To understand, at least in part, how all this happened, we need to examine the Administrative Procedures Act (APA, found in the United States Code, Title 5, Part 1, Chapter 5, Subchapter II, Sections 551 through 559). Most non-lawyers, and many lawyers, know nothing about this law and the way it governs how federal rules are made. The APA is the law under which some 55 federal regulatory agencies—like the Food and Drug Administration, USDA, and Environmental Protection Agency, just to name a few—create the rules and regulations under which they implement and enforce major legislative acts such as the Food Drug and Cosmetic Act, Clean Air Act, or Occupational Health and Safety Act. At least that’s the theory.

But here’s the reality: The APA was passed in 1966 with the intent of streamlining how federal agencies create rules under statutes. Many of us believe the federal government has gotten involved controlling things it shouldn’t. Putting that aside, we can’t deny that the breadth and quantity of issues presented to Congress are basically unmanageable. It’s commonly known that legislators don’t read all the legislation they vote on. This situation is so bad that a bill was introduced requiring representatives and senators to read bills.

The APA was set up to develop a uniform process for agencies to create regulations under statutes passed by Congress. An important provision in the APA, set forth in Section 553, Subsection (c) states: “After notice required by this section, the agency shall give interested persons [emphasis added] an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”

This concept, called consensual rulemaking, is supposed to ensure that all people affected by a coming rule have a chance to voice their concerns before the rule is made law. These people are called stakeholders, because they have an interest in the outcome of the rulemaking process. Under the APA, stakeholders may comment on interim rules when the rules are first published.

Before the APA, agency rules became final the first time they were published; anyone who objected had to sue the agency involved to stop rules they opposed. Both citizens and the government endured years of uncertainty while lawsuits dragged on through trial and appeals. No one won, except the lawyers who earned fees.

Around this same time, the concept caught on of mediating among people with community disputes and parties in lawsuits. Some of the more experienced mediators were brought in to mediate between the government agencies and affected citizens who sued the agencies. The lightbulb went on and a law was written saying agencies have to use a consensual process to reduce lawsuits.

In real mediation, good mediators encourage and allow dissent and disagreement. They’re willing to walk away from a dispute without resolution. They do not coerce people into agreement, just so they can chalk up another mediation they’ve succeeded in closing. These good intentions are supposed to be reflected in the consensual rulemaking process. All interested parties are to be involved.

The agencies borrowed the word stakeholders from mediation to describe everyone with an interest in the outcome of a dispute. Likewise, consensual rulemaking is supposed to ensure that the interests of people who support a rule, as well as people who are against it, are taken into consideration. Having taught mediation, I know that the meaning of the word stakeholder is so familiar to people in federal and state agencies that it’s not defined, but is used to mean interested parties. Mediators use it all the time without thinking twice. When we teach it in mediation, we’re usually emphasizing that you can’t resolve a dispute properly unless you have all the stakeholders (interested parties) present.

Let’s say, for instance, the state environmental protection agency sues you over something you’re doing on your property. The United States Environmental Protection Agency (USEPA), and the Army Corps of Engineers also may have reason to bring claims against you. You wouldn’t want to settle with your state, only to have to defend a claim against you by the USEPA or the Army Corps. And if you know your town has a beef about what you’re doing, you’d want to be protected from them coming after you later. In the environmental world, this issue is particularly important because agencies often disagree about what’s right.

So if you’re mediating, you might invite all these stakeholders to the mediation. That way, once you work things out, you’re done. Likewise, if you had three neighbors, all with different ideas about how your property should be cleaned up or improved—perhaps one of those situations where people move next door because they want to look at the “pretty farm” and then decide they don’t like the noise or odor—mediation theory says you’d be better off getting all three neighbors to agree on a solution, rather than having each one come after you separately. (Please don’t take this suggestion as legal advice that you should always invite everyone to the discussion; each dispute is different.)

• How Bad Rules Happen (continued)
• Use This Knowledge

Karin Bergener of Ravenna, Ohio, is an attorney and co-founder of Liberty Ark Coalition. This article appeared in the Autumn 2007 issue of Rural Heritage.