Edward P. Weber and Anne M. Khademian. 1997. From Agitation to Collaboration: Clearing the Air through Negotiation. Public Administration Review, Vol. 57, No. 5

Examines the necessary conditions for a collaboration on regulatory policy to take place. In particular, they identify the necessity of an assurance mechanism which guarantees to participants of a collaboration that a consensus solution will not be subverted post hoc. Their paper is oriented toward the setting of national policy by governmental agencies, with the negotiations embedded institutionally in the governmental sphere. They focus on collaborative regulation negotiation (reg-neg) of the EPA, an agency famous for costly litigative proceedings that plague regulation setting; they have frequently sought to promote collaborative processes to produce consensus so as to avoid such cost. The authors, employing semi-structured interviews, explore one reg-neg: the reformulated gas regulation of 1995. They hope to "initiate a serious dialogue on the importance of leadership, reputation, and formal institutional design for the successful use of collaborative regulatory efforts." In this case, "The reg-neg provided a venue where the rank ordering of political priorities could be clarified, the middle ground between contentious issues explored, and innovative compromises worked out and incorporated into the final regulatory contract".

The authors frame one of the major barriers of getting stakeholders to the table to negotiate collaborative as the uncertainty of resolution in the face of vulnerability after sharing information.

Criteria for application of reg-neg to by Administrative Conference and EPA:

• limited number of related issues to be resolved
• programmatic and geographic limits tot he program
• affected interests could be clearly identified; few in number and cohesive
• more than one way to resolve the pertinent regulatory issues, leaving room for creative compromises
• did not involve fundamental values that could not be compromised (I think they mean irreconcilable differences)
• factual data base to frame the discussion
• firm deadlines for rule making and program compliance

The core of the paper revolves around three necessary conditions for initiation and maintenance of collaborative effort:

• Entrepreneurial leadership. Leaders of an effort need to be proactive, not above "political fray": "must mobilize participants, coordinate between them, and sustain what is truly a political process"; must be "prepared to persuade rather than command and be willing to whare authority in the selection and design of the means to policy goals"; "commitment is demonstrated through the use of authority to promote, protect, and enforce collaborative deals".
• Organizational credibility. In the EPA's case, "EPA administrators established an organizational reputation as an agency committed to greater collaboration among stakeholders. The reputation stemmed not only from their exhortation and symbolic support for collaborative efforts, but from the employment of various reg-negs as a legitimate replacement for top-down, notice-and-comment rule-making".
• Set of formal binding rules. This is the assurance mechanism. "Without some type of assurance mechanisms that the negotiated agreement will be binding, that participants will not do an end run around the process by appealing to elected officials or the courts, and that the stake of individual participants in the process is credible, each player has an incentive to avoid the unknown dynamics of collaboration and stick wiht the known costs of notice-and-comment proceedings-and likely litigation and delay." And with respect to the Reformulated Gas: "Environmental advocates and state regulators insisted that the price for their participation was a formal, written protocol guaranteeing that their good-faith bargaining efforts would not be wasted due to intervention from the Bush administration".

Critiques:

• Douglas Amy (1987) warns that "the use of collaboration, which includes environmental mediation and dispute resolution techniques, can be a subtle but powerful form of political control by established economic interests, which coopt public interest "voices" in the name of consensus outcomes".
• The reformulation law was imposed top-down at the national level to 5 regions, including Milwaukee. There was mass-outcry against it. This points to the fact that legitimacy of a decision can come into conflict with collaborative processes; in this case, the tension was national->local, and established interests at the table, no local representation. "Other research suggests the importance of conducting regulatory efforts through intensive deliberative processes a the local political level where policy will be enforced to ensure broad public participation."
• high cost of negotiations -- can they be sustained? The authors suggest that perhaps public interest groups might be subsidized by expected cost savings
• stability of outcomes of negotiation. assurance mechanisms help, but are not a silver bullet -- it is noticeably contingent and fragile. "Elected officials can disrupt or facilitate a collaborative effort, responding in an ad hoc manner to important constituencies that trigger fire alarms."

interesting

• there are some laws in place to promote collaborative processes: Negotiated Rulemaking Act of 1990 and the Administrative Dispute Resolution Act
• The paper gives an interesting example of how the Ethanol lobby broke from the reg-neg and tried to subvert it by appealing to high-officials; the other stakeholders, supported by the EPA, banded together and effectively headed-off the pending appeal. The assurance mechanism played a role in allowing the stakeholders to band together.
• There are some examples where coalitions among unlikely stakeholders formed, for example, in the joint production of information. This relates to UrbanSim, where coalitions might form around the demand for an indicator that two arguing groups require in order to proceed.