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The interest in so-called voluntary approaches to supplement or replace formal environmental, or occupational health and safety regulation has taken on new importance in both Europe and the United States. These approaches fall into two sharp divisions: (1) industry-initiated codes of good practice focusing on environmental management systems or performance goals, and (2) negotiated agreements between government and individual firms or industry sector trade associations focusing on regulation or compliance. This paper addresses the latter. In the United States, the motivations behind negotiated agreements are manifold and sometimes contradictory including desires (1) to facilitate the achievement of legislated or mandatory environmental goals by introducing flexibility and cost-effective compliance measures, (2) to negotiate levels of compliance (standards) fulfilling legislative mandates, (3) to negotiate legal definitions of Best Available Technology and other technology-based requirements, and (4) to weaken environmental initiatives. Efforts in furtherance of negotiated agreements have thus been greeted with mixed results by the various stakeholders. In the context of an anti-regulatory climate in the United States, the Administrative Procedures Act has been amended to allow "negotiated rulemaking" in achieving regulatory agency mandates. However, even before this legal innovation, regulatory agencies have been negotiating regulations. Independent of this legal avenue, negotiated compliance with industry associations is being fostered through the Environmental Protection Agency's (EPA's) "Commonsense Initiative" and with individual firms through "EPA's Project XL", again with mixed reception. The proposed paper describes and analyses negotiated agreements in the United States in the context of (1) EPA efforts to ensure environmental protection and (2) the Occupational Safety and Health Administration efforts to ensure worker health and safety. These agreements can be described according to the following taxonomy: (a) Negotiated regulation (either preceding formal regulation or as a substitute for formal regulation); (b) Negotiated compliance (implementing regulation or informal agreements) (i) the means and timetable for coming into compliance with emission, effluent, or concentration requirements (ii) negotiation in the context of an enforcement action in which the firm is out of legal compliance (for example, encouraging cleaner production through the leveraging of penalty reductions). The criteria for evaluation include: environmental or health and safety outcomes, effects on stimulating technological change, time for development (time to completion)/implementation (likelihood of court challenge), stakeholder influence (ability of large firms to dominate outcome, environmentalists–industry, or labour–management balance of power),and administrative features.

The interest in so-called voluntary approaches to supplement or replace formal environmental, or occupational health and safety regulation has taken on new importance in both Europe and the United States. These approaches fall into two sharp divisions: (1) industry-initiated codes of good practice focusing on environmental management systems or performance goals, and (2) negotiated agreements between government and individual firms or industry sector trade associations focusing on regulation or compliance. This paper addresses the latter. In the United States, the motivations behind negotiated agreements are manifold and sometimes contradictory including desires (1) to facilitate the achievement of legislated or mandatory environmental goals by introducing flexibility and cost-effective compliance measures, (2) to negotiate levels of compliance (standards) fulfilling legislative mandates, (3) to negotiate legal definitions of Best Available Technology and other technology-based requirements, and (4) to weaken environmental initiatives. Efforts in furtherance of negotiated agreements have thus been greeted with mixed results by the various stakeholders. In the context of an anti-regulatory climate in the United States, the Administrative Procedures Act has been amended to allow "negotiated rulemaking" in achieving regulatory agency mandates. However, even before this legal innovation, regulatory agencies have been negotiating regulations. Independent of this legal avenue, negotiated compliance with industry associations is being fostered through the Environmental Protection Agency's (EPA's) "Commonsense Initiative" and with individual firms through "EPA's Project XL", again with mixed reception. The proposed paper describes and analyses negotiated agreements in the United States in the context of (1) EPA efforts to ensure environmental protection and (2) the Occupational Safety and Health Administration efforts to ensure worker health and safety. These agreements can be described according to the following taxonomy: (a) Negotiated regulation (either preceding formal regulation or as a substitute for formal regulation); (b) Negotiated compliance (implementing regulation or informal agreements) (i) the means and timetable for coming into compliance with emission, effluent, or concentration requirements (ii) negotiation in the context of an enforcement action in which the firm is out of legal compliance (for example, encouraging cleaner production through the leveraging of penalty reductions). The criteria for evaluation include: environmental or health and safety outcomes, effects on stimulating technological change, time for development (time to completion)/implementation (likelihood of court challenge), stakeholder influence (ability of large firms to dominate outcome, environmentalists–industry, or labour–management balance of power),and administrative features.

In the environmental area, negotiated rulemaking, implementation, and compliance are proposed by their advocates as delivering two primary benefits: reduced rulemaking time and decreased litigation over a final agency rule. The experience to date, however, indicates that negotiated rulemaking cannot be relied upon to deliver either of these benefits. Nonetheless, experience indicates that negotiation can, in appropriate circumstances, facilitate a better understanding of issues, concerns, facts, and positions among adversaries, promote the sharing of relevant information, and provide an opportunity for creative problem-solving. This paper examines three negotiated rulemakings by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act. The three negotiations are evaluated according to whether negotiation was instrumental either in securing a more protective standard, or in securing an innovative technological response. It also addresses a fourth type of policy-relevant negotiation -- known as regulatory reinvention -- wherein the agency has assembled groups of interested parties to focus on regulatory issues concerning a particular industry sector, with an eye toward developing "cleaner, cheaper, smarter" ways of reducing or preventing pollution. The three examples studied here indicate that, in situations in which a strong or dramatic regulatory signal is necessary to produce the desired technological response, negotiated rulemaking is not likely to be advisable. Since negotiated rulemaking relies on consensus, and since the regulated industry is unlikely to agree to a regulatory standard that it perceives as having a dramatic effect, negotiated rulemaking is unlikely to creative the incentive necessary to spur innovation. However, where the desired technological change is likely to come more easily, appropriate use of negotiated rulemaking may help facilitate an innovative technological response. Negotiation would appear to work best as a means of securing improved health, safety, or environmental outcomes in situations in which the necessary regulatory signals for improvement and innovation are already in place. This is a primary reason that EPA's Supplemental Environmental Project (SEP) policy has been relatively successful at securing pollution prevention and other environmental benefits as a part of the negotiation of settlement agreements with non-compliant companies. It also suggests that the agency could also encourage meaningful technological change through a more creative and aggressive use of its authority to grant innovation waivers to selected companies at the implementation stage. Moreover, it is a primary reason why EPA's regulatory reinvention strategy has, thus far, failed to live up to expectations.