This op-ed was originally published in The Regulatory Review. Reprinted with permission.
When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive.
Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process.
Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.
Bruce Williams and Albert R. Matheny identify three “languages” used in public policy debates: managerial, pluralist, and communitarian. The managerial perspective looks to an agency’s technocratic expertise to develop effective policies, while the pluralist perspective seeks to accommodate a balance of competing interests when determining policies. A communitarian perspective looks to the participation of citizens to express the values associated with the social, cultural, and historical contexts of a community’s lived experiences. For various reasons, the managerial discourse dominates regulatory decision-making, and the expectation is that competing interests will participate using a managerial discourse.
The reliance on managerial discourse has resulted in agencies ignoring the concerns of marginalized groups. One can imagine the interaction between marginalized groups and government officials as two gears meshing. Because marginalized groups do not bring the “right” form of discourse when advocating their concerns to government officials, the gears’ teeth slip, and, in the process, all the force of the public’s collective power is wasted and lost.
As Jill Lindsey Harrison has documented, for example, the Office of Environmental Equity in the U.S. Environmental Protection Agency (EPA) usually lost internal policy debates because other staff members perceived environmental justice as outside the EPA’s responsibilities. As one staff member noted to Harrison, “we do ecology, not sociology.” This disregard for issues affecting marginalized communities extends beyond EPA.
One proposed answer is to adopt technocratic methodologies to consider the interests of marginalized communities. Gwen Ottinger and Benjamin Cohen, for example, call for a reconstruction of risk analysis for this purpose. Similarly, Matthew Adler has surveyed proposals to use distributive multipliers, which would make cost-benefit analysis sensitive to distributive impacts.
These efforts are attempts to translate communitarianism—the third language identified by Williams and Matheny—into a managerial narrative. The problem is that communitarian concerns and values do not sit easily with the rationalistic and economic expectations of the managerial language used by agencies. When individuals participate in a regulatory process, for example, they are more likely to tell stories based on their individual experiences rather than use the reasoned discourse found in the managerial perspective.
As Francesca Polletta and John Lee note, the managerial language has become a form of privilege that disadvantages marginalized communities. Efforts to address this privilege by translating the communitarian input into a managerial narrative are not responsive. For one thing, the people translating are largely white. More significantly, this effort avoids a discourse with marginalized communities.
The dominance of the managerial language reflects an ongoing effort to “rationalize” regulation. But, as Liz Fisher and I explain in a recent book, this effort uses a thin version of expertise that does not capture the power of accommodating multiple viewpoints and perspectives, whether they are qualitative, quantitative, or both.
In an agency, persons trained in different disciplines interact with each other to share perspectives even though they do not share the same discipline. These interactions are possible because expertise is a form of practical judgment—a “craft” rather than a science—that relies on interactive debate and reason-giving joining different disciplines and perspectives.
Once the true nature of expertise is acknowledged, the door opens to accommodate both managerial and communitarian language. Williams and Matheny propose a how to accommodate the managerial, pluralist, and communitarian languages for this purpose. Polletta and Lee note that there are evaluative structures that can incorporate storytelling into public policy assessments.
Although reaching out to marginalized groups is the first step, integrating their insights—and the ways in which they express them—is a necessary step to empowering these communities. The public interest is discovered through inclusive discursive practices that incorporate the multiple languages of public policy debates.
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Sidney A. Shapiro | March 14, 2022
When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive. Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process. Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.
Allison Stevens | March 9, 2022
Judge Ketanji Brown Jackson, recently nominated to succeed retiring Justice Stephen Breyer, has received the endorsement of over 200 Black law deans and professors.
David Driesen | March 8, 2022
Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way. But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that might happen in future cases if the Court upheld EPA's interpretation of the Clean Air Act in the case before the Court.
Karen Sokol | March 4, 2022
Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act. Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case -- West Virginia v. EPA. Once again, it was a split-screen reality.
Ian Campbell | March 3, 2022
Employers prefer to deal with their workers one on one. But workers have shown throughout history they will not abide by this unfair practice. They organize, they work together, and, when their employers refuse to deal with them all at once, they strike. Workers engaged in, and prospered from, collective action long before passage of the National Labor Relations Act. The law merely sought to regulate this action for the public good, to replace strike with negotiation, conflict with cooperation. History is now repeating itself; labor strife is increasing, thanks in part to the rise of legal contracts that force workers to settle disputes in a rigged system of arbitration rather than an impartial court of law.
Allison Stevens | March 2, 2022
Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system -- even though the price tag is higher -- because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere -- a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet. Policymakers go through a similar -- though much more complex -- process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health. Despite its name, a true analysis of a rule's full benefits is impossible.
Daniel Farber | February 28, 2022
The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.
Joel A. Mintz | February 24, 2022
In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump. Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis. Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).
Noah Sachs | February 24, 2022
After the Supreme Court's decision last month rejecting the Biden vaccine mandate for large employers, it wasn't just the public health community that was asking "where do we go from here?" Environmental activists and attorneys immediately recognized that the Court's reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.