Environmental Drafting and Negotiating: Statutes, Rules, and Treaties

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Outline

Purpose of the Course
Subject Matter of the Course
How the Course Will Proceed
Scheduling



Environmental Drafting and Negotiating: Statutes, Rules, and Treaties

Professors Cannon and Setear

University of Virginia Law School

Spring 1999




Purpose of the Course

We want to give you the chance to do the things that lawyers do to influence public policy--formulate and present policy positions for clients, bargain with those who hold positions different from those of your client, and draft legal text that reflects the results of the bargaining. All along the way, the lawyer involved in public policy bases his or her advice on both legal and political factors.

There are a number of disadvantages to using real clients and proceedings in such an endeavor, so the course will use role-playing simulations of real-life governmental processes instead--i.e., mock meetings of congressional committees, mock administrative rulemakings, and mock treaty negotiations. Because of our own areas of interest and experience, we have chosen environmental policy issues, in particular clean water and global warming, as the substantive backdrops for these three legal processes.


Subject Matter of the Course

We thought that it would be interesting for both you and us to teach a course on the roles of lawyers and laws in public policy, especially if that course emphasized active efforts to replicate those roles rather than the more traditional read-and-talk approach of legal education.

Two broad categories of lawyers influence public policy: lawyers working for the government, and lawyers working for non-governmental clients who want the government to make a particular decision. The course is about both categories of lawyers.

There are local governments, state governments, and national governments. We'll focus on national governments, especially that of the United States.

Within the US government, there are officials in the executive, legislative, and judicial branches. We'll focus on the executive and legislative branches, not the judiciary. In other words, this is a course about lawyers and about law, but not about lawsuits.

The general goal of the course could be accomplished against the backdrop of almost any area of public policy. We chose environmental policy because of our greater experience and interest in that area compared to, say, corporate taxation. Professor Cannon worked for the Environmental Protection Agency (EPA) for a number of years in a number of capacities, most recently as General Counsel. He has also been an attorney in private practice for a firm specializing in environmental law. Professor Setear has taught International Environmental Law, and his recent scholarship focuses on the political and legal aspects of environmental treaties.

Within the area of environmental policy, there are a large number of issues in which law plays an important role. We wanted to choose a small number of relatively broad issues. Because of our respective areas of interest, we wanted to choose one domestic and one international issue. Because we wanted the simulations to be as close to real-life situations as possible, we also wanted to choose issues that were likely to be in the real-life spotlight in the near future.

We settled on two particular issues in environmental policy: clean water in the US, and global warming. Both involve a number of interesting and important issues. Additionally, at least one of us is already familiar with the underlying policy issues and legal documents. Perhaps most importantly, both issues currently present real-world policymakers with the need to draft important amendments to existing legal documents. The Clean Water Act (CWA) is up for re-authorization; indeed, the present Congress may take up this issue while our course is still meeting. As to global warming, the nations that are party to the United Nations Framework Convention on Climate Change (UNFCCC) have agreed, at a conference in Buenos Aires in November of 1998, to reach agreement on a number of important issues by the end of the year 2000. The annual meeting of the parties in late 1999, known as CoP-5 (the fifth Conference of the Parties), will be a crucial step on the road to the agreement in 2000 and to possible Senate consent to the Kyoto Protocol that the US has signed but not ratified.


How the Course Will Proceed

The first part of the course will address clean water; the second part of the course will address global warming.

The clean-water portion of the course will simulate lawmaking by both the legislative and executive branches of the federal government--that is, statutes and administrative rules, respectively. The course will address a statute first and then address an administrative rule derived from that statute.

The global-warming portion of the course will simulate lawmaking by nation-states--in this case, treaties. The course will first address intra-governmental debates about what a given nation's policy (i.e., US policy) should be and then address international negotiations in which one nation (i.e., the US) adopts that policy and other nations put forth their own positions.

The Modules. The smallest repeating unit of organization in the course is what we're calling a "module." There will be five modules, each involving a particular aspect of public law-making in the domestic or international arena. In order, they will be:

  1. Pre-Legislation: The Congressional Committee Hearing
  2. Legislative Negotiating and Drafting: The Conference Committee
  3. Administrative Rulemaking: Agency Proposal of an Administrative Rule
  4. Intra-Governmental Policymaking: Initial Stance of a Treaty Delegation
  5. Inter-Governmental Policymaking: Treaty Negotiations

Each module will culminate with an In-Class Simulation. There will be three simulations on the CWA re-authorization and two on the UNFCCC CoP-5, as follows (in order):

  1. Hearings on CWA Re-Authorization, Senate Committee on Environment and Public Works
  2. Meetings of Joint House-Senate Conference Committee to Reconcile CWA Re-Authorization Bills
  3. Interagency (Executive Branch) Meetings on a Proposed Rule from CWA Re-Authorizing Statute
  4. Interagency (Executive Branch) Meetings on the US Government's Position at UNFCCC COP-5
  5. Plenary and Working-Group Sessions at CoP-5 of Nations-Parties

One or more "Background Sessions," as well as a "Client Memo," will typically precede each Simulation. (We'll talk more about Background Sessons and Client Memos very shortly.) Typically, therefore, each module would have three parts in the following order:

  1. Background Session(s)
  2. Client Memo
  3. In-Class Simulation

Background Sessions. Each module will begin with one or more "Background Sessions." The idea with the Background Sessions is to give you background information that you'll need for the rest of the module. This background information would include summaries of the relevant substantive law, a discussion of the relevant governmental procedures, and so forth. For example, the module about hearings of the Senate Committee on Environment and Public Works would include background sessions about the substance of the current Clean Water Act, the committee structure of Congress, the shape of a recent attempted re-authorization, and so forth. The Background Sessions will be a lot like meetings of a typical law-school class: you'll get some readings, and we'll discuss them in class.

The Client Memo and the In-Class Simulation both build on the information imparted in the Background Session(s). The Memo and the In-Class Simulation also both involve your adopting a particular role in the legal process under examination. Examples of such roles would include an attorney advising the Sierra Club in connection with the CWA re-authorization, or an attorney in the State Department's Office of Legal Adviser advising a US delegation about its position at CoP-5. (We'll take on the roles of your clients, as necessary, so that you have someone to provide you with some direction, and so that we can keep the simulation from bogging down or from getting way off track. But clients in real life are often quite busy with a variety of things besides talking to their attorneys, and we plan in any case to give you a good deal of discretion in your role as attorney.)

The Client Memo. The Client Memo will take the form of a short memorandum from you to your client. Depending on your role and the subject matter of the module, the Memo will take a particular form. Examples would include proposed testimony for the Sierra Club to deliver before the Senate Committee on Environment and Public Works, a strategy memo to the US CoP-5 delegation that would include a discussion of the constraints imposed upon that delegation by previous treaty texts, or even a retrospective analysis of the simulation from the point of view of a particular client's interests. (This last would be atypical in that it would involve a client memo that followed, rather than preceded, the In-Class Simulation.)

To give you time to work on your client memos and to give you time to prepare more generally for the In-Class Simulations, we will typically cancel at least one class immediately preceding the In-Class Simulation.

The In-Class Simulations. The In-Class Simulation in each module continues with the same subject matter, and essentially the same role, as the Client Memo. The Simulation involves one or more meetings of the class as a whole, however, with an emphasis on verbal presentations and on interaction among positions, in contrast to the Memo's emphasis on written product and the statement of a single position.

Your roles in the In-Class Simulation will frequently give you more latitude and prominence than attorneys typically enjoy. You might, for example, deliver to the (mock) Senate the testimony that you suggested in your Client Memo--even though in real life it would almost certainly be a senior official of the Sierra Club who would deliver such testimony, and only after extensive internal meetings resulting in substantial revisions to counsel's proposals.


Scheduling

This is a three-credit course that appears to meet for four hours every week. Appearances are deceiving in this case, however: averaged over the whole semester, the class will meet for no more than three hours a week.

We reserved a weekly pair of two-hour blocks for the course because of the heavy reliance in the course on the In-Class Simulations. Such simulations often work best when you have the opportunity to conduct negotiating or drafting sessions for an extended period of time--i.e., two hours rather than one.

The course will involve some class sessions of the more traditional type (discussion of materials written by professors) as well as the sessions comprising In-Class Simulations.

As mentioned above, we will also cancel a number of meetings in-class exercises but also more traditional class meetings, as well as some meetings of small groups outside of regular class hours. Note that your work for the course will be completed before the end of the 14-week semester. There is no exam or research-paper requirement for the course.

We'll adjust the exact number of hours that we meet as a group according to the particular needs of the particular activity that we're undertaking at he time. We'll call class meetings that all are expected to attend a "plenary session." In a given week, we might meet in plenary session for one hour on Monday and two hours on Wednesday, or for two hours on Monday and one hour on Wednesday. We might meet in plenary session for 75 minutes on each day of a given week. There will even be weeks when we don't meet at all on Monday, or don't meet at all on Wednesday, or even when we meet for two hours on both days. Averaged over the course of the whole semester, however, we'll meet in plenary session for less than three hours a week.



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This page was last updated on 06/13/99.