Success at the Negotiating Table: Not Just for Steel Guidelines

Sarah Compton

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Ms. Compton, a partner in the Georgetown law firm of Collier, Shannon, Rill & Scott, was co-counsel for the American Iron and Steel Institute along with her partner Richard Schwartz in the steel negotiations.

[13 ELR 10171]

The recent negotiations between the Environmental Protection Agency (EPA) and representatives of the steel industry and the Natural Resources Defense Council (NRDC) concerning the Steel Industry Effluent Guidelines provide a promising model for the resolution of future disputes over complex pollution control rules. While these successful negotiations may have been "an aberration from the usual tug of war between industry and environmentalists," as stated by NRDC's Alan Miller in the April ELR "Dialogue," [13 ELR 10094] nothing precludes parties in similar conflicts over other environmental rules from negotiating rather than litigating their differences.¹ In fact, contestants in future such conflicts can learn several valuable lessons from the steel settlement.

First, the parties worked hard at dissolving negative perceptions of each other. This was accomplished in large part by involving a great many nonlawyers who shared considerable on-site experience and technical knowledge.

Second, each party made a concerted effort to understand the other side's legitimate interests and positions, recognizing that there could be no settlement unless everyone walked away with something.

Third, and perhaps most important, the negotiations tended to focus on the practical effects of desired modifications to the regulations. Although the parties frequently had what appeared to be nonegotiable philosophical differences on basic issues, it turned out to be relatively easy to agree on specific technical changes when the parties understood that the effects on the environment or on costs would be insignificant compared to the "harm" the other side would suffer if the changes were not made. In order to accomplish this the parties shared a great deal of technical information, information that demonstrates exactly what the "philosophical theories" would or would not accomplish. Bringing the controversies into the realm of the practical and possible enabled the parties to agree on many issues historically considered beyond compromise.

Fourth, for the most part, the parties preserved the confidentiality of the negotiations. Thus, no one was compelled to stick to an interim position simply because it was publicized as its "final" nonnegotiable position.

Fifth, the parties very methodically worked through their differences and agreed on the easier issues first, thereby significantly increasing the momentum for settling the entire matter.

Sixth, there were many times when the parties appeared to be at an insurmountable impasse. However, they were unwaivering in their efforts to continue toward an agreement. Both sides were persistent, albeit at different times, in keeping the other side's signts set on settlement.

A final tactic which made settlement easier was the willingness to think creatively about the legal framework governing the dispute. For example, in the situation where only a few steel facilities were affected severely by a particulary provision in these regulations, the parties looked to other provisions such as the waiver mechanism in Section 301(g) of the Clean Water Act as a means of resolving the problem without "opening the flood gates" to the entire industry.

All of these measures are available to the parties in other pollution control disputes, even if the proposed regulations are considered to be "one-sided." The crucial facts are not whether the proposed rule is biased but rather, for technical issues, the extent to which the Agency's record supports its proposal and, for legal issues, the extent to which the proposal is consistent with the applicable statute and related existing regulations. There is little environmental litigation that does not have a great deal at risk. Thus, regardless of the "one-sidedness" of a given regulatory proposal, negotiations make good sense.

The potential benefits of negotiating pollution control disputes are considerable. The issues can be resolved in less time. Even though the steel guideline negotiations took several months to conclude, resolution came far sooner than if the parties had proceeded in the Third Circuit. This meant lower legal fees and an earlier end to debilitating uncertainty.

A less obvious but major benefit to emerge from these settlement negotiations is a new trust and understanding between NRDC and the steel industry, which will far outlast the effects of the effluent guideline settlement. It is not that these parties' interests now merge any more so than before the settlement, but there is a new sense that, with some effort, they can better accommodate each other's needs without sacrificing all of their own interests. This new interest in communication and sharing technical information has already begun to and will serve these parties in many other arenas — Congress, the media, and the public, as well as before EPA. It may not happen overnight but it is possible for parties who appear to have significant philosophical differences to reach agreement on major environmental controversies. The result is so rewarding that the effort should be made in every instance.

In summary, successful negotiations are possible in many instances if environmental litigants a) agree to put aside long held views of disdain for each other; b) acknowledge at the outset that the other side can not walk away from the negotiations empty-handed; c) subordinate philosophical differences; d) focus on specifics and practical effects; e) involve technical professionals to a great extent; f) preserve the complete confidentiality of the negotiations; g) whittle away at the differences by agreeing on the easier issues first; h) are creative and use other regulations and provisions to accompliss the same end while maintaining the integrity of the general provision or principle the other party wishes to keep inviolate; and finally, i) are persistent and committed to solving the matter amicably.

1. The following discussion addresses negotiating controversies in the context of litigation, not negotiating prior to commencing litigation. There is seldom sufficient pressure to inspire fruitful negotiations in the absence of the threat of court resolution of the dispute.