Under the Biden administration, the U.S. regulatory system is experiencing a welcome renaissance. This revival is not merely talk, but also substantial, embodied by the development of critical regulatory actions and meaningful changes in the way agencies see their role in society. These changes are happening alongside increased attention from academics, experts at think tanks, and policymakers to the need for more public participation in the rulemaking process.
Why should we care about regulations (technical documents and guidelines developed by agency staff) in the context of our modern democracy (the system by which we govern ourselves and conduct our public affairs)?
Because regulations are a crucial, if at times misunderstood, pillar of our constitutional system of government.
Regulatory experts are growing concerned with the notice-and-comment period of federal agency rulemakings. Does the notice-and-comment process serve Americans well? Is it accessible to and inclusive of all people? Or does it better serve more sophisticated and better-resourced “repeat players” while systematically excluding everyday Americans, and particularly members of structurally marginalized communities?
To answer these questions, we studied five federal regulations during the Biden administration related to climate and energy policy. We then analyzed every comment submitted during the notice-and-comment period for these rules, totaling 52,715 comments.
Our findings reveal that when it comes to public participation, we have a two-tiered regulatory system. In other words, there is a significant gap between sophisticated “repeat players” and individuals participating directly or mediated only through smaller, community-based organizations. In this regard, these findings confirm the intuitions of academics and policymakers who are increasingly focused on making the regulatory system more inclusive.
The bubble plot below depicts organizational type and comment length for organizations that have submitted public comments. The size of each bubble represents the length of the combined comments submitted by each organization (including appendices and attachments).
What’s the reality of individuals engaging in notice-and-comment periods? Most individuals who participate do so anonymously (left) or by supporting coordinated campaigns conducted by organizations (right).