By John MassonJuly 27, 2012
A paper by Michigan Law Prof. Nina Mendelson on the roles of public comment in democratizing agency rulemaking continues to generate interest more than a year after it was originally published.
Mendelson's research found that the volume of public comment on proposed agency rules was rising rapidly in conjunction with the growing availability of email and ease of access to the government website www.regulations.gov. But the thousands of comments that agencies are collecting from the public at large often go largely unexamined.
"In theory, agencies are supposed to pay attention to every significant issue raised in comments, no matter who makes it," Mendelson said. "But to take the resources to analyze so many comments—that's expensive… What we have in the real world is agencies saying 'We have all these comments coming in; what do we do with them now?' "
Mendelson's paper, "Rulemaking, Democracy, and Torrents of E-mail," was published as the Foreword to the July 2011 issue of The George Washington Law Review. The research will be the subject of comment by Mendelson and Cornell Law Prof. Cynthia R. Farina in the next issue of the Michigan Journal of Environmental and Administrative Law, one of Michigan's two new law journals.
What makes the public comment problem serious, Mendelson said, is that much of the real impact of government happens at the rulemaking level.
"Agencies often use rulemaking to define the required level of occupational safety, consumer protection from defective products, food safety, and environmental protection," Mendelson said.
Furthermore, in cases of proposed regulation, regulated industry representatives may have ample motive and resources to mobilize lawyers and lobbyists to produce complex, professionally nuanced arguments the general public doesn't have the resources to rebut—a situation that skews the playing field in favor of industry.
Conversely, grassroots—or sometimes faux-grassroots, "AstroTurf" groups—can use their websites to encourage dumping a huge volume of public comments into the laps of agency analysts. Such groups may have their own reasons for encouraging people to comment on rules: increasing their membership numbers, perhaps, or drumming up donations.
"There is a concern that people who file lots and lots of comments may not know much about the issue," Mendelson said. "And there's a worry that the real work of rulemaking is done before the public comment process even begins."
What makes the matter pressing, Mendelson said, is that to maintain legitimacy, rulemaking agencies must be seen as democratically responsive. Accordingly, she argues that large volumes of public comments deserve attention and a brief response from an agency, even if the agency is simply prompted to investigate further into public views.
"This is where the core issues of government get worked out," Mendelson said of the rulemaking process. Similarly, she writes, "it is critical that we thoroughly consider what potential rulemaking may in fact have to make agency decision-making democratically responsive."
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