CPRBlog: CRE's = Proposed Interactive Public Dockets=E2=80=94Tilting the Regulatory = Process Further in Industry's Favor

Back in the 1970s, when many of the great environmental, health, and = safety=20 statutes were adopted, public interest groups shared an overwhelming = optimism=20 that greater public participation held the key to = maintaining=E2=80=94and even expanding=20 upon=E2=80=94their successes. All they needed was a seat at the = table where=20 decisions are made, and their ideas would ultimately prevail. At = first,=20 they were right=E2=80=94public interest groups were able to advance = their cause through=20 participation in the regulatory process. But before long, regulated = industry discovered that they could beat public interest groups at their = own=20 game by using their superior resources. The number of = =E2=80=9Cpublic input=E2=80=9D tables=20 grew, and each increasingly became filled with more and more industry = groups,=20 while the seats for public interest groups often go empty. If the = public=20 interest groups are able to be present, they are often drowned out.

Once a dream, public participation in the regulatory process has too = often=20 become a nightmare for public interest groups. A number of = different=20 studies of the regulatory system confirm the extent to which regulated = industry=20 is dominating participation in the regulatory process, including for = rules aimed=20 at environmental, health, and safety issues. A 2006 study of 40 rules = promulgated=20 by four agencies (the Occupational Safety and Health Administration, the = Employment Standards Administration, the Federal Railroad = Administration, and=20 the Federal Highway Administration) issued between 1994 and 2001 found = that of=20 the total number of comments, business interest filed 57 percent, = governmental=20 interests filed 19 percent, and non-business, nongovernmental interests=20 submitted 22 percent. Public interest group comments constituted = only six=20 percent of the total comments submitted by non-business, nongovernmental = interests. Another study, by Marissa Martino Golden, examined = comments filed on eleven proposed regulations at three agencies (the=20 Environmental Protection Agency, the National Highway Traffic Safety=20 Administration, and the Department of Housing and Urban Development) and = found=20 that corporations, public utilities, and trade associations filed = between 66.7=20 and 100 percent of the comments concerning these rules, and neither the = EPA nor=20 the NHTSA received any comments from public interest groups concerning = five of=20 the eight rules.

The Center for Regulatory = Effectiveness=20 (CRE)=E2=80=94an advocacy group with close ties to = industry=E2=80=94recently launched a=20 pilot project demonstrating interactive=20 public dockets (IPDs), a proposed change to the regulatory process = that=20 would only exacerbate the problems caused by industry=E2=80=99s = dominance of the=20 regulatory process.

IPDs are ostensibly intended to enhance the public=E2=80=99s ability = to participate=20 in the regulatory process via the Internet at regulation= s.gov. In=20 essence, an IPD would transform the traditional online public docket = into=20 something more like an online discussion board. As in a traditional = electronic docket, all of the public comments would be listed in = chronological=20 order. The difference is that IPDs would present the individual = comments=20 more like posts on a blog, allowing participants to = =E2=80=9Ccomment=E2=80=9D on previously=20 submitted materials, much like someone could =E2=80=9Ccomment=E2=80=9D = on an individual blog=20 post. The author of the submitted materials could then = respond. This=20 would in theory allow for more immediate and seamless interaction among=20 participants in the regulatory process. Moreover, this = give-and-take would=20 in theory be of some informational value to the agency undertaking the=20 regulatory action.

The other big innovation of IPDs is that the participant interaction = would=20 continue after the official comment period for a given regulatory action = has=20 closed. The agency undertaking the regulatory action would be able = take=20 these post-deadline comments and responses into account as it goes about = revising the regulatory action in response to the formal comments it = received=20 during the official comment period.

IPDs would in theory improve public participation in the regulatory = process,=20 but in reality its benefits would be limited to those members of the = public with=20 enough resources to take advantage of this opportunity = (i.e.,=20 industry), tilting the regulatory process further in their favor at the = expense=20 of public interest groups and individuals. Given that public = interest=20 groups and individuals face enough challenges in completing comments for = regulatory actions, it seems unlikely that they would also have the = capacity to=20 read through dozens of other submitted materials, comment on them = effectively,=20 or respond effectively to comments made on their own submitted=20 materials. In short, the extra participatory values offered by IPDs = would=20 be of limited benefit to public interest groups or the = public. Regulated=20 industry, however, could easily take advantage of the additional = opportunities=20 offered by IPDs, enabling them to increase their dominance over the = regulatory=20 process.

IPDs would also undermine the effectiveness of the regulatory system = in a=20 subtler way, by overloading agencies, which are already stretched thin, = with=20 information that would not substantially improve the rule under = development,=20 further ossifying the rulemaking process. Some numbers might help = put this=20 problem in perspective. OSHA has only 68 people on its staff to = write=20 rules. Yet the task of writing rules has become enormous. For = example,=20 the docket for EPA=E2=80=99s rule regulating coal ash already has 432 = public comments=20 (as of my last count), and the comment period isn=E2=80=99t set to close = until November=20 20. CPR Member Scholar Wendy Wagner has recently published an article on = this=20 phenomenon=E2=80=94which she refers to as =E2=80=9Cinformation = capture=E2=80=9D=E2=80=94in the Duke Law=20 Journal. Wagner argues that this information overload is what = has=20 paralyzed the regulatory state:

In the regulatory context, information capture refers to the = excessive use=20 of information and related information costs as a means of gaining = control=20 over regulatory decisionmaking in informal rulemakings. A = continuous=20 barrage of letters, telephone calls, meetings, follow-up memoranda, = formal=20 comments, post-rule comments, petitions for reconsideration, and = notices of=20 appeal from knowledgeable interest groups over the life cycle of a = rulemaking=20 can have a =E2=80=9Cmachine-gun=E2=80=9D effect on overstretched = agency staff. The law=20 does not permit the agency to shield itself from this flood of = information and=20 focus on developing its own expert conception of the = project. Instead,=20 the agency is required by law to =E2=80=9Cconsider=E2=80=9D all of the = input=20 received.

IPDs would undoubtedly make the problem of =E2=80=9Cinformation = capture=E2=80=9D even=20 worse. The agencies would now have to consider and respond to all = of the=20 trifling little comments that regulated industries might make during and = after=20 the official comment period. It=E2=80=99s not hard to imagine these = IPD-based=20 comments numbering in the thousands for more complex or controversial = rules.

In short, the CRE=E2=80=99s IPD proposal would be a recipe for = greater regulatory=20 delay and increased industry influence over the regulatory = process. The=20 recent BP disaster illustrates the negative consequences when industry = exerts=20 too much influence over the agencies that are supposed to be regulating=20 them. We should be wary of any changes to the regulatory system = that would=20 help to institutionalize these kinds of regulatory = principles. Instead, we=20 should be looking for changes to the regulatory system that will = eliminate=20 unnecessary delay and excessive industry influence. The = CRE=E2=80=99s IPD proposal=20 ought to remain just a pilot project on the organization=E2=80=99s = website.

James Goodwin, Policy Analyst, Center for Progressive Reform. = Bio.

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