A UCS Guide to Involving the Public in Rulemaking

September 24, 2020 | 1:55 pm
Taryn MacKinney
Former Contributor

Today, the Union of Concerned Scientists is releasing its second batch of fact sheets to guide federal agencies toward science-based decisionmaking. One of these fact sheets, “Public Participation in Rulemaking at Federal Agencies,” focuses on how agencies can involve individuals and communities across the US in the regulatory process in 2021 and beyond.

A crash course on federal rulemaking

When a law is passed, it usually lacks details. Let’s say, for example, that Congress passes a law that will change government healthcare. That’s a big deal, but the law probably won’t mention your county, town, physician, or upcoming doctor’s appointment.

So who figures out the specifics? Agencies—for example, the Environmental Protection Agency (EPA)—make rules, also called regulations, to clarify how, where, and when a given law (or executive order or another directive) will be implemented. Federal rulemaking is complex, but a key principle is that the public should have a say; after all, government works on behalf of the people. Hence, federal law requires government agencies to publicize proposed rules, allow the public to comment on them, and respond to those comments.

The deck is stacked against public participation in rulemaking

In practice, however, public participation faces longstanding threats. For example:

  • Agencies can pick and choose who to speak with. Because agencies have discretion over who they listen to, wealthy interest groups, like those that represent industry, often wield great influence over rulemaking before the public is even aware of a particular rule.
  • The public doesn’t always know when or how to comment. Opportunities for comment are rarely publicized to the communities most affected by a proposed rule. Moreover, rules are usually written in technical jargon, which alienates much of the public.
  • Some agencies have restricted public comment periods. Agencies must give sufficient time for the public to comment on important rules, but some agencies have consistently used the bare minimum, 30 days, to speed rules through as quickly as possible.
  • Rulemaking is hard to navigate online. The websites that agencies use to publicize rules, like regulations.gov, can be confusing and difficult to use. Worse, some people can’t access them at all, such as low-income households who don’t have reliable internet access, or those whose first language isn’t English.

These threats are serious. Rulemaking is not often glamorous, but regulations shape public life in enormous ways: rules can keep our air clean, or allow industry to pollute it; rules can protect public lands, or dish them out to the highest bidders. Rules can protect science in government decisionmaking—or they can defang the science that keeps us safe.

To combat these threats, the Union of Concerned Scientists compiled recommendations on how agencies can promote and protect public participation.

Recommendation #1: Agencies should involve communities in decisionmaking earlier and more effectively, especially marginalized communities and those most likely to be affected by rules.

  • Agencies should engage with the public early on. By the time many proposed rules go public, they’re mostly finalized, which can mean that the public doesn’t have much say. Agencies should ensure that the public can comment as early as is feasible in the rulemaking process.
  • Agencies should work with the public on important projects. The current administration has tried to tamper with the National Environmental Policy Act (NEPA), which requires agencies to engage with the public on federal projects or actions that will have environmental impacts, like dams or highways. The public deserves to be heard and informed, so agencies should uphold NEPA as it stands now.
  • Agencies should diversify the teams who evaluate NEPA projects. For every major project, an agency assigns a team to assess the project’s impact on the public. Agencies should tell the public why and how agencies choose the members of each team, and they should try to include community members who can speak to a project’s local impacts.
  • Agencies should research the best ways to engage the public. Rulemaking is complicated, and many people don’t know how to take part. It is up to agencies to change this. They should investigate how best to reach the public, especially those least able to participate.
  • Agencies should proactively reach out to the public. Agencies should identify and reach out to the specific communities who could be most affected by a rule. Agencies could, for example, host webinars or public meetings outside working hours.
  • Agencies should evaluate comments fairly. Controversial rules can get a lot of attention—sometimes hundreds of thousands of public comments. Agencies should investigate better ways to evaluate public comments, while making sure they hear concerns equitably.

Recommendation #2: Agencies should increase transparency in rulemaking.

  • Agencies should make sure that commenters disclose their financial ties. If individuals include scientific or technical research in a public comment, agencies should require these individuals to disclose any organizations or companies that provided funding.
  • Agencies should tell the public how, and with what information, they make rules. When an agency develops a rule that affects the public, decisions shouldn’t be made behind closed doors. Agencies should make public the research, sources, and correspondences—including meetings and calls—that they use to shape a rule. If a rule gets changed at any point, agencies should make these edits public too.

Recommendation #3: Agencies should make online rulemaking more accessible.

  • Agencies should assess their strengths and weaknesses. Agencies should invite government or outside groups to evaluate how well they use online rulemaking (“e-rulemaking”), and whether they’re doing all they can to reach the public.
  • Agencies should ensure that everyone can read and understand rules. Proposed rules are often lengthy and complex. It’s up to agencies to make sure any member of the public, regardless of their background, can find, understand, and comment on important rules. This also means that agencies should work together to standardize their online rulemaking sites.
  • Agencies should make sure that public interest groups can serve the public. Public interest groups often play a crucial role in informing the public about rulemaking, but the difficulties and inconsistencies of rulemaking websites can impede this role. Agencies should do all they can to work with and enable public interest groups to connect communities with relevant rules.

Public participation in rulemaking is a deeply valuable tool in our democracy: it consolidates knowledge that is dispersed across society, increases civic participation, improves rulemaking outcomes, and ensures our government serves all of us. It is crucial that access become more equitable and productive—and it is up to federal agencies to make this vision a reality in 2021 and beyond.