Harvard Environmental Law Review
Publication Title (Abbreviation)
Harv. Envtl. L. Rev.
For at least two decades, federal agencies have departed from their traditional role as top-down regulators, and have engaged regulated parties in negotiations regarding matters that were previously either handed down as edict or resolved in quasi-judicial agency proceedings. It is no accident that the increase in agency use of more conciliatory negotiation-oriented strategies coincides with a steady increase in skepticism regarding the effectiveness of regulation at the federal level and demands for less federal control and more state and local control. In this setting, federal agencies have become more inclusive and less adversarial towards regulated parties and other stakeholders, such as environmental organizations and community groups, when exercising their regulatory powers.
This Article will discuss one class of programs intended to reach out to a variety of stakeholders and regulated parties: regulatory reinvention. Regulatory reinvention refers to a series of Clinton administration initiatives authorizing federal agencies to negotiate compromises with regulated parties, particularly in the environmental arena. The political pressure for regulatory reform and the lack of viable alternatives to reinvention ensure that the concept of reinvention, or some variant thereof, will survive well beyond the Clinton administration. President George W. Bush's Environmental Protection Agency ("EPA") Administrator, Christine Todd Whitman, has already publicly announced her support for the flagship reinvention program, Project XL, which is EPA's program for reducing regulatory burdens resulting from its pollution prevention mission.1
Reinvention was the centerpiece of the Clinton administration's efforts at regulatory reform. Threatened by the Republican sweep of Congress in 1994 and eager to stave off the most draconian proposals for amending environmental laws, the Clinton administration sought ways to defuse the pressure for sweeping legislative reform by engaging regulated parties. By attempting to make environmental regulation less onerous than under a more traditional regulatory approach, the Clinton administration hoped to relieve some of the political pressure for reform, and show that existing environmental laws could be made to work. Toward this end, reinvention was fairly successful in that it avoided substantial amendment to existing environmental laws. Thus, reinvention was more than a political reaction in the sense of being responsive to regulated parties as a constituency. Reinvention was a desperate attempt to save certain environmental statutes from the reform-minded 104th Congress.
This Article will apply a simple economic game-theoretic model to analyze the relationship between the increasing discontent with federal regulation and the increasingly conciliatory attitudes of the federal regulators. As regulated parties have sought relief in the courts and from Congress, federal agencies have engaged in regulatory negotiations and preemptively offered concessions in an attempt to keep their regulatory authority intact.2 Also, this Article will argue for a critical examination of the negotiated agreements achieved under reinvention programs. This Article will also argue for clarification of the substantive parameters under which regulatory negotiations may occur to ensure that regulatory agencies faithfully represent the public interest in negotiating with regulated parties. Finally, this Article will present an empirical framework and analysis for assessing the effectiveness of federal agencies in regulatory negotiations. This Article applies each of these topics to a specific policy setting, the Endangered Species Act ("ESA").3
1 Susan Bruninga, EPA: Project XL, Performance Partnerships are Models for Policy, Whitman Says, Daily Env't Rep. (BNA) A-10 (Mar. 9, 2001). See also Christie Whitman, Administrator of the U.S. Environmental Protection Agency, Remarks at the National Environmental Policy Institute (Mar. 8, 2001), at http:llwww.epa.gov/projectxll hitman_03_08_01.htm (last visited Dec. 1, 2001) (on file with the Harvard Environmental Law Review).
2 Philip Harter has also argued that regulatory negotiations simply make better rules. Harter first noted in 1982 that some negotiated rulemakings departed from the traditional processes of the administrative state. The National Coal Policy Project was one early pilot project, which stemmed from a negotiation initiated by Dow with some representatives of environmental organizations. Other projects with environmental consequences also had been developed using negotiations with various stakeholders. Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1, 38-41 (1982).
3 16 U.S.C. §§ 1531-1544 (1994).
© 2002 Shi-Ling Hsu
A Game-Theoretic Approach to Regulatory Negotiation and a Framework for Empirical Analysis, 26
Harv. Envtl. L. Rev.
Available at: https://ir.law.fsu.edu/articles/510