After months of rummaging through the Federal Register and studying the rulemaking traits of federal agencies, Harvard University professor Cary Coglianese is taking a stand contrary to that of most federal policymakers.
Consensus, he says, is not all it's cracked up to be.
Coglianese studied the concept of "negotiated rulemaking," under which federal regulators convene groups of stakeholders to negotiate proposed rules. Proponents argue that the procedure, which encourages affected parties to reach an agreement at the outset, decreases the time it takes to develop regulations and reduces or eliminates judicial challenges.
Just the opposite is true, according to Coglianese.
"Despite all the postulations about how negotiated rulemaking will save time and eliminate litigation, the procedure so far has not proven itself superior to the informal rulemaking that agencies ordinarily use," Coglianese wrote in his study, "Assessing Consensus: The Promise and Performance of Negotiated Rulemaking."
Congress approved regulatory negotiation in the Negotiated Rulemaking Act of 1990, which was permanently reauthorized in 1996. Since 1993, the Clinton administration has endorsed the process through its National Partnership for Reinventing Government and specific directives to agency heads. An NPR report issued in September 1993 said negotiated rulemaking could increase innovations in the substance of regulations and foster increased rates of compliance between regulated parties and federal agencies.
Coglianese concluded, however, that agencies have had little success with negotiated rulemaking. In 13 of the 67 negotiated rulemakings that had been announced by the end of 1996, the agency abandoned the formal negotiated process before any consensus was reached--a 20 percent failure rate.
Coglianese also found that negotiated rulemaking does not necessarily save time. The Environmental Protection Agency used the process 12 times, at an average of 2.8 years per negotiation. This is equal to or more than the average amount of time the regular rulemaking process takes, Coglianese found.
Negotiated rulemaking does not reduce litigation either, he concluded. Only about one fourth of all EPA rules ever face a legal challenge, but rules developed through negotiated rulemaking have been challenged 50 percent of the time, Coglianese found.
"Negotiated rulemaking adds new sources of conflict and raises unrealistic expectations about what participants can gain from their participation," Coglianese wrote in the study, which appeared in the Duke Law Journal in March.
Coglianese advised Congress and President Clinton to direct agencies away from the process.
"Agencies' continued reliance on public participation methods which do not depend on consensus would appear the more sensible approach to making regulatory decisions," he wrote.
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