Regulators facing challenges such as climate change must balance obtaining public input with acting effectively.
In late January 2022, a federal trial court in Washington, D.C. ruled that the largest oil and gas lease in U.S. history—which would have greatly expanded oil drilling in the Gulf of Mexico—was legally invalid. Agreeing with the U.S. Court of Appeals for the Ninth Circuit’s similar conclusion in an analogous dispute, the court found fault with the agency’s “arbitrary and capricious” analysis because the agency failed to consider adequately the impact of the leases on climate change.
This ruling followed a Louisiana federal court decision cutting the other way on yet another related matter. That court struck down the Biden Administration’s moratorium on proceeding with the lease, even as courts elsewhere in the United States reviewed other major regulatory actions outside the domain of oil drilling. In January, for example, the U.S. Supreme Court stayed implementation of the Biden Administration’s use of statutory authority under federal occupational health and safety law to curb the COVID-19 pandemic by requiring that approximately 80 million workers obtain suitable vaccination or participate in periodic testing.
These decisions reflect the same pervasive challenge facing governments in much of the world, at least where both legal constraints and the needs of the public are taken seriously: reconciling legal constraints, scientific and technical expertise, and public input about all the relevant considerations that the law allows an agency to consider—often ranging from ecosystem health and regulatory efficacy to economic feasibility, and even aesthetic values.
Behind these decisions also lurks another story that continues to play out, even as geopolitics, technology, and society change across the decades: The intricate U.S. regulatory system remains vexed by the familiar aspiration to take robust public input seriously as regulators craft measures with potentially far-reaching impact on society in settings that tend to be run by technical and legal experts.
Americans are not alone in this laudable aspiration. Whether this aspiration improves the governance of an extraordinarily complex society—indeed, whether it substantively matters or just becomes a kind of aesthetic fixation—depends as much on pragmatism as it does on idealism.
The constant across decades, then, is a need for innovation as well as balance when it comes to achieving robust public input on regulation. Courts and policymakers should not assume that American society—or, indeed, any society around the world—is anywhere near the end of history when it comes to titrating expert wisdom and public input, particularly given new forms of technology and new regulatory approaches, or that an agency’s engagement with the public is irrelevant to advancing democratic goals and values. If anything, rising public distrust of government and changing technological and geopolitical realities make it even more valuable for agencies to find effective ways to inform and learn from the public.
But political leaders and judges must also safeguard the “action” part of the term “agency action” from becoming bogged down by unrealistic expectations of endless public input that frustrate government’s capacity to respond to tangible public needs for a clean environment, public safety, and well-managed public resources.
By “robust public input,” I mean agencies’ aspiration to use a mix of methods, ranging from receiving electronic comments to focus groups to survey experiments, in ensuring that they are well-informed about the consequences of proposed regulatory actions and viable alternatives.
Sometimes that aspiration is reflected in innovative or experimental practices, and sometimes in the rigorous and expansive interpretation of legal requirements rooted in statutes like the Administrative Procedure Act that make it difficult for agencies to ignore public comments about proposed actions.
Such practices can serve multiple purposes. Even before U.S. executive agencies were required to consider comments in their administrative process, agencies during World War II had already started requesting them because it helped them anticipate practical concerns and political opposition to their decisions. Political leaders can use public input to keep agencies in check or enhance their legitimacy. Experts at the agencies may genuinely find that their intricate technical tasks are enhanced by input coming from entities likely to be subject to a new regulatory mandate. And in democratic systems, engaging the public may bolster democratic values and aspirations, including giving the public a sense of participation and furthering the mutual education of agencies and the public.
But it can prove daunting to reconcile these various goals with the practical realities that agencies face. Policymakers have been discussing public input to the regulatory rulemaking process for almost as long as there have been regulatory rules because responsiveness in the United States is not presumed to come merely from engagement with other parts of the government. As a disaggregated body, the legislature faces practical limits on capacity as well as legal limits given the structure of the U.S. Constitution. In addition, the executive is constrained in its legal powers and faces competing demands.
This continuing challenge of dealing with public input sensibly is not unique to the United States or even to democracies. Even in China, whose form of government shares little in common with the United States government, officials have identified public input into local environmental decision-making as a valuable means of improving its regulatory capacity.
But the United States is one of the jurisdictions with the most elaborate commitment to robust public input in regulatory decision-making. Indeed, a role for public comments has been enshrined in the U.S. federal system of regulatory governance since the post-World War II modern period.
A brief survey of public input in regulatory governance helps us better understand not only the future of regulation in the United States, but also some of the tensions and tradeoffs policymakers will need to navigate to make government more effective, responsive, and reflective of the public’s values.
Government agencies are bureaucracies, and bureaucracies trigger fiercely contradictory responses. When an agency designs a set of rules to curb greenhouse gas emissions or reduce occupational health risks, policymakers expect regulators to be sufficiently steeped in technical expertise to parse dose-response curves and the responses of financial markets to subtle changes in transparency requirements, while also being capable of offering intelligible explanations about their work to non-expert policymakers, courts of general jurisdiction, and even members of the public. Policymakers tend to expect that agencies will be independent enough to withstand political attacks or spurious litigation while they remain broadly responsive to the public’s needs as well as to the legal limits on their jurisdiction and even factions that they can lawfully consider when making decisions.
These tensions complicate the project of getting agencies to solicit, analyze, and respond to public input. They give societies plenty of reasons to expect that agencies will take seriously the concerns of stakeholders and perhaps even seek innovative methods to solicit input from the public. But because agencies should also focus on their lawful responsibilities and deploy technical competence, agency procedures should not become mere settings to organize public plebiscites about proposed regulations. Nor should these procedures become the exclusive domain for well-heeled interest groups to have their way with agency plans, or to exercise veto power over agencies’ lawful actions.
In the 1970s, courts and agencies in the United States sought to manage these tensions by encouraging a degree of experimentation in how agencies engaged the broader public. The U.S. Supreme Court decided in Vermont Yankee v. Natural Resources Defense Council that, at least under the Administrative Procedure Act as it then stood, courts could not require agencies to fashion new procedural mechanisms to consult the public or consider factors not made clearly relevant by statutes governing agency action. But the Vermont Yankee decision does not require U.S. federal agencies to cut off any potential innovation in how they engage the public in regulatory decision-making: in many cases, federal agencies may still use civic juries, focus groups, survey experiments, public forums, and new ways of leveraging digital technology, so long as they do not run afoul of explicit statutory or budgetary limitations.
But the pressures affecting policymakers in the executive branch often create a recurring tension between ideals and practice. It is no surprise that agencies sometimes benefit from robust public input served up at key moments in the administrative process. Indeed, the most rhetorically common—and perhaps satisfying—way to reconcile democracy and the technical side of the administrative process is to play up how input from stakeholders and the public can improve outcomes, which is the case on some if not many occasions.
Regulations often take years or decades to finalize. When executive agencies face constraints from domestic politics, international pressures, or technical complexity, an ambitious public input agenda often competes with a desire to get things done.
An agency may initially want to deploy more elaborate experimental methods for engaging the public, such as survey experiments or civic juries, or simply face the daunting responsibility of reconciling its limited time and political capital with its legal responsibility to take seriously the input it receives as it finalizes a rule. Although these agendas may be laudable, they almost certainly increase the risks in some contexts that an agency will delay or even miss its window when moving a concept to reality.
These tradeoffs certainly do not cut in favor of abandoning the idea of expansive public input. But they hint at why careful, pragmatic thinking about the broader governance context is crucial to the long-term project of finding new, expansive ways to engage the public in rulemaking.
Think, for example, about the extraordinary challenges governments now face in both the developing world and in advanced industrialized countries. The COVID-19 pandemic has demonstrated both the weakness of some public health infrastructures as well as the potential for strong political polarization over issues that regulators might have previously considered almost entirely the domain of experts.
Countries are also writing and implementing rules affecting the global energy transition in response to climate-related concerns and new technologies. Governments are struggling to strike a balance between flexibility and standards in seeking to mitigate risks and enhance benefits from computer systems using artificial intelligence. And people in both developing countries and advanced industrialized countries are navigating a world of economic uncertainty and dislocation that affect domains ranging from the governance of financial institutions to workplace conditions and social welfare.
Cabinet ministers, agency officials, courts, and legislatures are under considerable pressure to make headway on this panoply of issues, even when they take seriously the potential positive value of robust public engagement and the goal of expanding current public input practices.
These decision-makers shoulder this pressure at a time when virtually no country has managed to find a perfect way to navigate the broader currents of social and technological change, economic dislocation, and global interdependence underlying the regulatory issues on which agencies are working.
Combined with more familiar internal pressures to improve the performance of their institutions, it is not surprising that countries throughout the world are facing demands for institutional change and innovation. Israel’s Open Government Action Plan for 2018-2019, for example, outlines the government’s priorities with respect to citizen participation. It focuses on developing an online platform for public participation as well as creating and updating processes for civic participation in legislation and regulation.
Even in regimes that do not qualify as full democracies, consultation and shared deliberation can be important for reducing tensions, sorting issues by their importance, and allowing policymakers to understand options and concerns. These advantages essentially disappear, of course, if citizens do not benefit from at least a modicum of freedom to express candid views within the process, although it is possible to imagine enough protections to make participation meaningful even without full attributes of electoral democracy.
In 2018, for example, China’s central government, the State Council, mandated a 30-day public notice and comment process for most government rulemakings and institutionalized other mechanisms that enhance public participation and transparency in the rulemaking process.
For U.S. scholars of the administrative state in the world’s most economically and geopolitically significant democracy, these examples underscore certain familiar challenges despite the range of institutional differences. Properly understood, these challenges offer a reasonable roadmap for modest but steady progress in the quest for regulatory policies that are well-informed by public engagement, technically coherent, and timely enough to meet the moment.
First, the idea of public input is not just a vague aspiration but is part of a process for rendering regulatory actions non-arbitrary. Statutes and court decisions defining what counts as arbitrary action can heighten agencies’ interest in public input as a way to demonstrate that regulatory actions are reasonable. Hence, taking public input seriously means figuring out how to calibrate agencies’ incentives to grapple with issues raised by the public without turning regulatory rulemaking into a plebiscite or paralyzing agency decision-makers.
Taking public input seriously would require caution about broader changes to the regulatory state, specifically, aspects that can decrease certain forms of public input. A nondelegation doctrine on steroids or its equivalent abroad, for instance, might leave little room for agency decisions informed by public input. Public input at the agency level is not always a perfect substitute for other forms of democratic activity, such as public voting in elections or representatives approving legislative changes. But courts and policymakers should remember that agencies are uniquely suited to combine expert knowledge and public input, and to do that effectively, they need some measure of discretion for addressing the range of issues raised in regulatory policymaking.
Second, scholars and policymakers have never resolved, and are in fact often deeply conflicted about, whether input is most valuable for instrumental reasons or for more intrinsic reasons rooted in the morality and ethics of governing. Agencies should be aware of this conflict rather than assuming it away. Substance and process remain entangled because how regulators engage the public and provide for review of regulations affects the substance of regulatory responses.
As a result, it is worth working to ensure regulatory officials take seriously not only the value of robust participation in advancing a particular vision for governance, but also the need to account for the limited windows to finalize reasonable regulatory policies that will benefit society when implemented, even when further consultation is desired by some stakeholders.
Finally, technological and social changes open up new possibilities for input. Algorithms and virtual environments can help tease apart the nuanced distinctions between what people say they value and what their behavior reveals or help agency leaders better map the public’s concerns—whether articulated by a seasoned regulatory lawyer or a layperson lacking the most precise language—to the agency’s statutory authority.
But these new-fangled tools do not absolve policymakers—particularly in democracies—from core dilemmas implicating whether the administrative process has at its core, for example, a more technocratic or civil deliberative mechanism for resolving close regulatory policy questions or what type of relationship there should be between human and machine decision-makers.
In the climate domain, for instance, these dilemmas will likely affect the rules governing transitions to smart grids, the tradeoff between building in more stakeholder input before rules are finalized and implementing the relatively sound rules necessary to facilitate the long-term development of new domestic and international energy infrastructure. Agencies can be expected to address major questions implicating multiple considerations, in part, because they remain entirely capable of achieving robust participation—weighing stakeholder comments, appropriate engagement with representative politicians, and less-established forms of public input conveyed through civic juries or virtual environments.
Ultimately, policymakers with influence over the regulatory process would do well to keep experimenting with new forms of public input, particularly as they craft rules related to matters such as climate change that affect vast domains of economic and social life. Yet any agenda for robust public input must be reconciled with the reality of a closing window for the planet to mitigate the risks of drastic climate change.
As with the governance of new technologies or the mediation of longstanding conflicts over the power of employees in the workplace, regulators developing a response to the climate crisis that remains viable and legitimate through the decades would benefit from the ideas, responses, and engagement of stakeholders and the larger public.
To respond effectively, administrators should give elected branches their due without assuming representative structures can achieve all valuable forms of public participation, from responding to public comments to civic juries or focus groups to virtual reality-mediated opportunities for members of the public to understand more fully the consequences of regulatory rules.
Above all, administrators must draw on practical tools and thoughtful judgments to preserve a sensible balance: They must reconcile the value of public input and the ideals of deliberation it furthers with reasonably prompt decisions and action in a world in which the day still only has 24 hours. Governance depends on the former—the public’s feedback and engaged ideas—for its judgment and the latter—action—for its vitality.
Casting aside the former ideal risks presuming that the administrative state has reached some happy end of regulatory history—that humanity’s incapable of anything better than what has already been achieved in the bedeviling project of reconciling broad public input with expert judgment. Indeed, persistent failures in bridge-building between the anodyne realm of technical experts and the world of the lay public are among the subplots that contributed to the continuing climate crisis.
To ignore the latter imperative—keeping government limber enough to build infrastructure, protect public safety, and manage security—is to cast aside the major reasons why people should care so urgently about regulatory action in the first place.
This essay is part of a nine-part series entitled Creating an Administrative System for All.