Washington environmental policymaking and regulatory affairs are not the disorderly mix of influence peddling and unchecked agency action that many outside the process think it is. In fact, environmental policymaking in the nation's capital involves intense scientific, technical, and legal debate by a well-defined group of role players. While each issue has its own specific content and schedule, Washington environmental regulation and policymaking follow certain "rules of engagement."
While decision making may appear to be in the exclusive control of one regulatory agency, important regulatory and policy actions actually involve many different Washington stakeholders. The complex web of influence and interaction extends, at the least, to (1) regulatory officials, (2) legislative staff, (3) government scientists, (4) the various units of the Executive Office of the President, (5) inter-agency task forces and ad hoc committees, (6) trade associations and private companies, (7) public interest groups, (8) scientific organizations and the scientific community, and even (9) journalists.
Washington environmental policymaking may seem to involve battalions of federal bureaucrats who are slow to act and determined to deflect private initiative. In fact, Washington environmental policymaking usually involves fierce inter-agency criticism and competition. Federal officials vie just as strenuously with each other as they do with the parties they regulate, while striving to maintain the appearance of unanimity for the outside. Internal federal competition and conflict are the result of checks and balances in the tripartite federal system, Republican and Democratic competition, state-federal tensions, and the Republican Congress and Democratic White House. For private parties, this competition creates a fertile seedbed for effective advocacy.
Conflict begins inside an agency, where competition over budget and staff cause policies to be challenged more often than an outsider might think before they even see the light of day. The many offices of the Executive Office of the President, especially the Office of Management and Budget and its Office of Information and Regulatory Affairs, interject themselves with varying degrees of forcefulness. Agency scientists and regulatory officials dispute the significance of technical studies. "Enforcement" and "program" offices may argue over flexibility. Upper level "Schedule C" political appointees struggle with career civil servants. Attorneys in the agency's office of general counsel may challenge agency program personnel over the meaning of statutory directives. Intra- and inter-agency competition sometimes reaches white-hot heat when knowledgeable outside stakeholders begin to fuel the fire.
Skillful top political appointees can make a great deal of difference in environmental policy outcomes, but the emphasis is on "skillful." The public may question the paper-thin credentials of some political appointees, but stressing substantive knowledge of the field may miss the mark. Political appointees' skill may have little or nothing to do with the subject matter of an issue, and everything to do with how well they understand the Washington policy-making process and inter-agency rivalry, i.e., the points made above. If unskilled appointees alienate the civil servants who "report" to them by too often seeking the limelight, or by discrediting the efforts of the staff upon whom they depend, the career professionals have many ways of getting even.
Washington regulatory decision making is glacially slow. Decision making is slowed by turnover among political appointees, as well as by agency staff re-assignments while new personnel familiarize themselves with the issues. Lower officials are cautious, because progress up the federal bureaucratic ladder occurs by not rocking the boat, not by providing the kind of leadership that may bring advancement in the private sector. Because federal proposals have long gestation periods, knowledgeable participants are surprised how often a company or trade association is taken unaware by policy initiatives. It should not be terribly hard to stay abreast of federal intentions.
Most career officials avoid attracting attention. Personal advancement is much slower if a civil servant visibly takes risks and is too decisive. Incremental progress, frequent meetings to seek consensus, quiet collaboration with outsiders, and the widest consultation with colleagues before taking action all characterize the federal professional's behavior. Consequently, it is surprising how often groups publicly criticize an agency, for example, by holding press conferences. This may help a public interest group raise funds, or show one's corporate superiors that one is visibly doing something to combat misguided federal actions, but such a course may not produce better or more prompt results.
Government policymaking is remarkably transparent, but more to key stakeholders than to the general public. Confidentiality in federal government policymaking is rare. The reasons, quite simply, are the large number of federal role players, inter-agency competition, and the officials' conflict-adverse nature. Ironically, Washington agencies seem almost to guarantee outside access by marking documents "draft" or "internal use only." Anonymous leaking of such documents occurs because at least one federal stakeholder is likely to disagree with every proposal. Leaking means fewer policies produce a major surprise, which would cause conflict and disruption. And leaking builds up credits in the private (including nonprofit) sector, in which federal employees may aspire to work.
Congressional hearings on new bills and oversight hearings on agency programs are important, but the classic legislative hearing is the tip of the iceberg of Congress' involvement in regulatory policymaking. Daily congressional impact on federal regulatory policymaking occurs through the specific contacts Senators and Congressmen make regarding matters pending before regulatory officials. Written congressional inquiries on specific issues may get the "red-border review" usually reserved for final approvals of new rules, i.e., the agency's cover memo requesting prompt response circulates with a bright red border to catch the eye. Verbal inquiries, particularly from a member, get top priority.
The most important advocacy in Washington occurs before formal proposal of a rule, and certainly before judicial review of administrative action. The key is in realizing that the very earliest agency requests for information, studies, and technical meetings, and informal discussion of issues and options are the most important opportunities companies will ever have actually to alter the outcome of agency action. By the time a rule has been formally proposed, the agency's most important data-gathering and analysis are complete, and its position will be firmly defended. Formal comments usually are submitted too late to change fundamental policies except by expenditure of considerable resources, and even then successes are rare.
In the late 1990s, successful judicial review challenging agency action is possible, but is expensive, and usually means that advocacy was inadequate in the critical earlier stages of policy development. Proving that an agency action is unreasonable under the deferential "arbitrary and capricious" standard is difficult and resource-intensive. Heads up, early intervention works best and is more cost-effective.
The attorney's experience and training is perfectly suited for scientific and technical advocacy. There is talk about the diminished role of attorneys in environmental policymaking. The evidence, however, is to the contrary in Washington. Environmental policymaking critically involves advocacy, albeit with extensive scientific and technical components. Too often, a company that relies exclusively on persons whose strengths are in science and engineering finds that key issues are not addressed as the law, policy, and the media address them, with the result that the company fails to achieve its objectives in Washington. Correspondingly, a company that relies too heavily on persons with political insight may find that it has covered the law, agency policy, and the media and has excellent access, but lacks the scientific and technical arguments that should be made once access is obtained. Effective Washington representation requires a balance &emdash; the kind a Washington lawyer strives to achieve.