Regulatory Negotiation as a Form of Public Participation

DOI: 10.1007/978-94-011-0131-8_12

ABSTRACT The growth of administrative power in the first two-thirds of this century posed a dilemma for democratic societies: How do
they reconcile democratic process with the powers invested in non-elected administrative officials? A resort to administrative
power to deal with the complex issues of modern society was almost inevitable. Legislatures simply lacked the capacity to
develop the necessary technical expertise, establish the needed administrative routines, and concentrate the required attention
on the narrow sets of issues that twentieth-century governments had to address — whether it was financial markets, food and
drug safety, transportation, energy or environmental quality. Administrative agencies were an answer to one set of questions
— of how to organize government to deal with the demands of modern society — but they raised an entirely new set of questions
related to democratic control and accountability.

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    ABSTRACT: Scholars have not analyzed the decision-making processes (i.e., administrative rulemaking) of the Environmental Protection Agency (EPA) in great detail since the 1990s. Therefore, this paper uses original interview data to examine a contemporary case, the EPA’s Mandatory Reporting of Greenhouse Gases Rule, to offer an up to date perspective on how the agency produces rules. This paper argues that, at the very least, the EPA’s Climate Change Division, part of the Office of Air and Radiation is a quintessential example of effective outreach across all of the stages of administrative rulemaking. The findings from these interviews suggest that understanding the process the EPA uses to produce environmental regulations is particularly relevant for practitioners, politicians, and scholars. Therefore, we suggest that scholars should use this research as a baseline for future scholarship about the rulemaking processes of the EPA.
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    ABSTRACT: Techniques for facilitating citizen participation vary in utility and effectiveness in different nations and cultures. When the essential processes of democracy differ, naturally the means for participating will also differ. Regulatory negotiation, a means for drafting regulations required under law through consensus building among parties that are otherwise likely to disagree, is and will probably remain unique to the United States, because it is directly related to important characteristics of democracy in that nation: implementation of legislative policies characterized by adversarial relationships with government and among affected interests, the ability to challenge regulatory decisions of government agencies in court, and — both a consequence and a cause of the first two — the existence of powerful, well-organized national-level interest groups that are expected to act on behalf of their members without direct consultation.