Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Concerned that the regulatory process has become excessively litigious and adversarial, scholars and policymakers have increasingly urged federal regularos to adopt more consensual methods of creating public policy. Notwithstanding the overwhelming interest in and support for negotiated rulemaking, administrative agencies have only infrequently relied on the formal regulatory process. Over its thirteen year history, the negotiated rulemaking process has yielded only thirty final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and-comment process. Why have federal agencies relied so little on negotiated rulemaking.

This paper addresses this question by assessing the impact of negotiated rulemaking on its two major purposes: (1) reducing overal rulemaking time; and (2) decreasing the amount of litigation over agency rules. Unlike most other studies, I examine the use of negotiated rulemaking by all federal agencies over the past thirteen years. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated. Negotiation ordinarily pervades the rulemaking process, and litigation is vastly less common than previously supposed. Similarly, negotiated rulemaking has been overstated as a viable strategy for gaining consensus and avoiding the occasional lawsuit.

Negotiated rulemaking consumes more resources for agencies and stakeholders than does notice-and-comment rulemaking, and it fails to yield any significant impact on the levels of litigation or controversy which normal rulemaking occasionally engenders. Indeed, 6 out of the 12 negotiated rules adopted by the U.S. Environmental Protection Agency (EPA) have resulted in court challenges, a litigation rate higher than the overall rate for EPA rules. Ultimately, my findings question the growing call among scholars and policymakers for reforming the regulatory process to rely more extensively on formal negotiated rulemaking. Formal negotiation, it seems, will not eliminate conflict and controversy in the regulatory process any more than it does in the legislative process. Efforts to mandate the use of regulatory negotiation will accomplish little in the way of reducing litigation or promoting more effective regulation and may well serve only to burden regulatory agencies further.