Monday, February 6, 2023
Negotiating wasn’t part of my education in environmental science or environmental law. At the time, this didn’t seem like a gap. Environmental science and engineering seemed to have little to do with negotiating with other people, and environmental law, I was taught, was rigid—except when regulators bowed to pressure and let clear and strong mandates be undercut. Business-focused students could learn their negotiation skills. Environmental law, in contrast, was for people who could handle pages and pages of prescriptive regulations.
I’ve since learned, however, that’s not how environmental regulation actually works. In every sub-area of the field, people negotiate, and they do it all the time. They negotiate over what projects are going to be pursued and how those projects might be changed. They negotiate over which version of the facts will be the basis for decisions. Often, they negotiate over what will count as compliance. They negotiate settlements, and they negotiate permit terms. Sometimes they negotiate over the process of negotiating.
That’s true not just for the lawyers, but also for the scientists and engineers. At the United States Fish and Wildlife Service and the National Marine Fisheries Service, for example, much of the negotiating is done by biologists. At state and federal air quality regulators, the key permit-writers, and therefore the key negotiators, are often engineers.
In a just-published article, I explore this centrality of negotiation to environmental regulation, along with its implications for the field. One of the most important implications is that educators need to do a better job preparing people for the centrality of negotiating to environmental practice. When I asked people how they were trained in negotiating, the usual answer was “trial by fire.” When asked if they would have liked more training, they said yes. And when I asked experienced attorneys whether training deficits caused problems, the emphatic and repeated answer, again, was yes. As one attorney explained:
I would say the number one reason [why government employees struggle with negotiating] is that they don’t view their role as being a negotiator, even, in fact, when they’re doing it. Instead, they view their role as, “we’re the decision-maker. We have our agenda . . . .” Then they end up getting pulled into a negotiation. I’m not sure they recognize that’s what’s happened or that’s what they’re doing.
On-the-job training can help with these problems. But we can also start in school—not just in law schools, but also in the science and engineering programs that produce most of our regulators and most of the consultants who interact with those regulators. That will mean helping students understand where negotiations arise, what the subject matter might be, and what roles they might play. It also will mean helping them understand how to be good negotiators in complex regulatory environments. I hope the article is a useful step in that direction.
- Dave Owen