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

Pledging, Populism, and the Paris Agreement: The Paradox of a Management-Based Approach to Global Governance

For many observers, the Paris Agreement signaled a historic breakthrough in addressing the problem of global warming. In its basic design, however, the Agreement is far from novel. Its dependence on each nation’s self-determined pledge to reduce greenhouse gases mirrors the domestic policy strategy called management-based regulation—a flexible regulatory approach that has been used to address problems as varied as food safety and toxic air pollution. In this article, I connect insights from research on management-based regulation to the international governance of climate change. Unfortunately, management-based regulation’s track-record at the domestic level gives little reason to expect that the Paris Agreement will lead to major long-term behavioral change needed to reduce greenhouse gas emissions. Although a management-based regulatory strategy may have been the best option available for securing a widespread global climate agreement, this strategy seems to offer little assurance of forward momentum on climate policy due to an inherent paradox created by the Agreement’s management-based design: global progress will depend on domestic politics. Especially given the rise of nationalistic populism around the world, the Paris Agreement will succeed only if political efforts within individual countries push back the threat to global cooperation posed by populism and convince domestic leaders to support serious climate action

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

Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emissions

In this article, the authors trace the engagement and the influence of interest groups over the entire life cycle of a complete set of complex EPA rules that set emissions standards for the industrial release of air toxins. In particular they focus on three of the most worrisome phases of the administrative process where imbalances in interest group engagement and influence may be occurring. The thesis of this study is that imbalances in interest group engagement are occurring at critical albeit somewhat obscure stages of the rulemaking life cycle and that these imbalances are impacting the substance of the rulemaking project. This article proceeds in five parts. Part I explores three stages in the rulemaking life cycle that may be afflicted with imbalanced interest group engagement that in turn might distort the outcome of the rulemaking project. Part II describes the methods of the article, which examine the nature of interest group engagement and activity at these problem stages in a complete set of rules promulgated by the EPA governing the industrial emissions of air toxics. Part III describes the findings and Part IV collects information from disparate sources in detective like fashion to explain some of the surprises and new questions that emerge from this research. In the conclusion, the authors retell the store that emerges from their data and consider whether it suggests more pervasive problems in administrative law that will benefit from further study.The Kay Bailey Hutchison Center for Energy, Law, and Busines

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

Word Limited: An Empirical Analysis of the Relationship Between theLength, Resiliency, and Impact of Federal Regulations

Since the rise of the modern administrative state we have seen a demonstrable trend towards lengthier regulations. However, popular critiques of the administrative state that focus on the overall size of the Federal Register are misguided. They rest on the premise that more, and longer, regulations unduly burden industry and the economy in general. However, movement towards lengthier and more detailed regulations could be rational and largely unproblematic. This study tests two potential rational explanations for the trend towards longer regulations: dubbed (1) “the insulation hypothesis” and (2) “the socially beneficial hypothesis.” Each of these explanations embodies a theoretically rational decision. First, the insulation hypothesis rests on the idea that it would make sense for policy-makers to include more detailed legal and scientific support in new regulations, and thereby increase their length relative to previous regulations, if the addition-al detail provided more insulation from judicial review. Second, the socially beneficial hypothesis rests on the idea that devoting relatively more time and re-sources to each new rule would be appropriate if longer, newer regulations produced more net social benefits than older, shorter ones. The empirical analysis set forth in this article combines data from a number of publicly available sources to test these hypotheses. The results, confirming “the socially beneficial hypothesis,” add to the canon of empirical analysis of administrative law, building on the work of Cass Sunstein, Cary Coglianese, and others. Recognizing an overly burdensome regulatory state, an undoubtedly worthwhile and vital check in a democratic society, requires more than simply counting the pages of regulations. The results of this study should put some minds at ease, at least with respect to EPA regulations; they should also help better direct our scrutiny in the future

The Rhetoric and Reality of Regulatory Reform

In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response to the Bush amendments. It begins by comparing criticisms of the Bush amendments with criticisms of previous regulatory reforms, showing that concerns about delay date all the way back to the creation of the Administrative Procedure Act of 1946. Notwithstanding the perennial nature of charges of delay and obstruction, the U.S. regulatory state has grown dramatically in both size and impact over the last six decades. In addition, the extant social science literature has failed to find any systematic delays associated with the specific procedure affected by the Bush amendments, namely regulatory review by the Office of Management and Budget. Overall, the burdens associated with regulatory reforms appear to be far smaller, or more manageable, than critics usually suppose. This paper concludes with several explanations for persistent reality of regulatory growth in the face of the persistent rhetoric of obstruction. These alternative accounts not only help explain the rhetoric-reality divide over regulatory reform in general, but they also provide reason to expect the Bush amendments will have, at most, only a trivial impact on the overall regulatory process.

Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement

This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To the extent an agency uses the same administrative procedure to implement a settlement that was used in adopting the regulation that is the subject of an appeal, the public interest may be preserved, but agencies have many ways of avoiding administrative procedure, or affording less procedure than was afforded in the initial adoption of a rule, in implementing settlement concessions. This article discusses these issues in three parts. In part I, settlement is contrasted to negotiated regulation. Settlement, it is argued, raises a more significant principal/agent gap than other consensus approach to regulation, such as negotiated regulation. Part II addresses settlement against the backdrop of presidential transitions, during in which policy shifts are common. In the context of presidential transitions, settlement can be used by an old administration to commit a new President to a policy course, or can be used by a new administration to undo the policy decisions of an old President. While policy shifts are expected during presidential transitions, such shifts have serious consequences for administrative procedure if the new policy is implemented with less procedure than the old, abandoned policy. Part III recommends some ways of narrowing the principal/agent gap in rulemaking settlement. In particular, broad participation in settlement negotiations, as well in judicial proceedings approving settlements, is endorsed. In addition, hard look review of the merits of a settlement ex ante -- at the time of the settlement's initial approval -- is advocated as a way of promoting accountability