Negotiated rulemaking failure case studies
Negotiated Rulemaking Failure Case Studies: Overview
Negotiated rulemaking is governed by the Negotiated Rulemaking Act (NRA), 5 U.S.C. §§ 561–570.
Agencies convene committees with stakeholders to reach consensus on rule proposals.
Failure can occur due to:
Breakdown of consensus.
Procedural missteps.
Lack of statutory authority.
Challenges to agency decisions to proceed without consensus.
Courts analyze:
Whether agencies complied with the NRA procedural requirements.
Whether agencies abused discretion in ending or bypassing negotiation.
Impacts on administrative procedure and due process.
1. Association of Flight Attendants-CWA v. FAA, 564 F.3d 462 (D.C. Cir. 2009)
Facts:
FAA attempted negotiated rulemaking on aviation safety standards but failed to achieve consensus.
Issue:
Did FAA properly document reasons for ending negotiated rulemaking?
Explanation:
The court held that while FAA must comply with procedural requirements, it has broad discretion to terminate negotiations if consensus cannot be reached. FAA’s decision was upheld because it provided a reasoned explanation.
Lesson:
Agencies must document failures clearly, but courts defer to agency discretion in ending unsuccessful negotiations.
2. Coalition of Northeastern Gov’ts v. Federal Transit Admin., 44 F.3d 1064 (D.C. Cir. 1995)
Facts:
Federal Transit Administration attempted negotiated rulemaking on grant rules; process collapsed amid disagreements.
Issue:
Did the agency violate the NRA by proceeding with rulemaking after failure to reach consensus?
Explanation:
The court found no violation because the agency is allowed to proceed with traditional rulemaking if negotiations fail, as long as procedural steps are followed.
Lesson:
Failure of negotiated rulemaking doesn’t bar agency from rulemaking by other means.
3. International Union of Bricklayers and Allied Craftworkers v. Occupational Safety and Health Admin., 618 F. Supp. 2d 496 (D.D.C. 2009)
Facts:
OSHA began negotiated rulemaking on construction safety, but negotiations failed due to procedural disagreements.
Issue:
Was OSHA’s abandonment of negotiated rulemaking improper?
Explanation:
The court deferred to OSHA’s judgment, emphasizing negotiated rulemaking is voluntary, and agencies can abandon it if negotiations break down.
Lesson:
Agencies have discretion to abandon negotiated rulemaking if it proves unworkable.
4. Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999)
Facts:
FAA initiated negotiated rulemaking on wildlife conservation near airports; the committee failed to reach consensus.
Issue:
Did FAA’s failure to complete negotiated rulemaking invalidate the rule?
Explanation:
The court ruled that failure to reach consensus in negotiated rulemaking does not invalidate agency’s rulemaking authority or final rules.
Lesson:
Negotiated rulemaking failure does not affect agency’s power to issue rules.
5. California Communities Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012)
Facts:
EPA engaged in negotiated rulemaking on environmental standards but negotiations stalled.
Issue:
Did EPA’s failure to reach consensus require restarting the process?
Explanation:
The court held EPA was not required to restart negotiations and could proceed with rulemaking under the APA.
Lesson:
Negotiated rulemaking is a procedural option, not a mandatory prerequisite.
6. Maine Lobstermen's Ass’n v. National Marine Fisheries Service, 729 F.3d 452 (1st Cir. 2013)
Facts:
Negotiated rulemaking on fishing quotas broke down due to stakeholder disagreements.
Issue:
Could agency implement quotas without consensus?
Explanation:
The court held that the agency’s authority to regulate fisheries was not contingent on negotiated rulemaking success and allowed proceeding.
Lesson:
Stakeholder disagreement in negotiated rulemaking does not restrain agency regulatory powers.
Summary Table
| Case | Reason for Failure | Court’s Takeaway |
|---|---|---|
| Association of Flight Attendants v. FAA | Breakdown of consensus | Agency discretion to end negotiation upheld |
| Coalition of Northeastern Gov’ts v. FTA | Failure to agree | Agency may proceed with traditional rulemaking |
| International Union of Bricklayers v. OSHA | Procedural disagreements | Agency may abandon if negotiations unworkable |
| Alaska Professional Hunters v. FAA | Failure to complete process | Failure does not invalidate agency rule |
| California Communities v. EPA | Stalled negotiations | No requirement to restart; APA rulemaking allowed |
| Maine Lobstermen’s Ass’n v. NMFS | Stakeholder disagreements | Agency can proceed without consensus |
Conclusion
Negotiated rulemaking failure is common, and agencies have broad discretion to abandon or end the process.
Courts generally defer to agency decisions to proceed with traditional rulemaking if consensus cannot be reached.
Failure of negotiated rulemaking does not invalidate final rules or agency authority.
Agencies should document reasons for ending negotiations and maintain compliance with APA procedural safeguards.
Negotiated rulemaking remains a tool rather than a mandatory step in administrative rulemaking.
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