63 Pages Posted: 26 Mar 2020 Last revised: 28 Sep 2020
Date Written: September 25, 2020
Among the key characteristics of democratic governance are opportunities for meaningful public participation, transparency, and adherence to the rule of law, including reasoned and substantiated decisionmaking. These characteristics are particularly important in decisionmaking by administrative agencies which, unlike legislative bodies that formulate public policy and adopt laws, are not directly accountable to the electorate. The processes by which agencies with environmental protection responsibilities under the Trump Administration manage the information that is relevant to the exercise of delegated policy discretion and the implementation of their statutory responsibilities reflect none of the three characteristics of democratic governance. These agencies are instead practicing shuttered government. They are doing so by pursuing three distinct but overlapping strategies.
First, they are blocking (or proposing to block) input from outside the agencies through three mechanisms: disqualifying significant swaths of important scientific and technical information from consideration, curtailing opportunities for public participation in the administrative process, and excluding the input of neutral policy and technical experts by stacking advisory boards and panels with those sympathetic to the Administration’s environmental policy agenda.
Second, the agencies are blocking public access to information in their possession that may conflict with their preferred policies or undercut the explanations they devise to support their actions. This strategy is also being pursued through three techniques: removing information from the public domain, such as by shutting down agency websites that previously provided information about matters such as climate change; censoring their own officials to prevent them from providing information that the agencies do not want publicized; and refusing to disclose information requested by the public under the Freedom of Information Act and otherwise.
Third, the Trump environmental agencies are simply not producing or sharing with each other information that was previously regarded as critical to informed decisionmaking. The tools the agencies have wielded to implement this strategy include draining themselves of policy and technical expertise, allowing agencies to shut out of the decisionmaking process fellow agency officials with greater environmental expertise, blocking oversight of the environmental compliance status of regulated entities, and preparing superficial administrative records in contexts such as planning and environmental consultation and assessment.
The Article identifies three counterweights to the Administration’s operation of shuttered government in the environmental law and policy domain. Policy and technical experts in some cases are pushing back on information deficiencies and distortions; current and former agency officials, acting as whistleblowers, are revealing information that the agencies have suppressed or mischaracterized; and the courts are invalidating agency actions that reflect information management that is inconsistent with good governance norms and statutory and regulatory requirements. Although there are encouraging signs, the degree to which these counterweights will succeed in cracking open the shutters remains to be seen.
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