Citizen Participation in Rulemaking: Past, Present, and Future

Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works-or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation after the introduction of various types of technological innovations. Contrary to prevailing predictions, empirical research shows that e-rulemaking makes little difference: citizen input remains typically sparse, notwithstanding the relative ease with which individuals can now learn about and comment on regulatory proposals. These findings indicate that the more significant barriers to citizen participation are cognitive and motivational. Even with e-rulemaking, it takes a high level of technical sophistication to understand and comment on regulatory proceedings. Moreover, even though information technology lowers the absolute cost of submitting comments to regulatory agencies, it also dramatically decreases the costs of a wide variety of entertainment and commercial activities that are much more appealing to most citizens. Given persistent opportunity costs and other barriers to citizen participation, even future e-rulemaking efforts appear unlikely to lead to a participatory revolution, but instead can be expected generally to deliver much the same level of citizen involvement in the regulatory process

The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication

Congress constructed the entirety of the modern federal environmental regulatory system between 1970 and 1990. However, due to ever increasing political polarization and gridlock, Congress has abdicated its responsibility as the primary national environmental policymaker over the past 25 years. Since 1990, no major environmental legislation has been enacted, leading to a growing sense that the federal system has become stagnated and obsolescent. Since the mid-1990s, concerns over the effectiveness, inefficiencies, and under-inclusiveness of the federal system have led to a robust reform movement seeking to build the next generation of environmental regulation. Because of Congress\u27s inability to enact environmental legislation, however, such reform efforts have largely centered on numerous, primarily voluntary executive branch reinvention initiatives at EPA. Congress\u27s failure to support these efforts, through legislation or otherwise, has severely undermined the ability of these efforts to achieve meaningful success, leading to a lost generation of environmental regulatory reform. This Article surveys the most widely promoted and analyzed of the next generation environmental regulatory reform proposals and calls on Congress to accept reform advocates\u27 challenge to improve and modernize a severely outdated regulatory system

Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation\u27s capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration\u27s National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain agencies in the development of specific regulations. As a result of these and other efforts, federal agencies have begun to employ the consensus-based process known as negotiated rulemaking

Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation\u27s capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration\u27s National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain agencies in the development of specific regulations. As a result of these and other efforts, federal agencies have begun to employ the consensus-based process known as negotiated rulemaking

Reforming the Administrative Procedure Act: Democracy Index Rulemaking

This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via democracy index rulemaking. Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount of deference then tied to the number of comments received. Alternatively, the agency could use a special procedure, called deliberative notice and comment, which would involve jury deliberations (involving a set of juries composed of stakeholders as well as of members of the general public) regarding the proposed administrative rule. An agency using this special democratic process would guarantee itself deference. Either way, democracy index rulemaking would create a system that would encourage public participation, with all of its virtues, while at the same time avoiding many of the negatives of other regimes of public participation

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

This article’s investigation into the “agency for legitimacy” proceeds in five steps: Part I introduces the concept of “administrative constitutionalism,” which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors’ argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Responding to Agency Avoidance of OIRA

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue that, because the relationship between agencies and OIRA involves ongoing repeat player interactions, some of these avoidance tactics are less likely to occur (or to succeed) than has previously been alleged, and others are more likely; the difference depends significantly on how easy it is for OIRA to detect avoidance, and for OIRA, the courts, and others to respond. Further, we note that in this repeat player relationship, responses to agency avoidance tactics may induce further strategic moves and countermoves. Thus we further argue that the optimal response may not always be to try to eliminate the avoidance behavior; some avoidance may be worth tolerating where the benefits of trying to reduce agency avoidance would not justify the costs of response options and countermoves. We therefore conclude that responses to agency avoidance should be evaluated in a way similar to what OIRA asks of agencies evaluating proposed regulations: by weighing the pros and cons of alternative response options (including no action)

Administrative Process Reform in a Discretionary Age: The Role of Social Consequences

The basic rulemaking procedures of the Administrative Procedure Act have remained intact for thirty-eight years, but now Congress is seriously considering reform of those generic rules. To evaluate the merits of these reform proposals, we must develop criteria against which to judge them. Although procedural reforms are commonly judged against the goals of fairness, accuracy, and procedural efficiency, Professors Schroeder and Magat argue that these are insufficient criteria to apply to administrative process reforms at a time when agencies possess substantial discretion in the rulemaking process. In such a context, procedures have an impact on society in ways not adequately evaluated by the traditional criteria. Discretion means that agencies may choose from a set of possible rules, none of which has been foreclosed by the enabling legislation of the agency. Procedures influence which choices the agency makes and, because these choices alter the regulations and restrictions under which society operates, they affect the social consequences of regulation. This article describes a model of participant behavior necessary to trace the effects of procedures on the social consequences of regulation, articulates a set of criteria to evaluate these social consequences, and then analyzes two frequently proposed generic reforms to the APA: mandatory regulatory impact analysis and oversight by the Office of Management and Budget

Responding to Agency Avoidance of OIRA

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue that, because the relationship between agencies and OIRA involves ongoing repeat player interactions, some of these avoidance tactics are less likely to occur (or to succeed) than has previously been alleged, and others are more likely; the difference depends significantly on how easy it is for OIRA to detect avoidance, and for OIRA, the courts, and others to respond. Further, we note that in this repeat player relationship, responses to agency avoidance tactics may induce further strategic moves and countermoves. Thus we further argue that the optimal response may not always be to try to eliminate the avoidance behavior; some avoidance may be worth tolerating where the benefits of trying to reduce agency avoidance would not justify the costs of response options and countermoves. We therefore conclude that responses to agency avoidance should be evaluated in a way similar to what OIRA asks of agencies evaluating proposed regulations: by weighing the pros and cons of alternative response options (including no action)