371 CM Regulatory Negotiations CP

8/14/2019 371 CM Regulatory Negotiations CP

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Reg Neg CPDDI 2008 CMBalam Budwal

Reg Neg CP

Reg Neg CP..............................................................................................................................................................................................1

Reg Neg CP .............................................................................................................................................................1

Strat Notes................................................................................................................................................................................................3

Strat Notes ..............................................................................................................................................................3

***Counterplans/Net Benefits*** ........................................................................................................................4

CP-Generic...............................................................................................................................................................................................5

CP-Generic .............................................................................................................................................................5

Generic NB..............................................................................................................................................................................................6

Generic NB .............................................................................................................................................................6

XTN: Industry Opposition.......................................................................................................................................................................7

XTN: Industry Opposition ....................................................................................................................................7

XTN: Reg Negs Coaltions...................................................................................................................................................................8

XTN: Reg Negs Coaltions ..................................................................................................................................8

CP-Patents................................................................................................................................................................................................9

CP-Patents ..............................................................................................................................................................9

Patents Bizcon Links..............................................................................................................................................................................10

Patents Bizcon Links ...........................................................................................................................................10

XTN: Reg Negs Innovation..............................................................................................................................................................11

XTN: Reg Negs Innovation ............................................................................................................................11

CP-RPS..................................................................................................................................................................................................12

CP-RPS .................................................................................................................................................................12

XTN: Reg Negs Solve..........................................................................................................................................................................13

XTN: Reg Negs Solve ..........................................................................................................................................13

CP-Brownfields......................................................................................................................................................................................14

CP-Brownfields ....................................................................................................................................................14

CP-Feed-in Tariffs..................................................................................................................................................................................15

CP-Feed-in Tariffs ................................................................................................................................................15CP-Natives.............................................................................................................................................................................................16

CP-Natives ............................................................................................................................................................16

XTN: Reg Neg Solves Natives..............................................................................................................................................................17

XTN: Reg Neg Solves Natives .............................................................................................................................17

CP-Nuclear.............................................................................................................................................................................................18

CP-Nuclear ...........................................................................................................................................................18

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***2NC Answers*** ............................................................................................................................................19

AT: Courts Rollback...............................................................................................................................................................................20

AT: Courts Rollback ............................................................................................................................................20

AT: Takes Long Time.............................................................................................................................................................................21

AT: Takes Long Time ...........................................................................................................................................21

AT: Conglianese.....................................................................................................................................................................................22

AT: Conglianese ....................................................................................................................................................22

AT: Litigation.........................................................................................................................................................................................23

AT: Litigation .......................................................................................................................................................23

Consult Good.........................................................................................................................................................................................24

Consult Good ........................................................................................................................................................24

Deadlines Key........................................................................................................................................................................................25

Deadlines Key .......................................................................................................................................................25

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Strat Notes

I think this is pretty self explanatory. The CP has good game against Patentsand Natives, not sure about the others though.

If you want to be sleazy, when the 2AC says perm: do both, you can call it aseverance/timeframe perm, b/c the CP Text says one year to negotiate.Which also means you can run politics as a CP. This essentially becomes adelay CP, which is pretty cool. Though the 1AR has a pretty good abuse story.

Ideal Net Benefits for this are: Spending, Bizcon, Maybe Politics if you havesome lobby links (lobbies wont get pissed off if they can decide how the policyis implemented).

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***Counterplans/Net Benefits***

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CP-Generic

CP Text: The United States federal government should ________

The executive branch should engage in binding regulatory negotiations todetermine implementation. Parties will have no more than one year tonegotiate.

Reg Neg Solves- Empirical ProofPhilip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont LawSchool; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory

Reform of the American Bar Association., 2000 Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9N.Y.U. ENVTL. L.J.

Recent Agency Use of Reg Neg. And, indeed, in the past few years agencies have used reg neg to develop some of theirmost contentious rules. For example, the Federal Aviation Administration and the National Park Service used a variant

of the process to write the regulations and policies governing sightseeing flights over national parks; the issue had been

sufficiently controversial that the President had to intervene and direct the two agencies to develop rules for the management

of sightseeing aircraft in the National Parks where it is deemed necessary to reduce or prevent the adverse effects of suchaircraft.22 The Department of Transportation used it to write a regulation governing the delivery of propane and other

compressed gases when the regulation became ensnared in litigation and Congressional action .23 The Occupational

Safety and Health Administration used it to address the erection of steel structures, an issue that had been on its docket for

more than a decade with two abortive attempts at rulemaking when OSHA turned to reg neg.24 The Forest Service has just

published a notice of intent to establish a reg neg committee to develop policies governing the use of fixed anchors for rock

climbing in designated wilderness areas administered by the Forest Service.25 This issue has become extremely

controversial.26 Negotiated rulemaking has proven enormously successful in developing agreements in highly polarized

situations and has enabled the parties to address the best, most effective or efficient way of solving a regulatory

controversy. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have

eluded closure by means of traditional rulemaking procedures.

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Generic NB

Companies will backlash against the plan killing solvencyGLOBAL CLEAN ENERGY, INC., 5-6-08, EDGAR Online, Lexis

Currently, the cost of electricity generated from gasification, without the benefit of subsidies or other economic incentives,substantially exceeds the price of electricity in most significant markets in the world. As a result, the near-term growth of the

market for our BOO plants, which are designed to feed electricity to an on-site end-user, depends significantly on the

availability and size of government incentives and subsidies for gasification. As alternative energy becomes more of a

competitive threat to conventional energy providers, companies active in the conventional energy business may increase

their lobbying efforts in order to encourage governments to stop providing subsidies for alternative energy , includinggasification. We cannot predict the level of any such efforts, or how governments may react to such efforts. The reduction,

elimination or expiration of government incentives and subsidies, or the exclusion ofgasification technologyfrom those

incentives and subsidies, may result in the diminished competitiveness of gasification relative to conventional and non-

gasification alternative sources of energy. Such diminished competitiveness could materially and adversely affect the

growth ofthe gasification industry, which could in turn adversely affect our business, financial condition and results of

operations.

Regulatory Negotiations promote coalitions between industry andenvironmentalistsRichard J. Curcioand Fran M. Wolf, Professor at Kent State University and Former Chairman of Dept of Finance, Associate

Professor at Youngstown State University, Summer1996, Journal of Financial and Strategic Decisions Vol. 9 Num. 2,http://www.studyfinance.com/jfsd/pdffiles/v9n2/curcio.pdf, BB

A good relationship with activist groups cannot be overemphasized. Lavelle (1993) reports that more than one half of

corporate attorney respondents in a National Law Journal/Arthur Andersen survey state that community activists impactcorporate behavior. Reg-neg, orregulatory negotiation between corporations and interested parties such as

environmental groups, has already been written into some environmental legislation. The firm and environmental

groups may agree on a plan that reduces costs by allowing the firm to bypass rigid command-and control regulation in

favor of an alternative that is better both for the firm and for the environment.

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http://www.studyfinance.com/jfsd/pdffiles/v9n2/curcio.pdfhttp://www.studyfinance.com/jfsd/pdffiles/v9n2/curcio.pdfhttp://www.studyfinance.com/jfsd/pdffiles/v9n2/curcio.pdf


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XTN: Industry Opposition

And current attempts to increase alternative energy are doomed to failurebecause they dont take into account industry and labor opposition.

PeterTeagueand JeffNavin, Director of the Environment Program at the Nathan Cummings Foundation and formerenvironmental advisor to Senator Barbara Boxer, Managing Director of American Environics Strategies and former Research Director

for Senate Minority Leader Tom Daschle, June 26, 2007, Global Warming in an Age of Energy Anxiety, The American Prospect,http://www.prospect.org/cs/articles?article=global_warming_in_an_age_of_energy_anxiety, BB

With a regulatory-only approach, we will end with a debate between environmentalists arguing about the cost of global

warming, and industry economists telling Americans how much more they'll pay for everything from electricity to

gasoline to consumer products. And they'll argue that these higher prices will result in job losses. Policy makers are

aware of this challenge and have added provisions to their regulatory bills that are aimed at easing voters' fears. There are

proposals for tax rebates and offsets and even the creation of a "Climate Change Credit Corporation" to help voters with the

anticipated increase in consumer energy costs. The trouble is that the bills either provide tiny amounts to authorize studies ofthe problem, or they remain silent about how much help voters can expect. It's important to remember that the proponents of

Prop. 87 made a well-supported case that the initiative wouldn't raise energy costs at all. Its defeat demonstrates that it's going

to take more than good intentions about global warming and vaguely-worded proposals to convince voters. The Debate to

Come A recent NPR segment noted that the non-partisan Congressional Budget Office released a report onenvironmentalists' preferred regulatory approach that says "low-income Americans and coal miners might suffer the

most if the government adopts a so called cap and trade program to reduce emissions of green house gasses." The NPR report

said, "Consumers will bear the cost of this kind of program. They would face higher prices for electricity, gasoline and

other products. Since low-income Americans spend a higher portion of their incomes on such costs, they'll be hit the

hardest." Keep in mind that this was NPR -- not Fox News. The "right-wing populist vs. liberal elite" frame is dropping into

place with the help of those calling for the deepest cuts in carbon. The deep-cut mantra, repeated without any real

understanding of what might be required to get to 60 or 80 percent reductions in emissions, ignores voters' anxieties . It

also reflects the questionable view that these changes can be achieved with little more than trivial disruptions in our lives -- a

view easier to hold if you're in a financial position to buy carbon credits for your beachfront house. Labor has indicated a

willingness to support action on climate change, but it won't support deep cuts if working people are the most affected.

This will leave environmentalists up against the well-financed business lobby. Good luck holding onto moderate

Democrats, let alone Republicans -- even those who are beginning to understand the need for action on global warming.

History teaches us that regulatory proposals that fail politically often lead to legislative paralysis. In 1993, the public wasadamant that action be taken to address health care, and it seemed inevitable that some sort of reform would soon be signedinto law. In 1994, the Clinton health care reform proposal failed before coming to a vote. In 1997, the Senate voted 95-0 to

reject the United Nations Kyoto framework before it was even fully developed. Voters are still waiting for action on health care

and global warming.

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XTN: Reg Negs Coaltions

Reg Neg solves for effectiveness and environmental cohesionPhilip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law

School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on RegulatoryReform of the American Bar Association., 2000 Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9

N.Y.U. ENVTL. L.J.Congressional and Presidential Support. Congress has twice embraced reg neg. Although agencies had successfully used

reg neg by following recommendations of the Administrative Conference of the United States14 by empanelling committees

under the Federal Advisory Committee Act,15 Congress provided its imprimatur on the process in 1990 when it enacted

the Negotiated Rulemaking Act of 1990.16 The original act sunsetted in 1996, and Congress then permanently reauthorized

it.17 Similarly, the Clinton Administration has repeatedly endorsed it and encouraged agencies to use it. For example, the

seminal regulatory document of the Administration Executive Order 1286618 provides that Each agency . . . is

directed to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated

rulemaking.19 Its National Performance Review (NPR), headed by the Vice President, resoundingly supported the processafter finding: The traditional model for rulemaking is that of agency experts deciding the best way to regulate, offering the

public an opportunity to comment on the agency's proposed rule or to object to its adoption, and then issuing binding rules

telling regulated entities what to do. Even if the agency experts choose wisely, the traditional model has very little buy-infrom outside the agency, which undermines the rule's effectiveness. The traditional process encourages adversarial,

uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which

frequently leads to protracted litigation. Agencies routinely find themselves under attack from various private parties

who are unhappy with the rule. This has been particularly true in controversial areas such as environmental regulation

or the health and safety of workers.20 The solution to this problem, according to NPR, is to increase the use of negotiatedrulemaking.21

Negotiated Rulemaking provides a platform for cohesionPhilip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont LawSchool; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on Regulatory

Reform of the American Bar Association., 2000 Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9N.Y.U. ENVTL. L.J.

My own article that developed the recommendations97 on which the ACUS Recommendation,98 the Negotiated Rulemaking

Act, and the practice itself are based describes the anticipated benefits of negotiated rulemaking: Negotiating has many

advantages over the adversarial process. The parties participate directly and immediately in the decision. They share in

its development and concur in it, rather than participate by submitting information that the decisionmaker considers in

reaching the decision. Frequently, those who participate in the negotiations are closer to the ultimate decisionmaking

authority of the interest they represent than traditional intermediaries that represent the interest in an adversarial proceeding.

Thus, participants in negotiations can make substantive decisions, rather than acting as experts in the decisionmakingprocess. In addition, negotiation can be a less expensive means of decisionmaking because it reduces the need to engage in

defensive research in anticipation of arguments made by adversaries. Undoubtedly the prime benefit of direct negotiations is

that it enables the participants to focus squarely on their respective interests.99 The article quotes John Dunlop, a true

pioneer in using negotiations among the affected interests in the public sphere,100 as saying In our society, a rule that is

developed with the involvement of the parties who are affected is more likely to be accepted and to be effective in

accomplishing its intended purposes.101 Reducing time and litigation exposure was not emphasized if even mentioneddirectly.

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Patents Bizcon Links

Companies depends on predictable patents to inspire investor confidence andfund the industry.

Dan Eramian, Vice President of Communications of BIO, 04, Patents Save Lives, speech given at the Global Public PolicyInstitute, June 24, http://bio.org/news/newsitem.asp?id=2005_0407_01

Last year, investors poured almost $17 billion into biotech companies, despite the fact that most have no products on the

market and will probably lose money years before turning profitable. And many will never become profitable. So why do

investors keep writing the checks? Because patents are in place that protect intellectual property. Patents attract

investors, because they assure a return if a risky research project is successful. But this investor support is fragile, and it

can be shakenby public-relations blunders, especially in the realm of patents. To give just one example of what can happen,backin March of 2000, the U.S. genomics bubble popped when the press misread a statement from President Clinton

and British Prime Minister Tony Blair as a change in their governments' policies that would threaten gene patents.

Biotech stocks plunged 13 percent in a single day, a loss of more than $40 billion in value. And that was because of a

misinterpretation of single statement.

Predictability is key to the patent systemLydia Nenow, Spring 2001, 23 Hous. J. Int'l L 569, Lexis

A patent's full commercial value can be realized only when patents are enforced with predictable reliability. The

inability to enforce a patent because of lack of clarity in the pertinent laws may result in the diminishing or complete

elimination of a company's incentive to invest in the development of new products and processes. The protection of apredictable patent system is of particular importance to the biotechnology industry where success requires massive

investment. n78 It takes a quarter of a billion dollars and four to seven years to bring a biotech-based [*582]

pharmaceutical product to the market, n79 and an estimated ninety percent of biotechnology companies will have a drug

that fails or is delayed. n80 Hence, it is easy to understand why many would be deterred from biotech experimentation if

they are unable to recoup the sizable research and development costs. In addition, the uncertainty of patentability, or

enforceability of a granted patent, also raises a biotechnology company's legal costs and may ultimately create a

disincentive to innovation.

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XTN: Reg Negs Innovation

Regulations encourage innovation-- Laundry ListMichael E. Porterand Claas van der Linde, C. Roland Christensen Professor of Business Administration, Harvard Business

School, faculty of the International Management Research Institute of St. Gallen University, Fall 95, Journal of EconomicPerspectives, Vol. 9 Issue 4, ebsco, BB

First, regulation signals companies about likely resource inefficiencies and potential technological improvements .Companies are still inexperienced in measuring their discharges, understanding the full costs of incomplete utilization of

resources and toxicity, and conceiving new approaches to minimize discharges or eliminate hazardous substances. Regulation

rivets attention on this area of potential innovation.[3] Second, regulation focused on information gathering can

achieve major benefits by raising corporate awareness. For example, Toxics Release Inventories, which are published

annually as part of the 1986 Superfund reauthorization, require more than 20,000 manufacturing plants to report their releases

of some 320 toxic chemicals. Such information gathering often leads to environmental improvement without mandating

pollution reductions, sometimes even at lower costs. Third, regulation reduces the uncertainty. that investments to

address the environment will be valuable. Greater certainty encourages investment in any area. Fourth, regulationcreates pressure that motivates innovation and progress. Our broader research on competitiveness highlights the important

role of outside pressure in the innovation process, to overcome organizational inertia, foster creative thinking and mitigate

agency problems. Economists are used to the argument that pressure for innovation can come from strong competitors,demanding customers or rising prices of raw materials; we are arguing that properly crafted regulation can also provide such

pressure. Fifth, regulation levels the transitional playing field. During the transition period to innovation-based

solutions, regulation ensures that one company cannot opportunistically gain position by avoiding environmental

investments. Regulations provide a buffer until new technologies become proven and learning effects reduce their costs.

Sixth, regulation is needed in the case of incomplete offsets. We readily admit that innovation cannot always completelyoffset the cost of compliance, especially in the short term before learning can reduce the cost of innovation-based solutions. In

such cases, regulation will be necessary to improve environmental quality. Stringent regulation can actually produce

greater innovation and innovation offsets than lax regulation. Relatively lax regulation can be dealt with incrementally

and without innovation, and often with "end-of-pipe" or secondary treatment solutions . More stringent regulation,

however, focuses greater company attention on discharges and emissions, and compliance requires more fundamental

solutions, like reconfiguring products and processes. While the cost of compliance may rise with stringency, then, the

potential for innovation offsets may rise even faster. Thus the net cost of compliance can fall with stringency and may

even turn into a net benefit.

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CP-RPS

CP Text: The United States federal government should require the executivebranch to increase revenue-neutral incentives for alternative energy enough to

increase alternative energy to at least 20% of electricity production by 2020,measured from the baseline of current production. The executive branchshould engage in binding regulatory negotiations to determineimplementation. Parties will have no more than one year to negotiate.

Regulatory Negotiations enable better solutions to environmental goalsShari K. Grossarthaand Alan D. Hecht, EPA Office of Policy, Economics, and Innovation, EPA Office of Research and

Development, May 2007, Ecological Engineering, Volume 30, Issue 1, pg. 1-8, science direct, BBEPA has been exploring regulatory flexibility since its inception. Administrator Doug Costle (2001, speaking in a 1996

interview) realized that command and control regulation would only go so far and would not allow for adaptation to

changing circumstances. In 1979, Costle introduced the bubble policy for controlling stationary sources of pollution,

allowing industry to increase pollution at one point within a plant if reductions were achieved elsewhere in the facility. During

the late 1980s, especially while the Clean Air Act of 1990 was being developed, EPA increased its appreciation of the value of

consulting with industry while formulating regulations. The agency learned that firms subject to regulations possess relevantexpertise and understanding. Administrator Bill Reilly, 1990a and Reilly, 1990b observed that regulatory negotiations are

extremely productive at getting a result that works for everybody and emphasized the need to listen to industry, whose

leaders often have a better, more intimate grasp of how to achieve [environmental goals], than we do. Regulatory

flexibility and negotiation provide means for EPA to work with the regulated community and other stakeholders toward

achieving sustainable outcomes through pollution prevention, increased efficiencies, and systematic thinking.

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XTN: Reg Negs Solve

Regulatory negotiations lead to new and innovative solutionsJody Freeman, Acting Professor of Law, University of California, October, 1997, 45 UCLA L. Rev. 1, lexis, BB

The actual solution, however, was a win-win result for everyone involved. Environmentalists secured an increasinglystringent standard while industry bargained for phased implementation. As a result, both industry representatives and

the NRDC could "sell" the agreement to their constituencies as a victory. The EPA demonstrated a commitment to

working with stakeholders, a posture that would be well received by both Congress and the Clinton administration. The

agency could also credibly claim that while stakeholders were involved in the rule making, the bargain struck did not

undermine the public interest in reducing toxic air emissions. The consensus improved the likelihood of implementationand reduced the chance that the rule would be legally challenged, potentially saving significant resources for all of the

parties. n135 On the traditional measures of cost, implementability, and legitimacy, as viewed by the parties, the reg-neg

was a success.

Regulatory negotiations facilitates unique solutions to environmental

problems.Jody Freeman, Acting Professor of Law, University of California, October, 1997, 45 UCLA L. Rev. 1, lexis, BB

The parties did not merely bargain, but also drew upon a set of developments , including the emergence of total quality

management principles in both the chemical industry and at the EPA, to devise an unanticipated solution. The negotiated

consensus requires industry to pool information about worker training, technology, or management practices that most

effectively reduce emissions. n139 This element of the solution creates a badly needed feedback mechanism. Historically,neither the EPA nor environmental groups had the means by which to judge which technologies or management practices

facilitated rule compliance because nothing forced the industry to disclose why it could not meet standards. This kind of

information disclosure, as opposed to the reporting only of leak rates, could enable better diagnosis of leak causes. By

requiring information sharing among companies about the most effective controls, the negotiated rule creates a

mechanism for increasing safety standards. The primary monitoring authority rests with the companies but is subject to

governmental oversight. Another important result of the problem-solving process was the recognition that the

production goals of chemical companies can coincide with the regulatory goal of controlling toxic emissions . The industry

was moving toward a "best practice" standard in any event, because such a standard was consistent with improving the qualityof the pumps and valves themselves. n140 In essence, the negotiated solution forces chemical [*48] companies to adopt

leak prevention measures that also achieve the goal of reducing air pollution. The solution is superior to a strict

emissions limit because it allows companies to devise process-specific and cost-effective methods for achieving

compliance. A Total Quality Management (TQM) approach guarantees closer monitoring of the components most likely to

leak. n141 It establishes a regime in which the penalty for noncompliance is to be more closely monitored and be required to

generate more information about why existing leak controls do not work. This facilitates adaptation and progress toward

regulatory goals without being unnecessarily punitive: a facility will never be in violation of the regulation so long as it

pursues the improvement program.

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CP-Brownfields

CP Text: The United States federal government should amend theComprehensive Environmental Response, Compensation, and Liability Act,

specifically to exempt local governments from CERCLA liability on thecondition that local governments take care with regards to contaminationduring brownfields cleanup. The executive branch should engage in bindingregulatory negotiations to determine implementation. Parties will have nomore than one year to negotiate.

Reg Negs enable tailored local solutionsEdward P. Weber, Professor in Political Science, Director of the Thomas S. Foley Institute for Public Policy and Public Service, and

Affiliated Professor in WSU's Program in Environmental Science and Regional Planning in Washington State University, 1998, pg 10Georgetown University Press

Regulatory negotiations and consensus-based roundtable" rulemakings invite environmentalists, state officials, andbusiness interests to the bargaining table for the purpose of having tern help government regulators write (fill in the

details of) regulati ons. Public-private partnerships are at root a collaborative redefinition existing regulatory arrangements. At

the invitation of Amoco Oil, EPA spent three years studying an oil refinery to better match rules with pollution

problems and to prevent pollution instead of simply regulating its release. U.S. corporations in the iron and steel

industry, rte electronics and computer industry, the auto industry, and the printin g industry, along with federal and

state regulators, national environmentalists, and locally based environmental justice groups, are attempting to

rationalize the existing regulatory rules for each indus trial sector and construct a "common sense" approach to

environmental regulations (USEPA 1994a). In Colorado, four of the largest employers and polluters)-Coors Brewing, Martin

Marietta," Hewlett Packard, and the Public Service Company of Colorado - are collaborating with EPA, the League of Women

Voters, environmentalists, and the state o find innovative ways to prevent pollution (Pollution Prevention Partnership 1993).

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CP-Feed-in Tariffs

CP Text: The United States federal government should substantially increase

alternative energy incentives in the United States. Specifically, the executivebranch should engage in binding regulatory negotiations to determineimplementation. Parties will have no more than one year to negotiate.

Reg Negs solve-- they result in innovationMichael E. Porterand Claas van der Linde, C. Roland Christensen Professor of Business Administration, Harvard Business

School, faculty of the International Management Research Institute of St. Gallen University, Fall 95, Journal of EconomicPerspectives, Vol. 9 Issue 4, ebsco, BB

Coordination of environmental regulation can be improved in at least three ways: between industry and regulators, between

regulators at different levels and places in government, and between U.S. regulators and their international counterparts. In

setting environmental standards and regulatory processes to encourage innovation, substantive industry participationin setting standards is needed right from the beginning , as is common in many European countries. An appropriate

regulatory process is one in which regulations themselves are clear, who must meet them is clear, and industry accepts

the regulations and begins innovating to address them, rather than spending years attempting to delay or relax them. Inour current system, by the time standards are finally settled and clarified, it is often too late to address them fundamentally,

making secondary treatment the only alternative. We need to evolve toward a regulatory regime in which the EPA and

other regulators make a commitment that standards will be in place for, say, five years; so that industry is motivated to

innovate rather than adopt incremental solutions.

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CP-Natives

CP Text: The United States federal government should establish a policyincreasing revenue-neutral alternative energy incentives to Native Americans.

The executive branch should engage in regulatory negotiations with NativeAmerican groups to determine implementation. All representatives should begranted a veto. Parties will have no more than one year to negotiate.

Regulatory Negotiations are key to Indian Self-DeterminationEmpiricallyProvenLawrence Susskindand Liora Zion, Ford Professor of Urban and Environmental Planning at MIT and President of the Consensus

Building Institute, & Research Assitant, August 2002, CAN AMERICAS DEMOCRACY BE IMPROVED?,http://www.lawrencesusskind.com/content/contributions/democracy.pdf , BB

Negotiated rulemaking is a relatively new approach to developing regulations. In order to ensure that new regulations

are effective, realistic, and fair, and that those who will be bound by them will accept them more readily, lawmakers use

consensus building techniques to develop draft legislation. Thus, the stakeholders participate in shaping the regulations

about which they are concerned. During the negotiation process, the parties may ask experts to make presentations relevantto the task at hand, or they might engage in joint fact-finding as part of the process. The development of a single negotiating

text is also a common technique used for rulemaking42. Example: Federal Negotiated Rulemaking One of the largest

negotiated rulemaking efforts to date was a consensus building process in 1996 to implement amendments to the Indian

Self-Determination Act. The group was to focus largely on arrangements concerning Native American tribes roles and

responsibilities in the delivery of federal programs, including schools, health facilities, and construction projects. The

consensus building process involved 63 people, including 48 representatives of Indian tribes and tribal organizations, and 15

representatives from more than 10 federal agencies and offices. These representatives comprised an Advisory Committee that

was charged with producing recommendations to the Department of the Interior and the Department of Health and Human

Services concerning which regulations, if any, should exist. The negotiations of the Advisory Committee were facilitated by

four cofacilitators of the Federal Mediation and Conciliation Service (FMCS). The negotiations began with a considerable

amount of distrust between the Indian and Federal representatives, since previous attempts to amend the regulations

had excluded the input of Native groups. However, the group agreed to operate by consensus, seeking unanimity for all

decisions, and so each representative was effectively granted a veto on the process. The group decided to follow a proposalsubmitted by an Indian attorney to divide into six working groups to address different aspects of the law. As a group, the

representatives allocated different topics to the different working groups. The representatives then signed up to those work

groups addressing issues about which they had the greatest knowledge or in which they had the most interest. Since some

representatives enrolled in multiple working groups, the co-chairs tried to avoid scheduling more than three working group

meetings simultaneously, and representatives had to prioritize their interests. Each working group was co-chaired by a

federal and a tribal representative, and facilitated by one of the neutrals. The working groups produced regular updates on

their progress to share with the rest of the participants, notifying them, for example, when they had completed a draft of asection of regulation. As the working groups agreed on specific sections of the regulation, they submitted them to the whole

group for approval. The working groups had to have reached an internal consensus before they could present any product to the

whole group, since those within the working groups, involved in formulating the proposals, were those who tended to be most

concerned about the issue under consideration. When the working groups presented their proposals, they took questions of

clarification first, and then the facilitators listed any questions concerning content. The co-chairs then decided whether to

address each question in the whole group, or within a tribal or federal caucus. Once the large group reached consensus, itwould adopt the recommendation. The process did not run without problems. Indian representatives concerns about the

process to review the Advisory Committees recommendations nearly prompted them to leave the negotiations. Other concerns

also arose, and the Advisory Committee was unable to resolve every substantive issue. For four issues that remained

outstanding, the federal and tribal teams each wrote a report stating their opinions on the matter. These reports were presentedto the chiefs of staff of both departments, who made final decisions, sometimes in favor of the federal team, and sometimes in

favor of the tribal team. Despite these problems, however, the Advisory Committee agreed by consensus on 34 pages of

detailed regulations to guide the process of making contracts between tribes and tribal organizations and the

Departments of the Interior and of Health and Human Services. Tribal and federal representatives expressed

satisfaction with the process, and the process has subsequently become a model for further negotiations involving

Native groups.

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XTN: Reg Neg Solves Natives

Reg Negs solve for Indians differing cultural views and increase governmentcollaboration

Brian D. Polkinghornand Jeanmarie Pinto, Ph.D. is Associate Professor of Conflict Resolution and ExecutiveDirector of the Center for Conflict Resolution at Salisbury University, & Research Associate with the Center for Conflict Resolution at

Salisbury University, 2002, International Negotiation 7: 209233, In Different Tongues: Making Room for Cultural Differences inthe Negotiated Rulemaking Process, ebsco, BB

American Indians differ from non-Indians not only in their history but also in their general philosophies of life (Farella

1984; Fixico 1996;Wallace 1994; Yazzie 1994). For many Indian cultures, all living things are meant to be respected and

people are no more important than any other living thing. This view contrasts sharply with the typical view of most

mainstream Americans, who believe in humankinds inherent superiority over all other living things (Clark 1989). Put

another way, Indians tend to see life as a community, where non-Indians tend to see it as a hierarchy. This is an

important point when one is looking at conflict and its resolution . A community view tends to focus more on healing andrestoration whereas a hierarchical view focuses on division in order to maintain the hierarchy (Austin 1992; Bluehouse

and Zion 1993, Stuart 1997; Weaver 1996). The aforementioned cultural differences and nuances are all-important

considerations that should be taken into account in the context of negotiation processes between Indians and non-

Indians. American Indians are not just another ethnic group vying for recognition in the United States , however.Whetherthey are defined as distinct, sovereign entities, as most Indian nations see themselves, or as domestic,

dependent nations, as the U.S. government has defined them, the issue of sovereignty lends a unique twist to their

relationship with the mainstream society. Using a consensus-based reg-neg process to address Tribal-Federal

issues may be a culturally-sensitive and effective method not only for settling the issue on the table, but also

for healing and rebuilding the complex and troubled relationship between American Indians and the U.S.

government. The use of this process is a positive move away from an atmosphere of pure consultation to one

of increased collaboration between two legitimate governmental bodies.

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CP-Nuclear

CP Text: The United States federal government should increase revenue-neutral nuclear energy incentives. The executive branch should engage in

binding regulatory negotiations to determine implementation. Parties will haveno more than one year to negotiate.

The Nuclear Regulatory Commission has used regulatory negotiationsNational Partnership for Reinventing Government, The National Partnership for Reinventing Government (NPR),originally the National Performance Review, was the Clinton-Gore Administration's interagency task force to reform and streamline

the way the federal government works, 21-May-2002, Improving Regulatory Systems,http://govinfo.library.unt.edu/npr/library/reports/reg03.html

A small number of federal agencies have successfully pioneered a consensus-based approach to drafting regulations--

negotiated rulemaking (sometimes called regulatory negotiation or "reg neg"). Reg neg brings together representatives of

the agency and the various affected interests in a cooperative effort to develop regulations that not only meet statutory

requirements, but also are accepted by the people who ultimately will have to live with the regulations [Endnote 2] Since1982, approximately 35 federal agency negotiated rulemakings have taken place or are currently under way. Almost half

have been at the Environmental Protection Agency (EPA), which is the only federal agency with a small office assigned

specifically to assist other parts of the agency in doing reg negs. Otherusers include the Departments of Agriculture (Animal

and Plant Health Inspection Service), Education (required in certain programs by statute), Labor (Occupational Safety andHealth Administration), and Transportation (Office of the Secretary, Federal Aviation Administration, Federal Highway

Administration, National Highway Traffic Safety Administration, Coast Guard), Farm Credit Administration, Federal

Communications Commission, and Nuclear Regulatory Commission[Endnote 3] The Negotiated Rulemaking Act of 1990

establishes a statutory framework for agency use of reg neg.[Endnote 4]

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***2NC Answers***

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AT: Courts Rollback

Reg-Neg ensures acceptance in courtRobin McCall, J.D. Candidate 2007, University of California Hastings College of the Law, San Francisco, Winter, 2007, University

of California, Hastings College of the Law West-Northwest Journal of Environmental Law & Policy, Lexis.A quiet revolution during the past few decades has been transforming this process. In negotiated rulemaking, nicknamed

"reg-neg," agencies share the table with concerned members of the public, or stakeholders. n143 Congress prefers agencies

to use reg-neg when it "enhances the informal rulemaking process." n144 Congress found that reg-neg can "increase the

acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement

or challenge such rules in court."n145 Professor Ashutosh Bhagwat regards reg-neg as especially suited to managing publicproperty, because under such circumstances expertise may be irrelevant to most of the issues raised, and there are fewer

technical concerns where the potential for agency capture could pose a threat.

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AT: Takes Long Time

Reg Neg saves timeCary Coglianese, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and

Affiliated Scholar at Harvard Law School., 4-97, Duke Law Journal, LexisOne advantage formal negotiated rulemaking purportedly has over informal rulemaking is its ability to produce rules in less

time. Yet the impact negotiation has on the time it takes to develop a regulation remains unclear. In a 1987 article, former EPAAdministrator Lee Thomas stated that "as we look back upon our experiences with negotiated rules so far, they have

saved time. Regulatory negotiation shortened our total process on each one of them." n105The National Performance

Review report on the regulatory process similarly stated that negotiated rulemaking at EPA has saved up to eighteen

months compared with conventional rulemaking. n106 Despite this proclaimed efficiency, the NPR authors also interestingly

cautioned Congress not to impose "short [*1279] statutory deadlines to issue proposed or final rules, especially if they are

shorter than two years [because this may] preclude the use of negotiated rulemaking." n107 In at least one instance, a federal

agency decided that "negotiated rulemaking was not a practical option" for the development of regulations because of statutory

time constraints. n108 Although negotiated rulemakings may not be sufficiently fast when an agency must meet stringentdeadlines, overall they have been thought to be potential time-savers. n109

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AT: Conglianese

Coglianese is wrong- 4 ReasonsPhilip J. Harter, AB, Kenyon College; MA, JD University of Michigan; Adjunct Professor and Summer Faculty, Vermont Law

School; former Chair, Section of Administrative Law and Regulatory Practice and former Co-chair Working Group on RegulatoryReform of the American Bar Association., 2000 Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9

N.Y.U. ENVTL. L.J.Unfortunately, Coglianeses research is significantly flawed and hence misleading concerning the actual experience with

negotiated rulemaking. First, he misapplies his own methodology by including a rule as a completed reg neg when in

fact the negotiations were abandoned early on; given the dynamics of the particular rule and Coglianeses methodology, its

erroneous inclusion had a significant effect on the ultimate conclusion. Second, his methodology measures the wrong thing:

it fails to account for what the agency was actually trying to accomplish in several major proceedings, and hence his

results are misleading in that the agency achieved its objective a far less time than is calculated by the numbers used. Third, he

does not differentiate a substantive judicial challenge to a rule that was issued substantially as the committee agreed

from either those instances in which the agency itself significantly changed the rule after the committee reached

consensus and those petitions for review that were filed while the petitioner and EPA worked out minor details . Finally,

the proponents of negotiated rulemaking also envisioned benefits beyond the savings of time and judicial review; rather,

they were in many instances seen as derived from the other benefits. His methodology does not consider these othervalues. Properly understood negotiated rulemaking has been remarkably successful in fulfilling its promise. In

particular, EPAs experience has been that reg neg has cut the time for rulemaking by a third, knocking a full year off

the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the parties

agree not to challenge it has ever been the subject of a substantive judicial review even though they tend to be far

more controversial and complex than average rules. And, finally, the participants and those otherwise affected by rules

find a range of values in negotiated rulemakings than those developed traditionally.

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AT: Litigation

Reg Negs solve LitigationCary Coglianese, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and

Affiliated Scholar at Harvard Law School., 4-97, Duke Law Journal, LexisAs I showed in Part I, the goal of reducing litigation was a driving force behind the Negotiated Rulemaking Act. n133 According

to some, negotiated rulemaking has achieved this goal. Former EPA AdministratorLee Thomas asserted that at his agency

"regulatory negotiation has reduced litigation." n134The National Performance Review reported a reduction in the 80

percent rate at which EPA rules are challenged to a rate of 20 percent following the introduction of negotiated

rulemaking. n135 The former research director of ACUS has written that agencies developing rules through negotiation have

succeeded in "dramatically reducing the rate of litigation over those rules." n136

Reg Neg avoid unnecessary litgation and delays in implementationEdward P. Weber, Professor in Political Science, Director of the Thomas S. Foley Institute for Public Policy and Public Service, and

Affiliated Professor in WSU's Program in Environmental Science and Regional Planning in Washington State University, 1998, pg127, Georgetown University Press

If a collaborative effort could produce a rule that better reflected the preferences of stakeholders and considered their

political and economic constraints, endless litigation and implementation delays might be avoided and players might

instead unite in support of an agreement. As one participant from the Department of Energy put it, the clean fuels

regulation was a good example of something that "cried out for collaboration. It was very complicated, and cooperation with

industry would result in better information with which the government could write the regulations" (interview 3/23/94). The

general perception was that a traditional notice - and - comment rulemaking procedure would limit the flow of technical

information on the reformulation process that was essential to an effective, implementable rule."

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Consult Good

Consult CPs are Good:a. Best Policy Option- If we win that consultation is the best, than we win

b. Real World Education- Foreign Policy leaders consult all the time, it ispart of international policy making

c. Lit Checks Abuse- Literature limits the number of consultation CPsd. Increase Strategic Thinking- Forces the 2ac to think about the plan in

light of international eventse. Neg Ground- The negative should be able to CP foreign policy methods

on a foreign policy topicf. Key to test Resolved- The CP is offense against the resolutiong. Err neg on Theory- AFF bias, Infinite prep, 1st and last speech, 2ar

persuasionh. Potential Abuse isnt a voter

i. Reject the CP not the Team

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Deadlines Key

Deadlines are key to solveKevin Phillip Cichetti, J.D. Candidate, the Washington College of Law, Winter, 1996, 9 Admin. L.J. Am. U. 1183, lexis

Negotiated rulemaking is an open process in which all interested parties to a proposed regulation work together to finda solution to the problem facing the agency. David M. Pritzker, Working Together for Better Regulations, 1992 A.B.A. Sec.

Natural Resources, Energy, and Envtl. Law 40. The EPA was one of the first agencies to institutionalize its own negotiated

rulemaking program and draft its own selection criteria. 48 Fed. Reg. 7494 (Feb. 22, 1983). The EPA's selection criteria

include: (1) it looks for a limited number of issues which are related to extremely controversial national policy; (2) there must

exist a well-developed factual base to permit a "meaningful discussion and resolution of the issues;" (3) there should existseveral ways to solve the problems; and (4) a firm deadline should exist for the resolution of the issues . David M. Pritzker

& Deborah S. Dalton, Negotiated Rulemaking Sourcebook 39 (1990) [hereinafter Pritzker & Dalton]. Determining the requisitelevel of scienter a person must possess before the EPA commences a criminal investigation clearly fits within these criteria.

Deadlines are key to successful negotiations

Siobhan Mee, Executive Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 1997-1998. Fall, 1997, 25

B.C. Envtl. Aff. L. Rev. 213, lexis, BBThe Reg-Neg Act also directs agencies to assess the likelihood that the proposed committee will reach consensus within a

fixed period of time. n85 Deadlines often are perceived as an essential tool for moving negotiations and avoiding delay

tactics. n86 The pressure of an approaching deadline helps parties make the difficult choices that are necessary to reach

consensus. n87 Typically, deadlines are provided by the agency's commitment to develop the rule by itself if the

negotiations produce nothing by a certain date, or by a legislative or judicial mandate for agency action within a limited

time period. n88

371 CM Regulatory Negotiations CP

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