Should Mass Comments Count?
2 Michigan Journal of Environmental & Administrative Law 173 (2012)
13 Pages Posted: 31 Jan 2013 Last revised: 4 Feb 2013
Date Written: November 15, 2012
This essay is a reply to Rulemaking v. Democracy: Judging and Nudging Public Participation that Counts, by Cynthia Farina, Mary Newhart, and Josiah Heidt. That article engages my 2011 argument that when agencies conduct notice-and-comment rulemaking involving value judgments, agencies should take more seriously large volumes of public comments – or be more candid that such comments will not be considered. As I suggested then, the preferences in such public comments can be relevant and typically are far more issue-specific than the information conveyed in presidential or congressional voting. Farina, Newhart, and Heidt express serious concerns about group activity in organizing comment campaigns and the prospect that public comments may be only a rough cut at preferences. Excluding comments because they are “group-facilitated,” however, likely would make public comments far less representative. Meanwhile, although a rulemaking is not a plebiscite, these comments, even if a rough expression of preferences, deserve consideration by the agency as part of a well-reasoned agency deliberation process. Agencies should consider all relevant information in rulemaking, and large public comment volumes should prompt agency officials at least to think twice and perhaps to spur a more systematic investigation of public views. Mass comments could alert an agency to public values, to significant public resistance to a proposed agency action, or to widespread misunderstanding or misinformation. Regular consideration could be assured if the agency committed to respond briefly to the mass comments in rulemaking documents. Finally, while the authors and I have a different perspective on agency treatment of mass public comments, we strongly agree that agency candor regarding comment treatment is critical and that public participation systems should be improved to encourage the filing of higher-quality, better-informed public comments. Comment reliability would be further enhanced with some minor reforms, including restricting an individual’s ability to file multiple identical comments in the same rulemaking and disclosure of the identity of groups sponsoring web portals for commenting.
Keywords: agency rulemaking, public consultation, mass comments
JEL Classification: K23, K40
Suggested Citation: Suggested Citation