Introducing the Public Comments Initiative
Introducing the Public Comments Initiative
Public comments and their impact on scientific integrity in federal rulemaking
The ability to submit public comments to federal agencies when they propose new regulations is an integral part of public participation in government. The Environmental and Data Governance Initiative (EDGI) has launched the Public Comments Initiative to help individuals approach the public comment process more effectively, and to recommend to the federal government ways to better support public participation in rulemaking.
Since the passage of the Administrative Procedure Act in 1946, federal agencies have implemented notice-and-comment rulemaking, where agencies have to provide members of the public the opportunity to submit comments whenever a new rule is proposed and to consider relevant matters raised in comments. Case law later established that agencies must explain why they heeded or disagreed with specific recommendations or arguments in public comments. These comments may be written by any member of the public, including regular people, companies, and state and local governments. They may come in the form of a simple letter, but the most effective comments are rich documents containing original analyses and data that can help agencies make decisions.
This process is meant to ensure agencies act with scientific integrity and transparency, demonstrate how they conduct regulatory analyses, and take into account stakeholder insights. However, this process often falls short of its promises, and there is much about this process that agencies can improve. For example, there are scant requirements about the kind of information agencies need to share with the public, and consequently, the federal government does not have policies in place to prevent agencies from removing scientific information on their websites even when that information is foundational for active rulemaking receiving public comments. Additionally, agencies could improve the information they provide to the public about the ways comments can either sway agency thinking on regulations or fail to meet an agency’s threshold for consideration. There is a substantial gap between the kind of influence the public often seeks to exert through their comments and the extent to which agencies can or will incorporate suggestions from comments at the public comment stage of rule development. The bar for agency consideration of comments is high, including comments demonstrating technical and policy rationale or new data, and there is an even higher bar for shifting the agency’s proposal. As may be expected, certain influential groups hold more sway with their comments than members of the general public.
As part of EDGI’s initiative, we have authored several guides that aim to help members of the public better understand the public comment process and make a greater impact with their comments. We present a guide for writing effective public comments that incorporates our insights studying challenges people commonly face when writing public comments. These include verifying the arguments and data provided in a comment are original and have not been considered by an agency, making sure comments reference appropriate sources that agencies can access, and getting clarity about the details of proposed rules from agency contact staff. We also developed research recommendations for individuals writing comments. These recommendations cover the many types of agency, news, economic, and legal sources of information it is helpful to consult when writing a public comment. These sources can be difficult to locate and discern their importance to a proposed rule, but our guide lays out effective methods for finding and utilizing these sources. We also detailed how the Environmental Protection Agency (EPA) receives and responds to public comments. We intend for this document to shed light on how agencies incorporate data and feedback from the public. We also outline other ways members of the public can influence rulemaking besides submitting public comments. People seeking to write comments can benefit from weighing other options for participating in government affairs, including lobbying their lawmakers or attending meetings with agency staff.
Public comments are an important tool for leveraging public expertise and experience to create better rulemaking. As part of our initiative, we recommend agencies create explicit pathways for public participation that serve different types of stakeholders, especially those who historically have been marginalized. With how complex rulemaking and agency decision-making can be, it’s important for agencies to effectively communicate their scientific activities and findings, which in turn makes it easier for the public to submit relevant, informative, and actionable public comments. Thankfully, the current administration, through efforts such as OIRA’s efforts to broaden public engagement in the regulatory process, is focusing its energies in this area. Under the right circumstances, public comments can empower the public and lead to better outcomes for us all.
To discuss this project or get involved, please contact Gretchen Gehrke at gretchen.gehrke@envirodatagov.org.
About the authors
Alejandro Paz is the Librarian for Energy and Environment at MIT. He is interested in how federal agencies publicize their data and information services and how these affect participatory democracy and policymaking.
Gretchen Gehrke is a co-founder of the Environmental Data and Governance Initiative. She has nearly 20 years of experience conducting research and doing advocacy in environmental science and public information policy and practice.
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