DOWN THE RABBIT HOLE: WORKING WITH ENVIRONMENTAL REGULATORS
ANDREW MICHAEL GAYDOSH
While in private practice, my dealings with federal and state environmental agencies always seemed to be different and oftentimes “disconcerting”. Likewise, during my more than 25 years of government service, many private practitioners admitted that the approaches, communication and negotiation strategies that served well in private sector transactions just didn’t seem to work in the bureaucratic setting. Some attributed this to “politics”, some to “hidden agendas”, but many described this as an “Alice in Wonderland” experience: things never seemed to be what they appeared.
As a private practitioner, EPA attorney and manager, I had communications and negotiations with hundreds of public and private parties. Some of these transactions went well, others not, but over the years I found that I always had effective and efficient communications and successful transactions with one particular State Environmental Director and one prominent private environmental attorney. Over the years I found that these two shared my perspective. Because of our positive working experiences, we decided to develop a Colorado Environmental Law Bar Association presentation entitled “Down the Rabbit Hole: Working with Environmental Regulators”. The goal of the session was to share our successful experiences and practices and provide practical “do’s and don’ts” for the environmental practitioner.
To prepare, I decided to get a broader perspective from others I had worked with in the environmental field. I conducted interviews with a variety of federal and state environmental managers and practitioners. These included current and former private, federal and state attorneys, environmental officials and senior agency managers. Their combined experience in the field totaled nearly 400 years. I asked each two basic questions: What do you consider “best practices” to enhance communications and negotiations with environmental officials, and what should the private sector know and keep in mind when engaging government bureaucracies”?
Based on my research, and our experiences, the panel was able to identify and recommend five “Best Practices”. Two of these practices were deemed applicable to many types of communications and negotiations, but three were deemed unique to government/private transactions. Surprisingly, the last of these unique practices was nearly unanimously recommended by those I interviewed.
MAXIMIZE INFORMATION ACQUISITION AND DISCLOSURE
While important in any setting, most interviewed felt that this was crucial in the realm of private/governmental communications. Early fact finding, sharing of information and identifying common facts was deemed essential. This was considered important given the often complex and contentious nature of private/government transactions and particularly in environmental matters. In this realm, disposing of misimpressions, presumptions and assumptions (and sometimes stereotypes) was deemed very important.
Equally important was maximizing disclosure and minimizing the need to maintain confidentiality. Disclosure of new information from private parties to government officials usually effected and often changed the perspectives and positions of these officials. It was also very clear that withholding or late disclosure of information was very detrimental to efforts, often set back or halted progress, and often poisoned future communications and negotiations.
NARROW AND PRIORITIZE ISSUES AND GOALS
Most interviewed felt that once a full and common base of information was established, narrowing and prioritizing issues greatly enhanced the communication and negotiation processes. Almost all stated that “shot-gunning” issues or making everything a point of contention was extremely counter- productive, if not a recipe for failure. Most perceived this as “delaying the inevitable” or worst, trying to conceal a weak case. It was also clear the blustering and threatening approaches that might work in the private sector were counter- productive in the government transaction. Many suggested that these approaches often came across as demeaning or stereotyping “government work”.
A common recommendation of those that I interviewed was early identification of goals and desired outcomes. A very common refrain was that if a party or attorney came to them, early in the process, and laid out a short set of goals, the transactions were more efficient and much more likely to lead to mutual success. Many interviewed said that if a short set of “have to haves” were brought forth at the beginning of the process, they would then “bend over backwards” to address those and more likely to make other issues resolvable.
SET AND ADHERE TO SCHEDULES AND DEADLINES
Probably good advice in any negotiation setting, this practice was identified as even more important in government communications. Almost all officials I interviewed felt they were under staffed and overworked, and that the common perception of government foot dragging or intransigence was often more a resource and time issue. All officials said that they were driven to “do the work, get the results, and achieve the environmental outcomes” as efficiently and fast as possible. Most said that delay, obstructionism, or inflexibility was not a viable strategy for them or an outside party.
It may be surprising to private parties that government officials and their programs have measurable quarterly performance measures that are often reflected in their strategic or annual plans and performance agreements. Delaying or failing to achieve resolutions or results is not a performance expectation. Not surprising then, most said that bluffing, delaying, or bringing up new issues during negotiations was not getting to results, and was often perceived by them as just “padding billables”.
BEYOND LAW, REGULATION AND PRECEDENT, UNDERSTAND THE UNDERLYING POLICIES AND PROCEDURES
Most interviewed felt that private parties were well versed in major environmental issues, and the primary laws, regulations and cases affecting them. They felt, however, that private parties were often not cognizant of a plethora of government guidance and policy documents that impact and drive environmental agencies. These are often public, but not well known or easily obtained and include directives, strategic plans, national priority and initiative documents and memoranda.
These documents usually have an agency network that drives their development and implementation. Dozens of agency conference calls and meetings occur every day on these matters and greatly influence agency perspective and approaches. While most interviewees lamented being overwhelmed with a constant stream of memos, conference calls and meetings, they admitted that these were equally important as laws, regulations and cases.
Those I interviewed summarized this influence as the networks and operations that develop within a large organization, or in short, “The Bureaucracy”. To understand the bureaucracy you had to have extensive experience dealing with or working inside the system. The best analogy I heard was that relying only on publicized documents to understand a government position or process was analogous to making judgement about a private enterprise based solely on its advertising. I would posit that this phenomenon leads many to lament the “hidden agenda”, or invisible hand of “politics” (both capital P and small p) and that likely contributes to many Alice in Wonderland experiences.
When I asked the interviewees how a private party could deal with this phenomenon many suggested a long stint in public service. As a more practical alternative, many said that if a private party perceives politics, or hidden agendas or an Alice in Wonderland experience, they simply admit it. Many interviewed suggested that no one outside the system should be expected to know how it operated. When disconnects occur, open and frank questions, exchanges and communications were helpful.
Indeed, many of the attorneys I interviewed reflected that when a private practitioner felt they were heading down the Rabbit Hole, explanations could be found in these opaque documents and networks. Their recommendation was that the practitioner should “pick up the phone” and have more regular and extensive attorney to attorney discussions. While all abhorred communications with their agency clients without involving them, most felt that both sides benefited from expanded attorney to attorney dialogue beyond the negotiation table. In addition, they also suggested one other practice which is embodied in the following last panel recommendation.
GET AN ORG CHART!
The nearly unanimous recommendation that I heard during my interviews was “get an Organization Chart”. I was surprised! Indeed, during my 25 + years of federal employment, I found that the standard hierarchical block and line government org chart was an essential tool. I never met with or spoke to another government official (including within the EPA) unless I had a solid understanding about how and where they fit into their agency operations and structure. My interviews revealed that I wasn’t alone. The consensus was that an org chart is essential to knowing not only the individuals you are dealing with, but also “where they are coming from” or their “culture” and their goals and objectives.
The org chart first allows you to identify the position of the individuals with which you are dealing. It informs each individual function, role, and authority. An individuals’ position will inform who works with or reports to them, who they report to, who may be the ultimate decision maker. This is the classic “chain of command” reflected vertically in an org. chart. This vertical analysis also reveals an individuals’ placement and role in their organization. More important, however, is a horizontal analysis of an organization vis-a-vis the larger bureaucracy.
Horizontal evaluation of an org chart reveals parallel chains of command and hence organizations with different functions and purposes. These differences usually reflect significantly different perspectives, approaches, priorities and goals. Each individual with which you are dealing probably represents a different horizontal organization and it is imperative to understand each of these differences. Keep in mind that large organizational charts are always broader horizontally than vertically tall. It is understanding these broader horizontal relationships that most interviewed called understanding the “culture” of the organization.
Those I interviewed felt that the best way to fully understand the culture of a large bureaucracy was to be immersed in it for a long period of time. Absent this experience, however, a good org chart, like a good map, can help to understand the lay of the land and the culture involved. Knowing the vertical organization may inform the concurrence, and decision-making process, but a good evaluation and understanding of horizontal organization structures often reveals different perspectives, priorities and goals that are involved (or oftentimes are not involved but should be).
Not having a good understanding of organizational dynamics may lead to surprises, disconnects or that Alice in Wonderland experience. What may appear to be an abrupt halt in communication or change in position may well be attributed the influence of a higher up in any one chain of command. What may appear to be the influence of “politics” may be simply be the involvement and influence of different organizations with different priorities and goals. A perceived “total disconnect” in communications or negotiations may just be a missing organization that should be involved.
When you are lost in the wilderness, you grab a map. When you find yourself lost in a bureaucratic transaction, going down the rabbit hole in that Alice in Wonderland experience, grab an org chart. Without an understanding of the org chart, many times things aren’t what they seem!