When regulators rule, are citizens fully apprised?

Published: April 27, 2016 • By Clay Bonnyman Evans

Research finds citizens lack information, effective input on rulemaking in era of gridlock

Here’s an ironic little secret: When politicians actively seek to gum up or slow down the legislative works in an effort to throw up obstacles to governors or presidents, they often increase the power of executive-branch bureaucracies or courts to make the rules.

“When Congress is so gridlocked, or state legislatures are gridlocked, regulators become more important in creating, promulgating and implementing laws,” says Deserai A. Crow, assistant professor of environmental studies at the University of Colorado Boulder.

Deserai A. Crow

That may sound good if you happen to support the policies of the executive branch. But the processes by which regulatory agencies create and implement rules on such things as natural-resource and environmental policy are often opaque, and less likely to be covered by media than legislative or political debates.

Does that translate to a less-informed citizenry? That’s what Crow and her co-authors, Elizabeth Albright of Duke University and Elizabeth Koebele, a doctoral student in environmental studies at CU-Boulder, examined in “Public Information and Regulatory Processes: What the Public Knows and Regulators Decide,” published this year in Review and Policy Research.

“To what extent is information on rulemaking processes available to the public, and does the public decide to participate in those processes about which they have information?” the researchers asked.

To find out, they examined public comments on environmental topics in five states, media coverage, if any, and political discussions on the subject.

“There is just not a lot of research on state-level regulation. It’s kind of a wonky, boring topic,” says Crow, a CU journalism graduate and former broadcast journalist. “And because it seems so insular, you don’t expect the media to be paying much attention. If that’s the case, is there any information or outreach to try to get citizens involved?”

The answer, in short: Media do not, as a rule, cover regulatory rulemaking. However, even when media cover a broad political issue rather than regulatory processes, the public is more likely to seek out information and offer its comments.

“The role of public participation in rulemaking is a complex one,” the researchers conclude. “We find that information is not easily accessible in public venues (such as the media sources analyzed here) and is available primarily when there are broader public debates concerning the political issues surrounding the regulatory topic.”

Whether public commentary in response to those broader public debates is valuable to regulators is another question, Crow says.

That is important and not just Trivial Pursuit. We can extrapolate that if they don’t know who Joe Biden is, they probably don’t know why the regulatory process is so important or why they should care that federal and state bureaucracies have assumed so much power because the legislative branch is doing so little.”

In one example, citizens submitted 170,000 comments in less than a month in response to publicity about proposed rules governing hydraulic fracturing in California. The majority so far examined by the researchers, Crow says, “are very broadly political.”

And that may put citizens at a disadvantage, as one regulator notes: “Often times you get a lot of comments on a rule that aren’t about the rule, are very general in nature, like ‘you should do more to protect the environment,’ or just technically completely inaccurate.”

Meanwhile, the industry being regulated “provides very detailed technical comments … so it’s almost like bringing a pillow to a sword fight by comparison, where, ‘do more to protect the environment’ does not assist you in crafting a technical rule.”

The researchers are now actively examining public comments to better understand how citizens engage rulemaking processes when they are so inspired, Crow says.

Environmental advocacy groups that focus on particular issues can develop more technical expertise and serve as a voice for the public in regulatory processes, she says, but even the biggest, such as the Sierra Club, may not have the resources to sit at the table for every rulemaking process.

Crow believes American citizens’ knowledge about how their government works has been in steady decline since, ironically, the advent of 24/7 cable television. She finds that many of her undergraduate students arrive with little understanding of government; some aren’t even aware of the three branches of government.

“So we do the old ‘Schoolhouse Rock’ thing,” she says. “President Obama excited a whole new generation of voters, yet many had very little understanding of government. They seemed to think he could come in like a king and just change everything.”

She notes that most Americans can’t name the vice president or speaker of the House of Representatives.

“That is important and not just Trivial Pursuit,” she says. “We can extrapolate that if they don’t know who Joe Biden is, they probably don’t know why the regulatory process is so important or why they should care that federal and state bureaucracies have assumed so much power because the legislative branch is doing so little.”

Clay Evans is a free-lance writer in Boulder.

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