Study Finds that Governmental Procedure To Reduce Litigation Actually Leads to More Lawsuits

An empirical study of negotiated rulemaking Ñ an alternative procedure that policymakers and scholars have long advocated as a means of reducing time-consuming conflict and litigation over federal regulations Ñ shows that it has not saved agencies any time and has resulted in more, not less, litigation over federal regulations.

Cary Coglianese, assistant professor of public policy at the Kennedy School of Government, found that federal regulators have been vastly more successful in avoiding litigation using their ordinary methods of policymaking than anyone has recognized Ñ that litigation is not the inevitable product of agency rulemaking. The study, ÒAssessing Consensus: The Promise and Performance of Negotiated Rulemaking,Ó shows that negotiated rulemaking adds new sources of conflict and raises unrealistic expectations about what participants can gain from their participation.

In a negotiated rulemaking, regulators convene a committee of corporations and other outside groups who negotiate among themselves over the content of government policy. Coglianese carefully documents how negotiated rulemaking has failed to achieve what its advocates have promised.

For example, while most observers have long believed that business or environmental groups file lawsuits challenging 80 percent or more of the regulations issued by the Environmental Protection Agency (EPA), Coglianese shows that only about a quarter of all EPA rules ever face a legal challenge and most of these challenges are settled out of court. In contrast, groups have challenged half of the EPA rules developed through negotiated rulemaking. He concludes that the quest for consensus has produced less closure than has the more practiced style of rulemaking on which agencies ordinarily rely.

Coglianese also shows that the EPA's reformulated gasoline regulation, widely hailed by scholars and journalists as a model of negotiated rulemaking, actually resulted in four separate lawsuits, a bitter trade dispute, and subsequent administrative wrangling. In terms of avoiding litigation and eliminating conflict, the reformulated gasoline rule turned out to be anything but successful.

Although his findings stand in stark contrast to a growing enthusiasm for policymaking based on consensus, Coglianese argues that negotiated rulemaking's failure should not be as surprising as it initially seems.

Coglianese finds that "formal negotiation can actually foster conflict. It adds three new sources of conflict stemming from decisions about membership on negotiated rulemaking committees; the consistency of final rules with negotiated agreements; and the potential for an overall heightened sensitivity to adverse aspects of rules."

Coglianese's study appeared in the Duke Law Journal's April 1997 administrative law symposium, published in March 1998.

Coglianese, who is also an affiliated scholar at the Law School, conducts research on regulatory law and politics, with a particular emphasis on environmental matters. His research brings empirical analysis to bear on long-standing administrative law concerns about how legal procedures, including procedures for judicial review, regulatory analysis, and negotiation with stakeholders, affect the activities of government agencies.

Coglianese is a member of the American Bar Association and the Environmental Law Institute. He has received the American Political Science Association's Edward S. Corwin Award for his research on environmental litigation.

To get a complete copy of the study, visit the Politics Research Group Website at www.ksg.harvard.edu/prg/.