Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: WELCOME

Nicholas C. Yost is Of Counsel to Dickstein, Shapiro and Morin in Washington, D.C.

NICHOLAS C. YOST: Welcome to the 15th Annual Airlie House Conference on the Environment.

Something, as they say, is going on, and we of the Standing Committee are not sure what it is. We seek, therefore, to explore the larger significance of a number of seemingly disparate events.

Let's look at some of the developments that have drawn our attention. Traditionally, Congress passed laws, and then agencies held hearings or provided opportunity for written comment. The agencies then adopted a regulation, which was upheld, unless it transgressed the generally permissive bounds authorized by the Congress.

In the last few years, however, something novel has occurred. The agency and all the affected interests have been sitting down and trying to agree on the terms of a regulation. They have sought terms that satisfy the agency's mandate, but which also respect the interests of the private concerns — both the regulated industry, and private citizens through their organizational representatives. This new development — known as negotiated rulemaking, regulatory negotiations, or "regneg," to use the jargon — is one of several innovations that reflect a more consensual, and less strictly governmental, approach to generic environmental issues.

Examples include the negotiated agreement between the affected industry and the public interest community on proposed amendments to a major environmental statute (regulating pesticides)¹. The results of their deliberations have been presented to the executive and legislative branches with the persuasiveness that the breadth of the sponsoring coalition suggests.

Enforcement, too, has been affected by these changes. The traditional model has been government enforcement of its own laws and regulations. But while qui tam and public nuisance actions have long histories, the advent of the citizen suit in environmental law in the 1970s has spurred a shift to private enforcement on a far more conspicuous level.

At the same time, enlightened leaders in industry are no longer content to await the results of intermittent governmental inspections. They have devised means of auditing their own compliance, both with the law and with sound practice. Their aim is to set up procedures that prevent harm, forestall violations, and remove the need for government action.

In yet another area, that of private facilitating and adjudicative functions, we have seen what is perhaps the most diverse set of developments in the private sector — environmental mediation in a wide range of settings.

In the coming presentation, we will learn about the use of a special master as environmental mediator. Later, we will learn about the use of private facilitation with respect to such difficult tasks as restoring harmony between an industry and the surrounding community, and, in another case, bringing about agreement among two or three hundred parties involved in a Superfund site.

In the face of these developments, certain questions come to mind. Are there things in common between the growth of citizen suits — traditionally favored by the environmental community — and the movement for privatization espoused by westerners disturbed by what is perceived as an excessive federal intrusiveness? Both turn to private sector remedies.

In a larger sense, are there healthy reasons for this move to private — or, at least, less exclusively governmental — undertakings? Are there failings in our system of government that the private sector can remedy? Or are there beneficial governmental undertakings that those outside of government can complement?

Finally, as we examine these private assumptions of previously public responsibilities, we must ask whether the public interest is necessarily identical to an amalgam of private interests.

It is to these questions that we devote our deliberations over the next two days.

1. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135-136, ELR STAT. 42301.