Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: Negotiated Rulemaking: B. Horse Sense in Government

LaJuana S. Wilcher

LaJuana S. Wilcher is an attorney with Bishop, Liberman, Cook, Purcell and Reynolds, in Washington, D.C. She formerly was the Assistant to the Deputy Administrator, and Facilitator, FIFRA § 18 Emergency Exemption Negotiated Rulemaking, U.S. Environmental Protection Agency, Washington, D.C.

[17 ELR 10247]

Horse trading is a process as old as the hills of Virginia. Negotiated rulemaking, however, is a horse of a different color. The nag that the parties end up with is one that we all have to ride. It is therefore particularly important that these negotiations result in a rule that is sound and based on the input of every major interest affected by the rule.

In environmental cases, this often means a very broad segment of our population. Other federal agencies may regulate only one segment of the population. Environmental issues, however, touch everyone, whether families filling up their cars with gasoline, farmers applying pesticides, Mom and Pop running the local drycleaners, or kids playing baseball on a field that has been contaminated with dioxin.

This opportunity for public participation is one of the greatest benefits of the negotiated rulemaking process. As a nation, we have struggled for years with the question of what role the government should play, and what role the citizen. According to Abraham Lincoln, government should do for people only those things that they could not do for themselves. The current Administration believes that the government should be the servant of the people instead of their master.

Ultimately, negotiated rulemaking can provide a sensible way to accomplish these goals and to let people have a greater voice in many of the types of decisions that are made in government.

Among the advantages of this new approach is the chance to come up with a better rule, because all the parties have a chance to get involved from the outset. If you have ever ridden a horse, you know that while riding down a steep trail you have to be in control. You want to have constant contact with the bit, constant input into which way the horse is going, because once he decides which way he's going, it is awfully hard to get him back onto the trail. If you keep him on the trail all the time, you have a much better chance of not ending up over the hill or up a creek.

All of us — public interest groups, industry, lawyers, and those in government — can work together to stay on the trail. Instead of a bunch of people who have never been out to a corn field, or who have never seen pesticides sprayed, sitting in their climate controlled offices and making the decision about what the pesticide rule should be, we have an opportunity to include applicators, farmworkers, growers, concerned citizens and the various groups that represent them in the rulemaking process.

Another advantage, if the negotiation process works as it should, is that the rules that are promulgated will be implemented much more quickly and efficiently to protect people and the environment. One step that we in EPA and in government must take is to shorten the intervals between the time of agreement, the date on which it is officially proposed in the Federal Register, and the point at which the rule is finalized.

Most of my observations about negotiated rulemaking come from my role in facilitating the Section 18 negotiations.¹ There is an opportunity and a responsibility, in facilitating negotiations, to watch closely the relationships of the parties. At our first Section 18 meeting, one group came up to me and asked if there was a separate lunch room where they could eat. We were having sandwiches brought in, and I said: I'm afraid you are going to have to eat here in this room with all the rest of us.

At first, people in an interest group would sit together, or one person would go in and sit in the middle of another interest group, perhaps so that he could hear any discussions that were going on.

In response to some of this type of behavior, we tried to get people out of their roles as strictly lawyers, or lobbyists, or negotiators, and tried to encourage them to relate to each other as people. If the negotiations were to succeed, people were going to have to talk with people.

We held a cook-out. After the conclusion of the negotiations we held a reception. It was an amazing thing to watch the differences in the way people related to one another from the beginning of those four months to the end. Surely, negotiation allows people to resolve differences — or, at least, to acquire respect for their opponents — in a far more civil fashion than in times past. They learn to trust one another, so that if someone makes a promise, the others know that they can rely on it. It is quite possible that when seemingly adverse interests work together to achieve a common goal, new lines of communication will evolve, and that the benefits of better understanding and communication will long outlive the benefits of a better rule.

[17 ELR 10248]

Of course, negotiation does not ensure a perfectly smooth rulemaking ride. There is no doubt that negotiation is time-intensive. For both the agency and the participants at the table, the time demands during the period of negotiation can range well beyond those of normal bureaucratic process. This is a problem for people with limited resources. Payment for participants'time and expenses are thorny issues that have not been resolved; hopefully they will be soon.

Another problem is the feeling of loss of control by some individual participants. It is difficult for people who have been committed to certain values and ideals to compromise on any issues that seem to embody those ideals. As the group gains more control of the process, the potential influence of each particular interest declines. The agency cannot now just go and unilaterally publish the proposed rule. The public interest or industry group cannot simply come in and make the strong emotional assertions that may be needed to satisfy its constituents or stockholders.

The people who participated in EPA's pesticide negotiations did an excellent job of overcoming the natural tendency to want to hold onto one's own turf, strike a position, not give in, go pound the opposition and hope to win by shouting the loudest.

EPA has been in a particularly good position to experiment with negotiated rulemaking and to develop it. Whereas some other agencies are one hundred years old or older, EPA is relatively new. It has only been around for 15 years. Other agencies have more established procedures, and it is harder to convince the people there to try something different.

Another factor in EPA's favor is that environmental issues affect everybody and it's probably easier to get the public involved in negotiating environmental issues than, for example, a Federal Aviation Administration (FAA) regulation. With environmental issues, more people are interested at the outset, and a number of groups already exist that are committed to the values and ideals at stake.

Finally EPA in particular has been able to have a strong program thus far because of the support and commitment from a great number of people, both within and without the agency. In EPA, if a negotiation does not achieve consensus, it is not seen as a failure by top Agency managers like Jim Barnes and Lee Thomas. The employees are encouraged to experiment and try new ideas, and both Jim and Lee are particularly knowledgeable and involved in negotiated rulemaking policy decisions.

So the negotiated rulemaking process has been tested, in the sense that we know that it can succeed. It is untested in the sense that there aren't many real rules about how the process should proceed. Once we start trying to make specific rules about how this process should work, once we try to get particular about what can and cannot work — as oposed to following some basic principles set forth by Phil Harter — we are severely limiting our likelihood of success. There are no experts, and few rules. There can be twenty at a table; perhaps there can be forty.

I would like to make a final point — about skepticism about the process. On the first day of our negotiation, joining us at the table were such diverse groups as the National Coalition Against the Misuse of Pesticides, National Wildlife Federation, Audubon Society, Cotton Council, Corn Growers, Wheat Growers, and the Florida Citrus Mutual. We had state health officials, state pesticide groups, the National Agricultural Chemicals Association, and an EPA representative, Steve Schatzow.

Trying to convince all those people to sit down and talk was a bit of a challenge. As facilitator, I knew that my work would be cut out for me, when a number of people at our first meeting told me that they knew that this was not going to work. They made their announcement in front ofthe whole group. Because they had given their word, they would try, but it was really a waste of time. There was no way that people who had disagreed for so long could ever reach an agreement.

I would like to share with you a brief story I told them that day. There were two little sisters. One was an unshakable optimist; the other, a chronic pessimist. The mother became frustrated having to deal with these children. She just didn't know what to do. So she went to a psychiatrist and asked for advice.

The psychiatrist said that she should take the pessimist and give her a pony, because the little girl had wanted a pony her whole life: Give her the pony, the psychiatrist said, in a ring and with a stall, and let her go out and spend the whole day with the pony. Surely the child will become a little bit more of an optimist. She would see that there were good things in life and begin to see the glass half full instead of half empty.

The other child was to be put in a room with the pony's manure and a shovel. The door was to be shut and locked, and she should be left for the day. This would certainly give her the perspective that all life was not a bed of roses.

The mother, believing she had nothing to lose, followed the psychiatrist's instructions.

At the end of the day, she went to check on the two children to see how they were doing. The pessimist, who had gotten the pony, was sitting out in the field, sobbing. The amazed mother asked her what could possibly be the matter. The little pessimist said: I just know somebody is going to come and take this pony away from me. I have not been able to enjoy him because somebody will come someday and take him away.

The mother then went to the room with the little optimist and the horse manure. The little girl was digging furiously in the manure with the shovel, giggling, laughing and carrying on. The mother said: I don't understand, what are you so happy about? The daughter replied: I know there's a pony in here somewhere!

In negotiated rulemaking, there is a pony in there for all of us, whether it's a better rule, greater public participation, or a better understanding among those involved in the issues. With your continued commitment and support, we have a chance to see that pony come out and go for a ride more often than we have in the past.

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