Negotiated Rulemaking - Successes and Critiques

Successes and Critiques

In a study published in 1997, University of Pennsylvania Law School Professor Cary Coglianese reported that negotiated rulemaking did not provide the benefits advocates of the procedure had promised, namely decreased litigation and more expeditious rulemaking. At the agency that had conducted the most rules developed with reg neg at the time of his research - the EPA - 50% of the negotiated rules resulted in litigation, compared with an overall rate closer to 25%. Coglianese also found that negotiated rulemaking did not save agencies any time.
In an article published in 2000, Philip Harter characterized Coglianese's research as possessing fundamental flaws, notably stating that he "misapplies his own methodology, incorrectly measures the duration of several negotiations, and fails to differentiate among different types of judicial challenges to negotiated rules." In a reply article, Coglianese rebutted Harter's criticisms, stating that "Harter makes unfounded assertions about study, disregards basic principles of empirical analysis, and continues to advance bold claims for negotiated rulemaking unsupported by reliable empirical analysis."

In a subsequent paper, public policy mediator Susan Podziba has argued that negotiated rulemaking allows the benefits of face-to-face interaction and cooperation. She has also claimed that it allows all parties to share information and take advantage of the different skill sets of committee members. Research conducted by Dr. Laura Langbein of the School of Public Affairs at American University indicated that rules developed through reg neg were perceived by survey respondents to be of better quality, more accurate and timelier than rules created using the traditional process. Coglianese has outlined several limitations in the Langbein study

Another criticism of negotiated rulemaking is that it subverts the public interest because special interest groups have too much sway. Professor Jody Freeman of Harvard Law School argues against this idea and asserts that the phrase "public interest" is far too vague to act as a variable in the assessment of negotiated rulemaking.
In 2006, the U.S. Department of the Interior and the U.S. Environmental Protection Agency Public co-sponsored a workshop to reflect on lessons learned during past negotiated rulemakings conducted throughout the federal government. According to background materials prepared for the workshop, more than 30 federal negotiated rulemakings occurred between 1996 and 2005, including the No Child Left Behind Act, Off-Road Vehicle Regulations at Cape Cod National Seashore, and Worker Safety Standards for the Use of Cranes and Derricks in Construction.