fear of commitment: an affliction of adolescents

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FEAR OF COMMITMENT: AN AFFLICTION
OF ADOLESCENTS
PILIP J. HARTER
I. CONSULTATION AND NEGOTIATION ARE AN INTEGRAL PART
OF THE ADMINISTRATIVE PROCESS
Consultations and negotiations between agencies and affected
interests are an essential ingredient of the administrative process if
not of democracy itself. Their critical role has been recognized at
least since the enactment of the Administrative Procedure Act
(APA).' In a now famous passage, the influential Attorney Gen-
eral's Manual on the Administrative Procedure Act explained in
1947 that
[t]he settlement of cases and issues by informal methods is noth-
ing new in Federal administrative procedure. In its Final Report,
the Attorney General's Committee on Administrative Procedure
pointed out ... that "even where formal proceedings are fully
available, informal procedures constitute the vast bulk of adminis-
trative adjudication and are truly the lifeblood of the administra-
tive process."2
Similarly, the Manual emphasized the importance of informal
conferences (clearly the predecessors of advisory committees) and
consultation in the regulatory process:
[I]nformal rule making procedure may take a variety of forms:
informal hearings (with or without a stenographic transcript),
conferences, consultation with industry committees, submission of
written views, or any combination of these?
1. 5 U.S.C. § 551 (1994).
2. U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRA-
TIV PROCEDURE ACT 48 (1947) [hereinafter ATTORNEY GENERAL'S MANUAL], reprinted
in ADMINISTRATIVE CONFERENCE OF THE U.S., FEDERAL ADMINISTRATIVE PROCEDURE
SOURCEBOOK 97 (1985).
3. ATTORNEY GENERAL'S MANUAL, supra note 2, at 31. The Attorney General's
Committee on Administrative Procedure was even more descriptive in assessing the role
of negotiation in the development of new rules:
The practice of holding conferences of interested parties in connection with rule
making introduces an element of give-and-take on the part of those present and
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1390 DUKE LAW JOURNAL [Vol. 46:1389
These informal, unstructured processes were then used without
much further development for the succeeding 25 years. Beginning
in the 1970s, however, a number of factors combined to spark a
renewed interest in the use of consultation and negotiation in the
development of rules and other policies. With the emergence of
the regulatory state, it became clear that these informal processes
could result in horrible abuses. In the name of direct participation,
the ability of some to participate in the regulatory process could
effectively be extinguished and major governmental policies unduly
influenced by narrow interests. Thus, if consultative procedures
were to be used, safeguards had to be constructed to protect the
integrity of the resulting decision. The process was suspect without
them, and some viewed it as illegitimate. At the same time, me-
diation began being used to resolve difficult environmental dis-
putes, and structured negotiations were likewise employed in a
variety of policy settings and got good results.4 These activities led
to the development of a body of experience. Another major boost
to the use of mediation came when John Dunlop, a well-known
and experienced mediator of public disputes, became Secretary of
Labor and advocated the use of the model that had proven so suc-
cessful in the labor context as a method for making governmental
decisions.5 Finally, the use of alternative dispute resolution was
beginning to be discussed in legal circles as a means of facilitating
the direct participation of parties in the resolution of issues to
produce results that were both better and more widely accepted.6
In the early 1980s, the Administrative Conference of the Unit-
ed States (ACUS)7 promulgated the first of a series of recommen-
affords an assurance to those in attendance that their evidence and points of
view are known and will be considered. As a procedure for permitting private
interests to participate in the rule making process it is as definite and may be
as adequate as a formal hearing. If the interested parties are sufficiently known
and are not too numerous or too hostile to discuss the problems presented,
conferences have evident advantages over hearings in the development of
knowledge and understanding.
S. Doc. No. 77-8, at 104 (1941).
4. For a review of this experience, see Philip J. Harter, Negotiating Regulations: A
Cure for Malaise, 71 GEO. L.J. 1, 31-42 (1982).
5. See, eg., John T. Dunlop, The Limits of Legal Compulsion, 27 LAB. L.J. 67
(1976).
6. See, e.g., Frank E.A. Sander, Varieties of Dispute Resolution, Address at the
National Conference on the Causes of Popular Dissatisfaction with the Administration of
Justice (The Pound Conference) (Apr. 7-9, 1976), in 70 F.R.D. 79, 120-21 (1976) (dis-
cussing the benefits of mediation for parties in long-term relationships).
7. The Administrative Conference of the United States, known generally as ACUS,
1997] FEAR OF COMMITMENT 1391
dations on the use of dispute resolution techniques-direct negotia-
tions among the affected interests, mediation, arbitration, and
combinations of these techniques, along with attendant procedures
necessary to make them work.8 These recommendations sought to
combine the benefits of Alternative Dispute Resolution (ADR)
with procedures that would ensure the legitimacy of the resulting
decisions; they were built on careful analysis and were vetted
before ACUS's diverse membership. ACUS's recommendations
thus developed the structure for the use of ADR by federal agen-
cies. In addition, ACUS created a series of training programs and
seminars for agencies both to educate agency staff on the benefits
of ADR and to instruct the staff on the successful use of the
techniques in regulatory programs. It also afforded agencies the
opportunity to share experiences.
Although under existing authority agencies were already using
ADR procedures, particularly negotiated rulemaking, fairly regular-
ly, the structured use of direct participation of the affected inter-
ests and other forms of ADR received a major boost when Con-
gress enacted the Administrative Dispute Resolution Act
(ADRA)9 and the Negotiated Rulemaking Act of 1990.10 Both
acts amended the APA, and both lent Congressional imprimatur to
the emerging use of ADR by federal agencies."
The administrative use of ADR is therefore somewhere be-
tween fifteen and twenty years old-in the prime of adolescence.
It is, therefore, appropriate to step back and assess both its cur-
rent status and predict its likely future.
was charged by Congress to "study the ... administrative procedure[s] used by adminis-
trative agencies in carrying out administrative programs, and make recommendations to
[appropriate bodies]." 5 U.S.C. § 594 (1994). Congress terminated ACUS by withdrawing
all funding beginning November 1, 1995.
8. The first of this series was Administrative Conference of the U.S., Recommen-
dation No. 82-4, Procedures for Negotiating Proposed Regulations (codified at 1 C.F.R. §
305.82-4 (1993)).
9. Pub. L. No. 101-552, 104 Stat. 2736 (1990) (codified as amended in scattered
sections of U.S.C. tits. 5, 9, 28, 29, 31, 41).
10. Pub. L. No. 101-648, 104 Stat. 4969 (1990) (codified in scattered sections of 5
U.S.C.).
11. Both acts contained sunset provisions; the Administrative Dispute Resolution Act
expired five years after its enactment, in 1995, see § 11, while the Negotiated Rulemaking
Act was scheduled to expire in 1996, six years after its enactment, see § 5.
1392 DUKE LAW JOURNAL [Vol. 46:1389
II. ADJUDICATORY USE OF ADR
The use of alternative means of dispute resolution by federal
agencies is now quite an expansive topic, ranging on both sides of
the great divide of administrative law. On the adjudicatory front,
we could analyze the efficacy of mediating major government
contract disputes; the use of mediation in enforcement actions has
been controversial, and its appropriate employment needs further
refinement, but it is clearly growing. We could look at the use of
mini-trials to resolve a range of issues, and, after the reauth-
orization of the 1990 Act by the Administrative Dispute Resolu-
tion Act of 1996,12 we could speculate on the future use of bind-
ing arbitration. 3 As if these issues weren't enough, we could then
delve into the role of Administrative Law Judges (ALJs) in pro-
viding this suite of services: Are AIJs a logical source of neu-
trals,14 or is one of the benefits of the growing range of proce-
dures that are available to resolve specific issues the fact that the
parties can now choose the one whom they will trust to help re-
solve their controversy?
Certainly the government's use of arbitration is not yet in its
adolescent stage. The Administrative Dispute Resolution Act as
originally introduced authorized agencies to use arbitration only if
all of the parties consented specifically to its use. During the
hearings leading up to passage of the ADRA, however, the De-
partment of Justice (DOJ) argued that it would be unconstitutional
for the United States government to use binding arbitration.6 Al-
though the analysis was not precise, DOJ's general argument was
that only officers of the United States can make those decisions,
12. Pub. L. No. 104-320, 110 Stat. 3870 (1996) (codified as amended in scattered
sections of U.S.C. tits. 5, 28, 29, 41).
13. See 5 U.S.C. §§ 575-581 (1994) (authorizing administrative agencies to enter into
binding arbitrations and enforcing the results of the binding arbitrations).
14. A "neutral" is defined by the ADRA as "an individual who, with respect to an
issue in controversy, functions specifically to aid the parties in resolving the controversy."
Id. at § 571(9). The neutral may serve as a convener, facilitator, mediator, arbitrator, or
in some other position; the term "neutral" is commonly used to refer to the position
generically as one who is disinterested in the outcome of the controversy.
15. See Administrative Dispute Resolution Act of 1989: Hearing on S. 971 Before the
Subcomm. on Oversight of Government Management of the Senate Comm. on Govern-
mental Affairs, 101st Cong. (1989) [hereinafter ADRA Hearings]. Specifically, the ADRA
prohibits making arbitration agreements a condition of a government contract or other
benefit. See 5 U.S.C. § 575(a)(3) (1994).
16. See ADRA Hearings, supra note 15, at 13 (statement of William P. Barr, Assis-
tant Att'y Gen., Office of Legal Counsel).
19971 FEAR OF COMMITMENT 1393
and an arbitrator would generally not be appointed by the requi-
site means.7 The American Bar Association, having adopted a
resolution supporting the use of arbitration by administrative agen-
cies, testified in support of the arbitration provisions and disagreed
with DOJ's theory." To reach closure, however, a compromise
was fashioned by which an agency could agree to binding arbitra-
tion but the award would not become final for a period of thirty
days. During this thirty-day period, the head of the agency, who
holds a non-delegable personal duty, could vacate the award and
thereby nullify it; if the award was vacated, the agency would pay
attorney's fees. Further, to reduce the appearance of impropriety
of trial counsel seeking "two bites at the apple," the principle of
separation of functions would apply to the agency head's
review.' As a result of the opt-out provision, private parties were
simply unwilling to use the arbitration, and the mere existence of
the override seemed to taint the use of ADR under that Act-it
was as if there were a hole in the ice and everyone knew to stay
away from the danger zone.
Subsequently, in a more explicitly considered, formal opinion,
Assistant Attorney General for the Office of Legal Counsel Walter
Dellinger determined that binding arbitration would indeed be
constitutional.' Although DOJ initially testified at the ADRA
17. See id.
18. See id. at 28-38 (statement of Philip J. Harter on behalf of the American Bar
Association). The ABA testified that, under current law, an arbitrator would not be re-
garded as a "principal" officer of the United States, and, thus, does not require
Presidential appointment, since all of the factors that caused the Supreme Court to hold
that an independent prosecutor is not a "principal" officer of the United States likewise
are met by an arbitrator. See adt at 30; see also Morrison v. Olson, 487 U.S. 654, 670-73
(1988) (holding that it does not violate the Appointments Clause for Congress to vest
the power to appoint an independent counsel in the Special Division court created by the
Ethics in Government Act because independent counsel appointees are "inferior" officers
in that: 1) the Attorney General is authorized to remove them; 2) they have limited
duties; 3) they have limited jurisdiction; and 4) they are temporary).
19. See 5 U.S.C. § 580(c), (g) (1994).
20.
You have asked for our opinion as to whether the Constitution in any way lim-
its the authority of the federal government to submit to binding arbitration.
Specifically, you have asked us to explain and expand on advice we issued on
September 19, 1994, in which we confirmed our earlier oral advice that "the
Office of Legal Counsel no longer takes the view that the Appointments
Clause, U.S. Const. art. II, § 2, cl. 2, bars the United States from entering into
binding arbitration." . . . Below, we reiterate this conclusion and, pursuant to
your request, set forth the reasoning by which we reached it. In addition, we
consider, again pursuant to your request, the various other constitutional provi-
sions that may be implicated when the federal government enters into binding
1394 DUKE LAW JOURNAL [Vol. 46:1389
reauthorization hearings that it preferred to retain the override,2
it subsequently changed its position and did not oppose the autho-
rization of agencies to engage in binding arbitration.' Congress
embraced the concept in its final legislation so that agencies
were authorized to enter into agreements which call for the use of
binding arbitration to resolve issues in controversy. Arbitration
might be expected to be used in at least three situations: the reso-
lution of straightforward government contract claims; cases where
the facts are not complex and the value is not significant to any
party; and the resolution of issues that arise on an ongoing basis
in the implementation of an agreement or contract.24
While it has been retooled and its attractiveness enhanced at
least for private disputants, arbitration is in its infancy. Like an
infant's, arbitration's future is full of hope and promise, but with-
out sufficient experience to get the type of reading one can of an
adolescent-pimples and all.
The ADRA also encourages agencies to use mediation and
other consensual forms of dispute resolution to resolve issues in
controversy. It clarifies the confidentiality provisions in an attempt
arbitration. We conclude that none absolutely bars the federal government from
taking such action.
Memorandum from Walter Dellinger, Assistant Att'y Gen., U.S. Dept. of Justice, to John
Schmidt, Associate Att'y Gen., U.S. Dept. of Justice, regarding Constitutional Limitations
on Federal Government Participation in Binding Arbitration (Sept. 7, 1995) (on file with
Duke Law Journal) (citation and footnotes omitted).
21. See ADRA Hearings, supra note 15, at 13 (statement of William P. Barr, Assis-
tant Att'y Gen., Office of Legal Counsel).
22. See Prepared Statement of Peter R. Streenland, Jr., Senior Counsel, Office of Al-
ternative Dispute Resolution, Dep't of Justice, Before the House Judiciary Comm.
Subcomm. on Commercial & Admin. Law Concerning the Admin. Dispute Resolution Act
Federal News Serv., Dec. 13, 1995, available in LEXIS, Nexis Library, Curnws File (dis-
cussing how DOJ is not opposed to removing the opt-out provision); see also 142 CONG.
REC. H5787 (daily ed. June 4, 1996) (discussing how a DOJ official testified in favor of
repealing the override).
23. To ensure that runaway arbitrators do not "break the bank," the ADRA requires
that the arbitration agreement must also specify the limits of the award. See 5 U.S.C.S. §
575(a)(2) (Law Co-op. Supp. 1997). Thus, the arbitrator's authority is appropriately cor-
ralled.
24. For example, the Forest Service might settle a case brought by an environmental
group about the management of a particular forest. The settlement agreement might call
for certain actions to be taken over the course of five years; the agreement might also
provide that any disagreements over its implementation would be submitted to arbitration.
Through arbitration, the issues could be quickly resolved by a person with first-hand, on-
the-ground knowledge of what is happening. Arbitration can also be used, as is typical in
the private sector, to resolve construction disputes as they arise.
1997] FEAR OF COMMITMENT 1395
to strike a delicate balance between the openness that ensures the
integrity of agreements and the level of confidentiality that is
necessary if they are to be reached.' To this end, Congress re-
solved the potential tug between the ADRA, which prohibited
disclosure by a neutral of confidential information,26 and the
Freedom of Information Act (FOIA)2,7 which could require its
revelation if the neutral were a government official. Congress
determined that a communication between a neutral and a party
that is confidential under the ADRA is also exempt from
FOIA.' This ambiguity had inhibited the use of government neu-
trals in dispute resolution.29
Some agencies expressed reluctance to use an explicit form of
mediation to resolve multiparty issues, fearing that those assem-
bled to develop an agreement might be regarded as an advisory
committee and hence the whole process would be required to be
conducted under the Federal Advisory Committee Act (FACA).0
The Clinton administration took a hard line on establishing new
advisory committees, and even if they could be approved, it some-
25. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 3,
110 Stat. 3870, 3870 (1996).
26. See Administrative Dispute Resolution Act of 1990, Pub. L. No. 101-552, § 584,
104 Stat. 2736, 2740-41 (1990).
27. See 5 U.S.C. § 552 (1994).
28. See 5 U.S.C. § 5740) (1994). It should be noted that this explicit protection does
not extend to communications among the parties. Discussion among the parties, however,
is closely akin to settlement negotiations without a mediator. Because there is no particu-
lar reason why those discussions should be accorded any different treatment from that
provided to unassisted settlement negotiations, they are treated the same as other settle-
ments. The conference committee made clear that a communication would be regarded as
being between two parties in a situation where a party gives a document to a neutral
who in turn provides it to another party. Since the neutral acts only as a conduit, Con-
gress felt this type of communication should not be covered by the exception. See 142
CONG. REC. 111,110 (daily ed. Sept. 25, 1996) (Joint Explanatory Statement of the Com-
mittee of Conference). The ADRA further provides that documents that are available to
all the parties are not covered by its confidentiality provisions. See 5 U.S.C. § 574(b)(7)
(1994). But, to facilitate the administrative use of early neutral evaluation and other simi-
lar settlement techniques when a neutral furnishes all of the parties with a proposal, the
Act also protects instances where the neutral generates a document that is provided to
all the parties. See 5 U.S.C.S. § 574(b)(7) (Law Co-op. Supp. 1997); see also 142 CONG.
REc. H11,448 (daily ed. Sept. 27, 1996) (statement of Rep. Reed) (discussing exemptions
from FOIA provided for under the statute).
29. There is a fairly broad use of government personnel, known as the "Shared
Neutrals Program," to help resolve internal EEO disputes. See 136 CONG. REc H12,968
(daily ed. Oct. 26, 1990) ("An agency may use the services of one or more employees of
other agencies to serve as neutrals in regulatory proceedings.")
30. Pub. L. No. 92-463, § 1, 86 Stat. 770 (1972), reprinted in 5 U.S.C. app. (1994).
1396 DUKE LAW JOURNAL [Vol. 46:1389
times took six months or more for the paper to wind its way to
approval and establishment of the committee.3' As a result, agen-
cies were understandably nervous about doing anything which
might ensnare them in that bureaucratic nightmare. So agencies
simply avoided the bureaucracy by going underground, by not
using a proven technique to resolve contentious issues, or by sim-
ply not trying to reach consensus at all. Congress tried to address
this situation in two ways. First, it directed the Office of Manage-
ment and Budget (OMB) to "take appropriate action to expedite
the establishment of ...c ommittees established to resolve disputes
under the Administrative Dispute Resolution Act."32 Second,
Congress directed OMB to study the potential for eliminating "any
redundant administrative requirements related to filing a commit-
tee charter... and providing public notice" of the intent to form
negotiated rulemaking committees.33 The reason Congress gave for
not making a similar directive with respect to committees estab-
lished under the ADRA is that FACA simply does not apply to
them.4
Although I have not done any systematic survey or account-
ing, general observation and the Washington scuttlebutt suggests
that the use of consensual processes to resolve adjudicatory dis-
putes is indeed solidly in its adolescence;35 there is currently more
talk about using ADR than actual widespread use. But ADR
processes are now accepted means for addressing these issues: they
31. For a description of one agency's travail, see 142 CONG. REc. S6159 (daily ed.
June 12, 1996) (statement of Sen. Johnston).
32. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 11(e),
110 Stat. 3870, 3874 (1996).
33. Id.T he theory is that the formal notice of intent that is to be published in the
Federal Register would serve as the committee charter so that one document could serve
both purposes.
34. "It is the understanding of the Managers that the Federal Advisory Committee
Act (FACA) applies to proceedings under the Negotiated Rulemaking Act, but does not
apply to proceedings under the Administrative Dispute Resolution Act." 142 CONo. REC.
H11,110 (daily ed. Sept. 25, 1996) (Joint Explanatory Statement of the Committee of
Conference).
35. The DOJ has established an Office of Dispute Resolution. The duties of the
office include clarifying the use and applicability of ADR. Because DOJ had always been
seen as somewhat reluctant to embrace ADR, its action in establishing this office and its
subsequent activities may send an important signal to other parts of the DOJ and other
administrative agencies. Indeed, the Attorney General encouraged the increased use of
ADR in a speech to the American Bar Association at its mid-year meeting, in January
1997, in San Antonio, and in a speech to the Society for Professionals in Dispute Res-
olution in Los Angeles in October 1996.
1997] FEAR OF COMMITMENT 1397
are not alien; they are not regarded as somehow in derogation of
"real" procedure; they are not viewed (at least as much as they
once were) as "giving away the store;" and litigants seem to un-
derstand and accept them with increasing frequency. Thus, it looks
like this adolescent has a promising future.
The ADRA for the first time also authorizes agencies to use
"ombuds" as a form of dispute resolution. 36 In addition, the
Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) also requires agencies to establish ombudsmen to help
resolve regulatory matters.7 Ombudsmen have been widely used
in Europe for decades and their use in the United States has been
considered on multiple occasions,38 it appears that the concept
may finally be taking root in the United States. Indeed, many of
the horror stories about regulation run amok that were raised in
the floor debates on the comprehensive regulatory reform legisla-
tion during the last term of Congress were not in fact problems
with either a statute or implementing rule but'rather were difficul-
ties stemming from their enforcement in the field-precisely the
type of issue that might best be addressed by an ombudsman. Al-
though in incubation for a generation, this approach to regulatory
36. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 2,
110 Stat. 3870, 3870 (1996). There is some confusion over the term "ombudsman" or, the
gender neutral version that Congress employed, "ombuds." The classical use of the term
means an independent government official who receives complaints against government
agencies, who investigates the situation, and if merited, makes recommendations to rem-
edy the complaints. In this way, an ombudsman might be available to resolve conflicts or
other matters between a private citizen and the agency. In some instances, however, the
term has come to refer to someone who helps resolve issues, usually pertaining to em-
ployment in an agency; these are sometimes known as "internal ombudsmen."
37. See 15 U.S.C.A. § 657 (West Supp. 1997).
38. See, eg., Administrative Conference of the U.S., Recommendation No. 90-2, The
Ombudsman in Federal Agencies, 1 C.F.R. § 305-90-2 (1993); WALTER GELLHORN,
WHEN AMERiCANS COMPLAwN: GOVERNMENTAL GRiEvANcE PROCEDURES 57 (1966)
(discussing the workload of Congressmen); WALTER GELLHORN, OMBUDSMEN AND OTH-
ERS: Citizens' Protectors in Nine Countries 1-5, 438-39 (1966) (describing the use of om-
budsmen in seven European countries); SAM ZAGORIA, THE OMBUDSMAN: How GOOD
GOVERNMENTS HANDLE CrrzENs' GRmEVANCES 68 (1988) (noting interest in ombudsmen
expressed by American professional organizations and describing grants made by the
federal Office of Economic Opportunity so that states and cities may study the possibility
of establishing an ombudsman's office); David R. Anderson & Diane M. Stockton, Om-
budsmen in Federal Agencies: The Theory and Practice, 112-122 (1990) (report for
ACUS) (describing the adoption of ombudsmen programs in Scandinavia and summarizing
the history of American interest in ombudsmen).
1398 DUKE LAW JOURNAL [Vol. 46:1389
issues is clearly in its infancy and developments surrounding the
regulatory use of ombudsmen merit careful attention.
Much is happening with regard to the use of ADR in adjudi-
cation. On the other side of the dichotomy, even more develop-
ments are taking place.
IMl. THE USE OF CONSENSUS IN POLICYMAKING
A wide array of techniques has arisen in the past 15 years by
which agencies consult with or otherwise involve the public in
making policy-related decisions. 9 Appendix A sets out those used
by the Environmental Protection Agency (EPA). The first column
is comprised of techniques the agency uses to consult with mem-
bers of the private sector to enhance the parties' understanding of
the situation. In these processes, at least one side will be providing
information to the other, and often there will be a structured
exchange of views. The participants are not expected to reach any
agreement and, indeed, none is achieved. Such discourses are
referred to generically as "information exchanges." The second
column reflects a more ambitious enterprise in which the agency
discusses an issue or set of issues with the expectation that the
participants will reach a general agreement on recommendations to
the agency. But-and this is critically important-it is clear that no
one is "bound" by the decision and that the agency will flesh out
any resulting advice. They are, in short, recommendations. These
techniques are often referred to as "policy dialogues" or simply as
"advisory committees." In the final column are consensus deci-
sions: The parties reach a specific agreement to which each party,
including the agency, is expected to adhere.
39. Because of their more informal procedure, states often used direct negotiations
and other forms of consultation earlier and more frequently than federal agencies. They
lagged, however, on the use of structured forms of ADR. States now appear to be using
such techniques in a variety of settings, including negotiated rulemaking and conferences
to develop legislation. See, e.g., CENTER FOR PUBLIC POLICY DISPUTE RESOLUTION,
TEXAS NEGOTIATED RULEMAKING DESKBOOK (1996); WASHINGTON STATE OFFICE OF
FINANCIAL MANAGEMENT, A GUIDE TO PUBLIC INVOLVEMENT IN RULE MAKING
(1995). Vermont has used a form of negotiated rulemaking for tackling some of its most
difficult environmental issues, such as solid waste disposal and noise pollution. The South
Coast Association of Governments (SCAG) in California is about to embark on a reg
neg to "develop a process in which air quality emissions credit may be given for non-
regulatory or voluntary measures." Letter from Helene V. Smookler, ADR Coordinator,
SCAG, to Philip J. Harter (Apr. 1997) (on file with author).