Linking Science to Decision Making in Environmental Policy:
Bridging the Disciplinary Gap

 






MIT Press, forthcoming

by


Matthew Cahn

Professor of Public Policy
Department of Political Science
California State University, Northridge
18111 Nordhoff Street
Northridge, CA91330-8254
matthew.cahn@csun.edu

 

 

Abstract

Linking Science to Decision Making in Environmental Policy: Bridging the Disciplinary Gap examines the role of science in moderating interest-based politics in resource management and environmental stewardship.The manuscript examines the tensions between the assumptions of science and those of policy in an effort to bring science and policy closer together.Policy scholars note that policy is always made within a context of uncertainty (imperfect knowledge).Science can help narrow the scope of that uncertainty.While several observers have voiced concern that technical policy areas may increasingly become the sphere of “experts”, leaving traditional policy constituents behind, this manuscript builds a model of science based policy processes where management decisions are based on stakeholder input but constrained by scientific efficacy.

Linking Science to Decision Making in Environmental Policy:  Bridging the Disciplinary Gap

Matthew Cahn
Bren School of Environmental Science and Management
University of California

 

Linking Science to Decision Making in Environmental Policy: Bridging the Disciplinary Gap examines the role of science in moderating interest-based politics in resource management and environmental stewardship.The project examines the tensions between the assumptions of science and those of policy in an effort to bring them closer together. Policy is always made within a context of uncertainty (imperfect knowledge).Science can help narrow the scope of that uncertainty.Several observers have voiced concern, however, that technical policy areas may increasingly become the sphere of “experts”, leaving traditional policy constituents behind.

This manuscript contributes to a model of science based policy processes where management decisions are based on stakeholder input but constrained by scientific efficacy.There has been an enormous amount of scholarship on the influence of executives and legislatures on environmental policy.Yet, most policy decisions are made at the administrative level, where there has been relatively little study in comparison.The model is, in effect, one step beyond negotiated rulemaking, where an agency’s proposed rule is driven by a consensus based group process and reviewed by an independent science panel.This model, in contrast, brings together a science advisory panel which works in consultation with the consensus based group to provide technical expertise and science based tools for better policy.Ultimately, the Science Panel will evaluate the scientific efficacy of any recommendation.

The manuscript illustrates both the tensions and resolutions through several case studies of Marine Protected Area establishment.The MPA question is useful for two primary reasons.First, and most importantly, the MPA process in the National Marine Sanctuaries is currently the most forward pushing regarding alternative approaches to rulemaking.This in part may be explained by the relative insulation the agency enjoys.Though the specific sanctuaries enjoy high visibility in their regions, relatively few people are aware of the agency’s mission.Second, the question of Marine Protected Areas is increasingly important both as an ecological tool and as a policy response.[1]Clinton’s Executive Order 13158 on Marine Protected Areas establishes a federal priority for “an expanded and strengthened comprehensive system of marine protected areas throughout the marine environment” to “enhance the conservation of our Nation’s natural and cultural marine heritage and the ecologically and economically sustainable use of the marine environment for future generations.”[2]Similarly, several states have created state MPAs around the country.Among the most significant, California’s Marine Life Protection Act (AB 993) requires the state to establish a master plan for the management of marine reserves and protected areas.[3]

In addition, MPAs provide a robust case study in that they bring together a wide variety of passionate interest based stakeholders.If commercial fisherman and conservationists can work together in a facilitated process examining no-take zones there is reason to believe that the process has potential for many other natural resource questions.Finally, MPAs are fairly well distributed across the nation’s coastal waterways, bring a national dimension to the case study discussion.

Significance of Study

Ultimately, the manuscript is intended to develop a protocol to maximize cross-disciplinary decision making in environmental policy.Policy efficacy can be improved to the extent the paradigmatic conflict between science based assessment and interest based policy making can be resolved.Environmental policy and resource management is but one area where paradigmatic conflicts preclude longterm problem solving.Science and energy policy, as well as policy in emerging technologies provide similarly conflicted policy processes.The increasing reliance on technology based policy tools will further exacerbate these tensions if left unabated.This manuscript, therefore, provides an important step in bringing multiple disciplinary approaches together in an open and structured manner, to allow for better disciplinary integration – and, one would hope, better policy responses.The study is especially relevant because it engages three areas where little work currently exists.First, the theoretical framework of the book – overcoming the tensions between science and policy – provides an important discussion of an issue that many observers recognize, but few studies have addressed directly.Second, the broad discussion of negotiated rulemaking (Neg/Reg), regulation negotiation (RegNeg), and shared factfinding make the book of particular interest to those interested in alternative approaches to administrative policymaking.And finally, the deep examination of the Marine Protected Area case study provides one of the few book length treatments of a resource management tool that has become increasingly important – and of interest – over the past few years.In short, the contribution this manuscript makes is in confronting head-on the paradigmatic tensions that permeate the policymaking environment, and in prescribing tools that will mitigate those tensions – with the result of greater policy efficacy.

Methods of Analysis

The central research question the manuscript examines is the extent to which the tensions between science and interest based policymaking can be overcome.The subsidiary questions include defining the sources of these tensions, identifying tools which can be utilized to mitigate these tensions, and finally, evaluating the viability of these tools in real world applications.In answering these questions the manuscript incorporates a cross-methodological theme, building a model to bring a truly civic science into resource management policy.Analytic methodologies include case study analysis, as well as in-depth interviews and focus groups of policy staff at the rulemaking level in implementing agencies and of university based scientists who have participated in formal policy advisory roles, including both science advisory panels (SAPs) and as contract analysts.


Contents

Linking Science to Decision Making in Environmental Policy:  
Bridging the Disciplinary Gap
 

Chapter One:  Introduction

The Importance of the Research Question
The State of the Literature
The Utility of Marine Protected Areas as a case study


Chapter Two:  The Problem

The Paradigmatic Tensions between Science and Policy
Problematic Role of Public Participation
Formalization of Rulemaking Framework
Emerging Role of Science Advisory Panels
Clean Air Policy as Case Study of these Emerging Tensions
Chapter Three:   Resolution A:  Negotiated Rulemaking
     Emergence of Negotiated Rulemaking
     EPA Model of Negotiated Rulemaking
Chapter Four:  Resolution B:  Tortugas 2000 (FKNMS)
     Moving Beyond Negotiated Rulemaking
     The Question of Marine Protected Areas
     Rulemaking in Florida Keys National Marine Sanctuary (FKNMS)
     Lessons Learned:  A New Model in Negotiated Rulemaking
Chapter Five:  Resolution C: Channel Islands National Marine Sanctuary (CINMS)
   Applying the Lessons from Tortugas 2000
   Rulemaking in Channel Islands National Marine Sanctuary
   The CINMS Policy Subsystem in Context
   Moving From Negotiated Rulemaking to Civic Science
   Lessons Learned
Chapter Six: Analysis: Generalizable Lessons in Rulemaking
    From The Administrative Procedures Act (1946) to CINMS
     Generalizable Lessons in Rulemaking
Chapter Seven:  Conclusion
  Restatement of Overall Thesis, Problem, Resolution
   Lessons to Walk Away With
   Alternatives to Rulemaking in the Real World

Technical Notes

Pages:280-300 manuscript pages
Data Processing:Manuscript will be delivered on CD-ROM in MS Word 2000

Date of Delivery:May 2002

Time Frame for Submission of Complete Manuscript
This project is the focus of my current sabbatical, which I am spending as a visiting professor at the Bren School of Environmental Science and Management at UCSB.This allows me significant time and support for the manuscript.Consequently, the time frame for delivery of reviewable manuscript is 18 months.

Linking Science to Decision Making in Environmental Policy:

Bridging the Disciplinary Gap

 

Exploratory Essay

The problem this manuscript addresses is the increasingly tense relationship between science based problem-solving and democratic policy making.Several observers have noted that this tension may be more than simply a result of different protocols.Kuhn (1970) provided the primary argument that science is not neutral, but a methodology that is by definition beset by normative assumptions and paradigmatic bias.Sabatier and Jenkins-Smith (1993) see longterm policy change as a result of policy analysis and learning based on an advocacy coalition’s core values.Shrader-Frechette and McCoy(1993) argue that science is filled with ethical and methodological value judgements.Schneider and Ingram (1997) argue even more pointedly that the structure and design of contemporary public policy discourages active citizen participation: “Rather than provide institutions and symbols to ensure that the self-correcting mechanisms of pluralist democracy will be operative, the policies deceive, confuse, and in other ways discourage active citizenship....”[4]In Democracy and the Policy Sciences (1997) Peter DeLeon suggests that Americans are increasingly frustrated with political gridlock, impersonal government, and bureaucracies that appear Byzantine to anyone outside of the organizational structure, all of which manifests in low levels of traditional participation (e.g., low voter turnout) and increasingly harsh displays of political cynicism (e.g., “bureaucrat bashing”).
In short, the core assumptions of science and policy are fundamentally different.Science is empirical – it assumes a high degree of training and expertise. There is a narrow protocol of acceptable methodologies, and outcomes are empirically justifiable according to these methodologies. By definition access is limited.In contrast, policy is normative – defining what we ought to do.Policy assumes multiple interests and stakeholders.There is no agreed upon protocol – multiple methodologies are utilized.Policy outcomes are not empirically justifiable.And, policy access is – at best –unlimited.Stated another way, if science is rational and democracy is non-rational, there is bound to be conflict.

It is no surprise, then, that bringing effective science into the policy process has been extremely challenging.The traditional approach has been to allow interest based decisions to drive policy, with the hope that a policy approach will be successful.The emergence of rulemaking created technocratic approaches that have tied policy to staff decision-making with little or no public participation.Those concerned with maintaining robust democratic participation have examined a variety of approaches that might mitigate the tensions, but few observers have offered substantive improvements.

Traditional Resolutions

Traditional resolutions have included science advisors to elected policy makers, staff scientists working closely with implementing agencies through rulemaking, and independent science advisory panels that offer recommendations and review proposals.These approaches are important in their ability to get scientists and policy staff talking to each other, but they fail to provide a substantive framework through which both science based rationalism and interest based democracy have an equal and integrated footing.Several traditional resolutions are discussed below.
Rulemaking

Rulemaking refers to the development of day to day controls and regulations developed by implementing agencies.While statute provides broadly defined goals and objectives, often with specific targets and programs, implementing agencies are tasked with developing specific rules to achieve statutory objectives.The Administrative Procedures Act (1946) formalized the process by which implementing agencies make decisions.APA defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”[5]This cumbersome sentence effectively designates implementing agencies – extra-Constitutional institutions -- as the primary source ofadministrative rules and regulations.And, while legislators and congressional staff confer with scientists and other experts while developing or marking up bills, it is at the agency level where scientists play a most significant role.

Conventional rulemaking occurs in two stages, evaluation of the issue at hand and establishment of rules based on that evaluation.In the evaluation stage, staff identify the issues and deadlines established in statute.They then assess relevant regulatory responses, and compare potential responses to selection criteria established by the enabling legislation, or by administrative fiat.[6]During this time agencies may hold meetings with regulated industries, and scope out public concern through scoping meetings in affected regions.The evaluation requires agency staff, including agency scientists, to develop appropriate actions that link substantively to statutory objectives.In many areas, supplemental panels of nongovernmental scientists provide additional comment and recommendation to agency staff.[7]

The rulemaking stage requires staff to draft proposed rules, and to circulate draft rules for internal and external review.Finally, the agency is required to publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register.The proposed rule is subject to public comment, and the agency is required to respond to the issues brought up in comments.The agency revises rule, if necessary, and publishes the final rule.

As a resolution to the tensions between science and policy, rulemaking has been somewhat successful.Clearly, agency staff are better prepared to establish meaningful rules when they partner with scientists.However, the level of participation by the public may be increasingly narrowed as technical policy areas rely more and more on science based outcomes.The existence of Science Advisory Panels may improve the rational basis of policy, but they may also limit opportunities for public participation.

EPA Science Advisory Panels

Science advisory panels have been utilized in some form for decades, though the contemporary model – as defined by federal statute, regulations, and executive orders – is quite formal.EPA, for example, has ten panels, overseen by the EPA’s Science Advisory Board (SAB).The SAB, in its present form, was established by the Environmental Research, Development, and Demonstration Authorization Act in 1978.In carrying out its mandate the SAB provides scientific advice to the EPA Administrator, as well as the Senate Committee on Environment and Public and the House Committees on Science and Technology, Interstate and Foreign Commerce, Public Works and Transportation.
Formally, the SAB evaluates “the soundness of the technical basis of the science policy position adopted by the Agency.”[8]The ten panels under the SAB include:
Clean Air Scientific Advisory Committee (CASAC)

Environmental Processes and Effects Committee

Environmental Engineering Committee (EEC)

Environmental Health Committee (EHC)

Radiation Advisory Committee (RAC)

The Integrated Human Exposure Committee (IHEC)

Research Strategies Advisory Committee (RSAC)

Drinking Water Committee (DWC)

The Council on Clean Air Compliance Analysis (CCACA)

Environmental Economics Advisory Committee (EEAC)

The SAB also utilizes an Executive Committee (EC), composed of the Chairs of the panels and several Members At-large, which meets quarterly to review and give final approval for all SAB reports.[9]As a Federal Advisory Committee, the SAB must comply with Federal Advisory Committee Act (FACA) requirements for public announcements of meetings and allow opportunities for public comment on issues before the SAB.[10]The EPA has acknowledged the tendency for the agency to increasingly rely on technical experts:

Increasingly, the Agency has placed a premium on basing its regulations on a solid scientific foundation. Consequently, over the past 16 years the SAB has assumed growing importance and stature. It is now formal practice that many major scientific points associated with environmental problems are reviewed by the SAB. For example, the Clean Air Act (CAA) requires that decisions related to the National Ambient Air Quality Standards (NAAQS) be reviewed by the Clean Air Scientific Advisory Committee (CASAC), which is administratively housed within the SAB.[11]

In this context, science advisory panels clearly present a potential for excluding public participation to an increasing extent. In the context of resource management this has been a concern both to conservation groups – who fear the inclusion of industry scientists on panels – and to industry – who fear that agency staff may be overly aggressive in formulating rules.The consequence was the establishment of a statutory framework for public involvement through the Negotiated Rulemaking Act (1990).[12]

Negotiated Rulemaking Process

Negotiated rulemaking (Neg/Reg) brings together affected stakeholders in a consensus based process to clarify issues and concerns, as well as to establish rulemaking criteria, before a draft rule is formally published as a proposal.[13]The Neg/Reg committee is chartered under the provisions of FACA, and is facilitated by a neutral mediator.As all FACA chartered committees, the negotiated rulemaking committee and its process is open to the public.Stakeholder representatives are selected by agency staff, the facilitator, and an initial group of stakeholders.Several agencies report that regulations drafted under this process tend to be more effective and less likely to be challenged in court.[14]

Unlike the two stage approach used in conventional rulemaking, negotiated rulemaking occurs in several stages, with the specific process being defined by the Neg/Reg committee in accordance with the general framework established by NRA.[15]The model below is the EPA version.

Evaluation

The first stage includes identification of issues, mandates, and deadlines by agency staff.That is followed by the identification of as many interested parties as possible, and the establishment of initial selection criteria.The agency will publish a notice of the Neg/Reg committee inviting applications for participation.Agency staff will then confirm management interest in the Neg/Reg process.Finally, the agency will select a convener, who will act as the process champion, but will not act as facilitator.

Convening -- Phase 1

The second stage is to convene the initial stakeholders for the first time.The group will identify additional parties that need to be at the table.The Neg/Reg process will then be discussed in detail with all parties to determine the willingness of the parties to negotiate.Staff must then report to the agency and obtain agency management commitment to the process.The preliminary selection of 15-25 participants is finalized.

Convening – Phase 2 

The next stage requires an explicit commitment of all parties to negotiate, over and above the existing willingness established in the first meeting.The agency will process a FACA Charter for the Neg/Reg committee, and in consultation with the stakeholders will select a neutral facilitator.Agency staff will respond to public comments on published "notice", if any, and Neg/Reg committee will adjust committee membership if necessary.Organizational meetings will occur, as will committee orientation.

Negotiations

The hard work of the process, of course, is the negotiation itself.To facilitate this, the statutory framework requires the establishment of explicit groundrules and protocols.Part of this includes explicitly defining what is meant by "consensus."The groundrules are created by the committee itself, with assistance from the facilitator.The agency does not define groundrules and protocols apart from the stakeholder process.As a FACA chartered committee, all Neg/Reg committees must set and publish a meeting schedule.The committee will then begin to review pertinent information on the issues before it, and as necessary will establish work groups or subcommittees. This shared factfinding is a critical part of the process as it allows stakeholders to develop a consensus on the problem, if not on a response. Ultimately, parties will negotiate toward an agreement on draft rules, with the specific text or outline detailed if at all possible.

Rulemaking 

Once negotiations have concluded, the agency will move toward publication of proposed rule. If consensus was reached on language of rule, the agency circulates draft for internal/external review, and publishes consensus as draft rule.If consensus was reached only on primary issues or on an outline draft rule, agency staff drafts proposed rule, and circulates draft for internal/external review before publishing Notice of Proposed Rulemaking (NPRM).If a consensus is not reached the agency proceeds with rulemaking using discussions as a guide, and drafting, circulating, and publishing NPRM. This is an important point.The consensus-based process does not relieve the agency of the responsibility of moving forward with a proposed rule.In this sense, failure to achieve consensus will not result in regulatory stalemate.The agency will simply use its discretionary authority to meet its rulemaking obligation – albeit with greater knowledge of stakeholder concerns articulated during the negotiation process.As with conventional rulemaking, the draft rule is subject to public comment.The Neg/Reg committee is notified of public comments, and the agency responds to those comments.If necessary, the agency revises rule, and publishes final rule.

The formal inclusion of stakeholder representatives, and by extension of the public at large, goes far toward resolving the primary tensions between science and policy. Formally linking policy staff and scientists with stakeholders creates an important linkage between technocrats and the public.As such, negotiated rulemaking has become the standard model from which to build.Two critical barriers, however, remain to resolving the science/policy problematic.First, existing statute strongly encourages Neg/Reg but does not require it – leaving the door open for lackluster implementation.Second, even when fully implemented, the Neg/Reg process does not integrate science based problem-solving with stakeholder negotiation.Scientists are still working from within the traditional paradigm of rational empiricism while stakeholders continue to negotiate from a narrow interest-based perspective.The original problem, then, continues to persist.The scientific method is incapable of determining normative goods – which most scientists will readily remind us – while self-interested political bargaining is an incomprehensible framework for rational evaluation of the linkage between potential policy tools and recognized problems.However, if we understand Neg/Reg as a starting point rather than an end point several opportunities appear.

Alternatives to Negotiated Rulemaking: The Question of Marine Protected Areas
While each federal agency implements its own version of the Neg/Reg process, the National Ocean Service within NOAA in the Department of Commerce has demonstrated a particularly effective model.Two of the National Marine Sanctuaries have taken on the question of Marine Protected Areas (marine reserves) through a process that goes much further to integrate the conflicting paradigms.Both the Florida Keys and Channel Island National Marine Sanctuaries have created a three panel approach to Neg/Reg.The basic structure places the agency in the position of convener, with the Neg/Reg committee (referred to as the Marine Ecological Reserve Working Group) made up of stakeholders and agency staff.The Neg/Reg committee is supported by two additional panels -- an independent science panel examining the ecological utility of marine reserves in a narrow science based approach, and a “socio-economic panel” examining the economic implications.The primary goal of such an approach is to overcome the paradigmatic conflicts by linking Neg/Reg committee discussion to specific science based alternatives.

Tortugas 2000: Florida Keys National Marine Sanctuary

In the Florida Keys process, referred to as Tortugas 2000, the Florida Keys National Marine Sanctuary (FKNMS) established a science panel and economic panel, and in consultation with its Sanctuary Advisory Council established a stakeholder working group.They then brought in both NOAA and independent local facilitators.[16]Tortugas 2000 used a process that had the Science Advisory Panel evaluate potential reserve utility, and make a recommendation to the Working Group, who were supported by the socio-economic panel.This highlighted a significant flaw in the process:there was a significant lack of stakeholder ownership in the reserve recommendation.Many participants – particularly from commercial interests – voiced concern that they were being handed a recommendation to endorse, rather than allowed to negotiate toward their own recommendation.In other words, the paradigmatic conflict quite naturally precluded interest-based stakeholders from receiving the science panel recommendation as a neutral document.The stakeholders played no part in the development of the science based recommendation, and therefore saw it as suspect.In the end, the Working Group was able to evaluate the ecological recommendation, and integrate the socio-economic implications.The Working Group recommendation went forward, and the agency proposed the draft rule.[17]Several lessons from the Tortugas 2000 process were learned.First, the science panel must work with the stakeholder process.Second, stakeholders must be brought into the science based evaluation early.NOAA facilitators brought these lessons to the Channel Island process, with a plan to have the Working Group develop its own recommendation based on Science Panel and economic data.Then, the scientists would evaluate the Working Group recommendation to assess reserve efficacy.

The Channel Island National Marine Sanctuary Approach

As the Channel Islands process unfolded, it became clear that further refinement would be necessary.The scientists pointed out that the Working Group would not be capable of delivering an ecologically sound reserve design without affirmative direction from the scientists.Still NOAA facilitators were concerned that the Channel Islands process not repeat the mistakes made in Tortugas 2000.In the end, agency staff developed an innovative approach to fully integrate the stakeholders with the science.
The stakeholder Working Group and the science panel were convened simultaneously in order to better link the committees from the start.Those aspects of the science panel’s assessment that were based on normative judgments – such as defining goals and objectives – were tasked to the Working Group.Those aspects of the Working Group’s discussion that relied upon science based information were reviewed by the Science Panel.The socio-economic panel collected economic data, including surveying commercial fisherman in the affected areas, and made those data available to the Working Group.The process represented the best ideal of civic science, where stakeholders were integrated into the scientific process of evaluation in all areas where normative decisions exist, including: a) framing the problem in partnership with scientists; b) defining goals and objectives, in consultation with scientists; c) and, application of final ecological data to stakeholder reserve recommendation.Scientists evaluated the state of the science on marine reserves, assembled appropriate datasets, and analyzed those data using theoretical modeling, case study analysis, and computer based annealing.[18]In short, the CINMS process included the following stages:
The Agency Staff worked with the Sanctuary Advisory Council to establish a Marine Ecological Reserve Working Group (MRWG), and an independent Science Panel.As working groups of the SAC, MRWG and Science Panel chairs are members of the SAC.The members of the socio-economic panel included agency economists and independent researchers.A NOAA facilitator and a local independent facilitator were brought on board to mediate the discussion.

Stakeholders in the Working Group established groundrules, committed to process, and assessed committee membership to identify who else should be at the table.

The MRWG began shared factfinding as the Science Panel initiated a series of informational briefings. The MRWG defined the specific problem that is to be addressed in consultation with agency staff and the Science Panel.

The MRWG defined specific goals and measurable objectives in consultation with the Science Panel.And, the MRWG revised Goals and Objectives consistent with Science Panel feedback.

The Science Panel assessed available datasets, and applied the MRWG’s objectives.The SAP developed several “goal oriented options” that are spatially explicit.

The MRWG is currently assessing these alternatives while integrating data from the socio-economic panel.Ultimately, the MRWG will negotiate options and make a preliminary reserve recommendation.Then Science Panel will then evaluate the draft recommendation to assess design efficacy and report back to the MRWG.The MRWG will revise its recommendation to accommodate SAP feedback, and will make its recommendation to the Sanctuary Advisory Council.

From Neg/Reg to Civic Science

The CINMS process is not yet complete, however it is possible to make some preliminary assessments.The process would be more effective if there were a stronger negotiated rulemaking framework to encourage good faith among stakeholders.The MRWG is not cognizant of the broader rulemaking process at play, and are negotiating to some extent in a vacuum.The agency responsibility to move toward a proposed rule is not well understood, and consequently some stakeholders are not motivated to complete the process, perhaps assuming that failure to conclude would equate to failure to establish a proposed rule.Further, a clear exit strategy is needed to allow for process completion.It is clear, as well, that as convener, the agency should not be acting as a stakeholder represented by a voting member of the MRWG.This will place agency staff in an awkward position later should there be a lack of consensus among the MRWG.Finally, the socio-economic panel should be an independent panel of economists and social scientists, in the same model as the Science Panel.That would allow process consistency, and provide a more neutral dataset for MRWG consideration.
There is another curious note to the NMS process.The Marine Ecological Reserve Working Group (MRWG) will be making a recommendation to the Sanctuary Advisory Council (SAC), rather than the agency directly.The SAC will then make a recommendation to the agency.Consequently, there is ample opportunity to degrade the quality of the regulation negotiation within the SAC discussion.As well, since the SAC is precluded by statute from the requirements of FACA, the Working Group is precluded.It is not yet clear whether this greater flexibility provides greater effectiveness or greater vulnerability.
Still, even at this preliminary juncture, it is clear that the evolving model of Neg/Reg is closer to resolving the paradigmatic conflicts that have long kept science and participatory policy making at arms length. When scientists and interest-based stakeholders are successful at linking their analytic approaches a truly civic-science based rulemaking process will have emerged.This can only occur in a well facilitated process where agency staff recognize the primary role they play in working through the paradigmatic tensions.There are several practical issues to work through, though preliminary experiences like those in Channel Islands suggest that the effort will be well rewarded.

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[1]Note the literature in MPA efficacy.See for example Andelman, Sandy J. 1997. “Designing and Assessing the Viability of Nature Reserve Systems at Regional Scales: Integration of Optimization, Heurisitc and Dynamic Models - Report of Progress and Activities.”A Report of the National Center for Ecological Analysis and Synthesis (NCEAS).UCSB.See also Murray, Steven, et. al. 2000."No-Take Reserve Networks:Sustaining Fishery Populations and Marine Ecosystems."In Fisheries Management.
[2]See http://mpa.gov/ex1_exec_order.html for the complete text of the Executive Order.
[3]See http://leginfo.ca.gov/pub/bill/asm/ab_0951-1000/ab_993_bill_19991010_chaptered.html for the complete text of California’s Marine Life Protection Act (AB 993).
[4] Schneider and Ingram (1997:5).
[5] See Kerwin’s Rulemaking: How Government Agencies Write Law and Make Policy (1999) for a full discussion on agency rulemaking.
[6] Presidential priorities formalized in executive orders typically establish selection criteria.Reagan's executive order #12291, for example, instituted a narrow economic criterion, stating that all policies administered by executive agencies be implemented only when "potential benefits to society outweigh potential costs to society."
[7] APA required agencies to accept written public comments, though the statute did not require agencies to respond or incorporate those comments. Since 1946, however, several statutory reforms and executive orders have required explicitly that agencies respond formally to public comments.
[8] The EPAs SAB and SAPs are defined and explained at http://www.epa.gov/science1/sabmore.htm.
[9] except those from the CCACA and CASAC which are separately chartered Committees who report directly to the EPA Administrator.
[10] at http://www.epa.gov/science1/sabmore.htm
[11] Ibid.
[12]Section 2 of Pub. L. 101-648 provided that: ''The Congress makes
the following findings:
''(1) Government regulation has increased substantially since

the enactment of the Administrative Procedure Act (see Short

Title note set out preceding section 551 of this title).

''(2) Agencies currently use rulemaking procedures that may

discourage the affected parties from meeting and communicating

with each other, and may cause parties with different interests

to assume conflicting and antagonistic positions and to engage in

expensive and time-consuming litigation over agency rules.

''(3) Adversarial rulemaking deprives the affected parties and

the public of the benefits of face-to-face negotiations and

cooperation in developing and reaching agreement on a rule.It

also deprives them of the benefits of shared information,

knowledge, expertise, and technical abilities possessed by the

affected parties.

''(4) Negotiated rulemaking, in which the parties who will be

significantly affected by a rule participate in the development

of the rule, can provide significant advantages over adversarial

rulemaking.

''(5) Negotiated rulemaking can increase the acceptability and

improve the substance of rules, making it less likely that the

affected parties will resist enforcement or challenge such rules

in court.It may also shorten the amount of time needed to issue

final rules.

''(6) Agencies have the authority to establish negotiated

rulemaking committees under the laws establishing such agencies

and their activities and under the Federal Advisory Committee Act

(5 U.S.C. App.). Several agencies have successfully used

negotiated rulemaking.The process has not been widely used by

other agencies, however, in part because such agencies are

unfamiliar with the process or uncertain as to the authority for

such rulemaking.''

[13] Note that Neg/Reg refers to Negotiated Rulemaking while RegNeg refers to regulation negotiation.A RegNeg is a less formal process of negotiation between a regulatory agency and regulated client, with an objective of reaching an Agreement in Principle (AIP) rather than a consensus on a proposed rule.
[14]See for example, the Department of Labor (http://www.dol.gov/dol/asp/public/programs/negreg/negbrief.htm).Negotiated Rulemaking is companion legislation to the Administrative Dispute Resolution (ADR) Act.See http://www.dol.gov/dol/asp/public/programs/adr/adrbrief.htm.
[15] For specific statutory language see Title V, Chapter V, Subsection III of the U.S. Code (http://uscode.house.gov/usc.htm).
[16] The Sanctuary Advisory Councils are provided for in the National Marine Sanctuaries Act (1972), but they are statutorily precluded from the requirements of FACA.This is a curious historical footnote, which may reflect a concern that the SAC would present a challenge to agency management, and therefore ensures a weaker advisory component.The SAC is made up of regional stakeholders who are selected by the regional sanctuary manager, and who serve three year terms.Each SAC is required by statute to create a charter, which may reflect many of the sunshine concerns of FACA.
[17]The rule is summarized as: “The Florida Keys National Marine Sanctuary (FKNMS), working in cooperation with the State of Florida, the Gulf of Mexico Fishery Management Council, and the National Marine Fisheries Service, proposes to establish a 151 square nautical mile "no-take" ecological reserve to protect the critical coral reef ecosystem of the Tortugas, a remote area in the western part of the Florida Keys National Marine Sanctuary. The reserve would consist of two sections, Tortugas North and Tortugas South, and would require an expansion of Sanctuary boundaries to protect important coral reef resources in the areas of Sherwood Forest and Riley’s Hump. 
“An ecological reserve in the Tortugas will preserve the richness of species and health of fish stocks in the Tortugas and throughout the Florida Keys, helping to ensure the stability of commercial and recreational fisheries. The reserve will protect important spawning areas for snapper and grouper, as well as valuable deepwater habitat for other commercial species. Restrictions on vessel discharge and anchoring will protect water quality and habitat complexity. The proposed reserve’s geographical isolation will help scientists distinguish between natural and human-caused changes to the coral reef environment.”(http://www.fknms.nos.noaa.gov/tortugas/)
[18] The annealing program allowed analysts to score millions of different scenarios to determine which spatial distribution of sanctuary waters best fit the reserve parameters.