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Dave Owen, The Negotiable Implementation of Environmental Law, 75 Stan. L. Rev. 137 (2023).

“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”

Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.

In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney.

The central role of negotiation, Owen argues, is absent from or misunderstood by two opposing critiques of the main body of federal environmental law. He labels these the “command and control” critique and the “slippage” critique.

Owen’s piece is at its zestful best when he uses the centrality of negotiation to take down major portions of the “command and control” critique–the familiar argument that environmental law is excessively rigid, directive and (therefore) inefficient. The pervasiveness of negotiation in implementing environmental law, Owen shows, provides opportunities for much of the flexibility and tailoring that are touted advantages of replacing existing federal regulatory frameworks with privately-operated, market-driven, or less-centralized ones.

Yet, Owen notes, the same view that environmental law mandates are fundamentally inflexible underlies the “slippage” critique, which sees rigidity and directiveness as features, not bugs. “Slippage” argues that when environmental regulators negotiate, they have only one direction to go: down from the strict requirements of the letter of the law. But this misses what Owen calls the “constitutive role” of negotiation in defining “what compliance is” rather than allowing deviation from compliance obligations. (Pp. 4-5.) Sometimes, Owen contends, negotiation produces better environmental protection than…whatever the alternative is.

Owen is careful not to over-claim. He does not contend that exponents of the command and control critique or the slippage critique entirely ignore the existence of negotiation in implementing environmental law. Rather, he convincingly argues that both critiques underestimate the role of, and undercount the benefits of, negotiation in environmental law.

Nor does Owen contend that these critiques are entirely wrong; he merely insists that they should engage with the implementation of environmental law as it exists rather than as it is modeled (or caricatured). By failing to do so, the command and control critique overstates the flaws of existing environmental law and the benefits of reform proposals the critics support. The slippage critique, for its part, understates the beneficial role of negotiation and consequently misses opportunities for improving environmental law implementation by enhancing regulators’ performance in negotiation.

Owen’s sympathy for the slippage critics’ goals, if not their prescriptions, shines through his suggestions for improvements negotiating implementation of environmental law. These suggestions aim primarily at making the government or “pro-environment” side of negotiations work better. Owen suggests that the role of negotiation in regulatory decision-making should be made more transparent; that the responsible government staff should be trained to be more effective negotiators; and that the negotiation process should be made more equitable for interested parties with fewer resources, such as community groups and smaller regulated entities. These ideas are not developed in any detail, but they raise many implementation questions.

For example, it is understandable, that Owen would argue that regulators should be clear with the public and the regulated community about “what they are willing to negotiate, what they are not willing to negotiate, [and] what general goals the agency seeks to achieve in its negotiations.” (Pp. 49-50.) Transparency is a generally accepted norm for government action. But an elementary principle of effective negotiating is that in a negotiation, information is power. To be transparent in a way that is more than uselessly generic but less than strategically destructive is no easy feat. Owen acknowledges that confidentiality may be important in negotiations, but he only begins to suggest how agencies can walk that tightrope.

Similarly, it is easy to suggest that resources be allocated to making government negotiators more effective and to bolster the equitable participation of disadvantaged communities and small businesses in the negotiation process. No doubt, as Owen suggests, formal training in negotiation would help some government officials achieve better outcomes (even while reducing frustration among others at the negotiating table). But this proposal hardly would alleviate the general lack of resources in environmental agencies that Owen also documents, or the policy- and politics- driven directions and limits imposed from above on many government negotiators. As to increasing equity in environmental law negotiations, resources surely are necessary, but it is hard to know if they will be sufficient. Technical Assistance Grants and Community Advisory Groups in Superfund are perhaps the best-known efforts to provide such resources. The literature is full of laudatory references to them, but includes little analysis of how well they have worked or how scalable they may be.

To say that we need to know more about Owen’s proposals for improvement, however, is not to criticize his article but to praise it for one of its great strengths: identifying future research needs. Owen’s compelling demonstration of the centrality of negotiation to environmental law invites study of how, and how well, those negotiations work. Consider CERCLA, the statute Owen holds up as exceptionally explicit about negotiation. The statute, the National Contingency Plan, and reams of guidance documents seem to say what is not negotiable, what is, and to what ends. But in nearly two decades working on Superfund cases, I saw things negotiated that were not negotiable and negotiable things that were not. Perhaps idiosyncratic, site-specific considerations drove those results. But perhaps there are patterns that could be uncovered through systematic assessment. The same is true of every piece of environmental law in Owen’s opening hypothetical.

As Owen himself stresses, a deeper dive into any aspect of the negotiable implementation of environmental law will be hard. He shows that negotiation’s role is often evanescent; it is the epigenetic factors that control the expression of statutory and regulatory DNA code. Sequencing DNA is much easier than figuring out how gene expression is controlled, but we really can’t understand biology without doing both. Owen reminds us that to understand environmental law, we have to understand how it is negotiated.

“This Article should not be novel,” Dave Owen wrote. (P. 49.) But it is, it is.

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Cite as: Steve Gold, Sometimes the Truth Is Staring Us in the Face, JOTWELL (March 5, 2023) (reviewing Dave Owen, The Negotiable Implementation of Environmental Law, 75 Stan. L. Rev. 137 (2023)), https://lex.jotwell.com/sometimes-the-truth-is-staring-us-in-the-face/.