Under the Biden administration, the U.S. regulatory system is experiencing a welcome renaissance, changing the way agencies see their role in society and the relationship between policymaking and public participation. However, the regulatory process is still providing outsized opportunities for large, sophisticated “repeat players” to shape our public protections because of the “two-tiered” nature of public participation that currently exists.
Public participation represents a critical pillar of regulatory procedure. Nevertheless, there is growing concern that the main way people and organizations can participate in the regulatory process, known as notice-and-comment, “fails to adequately engage many members of the public with a stake in a specific rulemaking — particularly individuals from structurally marginalized communities.”
A new analysis from the Center for Progressive Reform, Bridging the Participation Gap: Assessing the “Two-tiered” Nature of Stakeholder Engagement in the Federal Regulatory System, looks at the reality of notice-and-comment-based participation by examining more than 52,000 public comments submitted on five energy and climate regulations during the Biden administration. The analysis assesses trends and shortcomings in the process and highlights potential avenues for expanding the democratic aspects of regulatory policymaking.
Our analysis looks at the outcomes of the notice-and-comment process and digs into the following questions: a) who is participating, b) what does their participation look like, and c) how can agencies do better when it comes to engaging with the public and historically marginalized communities.
For this analysis, we focused on climate and energy policies because they are of growing public interest, they embody an important tension between technical complexity and widely shared values, and they implicate a diverse range of stakeholders.
One of the main findings of the analysis is that thecurrent process fails to adequately engage many members of the public, particularly individuals and structurally marginalized groups. We found an important gap between large, sophisticated “repeat players” and individuals participating directly or mediated only through smaller, community-based organizations.
Moreover, when individuals participate, their participation “looks different.” Comments from individuals stand out as they contain little contextualized or novel information, most are anonymous, and the vast majority are identical copies stemming from mass campaigns.
What is driving these dynamics? One of the main factors is that the role of notice-and-comment has evolved greatly from its original purpose of gathering information among stakeholders to inform decision-making. This shift has come in response to a specific participation strategy: litigation. The current design of the notice-and-comment process rewards organization-driven participation and relies on overburdening the agency with information (“packing the record”) with an eye toward challenging the rule in court.
Sophisticated organizations find that the notice-and-comment process fits their unique institutional characteristics, relegating other interests (contextualized knowledge from smaller community-based groups and individuals) to the margins of the process. This is problematic, as this version of the process offers decreasingly little value to most people, few of whom intend to engage in litigation over a rule.
In short, notice-and-comment alone is not enough to ensure meaningful participation in the regulatory system by individuals and members of structurally marginalized communities.
Changing the regulatory and public participation landscape requires creating the right set of conditions and tools (by providing better information or resources) to encourage and support individuals and structurally marginalized groups to meaningfully engage with the process. This can be done by building capacity for individuals and communities to participate, promoting participation outside of notice-and-comment, and creating new institutions with a mission to support public participation.
It also requires agencies to take other forms of discourse into account by modifying the relative weight assigned to different types and sources of information and feedback. Finally, it requires updating the relationship between the agency and the public and taking a more proactive role that affirmatively seeks to meet the public where they are.
The Biden administration took an important first step toward this end on July 19, with the release of a memo signed by the Administrator of the Office of Information and Regulatory Affairs (OIRA), Richard Revesz, calling for federal agencies to “inform their regulatory actions through meaningful and equitable opportunities for public input by a range of interested or affected parties, including underserved communities.”
Effective implementation of these policies would level the playing field for public participation and strengthen the democratic role the regulatory system plays in our constitutional system of government, ensuring that individuals and structurally marginalized groups’ unique knowledge and concerns are incorporated during the rulemaking process.
