Assessing the Assessors: The Actual Performance of Negotiated Rulemaking

27 Pages Posted: 16 Feb 2000

Multiple version iconThere are 2 versions of this paper

Date Written: December 1999

Abstract

Negotiated rulemaking is a process in which representatives of the interests that would be substantially affected by a rule ? including the agency responsible for issuing the rule ? negotiate in good faith to reach a consensus on a proposed rule. It has proven enormously successful in developing agreements in highly polarized situations. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have eluded closure by means of traditional rulemaking procedures. Criticism has recently been leveled at negotiated rulemaking on the ground that it has failed to achieve its "instrumental goals" of saving time and reducing litigation. Professor Cary Coglianese sought to measure whether negotiated rulemaking in fact saved time and reduced litigation by analyzing negotiated rulemaking at EPA, and he found it wanting in both dimensions. He argues that there has been an insignificant savings of time for rules developed through reg neg, and he concluded that rules developed through it are actually challenged more frequently than rules developed by traditional means. Unfortunately, however, 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 it should not have been. 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, and hence his results are skewed since the agency achieved its objective long before Coglianese calculations indicated. 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. 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, as described by a serious empirical study, the participants and those otherwise affected by rules find a range of values in negotiated rulemakings as opposed to those developed traditionally.

JEL Classification: K23

Suggested Citation

Harter, Philip J., Assessing the Assessors: The Actual Performance of Negotiated Rulemaking (December 1999). Available at SSRN: https://ssrn.com/abstract=202808 or http://dx.doi.org/10.2139/ssrn.202808

Philip J. Harter (Contact Author)

affiliation not provided to SSRN

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