The Missing Link in
Citizen Participation in U.S. Administrative Process
by Wendy E. WAGNER, Joe A. Worsham Centennial
Professor, University of Texas School of Law (United States).
The
participatory process that lies at the heart of U.S. administrative law is
hailed by some to be among the most comprehensive in the world. Agencies promulgate rules under
elaborate procedures designed to place public participants as important
collaborators and watchdogs at virtually every step in the agency’s decision. Indeed,
in this process, citizens are guaranteed – by legislation –
important rights of participation, which include commenting, accessing
information, and ultimately challenging agency rules in court.[1]
In practice,
however, the work of the U.S. agencies has become increasingly inaccessible to
many of the individuals and groups that their rules affect.[2] Rulemaking records are often very
large and can run into the hundreds of pages.[3] Comments submitted on agency
proposals, standing alone, can include thousands of submissions, many of which
are dozens of pages each.[4] The agency’s
own explanations, proposals, and rule text can be opaque and gratuitously
complicated in ways that even experts cannot follow.[5] As Professors Farina, Newhart, and
Blake observe, from the perspective of affected citizens, the agency’s rule and
accompanying analysis “is about as accessible as if the documents were written
hieroglyphics.”[6]
The net result is an administrative process that – despite its promises
otherwise – has become increasingly inhospitable to meaningful engagement by
stakeholders in general and citizens in particular, including their
self-appointed experts and advocates.[7]
This paper
explores the growing gap between the legally protected “right” to participate
in administrative process and the practical ability to act on that right in
U.S. administrative law. The basic argument is a simple one. If a legal process
depends on public participation, then the process should be designed to ensure
that meaningful participation takes place.[8]
Merely providing opportunities for citizens to inform and hold agencies
accountable is futile if the agency is allowed or even encouraged to develop
policies and rules that are voluminous, analytically opaque, and effectively
incomprehensible to all but the most well-funded
expert. Yet this seemingly obvious and important feature of administrative
process – namely the failure to require that the decisions be reasonably
comprehensible to the diverse set of interests[9] –
has gradually slipped through the cracks in the design of administrative
process.
More specifically, a disconnect or missing link has developed between
the mandated means of ensuring
participation in administrative process and the unenforceable, but overarching end goal of engaging affected groups.[10]
This disconnect occurs because the measures for ensuring participation (opportunities
to comment; transparent processes; right to review) are legally enforceable but
are effectively severed from any effort to ensure the penultimate goal of
vigorous participation.[11]
Even more perversely, as the U.S. legal system grows more proceduralized,[12] comprehension barriers to
participation grow with them.
The resulting information deluge ushered in by various analytical and paperwork
requirements, in fact, appears to be inversely correlated with the ability of
less sophisticated parties to understand the implications of the underlying
regulatory decisions with respect to their interests.
This essay
begins with a brief overview of the design and structure of U.S. administrative
process. It then proceeds to identify ways that the end goal of meaningful
participation has been lost in the proceduralization
of U.S. administrative law and how this omission serves to ultimately undermine
the end goal of ensuring vigorous participation. The paper closes with some
suggestions for future research. Since it has been suggested that U.S.
participation may in fact provide a model for other countries, the hope is that
by exposing fundamental problems in the design of administrative process,
others can sidestep these pitfalls or at least be aware of the limitations of
the U.S. approach.
The design of
U.S. administrative government is premised on vigorous engagement and oversight
from all affected parties, including citizens.[13] Since
agencies sit outside the electoral process as the fourth branch of government,
agency accountability is ensured in significant part through public rights to
participate and judicial review. This goal of engaging the affected parties in
the decision is fundamental to the design of U.S. administrative process.[14]
In theory, to
ensure vigorous public engagement and oversight, the agency would be forced to
communicate meaningfully with those affected by its decision.[15] Affected
groups would be identified and educated about the issues, their views would be
solicited, and they would remain active throughout the decision process. In
this participation-focused design, the speaker (in this case, the agency) would
place as its highest priority engaging in meaningful communications with the
directly impacted stakeholders. Given the wide variations in regulatory
contexts, mandating a formulaic checklist to ensure successful communication
would not be practical, but the process would at least be designed so that
effective communication with all affected groups – rather than just the
litigious ones – was foremost in the agency’s incentives. In satisfying this
central goal, the agency would, for example, provide a succinct but detailed
summary of the issues and options at stake, clear evidence to support its
decision, and identify important consequences that flow from its preferred
choice.[16] The
more visible the options, framing, assumptions, and methods embedded within the
agency’s regulatory decision, the better.[17]
Yet the actual
design of U.S. process does not provide these strong incentives for the agency
to engage in meaningful communication with all affected parties. U.S. administrative
law instead requires only that, in developing a rule, the agency follow a set
of passive procedures that provide opportunities for affected groups to weigh
in if they so choose.
First, the
agency must solicit comments from all persons on its proposed rule and ensure
that the necessary information and records are readily available to these
groups to make the comment opportunity meaningful.[18]
Second,
agencies must “consider” all comments and explain how or whether each comment
impacted the final rule.
Third and
finally, if a party alerts the agency to flaws in the logic, facts, process
steps, or statutory interpretation of their mandate in their formal comments
and that comment is ignored, the party can sue the agency in court.[19] In
presiding over these challenges, the courts are deferential to the agency and
will remand a rule only if the rule is “arbitrary and capricious.”[20]
Still, this is not at all uncommon and some courts give agency rules a “hard
look.”[21]
Through these three procedural steps, the U.S. process seeks to ensure that the
work of the agencies is accountable to the public that they serve.
Over the last
few decades, additional requirements have been imposed on
agency rulemaking processes by Congress and the President. Agencies are
now also required to conduct a number of additional analyses – cost/benefit and
small business related analyses among them – on the most significant rules.[22] These
added measures – like the procedural requirements themselves – are touted as
increasing the agency’s own self-awareness of the impact of its rules on
regulated parties as well as providing simple metrics that enhance the general
accessibility of the agency’s work.[23]
However, in
all of these process steps and analytical measures, from the comment process
through the added rationality assessments, there is no expectation that the
agency will actively engage all affected parties in the decision-making
process. Agencies are neither required nor rewarded for notifying or educating
affected parties on the important issues, particularly those parties that lack
resources and expertise to weigh in on decisions that affect their interests.[24] Moreover,
there is no demand on the agency to ensure that its work is accessible; simple
and clear rules are legally irrelevant. The resulting disconnect between the
procedural “means” to ensure vigorous participation and the ultimate “ends” of
accomplishing it creates a process that drifts – sometimes quite far – from
participatory goals that were intended to serve as its foundation and guiding
force.
In the
abstract, if a process is founded on the need for vigorous and meaningful
participation, underlying process steps should be designed and calibrated
carefully to advance those goals. In the U.S., however, the means (process) and
ends (vigorous participation) have become so decoupled that the means work at
cross-purposes from the overarching objectives. As a result, “the current
rulemaking process, despite its formal promises of transparency and broad
participation rights, routinely and systematically disadvantages consumers,
small business owners, local and tribal governmental entities, nongovernmental
organizations, and similar kinds of stakeholders, as well as members of the
general public.”[25]
There are two
features of current administrative process in particular that facilitate this
substantial disconnect between the legally required procedural steps and
maximizing vigorous participation. First, there is no accounting or tracking
system – either mandatory or even recommended – to gauge whether an agency is
in fact reaching its diverse audience.
Instead, if the active commenters are few or badly lopsided in favor of
well-financed groups, this is not relevant to assessing how well the agency has
complied with administrative process requirements. Second, the elaborate proceduralization of administrative law – however
unintentionally – cumulatively institutes more disincentives than incentives
for agencies to communicate meaningfully with those affected by their
decisions. Thus while in theory U.S. process purports to be oriented towards
ensuring public participation and oversight, both the requirements and the
incentives built into the design of U.S. administrative procedure point agencies
in the opposite direction. Each feature is discussed in turn.
While the
Administrative Procedure Act (APA) calls on agencies to produce a “concise
general statement” of their proposals and rules,[26]
the elaborate system of U.S. process places no meaningful requirements to back
up this requirement. Richard Pierce notes that in the U.S., “[t]he courts have replaced the statutory adjectives,
‘concise’ and ‘general’ with the judicial adjectives ‘detailed’ and
‘encyclopedic.’”[27] Hypothetically, in fact, if an
agency produced a rule and accompanying explanation that was, by all accounts,
incomprehensible, this feature does not serve as a grounds for upsetting the
rule under U.S. administrative law. There are no page limits on rules, criteria
for the understandability of the agency explanations, or expectations that an
agency actively reach out to affected parties.
Not only does
U.S. administrative law lack direct incentives for meaningful communications,
there is a lack of secondary measures to assess whether participation is
ultimately occurring. More specifically, under U.S. law: Agencies are not required
nor do they provide simply tallies of the nature of the participant who weigh
in at various stages of their processes. Agencies are not required to actively
solicit participation from affected groups, even when it is clear that those
who are affected by or benefiting from a rule are likely to lack expertise or
resources to participate effectively. For the citizen representatives who do
engage (typically a few NGOs), there is no inquiry or analysis by the agency to
determine whether or how well their advocacy positions map against the broader
interests or whether NGO procedures are in place to communicate and ensure that
the perspectives are largely in accord with the citizens they purport to
represent.[28]
Added analytical assessments, like cost-benefit and small business assessments,
need not be comprehensible to the public. The technical and large size of these
assessments (regularly more than 500 pages) in fact may serve to undermine
their accessibility.[29]
In the U.S.,
the procedural inattention to the necessity of a meaningful connection between
agency rules and engagement by the public leads to a passive or market-based
model for public participation – an “if you build it, they will come” approach.
Agencies must publish proposed rules; but if there is no engagement by affected
parties, this feature is a reflection only of the participants and not of the
quality of the agency’s rule. In highly salient and publicized rules where all
interests are engaged and active, the APA’s passive approach is not problematic.[30]
But in rules where some affected groups cannot afford to participate, their
absence will not necessarily be noted, much less addressed by the U.S.
administrative process. Moreover, this indifference occurs as a matter of
procedural design.
It is bad enough that U.S. processes are blind to the core objective of
ensuring that the agency engages in meaningful communication with affected
groups, but the incentives created by the legal procedures serve to ultimately
reward agencies for incomprehensibility through such means as undue complexity,
length, or an unnecessary reliance on technical arguments.
Administrative
agencies in the U.S. were created to develop detailed rules that implement the
broader laws passed by Congress. The existence and survival of agencies as this Fourth Branch thus
depends in large part on their success in promulgating rules, which in turn
requires navigating those rules through mandated comment periods, court
challenges, and the political process.
However, if
the enforceable procedural requirements are framed in
this way, how would a rational agency behave with respect to engaging the
public – even defined most narrowly as diverse experts who represent broader
sets of interests? Rules that are in fact voluminous and incomprehensible,
while at the same time covered in technicalities would seem to provide the
surest means of navigating controversial rules through the political and legal
processes.[31]
The fewer the comments, the less chance that the agency will be sued and the
fewer criticisms the agency must address in its revision process. The agency
also faces a much better chance of dodging both congressional and presidential
oversight with long, technical rules.[32] It
logically follows, then, that rules that are incomprehensible are more likely
to survive precisely because most of the audience will not know what to make of
them.
Case law
emerging in the courts’ review of agencies only serves to reinforce rather than
counteract these incentives for agencies to promulgate detailed, complex, and
even inscrutable rules. For their part, the courts require commenters to raise
each and every concern “with specificity” during notice and comment if they
wish to preserve their ability to challenge the issue in a subsequent appeal.[33] Long,
detailed, and often multiple rounds of comments are the most responsible way
for commenters to protect their interests.[34]
Agencies’
incentives for excessive detail and technicality, at the sake of comprehensibility,
run in parallel to those of interested parties. Courts review challenges to an
agency’s rule based in part on how well the agency responds to facts and
related arguments raised by commenters. Like interested parties, then, agencies
are encouraged to be overly thorough, exhaustive, and to leave no stone
unturned.[35]
Prof. Melnick observes: “Since agencies do not like
losing big court cases, they react[] defensively,
accumulating more and more information, responding to all comments, and
covering their bets. The rulemaking record grew enormously, far beyond any
judge’s ability to review it.”[36] And “[t]hus began a vicious cycle: the more effort agencies
put into rulemaking, the more they feared losing, and the more defensive
rulemaking became.”[37]
Courts have
also invented a “logical outgrowth test” that encourages agencies to develop a
proposed rule that is effectively complete.[38] Under this test, any material
changes made to final rules that are not presaged in the agency’s proposal
require a new proposed rulemaking, with its own separate notice and comment
period. Agencies thus again face legally-backed
incentives to develop a proposed rule that is as complete as possible.[39]
In response to
these incentives, some agencies seek out the most litigious participants early
in the development of their proposed rule to work out the details in advance,
outside the formal notice and comment period.[40] These
contacts are not regulated by the APA and in fact are implicitly encouraged by
the court’s logical outgrowth rule since the proposal will be
endorsed by the most litigious and well-funded groups before it is
published, minimizing the need to revise the rule again. As one agency staff
remarked “We help them; they help us.”[41]Yet
these negotiation-styled discussions, occurring before the agency’s proposal is
published, can lead to an elaborate, complex, and contract-like rule proposal
that is even more inaccessible to the parties not present during the
pre-proposal negotiations.[42]
Rationality
requirements – laid atop the notice and comment process – may serve only
further to aggravate, rather than correct the problem of inaccessible rules,
despite their justification as increasing agency accountability. These
rationality requirements include requirements that agencies prepare a full
cost-benefit analysis on significant rules, assess impacts on small businesses,
and conduct various other related assessments.[43] Beyond
the need for commenters to invest still more expertise and resources examining
these additional analyses, the agency itself might have incentives to use the
analyses strategically to further insulate its decision from meaningful
scrutiny.[44]
Indeed, the most rational course for the agency is to produce these analyses in
end-oriented ways that support the agency’s preferred rule, a possibility that
enjoys some support from empirical studies of agency practice.[45]
In fact,
rationality requirements that operate in this way – alienating rather than
educating participants – appear to be fundamentally incompatible with
deliberative-based processes.[46]
To the extent that rationality measures imply that objective measures can be
used to identify “good” or “public benefitting regulation,” then in cases where
deliberation and rationality diverge, the correct outcome is presumably the
“rational” or quantitative output. Seen in this way, public participation
ultimately operates more as a paper weight,
reinforcing quantitative measures in cases where the two converge and sidelined
in cases where public comment leads to a different analysis or result.
On the ground,
agency rules are in fact often voluminous and complex in ways that evince a
gratuitous complexity that cannot be attributed solely to inherent features of
the regulatory decision itself. For these rules, moreover, there is routinely a
dearth of participation from stakeholders who are directly affected. The
evidence recounted below consists of several complementary lines of evidence
that reveal the general inaccessibility of many agency rulemakings to the
publics directly affected by them.[47]
First, a
series of largely unenforceable commands by Congress and the President to
agencies to make rulemakings clear and accessible have not altered the agency
practice of promulgating convoluted, incomprehensible rules. Over the last few
decades, for example, agencies have been directed to use plain English and
include executive summaries in their rules to make them more accessible to a
broader range of stakeholders.[48] Yet the resulting rulemakings, by and large, are slow to improve
and some remain as complex as ever. A recent study found that that
reading level required to understand executive summaries, written in response
to a new Presidential initiative for greater clarity, “are now being written at
a grade level not even close to the suggested seventh to ninth grade level” and
tend to be even more complicated than the text of the rule they are
summarizing.[49]
Second, limited empirical studies reveal a significant dearth of
participation from thinly financed interests in many agency rules. In virtually
every empirical study examining interest group participation, public interest
groups and other affected citizens participated in only half of the rules under
study, despite the fact that the public was affected by all
or nearly all of the rules.[50] Moreover,
in the rules in which they do engage, the representatives of the public are
badly outnumbered.[51] For
example, in one set of rules – air toxic standards – the public interest
nonprofits and other affected citizens were not only absent from half the
rules, but when they did engage, they were vastly overpowered by industry in
the number of comments filed (14 to 1).[52]
Moreover, public interest representatives and other citizens were essentially
absent from all extensive discussions leading up to the proposed rule that
occurred between the agency and industry; in that category, for every 87
communications the agency logged with industry, nonprofit groups logged in less
than one communication.[53]
Given these findings, one does not need a particularly nuanced theory of public
interest to conclude that the engagement and agency pressures are lopsided in
ways that lead to significant gaps in the consideration of all affected
interests.
Third, the
courts have noticed the general inaccessibility of agency decisions to even the
most expert lawyers, with clear implications for what that might mean with
respect to eliciting broader participation. As a federal court of appeals judge
remarked in a case with a record that spanned more than 10,000 pages. [T]he record
presented to U.S. on appeal or petition for review is a sump in which the
parties have deposited a sundry mass of materials that have neither passed
through the filter of rules of evidence nor undergone the refining fire of
adversarial presentation[...] The lack of discipline in such a record, coupled
with its sheer mass [...] makes the record of information rulemaking a less
than fertile ground for judicial review.[54]
Other judges
reiterate this core concern, portraying themselves as victims to the agencies’
incomprehensible rules as well as the larger public affected by the decisions.[55]
But perhaps the most persuasive evidence that agency rules are
inaccessible to all but the most sophisticated and well-financed stakeholders
rests on first-hand experience with a typical rule.[56] As
one illustration, consider a relatively typical EPA rule promulgated in the
mid-1990’s regulating the emissions of toxic air pollutants from chemical
storage tanks in tank farms at large petrochemical plants.[57] The proposed rule, which included three other subparts, was
over 187 pages long. Just on the storage tank rule alone, EPA met with industry
groups at least three times before publishing the proposed rule, communicated
with them through letters, and prepared at least 15 background documents. After
publication of the proposed rule, 22 industries and industry associations and a
smattering of public interest advocates engaged first in formal notice and
comment and then presented their concerns at a public hearing. EPA’s final rule
that responded to comments identified more than 100 significant issues in
contention.
The
final rule and preamble gained still more girth – this time reaching 223 pages
and over 195,000 words in the Federal
Register. With a statutory deadline looming, the agency pushed the process
through in 3 and a half years from start to finish. However, because of a vocal
constituency of unhappy interest groups, within 18 days after publishing the
final rule, the EPA reopened public comment on one of the key issues in the
rulemaking and received another sixty formal communications. Before it could
issue a revised rule, one of the companies petitioned for reconsideration of
the entire rulemaking. The agency ultimately issued a proposed clarification to
the original rule two years later, received another 20 comments on its proposed
clarification, and issued a final revised rule at the end of 1996.
One
would imagine that with all of this input and deliberation, the agency
ultimately devised a standard that ensured that significant quantities of
hazardous chemicals would not volatilize from large open tanks without
detection. Yet the EPA’s resulting standard, while requiring sealed lids on
chemical storage tanks, requires little of owners in ensuring that these lids
are intact and operating effectively. Rather than periodic monitoring or
“sniffing” for chemicals from tanks, owners need only conduct a visual
inspection of the lids. And rather than require this inspection weekly or
regularly, the rules require only an annual inspection – with another 3 ½ months
of grace period to rectify leaks once discovered.
How
could all of these administrative transactions lead to such a seemingly
counter-intuitive result? One can surmise that there were simply too many
battles – each of them intricate and time-consuming – for the two public
interest representatives and four state regulatory groups to keep up with all
of the moving parts. One can also
conclude that in slogging through more than 100 contested issues under a tight
schedule, the agency itself had to tread lightly on issues for which the
industry might have claimed superior knowledge.
If citizen
participation in governance requires incentives for effective “communication”
between the agencies and the citizens, then what kind of changes could be made
to U.S. process to ensure this communication takes place? At least in the U.S.,
there is not much literature available to help gain traction on this question. As
a result, the thoughts offered here are preliminary and offered primarily to spark
conversation rather than attempt to resolve the problem.
In the short
term, it is imperative to learn more about the level and nature of general
citizen engagement in current administrative decision-making in the U.S. Recommending
or requiring that agencies tally up the nature and types of affected publics
engaged in rules could provide valuable information that is currently
unavailable. Additionally, tracking the extent to which citizen comments
ultimately lead to changes in an agency rule, as compared with the comments
from other more sophisticated stakeholders, could provide a finer grained view
of the current levels of meaningful citizen participation in agency rules.[58]
Case studies,
surveys, and other targeted qualitative studies will also provide valuable
information on how participatory practices in the U.S. currently work. For
example, sets of rules could be followed with respect to how well citizens were
alerted to the issues; how well the agency communicated the substance of the
rule to the affected citizens; and the ultimate level and extent of citizen
engagement throughout the entire decision-making process. Case studies of
particularly successful citizen engagement in agency rules could also be
developed with an eye to extracting the mechanisms that may be capable of being
used to spark broader citizen engagement.[59]
To reorient
the agency to the importance of citizen engagement, the incentive system for
administrative process needs to include rewards to agencies for broader and
more meaningful engagement by all affected parties. First and most important,
agencies should be required to demonstrate – in a rigorous way – that they have
successfully communicated with the affected stakeholder groups or at least
ensured that these groups’ interests are effectively represented by advocates
or others throughout their decision-making process. Ideally, the agency should
be required to identify the main affected parties and reach out to ensure they
understand the implications of the proposals and are able to contribute
meaningfully. To make this requirement legally enforceable, this “outreach and
engagement” could become yet another process step that is legally required, in
addition to the notice and comment process.
A softer
version would mete out some type of rewards for agencies to engage in an
active, rather than passive, participation process. Agencies that do engage
stakeholders, for example, could be relieved of some of the other procedural
requirements – like cost/benefit analysis, small business protections, or
Presidential review since these interventions are arguably largely redundant if
agency rules are successful at engaging all affected groups.[60] Indeed,
if Congress is silent, the President could institute this reform simply by
providing this type of reward in exchange for a demonstration of vigorous
engagement of all identified sets of stakeholders.
A still more
tentative approach would be to encourage agencies to launch pilot efforts for
individual rules that would benefit from more vigorous engagement from missing,
but directly affected stakeholders. The Rulemaking 2.0 project at Cornell Law
School provides a superb, how-to manual for such an exercise.[61] Thus
agencies need only be given some type of incentive to engage in this type of
incremental experimentation with regard to enhancing public participation.
Second, as an
important supplement (but not substitute) for forcing agencies to engage actively
in outreach to affected participants, agency’s processes should be “audited”
for their participatory qualities – perhaps following roughly on the concept of
a “democracy audit.”[62] Perhaps
the best approach to this outcome-based oversight is a requirement that
agencies verify that all affected stakeholders have in fact submitted detailed
comments in the record and were fully engaged in the process. When citizen and
related public interest groups are absent, under this approach, the agency’s
rule would be deficient as a matter of process.[63]
Another,
complementary approach, would assess agency rules with regard to the rules’
accessibility and success in reaching out to affected parties. Even if the text
of the preamble or rule is difficult to understand, if the agency is providing
educational materials, conducting training, or otherwise ensuring that the
affected citizens are weighing in, then the agency’s rulemaking process would
still satisfy the participation goal. To conduct these types of audits, crowd-sourcing
of at least the major affected, but thinly financed groups and constituencies
with regard to the comprehensibility and accessibility of the agency’s
rulemaking project might offer a useful indicator of how well the agency is
doing. Thus, beyond advocating the substantive position on behalf of the
general public, these groups would be enlisted also to speak to process –
whether their clients or more diffuse groups are being adequately informed and
engaged in the agency’s rulemaking process.
Alternatively,
an advisory committee could be empaneled to review the accessibility and
comprehensibility of an agency’s explanations and decisions. Science advisory
panels are becoming a staple in the promulgation of science-intensive rules. One
could imagine a similar type of oversight system that scrutinizes the agency’s
rules with regard to the effectiveness of the agency’s communication of the
core messages, assumptions, framing, and implications. This type of oversight
operates in a way that helps the agency come to terms with its own blind spots
and communication difficulties.
Finally, for
some regulatory projects that affect individual citizens directly, but for
which these individuals are unlikely to have the resources to participate
meaningfully, agencies could be expected or required to provide alternative
means of representation. One scholar has suggested an administrative jury;
citizens could be drawn from affected stakeholder groups or communities and
compensated for advising the agency.[64] Less
ideal but perhaps more cost-effective, agencies could be required to identify
superb “advocates” to act on behalf of these communities. The advocates would
be responsible for interviewing, surveying, and acting as a type of
agency-appointed intermediary to ensure that certain sets of citizen interests
are vigorously represented in the rulemaking process. In settings in which it
appears that there are distinct groups of directly affected, but inevitably
missing stakeholders, multiple appointed advocates may be necessary to provide
meaningful input into the administrative apparatus.
Additional
incentives could be put in place formally or informally. A congressional or
presidential edict that simply identifies the communication gap as a
fundamental and serious problem in the design of administrative process and
tasks each agency with responsibility to consider ways they could address or
close this gap could begin the reform process. Best practices might then emerge
from the agency responses that could be used as models to inspire agencies to
engage in rigorous and meaningful communications with the full range of
participants. With focused attention on the problem, agency administrators may
wish for good press and be motivated simply out of reputational gains to
provide clearer communications. Moreover, if lapses in agency efforts
ultimately did occur, critical members of Congress could then seize on problems
since incomprehensible rules impair their oversight, as well as the oversight
of the larger affected groups.
Yet,
reputational incentives may not be enough to reverse the existing legal
incentives for incomprehensibility in agency decision-making; added sticks or
sanctions may be required to focus the agency on ensuring that their
communications to the public are meaningful. Agencies that fail to engage
citizens in a rulemaking – measured by the diversity of participants or with
respect to the accessibility of agency rules – could be a basis for judicial
remand. Congress could institute this requirement and impose penalties on a
noncompliant agency – for example the agency could be put in receivership for
an incomprehensible rule and an ombudsman or other entity would be tasked to
work with the agency to make it accessible and engaged all affected parties in
the decision process. Even absent legislative procedural changes, these failing
rules could be the subject of greater oversight,
perhaps as directed by an Executive Order, that takes public engagement
seriously.
The
enforceable procedural requirements of administrative law have overshadowed and
even undermined the larger objective of ensuring vigorous participation by all
affected groups. Agencies do not have incentives to communicate effectively
with their audiences; rather, the design of U.S. administrative process leads
to the opposite set of incentives. Agencies are more successful under the
current legal and political process when their rules are voluminous, overly
technical, and effectively incomprehensible. Although it may not be possible to
rebuild the process from ground up, there is still a great deal of progress
that can be made to better ensure that the end goal – vigorous public
participation – is fed back into the central incentives for agency action.
[1] See Administrative
Procedure Act, 5 U.S.C. 553(c) and 706(2); The Freedom of Information Act, 5
U.S.C. § 552.
[2] See Cynthia R. Farina & Mary J.
Newhart, Rulemaking 2.0: Understanding
and Getting Better Public Participation at 12 (IBM Center for The Business of Government 201) (identifying
“the length and complexity of rulemaking materials” as a barrier to meaningful
citizen participation in U.S. agency rulemakings).
[3] See generally See Cynthia R. Farina,
Mary J. Newhart, & Cheryl Blake, The
Problem with Words: Plain Language and Public Participation in Rulemaking,
83 The George Washington Law Review
1358, 1365 (2015) (observing this phenomenon). For a first-hand experience, go
to regulations.gov and search the rulemaking docket for a rule. For a current
rule governing a workplace standard for silica, go to:
[4] See Kimberly
D. Krawiec, Don’t
‘Screw Joe the Plummer’: The Sausage-Making of Financial Reform, 55 Arizona Law Review 53-103 (2013) (examining over
8000 comments on the proposed Volker rule and raising questions about the
quality of citizen participants as opposed to the engagement by the financial
industry).
[5] See Comm. To Review EPA’s Draft IRIS Assessment of Formaldehyde,
Nat’l Research Council, Review of the Environmental Protection Agency’s Draft
IRIS Assessment of Formaldehyde 4 (2011) (noting in the course of their review “[p]roblems with clarity and
transparency of the [EPA’s] methods [for assessing the risks of formaldehyde]
appear to be a repeating theme over the years, even though the documents appear
to have grown considerably in length. In the roughly 1,000page draft reviewed
by the present committee, little beyond a brief introductory chapter could be
found on the methods for conducting the assessment”).
[6] Farina,
Newhart & Blake, Plain Language,
supra note 3, at 1365.
[7] See Wendy E. Wagner, Administrative Law, Filter Failure, and
Information Capture, 59 Duke L. J.
1321, 1331-34 (2010) (making this general argument).
[8] See generally Farina, Newhart &
Blake, Plain Language, supra note 3.
[9] Farina
identifies four categories of participants. Farina & Newhart, Rulemaking 2.0, supra note 2, at 14. The
first consist of “sophisticated stakeholders”, which include high stakes
regulated parties and in some settings might also include well-organized NGOS. The
second category – missing stakeholders – tend to be
directly affected but impeded from participation due to a lack of expertise and
resources. The third and fourth categories (unaffiliated experts and interested
members of the public) are less essential to ensuring vigorous participation,
although by no means are they wholly peripheral either. For purposes of this
article, however, references to the “public” includes all three of these absent
categories. Since directly affected groups vary from rule to rule and may not
be organized or organized at all, they are drawn from the larger population by
virtue of the impacts of the rule on them. Yet they are still part of the
larger “public,” broadly defined.
[10] Needless to say, since
the focus is exclusively on administrative process the scope of this analysis
does not consider many other important forms of citizen participation – in the
political process, in reinforcing enforcement cases, in impacting agency
priorities and framing of priorities and decisions, and in local or nonlegal community decision processes or collective action.
[11] See Ralph
L. Keeney, Value-Focused Thinking vii-ix, 29-30, 44-51 (1992)
(highlighting the benefits of value-focused thinking and discussing how
neglecting a universal map of the goals, problems, and possible solutions can
result in wrongheaded decisions).
[12] See Mark Seidenfeld,
A Table of Requirements for Federal
Administrative Rulemaking, 27 Fla.
State. U. L. Rev. 533 (2000).
[13] See Edward Rubin, It’s Time to
Make the Administrative Procedure Act Administrative, 89 Cornell L. Rev. 95, 101 (2003).
[14] Final Report of the Att’y Gen’s Comm. on Admin. Procedure 103 (1941).
[15] Effective
communication is difficult, of course. Rhetoric scholars alert U.S. to the fact
that there is no neutral speech – all communications have a valence. See James
A. Herrick, The History and theory of Rhetoric: An Introduction (2005). But
there are also methods to correct for the worst pathologies. Moreover, a
process in which the “speaker” has incentives to be incomprehensible would seem
to lead to a broader range of communication challenges than one in which the
speaker is at least encouraged to engage the audience.
[16] See NRC, supra note 5, at chpt
9 (making this point).
[17] See Pasky Pascual et al, Making
Method Visible: Improving the Quality of Science-based Regulation, 2 Michigan Journal of Administrative and
Environmental Law (2013).
[18] 5 U.S.C. 553(c).
[19] Id. at 706(2).
[20] Id.
[21] See 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.4, at
593-97 (5th ed. 2010).
[22] Seidenfeld, supra
note 12.
[23] Winston Harrington, Lisa Heinzerling,
& Richard D. Morgenstern, Controversies
Surrounding Regulatory Impact Analysis, in Reforming
Regulatory Impact Analysis 12-13 (Winston Harrington, Lisa Heinzerling,
& Richard D. Morgenstern eds. 2009) (touting these advantages of the
RIA process).
[24] Cynthia R. Farina, Rulemaking
in 140 Characters or Less: Social Networking and Public Participation in Rulemaking,
31 Pace L. Rev. 382, 419-20 (2011)
(observing that the “requirement to accept public comments has never been
understood as an affirmative, inquisitorial duty to seek out members of all
affected groups and ensure a broadly representative range of participation”).
[25] Farina,
Newhart & Blake, Plain Language,
supra note 3, at 1362-63.
[26] 5 U.S.C. § 553(c).
[27] Pierce, supra note 1, §7.4 at 445.
[28] See Farina & Newhart, Rulemaking 2.0, supra note 2, at 15-16
(arguing that the comments of these organizations “rarely convey the rich and
nuanced detail of individual experiences, practices, and operations”); Miriam Seifter,
Second-Order Participation in
Administrative Law, 63 UCLA Law Rev.
(forthcoming 2016).
[29] Morgenstern et al., supra note 23, at chpt. 9.
[30] See Steven P. Croley, Regulation and Public Interests 125-33 (2008).
[31] The more elaborate version of this argument is developed in Wagner,
supra note 7.
[32] For
discussions of the large role that both the President and Congress play in the
substance of agency rulemakings in the U.S., see Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92
Tex. L. Rev. 1137 (2014)
(discussing the important role of the President in intervening in regulations);
Thomas O. McGarity, Administrative Law as Blood
Sport: Policy Erosion in a Highly Partisan Age, 61 DUKE L.J. 1671 (2012)
(describing the same for Congress).
[33] See generally McKart v. United States, 395 U.S. 185 (1969); see generally Marcia R. Gelpe, Exhaustion of Administrative Remedies: Lessons
from Environmental Cases, 53 George
Washington L. Rev. 1 (1985).
[34] Andrea Bear
Field and Kathy E.B. Robb, EPA
Rulemakings: Views from Inside and Outside, 5 Natural Resources and Environment, Summer 5, 9-10 (1995)
(recounting the following advice from regulatory attorneys; “Make sure that you
submit to the Agency all relevant
information supporting your concerns in the rulemaking. This is the best way to
convince the Agency to responds favorably to your concerns.”).
[35] Prof. Pierce
describes what the lengths agencies must go to show they have adequately
considered all comments. See Pierce, supra note 27, §7.1 at 413,
[36] R. Shep Melnick, Administrative Law and Bureaucratic Reality,
44 Admin. L. Rev. 245, 247 (1992).
[37] Id.
[39] See E. Donald Elliott, Reinventing Rulemaking, 41 Duke L.J. 1490, 1495 (1992).
[40] See William F. West, Formal Procedures, Informal Processes,
Accountability and Responsiveness in Bureaucratic Policy Making: An
Institutional Policy Analysis, 64 Public Administration Review
66 (2004).
[41] See Cary Coglianese,
“Challenging the Rules: Litigation and Bargaining in the Administrative
Process,” U. of Michigan Dissertation unpublished, at 14 (1994).
[42] See Wendy Wagner et al., Rulemaking in the Shade: An Empirical
Study of EPA’s Air Toxic
Emission Standards, 3 ADMIN. L.
REV. 99 (2011).
[43] See Seidenfeld,
supra note 12.
[44] See Cynthia R. Farina, Mary J. Newhart,
& Cheryl Blake, The Problem with
Words: Plain Language and Public Participation in Rulemaking, 83 The George Washington Law Review 1358,
1365 (2015).
[45] See Morgenstern et al.,
supra note 23, at 221-25.
[46] See Martin Shapiro, On Predicting the Future of Administrative Law, 6 Regulation 18
(1982).
[47] For a more
extended discussion supporting this point, see Wagner, supra note 7.
[48] Farina,
Newhart & Blake, Plain Language,
supra note 3, at Part I.
[49] Farina,
Newhart & Blake, Plain Language,
supra note 3, at 1396.
[50] See generally Wagner et al., supra note 42,
at 109, 125 (citing and summarizing this literature).
[51] See id.; Jason Webb
Yackee & Susan Webb Yackee,
A Bias Towards Business? Assessing
Interest Group Influence on the U.S. Bureaucracy, 68 J. Pol. 128, 128 (2006) (identifying a
“bias towards business”).
[52] See Wagner et al.,
supra note 42, at 128-29.
[53] Id. at p. 125.
[54] Natural Resources Defense Council, Inc. v.
SEC, 606 F.2d 1031, 1052 (D.C. Cir. 1979).
[55] See Florida
Peach Growers Ass’n v. Department of Labor, 489
F.2d 120, 129 (5th Cir. 1974) (lamenting that the record is “some
238 documents occupying approximately two and one half feet of shelf space”
that contains a mix of technical information); Aqua Slide ‘N’ Dive Corp. v.
CPSC, 569 F.2d 831, 837 (5th Cir. 1978) (observing that judicial
review was complicated by the record that consisted of a “jumble of letters,
advertisements, comments, drafts, reports and publications [...] run[ning] for almost 2,000 pages [...]
[with] no index”).
[56] See also
Farina, Newhart & Blake, Plain Language,
supra note 3, at 1365 (discussing the inaccessibility of an airline rule to
all stakeholders except the airlines, who were the parties being regulated)..
[57] 40 C.F.R. § 63.100-.183. This example is
drawn from Wagner, supra
note 7.
[58] See Krawiec, supra note 4 (providing this type of
initial, valuable data on one important rulemaking). To lessen burdens on
agencies, this data could also be conducted voluntarily by
those offering comments. Commenters could offer an assessment of the
extent to which they believe their comments were taken seriously. While this
input may be self-serving, it will still provide a helpful indication of the
effectiveness of participation from the participants’ standpoint. Of course
when issues are litigated precisely because the agency did ignore them, this
too could be easily recorded in a score sheet that identifies that petitions
for rehearing and appeals were taken on individual rules. The crowdsourcing
literature may provide some insights on how these various participant-based
assessments could be conducted.
[59] Agencies like the EPA
sometimes hold numerous location-specific meetings with communities that are
currently impacted by a type of industrial emission, for example. Some,
including from the NGO community (for example, EarthJustice),
have suggested that the resulting citizen input does inform the agency in
important ways. These anecdotes and experiments are vital, but to make the best
use of them there needs to be a mechanism for collecting their findings and
feeding them back into process design.
[60] See Sally Katzen,
Correspondence, A Reality Check on an
Empirical Study: Comments on “Inside the Administrative State,”
105 Mich. L. Rev. 1497, 1502–03
(2007) (arguing that the results of White House involvement provide greater
political accountability because of the electoral process); see also Cass Sunstein,
The Office of Information and Regulatory
Affairs: Myths and Realities, 126 Harvard
L. Rev. 1838 (2013) (highlighting the importance of inter-agency
coordination).
[61] See generally Farina & Newhart, Rulemaking 2.0, supra note 2.
[62] Cf. IDEA, State of Democracy Assessment
Framework in Germany, at:
http://www.idea.int/sod-assessments/approach/sod/
(providing an elaborate
framework for assessing, among other things, the link between governmental
processes and citizen perceptions of meaningful opportunities for participation
in those processes).
[63] This
deficiency could simply be recorded – for example, via an Executive Order – as
a shaming device. Alternatively, Congress could include this process feature as
a fundamental basis for judicial review or adjusting standing requirements,
most of which have developed through common law interpretations of the APA.
[64] See David J. Arkush,
Direct Republicanism in the
Administrative Process, 81 Geo. Wash.
L. Rev. 1458 (2013).