The promise and limits of negotiated rulemaking: evaluating the negotiation of a regional air quality rule.

I.   INTRODUCTION
II.  THE REGULATORY BACKGROUND OF THE NEGOTIATION
     A. Emissions from Electroplating and Anodizing
     B. Regulation of Toxic Air Emissions
        1. California Regulation
        2. South Coast District Regulation
        3. Federal Regulation
        4. The Calculus of Further Regulation
III. THE PARTIES TO THE RULEMAKING: A CHARACTERIZATION
     A. The Metal Plating Industry
     B. The Regulating Agency.
     C. The Environmental Groups
IV.  REGULATORY NEGOTIATION: A BRIEF SUMMARY
V.   THE PATH OF THE NEGOTIATION
     A. The Initial Perspectives
        1. The Industry's Perspective
        2. The Environmentalists' Perspective
        3. The Staffs Perspective
        4. The Facilitator's Perspective
     B. The Final Outcome of the Negotiations
     C. The Path to Consensus
        1. The Factors Promoting Compromise
        2. The Features of the Compromise
           a. Interests and Framework
           b. The Core Agreement
           c. The Search for Pollution Prevention
           d. The Closure Method.
        3. The Outcome In Perspective: Goal Attainment.
VI.  EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS
     A. The Role of Information: Gathering and Exchange
        1. The Debate on the Availability of Information
        2. The Effective Exchange of Information
        3. Affording Technical Assistance to Parties
     B. Expanding the Universe of Outcomes
        1. Shaping Options That Respond to Interests
        2. Benefit Creation
        3. The Limits of Benefit Distribution
        4. Paradigm-Shifting Solutions
     C. The Effect of Public Agency Institutional Arrangements
        1. The Decisiveness of Commitments
        2. The Structure of Agency Decisionmaking
     D. The Scale of the Negotiation: Time and Resources
        1. Time as a False Indicator.
        2. Resource Constraints
     E. The Role of Civility and Trust
        1. The Benefits of a Cooperative Environment
        2. Outcomes from Cooperation: An Example

     F. The Threat of the Unilateral Alternative
     G. The Tractability of the Dispute
VII. CONCLUSION

I. INTRODUCTION

For almost 25 years the possibility of utilizing negotiation as a means of breaking deadlocks over administrative rulemaking has attracted the attention of academic commentators. (1) Even after all this time, however, the prospects for negotiated rulemaking remain very much subject to debate. (2) Proponents see negotiated rulemaking as providing a variety of benefits, including a non-adversarial, creative approach to environmental problem solving. They view negotiation as facilitating improved outcomes that are less likely to result in litigation. (3) Some envision negotiated rulemaking as part of a much larger trend toward either a "contractarian" (4) or "pragmatic" approach to administrative lawmaking. (5)

In contrast, opponents of negotiated rulemaking primarily raise concerns relating to the integrity of the administrative process. The overarching criticism is that bargained agreements between government and private interests will be treated as elements of public law rather than as private contracts. (6) Some also claim negotiated rulemaking fails to meet the two prominent efficiency goals promoted for it: preventing litigation and saving time in the regulatory process. (7)

Traditionally, the literature on negotiated rulemaking has largely centered on case-by-case evaluations. Many are "first-person" accounts by participants, often in the context of rulemakings undertaken by federal agencies. The participants analyze and describe their reactions to the process, and many of these evaluations have been favorable to negotiated rulemaking. (8) Others, however, criticize these studies as too narrow and as not providing a systematic comparison of negotiated rules with non-negotiated rules. (9) Critics also label some of the favorable case studies as focused only on the successful negotiations and note that they typically are not written by independent observers. (10)

At least partially in response to this body of criticism, academics have begun to employ empirical research as a tool for reaching more general conclusions about whether negotiated rulemaking achieves the benefits it advertises. (11) These empirical studies have tried to compare outcomes by relying on interviews and questionaires filled out by participants in those regulatory negotiations. (12) However, as was the case with the previous debates over negotiated rulemaking, the literature is in sharp conflict. (13) Two recent empirical studies found broad benefits in negotiated rulemaking, (14) while another concluded that the suggested benefits of negotiated rulemaking are overstated. (15)

The recent trend toward empirical research is a natural and welcome evolution in the study of negotiated rulemaking. Sufficient experience with regulatory negotiation now exists to begin drawing tentative conclusions about its overall efficacy. Nonetheless, case-specific studies of regulatory negotiations still can serve important purposes. By focusing on a specific negotiation, such studies shed light on whether and how the interaction among the parties to a negotiated rulemaking is different from the interaction in a normal notice and comment rulemaking. Case-specific studies also can illumine whether the negotiation format fosters the exercise of creativity beyond that found in the usual administrative process. Moreover, broad based empirical comparisons of negotiated rulemakings face significant barriers. For example, the data base--the actual number of negotiated rulemakings--is not large, despite the lengthy period of time negotiated rulemaking has been in use.

This article is an in-depth evaluation of a negotiated rulemaking that culminated in the adoption of a rule limiting emissions of chromic acid from metal plating facilities. The rulemaking was carried out by a large regional air pollution control agency in Southern California, the South Coast Air Quality Management District. (16) The negotiators agreed upon the most stringent measure regulating toxic emissions from metal plating in the United States. (17)

Unlike many of the other case-specific studies authored by actual participants in the negotiation, this article views the negotiation process from a more neutral perspective. The air quality agency engaged the author to act as an impartial observer of the negotiation and to attend all meetings. At the conclusion of the negotiation, the author would recommend to the agency whether future use of negotiated rulemaking was warranted. (18) The access allowed for a close look at the various parties' motivations and strategies during the negotiation. (19) It also brought a clear understanding of how the negotiation process affected the evolution of the proposed rule.

The methodological framework for this article is to evaluate the negotiation against seven factors commonly cited in the literature as related to the benefits or demerits of regulatory negotiation. These seven factors are: 1) the role of information, 2) the expansion of the universe of outcomes, 3) the effect of public agency institutional arrangements, 4) the scale of the negotiation, 5) the role of civility and trust, 6) the threat of a unilateral alternative, and 7) the tractability of the dispute. For example, proponents cite creativity in expanding the possible set of traditional litigation outcomes as a benefit of negotiated rulemaking. After evaluating the negotiated rulemaking in question, this article concludes that it exhibited a significant level of creativity. Solutions found during the negotiation process would likely not have occurred within the procedural limitations of the normal rulemaking process.

The article also serves an additional, quite separate purpose. To date, the academic literature has centered almost entirely on the use of regulatory negotiation by federal administrative agencies. The literature has given little attention to whether the dynamics, benefits, and drawbacks of this process remain unchanged if it is used at the state or even lower level of government. (20)

The article concludes that the location of this rulemaking, at the regional level of government, brought to light limitations in regulatory negotiation that are not present at the federal level. For example, the rulemaking occurred within a much broader regulatory context in which the Environmental Protection Agency (EPA) and the State of California were actively considering changes to the regulation of chromium emissions. This regulatory background includes a legal structure in part intended to limit the discretion of state and local air pollution agencies, suggesting that in some cases, regulatory negotiation as a tool does not offer the same promise at the state and regional level that it does at the federal level.

Parts II and III of this article set forth the regulatory background and introduce the parties to the negotiation. These parts include both the legal framework for the negotiation and the previous regulatory actions by the regional air quality agency, the State of California, and EPA. After a brief summary of the regulatory negotiation process itself in Part IV, Part V of the article examines the ebb and flow of the metal plating negotiation, emphasizing the factors that promoted consensus and the features of the negotiation's core compromise. Part VI evaluates the metal plating negotiations against seven tenets of negotiation prevalent throughout the academic literature. It concludes that the negotiation largely conformed to the expectations of those who promote the benefits of negotiated rulemaking. This evaluation also identifies several features of the negotiation that differed markedly from traditional environmental notice and comment rulemaking.

II. THE REGULATORY BACKGROUND OF THE NEGOTIATION

A. Emissions from Electroplating and Anodizing

Chromium electroplating fixes chrome on products such as automobile parts. (21) Plating is an electrolytic process in which a part is submerged in a bath containing chromium anhydride (commonly called chromic acid). (22) Large amounts of hydrogen gas, and smaller amounts of oxygen gas, are freed during chromium electroplating due to the relatively low efficiency of the process. (23) The hydrogen gas forms small bubbles which entrain chromic acid to form chromic acid mist at the surface of the plating bath. (24) A similar outcome occurs as oxygen bubbles break the surface of the plating bath. The result is emissions of chromic acid, a toxic pollutant. (25)

Some chrome and plating processes use trivalent chromium rather than hexavalent chromium. Because trivalent chromium is less toxic than hexavalent chromium, this process might be viewed as a "pollution prevention" alternative. However, during the rulemaking, the industry contended, without much dispute, that trivalent chromium is not a substitute for hard chrome plating in many applications due to plating thickness limitations. (26) As a result, the use of trivalent chromium did not play a large role in the rulemaking. (27)

A second plating process resulting in chromic acid emissions is chromic acid anodizing. This process involves electrolytic oxidation of a surface to make that surface resistant to wear and corrosion. However, the process does not deposit a metallic chromium layer on the product; instead, the metal surface of the part is converted to a durable aluminum oxide. The surface becomes hard and abrasion resistant. (28)

Companies use two principal methods to control emissions of chromic acid mist. One control strategy, by far the cheaper of the two, involves a chemical fume suppressant that is added to the plating bath. (29) The suppressant lowers surface tension on the bath, and chromic acid emissions are thus reduced. (30) Another method involves an add-on control device known as a "high-efficiency particulate air" filter, commonly referred to as a "HEPA" filter. (31) HEPA filters can trap toxic particles at an efficiency of 99.97%. (32)

The methods to control chromic acid mist emissions are not mutually exclusive. For example, a company could use a HEPA filter in conjunction with a fume suppressant, or a fume suppressant in conjunction with other types of add-on controls. At the time of the negotiated rulemaking studied in this article, the distribution of pollution control technologies on hard chrome plating tanks used in the industry varied substantially. More specifically, 1% of the tanks used fume suppressants, 24% used add-controls and fume suppressants, 29% used HEPA filters and fume suppressants, 14% used other types of add-on controls, 23% used HEPA filters, and 9% had totally enclosed tanks. (33)

B. Regulation of Toxic Air Emissions

The parties to the present negotiated rulemaking were not breaking entirely new ground. On the contrary, a considerable history of regulatory activity concerning chrome emissions affected the parties' attitudes toward the negotiation. Specifically, regulatory measures previously initiated by the California Air Resources Board (CARB), the South Coast Air Quality Management District (the District), and EPA influenced the negotiations.

1. California Regulation

In 1986, acting pursuant to California laws, (34) CARB identified hexavalent chromium, which is considered to be among the most toxic carcinogens, (35) as a toxic air contaminant. (36) Two years later, CARB adopted an "Airborne Toxics Control Measure" (ATCM) to reduce hexavalent chromium emissions from chrome plating. (37) This measure reduced overall emissions from decorative chrome plating facilities by requiring them to use, among other things, chemical fume suppressants in plating tanks. (38) According to CARB, this regulation reduced chromium emissions by 97%. (39)

In 2002, CARB initiated a review to determine whether it should strengthen the ATCM. (40) CARB undertook a joint testing program with the District and with the Bay Area Air Quality Management District in northern California to obtain more information about chromium emissions from plating facilities. (41) Thus, at the time the negotiated rulemaking began, both the District and the State of California, through CARB, were considering additional, and likely more stringent, regulation of these plating facilities. Finally, in 2002, CARB issued a study of the effectiveness of its existing chrome plating rule. (42) Data collected during inspections of 188 chrome plating facilities suggested that about 73% of the facilities violated at least one section of the ATCM. (43)

2. South Coast District Regulation

In 1988, the District--Southern California's air quality regulatory agency --adopted Rule 1169 to address the emissions of hexavalent chromium from plating and chromic acid operations. (44) The District rule met the standards set by California law, which required individual districts to implement CARB's state ATCM regulations. (45) Rule 1169 established chromium emission limits on plating facilities, with the limits measured in milligrams per ampere-hour, and becoming more stringent as the facility usage increased. (46) The rule required larger facilities performing decorative chrome plating to reduce their emissions by using either a "chemical fume suppressant" (47) to prevent evaporation of plating fluid, or "control equipment" to collect chrome emissions. (48) The District standards were the most stringent in the nation.

A related control measure, Rule 1402, regulates existing sources of toxic air contaminants. (49) This rule requires facilities to prepare detailed inventories of emissions, and possibly to prepare a risk assessment and implement a risk reduction plan. Rule 1402 establishes cancer risk standards for "significant risk" and "action risk" at 100 parts per million and 25 parts per million of toxic contaminants, respectively. (50) The requirements of Rule 1402, however, only apply to specific metal finishing facilities if the District has not adopted a source-specific rule for that industry. (51)

Finally, in 1980, the District adopted a separate Air Toxics Control Plan (ATCP). (52) The ATCP directed the District staff to further evaluate source-specific rules for eight industries, including the metal plating industry. (53) Notably, the federal Clean Air Act (54) did not require adoption of the ATCP and implementation was not subject to any statutory deadline or timetable.

3. Federal Regulation

EPA entered the field of chrome emissions regulation long after CARB and the District. In 1995, EPA adopted a national emission standard (formally known as a "National Emission Standard for a Hazardous Air Pollutant," or NESHAP) for chromium emissions from chrome plating and anodizing. (55) Authorized by the Clean Air Act, (56) the NESHAP established emissions limitations for hard chrome plating facilities. (57) It also imposed monitoring, recordkeeping, and reporting requirements. (58) Four years later, EPA granted California the authority to enforce its ATCM for chrome plating in place of the federal NESHAP for chrome. (59)

On June 5, 2002, EPA published a notice that it intended to relax the NESHAP for chromium emissions due to hard and decorative chrome electroplating. (60) The District objected to the modification because its intended consequences were not supported by sufficient evidentiary findings and because the modification would restrict hard chrome plating operations to the use of fume suppressants as the only means of control. (61) By doing so, the District signaled its intent to press for more stringent regulation of chromium emissions.

4. The Calculus of Further Regulation

The District had to be mindful of several regulatory restrictions when it chose regulation of chromium emissions as the subject for a negotiated rulemaking, particularly those concerning the District's obligations under the federal Clean Air Act. The Clean Air Act requires states to adopt and implement "state implementation plans," (62) or SIPs, which require the states to meet federally established air quality standards. (63) In examining pollutant regulations possibly suitable for regulatory negotiations, the District did not wish to regulate in an area mandated by the California SIP. The District reasoned that because of the constraints posed by the SIP, the parties might be unable to pursue regulatory options that would otherwise be worth investigating. Specifically, because the SIP set forth a timetable for adopting control measures, and roughly specified what the measure must look like, the District felt that the breadth of the negotiation process could be constrained. (64)

Finally, the District had some leveraging power to accomplish its primary goal of chromium regulation, stemming from its willingness to compromise on nickel regulation. The District originally intended that, in addition to proposed limits on chrome emissions, the negotiations would also cover proposed limits on nickel from nickel plating operations. (65) However, although it continued to publicly push for the regulation of nickel, the District reasoned that because nickel lacked extensive regulatory history, attempts to regulate nickel would complicate the negotiations. The District thus used its flexibility in negotiating limits on nickel emissions as part of the bargaining with the metal plating industry over setting chromium emission limits.

III. THE PARTIES TO THE RULEMAKING: A CHARACTERIZATION

A. The Metal Plating Industry

The metal plating process involves coating surfaces with metals such as chromium, nickel, and zinc. There are two prevalent methods of chromium plating. The first method, decorative chrome plating, deposits a thin layer of chromium (measured in millionths of an inch) on a product to give it a decorative and protective finish. (66) For example, a large aftermarket exists for chrome-plated automobile tire rims. The second method, hard chrome plating, involves depositing a "thick" layer of chromium (measured in thousandths of an inch) to imbue the part with corrosion protection, wear resistance, lubricity, and oil retention. (67)

The four largest segments of industry served by metal plating facilities are the automotive industry, the computer/electronics industry, the machinery/industrial equipment industry, and the defense/government sector. (68) At the time of the present negotiation, approximately 130 facilities in the South Coast Air Basin were engaged in chromium electroplating and chromic acid anodizing. (69) Most members of the metal plating industry are relatively small businesses. The average "job shop," a term that refers to a company that serves a variety of industries, has forty-eight employees. The other type of plating shop, the "captive shop," is part of a larger company that manufactures a specific product or product line. This type of shop averages forty-six employees. (70)

B. The Regulating Agency

Under California law, the South Coast Air Quality Management District bears the responsibility for regulating stationary pollution sources in the South Coast Air Basin, which consists of most of four counties in Southern California. (71) Because the air pollution problem in this basin is severe, the District has adopted groundbreaking regulatory measures, and has long been viewed as one of the most technically advanced air pollution agencies in the country. For example, the District has implemented technology-forcing regulations that are more stringent than standards adopted by EPA or the State of California. (72)

The District traditionally has used quasi-legislative, notice and comment rulemaking to adopt its rules. (73) The notice and comment process is largely staff-centered. During the rulemaking process, the District staff conducts workshops and holds meetings with members of the affected industry and citizens groups. (74) Subsequently, a proposed rule is released to the public for comment (75) with supporting documents such as environmental and socioeconomic analyses. (76) After receiving public comment, the agency staff prepares written responses to those comments. (77) Ultimately, the District's Governing Board holds a public hearing, at which time members of the public are given a short time, usually three minutes per individual, to comment. (78) After the close of the public hearing, the Board typically votes on the rule at the same meeting. (79)

Political considerations may affect the Board's actions to some degree. For example, during the 1980s and early 1990s, a severe economic recession hit Southern California, and critics buffeted the District, claiming that its regulatory actions were antagonistic to business. (80) This caused the agency to look carefully at alternative regulatory mechanisms that met regulatory objectives, but that were more acceptable to industry. At the same time, the agency faced the extraordinarily difficult task of attaining the Clean Air Act's National Ambient Air Quality Standards (NAAQS) in the South Coast Air Basin, the most heavily polluted area in the United States. (81) This requirement forced the agency to think outside the box for new regulatory solutions. One result was an initiative, sponsored by the chair of the District's Governing Board, to experiment with negotiated rulemaking. (82) This initiative led to the present negotiated rulemaking.

C The Environmental Groups

The District invited a number of environmental groups to participate in the negotiation, including several nationally prominent groups active in past District proceedings. In what is now a standard practice among environmental groups invited to participate in negotiated rulemakings, the groups consulted and determined which of them, if any, had the necessary resources to commit to the effort. Communities for a Better Environment (CBE) took the lead. (83) CBE is particularly active in representing low-income communities and communities of color. Additionally, CBE had a longstanding interest in emissions from metal plating facilities, although it possessed little in-house technical expertise.

Later during the negotiations, CBE brought in a second environmental group, the Environmental Health Coalition (EHC). (84) This group, much like CBE, had been active in certain well-known disputes, which in EHC's case involved metal plating in the San Diego area. Because of its activities in these disputes, EHC had slightly more technical expertise than CBE. In particular, one EHC staff person who had overseen the group's response to the disputes was quite knowledgeable in this field.

Environmentalists approach the decision to participate in a negotiation carefully. From past experience they are well aware that negotiations are resource-intensive. (85) and thus are especially stressful on non-profit organizations with limited resources. CBE conducted a careful internal review and debate but, in the end, decided it would participate. (86)

IV. REGULATORY NEGOTIATION: A BRIEF SUMMARY

Some background on regulatory negotiation will set the stage before discussion of the actual negotiation. The academic literature exhausts the subject of regulatory negotiation. (87) Accordingly, the process will be described only briefly here. (88)

A negotiated rulemaking begins when a "convener," often someone employed by a public agency, canvasses interested parties to determine their willingness to participate in a negotiation as an alternative to the agency simply proposing a rule. (89) If a sufficient number of parties indicate a willingness to participate, then the agency formally convenes the negotiating process. (90) At the federal level, the Negotiated Rulemaking Act of 1990, (91) as reauthorized in 1996, (92) governs the negotiation process. Under this law, if the negotiation ultimately succeeds, it culminates in a proposed rule, which the agency then formally proposes for adoption under the Administrative Procedure Act. (93)

An impartial facilitator, normally compensated by the agency but not a full-time employee of it, presides over the negotiation. (94) The facilitator may have some expertise in the subject of the negotiation, but more often does not. Instead, the facilitator brings the parties together, establishes ground rules governing the negotiations, and then guides the negotiations. (95) Ground rules may, for example, particularly emphasize civility among the negotiating parties by requiring each party to commit to listening to the other parties and to adhere to various other rules designed to prevent adversarial behavior.

The agency acts as a participant in the negotiations along with the other interested parties. (96) During the process, the facilitator may appoint various subcommittees to examine specific aspects of the rule. (97) Ultimately, the parties either agree to a proposal or acknowledge that agreement is impossible. A successful negotiation normally culminates in a written document which the parties agree to support, or at least not to oppose. (98)

Thereafter, the formal rulemaking process begins. Under standard administrative law, the agency must take comments from the public on the rule; it cannot commit to adoption of the negotiated rule before the public process concludes. (99) All parties to the negotiation, however, understand that the agency is highly committed to the outcome of the negotiation. Thus, as a practical matter, any substantial change in the negotiated rule during the actual rulemaking process is unlikely.

V. THE PATH OF THE NEGOTIATION

A. The Initial Perspectives

1. The Industry's Perspective

The industry's initial position showcased arguments typically made by business interests. First, the industry argued it was already stringently regulated, emphasizing that the District had previously adopted two sets of rules that applied to it. As one industry member asserted, the entire negotiation began from a "flawed premise" that more regulation was necessary. (100) The industry attempted to document this position, effectively emphasizing the demonstrated efficiency of the currently required control methods. Indeed, during the rulemaking the District issued a report recognizing the high efficiencies of fume suppressants as a control device. (101)

The industry also argued that further regulation would be too expensive. It stressed that the chrome plating industry was principally composed of small businesses lacking the economic resources of larger industries. Additional regulation posed the threat of more expensive pollution control hardware known as HEPA falters, and the industry contended that such a requirement would force many small companies out of business. The industry's economic concerns were quite real; for example, customers can ship parts to China for chroming (102) and then ship them back to the United States at a cost competitive with the costs charged by domestic platers. (103)

Finally, the industry argued that further regulation was unnecessary from a public health standpoint. It alleged that the use of fume suppressants had been found to reduce emissions by over 99 percent, and the risk presented by metal plating emissions contributes an insignificant portion of the overall cancer risk in the ambient air. The industry concluded that, rather than adopt more stringent regulation, the District should focus its efforts on identifying non-compliant facilities.

2. The Environmentalists' Perspective

The predictably contrary perspective held by the environmentalists focused on specific incidents of pollution by platers that had been highlighted in the press. The most important of these was an incident in the Barrio Logan area of San Diego, California involving a metal finishing facility. The incident received significant publicity, (104) and in response, public agencies launched enforcement actions that resulted in the facility's closure. (105) At the time of the negotiation, various agencies continued their extensive testing and monitoring of the area. (106)

Environmentalists also were concerned about previous events at two facilities in Bell Gardens, California. The facilities had been closed, one in 1991 and the other in 1999, after the State of California investigated to determine whether chromium pollution from the facilities had contaminated drinking water. (107) CBE had been heavily involved in one of the earlier incidents and viewed the incident as emblematic of the lack of environmental justice in the regulation of toxic emissions. CBE would continually raise this theme throughout the regulatory negotiations. (108)

Overall, the environmental groups participating in the rulemaking believed these incidents were not isolated. (109) Influenced by the poor performance of some operators, the environmentalists had little faith in fume suppressants as a control device, because the suppressants rely heavily on operator implementation. (110) For that reason, environmentalists took the position that requiring new, more effective "add-on" controls, which were not as dependent on operator implementation, was the only meaningful way to protect public health. (111) In contrast, the plating industry viewed the incidents as isolated and idiosyncratic and argued that they were unlikely to recur. Industry also pleaded that it was unfair to allow the actions of a few "bad actors" to shape regulation for an entire industry.

3. The Staff's Perspective

The viewpoint of the District's staff differed somewhat from the views normally associated with environmental regulatory agencies. As noted above, no California statute or federal law required the District to adopt more stringent controls on chrome plating facilities. (112) Instead, two concerns motivated the staff: evidence amassed about public health risks and environmental justice initiatives.

First, in its ATCP (113) the District had committed to investigate additional controls on the metal finishing industry. (114) This commitment arose out of a comprehensive study by the District of toxic risks in the South Coast Air Basin, (115) which showed high residual risks--particularly risks of human cancer--from this industry. (116) As a result, the District staff members were convinced that protection of the public health required new regulatory steps.

Second, the District's commitment to its so-called "Environmental Justice Initiative" further motivated it to act. (117) Under this previously adopted policy initiative, the District recognized that the distribution of emissions from air polluters fell disproportionately on low-income communities and communities of color. The District Governing Board had committed to take steps that would address this issue. (118)

4. The Facilitator's Perspective

The facilitator chosen by the District to head the negotiations was a member of the California Center for Public Dispute Resolution. (119) He had extensive mediation experience in a variety of environmental matters, and he had no previous affiliation with the District. (120) However, the facilitator had limited experience with air pollution, although he had worked with chrome plating in the context of a negotiation involving a brownfields redevelopment, and his academic background was in environmental science. Thus, he brought neutrality, but relatively little technical expertise, to the bargaining table.

B. The Final Outcome of the Negotiations

Before the negotiated rulemaking process is addressed, the final rule produced by the negotiations deserves a brief introduction. By understanding both the parties' initial positions, outlined above, and the principal features of the rule ultimately negotiated, readers are better positioned to focus on the negotiating dynamics that led to the final rule.

The core of the negotiated rule, which amended existing District Rule 1469, is a two-tier level of regulation for hard chrome plating, decorative chrome plating, and chromic acid anodizing. Both control levels are more stringent than the prior limits. (121) The initial level of regulation assumes that facilities will use certified fume suppressants as control technology. The suppressants, however, must meet very high control efficiencies. (122) The second, more stringent level of control is triggered when a facility reaches a facility-wide (i.e., cumulative) ampere-hour threshold. (123) Facilities can achieve this more stringent level of control only by employing add-on control equipment. (124)

Another important feature of the negotiated rule is a set of more stringent requirements that apply only to certain "sensitive" facilities. Sensitive facilities are those located either 25 meters or less from a sensitive receptor or residence, or 100 meters or less from an existing K-12 school. (125) Finally, the male contains numerous other requirements. These include mandated housekeeping procedures, optional emission limits for small facilities, and required operator training. (126)

According to the District's estimate, the amended rule that resulted from the negotiations will result in a greater than 90% reduction of chrome emissions from plating in the region. (127) The rule sets the nation's strictest requirements for electroplating and anodizing facilities that emit chromium. (128) Yet, perhaps surprisingly, all parties agreed to the rule, and were therefore apparently satisfied with it.

C. The Path to Consensus

1. The Factors Promoting Compromise

As outlined above, the initial differences between the environmentalists and the industry were deep-seated and policy-based. (129) The environmentalists strongly advocated a precautionary approach to chrome emissions, particularly because many small plating facilities were located in or near low-income, residential areas. They were particularly concerned about the possibility that sensitive receptors, such as hospitals and schools, might be affected by chrome emissions.

In contrast, the plating industry rejected the need for further precaution. The industry believed the current level of control from fume suppressants was unquestionably sufficient and saw no justification for further regulation under these circumstances. Furthermore, the plating industry felt that the modeled emissions offered by the environmentalists bore little relation to reality.

At the beginning of the negotiations, these positions clashed in such a fundamental way that reaching a consensus appeared very unlikely. It took some time for the parties, and the industry in particular, to feel that a true negotiation was occurring. (130) However, a number of forces were at work that suggested the existence of underlying flexibilities in the parties' positions not immediately apparent from the parties' public statements.

While the industry publicly opposed further regulation, (131) many of its representatives privately concluded that some form of further regulation was inevitable. (132) Although the District's ATCP supported this conclusion, the industry's reasoning was primarily political. Given the large amount of publicity over the Barrio Logan incident in San Diego, the industry concluded that the large public outcry almost certainly must result in some further regulatory response by the District. (133) This conclusion motivated the industry to participate in the negotiation in an attempt to influence the District's response. (134) Furthermore, the industry viewed the District's decision to conduct negotiations on a "parallel" track with its rulemaking process as a validation of its conclusion regarding the likelihood of more stringent regulation. (135) Unless the industry negotiated, it feared the outcome of that rulemaking would be quite unfavorable to its interests.

A second factor motivating the industry was the possibility of statewide regulation by CARB. The industry concluded that CARB, like the District, was also likely to adopt some additional form of regulation. Faced with this probability, the industry thought that any further regulation adopted by the District would greatly influence the form of any CARB regulation. Thus, from the industry's perspective, it would most effectively spend its resources by trying to shape the District's action at the regional level. (136) The industry thought that, in the best case, its participation in the negotiation might result in regulatory uniformity when CARB (and perhaps EPA) later tightened regulation of chrome plating emissions. (137)

Finally, as noted above, (138) under the existing District regulatory structure, some metal plating sources would be subject to individual risk assessments, and, based on the outcome of those assessments, further regulation. The risk assessment process was complex and expensive, and the outcome unclear. Industry might well have preferred the certainty provided by a new District regulation, which could avoid the need for numerous risk assessments.

The environmentalists also recognized weaknesses in their initial position, although their political calculations were not as complex as the industry's. While the environmentalists' chief goal was to secure a regulation requiring new add-on technology, this new technology would clearly have significant economic impacts on the industry and would force some sources to close. The environmentalists knew that the District Governing Board, and hence its staff, was sensitive to claims that a District rule would either put companies out of business or force them to relocate out of the South Coast Air Basin. Thus, the environmentalists faced the possibility that the District would be unwilling to require the add-on technology if it was too expensive.

As to the District's staff, institutional concerns drove its position. The District's Air Toxics Plan committed the District to examine further regulation of chrome emissions, but the plan left room for significant flexibility regarding what actual steps the District should take. At the same time, while the staff had some information about the operation of chrome plating facilities, the District was not as familiar with this industry as it was with other industries. Thus, information acquired by the agency during a negotiation could prove very useful. The agency could be expected to change position in response to that information rather than to remain "locked in" to an initial, rigid position.

In summary, the principal difficulty involved in reaching a consensus solution lay in the qualitative differences among the parties' positions. The industry's concerns were largely economic in nature. In contrast, the environmentalists' concerns were based on moral and environmental justice grounds, while the District staff's concerns were more pragmatic. Most importantly, however, all parties had reason to compromise.

2. The Features of the Compromise

a. Interests and Framework

The negotiations, which covered the period from April 2002 to April 2003, involved twelve meetings of the negotiators' Working Group and six meetings of the Issues Resolution Subcommittee formed by the facilitator. (139) The pattern of the negotiations closely hewed to the textbook model of a regulatory negotiation. The generally accepted theory of regulatory negotiation holds that the facilitator or mediator should seek to clarify the parties' principal "interests," (140) and then focus on ways of satisfying those interests. (141) In the plating negotiations, the facilitator began to focus his efforts on clarifying issues after several meetings in which the parties essentially jockeyed for position and restated their initial, static viewpoints. (142) After caucusing with the environmentalists, the industry, and the District staff, the facilitator prepared a list of the parties' interests. At the same time, he stated his intent to use objective criteria as the basis for decisions and to look for "win-win" solutions when possible. (143)

The list of interests compiled by the facilitator did not by itself produce a breakthrough. The parties' interests looked somewhat stereotypical, and the parties were still reiterating set positions. For example, the first industry interest was in seeking a "[d]emonstration that additional controls are warranted based on documented environmental or public health problems as the basis for justifying the cost of additional controls." (144) An industry leader remarked that, at this point, he "didn't feel it had yet become a negotiation" and that the industry comments were "always well-acknowledged, but not incorporated" (145) The staff member principally negotiating for the District responded by declaring that "we have the perception that we haven't identified what is key" from the industry. (146)

Nonetheless, the list of interests served the important purpose of signaling that the negotiations had entered a new, more substantive stage. At the same time, the parties agreed to a procedural deadline, requiring the parties to submit requests for information from other parties by November 1, 2002. (147) This deadline was another signal, like the list of interests, that the decision making stage of the negotiations was beginning.

The facilitator took a second step that proved to be the building block for ultimate resolution of the negotiations. (148) Based upon the parties' expressions of interest, the facilitator drafted a "framework" for identifying ways in which the parties could reach consensus. (149) Most importantly, the framework suggested what would ultimately become the fundamental tradeoff in the negotiations: industry would accept more stringent controls on facilities located within 25 meters of sensitive receptors in return for special regulatory treatment given to smaller sources for which the controls would be more difficult to afford. (150) The facilitator termed this the "key point" in the negotiations. (151)

The facilitator then used another technique commonly employed to resolve issues in negotiated rulemakings. He appointed an "Issues Resolution Subcommittee" consisting of the principal participants from each stakeholder group. This subcommittee met six times over a three month period and was able to resolve core issues.

The facilitator also formed two other subcommittees: 1) a Technical Subcommittee designed to allow technical personnel from the interest groups and Staff to exchange data, and 2) a Pollution Prevention Subcommittee. The work of the Technical Subcommittee is discussed below. (152) The facilitator created the Pollution Prevention Subcommittee to explore whether industry could change to using alternative metals that did not have the toxic characteristics of the current plating metals. The literature on negotiated rulemaking suggests offering "win-win" alternatives, such as pollution prevention alternatives of this type, to achieve success in negotiations. (153)

b. The Core Agreement

The facilitator bridged the gap between the industry's insistence that fume suppressants were sufficient control mechanisms and the environmentalists' belief that only add-on HEPA filters would suffice. The core of the agreement reflected the principle that distance from emitting facilities to receptors and risk levels would govern the type and extent of add-on controls required. (154)

Facilities located within 25 meters of residences and sensitive receptors generally would be subject to very stringent regulation. The core concept was that facilities falling into this category would have to control a risk level of a ten in one million. (155) This level of regulation probably would require use of a HEPA filter by large facilities, (156) although very small metal plating operations might avoid that requirement by achieving a risk level of ten in one million through the use of certified fume suppressants. (157) These small facilities, however, would be subject to a so-called "three strikes" provision. While two emissions violations could occur without a major change in regulatory controls, a third violation would require addition of a HEPA filter. (158) The rule also defined what would constitute a violation. (159) Additionally, facilities outside of twenty-five meters from residences and sensitive receptors generally would be subject to a higher standard allowable risk of twenty-five in one million. (160)

The agreement reflected another important compromise. During the negotiations environmentalists suggested some additional protection was needed for schools located within 100 meters of a plating facility. The industry, however, was concerned that a relatively minor violation by a small plating facility would result in the facility exceeding the rule's limitations and thus count as a "strike." Under the compromise, small facilities within twenty-five meters of residences and sensitive receptors were allowed to exceed their annual allotment of amp-hours by 10%. An exceedance up to that 10% level would be a strike; however, an exceedance over that level would require the facility to install "add-on" controls. (161)

One reason the industry accepted this agreement was the completion of an in-depth "characterization" (i.e., identification) of the industry plating sources during the negotiation. The characterization revealed that only two plating sources in the District were located within 100 meters of a school. Furthermore, neither of those two sources would require additional controls to meet the risk standard of ten in one million. (162)

c. The Search for Pollution Prevention

The negotiators did not agree to a pollution-prevention alternative for two reasons. First, while less-toxic and non-toxic alternatives to chrome do exist, in the industry's view they do not perform sufficiently in many applications due to "thickness limitations." Second, metal finishers receive many of their orders from large customers, and these orders often require the use of certain specific types of chrome. Presumably, these two objections alone would not prevent further investigation into the development of non-toxic alternatives, but they did preclude any short-term changes that the rulemaking might address.

d. The Closure Method

Finally, the facilitator chose a procedural method of closing the negotiations. He did not ask that the parties affirmatively endorse the agreement they had reached. Instead, he asked the parties to affirm that they could "live with" the proposal. (163) If not, the facilitator suggested, the burden was on the objecting party to "propose an alternative that you genuinely believe the other parties can live with as well." (164) Thus, in the end, the parties were not asked to endorse the rule itself, but rather to signify their assent to the agreement reached.

This last technique for closure is well-known in regulatory negotiations. (165) The constituencies represented at the negotiation have a variety of concerns that extend beyond the individual rulemaking. Requiring all parties to affirmatively endorse a proposal may be too much to ask, as parties may fear that such an endorsement will compromise their positions on other matters they are pursuing. The solution is to have parties agree that they can "live with" the proposal. By doing so, the parties imply that they will not actively oppose the agreement through litigation or otherwise. In the case of the metal finishing negotiations, the parties signified that they could "live with" the agreement by signing a document to that effect. (166)

3. The Outcome in Perspective: Goal Attainment

The agreement provided significant benefits to all the principal participants. From the District's perspective, it achieved a rule that imposed greater control on emissions from chrome plating processes. Moreover, the rule satisfied the District's environmental justice concerns by differentiating protection of sensitive receptors from other receptors.

The industry achieved its primary goal of avoiding the widespread requirement for installation of the expensive HEPA filter technology. While some sources would have to use the technology, these sources were relatively few in number. As noted above, the negotiations were to cover two rules at the outset: chrome plating and nickel plating. (167) At a point not far into the negotiations, the District staff agreed it would not propose a regulation of nickel emissions at this time, but instead would adopt a rule to collect data on nickel emissions. (168) The concession was a major one for industry, because sources of nickel emissions had not previously been required to meet specific emissions limits. At least for now, the industry avoided a set of emissions limits on nickel plating.

Finally, the environmentalists achieved two significant goals. First, the rule contained specific requirements for "sensitive receptors" to be treated differently. This part of the agreement comported with the environmental justice concerns of the principal environmental group involved, Communities for a Better Environment. Second, while the rule did not immediately impose a requirement for HEPA filters on most plating sources as the environmentalists wished, it did mandate their installation if certain facilities could not meet the rule's requirements. From the environmentalists' perspective, this was an important first step toward requiring much wider use of the HEPA filter technology.

VI. EVALUATING THE NEGOTIATIONS: SEVEN INDICATORS

This section evaluates the "success" of the negotiations. It does so through the lens of seven specific features of the negotiation process: 1) the role of information, 2) expansion of the universe of outcomes, 3) the effect of public agency institutional arrangements, 4) the scale of the negotiation, 5) the role of civility and trust, 6) the threat of a unilateral alternative, and 7) the tractability of the dispute. These features, commonly cited in the literature on negotiated rulemaking, (169) are useful indicators for contrasting the negotiation process with the norm of notice and comment rulemaking.

A. The Role of Information: Gathering and Exchange

1. The Debate on the A vailability of Information

The traditional administrative law model envisions that agency experts will propose a regulation and then provide opportunity for public comment before final adoption of the rule. (170) While the "reformation" of administrative law called into question the model of administrative action based on agency expertise, (171) the fact remains that agencies exercising regulatory power do so on the basis of their presumed expertise. (172) That expertise, however, requires an information base, and a principal difficulty faced by environmental regulatory agencies is lack of information about the industries they regulate. (173)

The difficulty in acquiring information on specific industry operations has a couple of sources. First, and unsurprisingly, polluting facilities are often unwilling to help regulatory agencies adopt regulations that will be expensive for the facilities to meet. (174) In addition, they are often concerned about divulging proprietary information about processes that their competitors may use. (175) Without that information, however, regulatory agencies may have a difficult time evaluating the feasibility of various control options.

The issue is not simply a failure of public agency management to acquire expertise, (176) nor is it solely a question of the failure of agencies equipped with information-gathering ability to obtain the specific information needed. (177) The problem is more fundamental. As might be expected in a market economy, air pollution sources simply know far more about how their equipment operates and their businesses run than a government agency can ever hope to learn.

Less recognized is the inverse, equally important problem that industry is often frustrated in its attempts to get factual clarification from an agency about the information that underlies the agency's specific regulatory proposal. Of course, freedom of information legislation is in effect at both the federal and state levels. (178) However, these laws can be cumbersome to use, with resulting delays in response, and the documents produced may not provide the specific information sought.

Industry can, of course, file written comments on proposed rules, and agencies usually must respond in writing to these comments. (179) Additionally, the agency and interested parties participate in other, informal types of interaction. Some commentators have even suggested that these types of interactions in notice and comment rulemaking are functionally no different from the interactions in a negotiated rulemaking. (180) But agency responses to written comments tend to be legalistic and designed to comply with the legal duty to respond, rather than to convey meaningful information. (181) These informal interactions simply do not rise to the level of the "give and take" found in a negotiation.

In short, the nature and process of "negotiation" that takes place in a notice and comment rulemaking is qualitatively different from the negotiation in a negotiated rulemaking. (182) Suggestions to the contrary overlook fundamental differences in the underlying processes. (183)

Some commentators also have suggested that negotiation is an ineffective means of resolving factual matters. (184) Others go even further, arguing that an agency should not undertake a negotiation where technical support for the rule does not exist, (185) or alternatively that in negotiations, data becomes a "bargaining chip" rather than the foundation for deliberation. (186) Still other commentators disagree, asserting that negotiation provides the agency with a more complete understanding of the factual grounds for the regulation. (187)

In theory, the negotiation model allows for information gathering where necessary to fill in gaps in the design of regulation. Regulatory negotiation emphasizes cooperative learning, (188) and the pragmatism of the negotiation process (189) should lead to a meaningful exchange of information. By committing to negotiate in good faith, (190) the parties agree that they will make every effort to provide sought-after data. In this process the facilitator serves as an enforcement officer of sorts, refereeing disputes and reminding parties of their commitment. In contrast, notice and comment rulemaking contains no similar cooperative dynamic among the parties.

2. The Effective Exchange of Information

The metal plating negotiations support the conclusion that negotiation can produce a heightened level of information exchange. The efforts of the parties to meaningfully exchange information far exceeded the norm in a notice and comment rulemaking, (191) and the data exchange was substantial. (192) Furthermore, the flexibility provided by the negotiation format allowed the initiation of processes for compiling additional information that would not take place in notice and comment rulemaking. For example, the parties to the metal finishing negotiation sent a number of specific information requests to the District staff. The parties also exchanged informal requests for information about the underlying basis of their respective positions.

Most of the data requests were sent by the industry to the District staff, and the staff responded, although sometimes not as quickly as industry would have liked. (193) Indeed, the burden on the staff was significant. (194) The District staff manager who led the negotiating team stated that the District had "never done this level of policy analysis in a particular rule" (195) and estimated that the negotiation process took fifty percent longer to complete than the "normal" notice and comment rulemaking. (196)

Most importantly, the information compiled played a significant role in fashioning the final rule. One example of the effectiveness of the data exchange was the resolution of a dispute over emission factors used to estimate the risk from chromic acid emissions. To estimate that risk, emissions from plating tanks must first be calculated. This calculation requires multiplying an emission factor (milligrams per ampere-hour) by actual or estimated activity data for a tank (ampere-hours per year). The resulting figure is then converted to mass emissions in pounds per year. (197)

The emission factor used in this calculation is either based on actual test data, or is assumed where that data is not available. (198) One recurring industry complaint was that the District had used one set of emission factors during the calculation of the District rule in place prior to the negotiated rulemaking, but it used another set of emission factors for compliance purposes. (199) To resolve this complaint, the parties to the negotiation attempted to find common technical ground on the emission factor to be used. At the outset of the rule development process, the uncontrolled emission factor was assumed to be 5.2 mg/ampere-hour for hard chrome, and 2.6 mg/ampere-hour for decorative chrome and chromic acid anodizing. (200) Ultimately, the Technical Subcommittee agreed on an uncontrolled emission factor of 4.4 mg/ampere-hour for all hexavalent chrome plating and chromic acid anodizing. (201)

The information exchange went beyond "discovery" of existing data; it included affirmative efforts to compile new data. For example, an important technical question was the number of sources that would need to install HEPA filters under the proposal the negotiating parties were considering. The additional controls would depend upon the extent that fume-suppressant technology could achieve certain control levels. Here, the data revealed a surprising result: Only a small number of facilities would need the additional controls. (202) This fact proved critical to the negotiations. The avoidance of widespread imposition of the more expensive HEPA filter technology made it much easier for industry to accept the rule change.

Another example of the importance of technical information concerned the analysis of the metal plating industry's total chrome emissions into the environment. Originally, the estimate was a total of 150 pounds per year. However, as a result of more detailed technical analysis, that figure was reduced to seventy pounds per year. (203)

For its part, the industry was quite enthusiastic about the technical progress made during the negotiation process. (204 Even if the parties had been unable to agree on a final rule, the technical basis for regulating plating sources was much improved because of information compiled during the negotiations. Indeed, it may well be that the technical progress itself justified the efforts and costs that the parties put into the negotiated rulemaking. (205)

Because of the data exchange, by the end of the negotiation there was little dispute over the technical basis for the rule. In contrast, the normal rulemaking process often does not resolve technical disputes, as the process is not designed to facilitate the kinds of good faith exchanges that might lead to such a resolution. Instead, the rule adoption is likely to be preceded by the submission of lengthy comment letters designed to exhaust administrative remedies, and thus lay the groundwork for litigation, rather than to clarify and possibly to resolve issues.

A recent empirical study concluded that negotiated rule participants "are far more likely to say that they gained new technical information, better knowledge of the issue, and new information about the positions of other parties." (206) The metal finishing negotiations confirm this conclusion. Furthermore, at least in the case of the plating negotiations, the claim was not borne out that increased learning simply increases the number of issues upon which parties can disagree. (207) The new data served to clarify existing contentions issues, rather than to raise new disputes.

Thus, to the extent that one asks whether negotiated rulemaking "has demonstrated a capability for alleviating the adversarialism that plagues the pluralist interactions of interest groups," (208) the answer, at least in this instance, is positive. In this case, the information allowed the parties to understand the true costs that would be imposed on industry if the rule required enhanced regulation of plating facilities near sensitive receptors. In short, it was not a psychological benefit of negotiation that led the parties to accept the outcome (although those benefits did exist); it was the concrete data obtained through the process. To employ a term found in one article raising the issue of the legitimacy of negotiation, the technical data was a "legitimacy benefit" produced by the negotiation. (209)

3. Affording Technical Assistance to Parties

The negotiations raised complex technical issues, including the feasibility and expense of control measures, the validity of emission factors used to calculate emissions from plating operations, and the feasibility of alternative plating materials. Accordingly, technical expertise available--or not available--to the parties played an important role in the negotiations.

In examining these technical questions, a consultant was available to the plating industry. He had worked with the industry for many years, was fully familiar with the technical issues, and attended almost every meeting. The industry relied heavily on this technical expertise. The District also had internal expertise in the form of various staff members. The District assigned some staff to the rulemaking, and, as part of their duties, they researched the industry thoroughly. The District could also rely upon enforcement personnel who had visited the sites and had at least some personal knowledge of operations. In contrast, the environmental groups had little technical expertise available. This lack of expertise was compounded by the fact that the environmentalists' basic position--that add-on controls, particularly HEPA filters, were the only reliable control measures that could achieve sufficient emission reductions--was technical in nature.

In a notice and comment rulemaking, the "paper" nature of the proceeding can mask a party's lack of expertise. In the setting of a traditional rulemaking, face-to-face technical discussions and meetings among interested parties are very rare. However, in a regulatory negotiation, lack of expertise becomes a significant hindrance, changing the dynamic and, as a consequence, the outcome of the negotiation. In short, a party's lack of expertise can, from its perspective, jeopardize the chances for a successful outcome.

The lack of negotiation resources available to some parties, particularly public interest groups, has been a significant ground of criticism of negotiated rulemakings. Critics claim that the imbalance in expertise can affect the outcome and thus taint the legitimacy of the process. (210) At the least, lack of expertise can prevent full participation of all parties in all issues being negotiated. (211) In a negotiation centered on technical issues, knowledge is power, and access to expertise is therefore essential. (212)

In the metal plating negotiations, the environmentalists clearly recognized the problem caused by their lack of technical expertise. They complained about the lack of a "level playing field" as the technical issues took center stage. Ultimately, the environmentalists approached the District with a proposal that the District fund an expert for their use. (213)

This type of request poses a problem for the agency that is rooted in public regulatory theory. In a notice and comment rulemaking, agencies expect participants in agency processes to bear their own expenses. The assumption is that a party's interest in a given issue will cause the party to generate sufficient resources for effective participation. Furthermore, the agency's impartiality can be questioned if it seems to favor one particular interest group by taking steps to ensure that the group's position is fully articulated.

However, a negotiated rulemaking is quite different from a normal rulemaking proceeding. It emphasizes personal interaction, and thus allows confrontation of technical questions in a detailed way that a priori cannot occur in a notice and comment rulemaking. Furthermore, because the negotiation places demands on parties that normal rulemaking does not, some parties invited to participate by the agency may have difficulty marshalling the necessary resources. These parties can plausibly claim that, because regulatory negotiations place extraordinary demands on participants, the agency could fairly bear some of the costs involved.

Ultimately, the District chose to fund the expert at a modest amount, a decision that on balance seems correct for several reasons. First, pragmatically, without the funding the environmentalists might well have concluded that they could not effectively participate further in the rulemaking. Under the protocol for the negotiation, all participants retained the right to withdraw at any time. Funding the expert thus promoted an equality of participation in the process, and without that equality, the negotiation was probably doomed to failure.

Second, because this negotiation was premised on the exchange of information, the District had some expectation that the money spent on the consultant would result in information that would be available to all the parties. In that sense, the information generated by the consultant did not become proprietary, but instead benefited all interests in the negotiation. A different situation would result if the consultant were to be used only for private advisement of a single party.

Third, the consultant's efforts here brought a different viewpoint to the bargaining table. The consultant made a presentation to the Working Group in which he argued that the cost of fume suppressants, supposedly much lower than the installation of add-on controls, was actually more expensive than the add-ons when the analysis considered the costs that would be eliminated if HEPA filters were used. (214) The presentation also suggested that if add-on controls were required, the District might reduce industry recordkeeping requirements for the use of fume suppressants.

Ironically, the parties disagree about whether the environmentalists' consultant played a large role in the outcome of the negotiations. An industry representative declared that the consultant added very little and disagreed with the consultant's opinion that the installation of add-on pollution control devices (e.g. HEPA filters) might well, in the long run, be cheaper than using fume suppressants. (215) In contrast, the environmentalists were convinced that the expert's presentation was critical; as one stated, the presentation "had a big impact." (216) Finally, as might be expected, the District staff was somewhere in between. It found the information useful but not central to the negotiation. (217)

Whatever these differences of opinion, funding the technical expert in this case was important for at least one quite different reason. In his presentation, the consultant agreed with certain factual positions taken by the industry and its experts. (218) For example, the consultant stated he "concur[red] with the observation of the [industry] representative that the majority of the independent metal finishers will be unable to cope with or understand the technical and monitoring implications" of the rule as the District then proposed it. (219) The consultant's agreement on these issues came at a crucial stage in the negotiations, and his agreement played a role in beginning the process of bridging the gap in the positions of the environmentalists and the industry. While an expert will not perform this function in every case, here it proved crucial.

B. Expanding the Universe of Outcomes

1. Shaping Options That Respond to Interests

The process of notice and comment rulemaking erects disincentives to the creation of innovative solutions during the rulemaking process. (220) For example, if a proposed rule is significantly changed after the agency receives public comment, the agency must delay adopting the rule and allow for another round of public comment to address issues that are outside the scope of the original notice. (221) Additionally, once the agency staff drafts a proposed rule and sends it out for public comment, the draft rule takes on a certain rigidity that makes it more difficult to change. (222) A negotiation avoids these problems. Participants have the opportunity to influence a draft rule at an earlier time and to shape its formation. They view this opportunity as a very important benefit. (223)

Nonetheless, other factors can interfere with the pursuit of creative solutions in a regulatory negotiation. For example, if the agency is under a statutory deadline to act, it may opt for a rule taking the easier or more familiar path. Embarking on a time-consuming effort to create alternative solutions would put the agency in legal jeopardy if the negotiations fail and the legal deadline to act passes. Similarly, if a statute compels the agency to adopt a plan or rules securing specific emission reductions, and a technology-forcing rule is the agency's only option, little room to negotiate is likely to exist. (224) These constraints are quite serious under the Clean Air Act, which obligates states to carry out their implementation plans. The failure to do so can result in a judicial order compelling implementation. (225)

In contrast, successful negotiation is an attempt to create the proverbial "win-win" situation in which all parties benefit from the agreement. (226) It also works to foster a framework in which parties seek new solutions that would not otherwise exist. (227) In the context of a rulemaking, this expansion of possible solutions may lead to a broader consensus that includes, but is not limited to, agreement on what the rule should contain. (228) Moreover, where an entire industry faces a proposed rule that seems only to impose additional costs, the chances that the industry will voluntarily agree to the rule are small unless it will receive other benefits not related to the rule. Indeed, without the possibility of those additional benefits, an industry might decide that other options are preferable, such as an all-out political offensive opposing the rule or, if that effort is unsuccessful, the initiation of litigation.

2. Benefit Creation

The creation of outcomes benefiting industry provides an incentive for industry representatives to participate in negotiated rulemakings. In the case of the metal finishing rule, the industry representatives chose at the outset to participate in the rulemaking. For a significant period of time, however, they were not convinced that the negotiations would accomplish anything meaningful. Indeed, at one point a key industry representative suggested that the industry's representatives were simply "wasting their time" with the meetings. (229) The course of the negotiation changed when it opened up additional benefits to the industry.

One principal complaint of industry was that the District's rulemaking and permitting staffs were operating inconsistently. (230) Most importantly, the District rulemaking staff used certain emission factors in calculating emissions from chrome plating. Then, in the implementation of the rule, the District's permitting staff used different emission factors.

The permitting staff of the District was a separate part of the agency not usually involved in the rulemaking process. However, the District agreed to bring the industry and the permitting staff together to address certain key issues, including the question of emission factors used for chrome. Moreover, the District's Executive Officer was able to offer other assurances regarding implementation of any negotiated rule that would aid the industry in the future. For example, the District offered increased training in rule compliance. This was an important benefit to an industry made up of small businesses trying to implement a complex rule with significant sanctions for violations. Finally, the District offered assurance that it would help streamline the permitting process.

The industry representatives later indicated that these District actions were very important. (231) The representatives considered the agreement reached between the District and industry on the emission factor for chrome to be a significant step toward ensuring a smooth implementation of the permitting process for metal finishing facilities. Use of that factor would avoid scenarios where the permitting staff might calculate higher emissions than the source expected.

Although the industry representatives did not say so directly, these benefits were useful to them as political capital in "selling" a negotiated rule to other members of the metal finishing community who were not present at the bargaining table. Like the environmental negotiators, the industry was acting in a representative capacity at that table. In the end, they would have to convince non-participating companies that industry support for the negotiated rule was justifiable. These additional benefits helped the industry negotiators make the case for acceptance of the overall agreement.

The most notable characteristic of these benefits was that they were very unlikely to arise in the normal notice and comment rulemaking. The formalized structure of that type of rulemaking procedure, the more rigid roles played by the parties in it, and the legalistic nature of the process itself do not lay a groundwork for creativity. Indeed, rule implementation questions normally are seen as secondary to the rulemaking adoption process. In contrast, the informality of the negotiation process, and the availability of the facilitator, combine to provide a broader, more creative framework in which the parties can present their views and concerns. (232) The chrome plating negotiations thus support the observations of some commentators that negotiated rulemaking can secure benefits in the implementation of a rule not found in the traditional rulemaking process. (233)

3. The Limits of Benefit Distribution

To create the kind of benefits discussed here, the agency and the facilitator necessarily focused closely on the needs of the particular industry. There is, however, a limit to the kinds of benefits that can be provided in this context. Agencies must treat regulated entities impartially and cannot bestow benefits on some sources that similarly situated sources do not receive. For example, the benefits cannot amount to waivers of regulatory requirements that other regulated industries still must meet. In short, the kinds of benefits that an agency provides cannot shade into impropriety or illegality. (234) That did not happen here; the District offer of benefits was even-handed, including increased training of compliance staff and streamlined permitting to benefit industry, and voluntary compliance with the rule to benefit regulatory agencies and environmental groups.

The production of benefits also raises the distributional question of who receives them. (235) While the metal finishing industry in the South Coast Air Basin is largely comprised of relatively small companies, those companies are by no means alike. They range in scope from entities doing millions of dollars per year in business to small "mom and pop" platers. Furthermore, the industry is highly competitive.

Whether industry representation in a negotiation can be skewed so that certain segments of a particular industry unduly benefit to the exclusion of others remains a lurking question. (236) Standard economic theory suggests that industry negotiators might well seek to benefit themselves at the expense of competitors. (237) However, no such overt indications appeared in the metal finishing rule. Still, agencies must assure that industry representation is sufficiently robust and widespread to avoid any charges that the outcome of the negotiations benefits some parts of an industry over others.

The metal finishing negotiations illustrate this point. One of the key trade-offs in the negotiations resulted in higher controls required for certain facilities close to sensitive receptors, in return for less stringent controls on other facilities. The additional controls would more substantially affect smaller facilities than larger ones.

In the metal finishing negotiations, it was not certain that the negotiators adequately represented affected interests. The presence of the industry trade group provides some indicia of fair representation, but only about fifty percent of the universe of plating sources belonged to that group. Thus, the possibility of unrepresented segments of the industry existed. Ultimately, the only way to avoid unfair distributional outcomes is to take great care in ensuring that the parties who participate in a negotiation represent a wide spectrum of interests. (238)

4. Paradigm-Shitting Solutions

Some commentators have suggested that negotiated rulemaking serves a significant creativity goal other than just producing consensus. They assert that the nature of the process--"[i]ntense negotiations with others who do not share one's perspective" (239)--can lead to breakthrough or paradigm shifting solutions. (240) For example, the negotiations over a regulation might lead to a pollution prevention solution that obviates the very need for regulation. (241)

The metal finishing negotiations did not lead to that type of breakthrough. The negotiators did pursue a new direction by establishing a Pollution Prevention Subcommittee, but the committee met only a couple of times. (242) In the end, the parties agreed that no such solution was possible at this time, although they acknowledged that new technologies and approaches were being developed. The parties thought the difficulty was that the orders received by metal finishing businesses from their larger customers set product standards requiring the use of chrome, so the use of an alternative metal was impossible.

One possible explanation for this failure is that, in this instance, the industry had insufficient incentive to change. A change from chrome would involve significant investment in new types of plating technology that, to a large extent, did not presently exist. Furthermore, such an investment would, at the least, place the Southern California metal finishers at a competitive disadvantage with competitors in other parts of the United States as well as with increasing foreign competition. Whatever the explanation, the outcome of the metal finishing negotiation provides some support for those commentators who have suggested that technology forcing innovation is not a likely product of negotiated rulemaking. (243)

C. The Effect of Public Agency Institutional Arrangements

1. The Decisiveness of Commitments

Some of the extensive literature on negotiated rulemakings emphasizes that senior agency officials must be involved in the process for the negotiations to succeed. (244) Without that involvement, other parties will view the negotiation as, at best, unlikely to reach any real conclusion. At worst, the lack of commitment will mean that the agency might renege on any agreement reached by the parties and agency representatives who occupy a lower level in the agency command structure.

The District's role as a regional air pollution agency as well as the agency's internal administrative structure combined to allow for greater participation by key agency decisionmakers than would be the case at larger agencies, such as EPA. In particular, the District's Executive Officer was invested in the process and attended some of the working group meetings, including ones occurring at critical points in the negotiation. Even more importantly, by virtue of his position he was able to break some impasses by committing the staff to action or directing use of the agency's resources. (245)

The Executive Officer's commitment had a profound effect on the negotiations. Post-negotiation interviews with participants identified two important consequences of his involvement. First, the Executive Officer was able to commit agency resources to resolving specific issues in the negotiations in a decisive way that lower officials simply have no authority to do. For example, during the rulemaking an issue arose about the actual distances between certain plating facilities and sensitive receptors located near their facilities. Rather than continue to speculate over the answer, the Executive Officer ordered the District's enforcement staff, which otherwise played no part in rulemakings, to go out and physically measure the distances. (246)

Secondly, the Executive Officer's presence sent a strong signal to participants that the agency was taking the negotiations seriously. In response, other parties raised their intensity and level of participation. In the case of the metal finishing rule, parties to the negotiation cited the Executive Officer's involvement as critical to its success. One stated that the rule "cannot be done without him" (247) while another declared his presence was "more important than the mediator." (248) The price of this involvement is, however, substantial. Not only is the commitment a serious drain on the time of the agency's senior public manager, it significantly elevates the importance of reaching consensus. If the negotiation fails despite the involvement of the Executive Officer, the failure is magnified. Nonetheless, personal involvement by top agency officials can pay large dividends.

2. The Structure of Agency Decisionmaking

The literature on negotiated rulemakings focuses almost exclusively on federal agencies, particularly EPA. (249) A single, appointed administrative official heads EPA, and lower officials who conduct negotiations report directly up the chain of command. However, the metal plating negotiation involved a regional air quality agency with a very different decisionmaking structure. The South Coast District has a governing board made up of twelve members. Most are elected officials representing local governments, while others are appointed, including appointees of the Governor and State Legislature. (250) Consequently, the political makeup of the board can be quite mixed.

The relationship between this governing structure and the negotiation process requires some evaluation, for the relationship presents issues that are different than those which arise when a single administrator heads an agency. For example, board members might choose to involve themselves in negotiations, while the EPA head is not likely to take that step. Alternatively, if board members remain outside negotiations, parties may try to contact board members if they believe that the negotiations are headed in an unfavorable direction for them. The parties may hope the board members would intervene in the negotiation, or at least exert influence over the staffs position. (251)

For a number of reasons, parties seeking to influence board members create problems. One obvious difficulty is that, because the board member has not been present at all negotiation sessions, he or she is not fully familiar with either the technical details or the tradeoffs the parties have made. Equally important, other parties to the negotiation may view contacting governing board members as a bad faith act that is inconsistent with the negotiating framework, and these other parties presumably would respond by initiating their own contacts with board members. The result could easily doom the negotiation, as parties seek to wield political influence as a means of turning negotiations in a different direction.

This difficulty did not occur with the metal finishing rule. The board's chairperson did attend the first meeting of negotiators and indicated her ongoing interest. However, neither she nor any other board members actively participated thereafter. Furthermore, the parties to the negotiation refrained from lobbying board members. They considered their restraint an element of the "good faith" necessary for the negotiation to proceed.

Nonetheless, the possibility of board interference exists in a negotiation conducted with an agency that has a board-member governing structure. Indeed, in the metal finishing negotiations, participants considered their commitment to refrain from lobbying board members as a significant concession to the process. In the future, other negotiators may feel differently. For example, after the negotiations the principal environmental group negotiator suggested that if substantial community interest existed in a rule, individual members of those communities may want to "create the impact themselves on the rule and policy" by talking directly to board members. (252) An efficient solution to this difficult problem is for the decisionmaker (here, the board) to adopt a policy governing the actions of its individual members during a negotiated rulemaking. Establishing a framework for board members to interface with the negotiation process would provide certainty and help ward off controversy.

D. The Scale of the Negotiation: Time and Resources

1. Time as a False Indicator

An ongoing point of contention in the literature is whether regulatory negotiation saves time in comparison to traditional rulemaking. Such savings were originally cited as a principal justification for undertaking the negotiation process. (253) Recently, however, critics have contended that time savings do not occur. (254) Moreover, observations made by participants in negotiated rulemakings confirm that negotiations require a greater time commitment than anticipated at their outset. (255)

The metal-finishing rulemaking unquestionably fit the time-consuming pattern. During negotiations, both industry and environmentalists requested a sufficiently slow pace to allow for the compilation of additional technical information. (256) If a negotiation includes a process to facilitate data exchanges and resolve outstanding technical issues, as this negotiation did, parties must expect that negotiations will lengthen substantially.

The parties' attitude toward the length of the plating negotiation suggests that the academic debate over whether negotiations save time is misplaced. The question should not be whether a negotiated rule took longer to fashion than a rule adopted by notice and comment rulemaking. Instead, the focus should be on whether the benefits of the negotiated rule were worth the investment of extra time. As a general rule, a successful negotiation will provide a well-balanced and widely accepted rule, as well as a more complete record to support the rule. Extra time involved in lengthened negotiations seems, in most instances, a fair trade for these benefits.

The length factor, however, does serve to narrow the types of disputes suitable for negotiation at the state or regional level. Where the agency is under a time frame mandated by statute, regulation, commitment, or court order, it cannot be expected to employ a potentially time-intensive process like regulatory negotiation. For example, the CAA requires a state regulatory agency to implement measures adopted in a SIP, a mandate that may limit the agency's options as well as the time it may take to act. The agency cannot afford the more open-ended, time-consuming process of a negotiation.

The concern over length also suggests that more attention should be paid to whether the negotiation process can be shortened. Some delay in negotiation is inevitable. For example, time delays from initial "posturing" and caucusing are inherent in the negotiation process. Other delays, however, might be avoided, perhaps through procedural miles. On a number of occasions during the metal finishing negotiation, for example, the agency produced technical information either right before or at a meeting. As a result, the parties could not adequately digest and respond to the information. More structure in the negotiation process might largely avoid this difficulty.

Finally, more attention paid to the length of the negotiation might also provide another benefit. Creative facilitators may be able to turn the parties' general concern over undue length in the negotiation process to an advantage by pressuring the parties to identify and focus their true priorities more quickly. (257)

2. Resource Constraints

The demands imposed on the parties' available resources posed another significant problem for the negotiation. From the industry's standpoint, the ability to cope with the demands of a negotiation depends upon the characteristics of the industry involved in the negotiation. Some industries regulated by the District consist of large corporations with more than sufficient resources available to devote to a negotiation. In contrast, other regulated industries are much smaller. Indeed, the difficult task faced by the South Coast District in attaining the NAAQSs has forced the agency to regulate smaller and smaller sources.

As noted above, (258) the metal finishing industry is comprised mainly of small businesses. However, a large and active trade association allowed the Southern California group of metal finishers to organize effectively. (259) Although industry negotiators complained about the time demands of the negotiation, the industry could afford to devote the resources needed for a lengthy negotiation.

The negotiations placed a much greater strain on the environmental interests. In the post-negotiation interviews, environmental groups emphasized that committing to this type of negotiation is a major decision for their organizations because of resource constraints. At the outset of the negotiation only one organization, Communities for a Better Environment, committed to full participation. Later, that organization brought in another group, the Environmental Health Coalition, with specific expertise in metal finishing issues. (360) The two groups each devoted one person to the negotiations on a part-time basis.

The environmental parties intermittently displayed relative resource poverty during the actual negotiation. This became apparent on some occasions when only a single or no representative could attend a specific meeting. The environmentalists' difficulty in accessing the expertise necessary to participate effectively in the technical discussions also pointed to an obvious resource gap. (261)

Resource availability will act as a significant limiting constraint on negotiations held at this level of government in the future. In some instances environmentalists will be unable to participate, thus depriving the negotiations of a key participant in public environmental decisionmaking. Negotiations could proceed without them, but the outcome would not have the same depth of legitimacy that underlies the metal finishing negotiated rulemaking.

E. The Role of Civility and Trust

1. The Benefits of a Cooperative Environment

The literature on negotiated rulemakings often emphasizes that negotiation aided by a facilitator (262) can lead the parties to a better understanding of their mutual positions, and perhaps even to a new level of trust. (263) The protocol prepared by the facilitator for the District's negotiated rulemaking reflected these possibilities. It cautioned the parties to "listen carefully to understand others' points of views." (264) The facilitator also stressed respect for the views of others in his opening remarks at the first meeting of the working group. (265)

Consistent with the reported findings of other negotiated rulemakings, the parties to the metal finishing rulemaking agreed that the process attained the goal of civility and resulted in enhanced cooperation among the parties. In the post-negotiation interviews, several of the participants expressed surprise at the extent to which they found themselves compromising so as to reach an agreement. (266)

The high level of civility led to an increased understanding of opponents' positions. For example, staff and environmental interests gained an appreciation for the difficulties faced by the metal finishing industry in southern California. In particular, the interest groups began to understand how foreign competition seriously threatened the local industry. In turn, the industry learned to consider the deep-seated convictions of the environmentalists concerning the impacts of toxic emissions on surrounding, often low-income areas.

This increase in understanding among the parties is not likely to change core views. It does, however, lead to enhanced mutual respect, which the literature on negotiated rulemaking finds can make it easier to reach agreement. (267) The metal finishing negotiations put this finding to a test, as the negotiations culminated in an incident that could easily have caused the failure of the entire negotiation.

2. Outcomes from Cooperation: An Example

After the parties expended considerable effort clarifying technical issues, they agreed on the content of a rule. (268) The framework for the agreement centered on special provisions governing facilities close to sensitive receptors. The actions required of the industry depended on the risk factor associated with the emissions from the particular facility in question. At this point in the negotiation process, it appeared that the only step left was to formalize the agreement in a memorandum, a common method for completing a regulatory negotiation. (269)

At this time, however, the District staff uncovered a simple mathematical miscalculation that, at least initially, appeared to have profound consequences. The miscalculation concerned how many amp-hours could be used by a small facility located less than 25 meters from a sensitive receptor or facility before that facility exceeded the ten in one million risk threshold for the use of fume suppressants. (270) The "cut off' should have been listed at 365,000 amp-hours, rather than 460,000 amp-hours. (271) The error, on the order of approximately twenty percent, had potentially significant consequences. Most importantly, it raised the possibility that more facilities than estimated could not remain under the ten in a million threshold when using a certified fume suppressant, thus subjecting these facilities to stricter controls. In short, by increasing the number of facilities affected, the error threatened to undermine a crucial assumption on which the agreement rested.

In a more adversarial environment, a mistake of this importance would breed distrust and possibly lead to a complete failure of the negotiations. The parties' collaboration, however, fostered trust, just as the literature on negotiated rulemakings predicted. No party charged that the mistake was intentional or otherwise caused by culpable conduct. Instead, the immediate focus was on whether the calculation, as changed, was accurate. Then, with the accuracy verified, the facilitator led the parties in looking for ways of restructuring the agreement to account for the new data.

Ultimately, however, the parties found no way around the problem. The question then became whether the industry was prepared to accept an agreement that, because of the new amp figure, could have greater regulatory impacts on small facilities. At this point a second feature of the negotiations, discussed above, paid dividends: the detailed technical analysis that was the result of the collaboration between the parties. (272) As part of that analysis, the District staff had described the metal finishing industry in a very detailed manner. Part of this description involved site visits by agency personnel to measure how close plants actually were to individual receptors. This characterization involved a level of resource commitment by the District not usually found in a typical rulemaking.

Using this data, the staff determined that, after correcting for the mistake, the increase in amp hours would affect only three facilities. Furthermore, because one of the three facilities had already exceeded the original emission threshold, the change in amp hours would not affect the compliance measures required of it. Given this data, the parties then agreed that a facility could exceed the 365,000 amp-hours up to a level of 500,000 amp-hours and receive only one "strike" against it for violation purposes. If 500,000 amp-hours were exceeded, add-on controls would be required. (273) Based upon the information that a very small number of facilities would be affected, and on the agreement providing additional flexibility for exceedances of the 365,000 amp-hour level, the industry accepted the framework that the parties had previously crafted.

The actions by the parties in the aftermath of the mistaken calculation suggest that, as the negotiation literature generally predicts, the parties to the negotiation interacted quite differently than they would have in a normal rulemaking. They accepted the mistake as one made in good faith, and they used the extensive data compiled to accurately predict the effect that the mistake would have on the overall agreement. The parties' attitude during this period--particularly that of the industry, which bore the brunt of the mistake--suggests the negotiating environment led to a bond among the parties that did not easily fray when put under strain.

There was a second indication of the level of trust in the metal finishing negotiations. As set forth above, a key provision of the general agreement reached by the parties was that small facilities would have to install expensive HEPA filter technology if they committed three "violations." (274) Defining a "violation" in this type of context, however, can prove quite difficult, (275) a fact the parties immediately recognized. As a result, they spent some time trying to agree on the definition of a "violation."

The effort was partially successful. (276) However, the agreement left many issues to be fleshed out in the protocol that the District would adopt to implement the rules. That the parties, particularly the industry members who would have to comply with the requirements, were willing to leave significant issues such as defining a "violation" to the subsequent implementation process (277) testifies to the level of trust established. The industry was willing to accept this outcome because it believed that, based on the negotiation, it would have significant input into the implementation of the rule.

Finally, one incident during the negotiations demonstrated how the attainment of civility was principally due to the efforts of the facilitator. At a date quite late in the negotiations, the facilitator was late for a working group meeting due to a travel delay, and the meeting began without him. Interestingly, to an outside observer, the change in tone and the increased contentiousness at the meeting was immediately apparent. When the facilitator finally arrived, the parties took a break. Thereafter, the tone immediately returned to the civility that heretofore was the hallmark of the negotiation. (278)

F. The Threat of the Unilateral Alternative

The debate over the efficacy of negotiated rulemaking at the federal level assumes that some delay occurs because the negotiation must precede the actual rulemaking undertaken by the agency. (279) In the metal finishing rule, however, the District conducted negotiations while beginning the process of proposing a rule. (280) Development of the rule proceeded on two separate, concurrent tracks: the negotiation track and the rulemaking track. In the end, when the negotiation was successful, the two tracks joined.

The use of this "parallel track" strategy offers a partial answer to critics' claims that negotiation represents the agency's abdication of its role as decisionmaker, (281) and therefore an abdication of the agency's authority. (282) They argue, in part, that when an agency accepts the outcome of interest group bargaining, that outcome may not reflect the public interest. (283) As one critic put it, "The conflict between public choice theory and a public interest concept of regulation is obvious." (284) At worst, some critics suggest that negotiation threatens the rule-of-law underpinning of the administrative state. (285)

The latter view is theoretically unsound. It assumes agency statutory goals are explicit enough for a rulemaking's outcome to be measured against them in a manner allowing conclusions about the appropriateness of that outcome. Those explicit goals, however, usually do not exist; instead, the agency often operates under a much broader and more generalized statutory authorization. Thus, the type of comparison needed to determine whether regulatory negotiation reaches unlawful outcomes usually cannot be made.

The District's use of the parallel track in this case suggests that worries about agency abnegation of authority in endorsing negotiation outcomes were unwarranted. The existence of the parallel track outside the collaborative process signaled to the parties that the agency would act by itself if no consensus acceptable to the agency emerged from the negotiation. That message was powerful, strongly spurring the parties to reach a successful outcome to the negotiation. The staff then reinforced that message by holding strongly to its overarching position that the current risk from chrome plating emission was too high and must be reduced. As long as the agency adhered to that position, it "took off the table" certain possible outcomes of the negotiations.

Finally, the use of the parallel track indicated that the agency did not view itself merely as one party among equals in the regulatory negotiation. (286) Instead, the agency intended to act to protect the public interest in some fashion by further regulating chrome emissions. The negotiations would answer the question of how that regulation would take place, either by a negotiated rule or by a rulemaking in the absence of a negotiated agreement. They would not affect whether it would occur.

Of course, use of the parallel track did not guarantee the agency would ultimately finish a rulemaking if the negotiations failed. The agency retained the legal discretion not to move forward on its own (since here it was not compelled by statute to do so). But this method provides some evidence of agency independence. (287) Furthermore, the agency's insistent adherence to the rulemaking schedule under that parallel track lent urgency to the negotiations that might not otherwise have existed. This urgency may well have spurred the negotiations to a conclusion. (288) In sum, the negotiations did not remove the agency as the authoritative decisionmaker, as some have suggested. (289)

G. The Tractability of the Dispute

There is considerable controversy in the literature over what types of disputes are best suited for regulatory negotiation. Some argue that controversial rules make good candidates for negotiation, (290) while others contend the process is best utilized for narrow questions of implementation. (291) A third group stresses that agencies should use negotiation to tackle situations where the policy implications are limited. (292)

At the outset of the metal plating negotiations, it appeared the dispute over more stringent regulation of metal finishing sources was a controversial issue. The principal policy dispute was whether the agency had made a strong enough case to support any additional regulation, and the parties appeared widely split in their attitudes. For example, the principal environmental group involved, Communities for a Better Environment, emphasized its commitment to environmental justice and had taken strong stands in the past regarding the need for stringent regulation of sources near sensitive receptors such as schools. At the outset of the negotiation, this strong view appeared to minimize the likelihood of much movement on CBE's part.

However, in the end the parties were able to reach consensus. They did so by expanding the universe of technical knowledge and creating solutions that gave the principal parties sufficient benefits to overcome doubts about whether the regulation went far enough (in the case of the environmentalists) or too far (in the case of industry). Given the parties' positions at the outset of the negotiation, the process provides some support for the proposition that even relatively intractable disputes can be appropriate subjects for negotiation. (293)

VII. CONCLUSION

This article does not address whether the outcome of the present metal plating negotiations was "better" than the outcome a traditional rulemaking proceeding would have produced. That comparison is problematic; one cannot easily compare a result which exists with one that never occurred. (294) Furthermore, the results from one individual negotiated rulemaking, like this one, are not necessarily generalizable.

More importantly, for too long the debate over negotiated rulemaking has revolved around extreme conclusions about its benefits or failures. (295) It is portrayed either as a panacea or a totally misguided venture. In fact, it is neither. It will certainly not be a complete "cure" for administrative malaise, (296) and it will not be effective in many situations where the proposed rule affects a wide range of interests. (297) It can, however, be quite useful in some instances. Accordingly, the expectations for regulatory negotiation need to be re-calibrated, (298) and, to be effective, its use must be targeted. (299)

The evidence of one rulemaking, such as the one examined here, obviously cannot conclusively demonstrate when that targeted use should occur. But the present rulemaking does indicate one set of circumstances where the process was quite beneficial. Furthermore, by its detailed description of the actual negotiations, this article shows how the dynamics of regulatory negotiation are very different from those in a notice and comment rulemaking. It demonstrates how, in one situation, regulatory negotiation can help parties with very different interests reach creative solutions to regulatory problems.

(1) The seminal article is Philip J. Hatter's, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1 (1982). See also LAWRENCE SUSSKIND & JEFFREY CRUIKSHANK, BREAKING THE IMPASSE: CONSENSUAL APPROACHES TO RESOLVING PUBLIC DISPUTES (1987) (advocating negotiation as a means of resolving disputes). The early history of negotiated rulemaking is discussed in Henry H. Perritt, Jr., Administrative Alternative Dispute Resolution: The Development of Negotiated Rulemaking and Other Processes, 14 PEPP. L. REV. 863 (1987).

(2) See, e.g., David B. Spence & Lekha Gopalakrishnan, Bargaining Theory and Regulatory Reform: The Political Logic of Inefficient Regulation, 53 VAND. L. REV. 599, 615-16 (2000) (noting that "EPA's experiences with the process have met with a decidedly mixed reaction" and that "[w]hatever the ultimate verdict, the process of negotiated rulemaking remains controversial, particularly among environmental groups").

(3) See, e.g., Michael McCloskey, Problems With Using Collaboration to Shape Environmental Public Policy, 34 VAL. U. L. REV. 423, 427 (2000). The author, a critic of collaborative approaches, summarizes the views of proponents of collaboration as follows: "Proponents of the collaborative approach claim that the collaborative approach consists of four basic types of advantages: better outcomes, improved processes, greater acceptance, and desirable aftermaths." Id. See also Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342, 376 (2004) (arguing that the "commitment to collaboration fails naturally from the commitment to participation [in regulatory matters] since an inclusive structure facilitates multiparty cooperative exchanges"). The Environmental Protection Agency has also issued a "white paper" stating that "collaborative approaches to environmental protection have led to superior outcomes." U.S. ENVTL. PROT. AGENCY, SOLVING ENVIRONMENTAL PROBLEMS THROUGH COLLABORATION: DRAFT WHITE PAPER FOR DISCUSSION 1 (June 30, 2004), http://www.ecos.org/files/1271_file_leavitt_collaboration.pdf.

(4) See, e.g., David A. Dana, The New "Contractarian" Paradigm in Environmental Regulation, 2000 U. ILL. L. REV. 35, 36 (2000) (citing bargains struck between regulators and regulated entities on a "case-by-case, facility-by-facility, [and] site-by-site basis").

(5) See, e.g., Daniel A. Farber, Legal Pragmatism and the Constitution, 72 MINN. L. REV. 1331, 1334 (1988) (citing movement from "grand theory" to pragmatism).

(6) See, e.g., William Funk, Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public Interest, 46 DUKE L.J. 1351, 1356 (1997) ("[W]hile negotiated rulemaking may formally satisfy current legal requirements, the principles, theory, and practice of negotiated rulemaking subtly subvert the basic, underlying concepts of American administrative law--an agency's pursuit of the public interest through law and reasoned decisionmaking. In its place, negotiated rulemaking would establish privately bargained interests as the source of putative public law.").

(7) Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE L.J. 1255, 1286, 1309 (1997) [hereinafter Coglianese, Assessing Consensus]; see also Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Hatter, 9 N.Y.U. ENVTL. L.J. 386 (2001) [hereinafter Coglianese, Assessing the Advocacy] (examining negotiated rulemaking against the existing rulemaking process, and concluding that negotiated rulemaking does not save time or reduce litigation).

(8) See, e.g., Neil Eisner, Regulatory Negotiation: A Real World Experience, 31 Fed. B. News & J. 371 (1984) (describing negotiated rulemaking at the Federal Aviation Administration). But see Mark L. Pelesh, Regulations Under the Higher Education Amendments of 1992: A Case Study in Negotiated Rulemaking, 57 LAW & CONTEMP. PROBS. 151, 161-62 (1994) (criticizing outcome of a negotiated rulemaking over Department of Education regulations).

(9) Cary Coglianese, Empirical Analysis and Administrative Law, 2002 U. ILL. L. REV. 1111, 1133 (2002); Barry G. Rabe, The Politics of Environmental Dispute Resolution, 16 POL'Y STUD. J. 585, 591 (1988) (noting that most of what we know about consensus building comes from practitioners and advocates of the practice).

(10) Coglianese, supra note 9, at 1133.

(11) See, e.g., Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,811 (2001) (presenting analysis and a summary of empirical evidence from Neff Kerwin and Laura Langbein's two-phase study of Environmental Protection Agency (EPA) negotiated rulemakings); Coglianese, Assessing Consensus supra note 7, at 1255 (presenting an empirical assessment of the impact of negotiated rulemaking on the principal goals of reducing overall rulemaking time and decreasing the number of judicial challenges to agency rules); Laura I. Langbein & Cornelius M. Kerwin, Regulatory Negotiation Versus Conventional Rule Malting: Claims, Counterclaims, and Empirical Evidence, 10 J. PUB. ADMIN. RES. & THEORY 599 (2000) (compiling interview data from participants in negotiated rulemakings and individuals who filed comments in conventional rulemakings, and finding that participants in negotiated rulemakings were more satisfied with the overall process than in conventional rulemakings).

(12) Freeman & Langbein, supra note 11, at 10,818-10,840 (analyzing Kerwin & Langbein's interviews with participants in negotiated rulemaking); Coglianese, Assessing Consensus, supra note 7, at 1273 (describing the technique of searching Federal Register notices and listings published by the Administrative Conference of the United States to determine agency use of negotiated rulemaking); Langbein & Kerwin, supra note 11, at 599-632 (interviewing participants in eight EPA rulemakings and individuals who submitted agency written comments in six conventional, non-negotiated rulemakings).

(13) See Shi-Ling Hsu, A Game-Theoretic Approach to Regulatory Negotiation and a Framework for Empirical Analysis, 26 HARV. ENVTL. L. REV. 33, 39 (2002) (noting that only two major empirical studies on negotiated rulemaking have been conducted and concluding that "[t]here can be no conclusion as of yet regarding the effectiveness of negotiated rulemaking'); see also Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, 57 LAW & CONTEMP. PROBS. 185, 188 (1994) (suggesting that administrative implementation is a realm "in which neither explanatory nor prescriptive theories will be perfect" and that "we are unlikely to develop explanatory hypothesis about current behavior that fit all the cases ...').

(14) Langbein & Kerwin, supra note 11, at 599-632 (detailing systematic interviews with participants in eight negotiated rules and in six comparable conventional rules).

(15) Coglianese, Assessing Consensus, supra note 7, at 1309 (concluding that negotiated rulemaking has not lived up to its promising potential to save regulatory lime or prevent litigation).

(16) CAL. HEALTH & SAFETY CODE [section] 40440 et seq (West 1996). See also South Coast Air Quality Mgmt. Dist., at http://www.aqmd.gov (last visited July 24, 2005).

(17) South Coast Air Quality Mgmt. Dist., Accord Reached To Reduce Emissions From Metal Plating Shops (May 2, 2003), at http://www.aqmd.gov/news1/2003/bs5_02_03.html (last visited July 18, 2005) ("Following a groundbreaking negotiation process with industry, environmentalists and others, the Southland's air quality agency today adopted the toughest measures in the nation to significantly reduce toxic emissions from the region's metal plating facilities.").

(18) See Norma J. Glover, Chair, AQMD Governing Board, Initiative #8--Negotiated Rulemaking Pilot Program, Strategic Alliance Initiatives: Workplan, at http://www.aqmd.gov /hb/attachments/2002/020217b.doc (last visited July 24, 2005) (calling for a person to "evaluate the process results for future regulatory direction").

(19) The author attended all but one of the sessions held by the Working Group, the principal group that negotiated the rule. He also attended sessions of the Issues Resolution Subcommittee, which was formed to tackle the key issues facing the group. Finally, he conducted individual, post negotiation interviews with seven of the principal participants in the negotiations: three individuals from the metal finishing industry, one from the environmental community, two staff members from the South Coast District, and the facilitator. During this process, he became familiar with the paperwork that was distributed at the meetings and that formed the record for the ultimate rule adoption.

(20) There is sparse literature about use of negotiated rulemaking at the non-federal level. See Lawrence E. Sellers, Jr., The Third Time's the Charm: Florida Finally Enacts Rulemaking Reform, 48 FLA. L. REV. 93, 109 (1996) (discussing Florida state legislation allowing agencies in that state to use negotiated rulemaking); Dennis H. Esposito & Kirsen W. Ulbrich, Negotiated Rulemaking in Environmental Law, 46 R.I. Bar J.5 (April 1998) (discussing state negotiated rulemaking over wetlands regulation); Matthew J. McKinney, Negotiated Rulemaking: Involving Citizens in Public Decisions, 60 MONT. L. REV. 499 (1999) (discussing the Montana Negotiated Rulemaking Act).

(21) See, e.g., Brigitte Roth, Back to the Future With Chrome, 23 COATINGS 1, 1 (Sept. 1, 2001), (discussing "chrome's popularity in the automotive industry to 'baby boomers' longing for the past" and also due to "corrosion protection and cost").

(22) AIR RES. BOARD, CAL. ENVTL. PROT. AGENCY, CHROME PLATING OVERVIEW, at http://www.arb.ca.gov/toxics/chrome/background.htm (last visited July 24, 2005).

(23) Id.

(24) OFFICE OF ENGINEERING AND COMPLIANCE, DRAFT REPORT ON NICKEL AND CHROMIUM EMISSIONS FROM ELECTROPLATING TANKS 2 (Sept 4, 2002):

   Gas bubbles may be present in open process tanks for one of two
   common reasons: (1) electrolysis of the water in the tank, and (2)
   induction of sparging air into the tank. Gas bubbles cause
   emissions of liquid droplets. They produce mist because the
   bursting of the bubbles on the liquid surface cause energetic
   disruption of the liquid surface and ejection of some of the liquid
   from the tank surface into the atmosphere.

(25) SOUTH COAST AIR QUALITY MGMT. DIST., FINAL STAFF REPORT: PROPOSED AMENDED RULE 1469 AND PROPOSED RULE 1426, at 2-4 (April 1, 2003) [hereinafter SCAQMD, FINAL STAFF REPORT]. The California Air Resources Board issued a "Fact Sheet" that posed the question "Why is the Air Resources Board (ARB) concerned about emissions from chrome plating?" AIR RES. BOARD., CAL. ENVTL. PROT. AGENCY, FACT SHEET: CHROME PLATING [hereinafter AIR RESOURCES BD., FACT SHEET], http://www.arb.ca.gov/ch/factsheets/chrome.pdf. The Board's answer was:

   Chrome plating is an industrial process in which a bright metallic
   chrome layer is deposited on plastic or metal objects such as
   faucets, automotive wheels, tools, and engine parts. The electrical
   charge during the chromium plating process causes the hexavalent
   chromium to be emitted from the plating bath as an aerosol that,
   once emitted from the facility, can be inhaled and trapped inside
   the lungs. ARB is concerned about these emissions because
   hexavalent chromium is a very toxic compound and breathing air
   containing hexavalent chromium for long periods of time may
   increase the risk of getting cancer. The emissions are of
   particular concern when chrome plating businesses are located
   near residential neighborhoods and schools.

Id

(26) See National Emission Standards for Chromium Emissions from Hard and Decorative Chrome Electroplating and Chromium Anodizing Tanks, 60 Fed. Reg. 4948, 4954-55 (Jan. 25, 1995) (noting that a majority of commenters on an EPA-proposed plating rule felt that the trivalent chrome electroplating process "was not technically feasible for the full range of decorative chromium electroplating operations").

(27) See Coglianese, Assessing the Advocacy, supra note 7, at 441 ("In industries that are not likely to innovate in the absence of strong governmental regulation, the lowest-common-denominator problem keeps negotiated rules from promoting the technological innovation needed to improve environmental and safety performance.") (citing Charles C. Caldart & Nicholas A. Ashford, Negotiation as a Means of Developing and Implementing Environmental and Occupational Health and Safety Policy, 23 HARV. ENVTL. L. REV. 141 (1999)).

(28) SCAQMD, FINAL STAFF REPORT, supra note 25, at 2-5.

(29) Fume suppressants are chemical agents that reduce or suppress fumes or misting at the surface of chromium electroplating baths. There are two basic types of fume suppressants: wetting agents (surfactants) and foam blankets. Wetting agents lower the surface tension of plating baths to reduce misting. Foam blanket fume suppressants, in which foam layers are generated across plating baths when current is applied, physically trap mists. SCAQMD, FINAL STAFF REPORT, supra note 25, at 4-5.

(30) Id. at 2-5.

(31) Id at 4-4.

(32) Id

(33) Id. at 2-5.

(34) CAL. HEALTH & SAFETY CODE [subsection] 39657, 39659 (West 1996).

(35) SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-1.

(36) CAL. CODE REGS. tit. 17, [section] 93000 (2004).

(37) Id. [section] 93102 ("FINAL REGULATION ORDER HEXAVALENT CHROMIUM AIRBORNE TOXIC CONTROL MEASURE (ATCM) FOR CHROME PLATING AND CHROMIC ACID ANODIZING OPERATIONS").

(38) AIR RES. BD. CAL. ENVTL. PROT. AGENCY, TOXIC AIR CONTAMINANT CONTROL PROGRAM HEXAVALENT CHROMIUM REGULATORY HISTORY, at http://www.arb.ca.gov/toxica/chrome/history. htm (last visited July 24, 2005).

(39) AIR RESOURCES BD., FACT SHEET, supra note 25, at 1.

(40) SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-3.

(41) SOUTH COAST AIR QUALITY MGMT. DIST., POWERPOINT PRESENTATION, STRATEGIC ALLIANCE INITIATIVE #8, NEGOTIATED RULEMAKING PILOT PROGRAM (Apr. 23, 2002) (powerpoint slide noting "ARB/SCAQMD/BAAQMD Joint Testing").

(42) CAL. AIR RES. BOARD, CHROME PLATING RULE EFFECTIVENESS STUDY REPORT (July 19, 2002), ava//able at http://www.arb.ca.gov/toxics/chrome/ruleeffect.pdf.

(43) Id. at 6.

(44) SOUTH COAST AIR QUALITY MGMT. DIST., Rule 1169 (1988) (repealed Oct. 9, 1998).

(45) CAL. HEALTH & SAFETY CODE [section] 39666(d) (West 1996) ("A district shall adopt rules and regulations implementing airborne toxic control measures on nonvehicular sources within its jurisdiction ... not later than six months following the adoption of airborne toxic control measures by the state board.").

(46) Rule 1169, supra note 44, at 3-4.

(47) Id.

(48) Id.

(49) SOUTH COAST AIR QUALITY MGMT. DIST., Rule 1402 (amended Mar. 4, 2005).

(50) Id.

(51) SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-5 ("The intent is that such notifications [under Rule 1402] for an entire industry will only be required if the AQMD Governing Board does not adopt a source-specific rule that specifically exempts the industry from the inventory requirements of Rule 1402.").

(52) SOUTH COAST AIR QUALITY MGMT. DIST., AN AIR TOXICS CONTROL PLAN FOR THE NEXT 10 YEARS (March 2000), available at http://www.aqmd.gov/aqmp/docs/AirToxicsControlPlan.pdf.

(53) Id. at 33, Measure AT-STA-01 (calling for further control of chromium emissions from plating and anodizing operations).

(54) Clean Air Act, 42 U.S.C. [subsection] 7401-7671q (1990).

(55) 40 C.F.R. [subsection] 63.340-63.348 (1999).

(56) 42 U.S.C. [section] 7412(b)(1) (2000).

(57) 40 C.F.R. [subsection] 63.343-63.348 (1999).

(58) 40 C.F.R. [subsection] 63.340-63.348 (1999).

(59) Authority for Hazardous Air Pollutants; Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; State of California, 64 Fed. Reg. 12,762 (Mar. 15, 1999).

(60) National Emission Standards for Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks, 67 Fed. Reg. 38,810 (June 5, 2002).

(61) Letter from Barry R. Wallerstein to Air and Radiation Docket and Information Center (6102), U.S. ENVTL. PROT. AGENCY (Aug. 6, 2002) (on file with author).

(62) 42 U.S.C. [section] 7410 (2000).

(63) Id.

(64) South Coast Air Quality Mgmt. Dist., Agenda No. 34, Bd. Meeting Date May 2, 2003, at http:/www.aqmd.gov/hb/2003/030534a.html (last visited July 24, 2005) (noting "[t]he two metal plating rules were chosen for negotiated rulemaking since they are not part of the State Implementation Plan that is subject to a federally enforceable adoption and implementation schedule"). See generally Nancy Kubasek & Gary Silverman, Environmental Mediation, 26 AM. BUS. L.J. 533, 545-547 (1988) (noting that environmental statutes contain provisions that may prevent compromise).

(65) South Coast Air Quality Mgmt. Dist., Negotiated Rulemaking. Metal Finishing Draft Organizational Protocols 1 (2002) ("The negotiated rulemaking process will assist in identification, discussion, and resolution of issues for a variety of subjects, including, but not limited to the following: ... (2) potential regulations for other metal plating processes, including nickel, cadmium, or other metals.') (on file with author).

(66) SCAQMD, FINAL STAFF REPORT, supra note 25, at ES-2.

(67) Id.

(68) Id. at ES-1.

(69) Id. at ES-2.

(70) Id. at 2-1.

(71) CAL. HEALTH & SAFETY CODE [section] 40410 (West 1996).

(72) See, e.g., Lauryne W. Harvey, 1991 South Coast Air Quality Management Plan: Southern California Makes Waves in Clean Air Compliance, 1 U. BALT. J. ENVTL. L. 108 (1991) (District's air quality plan's ideas "present an environmental precedent for other pollution plagued regions and cities of the nation."); NPCA Calls on Companies to Join Debate on "Green Building" Initiatives, PAINT & COATINGS INDUSTRY 12 (Nov. 1, 2004) (observing that limits on VOC coatings in paints enacted by the South Coast Air Quality Mgmt. Dist. are "the most stringent VOC rules on architectural and industrial maintenance coatings in the nation").

(73) See, e.g., Sherwin Williams Co. v. South Coast Air Quality Mgmt. Dist., 104 Cal. Rptr. 2d 288 (Cal. Ct. App. 2001) (describing several meetings with interested parties in a notice and comment rulemaking).

(74) See South Coast Air Quality Mgmt. Dist., What You Need to Know About How AQMD's Governing Board Works, at http://www.aqmd.gov/hb/govbd.html (last visited July 24, 2005) (explaining the typical notice and comment process) [hereinafter About AQMD].

(75) Id.

(76) South Coast Air Quality Mgmt. Dist., Frequently Asked CEQA Questions, at http://www.aqmd.gov/ceqa/faq.html (last visited July 24, 2005); South Coast Air Quality Mgmt. Dist., Socio-economic Analysis, at http://www.aqmd.gov/aqmp/ socioeconsection.html (last visited July 24, 2005).

(77) About AQMD, supra note 74.

(78) South Coast Air Quality Mgmt. Dist., How to Testify at Meetings, at http://www.aqmd.gov/hb/govbd.html#How (last visited July 24, 2005) (advising individuals testifying to "[p]lease limit your testimony to three minutes").

(79) South Coast Air Quality Mgmt. Dist., What Happens at Board Meetings, at http://www.aqmd.gov/hb/govbd.html#what (last visited July 24, 2005) (noting that "[a]fter a public hearing, the Board may vote to adopt a rule as proposed or with changes" and that, in some cases, the Board may postpone a decision).

(80) See, e.g. Peter H. King, The Siege Begins at Smog Palace, L.A. TIMES, Aug. 22, 1993, at 1 (stating "[t]hese are days of siege at the South Coast Air Quality Mgmt. Dist. The caissons of commerce ... are at the gates, carrying familiar ammunition. The AQMD, the war cries go, has become a drain on the economy, poisoning the California business climate ...").

(81) See U.S. ENVTL. PROT. AGENCY, 1-Hour Ozone Information, Nonattainment Areas, at http://www.epa.gov/air/oaqps/greenbk/oindex.html (last visited July 24, 2005) (listing Los Angeles as an extreme non-attainment area for ozone).

(82) South Coast Air Quality Mgmt. Dist., Strategic Alliance Initiatives, Initiative #8: Negotiated Rulemaking Pilot Program, at http://www.aqmd.gov/hb/attaehments/ 2002/020217b.doc (last visited July 24, 2005).

(83) Communities for a Better Environment defines itself as "an environmental health and justice non-profit organization, promoting clean air, clean water and the development of toxin-free communities. Communities for a Better Environment, About Us, at http://www.cbecal.org/about/mission.shtml (last visited July 24, 2005).

(84) The Environmental Health Coalition defines itself as "dedicated to achieving environmental and social justice" and as a group that "organize[s] and advocate[s] to protect public health and the environment threatened by toxic pollution." See Environmental Health Coalition, Mission Statement, at http://www.environmentalhealth.org/ about.html (last visited July 24, 2005).

(85) See Langbein & Kerwin, supra note 11, at 619 ("Reg neg participants report spending significantly more than conventional participants in terms of professional staff hours"); ADMINISTRATNE CONFERENCE OF THE U.S., NEGOTIATED RULEMAKING SOURCEBOOK 5 (1995) ("Negotiated rulemaking can be resource-intensive in the short term for both the agency and the other affected interests.") [hereinafter NEGOTIATED RULEMAKING SOURCEBOOK]; Mark Seidenfield, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 WM. & MARY L. REV. 411, 457 (2000) (noting that negotiated rulemaking is intensive and requires "a concentrated devotion of resources by the agency and private negotiation participants"); Coglianese, Assessing the Advocacy, supra note 7, at 398 ("[W]hatever one makes of the duration of rules from start to finish, the overall investment of staff time and effort by agencies and outside organizations remains indisputably greater for negotiated rulemaking.").

(86) Interview with Bahram Fazeli, Staff Researcher, Communities for a Better Environment, in Huntington Park, Cal. (May 27, 2003).

(87) The best general source is The NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85.

(88) Another description is found in Lawrence Susskind & Gerard McMahon, The Theory and Practice of Negotiated Rulemaking, 3 YALE J. ON REG. 133, 150-51 (1985).

(89) NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 123-24, 125-27.

(90) Id. at 128-30.

(91) Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969 (codified as amended at 5 U.S.C. [section] 561-570 (2000)).

(92) Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, [section] 11 (a), 110 Stat. 3870, 3873. See Charles Pou, Jr., Federal ADR and Negotiated Rulemaking Acts Receive Permanent Reauthorization, 22 ADMIN. & REG. L. NEWS 4 (Winter 1997) (providing a summary of the statute's reauthorization and its provisions).

(93) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). See Bradley C. Karkkainen, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 486-87 (2004) (observing that negotiated rulemaking is an "alternative, consensual or consent-based procedure[] for arriving at conventionally 'hard'--that is, fixed, definite, formal, ultimately coercive, enforceable and enforced--regulatory rules").

(94) NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 214.

(95) Id.

(96) Id. at 8.

(97) Id. at 214.

(98) Id. at 229.

(99) Id. at 68.

(100) DANIEL P. SELMI, SOUTH COAST AIR QUALITY MGMT. DIST., EVALUATION OF NEGOTIATED RULEMAKING AT THE SOUTH COAST AIR QUALITY MGMT. DIST. CONCERNING EMISSIONS FROM CHROME PLATING AND CHROMIC ACID ANODIZING 21 (June 20, 2003) [hereinafter EVALUATION OF NEGOTIATED RULEMAKING], available at http://www.aqmd, gov/hb/attachments/ 2003/030721lb.doc.

(101) OFFICE OF ENGINEERING AND COMPLIANCE, supra note 24, at 6 (stating that "the observed emission reduction efficiencies generally ranged from 99.7% to 99.9% when compared with tanks operating without the use of chemical surfactants').

(102) See Beverly A. Graves, Large Plating Job Shop Survey, PF ONLINE, at www.pfonline.com/articles/110301.html (last visited July 24, 2005) (stating "It seems the question this year is 'how do we keep from losing business to China and other foreign competitors?" and noting that "[a]ccording to the survey, 74% [of plating businesses] say they are losing or have lost business to China").

(103) See, e.g., Rose Simone, Soaring Loonie Hits Local Firms Hard; Region's Export-Reliant Companies Forced to Sharply Reduce Costs, KETCHENER RECORD, Oct. 12, 2004, at A1, 2004 WLNR 6208422 (recounting challenges faced by a Canadian chrome plating company).

(104) See, e.g., Steve LaRue, Carcinogen Detected in Air in Barrio Logan, SAN DINGO UNION/TRIB., Feb. 1, 2002, at B3, 2002 WL 4583345 ("State air pollution investigators have found very high levels of an extremely dangerous cancer-causing air pollutant--hexavalent chromium--in the Newton Avenue area of Barrio Logan near two chome-plating businesses."); Luis Monteagudo, Jr., Judge Orders Company to Suspend Chrome Plating, SAN DINGO UNION/TRIB., Mar. 26, 2002, at 1, 2002 WL 4593033 ("County environmental officials won a partial victory yesterday in their effort to close a metal-plating business they say is emitting toxic chemicals into the air in Barrio Logan.").

(105) Luis Monteagudo, Jr., Metal-Plating Plant in Barrio Logan to Close, SAN DIEGO UNION/TRIB., Sept. 13, 2002, at 1, 2002 WL 100343200; COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH, MASTER PLATING UPDATE (Nov. 1, 2002) ("Master Plating has stopped operating....").

(106) Soe, e.g., AIR QUALITY AT MEMORIAL ACADEMY CHARTER SCHOOL IN BARRIO LOGAN, A NEIGHBORHOOD COMMNUNITY IN SAN DIEGO, http://www.arb.ca.gov/ch/aq_result/ barriologan/bl_public_report_07_02_final.pdf (reporting results of local monitoring).

(107) See CAL. DEPT. OF HEALTH SERVS., HEALTH ASSESSMENT ACTIVITIES AND RESULTS NEAR CHROME CRANKSHAFT AND J&S CHROME PLATING (Jan. 2003) (describing the investigation results).

(108) For example, at one point when the parties were engaged in detailed discussions in the Issues Resolution Subcommittee, one of the two environmental representatives rebutted the industry's argument that fume suppressants should be sufficient: "I respect your opinion, but our experience with other metal platers, Barrio Logan, Suva, etc.--we've seen enough bad examples that we think that there are many like them." Daniel P. Selmi, Author's Notes, Issues Resolution Subcommittee Meeting (Nov. 7, 2002) (on file with author). The industry, in turn, responded that such failures were "an enforcement issue," not a reason to change the substantive components of the rule. Id.

(109) Id. ("[O]ur experience with other metal platers--Barrio Logan, Suva, etc.--we've seen enough bad examples that we think there are many like them.").

(110) Daniel P. Selmi, Author's Notes, Working Group Meeting #4 (June 25, 2004) (on file with author) (one environmentalist representative noted that he was "concerned about the efficiency of fume suppressants.").

(111) South Coast Air Quality Mgmt. Dist., Minutes of Working Group Meeting # 7 (Aug. 29, 2002) (on file with author) ("An environmental representative suggested that community health is the top priority. And even though most operators are conscientious and normally in compliance, if it takes add-on controls to assure community health, then so be it.").

(112) See supra text and accompanying notes 43-52 (describing the District's adoption of Rule 1169).

(113) SOUTH COAST AIR QUALITY MGMT. DIST., AN AIR TOXICS CONTROL PLAN FOR THE NEXT 10 YEARS, supra note 52.

(114) See id. at 33, Measure AT-STA-01 (relating to controls of "Chrome Plating and Anodizing" and "Nickel Plating operations").

(115) SOUTH COAST AIR QUALITY MGMT. DIST., MULTIPLE AIR TOXICS EXPOSURE STUDY--II FINAL REPORT (Mar. 17, 2000), http://www.aqmd.gov/matesiidf/es.pdf.

(116) Id. at ES-3.

(117) News Release, AQMD Board Adopts Environmental Justice Initiatives, SOUTH COAST AIR QUALITY MGMT. DIST. (Oct. 10, 1997), at http://www.aqmd.gov/news/envjust1.htm (last visited July 24, 2005).

(118) Id. at 1-2 (listing the ten initiatives adopted by the Board).

(119) The Center is now known as the Center for Collaborative Policy. See Center for Collaborative Policy, at http://www.csns.edu/ccp (last visited July 24, 2005).

(120) See South Coast Air Quality Mgmt. Dist., PowerPoint Presentation, supra note 41 (naming Greg Bourne, whose affiliations were known to the author, as facilitator).

(121) See SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-6 ("PAR 1469 will establish more stringent requirements for chrome plating and chromic acid anodizing.").

(122) South Coast Air Quality Mgmt. Dist. Rule 1469(f) (2003), available at http://www.aqmd.gov/rules/reg/reg14/r1469.pdf.

(123) Id. at 1469 (c)(9).

(124) SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-6.

(125) Rule 1469, supra note 122, at (d)(1)(C).

(126) Id. at (c)(5).

(127) SCAQMD, FINAL STAFF REPORT, supra note 25, at 4-1.

(128) Southern California Air District Adopts Strictest Rule on Hexavalent Chromium, DAILY ENVTL. REP., May 5, 2003, at A-11.

(129) See supra notes 101-111 and accompanying text (describing the perspectives of the two groups).

(130) At the third meeting, for example, one of the principal industry negotiators declared that, up until that point, "It's not a negotiation, it's just laid on our plates." Daniel P. Selmi, Author's Notes, Working Group Meeting #3 (June 6, 2002) (on file with author).

(131) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 19.

(132) Id.

(133) In negotiation terms, the industry concluded that its "Best Available Alternative to a Negotiated Agreement" ("BATNA") was probably going to be litigation, something this industry had not undertaken before. See, e.g., RoY J. LEWICKI ET AL., NEGOTIATION 29 (4th ed. 2003) (discussing BATNAs); Henry H. Perritt, Jr., Negotiated Rulemaking Before Federal Agencies: Evaluation of Recommendations by the Administrative Conference of the United States, 74 GEO. L.J. 1625, 1637 (1986) ("This model suggests that regulatory negotiations are most likely to be successful when the agency (or some other credible source) persuades each potential participant that unilateral agency action has undesirable consequences for that participant. Lower BATNAs mean greater incentives to negotiate a solution.").

(134) Motivations of this type have been cited before as impelling parties to participate in negotiated rulemakings. See Daniel J. Fiorino & Chris Kirtz, Breaking. Down Walls: Negotiated Rulemaking at EPA, 4 TEMP. ENVTL. L. & TECH. J. 29, 39 (1985) ("Representatives [of participants] were motivated to participate by their very strong impression that EPA was committed to revising the emergency exemption rule.").

(135) See Susan Rose-Ackerman, Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation, 43 DUKE L.J. 1206, 1209 (1994) ("One way to encourage agreement is for the agency to announce what it will decide if the negotiation fails.") Here, the District's rulemaking proceeding in essence made such an announcement.

(136) Interview with Harry Levy, President, Gene's Plating Works, in Los Angeles, Cal. (Mar. 15, 2003) (on file with author) (There was an "implied threat from the state to do something" and the industry "had a better chance here" with the District, and since the State participated in the Negotiated Rulemaking, there was a good chance the State would support the rule and not go beyond the AQMD.).

(137) Similar strategic motives may motivate industry to participate in negotiated rulemakings at the federal level. See Seidenfield, supra note 85, at 455 ("The woodstove manufacturers did not want regulation, but preferred uniform federal regulation to the potentially conflicting regulations states might otherwise impose.").

(138) See supra notes 49-51 and accompanying text (describing the risk assessments).

(139) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 49. In addition a Technical Subcommittee met several times and a Pollution Prevention Subcommittee met on two occasions. Id. at 49-50.

(140) Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL. L.J. 32, 53 (2000) ("Undoubtedly the prime benefit of direct negotiations is that it enables the participants to focus squarely on their respective interests.") (citing to Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1 (1982)).

(141) See Sen. Charles E. Grassley & Charles Pou, Jr., Congress, The Executive Branch, and the Dispute Resolution Process, 1992 J. DISP. RESOL. 1, 19 (1992) (noting that negotiated rulemaking "encourages [parties] to set their own priorities among the issues to be considered and to make tradeoffs among them").

(142) AQMD METAL FINISHING NEGOTIATED RULEMAKING, SUMMARY OF KEY INTERESTS (Sept. 18, 2002).

(143) Gregory Bourne, Summary of Working Group Meeting #6, at 2 (Aug. 8, 2002) (on file with author).

(144) AQMD METAL FINISHING NEGOTIATED RULEMAKING, supra note 142, at 1.

(145) Daniel P. Selmi, Author's Notes, Working Group Meeting #8 (Sept. 19, 2002) (on file with author).

(146) Id.

(147) Gregory Bourne, Summary of Meeting #9, at 3 Oct. 24, 2002) (on file with author).

(148) One of the two principal environmental representatives cited the model as playing a crucial role. Interview with Bahram Fazelli, supra note 86.

(149) Daniel P. Selmi, Author's Notes, Issues Resolution Subcommittee Meeting (Nov. 5, 2002) (on file with author).

(150) Id.

(151) Interview with Gregory Bourne, California Center for Public Dispute Resolution (June 5, 2003) (on file with author).

(152) See infra text accompanying notes 208-08 (describing the work of the subcommittee).

(153) See, e.g., Charles C. Caldart & Nicholas A. Ashford, Negotiation as a Means of Developing and Implementing Environmental and Occupational Health and Safety Policy, 23 HARV. ENVTL. L. REV. 141, 146 (1999) (suggesting that face-to-face bargaining has "the potential that creative solutions to difficult issues may be found as differences are understood and addressed," and that "[s]uch a result might come ... through the identification of opportunities for innovative technological responses within the regulated community"); Seidenfield, supra note 85, at 452 ("Intense negotiation with others who do not share one's perspective ... can foster path-breaking solutions.").

(154) South Coast Air Quality Mgmt. Dist., Agenda No. 34, Bd Meeting Date May 2, 2003, supra note 64, at 5 ("The proposed amendments set general requirements for all facilities and more stringent requirements for facilities for which the nearest residence or sensitive receptor is within 25 meters or for which the nearest school is within 100 meters....").

(155) South Coast Air Quality Mgmt. Dist., Rule 1469 [section] (d)(2)(A) ("[A] facility located 25 meters or leas from a sensitive receptor or a residence, or located 100 meters or less from an existing ... school (kindergarten through grade 12) may elect to submit an Emission Reduction Plan ... demonstrating "that facility-wide hexavalent chromium emissions result in a cancer risk of < 10 in a million....").

(156) See ld. [section] (c)(8) (requiring such facilities to meet an emission limitation of 0.0015 milligrams or less per ampere-hour for each tank). Smaller facilities were subject to a less stringent level of regulation. See id. [section] (c)(9)(A)(i) (requiring 0.01 milligrams or less per ampere-hour for each tank when actual consumption of electrical current used by the facility for electroplating or anodizing tanks is less than a threshold set forth in the rule).

(157) Id. [section] (d)(5)(B).

(158) Id. [section] (d)(5)(F)(i).

(159) Id. [section] (d)(5)(F)(ii).

(160) See id. [section] (d)(1)(C) (stating such a facility "shall comply with enforceable conditions to ensure that controls result in a cancer risk of less than 25 in a million for facilities located more than 25 meters from a sensitive receptor or a residence").

(161) See id. [section] (d)(5)(F)(ii)(II) ("exceeding the ampere-hour limit ... by 135,000 ampere-hours per year, or less" is an "emission-related exceedance," i.e. a strike).

(162) Gregory Bourne, Minutes of Working Group Meeting #11, at 5 (Feb. 4, 2003) (on file with author); Email from C. Zapfel to W. Wong et al. (Feb. 6, 2003) (recounting the District originally thought that 3 facilities were located within 100 meters from a school, but after further review the staff concluded that the third of these facilities was already within 25 meters of a sensitive receptor, and thus included in the previous rule proposal) (on file with author).

(163) Email from Greg Bourne to Members of Issues Resolution Subcommittee (Jan. 24, 2003) (on file with author).

(164) Id.

(165) See NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 229 ("The committee may prefer to have members sign a statement agreeing not to oppose the rule....").

(166) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 7.

(167) See supra text accompanying note 65 (describing the District's willingness to forgo nickel plating regulation in favor of chrome plating regulation).

(168) See SCAQMD, FINAL STAFF REPORT, supra note 25, at 1-6 (requiring reporting of data by those who perform electroplating of nickel, cadmium, lead, or copper).

(169) See, e.g., Coglianese, Assessing the Advocacy, supra note 7 (discussing several of these features).

(170) See Lobel, supra note 3, at, 373 ("Administrative law was developed under the idea that the regulatory policymaking powers of administrative agencies are based on their superior knowledge, information, and expertise."); Vice President Al Gore, Improving Regulatory Systems, Accompanying Report of the National Performance Review 29 (1993); see also Keith Werhan, Delegalizing Administrative Law, 1996 U. ILL. L. REV. 423, 433 (1996) ("As described by the NPR [National Performance Review], the traditional model relies on 'agency experts' to decide 'the best way to regulate,' then to provide 'the public an opportunity to comment on the agency's proposed rule or to object to its adoption,' and finally to issue 'binding rules telling regulated entities what to do.'").

(171) Richard B. Stewart, The Reformation of Administrative Law, 88 HARV. L. REV. 1669, 1684 (1975) ("Once the function of agencies is conceptualized as adjusting competing private interests in light of their configuration in a given factual situation and the policies reflected in relevant statutes, it is not possible to legitimate agency actions by ... the 'expertise' model of the New Deal period.").

(172) Cary Coglianese & Gary C. Marchant, Shifting Sands: The Limits of Science in Setting Risk Standards, 152 U. PA. L. REV. 1255, 1355 (2004) ("[E]ven those who favor greater involvement by the President or Congress in regulatory decision making acknowledge a need for relying on agency expertise, particularly on scientific questions.").

(173) See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 641 (2000) ("Agencies lack important information about industrial practices. Government officials can only speculate about how regulations might impact individual businesses or entire industries, let alone consumers."); Cary Coglianese et al., Seeking Truth for Power: Informational Strategy and Regulatory Policymaking, 89 MINN. L. REV. 277, 278 (2004) ("Government regulators are usually poorly positioned to gather information about business operations, or at least to gather it cheaply.").

(174) NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 2 (observing that parties in rulemakings tend to take extreme positions and to withhold information potentially damaging to them); Robert Choo, Judicial Review of Negotiated Rulemaking: Should Chevron Deference Apply?, 52 RUTGERS L. REV. 1069, 1078 (2000) (observing that industry will withhold information, among other methods, to force delays or alterations in agency plans).

(175) Frances L. Edwards, Worker Right-to-Know Laws: Ineffectiveness of Current Policy-Making and a Proposed Legislative Solution, 15 B.C. ENVTL. AFF. L. REV. 1, 16 (1987) ("Requiring companies to divulge information regarding processes and chemical ingredients runs the risk that competitors will appropriate valuable trade secrets.").

(176) See McCloskey, supra note 3, at 426 (noting that the ideas of proponents of collaboration between government and regulated entities "suggest an absence of distinctive expertise in both agencies and government and that more expertise resides in casually assembled groups of stakeholders").

(177) See, e.g., Mashaw, supra note 13, at 211 ("A constant complaint in regulatory agencies is the failure of the research arm of the agency to provide information that is directly relevant and useful for the rulemaking branch."); see also id. at 212 ("Inadequate procedures for the compilation of needed information has also been identified as a major procedural flaw in some agency's rulemaking processes.").

(178) See, e.g., Freedom of Information Act, 5 U.S.C. [section] 552 (2000) (allowing members of the public to obtain records of federal and state agencies); Public Information Act, TEX. GOV'T CODE ANN. [subsection] 552.001-552.353 (Vernon 2004) (Texas analogue to federal act); Freedom of Information Act, MICH. COMP. LAWS [section] 15.231-15.246 (2001) (Michigan analogue to federal act); Freedom of Information Act, 5 Ill. COMP. SWAT. 140/1-140/11 (West 1993) (Illinois analogue to federal act).

(179) See FLA. SWAT. ANN. [section] 120.54(2)(c) (West 2004) ("When a workshop or public hearing is held, the agency must ensure that the persons responsible for preparing the proposed rule are available to explain the agency's proposal and to respond to questions or comments regarding the rule being developed."); WIS. STAT. ANN. [section] 227.19(3)(b) (West 2004) (requiring that analysis shall include "[a]n explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing").

(180) Coglianese, Assessing the Advocacy, supranote 7.

   The choice for agencies is not between developing rules through
   negotiated rulemaking and developing rules inside a closet.
   Agencies can, and regularly do, engage the interests affected by
   rules through individual and collective forms of dialogue. These
   alternative forms of deliberation, be they individual meetings,
   public workshops, or formal advocacy committees, provide the
   agency with the same kinds of opportunities for public input into
   regulatory decision making as negotiated rulemaking.

Id. at 442 (citations omitted).

(181) See Patricia M. Wald, Negotiation of Environmental Disputes: A New Role for the Courts?, 10 COLUM. J. ENVTL. L. 1, 17 (1985) (arguing that the normal rulemaking process is adversarial in nature, thereby inviting parties to take extreme positions and leaving the agency presented with polar views); Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U. L. REV. 21, 91 (2001) (arguing polarized views "not only ... make it more difficult for EPA to determine what stakeholders' true positions are, but it leads to the withholding of information which might be useful to EPA in drafting a workable and appropriate rule"). Some have argued the rulemaking outcome in such adversarial situations is simply bad. See, e.g., Frank B. Cross, Pragmatic Pathologies of Judicial Review of Administrative Rulemaking, 78 N.C. L. REV. 1013, 1048 (2000) ("Agency-forcing judicial decisions, driven by extreme litigation positions and unrepresentative circumstances, tend to produce particularly extreme standards.").

(182) However, some have noted that the differences are not all that great.

   [I]n an attempt to show that reg neg was not a dramatic departure
   from traditional rulemaking, proponents pointed out that informal
   negotiation with stakeholders has always been an essential part of
   the rulemaking process. Negotiated rulemaking merely formalizes
   negotiation and utilizes it earlier in the rulemaking process, when
   it is likely to be most useful.

Freeman & Langbein, supra note 11, at 10,816.

(183) See Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 6 (1996) (suggesting that "binary, oppositional presentations of facts in dispute are not the best way for us to learn the truth; polarized debate distorts the truth, leaves out important information, simplifies complexity, and obfuscates rather than clarifies") (citations omitted).

(184) Susan Rose-Ackerman, Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation, 43 DUKE L.J. 1206, 1209 (1994) ("Negotiation is not effective when technical information is needed to resolve factual disputes.").

(185) PROGRAM EVALUATION DIVISION, ENVTL. PROT. AGENCY, AN ASSESSMENT OF EPA'S NEGOTIATED RULEMAKING ACTIVITIES 12 (Dec. 1987) (arguing negotiated rulemaking is not necessarily the best way to obtain data), reprinted in NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 34 (1995).

(186) Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U. PITT. L. REV. 589, 641 (2002) (summarizing the criticism).

(187) NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 4.

(188) But see Ellen Siegler, Regulatory Negotiations and Other Rulemaking Processes: Strengths and Weaknesses From an Industry Viewpoint, 46 DUKE L.J. 1429, 1435 (1997) (observing that in a negotiation over a Clean Air Act regulation the petroleum trade association "had to educate other participants, some of whom had interests adverse to API's, about the production and distribution of motor vehicle fuels" and noting the costs associated with these efforts).

(189) The procedure for data exchange in the metal finishing negotiations was quite casual. See, e.g., Fax from M. Dean High, Senior Vice President, Pacific Environmental Services, Inc. to Jill Whynot, South Coast Air Quality Mgmt. Dist. (Aug. 14, 2002) ("Would you ask someone ... to send me the calculations for Table 3 colum [sic] 4 of [the] 8/8/02 handout. Also give me an example calculation for the EF [Emission Factor] for "surface tension correlation for nickel electro-plating" on P-4. Thanks.") (on file with author).

(190) For example, the Negotiated Rulemaking Act lists, as one of the factors to be considered in the determination of whether an agency should undertake a regulatory negotiation, a "reasonable likelihood" that representatives of such interests will negotiate in good faith. 5 U.S.C. [section] 563(a)(3)(b) (West 2004); Philip J. Harter, Fear of Commitment: An Affliction of Adolescents, 46 DUKE L.J. 1389, 1409 (1997) (noting regulatory negotiation requires participants to deal in good faith).

(191) See Coglianese, Assessing Consensus, supra note 7, at 1331 (arguing that agencies "us[e] less intensive methods of negotiation and public input in the context of conventional rulemaking" to "provide agencies with information about technical aspects of regulation as well as the interests of affected parties"). In the case of the metal finishing negotiations, the level of informational dialogue--and "back and forth" among the industry and the agency--was much higher than would otherwise be the ease in a rulemaking. See also Coglianese, Assessing the Advocacy, supra note 7, at 429 (stating that "alternative methods of public participation can provide agencies with the same 'practical insight and expertise,' and other alleged benefits of negotiated rulemaking...").

(192) This is especially true of the Technical Subcommittee meetings:

   The Metal Finisher's Association is working to respond to several
   previous data requests from AQMD staff. They completed surveys on
   fume suppressants and a summary sheet was distributed.... AQMD staff
   requested more detailed information so staff can separate the price
   and usage for diluted and concentrated solutions and ... better
   understand which fume suppressants are used for different
   operations.

South Coast Air Quality Mgmt. Dist., Minutes, Technical Subcommittee Meeting of the Metal Finishing Working Group 2 (July 31, 2002).

[T]he following information requests were identified to District staff as important for the Nov. 7, 2002 meeting ...:

1. Develop worker receptor charts using actual number of facilities instead of percentages.

2. Develop risk receptor charts for residence locations up to 100 meters.

3. Develop risk receptor charts for universe of companies by: only control equipment; only fume suppressant; both control and fume suppressants (reflect both the environmental proposal and industry proposal).

E-mail from Chris Abe, South Coast Air Quality Mgmt. Dist., to Greg Bourne et al. (Nov. 5, 2002) (on file with author).

(193) Harry Levy, supra note 136 (observing that the District staff "could have been more forthcoming" with documents).

(194) See Gregory Bourne, Summary of Working Group Meeting No. 3 (June 6, 2002). The summary indicates that the District's Planning and Rules Manager was discussing a "Yellow Pages" survey. This was a survey of calls to metal plating companies listed in the yellow pages, which industry had suggested as a means of locating unpermitted companies. The summary states: "[A]bout 400 companies were identified, with about 50 of those companies permitted, but not in the database staff had used for the industry characterization. Phone calls were made to 130 of these facilities.... Additional follow up will be conducted." Id. at 3.

(195) Daniel P. Selmi, Author's Notes, Meeting of Issues Resolution Subcommittee Meeting (Nov. 7, 2002) (on file with author).

(196) Interview with Jill Whynot, Planning and Rules Manager, South Coast Air Quality Mgmt. Dist., in Diamond Bar, Cal. (May 27, 2003) (on file with author).

(197) SCAQMD, FINAL STAFF REPORT, supra note 25, at 2-9.

(198) Id. at 2-10.

(199) See, e.g., Gregory Bourne, Summary of Working Group Meeting #6, at 5 (Aug. 8, 2002) (on file with author) ("It was noted that industry is troubled by different departments within AQMD using different emission factors. This makes it difficult on industry to know what to expect and how to plan. Furthermore, it is important for industry to know that these values are not going to change regularly."); Letter from M. Dean High, Senior Vice President, Pacific Environmental Services, Inc. to Ms. Jill Whynot, Planning and Rules Manager, AQMD 1 (Aug. 13, 2002) (on file with author) ("We are pleased to see that SCAQMD is putting together an emission factor document for metal finishing processes. The need for such a document is evidenced by the fact that three units of SCAQMD are currently using different emission factors for chrome plating and chromic acid anodizing processes.").

(200) SCAQMD, FINAL STAFF REPORT, supra note 25, at 2-10.

(201) Id.

(202) See South Coast Air Quality Mgmt. Dist., Working Group Technical Subcommittee, Draft Summary of Chrome Plating and Chromic Add Anodizing Facility Annual Ampere-Hours (Sept. 5, 2002) (on file with author) (noting that many of the estimated 19 facilities with electricity consumption greater than 1,800,000 ampere-hours already may operate tanks equipped with HEPA).

(203) Gregory Bourne, Summary of Working Group Meeting #4, at 7 (June 25, 2002) ("An industry representative noted the estimated contribution of chrome to the environment from the metal plating industry had been reduced from 150 to 70 lbs/year as a result of more detailed analyses conducted as a part of this process.").

(204) "A representative of industry commented that he felt the first meeting of the [Technical] Subcommittee was one of the best meetings he had attended on the resolution of substantive issues, and was the beginning of an effective dialogue to resolve remaining technical issues." Id. at 2.

(205) See NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 230 ("Negotiations that do not end in consensus may nonetheless provide the agency with invaluable information about the parties and the issues.... Agencies that have had negotiations end short of consensus have reported that the additional knowledge gained during the negotiations made the process worthwhile.").

(206) Langbein & Kerwin, supranote 11, at 605.

(207) Coglianese, Assessing Consensus, supra note 7, at 1322 ("[T]here is good reason to think that negotiated rulemaking does create additional conflicts in the administrative process...."); Id. at 1326-1327 ("When groups invest ... additional resources in negotiation, their representatives presumably also learn more about how aspects of the rule may adversely affect their group interests. Groups may also find that the more time they invest in a rulemaking proceeding, the less willing they are to overlook imperfections in the rule.").

(208) Seidenfield, supra note 85, at 448.

(209) See Freeman & Langbein, supra note 11, at 64 (noting that the earlier study by Langbein and Kerwin, supra note 11, "do[es] not identify the precise causal pathway by which regulatory negotiation produces the legitimacy benefit").

(210) See Matthew Patrick Clagett, Environmental ADR and Negotiated Rule and Policy Making: Criticisms of the Institute for Environmental Conflict Resolution and the Environmental Protection Agency, 15 TUL. ENVTL. L.J. 409, 422 (2002) ("Environmental ADR ... has been subjected to criticism surrounding the subject's political legitimacy. Opponents of ADR have asserted that it tends to favor the party with more resources."); Langbein & Kerwin, supra note 11, at 619 (High costs "can be a source of power asymmetry between large and small regulated businesses and also between businesses and public interest group participants in negotiation sessions."); Alan W. Strasser, Community-Based Advisory Groups: How Confusion Over Neutrality, Sponsorship and Legal Impact Can Tar Them, DISP. RESOL. MAG., Winter 2005, at 25 ("[C]ommunity groups believe they participate in the CAP [Community Advisory Group] process at a great disadvantage due to their lack of resources or expertise.").

(211) The negotiations here comport with the conclusion in Freeman & Langbein, supra note 11, at 10811 ("Smaller, poorer groups also reported suffering from resource deficits as compared to their larger, richer negotiating partners.").

(212) Brett A. Williams, Consensual Approaches to Resolving Public Policy Disputes, 2000 J. DISP. RESOL 135, 147 (2000) ("Some commentators believe that dispute resolution in the environmental context may not serve environmental interests if too much influence is placed in the hands of opposing interests.").

(213) There is precedent for the agency in a negotiated rulemaking to make resources available to parties. See Fiorino & Kirtz, supra note 134, at 32 (noting that EPA set aside funds by which "[i]ndividual parties could, through an approval procedure established by the committee, draw upon the resource pool for technical or other support services").

(214) Letter from Bill Powers, P.E., Powers Engineering, to Bahrain Fazeli, Staff Researcher, Communities for a Better Environment 6 (Oct. 23, 2002) (on file with author).

(215) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 45.

(216) Interview with Bahram Fazeli, supranote 86.

(217) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 45.

(218) See Interview with Gregory Bourne, supra note 151 (stating that the environmentalists' expert "acknowledged industry wasn't wrong on every point").

(219) Letter from Bill Powers to Bahram Fazeli, supra note 214, at 8 (alteration in original) (emphasis omitted).

(220) A broader critique of the regulatory process suggests that it suffers from the "pathologies of adversarial legalism" that inhibit solutions. Robert A. Kagan, Adversarial Legalism and American Government, 10J. PUB. POL'Y. ANAL. & MGMT. 369, 384 (1991).

(221) See, e.g., CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE, [section] 4.43 (2002-03 Supp.) (noting that under federal law, "[f]ederal courts continue to apply the "logical outgrowth" test when the final rule deviates from the proposed rule").

(222) The industry's technical expert pointed to this problem, terming it the "time factor." Once a draft is released, there is a relatively short time to affect it, and efforts to get the staff to change its mind have been exhausted. So you have "thirty days to get to the Board members." Interview with M. Dean High, Senior Vice President, Pacific Environmental Services, Inc. (June 9, 2003) (on file with author). In a negotiation, he opined, there are "plenty of opportunities to get points made." Id.

(223) Fiorino & Kirtz, supra note 134, at 39 (noting that "manufacturers' representatives saw negotiation as a way to influence a rule in its formative stages, before the formal Agency position was developed in [a Notice of Proposed Rule Making]").

(224) Caldart & Ashford, supra note 153, at 29. The authors suggest that a negotiated rulemaking may be inadvisable if the rule requires promulgation of an unexpectedly stringent standard. The negotiation is more likely to have success where "desired technological change is likely to come more easily." Id

(225) Clean Air Act, 42 U.S.C. [section] 7604(a) (2000).

(226) Hatter, supra note 1, at 48; J. Gregory Smith, Comment, Alternative Dispute Resolution and the Wetlands Manual Debate.. Could Negotiated Rulemaking Have Avoided the Impasse?, 9 OHIO ST. J. ON DISP. RESOL. 415, 420 (1994) ("Success is not likely in zero sum game situations where a party wins only to the extent another party loses; therefore the dispute must be transformed into a win-win situation.").

(227) In the case of the metal-finishing rule, for example, the District staff member principally charged with negotiating the rule commented after conclusion of negotiations that they got a "strange rule" which the staff itself would not have proposed at the outset. Interview with Jill Whynot, supra note 196.

(228) As the Executive Director of the Metal Finishing Association of Southern California put it, the staff was "more open" and "less territorial--less protective of standards coming in" to the negotiation. Interview with Daniel Cunningham, Executive Director, Metal Finishing Association of Southern California, in Torrance, Cal. (June 5, 2003).

(229) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 46.

(230) See supra text accompanying note 201 (describing industry's complaint that the District had used a shifting set of emissions factors).

(231) Interview with Daniel Cunningham, supra note 228 (noting that the District's involvement of permitting staff was a "huge side benefit of the process" for industry); Interview with M. Dean High, Senior Vice President, Pacific Environmental Services, Inc., supra note 222 (stressing that they "wanted assurance" they would get permitting issues considered "and [they] got it").

(232) Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 41-55 (1997) (arguing negotiation holds great potential for improving the quality of rules by fostering the development of creative and flexible solutions to problems).

(233) See Fiorino & Kirtz, supra note 134, at 40 (noting the benefits of a regulatory negotiation extend into implementation of the rule).

(234) See William Funk, When Smoke Gets in Your Eyes: Regulatory Negotiation and the Public Interest--EPA's Woodstove Standards, 18 ENVTL. L. 55 (1987) (arguing rule produced by regulatory negotiation was not authorized by the Clean Air Act); William Funk, supra note 6, at 1374-75 ("[T]he parties to the negotiation are not serving the law, and the outcome of the negotiation is not legitimized by its service to the law.").

(235) Of course, if the bargainer is a trade association, it presumably must take into account all of its members. See Siegler, supra note 188, at 1431.

   While official representatives [of trade associations] are given
   some latitude, there may be significant limits placed on their
   ability to negotiate because proposals affect competitors within
   the trade association differently. Standards that one company can
   easily achieve (for example, because the company has controls
   already in place as a result of stringent state requirements)
   may be very expensive for another company. In a highly-competitive
   industry where profit margins are low, like the petroleum refining
   industry, these differences can significantly impact a company's
   fortunes.

Id. It is certainly possible, and perhaps likely, that a trade association's views may not fully reflect the entire industry.

(236) In the metal-finishing negotiation, for example, it is unclear whether the interests of the approximately 50% of the plating facilities in Southern California that were not members of the Metal Finishing Association of Southern California at the time of the negotiation were adequately represented.

(237) See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3 (6th ed. 2003) (noting economics assumes "man is a rational maximizer of his ends in life, his satisfactions--what we shall call his 'self-interest'").

(238) Langbein & Kerwin, supra note 11, at 611 ("[W]hen the agency itself is uncertain about who is likely to be hurt by a law, the best way to reduce that uncertainty is to make sure that all parties who are likely to be affected have a hand in writing the rule....") (239) Seidenfield, supra note 85, at 452.

(240) Freeman, supra note 232, at 41-55 (highlighting that regulatory negotiation can foster the development of creative and flexible solutions).

(241) See Sidney A. Shapiro, Administrative Law After the Counter-Reformation: Restoring Faith in Pragmatic Government 48 U. KAN. L. REV. 689, 739 (2000) (pointing out that proponents of what the author terms "the reconciliation," a view of administrative law that relies on cooperation with regulated entities and participatory decisionmaking, argue that "the advantage of consensus, deliberate processes like reg-neg is that they are more likely to produce flexible, sensible solutions to regulatory issues because they can be oriented towards problem-solving").

(242) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 50.

(243) See, e.g., Caldart & Ashford, supra note 153, at 200-01 ("Since negotiated rulemaking seeks consensus among the participants and since such an industry is unlikely to agree to a standard that it views as having a 'dramatic' impact, negotiated rulemaking is unlikely to produce a standard of this nature.").

(244) NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 39; Hatter, supra note 140, at 33-34 ("A senior representative of the agency is a full participant in the negotiations and deliberations of the negotiated rulemaking committee.").

(245) See, e.g., Gregory Bourne, Minutes of Working Group #5 (July 18, 2002) (on file with author) (noting that in response to a dispute over whether the District used the most accurate data in estimating emissions, the District's Executive Officer stated that he "would personally convene a meeting to resolve the internal issues related to this matter."); Interview with Daniel Cunningham, supra note 228 (stating that when the staff would say "no," the Executive Officer would "think outside the box and have authority" to solve problems).

(246) See SCAQMD, FINAL STAFF REPORT, supra note 25, at 2-1 to 2-2:

In October 2002, AQMD compliance personnel visited approximately 130 facilities conducting chromium electroplating and chromic acid anodizing to collect site-specific data (e.g., stack and building height, distances to nearest businesses, residences, and sensitive receptors). The collected data were ultimately used to conduct a refinement to the screening risk assessment....

(247) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 55.

(248) Interview with Harry Levy, supra note 136. Mr. Levy, one of the two chief negotiators for the industry, termed the Executive Officer's involvement "absolutely imperative." Id.

(249) See Coglianese, supra note 7, at 1255-57 (discussing congressional endorsement of federal agency negotiated rulemaking in the 1990s); Harter, supra note 140, at 32 (responding to criticisms levied at effectiveness of federal agency negotiated rulemaking); Perritt, supra note 133, at 1627-29 (discussing the use of recommendations made by the Administrative Conference of the United States on federal agency negotiated rulemaking in the 1980s).

(250) CAL. HEALTH & SAFETY CODE [section] 40420 (West 2004).

(251) de generally Susskind & McMahon, supra note 88, at 153 ("Many of the groups involved in the conventional rulemaking process spend a great deal of their resources trying to influence agency decisionmaking.").

(252) Interview with Bahram Fazeli, supra note 86.

(253) Coglianese, supra note 9, at 1132 (citing to the finding of the Administrative Conference of the United States that regulatory negotiation can improve the timeliness of regulations).

(254) See Coglianese, supra note 7, at 1284 ("The whole of the available evidence on the time span of EPA's negotiated rules markedly contrasts with the claims of considerable time savings attributed to negotiated rulemaking.").

(255) See Freeman & Langbein, supra note 11 at 10,818-10,840 (noting that 18% of participants complained about the time commitment required for participation).

(256) Daniel P. Selmi, Author's Notes, Issues Resolution Subcommittee Meeting (Nov. 7, 2002) (on file with author) (noting that an environmentalist representative would support a delay "if we need more data for better science" and that there is "[n]o rush to wrap up").

(257) See NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 215 ("The 'axiom' that 90% of the progress in a negotiation occurs in the last 10% of the time allotted seems to apply to re-neg. It is important for the negotiations to be driven by a deadline, whether statutory, judicial, or based on the agency's own regulatory agenda.").

(258) See supra text accompanying notes 69-70 (noting that the average industry participant has less than 50 employees).

(259) The Metal Finishing Association of Southern California has more than 200 member companies, at http://www.mfasc.org/index1.htm (last visited July 24, 2005). The National Association of Metal Finishers has 900 members, at http://www.namf.org/ about/index.htm (last visited July 15, 2005).

(260) See generally supra note 84 and accompanying text (noting that the Environmental Health Coalition had also played a leading role in the well publicized incidents of metal finishing pollution in San Diego).

(261) See supra text accompanying notes 213-215 (describing the environmentalists' request for an industry-funded technical expert).

(262) Rosemary O'Leary, Environmental Mediation: What Do We Know and How Do We Know It?, in MEDIATING ENVIRONMENTAL CONFLICTS: THEORY AND PRACTICE 29-30 (J. Walton Blackburn & Willa Marie Bruce eds., 1995).

(263) Freeman & Langbein, supra note 11, at 10,812 (arguing that regulatory negotiation is a superior process for, among other things, building trust among the parties to the negotiation).

(264) South Coast Air Quality Mgmt. Dist., Negotiated Rulemaking: Metal Finishing Draft Organizational Protocols 4 (2002) (on file with author).

(265) Daniel P. Selmi, Author's Notes, Working Group Meeting #1 (Apr. 23, 2002) (on file with author).

(266) EVALUATION OF NEGOTIATED RULEMAKING, supra note 100, at 19-20.

(267) Freeman, supra note 173, at 656 (observing that "before determining whether re-neg is sufficiently accountable, we need to know more" such as "[d]o the parties interact differently when negotiations are formal rather than informal?").

(268) See supra text accompanying notes 122-27 (describing the agreed-upon contents of the rule).

(269) See NEGOTIATED RULEMAKING SOURCEBOOK, supra note 85, at 239 ("[I]n some instances the committee may decide to submit to the agency--or the agency may require--a written summary of the results of the negotiations.").

(270) See Gregory Bourne, Summary of Working Group Meeting #10, at 4 (Dee. 13, 2002) (on file with author):

   A question was also raised as to the amp-hr threshold defining
   small facilities less than 25 meters from a sensitive receptor
   or residence. The response from AQMD was 460,000 amp-hrs. This
   is the maximum operating level allowed to remain under 10 in a
   million risk when using a certified fume suppressant.

(271) SCAQMD, FINAL STAFF REPORT, supra note 25, at 3-5 to 3-6 CA threshold of 460,000 ampere-hours/yr as originally calculated was intended to represent a cancer risk of 10 in a million, for facilities located 25 meters or less from a sensitive receptor or residence, or 100 meters from an existing school. The threshold was subsequently corrected to 365,000 ampere-hours/yr, to reflect the proper lifetime exposure adjustment for residences and sensitive receptors.").

(272) See supra text accompanying note 203 (noting that technical analysis led to a significantly revised estimate of the metal plating industry's total chrome emissions into the environment).

(273) Email from Greg Bourne to Working Group Participants 1 (April 3, 2003) (on file with author).

(274) See supra text accompanying notes 157-162 (describing the agreed-upon "three strikes" provision).

(275) See, e.g., Ex parte Canady, 140 S.W.2d 845, 849 (Tex. Ct. App. 2004) ("We must first define a violation under the code to determine the scope of the statutory bar to further prosecution."); Clark Stone Co., Inc. v. N.C. Dept. of Env. & Natural Res., 594 S.E.2d 832, (N.C. Ct. App. 2004) ("The Mining Act does not expressly define the term 'violation' or specify what actions constitute a violation of the Mining Act. Such ambiguity requires this Court to examine the spirit of the Mining Act and what the legislation seeks to accomplish to determine the meaning [of the statute in question].").

(276) For example, the parties decided that lack of maintenance should not be considered an emission exceedance. However, a distinction should be made between reported and unreported breakdowns. Also, three different violations on the same inspection visit would not constitute "three strikes," because the parties' intent was to give the facility an opportunity to make corrections. Gregory Bourne, Minutes of Working Group Meeting #11, at 2 (Feb. 4, 2003) (on file with author).

(277) For example, the length of any "grace period" after adoption of rule amendments was left to future determination, as was the penalty for "egregious" shortcomings in recordkeeping. The District would define "egregious" in the implementation process. Id.

(278) Daniel P. Selmi, Author's Notes, Issues Resolution Subcommittee Meeting 1-2 (Jan. 17, 2003) 1-2 (on file with author).

(279) Funk, supra note 6, at 1371 (noting that "[i]n the early days of negotiated rulemaking considerable attention was given to assure that the process could be carried out without violating any laws" and concluding that "practice and theory converged on the solution that regulatory negotiation would precede any notice of proposed rulemaking").

(280) For example, by the time of the fourth meeting of the negotiating committee, District staff also presented an outline of amendments to the rule that the District staff intended to propose. See Gregory Bourne, Summary of Meeting #4, at 5 (June 25, 2002) (on file with author) (noting that staff presented "several possible concepts to guide rulemaking").

(281) Werhan, supra note 170, at 436 ("By establishing such a [negotiated rulemaking] process, the agency relinquishes its role as primary regulatory decisionmaker.").

(282) See, e.g., McCloskey, supra note 3, at 434 ("Turning over the power of government to collaboratives is misguided and a departure from democratic ideals."); Spence & Gopalakrishman, supra note 2, at 648 (those who oppose collaborative regulatory reform argue that stakeholder bargaining "is an abdication of authority by agencies and therefore contrary to the fundamental underpinnings of our system of administrative law").

(283) Funk, supra note 6, at 1376 ("Nor is the agency merely an enforcer of private agreements. Rather the agency is the authority for and empowered to achieve the statutory design.").

(284) Id at 1384.

(285) Werhan, supra note 170, at 425 ("These reforms [including increased use of negotiation] threaten the rule-of-law dimension of the traditional model that ultimately legitimizes the administrative state in American society.").

(286) See id. at 437 ("The agency and regulated entities stand on equal footing and work together to develop regulatory policy.").

(287) See Spence & Gopalakirshnan, supra note 2, at 649 (arguing that, in the context of negotiated rule-makings, EPA has "retain[ed] ultimate policymaking authority and has not been hesitant to use that authority irrespective of the wishes of industry and environmental stakeholders alike").

(288) See, e.g., Robert Choo, Judicial Review of Negotiated Rulemaking: Should Chevron Deference Apply?, 52 RUTGERS L. REV. 1069, 1079 (2000) ("Absent such willingness on the part of the agency to divulge what its fallback position will be should the negotiations fail, negotiations are likely to prove unproductive, as the parties will be unwilling to back away from extreme negotiating positions and engage in meaningful compromise."); Harter, supra note 190, at 1409 (noting that if the agency takes no position, the parties "are not likely to reach any agreement--they will talk and talk, but not converge"); Lynn Sylvester & Ira B. Lobel, The Perfect Storm: Anatomy of a Failed Regulatory Negotiation, 59 J. DISP. RESOL. 44, 50 (May-July 2004) ("Knowing what an agency might do in the absence of consensus can help a reg-neg committee, especially one that has groups with strong opposing interests. It serves as a reality check that can guide the choices committee members make.").

(289) Werhan, supra note 170, at 462 ("The attraction of negotiated rulemaking and alternative dispute resolution is not only their informality, but also their removal of the agency as the authoritative decisionmaker.").

(290) Harter, supra note 140, at 38-39 (noting agencies have used regulatory negotiation "to help resolve particularly difficult, contentions issues that have eluded closure by means of traditional rulemaking procedures").

(291) Freeman & Langbein, supra note 11, at 10,812 ("[T]he prevailing view [is] that the process is best used sparingly, and even then, only for narrow questions of implementation.").

(292) PROGRAM EVALUATION DIVISION, supra note 185, at 12 (noting consensus is most likely when a negotiation "does not involve any extremely controversial national policy" and "[t[he policy implications of the issues to be resolved are more-or-less limited").

(293) The key industry and environmental representatives seemed to agree on this point. The environmental representative stated that negotiation would work if the issue was "very technical." Interview with Bahrain Fazeli, supra note 86. The head of the industry trade group thought that "controversial rules" can be good candidates. Interview with Daniel Cunningham, supra note 228.

(294) Coglianese, supra note 9, at 1116 (noting empirical analysis of administrative law seeks to determine whether measured outcomes vary depending on which procedure is used, an aim "accomplished by comparing the observed outcomes with estimates of the counterfactual, or what would have happened in the absence of the regulatory procedure being tested").

(295) See, e.g., Conference, Harvard Electricity Policy Group: Regulatory Decisionmaking Reform, 8 ADMIN. L.J. AM. U. 789, 875 (1994) (noting a suggestion by a participant that negotiated rulemaking is "the policymaking idea of the 21st Century").

(296) See, e.g., Hatter, supra note 1, at 7 (suggesting that negotiated rulemaking is a cure for the "malaise" of administrative law).

(297) For example, the Negotiated Rulemaking Act specifically directs agencies to consider whether the rule affects only "a limited number of identifiable interests." 5 U.S.C. [section] 563(a)(2) (West 2004).

(298) As Judge Wald put it: "I ... reject the premise that the game is not worth playing if it doesn't produce dramatic improvements fast. As any parent knows, we must not be too impatient with the rate of an adolescent's progress, so long as he is progressing" Patricia M. Wald, ADR and the Courts: An Update, 46 DUKE L.J. 1445, 1459 (1997).

(299) Caldart & Ashford, supra note 153, at 199 ("Negotiation should hardly be viewed as a panacea for the various difficulties that typically confront the policy-maker. Used in the right context, however, negotiation can be a useful tool....").

DANIEL P. SELMI, Professor of Law, Loyola Law School, Los Angeles, California. The author would like to thank Gregory Bourne, the facilitator of the negotiated rulemaking, and Jill Whynot of the South Coast Air Quality Management District for reading and commenting on a draft of the article. The author also thanks Brian Ewing for his research assistance. In the Interests of disclosure, the author notes that he has acted as a counsel to the District on matters of litigation prior to the negotiated rulemaking discussed in this article. He was chosen to evaluate the negotiations in part because of his familiarity with the District's rulemaking process.