakeholders, including the agencies, that result in
substantively better and more widely accepted rules.66 From this perspective, Harter concludes, negotiated
rulemaking "has proven to be an enormously powerful tool in addressing highly complex, politicized
rules—the very kind that stall agencies when using traditional or conventional procedures."67 He goes on to
say that "Properly understood, reg-neg has been remarkable in fulfilling its promise… reg-neg cuts the time for rulemaking by a
third... and no rule that implements a consensus reached by the committee has ever been challenged
substantively in judicial review."69
A2: Divisive Issues
Complex and diverse issues are settled more easily through reg neg
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
The differences in complexity might be explained by the higher reported rates of learning by reg neg participants, rather than by differences in
the types of rules processed by reg neg versus conventional rulemaking.306 Kerwin and Langbein found that complexity
and clarity
were both positively and significantly correlated with learning by respondents, but the association be- tween
learning and complexity/clarity disappeared when the type of rulemaking was held constant.307 However, when the amount learned
was held constant, the association between complexity/ clarity and the type of rulemaking remained
positive and significant.308 This signifies that the association between learning and complexity/clarity was due
to the negotiation process. In other words, the differences in complexity/clarity are not attributable to
higher learning but rather to differences between the processes. The evidence is consistent with the hypothesis that
is- sues selected for regulatory negotiation are different from and more complicated than those chosen
for conventional rulemak- ing.309 The data associating reg negs with complexity, together with the finding that more issues settle in
reg negs,310 are consis- tent with the proposition that issues with more (and more di- verse) sub-issues and sides
settle more easily than simple issues.311
**Net Benefits
General
Reg neg reduces conflict and increases policy legitimacy compared to conventional
rulemaking
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
If conflict breeds dissatisfaction, the results of Phase
II are consistent with the contention that reg neg reduces
conflict. Participants in regulatory negotiation report higher satisfaction than their conventional rulemaking
counterparts;243 in addition, the reg neg participants' ratings of the efficiency, cost effectiveness, and the
overall process are significantly higher than ratings for conventional rules.244 In our view, these data suggest that
negotiated rulemaking confers a legitimacy benefit. The higher satisfaction result obtains even when a variety of substance
and process variables are held constant. That is, participants in negotiated rulemakings expressed greater satisfaction
with the final rule than participants in conventional rulemakings, independently of differences between the types of
rules chosen for conventional and negotiated rulemaking, independently of divergent views of the economic net benefits of the particular rule,
and in- dependently of their affiliation.245 If conflict breeds disagreement, these results continue to accord with the hypothesis that
negotiation reduces conflict. The reported standard deviation (a measure of heterogeneity) of the ratings of conventional rules was generally
higher than the standard deviation of ratings for negotiated rules, consistent with the hypothesis that negotiation
reduces conflict
among parties, resulting in more homogeneous, consensual views of the eventual outcome.246 The openended interviews also produced evidence of higher satisfaction among participants in negotiated rulemaking. When asked what they liked and
disliked about the process, reg neg participants reported significantly more "likes" than their conventional rulemaking counterparts.247 The
evidence indirectly reveals somewhat greater satisfaction among negotiated rule participants. Again, if conflict breeds dissatisfaction, then
these results are consistent with the view that negotiation engenders less conflict.
Politics
Strong congressional support for reg-neg
Harter-visiting professr Vermont Law School-2K
9 N.Y.U. Envtl. L.J. 32
Congressional and Presidential Support Congress has twice embraced reg-neg. Although agencies had
successfully used reg-neg in accordance with the recommendations of the Administrative Conference of the
United States 15 to empanel committees under the Federal Advisory Committee Act, 16 Congress provided its
imprimatur on the process in 1990 when it enacted the Negotiated Rulemaking Act of 1990. 17 The original act
expired in 1996, at which time Congress permanently reauthorized it. 18 Similarly, the Clinton Administration
has repeatedly endorsed reg-neg and encouraged agencies to use it.
Presidents empirically spin credit from reg-neg process
Harter-President of Administrative Law Conference of the US-97
46 Duke L.J. 1389
IV. Support from the Clinton Administration Perhaps because of negotiated rulemaking's early success 83 in
addressing some complex, controversial rulemakings and perhaps because the inclusive nature of
consensual processes comports with its political bent, the Clinton administration has voiced strong
support for the use of reg neg and other consensual processes. President Clinton's Executive Order on White
House oversight of rulemaking encourages agencies to use consensual processes, especially negotiated
rulemaking, for developing rules. 84
Business Confidence
Ocean policy causes regulatory uncertainty- negotiations solve
Committee on natural resources 11 [US federal committee press release. 10/4/11, “Witnesses: President Obama’s Ocean Zoning Plan Will
Stifle Economic Growth, Create Regulatory Uncertainty, Threaten Jobs” http://naturalresources.house.gov/news/documentsingle.aspx?DocumentID=262860
//jweideman]
Today, the Natural Resources Committee held an oversight hearing on “The President’s New National
Ocean Policy - A Plan for Further Restrictions on Ocean, Coastal and Inland Activities.” At the hearing,
Members heard about the potential job and economic implications of President Obama’s Executive
Order 13547, which creates a new, top-down bureaucracy that could significantly impact the way we
use and manage our oceans and imposes mandatory ocean zoning. “From fishing to energy production to recreation, our
oceans are an integral part of our national economy and support millions of jobs throughout the
country. Any new regulations or changes to the management of our oceans should be done thoughtfully
and in full collaboration with those affected. ... This tangled web of regulatory layers will only lead to
increased uncertainty for many diverse sectors of the economy; and, it will create demands for new
spending by the federal bureaucracies charged with executing and funding this Executive Order,” said
Chairman Doc Hastings (WA-04). “This policy has been driven from within the White House under the claim it’s only an ocean conservation measure, when its
actual effects could be far-reaching and economically hurtful to American jobs and businesses both atsea and well-ashore.” What They’re Saying about the President’s Plan to Zone the Oceans: Through a myriad of
drawn-out arguments, the recommendations allow for regulatory coverage of virtually every bit of land
and any entity operating or living on it. Onshore energy operations like mining, oil and natural gas
production, and electricity generation are also vulnerable to new regulatory actions. The potential impacts do not
hit just the energy sector but also agriculture, manufacturing, and construction. To be sure, the reach could be economy wide...The
President’s National Ocean Policy will exacerbate this [sic] uncertainty and add yet another maze of real or de facto
regulation for businesses to attempt to navigate. This may in turn lead to even less investment in areas such as infrastructure construction, manufacturing,
and energy production.” - Christopher Guith, testifying on behalf of the United States Chamber of Commerce “As
currently set forth, the National Ocean Policy has the potential to unnecessarily damage both terrestrial and marine economic value by affecting sectors such as
agriculture, commercial and recreational fishing, construction, manufacturing, marine commerce, mining, oil and gas and renewable energy, recreational boating,
and waterborne transportation, among others. These sectors support tens of millions of jobs and contribute trillions of dollars to the U.S. economy.” - W. Jackson
Coleman, Co-Managing Director of the National Ocean Policy Coalition “[ T]he
National Ocean Policy is less about coordinating
fishing activities with other ocean user activities and more about creating a new regulatory process for
further restricting fishing opportunities for both the recreational and commercial sectors...It is simply
not good public policy to create an additional regulatory process, to confuse lines of authority, and to
likely end up fostering litigation due to inevitable inconsistencies in regulations developed under
different processes.” - Jim Gilmore, the Director of Public Affairs for the At-sea Processors Association “Because we believe the impacts could be
significant, NAHB strongly believes some type of economic analysis should be conducted prior to implementing any of the actions...any National Oceans Policy has
the potential to create yet another set of standards and/or approvals that could unnecessarily impose significant impacts on home builders, private landowners, and
other businesses while providing minimal benefits.” - Barry Rutenberg, Chairman-Elect of the Board for the National Association of Home Builders
Regulatory uncertainty hurts the economy- investment and hiring
Bloom Kose and Terrones 13 [Nicholas Bloom is a Professor of Economics at Stanford University. M. Ayhan Kose and Marco E. Terrones are
Assistants to the Director in the IMF’s Research Department. March 2013, “Held Back by Uncertainty”
http://www.imf.org/external/pubs/ft/fandd/2013/03/bloom.htm //jweideman]
However,
the ongoing recovery has been different at least in one important dimension from the earlier
ones—whether associated with financial crises or not. It has experienced bouts of elevated uncertainty.
This suggests a complementary explanation for the anemic recovery, one that emphasizes the roles
played by macroeconomic and policy uncertainty in curtailing economic activity. Businesses have been
uncertain about the fiscal and regulatory environment in the United States and Europe, and this fear of an unknowable
future has probably been one of the factors leading them to postpone investment and hiring. This is clearly
illustrated in a recent survey in the United States by the National Association for Business Economics
(Economic Policy Survey, 2012), which reported that the “vast majority” of a panel of 236 business
economists “feels that uncertainty about fiscal policy is holding back the pace of economic recovery.” How
important is uncertainty in driving economic activity? This article addresses that question by analyzing the main features of uncertainty and its impact on growth.
Uncertain regulatory environments tank the economy
Galston 13 [William Galston holds the Ezra K. Zilkha Chair in Governance Studies and senior fellow at the Brookings Institution. Sept 24 13, “Policy
Uncertainty Paralyzes the Economy” http://online.wsj.com/news/articles/SB10001424052702303759604579093803870508872 //jweideman]
Endless strife over public policy increases uncertainty, and greater uncertainty slows growth. Beyond all the
damage that political hyperpolarization inflicts on public trust, it undermines what the American people want most—jobs for
themselves and expanded opportunity for their children. A growing body of economic research supports this linkage
between policy-based uncertainty and the real economy. Over the past few years, Stanford-based economists Scott Baker and
Nicholas Bloom teamed up with the University of Chicago's Steven Davis to develop a measure of economic policy uncertainty and to explore the effects of changing
levels of uncertainty on the economy. Between 1985 and 2007, they found, uncertainty varied within a narrow and mostly predictable range, moving up in
response to presidential elections and international conflicts and then subsiding. Since then, however, policy uncertainty has risen to historically elevated levels,
with the peaks—corresponding to events such as the collapse of Lehman Brothers and the initial defeat of the TARP legislation—surging above that after the 9/11
terror attacks. In a finding that today's policy makers would do well to ponder, the highest level of policy uncertainty ever recorded—in mid-2011 as Washington
struggled with the debt ceiling and narrowly averted default—stood at two-and-a-half times the average of the past quarter century. Since 2007, policy-
induced uncertainty has become a larger and larger share of overall economic uncertainty. Policy uncertainty
directly affects economic activity. Messrs. Baker, Bloom and Davis summarize their case: " When businesses are uncertain about taxes,
health-care costs, and regulatory initiatives, they adopt a cautious stance. Because it is costly to make a
hiring or investment mistake, many businesses naturally wait for calmer times to expand. If too many
businesses wait to expand, the recovery never takes off." The evidence also suggests that policy uncertainty increasing affects the
performance of the stock market. This story makes intuitive sense. But how much of a difference does uncertainty make in the real economy? To answer
this question, Messrs. Baker, Bloom and Davis make use of a statistical technique for which Christopher Sims won a 2011 Nobel Prize in economics. They find that
restoring 2006 levels of policy uncertainty could increase industrial production by 4% and employment by 2.3 million jobs over current baseline estimates—enough
to bring unemployment down by about 1.5 percentage points. It's easy to dismiss a single innovative study: Every index is controversial, as is every model and
statistical technique. But in July 2013, Sylvain Leduc and Zheng Liu, two researchers at the Federal Reserve Bank of San Francisco, published a paper that took a
different route to a very similar result. Their point of departure was a historical relationship known as the Beveridge curve: As job openings increase, the
unemployment rate tends to fall. The Great Recession has disrupted the terms of this relationship, however. The unemployment rate has fallen much less than the
rise in job openings suggests that it should have, and there are more jobless workers per job opening than in previous recoveries. The San Francisco Fed researchers
find that heightened policy uncertainty has become increasingly important in the job market. It
turns out that as uncertainty rises, the
intensity of businesses' recruitment activities wanes, lowering the rate at which firms fill jobs. By the end of
2012, the researchers calculate, heightened policy uncertainty accounted for about two-thirds of the shift in the Beveridge curve. Their bottom line: "[I]f there had
been no policy uncertainty shocks, the unemployment rate would have been close to 6.5% instead of the reported 7.8%"—a result that aligns remarkably well with
the Stanford/Chicago team's conclusion.
Litigation 1NC/2NC (NOAA)
The plan opens the floodgates for new litigation crushing solvency
Harter-visiting professr Vermont Law School-2K
9 N.Y.U. Envtl. L.J. 32
The traditional model for rulemaking is that of agency experts deciding the best way to regulate,
offering the public an opportunity to comment on the agency's proposed rule or to object [*37] to its
adoption, and then issuing binding rules telling regulated entities what to do. Even if the agency experts
choose wisely, the traditional model has very little buy-in from outside the agency, which undermines
the rule's effectiveness. The traditional process encourages adversarial, uncooperative behavior on
the part of private industry or others who might be affected by an agency's decisions, which
frequently leads to protracted litigation . Agencies routinely find themselves under attack from various
private parties who are unhappy with the rule. This has been particularly true in controversial areas
such as environmental regulation or the health and safety of workers. 20
‘Closed-door’ negotiations become target to litigation and drains NOAA budget- Only
the CP solves
Strait 12 (Jill Strait, Communications Director at House Natural Resources Committee, “Further Details Sought on Costs of Hundreds of
Endangered Species Act Lawsuits and Settlements”, Committee on Natural Resources, May 2012,
http://naturalresources.house.gov/news/documentsingle.aspx?DocumentID=297790)
House Natural Resources Committee Chairman Doc Hastings (WA-04) sent a series of letters to the
Obama Administration requesting further information on how much the federal government spends on
Endangered Species Act (ESA)-related litigation and settlement costs. The ESA has become increasingly
Today,
driven by litigation and is used by special interest groups as a way to bring hundreds of lawsuits
against the government.
The Department of the Interior and the
National Oceanic and Atmospheric
Administration are actively involved in more than 200 lawsuits and legal actions concerning the ESA.
This forces federal agencies to spend time, money and resources addressing these lawsuits instead of
focusing on species recovery. These lawsuits often result in settlements that cost millions of taxpayer
dollars. “The
Endangered Species Act has been overtaken by lawyers and become a tool for litigation and
unending lawsuits. The government then agrees to costly, closed-door settlement agreements and the
American people deserve to know how much of their taxpayer dollars are going towards attorney fees instead of actual species recovery,” said
Chairman Hastings. “As part of the Committee’s work to improve the ESA, this is an effort to discover whether these payments represent a
there are ways to avoid costly and debilitating lawsuits in the
future so that both species and the American people are better protected under the law.” The first letter,
prudent use of the taxpayers’ money and whether
sent to the Department of the Interior and the U.S. Fish and Wildlife Service, requests information on the total cost of the recent settlements
between WildEarth Guardians, the Center for Biological Diversity, and the U.S. Fish and Wildlife Service as well as information on how the
the Department of Justice, National
Oceanic and Atmospheric Administration, and Bonneville Power Administration that resulted in
payment of close to $2 million in attorney and legal fees to plaintiffs. These letters seek information and supporting
settlements were reached. The second set of letters relates to the settlement between
documents on how the large payment was agreed to, as well as information about other cases where large sums of attorney fees were
reported as being paid. All letters request a response by June 14, 2012. Background: In May and July 2011, the Obama Administration agreed to
two separate litigation settlements involving petitions to list 779 species under the ESA through more than 85 lawsuits and legal actions. These
settlements mandate that over 250 candidate species must be reviewed for final listing as either threatened or endangered under the ESA by
2016. This could result in a 16 percent increase in the number of species listed by 2016. The U.S. Fish and Wildlife Service’s FY 2013 budget
request includes an increase in funding that could result in 88 more species being listed and critical habitat being designated in just this year
alone. On March 19, 2012 Chairman Hastings sent a letter to U.S. Department of Justice Assistant Attorney General Ignacia Moreno asking for
detailed information on how much taxpayer money is being spent on Endangered Species Act-related litigation and settlements involving the
Department of Justice’s Environment and Natural Resources Department. The letter raised concerns over the disproportionate amount of ESA
appropriated funds that are spent on legal actions and responding to petitions—and the lack of transparency on how these funds are being
spent. In response, the Department of Justice provided a list of all cases from the Environment and Natural Resources Division’s case
management system that include a cause of action under the ESA or in which the Division is enforcing alleged violations of the ESA. This
list
shows that nearly $13 million in taxpayer dollars was spent in attorney fees since January 2009 with at
least $1.6 million still owed in open cases. Chairman Hastings’ letter today outlines some specific cases where additional
information is requested.
NOAA’s Beaufort lab is on the chopping block-no budgetary flexibility
Martinez 14 (Rebecca, WUNC, James Madison University, 04.01.14, “Federal Cuts Could Close 115
Year Old Beaufort Marine Lab”, http://wunc.org/post/federal-cuts-could-close-115-year-old-beaufortmarine-lab, Accessed 07.08.14)//LD
If Congress passes the president's proposed 2015 budget, North Carolina's coast could lose a century-old
marine lab.¶ The National Oceanic and Atmospheric Administration's lab in Beaufort is on the chopping
block .¶ Ciaran Clayton is a spokeswoman for NOAA.¶ “The current cost per year to operate and maintain
the facility (is) about $1.6 million per year,” Clayton said. “It's an aging facility and would require
additional funding to make those improvements, something that is just not currently in our current
budget or in our future budgets.Ӧ Clayton said the research and federal employees there would be
relocated to other lab sites.¶ Myles Stempin directs the Carteret County Economic Development
Council.¶ “As a whole, it would be the loss of over 108 jobs and some additional related employment
positions that have been created to support NOAA's operations here, so we'd be losing that,” Stempin
said.¶ “That all comes to a county that ranks 17th from the bottom in average annual wages. So these
federal high-paying, wage-producing jobs would be a real loss to this community.Ӧ The Coastal
Conservation Association of North Carolina says Beaufort is an ideal location for this research lab, which
provides valuable data for the non-profit. State Chairman Greg Hurt wrote this in an e-mail:¶ “Scientists
at the lab have built strong partnerships with recreational and commercial fishermen, businesses, and
communities along the southeast coast. It is imperative that the lab remains in Beaufort, because this
location provides direct access to study the marine environment and conduct ecosystem-based research
that cannot be duplicated anywhere else.Ӧ Marine researchers from different organizations have
voiced their support for the lab and asked the House Appropriations Committee to spare it.
Beaufort lab key to marine research-key to Lionfish
Schoof and Price 14 (Renee and Jay, McClatchy Washington Bureau, 03.28.14, “After more than a
century, a jewel of ocean research targeted for closure”,
http://www.mcclatchydc.com/2014/03/28/222770/after-more-than-a-century-ajewel.html#storylink=cpy, Accessed 07.08.14)//LD
WASHINGTON — For more than a century, federal scientists have worked on Pivers Island near the historic town of
Beaufort, N.C., and the beaches of Emerald Isle studying the ocean, and the fish, turtles and dolphins of its sea grass
estuaries and rocky reefs.¶ Surrounded by three university labs, it’s one of a handful of oceanography hubs in the
nation and the only government research center between New Jersey and Miami studying Atlantic fish populations.¶ So it
came as a surprise recently that the federal government has proposed doing away with the ocean science laboratory, which opened in 1899. ¶ Tucked in President
Barack Obama’s 218-page proposed budget for 2015 was a one-sentence mention of a plan to close one lab to save money. The National Oceanic and Atmospheric
Administration subsequently identified it as North Carolina’s historic research station. ¶ “NOAA’s
Beaufort lab has conducted valuable
fisheries and coastal science for more than 100 years,” said NOAA spokeswoman Ciaran Clayton. “However, this aging facility requires
infrastructure repairs and improvements exceeding agency budget resources now and for the foreseeable future.” ¶ The coastal and ocean agency plans to shift
instead to grants to non-agency scientists. Closing the lab would mean the loss of 108 jobs locally. NOAA intends to relocate the federal scientists. What will happen
to the lab’s 31 government contractors is less clear. ¶ Members of the North Carolina congressional delegation say they’ll fight to keep the lab open, but its
prospects are unclear. It’s one of few cuts proposed in the Commerce Department’s $8.8 billion budget. ¶ Rep. Walter Jones, a Republican who represents the
coastal district that includes Beaufort, was building a coalition to oppose the closure, said his spokeswoman, Sarah Howard. ¶ “I am seriously troubled by the fact . . .
President Barack Obama has proposed closing a research lab in eastern North Carolina while continuing to spend hundreds of millions of dollars on infrastructure
projects in Afghanistan,” Jones said in a statement. ¶ Sen. Kay Hagan, D-N.C., said she’d fight
the closure to protect jobs and research
that helps preserve coastal marine life. Rep. David Price, a Democrat from Chapel Hill and a member of the House Appropriations Committee,
said he’d be “sharply questioning” the decision when the committee reviews the budget on Monday. ¶ “The NOAA Beaufort Laboratory is a
prime location and provides the only federal access to the most diverse marine ecosystem in the United
States,” David B. Eggleston, a professor at North Carolina State University and director of its Center for Marine Sciences and Technology, wrote the committee. ¶
Eggleston’s letter cited examples of the lab’s contributions, including pioneering work on harmful algal
blooms that made forecasting them possible and the first study of invasive lionfish in the U.S. South
Atlantic.¶ The lab sits just inside Beaufort Inlet, one of a handful of safe deepwater passages through the state’s barrier islands to the open sea. Duke University
has a research station next door. North Carolina State and the University of North Carolina at Chapel Hill labs are a short drive away.¶ Most people in the state think
of coastal Carteret County, with its beaches, rental cottages and Beaufort’s historic district, as being all about tourism. But marine
science has grown
into a major local employer. Between them, NOAA and the three universities have 163,000 square feet of
research buildings and 40 labs. All told, marine science directly employs more than 500 people locally and injects $58 million
into the economy, according to the county economic development council. ¶ NOAA has said that the lab needed $55 million in work, though the
lab’s supporters contend that the costs are overstated.¶ An engineering report showed the facility is structurally sound, they said. NOAA has invested
some $14 million in upgrades in recent years, including a new administrative building in 2006 and a new bridge to the island, a cost shared with Duke. ¶ The Beaufort
lab over the decades has been known for work on Atlantic menhaden _ a silvery herring _ and sea grass, said Charles H. “Pete” Peterson, a professor at the
University of North Carolina’s Institute of Marine Sciences in Morehead City.¶ “It’s more costly and less in your mind if you’re separated from the problems or assets
you’re charged with to protect or research,” he said. ¶ In addition, the lab should remain at Beaufort because the
North Carolina coast is one of
the three places _ along with south Florida and the Mississippi Delta in Louisiana_ where global climate change has the potential to
cause radical changes from storms and sea level rise, Peterson said.¶ Mike Schoenfeld, Duke’s vice president for public affairs and
governmental relations, said that the university’s scientists were working with NOAA scientists on several important
projects, including one involving salt marshes and another on how to analyze data to make better environmental
decisions, a project that also includes the U.S. Marine Corps’ Camp Lejeune.¶ “We hope that the federal government carefully
considers all the impacts before it makes its decision,” Schoenfeld said. ¶ The lab also is headquarters for staff of the North Carolina Coastal Reserve
and Natural Estuarine Research Reserve. Teacher training workshops take place here. So do school field trips. Five minutes away by boat is
the Rachel Carson Reserve, named for the author of “Silent Spring,” who worked in the lab. ¶ Patricia Tester, who came to Beaufort as an Oregon State University
graduate student in 1976, married a local man and ended up working for NOAA as a scientist for 33 years, said the lab has done practical work solving fisheries
problems in North Carolina and beyond.¶ Tester said that after the
lab studied harmful algal blooms that caused the “red tide”
of 1987, the Quinault Indians of La Push, Wash., asked for help to develop a new type of test they needed for
their shellfish harvests.¶ “The problems were intractable with the skill sets we had at the time, but we incorporated molecular work and were
able to help the Quinaults,” she said.¶ Tester retired but has returned to the lab as a contractor and continues her research. She said she’d never
move, because she and her husband have made their lives in Beaufort. ¶ Conservation and fishing groups also want Congress to keep the lab open and are calling
lawmakers.¶ The North Carolina chapter of the Coastal Conservation Association, a group devoted to protecting the coast for the general public, was calling on
the future of fishing
and the health of our states’ marine resources depend upon access to the best scientific data available,”
he said.¶ Closing the lab would worsen the problem of getting timely assessments of the health of fish stocks, he said, adding that the NOAA Beaufort lab
“has an excellent reputation for providing high quality data for management.”¶ Jerry Schill, interim executive director of
Congress to keep it running, said the chapter’s chairman, Greg Hurt. ¶ “Our organization and its members firmly believe that
the North Carolina Fisheries Association, a commercial fishing trade group, agreed. ¶ “All we expect from these people is objectivity,” he said. “With the National
Marine Fisheries Service Beaufort lab, we got it.”¶ Jackie Savitz, acting vice president for U.S. oceans at the conservation group Oceana, said NOAA “is the braintrust
in helping us understand the impacts of what we do in our oceans.”¶ “We
need more Beaufort labs, not fewer,” she said.
Loss of marine biodiversity dooms all terrestrial life
Davidson 3 (Founder – Turtle House Foundation and Award-Winning Journalist, Fire in the Turtle House, p. 47-51)
But surely the Athenians had it backward; it’s the land that rests in the lap of the sea. Thalassa, not Gaia, is the guardian of life on the blue
planet. A simple, albeit apocalyptic, experiment suggests Thalassa’s power. Destroy
all life on land; the ocean creatures will
survive just fine. Given time, they’ll even repopulate the land. But wipe out the organisms that inhabit the oceans and all
life on land is doomed. “Dust to dust,” says the Bible, but “water to water” is more like it, for all life comes from and returns to
the sea. Our ocean origins abid within us, our secret marine history. The chemical makeup of our blood is strikingly similar to seawater. Every
carbon atom in our body has cycled through the ocean many times. Even the human embryo reveals our watery past. Tiny gill slits form and
then fade during our development in the womb. The ocean
is the cradle of life on our planet, and it remains the axis of
existence, the locus of planetary biodiversity, and the engine of the chemical and hydrological cycles
that create and maintain our atmosphere and climate. The astonishing biodiversity is most evident on coral reefs, often
called the “rain forests of the sea.” Occupying less than one-quarter of 1 percent of the global ocean, coral reefs are home to nearly a third of
all marine fish species and to as many as nine million species in all. But life exists in profusion in every corner of the ocean, right down to the
hydrothermal vents on the seafloor (discovered only in 1977), where more than a hundred newly described species thrive around superheated
plumes of sulfurous gasses. The abundance of organisms in the ocean isn’t surprising given that the sea was, as already mentioned, the crucible
of life on Earth. It is the original ecosystem, the environment in which the “primordial soup” of nucleic acids (which can self-replicate, but are
not alive) and other molecules made the inexplicable and miraculous leap into life, probably as simple bacteria, close to 3.9 billion years ago. A
spectacular burst of new life forms called the Cambrian explosion took place in the oceans some 500 million years ago, an evolutionary
experiment that produced countless body forms, the prototypes of virtually all organisms alive today. It wasn’t until 100 million years later that
the first primitive plants took up residence on terra firma. Another 30 million years passed before the first amphibians climbed out of the
ocean. After this head start, it’s not surprising that evolution on that newcomer-dry land-has never caught up with the diversity of the sea. Of
the thirty-three higher-level groupings of animals (called phyla), thirty-two are found in the oceans and just twelve on land.
XT-Funding Zero Sum
NOAA funding is zero-sum – total funding doesn’t change – increases funding for one
program decreases for another
Smith 13 (Marcia S, President of Space and Technology Policy Group, 03.04.13, “New House CR Adds
Money for NASA Exploration, NOAA GOES-R, But It's a Zero Sum Game”,
http://www.spacepolicyonline.com/news/new-house-cr-adds-money-for-nasa-exploration-noaa-goes-rbut-its-a-zero-sum-game, Accessed 07.10.14)//LD
Rep. Hal Rogers (R-KY) introduced the House version of a "full year" Continuing Resolution (CR) today
that would fund the government for the rest of FY2013. The bulk of the bill is about the Department of
Defense (DOD) and Veterans Affairs, but it covers all government agencies. It gives special attention to
NASA's exploration program and NOAA's geostationary weather satellite program, but in the end the
totals for those agencies do not change .¶ Under a CR, agencies are generally held to their prior year
funding levels not only at the account level, but for particular projects. In this case, that would be the
funding provided in the FY2012 appropriations bill (P.L. 112-55). Exceptions can always be made,
however, and a number of them are in the Rogers bill, H.R. 933. For NASA and NOAA, though, it still is
zero sum game where the total appropriation is the same, but certain programs get more than others.
XT-Research Key
Research and action key to prevent lionfish from decimating ocean biodiversity
Green et al 12 (Stephanie J + Aleksandra Maljković + Isabelle M. Côté, Department of Biological
Sciences, Simon Fraser University, John L Akins, Reef Environmental Education Foundation, Key Largo,
Florida, 03.07.12, “Invasive Lionfish Drive Atlantic Coral Reef Fish Declines”, PLoS One, Vol. 7, Issue
3)//LD
Introduction¶ The successful invasion of a marine ecosystem by vertebrate predators is exceedingly rare [1].
Nevertheless, one such invasion is currently unfolding. Indo-Pacific lionfish (Pterois volitans and P. miles) have spread
rapidly across the Western Atlantic, Caribbean and Gulf of Mexico, producing a marine predator
invasion of unparalleled speed and magnitude. Lionfish were first reported off the southeast coast of Florida in the 1980s and
have since become established to varying extents across the entire Caribbean region via larval dispersal in ocean currents [2]. These
ambush predators consume a wide variety of native fish and invertebrate species at high rates, and are
well defended from predation by venomous fin spines [3], [4].¶ There is growing concern, largely based on the results of
small-scale experiments [5], that lionfish will affect the structure and function of invaded marine ecosystems (e.g.
[6], [7]) but detrimental impacts on natural communities have yet to be measured. To determine whether predation by lionfish
is having negative effects on native reef fish communities, we studied nine sites along a 15 km stretch of
continuous reef off the southwest coast of New Providence Island, Bahamas (24°59.072 N, 77°32.207 W), where
lionfish were first sighted in 2004. We conducted visual transect surveys of both native fish and lionfish, and identified lionfish prey through
stomach contents analysis of 567 lionfish collected from the study reefs in 2008 and 2010. Standardized roving diver surveys conducted at the
sites each year since 2004 were used to assess changes in lionfish abundance over time within the study area.¶ Results and Discussion¶
Lionfish abundance increased swiftly between 2004 and 2010 off southwest New Providence, Bahamas
(Figure 1). Between 2008 and 2010, abundant lionfish populations coincided with rapid declines in native fishes. During this period lionfish
increased from 23% to nearly 40% of the total biomass of predators residing in the study area, which
included 16 ecologically-similar native fishes, in terms of body size and diet [8], [9]. Ninety percent of the prey
consumed by lionfish were small-bodied reef fishes from 42 species (Table S1). Between 2008 and 2010, the combined biomass of
these 42 species declined by 65%, on average, across the study reefs (Figure 2; linear mixed-effects model (LMM);
P<0.001, t = 4.5, df = 105). Since lionfish were already abundant within the study area in the year prior to our observations (Figure 1), the
cumulative decline in prey fish biomass since lionfish first colonized the area undoubtedly exceeds what
we observed between 2008 and 2010.¶ Aside from predation by lionfish, at least three alternative factors could cause such a
rapid decline in the abundance of so many species: recruitment failure, increased predation by native species, or disease. Wholesale
recruitment failure, owing to unfavourable oceanographic conditions for the pelagic larvae of reef fish, is unlikely to be a factor
in the decline of lionfish prey, since the biomass of several species of small-bodied gobies (Elacatinus spp.; Table S1), which also have
pelagic larvae but have never been recorded in diet of lionfish [3]–[5], [10] and may contain a chemical defense against predation [11],
remained stable over the two-year period (Figure 2; LMM; P = 0.45, t = 0.78, df = 105). The
decline in prey species was also not
caused by an increase in native predators, as the biomass of the 16 ‘lionfish-analogous’ species also declined by 44% (Figure 2;
LMM; P = 0.02, t = 2.1, df = 55), a change likely attributable to fishing pressure and/or competition with lionfish. By contrast, the biomass of
non-predatory but large-bodied fishes, which were not vulnerable to lionfish predation (because they were already too large to be lionfish prey
in 2008) or competition over this period but many of which are exploited to some degree, remained unchanged (Table S1; Figure 2; LMM; P =
0.13, t = 1.54, df = 55). Finally, no
fish disease epidemic was reported during the study period, leaving lionfish
predation as the most likely cause of the changes in prey fish abundance documented here.¶ Without
prompt action , increasing lionfish populations are likely to have similar impacts on prey fish biomass
across the region. The impacts of lionfish may not be limited to small-bodied prey species. In time, the abundance of largebodied fishes which are consumed as juveniles by lionfish may be also be affected; these prey species
fulfill important functional roles on coral reefs (Table S1). Given the broad geographic extent of the invasion, complete eradication
of lionfish from the Atlantic appears unlikely [12]. However, lionfish control programs, which are being initiated across the Caribbean, may
successfully mitigate the effects of lionfish at local scales within high-priority areas, such as Marine Protected Areas and fish nursery habitats
[13]. In
the absence of effective local action, the effects of the lionfish invasion may have long-term
implications for the structure of Atlantic marine communities, as well as the societies and economies
that depend on them.
2NC HABs Impact
Beaufort lab research is key to monitoring and mitigating harmful algal blooms
NCCOS 14 (National Centers for Coastal Ocean Science, research office of NOAA, 06.03.14, “Center for
Coastal Fisheries and Habitat Research”, http://coastalscience.noaa.gov/about/centers/ccfhr, Accessed
07.10.14)//LD
We conduct research on the effects of coastal habitat change and restoration on living marine resources such as seagrasses,
marshes, reefs, and fish. Major programs include:¶ Ecology of Harmful Algal Blooms¶ Marine Restoration and Spatial Planning¶
Ecological Responses to Climate Change¶ Ecology of Harmful Algal Blooms¶ We develop tools for detecting and mitigating
the risks of harmful algal to human health and coastal economies and ecosystems. Our algal toxin test kits and other
molecular-based tools enhance the HAB monitoring capabilities of public health officials, tribal and state
marine resource managers, commercial and subsistence fishermen, aquaculture facilities, and academic
research programs. We are improving seafood safety and food security within the US and internationally.¶ Key Actions
and Accomplishments¶ Developed and commercialized an algal toxin test kit for domoic acid in razor clams at the request of
the northwest Pacific tribes.¶ Developed new approaches for rapidly identifying the toxic algae that cause ciguatera fish
poisoning (CFP). Trained 30 Asian scientists in sampling and detection of CFP causing species.¶ Developed assays for the toxic
algae causing paralytic shellfish poisoning (PSP) in Alaska and trained Alaskan public health officials, shellfish growers, state and
federal resources managers and academic scientists.¶ Characterized environmental and physiological tolerances of
toxic species to predict HAB range extensions and toxicity changes as a result of climate change.¶ Determined the
sensitivity of toxic species to changes in nutrient availability. This information is used by water district and resource
managers to decide on timing and volume of freshwater releases into coastal ecosystems.¶ Marine Restoration and Spatial Planning¶ We
provide research and management guidance to improve marine spatial planning, specializing in evaluating effectiveness of protected areas and
in siting aquaculture and restoration projects. Our capabilities include scientific and deep-technical diving and ROV and underwater acoustics.
We also have expertise in the delineation, recovery and restoration of injured habitats and support federal, state and local habitat protection
and restoration, including Department of Justice litigation of habitat injuries in public trust waters.¶ Key Actions and Accomplishments¶
Modeled wave energy and its impact on marine habitat and shoreline erosion. The models are used to site ferry terminals, marinas, and
restoration projects.¶ Created a program to track, predict impacts, and slow the spread of the invasive species in Atlantic waters, including
lionfish, Asian tiger shrimp, and tunicates.¶ Identified high productivity areas in Flower Garden Banks National Marine Sanctuary to inform
design of research-only area to reduce fishing impacts on coral reef ecosystems.¶ Developed seagrass and coral injury recovery models for
damage assessment and restoration that have been used to negotiate over $1 million in compensatory claims.¶ Provided a geospatial
framework for coastal resource management, spill response, tidal energy and spill response in Kachemak Bay Alaska.¶ Developed best
management practices (BMPs) and use of models to reduce impacts of aquaculture activities in the coastal ocean.¶ Ecological Responses to
Climate Change¶ We develop information and tools to help communities understand how sea level rise and weather extremes will impact their
shorelines and waterfront properties. We also offer guidance for effective shoreline management based on enhancing the stabilization
capabilities of natural shorelines, and we assist coastal communities in adapting to changing shorelines. Our Alaska team works with coastal
managers and Alaska communities to anticipate and adapt to a changing environment, balance multiple coastal uses, and sustainably manage
coastal resources.¶ Key Actions and Accomplishments¶ Developed the salt marsh monitoring protocol for the National Estuarine Research
Reserve’s biological monitoring program¶ Mapped shorelines and assessed their vulnerability to erosion from sea level rise and boat wakes for
the Department of Defense Strategic Environmental Research and Development Program.¶ Evaluated effectiveness of living vs. engineered
shorelines for stabilization.¶ Identified factors affecting rates of carbon sequestration in marsh habitats.¶ Quantified ecosystem changes and
assessed variability in ocean acidification in nearshore subarctic Alaska habitats.¶ Facility and Personnel¶ Leadership: B. William Gottholm,
Director, 252-728-8746¶ Jim Guyton Research Coordination & Admin Services, 252-728-8773¶ Over 100
NOAA employees are
housed in our Beaufort, North Carolina and Kasitsna Bay, Alaska campuses. NCCOS owns and maintains the campuses. We share
space with NOAA Fisheries and the North Carolina Estuarine Research Reserve staff in Beaufort, and offer field-housing to visiting researchers
and students in Kasitsna Bay.
HABs are increasing in frequency and magnitude – if we don’t act they will devastate
fish stocks
Glibert et al 14 (Patricia M, Horn Point Laboratory, University of Maryland Center for Environmental
Science, J. Icarus Allen + Robert Holmes + Yuri Artioli, Plymouth Marine Laboratory, The Hoe, Plymouth,
Arthur Beusen + Lex Bouwman, PBL Netherlands Environmental Assessment Agency, Bilthoven, James
Harle + Jason Holt, Natural Environmental Research Council, National Oceanography Centre, 07.09.14,
“Vulnerability of coastal ecosystems to changes in harmful algal bloom distribution in response to
climate change: projections based on model analysis”, Global Change Biology)//LD
Harmful algal blooms (HABs), those proliferations of algae that can cause fish kills, contaminate seafood with toxins,
form unsightly scums, or detrimentally alter ecosystem function have been increasing in frequency,
magnitude, and duration worldwide. Here, using a global modeling approach, we show, for three regions of the globe, the potential
effects of nutrient loading and climate change for two HAB genera, pelagic Prorocentrum and Karenia, each with differing
physiological characteristics for growth. The projections (end of century, 2090–2100) are based on climate change resulting from the A1B
scenario of the Intergovernmental Panel on Climate Change Institut Pierre Simon Laplace Climate Model (IPCC, IPSL-CM4), applied in a coupled
oceanographic-biogeochemical model, combined with a suite of assumed physiological ‘rules’ for genera-specific bloom development. Based on
these models, an
expansion in area and/or number of months annually conducive to development of these
HABs along the NW European Shelf-Baltic Sea system and NE Asia was projected for both HAB genera, but no expansion (Prorocentrum spp.),
or actual contraction in area and months conducive for blooms (Karenia spp.), was projected in the SE Asian domain. The implications of
these projections, especially for Northern Europe, are shifts in vulnerability of coastal systems to HAB events,
increased regional HAB impacts to aquaculture, increased risks to human health and ecosystems, and
economic consequences of these events due to losses to fisheries and ecosystem services.
Fishery management prevents extinction
VOA 10 (Voice of America News, “Bluefin Tuna Endangered by Overfishing,” 12/1,
http://www.voanews.com/english/news/asia/Bluefin-Tuna-Endangered-by-Overfishing-111159869.html)
Predatory fish are at the top of the ocean food chain. They help keep the balance of marine life in
check. Without their eating habits, an overabundance of smaller organisms might affect the entire
underwater ecosystem. Some scientists say such a shift could lead to a total collapse of the oceans. Yet so far, those in
charge of regulating international fisheries have done little to protect at least one endangered species. Scientists say this species is on the brink of extinction… and it is all our fault. "Nobody's
free of blame in this game," said Kate Wilson. Kate Willson is an investigative journalist who recently exposed what she says is a $4-billion, black market trade in the sale of bluefin tuna.
when a top predator like bluefin or another big fish is depleted, that will affect the entire
ecosystem," she said. "Scientists say you better get used to eating jellyfish sashimi and algae burgers if you let these large fish become depleted because they
anchor the ecosystem." Ecosystems are how living things interact with their environments and each other. Scientists agree they can change dramatically if a link disappears
from the food chain. Government officials and members of environmental groups met in Paris in mid-November to discuss fishing regulations that may affect all life
on Earth. Sue Lieberman is Director of International Policy with the Pew Environment Group: a Washington-based, non-profit agency. She says the bluefin is in
jeopardy. "The fish is in worse shape than we thought, and that's why we're calling for the meeting of this commission to suspend this fishery ... to put on the brakes and say, 'let's
"Scientists tell us that
stop," said Sue Lieberman. "Let's stop mismanaging and start managing the right way to ensure a future for this species.'" Both Lieberman and Willson say that greed, corruption and poor
The quotas are designed to let fish recover, but quotas are more than scientists recommend,
there's consistent lack of enforcement,
management of fishing quotas brought us to this point. "
but even within quotas,
fraud, fish being traded without documents to the point where it's a multibillion dollar
business that will cause the depletion of an incredible species," said Lieberman. Willson says that fishing the bluefin to near-extinction followed increased Japanese demand for fresh sushi
starting in the 1970s and 80s. And fishing practices that target the two primary regions in which blue fin spawn: the Gulf of Mexico and the Mediterranean Sea. "You don't need a PhD in
fisheries to know that's really not very smart," said Sue Lieberman. "If you want the species to continue into the future, you don't take them when they come to breed." And that practice
shines light on a bigger problem. "Ninety per cent of all large fish it's estimated have been depleted," said Kate Wilson. "Bluefin is just a bellwether for what's happening to what's left of the
world's large fish." "We're not saying there should be no fishing, but we are saying there should be no fishing like that," said Lieberman. "This isn't single individuals with a pole and a line; this
isn't recreational fishermen; this is massive, industrial scale fishing. Governments can change this; this isn't an environmental threat that we throw up our hands and there's nothing to do
"If countries really want to protect the remaining stocks of bluefin, they have to get serious
about enforcing the rules and listening to their scientists when they set catch limits," said Wilson. "Management of fish species on the high
seas isn't just about making sure people have nice seafood when they go to a restaurant; it's about the very future of our planet," continued Lieberman.
about it."
"And we have to get management of the oceans correct and we can't keep … and governments can't keep acting like we'll take care of that next year. We'll worry about making money in the
short term, we'll listen to the fishing industry; we'll worry about the ocean & the environment later. We don't have that luxury."
A2: Reg Neg = Litigation
Litigation rates after reg neg’s are affected by a variety of issues- don’t affect net
benefits of the process
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Comparing litigation rates for negotiated and conventional rules, especially without statistical or other controls to ensure that the rules being
compared are truly comparable, involves considerable guesswork about the appropriate baseline. Perhaps
parties that challenge
negotiated rules would have sued regardless of the process used for rule development because of the
issue's importance—in such a case, other potential benefits of negotiated rulemaking might still
warrant its use. Perhaps a greater percentage of negotiated rules lead to lawsuits simply because the
rules chosen for negotiation are typically more contentious than other rules or because the agency lacks
the necessary expertise to devise a particularly complex rule, and is aware of it. That is, in the absence of
negotiated rulemaking, even more litigation might have ensued—which, if true, suggests that reg neg may
decrease litigation rates, only rather invisibly, in the absence of statistical or other controls. At the same
time, challenges to negotiated rules might be qualitatively different from challenges to conventional rules
in important respects: they may involve fewer issues, or different ones, for example, or settle more easily. Of course, when assessing
reg neg's purported benefits, one might not care to know the reason that litigation ensues, only that it does.
However, as a measure of reg neg's success or failure, this is too simplistic. Without knowing the contextual details of
the litigation, drawing conclusions from litigation rates alone can be misleading.357 It is also worth remembering that a legal challenge
offers neither the only, nor necessarily the best, evidence of dissatisfaction with regulation. Regulated
entities can resist regulation (whether imposed via conventionally promulgated rules, negotiated rules, or even through informal
policy instruments) merely through delay, incomplete compliance, or non-compliance.358 Litigation rates alone thus
reveal only a limited amount of information about the promise of reg neg. The reason for a legal challenge seems equally as important as the
mere fact of challenge itself. The
lawsuit might signal dissatisfaction with the consensus reached and therefore reflect a "failure" of the
reg neg process, but it might also signal concerns that have nothing to do with reg neg itself. Indeed, the lawsuit might
actually involve a dimension of the promulgated rule produced through conventional notice and comment, as with the litigation over the
equipment leaks rule.359 Alternatively, as Harter suggests, the
challenge might be aimed at the agency's departure from
the negotiated consensus, signaling dissatisfaction not with reg neg but with subsequent amendments
to the rule in which the party had little voice. In addition, the identity of the challenger matters. It makes a difference,
in our view, whether the party challenging the rule participated in the reg neg committee or not. When a
former committee member files a lawsuit, the challenge might indeed suggest a weakness in the process. Perhaps the party opposes
the rule because it lacked sufficient resources to participate meaning- fully in negotiations, or because its views were so
extreme that other parties failed to incorporate them. We might infer some- thing different, however, if the
challenging party was never included in the negotiating committee in the first place. Perhaps committees should
be larger, or more diverse, in order to reduce litigation further, or maybe they should not disband upon reach- ing consensus, but remain intact
until promulgation. The point is, the reasons for the different challenges, and the identity of the challengers, provide useful information about
the strengths and weaknesses of a consensus-based approach, and how it might be improved. Numbers
alone, especially without
statistical controls for measurable differences, cannot distinguish easily curable defects from fatal flaws.
Even if litigation rates are the same, reg neg yields to increased satisfaction that likely
resolves conflict
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
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.260 Moreover, the
standard deviation of judgments was smaller under reg neg.261 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. 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."262 Overall, then, the
study supports the claim that negotiated rulemaking is more consensual than conventional rulemaking.
Further, if litigation measures conflict, then reg neg seems to perform as well (or as poorly) as
conventional rulemaking. Litigation rates for both kinds of rules, according to Kerwin and Langbein were
about the same.263
***Regulatory Negotiations Affirmative
Doesn’t Solve- General
Reg neg gives information disadvantage to smaller, less resourceful groups- bigger
groups control the agenda
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Respondents' reports about the information that they needed to participate effectively quite closely tracked their answers about learning. The
most frequent type of information needed was technical-scientific (33%), followed by information about the positions of others (18%),
knowledge of the issues (18%), legal information (10%), and economic-cost information (5%).128 Only 6% of respondents reported needing no
additional information to participate in reg neg.129 Participants relied on a number or sources tor information, including themselves (29%), EPA
(20%), other participants (17%), and members of their own coalition (14%).130 The
responses strongly suggest that not all of
the participants were equally situated in the negotiated rulemaking with regard to information. EPA
and large organizations called upon their own resources or those they could control , while
participants with fewer resources most frequently relied on other entities for the information on
which they based their decisions.131 Some participants did report obtaining funds from the Agency for research or
consultants.132 In many instances (60% of mentions), respondents replied that necessary information did not
become available during the course of the reg neg.133 Technical and scientific information was
deemed to be most lacking (20% of mentions), followed by information about the positions of others (13% of mentions), and
economic or cost information (10%), while the remaining 40% of responses indicated that no essential information was lacking.134 This
suggests, contrary to the critics' assertions,135 that the process does expose much, albeit not all, of the essential information for informed
decision making. Reg
neg participants reported as reasons for the absence of information, when it was
missing, that it was known by some but not shared (31%), that it was too expensive to obtain (23%),
or that it was simply not available (20%).136 However, of those who reported a lack of information, 23% indicated that it
ultimately became available at some point in the negotiation process.137 From the Phase I data, it appears that the strategic
withholding of information—thought to be common in conventional rulemaking—was perceived by some participants
(31%) to be an issue in reg neg as well.138 When reservations about the quality of information surfaced, they were more likely
to come from groups with limited resources.139 Environmentalists were the least likely to report that they had all
of the information they needed; indeed, no environmental representative mentioned this , compared to 70% of
business mentions and 36% of EPA mentions.140 Environmentalists were also most likely to report that they needed
scientific and technical information: 64% of their mentions referred to this, compared to about 25% for business and 0% for the EPA.141
Another dimension of information not directly probed in the interviews emerged when several
respondents reported having
difficulty absorbing and understanding the implications of information offered during the course of
the negotiated rulemaking.142 Others referred to a number of technical presentations that occurred simply to establish a minimum
level of technical competence in the issue under presentation.143 This matter is significant for a number of reasons. As Ker- win and Langbein
reported: The intense education that surely occurs in reg neg can properly be viewed as an effort to mitigate the information asymmetries that
critics of reg neg assume will persist with this technique. Still, observations of certain participants suggest that some
participants will
enjoy the powerful advantage of access to and control of superior information which, unless offset, will give
them disproportionate control of the agenda relative to the control exercised by smaller, less wellinformed, interests. There is a good case to be made that the role of information is as or more important in
negotiated rulemaking than in its conventional counterpart due to the pressures created by deadlines and other aspects
of the negotiation process. Hence, the problem of information asymmetry that figures so prominently in criticisms of governmental
decision-making has been partially addressed in negotiated rulemaking but not completely
eliminated. 144
Reg neg fails- increases chances of conflict, amends proposed rules and conventional
process solves
McKinney 99 (Matthew McKinney, Ph.D. in Natural Resource Policy and Conflict Resolution from The University of Michigan,
“Negotiated Rulemaking: Involving Citizens in Public Decisions”, Scholarly Forum @ Montana Law,
http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1883&context=mlr)
At the federal level, Coglianese suggests the performance of negotiated rulemaking has failed to surpass
that of conventional rulemaking for three reasons.62 First, the process may actually foster conflict
stemming from determining membership on committees, the consistency of final rules with negotiated
agreements, and the potential for heightened sensitivity to adverse aspects of rules. Second, given
that negotiated rulemaking is designed to shape a proposed rule which is then subject to the formal
process of public review and comment, the sponsoring agency may need to amend the proposed rule to
accommodate new interests or information. Such amendments may require a retreat from the
consensus proposal. Third and finally, Coglianese argues that agencies and interest groups are quite
capable of working with each other in the context of conventional rulemaking. Similar to the
comments heard in Montana and Texas, Coglianese says that "Negotiated rulemaking shows weak
results in large part because of the strength of agencies in using less intensive methods of negotiation
and public input in the context of conventional rulemaking. These methods, which include individual
meetings, public hearings, and ongoing advisory committees, provide agencies with information about
technical aspects of regulation as well as the interests of affected parties."
**Note that this card on Coglianese’s studies is not what the neg criticizes is flawed- the neg criticizes
his methods of obtaining data- this is independent of that.
Doesn’t Solve- Agency Capture
CP fails- Agency capture and unrepresentative of consumer interests
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
Regulatory negotiation proved more popular in alternative dispute resolution circles than among administrative law scholars, who seemed
anathema to the traditional concept of the agency as a faithful agent of Congress. Regulatory negotiation invites
agency abdication of responsibility, they argued, by shifting the decision-making burden to stakeholders who owe no
duty to the public or to Congress. The process thus embodies what many administrative law theorists viscerally fear: the
last step from a system of arm's-length interest representation—which preserves the agency's
hierarchical authority—to one of direct interest group bargaining.44 At a time when public choice theory and its
unsentimental account of the legislative and administrative process was on the ascendance in law schools, regulatory negotiation seemed to
even if a consensus-based approach to rulemaking
might meet democratic standards of legitimacy under some circumstances, surely regulatory negotiation would
not succeed in practice . First, the process is insufficiently inclusive because only a limited number of
portend its darkest implications.45 Critics argued, moreover, that
parties can participate without negotiations becoming unwieldy.46 Moreover, the power to convene a
negotiating group carries with it the power to manipulate outcomes. Alone, or in collusion with powerful groups,
the agency might rig outcomes in advance through the selection of some stakeholders and the
exclusion of others. In addition, critics anticipated that a consensus approach would favor more powerful, wellfinanced interests with access to money, information, and technical expertise.47 Trade associations
and large firms in particular would enjoy significant advantages over smaller parties or parties with
fewer resources, such as state governments, environmental or labor groups, or small businesses. This
advantage, critics believed, would translate into influence over the outcomes. Moreover, even if agencies could balance
negotiating committees with representatives from all sides, no single interest could adequately represent the average
voter or consumer and, for this reason alone, the process would fall short of American standards of
democratic legitimacy. In- deed, critics suspected that regulatory negotiation would be more likely than
conventional rulemaking to undermine the public interest and lead to outcomes of dubious
legality .48 For some or all of these reasons, critics viewed regulatory negotiation as, at best, a minor reform for use
in limited and tightly controlled circumstances, or, at worst, fundamentally undemocratic 49attacked it first
on theoretical and later on empirical grounds. For some, the mere idea of negotiating rules with stake- holders
Reg neg is worse for public interest- improper representation, interest trade off and
loss of accountability
Stewart 01 (Richard B. Stewart, University Professor and John Edward Sexton Professor of Law at New York University School of Law, “A
New Generation of Environmental Regulation, Capital University Law Review, 2001, 29 Cap. U.L. Rev. 21)
Negotiated rulemaking has been criticized as producing results that accommodate the priorities of
organized interest groups rather than serving the public interest. n290 Proponents argue that the public
will be represented by an appropriate group or alliance of interest groups, and that EPA retains its role
as the guardian of public interest. n291 It may, however, not be practicable to represent all interested
stakeholders and the diverse interests of the public adequately in a small group setting. Also, many
relevant interests among the public may not be organized sufficiently to participate effectively.
Professor William Funk argues that the public interest may transcend the discrete interests of particular
groups. Although the agency is charged with representing the overall public interest, the claims that in
dynamic negotiations, it must "bargain and trade its 'interests' (the public interest) in the same way the
other participants may trade their interests." n292 Additionally, negotiated rulemaking may lead to
results that satisfy the interests at the table but that are of questionable legality. "Hardwiring" the rule
through negotiations behind closed doors arguably subverts the notice and comment rulemaking
process and undermines agency independence and accountability. Professor Funk was a participant in
one of EPA's earliest efforts at regulatory negotiation, the air pollution emission standards for wood
stoves. He concludes that the rule that resulted from the negotiations was beyond the scope of EPA's
authority and did not fall within the statutory mandate. n293 Funk further argues that the reg neg
process usurps the role of the agency, "first by reducing the agency to the [*93] level of a mere
participant in the formulation of the rule, and second, by essentially denying that the agency has any
responsibility beyond giving effect to the consensus achieved by the group." n294
Doesn’t Solve- Empirics
No net-benefits to conventional rulemakings- empirics are on our side
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
In 1997, Cary
Coghanese published an empirical analysis of thirty-five negotiated rulemakings, assessing
whether the process had achieved the instrumental goals of reducing both rulemaking time and legal
challenges to agency rules.69 He calculated that negotiated rulemaking provided only minimal time-saving
benefits compared with conventional rulemaking (2.8 years or 1013 days versus 3.0 years or 1108 days).70
Coglianese then measured litigation rates by comparing the sample of EPA negotiated rulemakings with conventional
rulemakings conducted during the same period. He calculated that the baseline frequency of litigation of conventional
rules was only 26%—a far lower figure than previously thought. He claimed that litigation rates for major rules promulgated
by the EPA between 1980 and 1991, while higher, was only 35%.71 By comparison, according to Coglianese's count, negotiated
rulemakings completed by EPA had a 50% rate of litigation.72 Based on this data, Coglianese concluded that reg neg
had not lived up to its promise to save regulatory time and reduce litigation rates, which he claimed were
the primary purposes of, and driving forces behind, reg neg's adoption.73 Subsequently, based on these data,
Coglianese has argued more broadly against the use of consensus-based processes such as regulatory negotiation, suggesting that other
approaches could deliver its purported benefits as well or better. In his view, reg neg, is not a necessary
precondition to increased compliance, reduced conflict, improved public policy, or greater public
participation.74
Doesn’t Solve- Information Difference
Groups with less resources and money are left out- leads to disproportion of power in
favor of big coorporations
Freeman and Langbein 01 (Jody Freeman and Laura Langbein, “Regulatory Negotiation and the Legitimacy Benefit”, Prof of
Law @ UCLA, and Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, July 2001,
http://www.law.harvard.edu/faculty/freeman/legitimacy%20benefit.pdf)
At the same time, regulatory negotiation falls short of an ideal process. Participants perceive it to be
more resource and information intensive than conventional rulemaking, anwhd smaller, poorer
participants disproportionately bear these costs.334 These same groups also suffer from information
asymmetries.335 The data reveal a number of inequities which could, if not mitigated, harm smaller
interests with fewer resources. Recall, for example, that smaller, poorer groups found the decision to
participate in reg neg more difficult.33'1 During interviews, Kerwin and Langbein detected a fear among
smaller, poorer participants that refusal to participate might seriously damage the group's inter- ests.
That is, even if they might have preferred a conventional rulemaking because of the lower time and
effort required, these groups felt pressured to join the reg neg. Thus, unless EPA pro- vides
supplemental assistance to mitigate the resource drain on these groups, they might feel somewhat
coerced into participation. Unequal access to information continues to be an ongoing problem in
regulatory negotiation. Although the intense educa- tion and learning that occurs during negotiations
can help to mitigate information asymmetries, the disparities may still be substantial enough to give
disproportionate agenda-setting power to groups with greater resources. Information asymmetries
seem particularly problematic in this context, given its infor- mation-intensive nature.
CP Fails- Worse for Environment
Regulatory negotiations on environmental issues fail- creates loopholes and
undermines accountability
Stewart 01 (Richard B. Stewart, University Professor and John Edward Sexton Professor of Law at New York University School of Law, “A
New Generation of Environmental Regulation, Capital University Law Review, 2001, 29 Cap. U.L. Rev. 21)
The defense of the current command regulatory system is also well known. It "works." Its proponents
contend that it has achieved and will continue to achieve substantial improvements in environmental
quality through a combination of technology-based controls and ambient environmental quality
standards. These regulatory requirements have pushed firms to develop and adopt pollution controls
and sound waste reduction and management practices. For example, emissions reductions from
automobiles have fallen dramatically over the past thirty years and will be reduced much further as a
result of current federal requirements. Proponents of the regulatory status quo also argue that there are
insufficient assurances that the proposed alternatives to the current system will perform better. Indeed,
they may well inhibit further environmental [*22] progress. For example, proposals to require regulatory
agencies to conduct additional cost-benefit and risk analyses before they can act threaten to impose
intolerable delay and undermine environmental goals. Market-based and other flexibility mechanisms, if
used on a broad scale, threaten to create serious loopholes and undermine the legal and public
accountability of the regulatory system. It is claimed that market-based mechanisms are not suited for
dealing with most environmental problems because they can lead to local pollution "hot spots" and are
subject to monitoring and other administrative difficulties. While reflexive law measures and other
information-based approaches can make a contribution, they are no substitute for legal controls on
conduct, backed up by effective government enforcement and sanctions.
Judicial Review Inevitable
Judicial review inevitable- stumps negotiated rule
Stewart 01 (Richard B. Stewart, University Professor and John Edward Sexton Professor of Law at New York University School of Law, “A
New Generation of Environmental Regulation, Capital University Law Review, 2001, 29 Cap. U.L. Rev. 21)
The role of the judiciary in the negotiated rulemaking process has also sparked debate. Normally, judicial
review of the substance of federal agency regulations involves two steps: first, determining whether the
rule is within the scope of the agency's authority; second, determining whether the agency provided a
reasoned justification, adequately supported in the rulemaking record, for its choice of the specific
provisions adopted. An agency's failure to meet this standard renders its decision "arbitrary and
capricious." n295 Philip Harter, a prominent advocate of regulatory negotiation, argues for a degree of
judicial deference to rules produced by negotiation consensus. He argues that the negotiation process
ensures that such rule is within the scope of the agency's authority and is not arbitrary and capricious.
Assuming a diverse group of interests are represented, he concludes, someone is likely to be made
worse off by a rule that is not within the agency's scope of authority, or is arbitrary, and will be unwilling
to agree to it. n296 Thus, reviewing courts should "provide a little leeway to accommodate practical
interpretations and implementation." n297 In his view, the proper role of the courts is to determine
whether a valid consensus was reached, and, if so, whether the result plainly exceeds the agency's
statutory authority. In determining the validity of the consensus reached, the court should look at
whether the petitioner's interests were adequately represented in the negotiation and whether it had a
fair opportunity to join the process, even if it did not directly participate. Harter points out that there
will be little incentive to participate in regulatory negotiations if non- participants can simply sit out the
negotiations and let others do the work, only to challenge the rule that emerges. The well-known
dissent from this view was expressed by Judge Patricia Wald. Judge Wald argues that an appellate court
has an "independent obligation to insure that the agency is not thwarting Congressional intent,
regardless of how many parties agree with the agency's rule." 11298 Accordingly, the "interest test"
should not intrude into [*94] the appellate review process. She rejects the idea that everyone must
either demand to participate or trust a participating interest group to represent his or her interests.
Echoing some of Professor Funk's concerns, Judge Wald argues that, as only a limited number of groups
can take part in the negotiations, they should not be allowed to bind everyone. n299 Thus, the court
should apply the same scope of review and criteria of legality to every rule, regardless of whether it is
the product of negotiation consensus or traditional notice-and-comment rulemaking. This appears to be
the current law.
Perm do the CP- Part of Normal Means
Perm do the CP- Negotiations and public input are part of normal means
McKinney 99 (Matthew McKinney, Ph.D. in Natural Resource Policy and Conflict Resolution from The University of Michigan,
“Negotiated Rulemaking: Involving Citizens in Public Decisions”, Scholarly Forum @ Montana Law,
http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1883&context=mlr)
When asked to explain why they have not engaged in a formal negotiated rulemaking process, the
departments replying to the survey offered three primary responses. First, several agencies rely on
informal conferences and consultations as a means of obtaining the viewpoints and advice of
interested persons with respect to contemplated rulemaking. The departments explain that using
these informal procedures, encouraged in section 2-4-305, MCA, is consistent with the intent of the
Montana Negotiated Rulemaking Act. For example, the Department of Agriculture replies, "We've never
found it necessary. If we anticipate controversy, we automatically include the affected public during
the formative process … which seems to be de facto negotiated rulemaking."51 The Office of the State
Auditor reinforces this observation in stating, "Negotiated rulemaking merely adds formalities (e.g.,
publication of notice regarding committee appointment, use of a facilitator, and so on) to regular
rulemaking which informally accomplishes the same end ."52 The Department of Administration says
"We have not had a real controversial rule. We do seek input from all constituencies prior to notice and
after. Mostly our rules reflect consensus now."53 And the Department of Natural Resources and
Conservation reiterates "We generally solicit informal comments from constituent groups prior to
commencing formal rulemaking. In the recent past, we have developed rules where the traditional
process was the most appropriate model to use."54
The aff is normal means- agencies already use consultation methods
McKinney 99 (Matthew McKinney, Ph.D. in Natural Resource Policy and Conflict Resolution from The University of Michigan,
“Negotiated Rulemaking: Involving Citizens in Public Decisions”, Scholarly Forum @ Montana Law,
http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1883&context=mlr)
In the traditional draft-notice-comment approach to administrative rulemaking, the agency may or may
not consult people whose activities are regulated, or who might otherwise be interested in the issue, to
gather information that may be helpful in drafting the proposed rule. And when an agency does seek the
input and advice of stakeholders during the process of drafting a rule, it typically consults with one
stakeholder at a time. Such contacts are usually informal and unstructured. In short, traditional
rulemaking procedures do not necessarily encourage the agency and all affected parties to sit down
face-to- face and exchange ideas in an effort to reach agreement prior to drafting the proposed rule.
No Litigation Benefit
Little difference in reg neg and conventional litigations rates- your authors prove
Langbein and Kerwin (Laura Langbein, Prof of Public Affairs @ American U, Environmental Law Reporter, Professor of public
administration and president of American U, “Regulatory Negotiation versus Conventional Rule Making: Claims, Counterclaims, and Empirical
Evidence”, Journal of Public Administration Research and Theory”, July 2000, http://www.jstor.org/stable/3525630)
Coglianese (1997) compares litigation of conventionally written and negotiated rules. Contrary to claims
of high litigation rates for the conventional rules and the expectation of a substantially lower litigation
rate for negotiated rules (Harter 1982), he finds relatively low overall litigation rates and little difference
between the rates for conventional and negotiated rules. We also examined litigation; although our data
are not as comprehensive as Coglianese's, our evidence is consistent with his. We are unable to
comment definitively on the litigation experiences of the conventional rules we studied, as they
compare to that of the negotiated rule making studied in Kerwin and Langbein (1995). This is due in
large part to the limitations of the approach we used to determine the occurrence and outcomes of
litigation. Information about non-enforcement litigation involving the negotiated rules came from the
Administrative Conference of the U.S.; similar information involving the conventional rules came from
the survey respondents who participated in the rule making.5 We were informed that two of the six
conventional rules (or 33 percent) we studied were the object of some form of non- enforcement
litigation. Litigation also had been filed that affected the one conventional rule (refueling) we dropped
from the study due to difficulty locating interview respondents. This compares with the two negotiated
rules among seven (29 percent) that we found in our study to be subjected to similar non-enforcement
legal challenges. While the numbers are too small for statistical comparison, they conform to
Cogliansese's findings of little difference in the litigation rate between conventional and negotiated
rules and an overall litigation rate of under 40 percent.