Who Chooses the Alternatives to be Studied?

[Chuck Elkins <ElkinsEnv@aol.com>]

I'm an ex-EPA regulator.  Here's my take on the issue, mellowed, I'm sure, by six years of looking back into EPA from the outside.
It's an argument for VERY early involvement of the public in EPA's rulemaking process:

Because EPA decisions are normally made on the basis of facts and analysis [yes, in fact they are], the person who chooses which regulatory or policy alternatives to collect data for and then to analyze, has great influence over the shape of the final decision.  As an analogy, the person/group that chose the topics that we address each day in this dialogue(e.g., permits and rules, collaboration, etc.) has had a major shaping role in this dialogue.

Under current procedures at EPA the choice of what data to collect to support a decision and what alternative decisions (options) will be considered is almost exclusively an EPA staff function.  Obviously, EPA must have the major role, but if members of the public are not allowed to participate until after these initial decisions are made, alternatives that they might want considered by EPA may be foreclosed.  As a made-up example, if the option you would like EPA to consider requires a knowledge of the height of the smokestack at each of the facilities being regulated, but that information is not important to the options EPA staff plan to analyze, a likely scenario would be:  EPA staff collect data about the facilties, but do not include stack height because members of the public had not yet been consulted about the alternative measures they would like analyzed.  Then, when the data collection is well underway, EPA may invite the public into the process.  At that point, citizens may suggest this other alternative for consideration, but EPA points out that to analyze that option properly against the other options, they would need to know the stack height of each of the facilites, but alas, they did not think about this alternative when they established the data collection plan, and therefore they will not have the stack height data.

Someone might say, well, that's easily fixed. "Just go back and collect the smoke stack data."  But, that could be extremely costly and time consuming, and often money and time are major constraints in EPA rulemakings.  As a consequence, in this hypothetical--but all too real example--the option that the citizens want considered along with the Agency's options is not given serious consideration, even if the staff, upon hearing about it, honestly would like to consider it.

This is a long way of arguing that very early involvement of the public in actually choosing the options to be analyzed (and the data to be collected) is vitally important IF the public actually are to have frequent opportunities to influence more than just minor changes in EPA's thinking.

This would represent a major change in the way that EPA generally operates.  There are, of course, refreshing exceptions, but generally public participation in rulemaking is often not seen by EPA staff as a value-added activity, given the very tight timetables and resource constraints that usually accompany rulemaking.  When there is an exception, it is often the case that the staff have certain data they would like from the public and seek to collect that, but are not generally in the mood to actually SHARE responsibility for deciding the overall conceptual direction of a rule or what alternatives to analyze.

I this too harsh?  Well, things may have changed since I left EPA, but I think this is a fair characterization of EPA during the 25 years I was there (and was part of the problem, I'm sure).  

Should this change?  I think so.  I've always believed that not all the bright people in the world work for EPA, although many do.  I believe that members of the public do have some things to contribute to the process.  

How do we get started?  Maybe EPA should run some experiments to see if they can make it work!  Then all of us would have to work hard to prove this premise is correct.