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es the submissions
and promulgates a final rule that addresses all the material comments
on the proposal. Since the heyday of informal rulemaking in the
nineteen seventies,[3] opponents and
supporters of regulation have warred over the analytical procedures
to be used in assessing the costs and burdens of a particular rule.[4]
Additional requirements have been imposed, but the notice and comment
feature described above remains as the key mechanism for public
participation.
Two defects in the present system are noteworthy.
First, much of the supporting analysis for a particular rule is
only publicly available in the paper docket room at agency headquarters
in Washington. Similarly, a paper docket system precludes those
living outside the Beltway from viewing the commentary filed on
each proposal.[5]
To date, most federal agencies have taken rudimentary
steps to utilize the Internet during rulemaking. All proposed and
final rules are published simultaneously online and in the Federal
Register. In addition, many agencies invite the public to submit
comments via email[6] or Web page[7]
during a fixed time period that normally runs for thirty or sixty
days.[8] But these are circumscribed
efforts that preserve the antiquated features of the existing notice
and comment process and fail to capitalize on the Web's interactivity.
Our three Internet-based innovations, electronic
docket rooms, rebuttal comment periods and online policy dialogues,
will transform how the public participates in rulemaking. First,
electronic docket rooms make the process far more transparent by
allowing participants to view all the commentary on a proposal as
it is submitted. As currently conducted, only Washington-based groups
are able to monitor the comment submission process in paper docket
rooms at agency headquarters.[9] This
prevents the public from engaging in a dialogue either with the
agency or with other parties to the proceeding. No interchanges
can develop that allow views to evolve and thoughts to be refined.
Indeed, the process seems to be "carried out ... as much for
the sake of appearance" as for the substance.[10]
In contrast, an electronic docket room allows
for an interactive discussion to develop. The public can raise questions
about the regulatory policies that undergird a particular proposal,
and this in turn will enable the agency to explain why it is charting
a particular course. But the more significant feature of the electronic
docket room is its potential to promote an informed dialogue. Now
an interested member of the public will not have to visit Washington
to learn what positions other parties are advocating. She can review
these materials online upon their submission and exchange views
with others. As a result, more nuanced comments will be developed
and overall the quality of submissions should improve.[11]
The second aspect of our Web-based reform would
incorporate moderated, online policy dialogues into those rulemakings
that interest large audiences. This would be an asynchronous format
where the participants could engage in a deliberative discourse
in contrast to an online chat room.
We conducted just such a discussion when the
Federal Communications Commission (FCC) proposed its Universal Service
rule under the landmark 1996 Telecommunications Act. Here, the FCC
laid out a plan to adopt a cross-subsidy, the e-rate, to finance
Internet connections for the nation's schools and libraries. We
thought it vital that key beneficiaries of this rulemaking, educators
and librarians, learn about the proposal, share their views with
one another and most importantly offer their comments to the FCC.
Thus we built an electronic docket room and conducted an online
seminar during the rulemaking.[12] The
discussion was moderated to avoid the rare occasion where an overly
heated exchange developed and summarized weekly so those new participants
could easily catch up and join in. During this online effort we
brought together more than 500 individuals from all 50 states and
Puerto Rico.
During the seminar we educated our participants
about the policy making process by more fully explicating the regulatory
materials. This was an important step, which agencies routinely
neglect. Almost invariably, the text of a proposed rule is encumbered
with dense layers of statutory and regulatory language that the
lay reader has to struggle to master. This "enshrouding"
in "technocratic complexities" often makes a rule "inaccessible
to public control."[13] An open-ended
forum, like our online seminar, allows those interested in the regulatory
issues to peel away the layers and gain a greater understanding
of the policy problems. Such a process creates a more enlightened
public and generates more informed comments for the agency.
Our efforts certainly benefited the FCC, which
had to formulate a new program in an area where it had little background.
Experienced teachers and librarians, whose voices had not previously
been heard, explained how they currently used information technology
and offered their thoughts on how this new program should operate.
The FCC staff found this input most useful in crafting the final
rule.[14]
At present, seven permanent electronic docket
rooms have been constructed in scattered corners of the federal
bureaucracy. Two independent agencies, the FCC[15]
and the Nuclear Regulatory Commission (NRC),[16]
have installed good first generation efforts that scan both electronic
and postal submissions into a unified docket, as do the Department
of Transportation (DOT)[17] and the
Food and Drug Administration (FDA).[18,19]
More limited efforts have been made elsewhere
in the federal bureaucracy.[20] As the
GAO recently noted, partial docketing efforts should be viewed as
penny-wise but pound-foolish because the agency cannot achieve the
administrative savings from fully using information technology.[21]
Our third reform would institute a two-stage
comment submission process to foster a better dialogue between the
parties. If rebuttal periods are routinely authorized, the participants
can comment on all the submissions made by the other parties and
one side will not gain a tactical advantage by submitting its views
on the final day, a common practice.[22]
As the former Research Director for the Administrative Conference
of the United States[23] observes, "[p]ublic
comments are much more likely to be focused and useful if the commenters
have access to the comments of others. More ample comments benefit
the agency, the public, and ultimately the reviewing courts."[24]
Other steps should be taken to improve all these
docket rooms.[25] Citizen friendly interfaces
must be designed like the web-based system that HHS used during
its medical privacy rulemaking. Electronic methods like listserves
or Web postings should be used to supplement the passive notification
system embodied in the Federal Register.[26]
Better educational resources should be provided.
Both the Forest Service and EPA have provided valuable educational
resources online at the time they propose a rule. The Forest Service
has posted a wealth of materials during its rulemaking on roadless
areas.[27] EPA's water office posted
an excellent page during the Total Maximum Daily Load Rulemaking
that explained the background issues to both the neophyte and the
more experienced observer.[28,29]
However, EPA does not maintain a docket page that announces which
rules are open for comment and no common approach exists on rulemaking
so that a citizen has to master a new approach for each media program
and for each regional office.
Online Dialogues as Supplements to Advanced
Notices of Proposed Rulemaking, Negotiated Rulemakings, and FACA
proceedings.
Structured online dialogues can also be
used as an adjunct to either an advanced notice of proposed rulemaking
or to a negotiated rulemaking. The Federal Election Commission recently
asked for public comment on whether it should amend its regulations
to govern Internet campaign activity. Many groups have fleshed out
positions on this question, and their position papers could serve
as a framework for a public discussion of the pros and cons of regulation.
Similarly, EPA could create an online dialogue on how to regulate
MTBE.
The Internet can also transform the way federal
advisory committees operate. These groups provide federal agencies
with guidance on general policy matters or regulations and often
serve as a "meaningful method for citizen input and interchange."[30]
But these committees often run the risk of becoming just "Beltway"
phenomena with Washington-oriented memberships and agendas set by
Washington-based officials.[31]
The limitations of the current system are well
illustrated by EPA's "Drinking Waters Futures Forum."
This committee has been charged with studying how to ensure a safe
drinking water supply nationwide over the next 25 years and in particular
how to provide public water supplies to unconnected small populations.
After publishing a notice in the Federal Register in May of 1999,
the committee held a one-day public meeting in Washington on this
topic.[32] Such an outreach effort is
clearly inadequate given the Washington venue and the Register's
severe limitations as a notification tool.[33]
Online dialogues could usefully supplement the
operations of Federal Advisory Committees. The Food and Drug Administration
could easily have folded such an effort into its recent public meetings
on the safety of bioengineered foods. With a moderated discussion,
the debate could be both civil and deliberative, in contrast to
a public hearing full of one-sided diatribes. Online dialogues also
moot the criticism that some advisory committees are too dominated
by Washington-based groups by reaching a far greater audience outside
the Beltway.[34]
In order to make it
easy for citizens to participate EPA should establish web pages
for each of it FACA committees. There each committee could post
all its minutes and its schedule. In addition, the page could contain
links to materials submitted by committee members and agency staff
to the committee for use during their deliberations. Finally, the
page should contain a mechanism for allowing the public to comment
on the activities of the committee.
Interactive dialogues can also play a role in
other EPA activities. For instance, Region III has been working
with the Corps of Engineers, the federal Office of Surface Mining,
the Fish and Wildlife Service and the State of West Virginia to
develop new policies to control the impact of mountaintop mining.
Last year, the United States District Court for Southern West Virginia
overturned the state and federal programs authorizing mountaintop
removal mining in West Virginia. The Region's web site focused the
public on the environmental impact statement that the federal agencies
are writing to support new policies in this area. An online dialogue
with environmentalists, the coal industry and the state representatives
would have usefully supplemented this activity.[35]
Online Permitting
As two leading observers of the agency have
noted, permit applications are only accessible if the public travels
to a federal, state or local office to examine an application and
many groups lack the resources to gather this necessary information.[36]
This makes public participation unduly difficult in our new Information
age. Posting permit applications online would greatly alleviate
this problem.
Posting permit applications online should not
impose a burden on the licensor who can easily require the applicant
to submit information in HTML, the Web's formatting mechanism. In
addition, agencies should use the Internet to improve existing public
notification procedures. Instead of just placing legal notices in
local publications, an agency can easily use email or bulletin boards
to notify existing community organizations of pending applications.[37]
The Net's educational capacity also comes into
play here. Agencies can use the Web to make it easier for the public
to decipher the complexities in their review and approval functions.
By posting guides that explain their regulatory roles in non-technocratic
terms, an agency can improve the public's understanding of its mission.
This could have a large payoff in the environmental arena where
the relevant state or federal agency could amplify and explain the
technocratic complexities to a lay audience, thereby remedying a
long-term EPA failing.[38]
Next, online databases should be established
to help citizens to assess the merits of a particular application.
EPA currently maintains a good model; the air program has a clearinghouse
that lists technology determinations made in issuing permits under
the Clean Air Act.[39]
The Web also can play an additional role. The
informational resources on the Net enable citizens to increase the
technical sophistication of their comments. As an example, online
air quality models are now available that permit groups to contest
the technical simulations offered by the applicant. This in turn
should promote a more thorough review of the application by the
licensor.[40]
Business interests will probably oppose such
efforts, but these steps are essential in leveling the playing field.
Large law firms and consultants that guide companies in administrative
licensing matters routinely maintain these types of materials in
their files.[41] The Web can cheaply
and efficiently provide the public with similar resources and such
archives should be created now.[42]
Similar steps can be taken under Superfund and
RCRA; draft remedial plans can be posted online and citizens can
be asked to comment on the particular measure.
Process Education
EPA's web site has made great strides in educating
its stakeholders, but given the challenges of environmental law
and policy this task will continue to be an extremely difficult
one for the agency. In the following section we have some additional
thoughts on utilizing the Internet as a principal vehicle for educating
the agency's local stakeholders. We have inserted page references
to the ELI Report for those who wish more background on a particular
topic.
Process Education. Educating stakeholders
about how to participate in EPA activities should begin on the Agency's
web site with an explanation of how citizens can participate in
the rulemaking, permitting, and enforcement processes both generically
and programmatically. In addition, EPA should develop a web function
that explains which programs it administers directly and which programs
it has delegated to the states. Pointers to the relevant state sites
should be included. EPA has provided similar resources for small
businesses but the average citizen can be just as mystified by the
complex maze of laws and regulations.
Stakeholder Assessments of EPA's Web Site.
Local stakeholders should be asked to assess EPA's current efforts
in providing explanatory information online. "Concerned Citizens
Web Resources" exist for Regions 1,2,6 and 8 and for the Water,
Pesticides, Solid Waste, Superfund and Enforcement programs. http://www.epa.gov/epahome/citizen.htm.
While much of the information on these Web pages may not meet the
stakeholders' needs, some of it surely does and their evaluation
of what is useful should be very helpful in developing useful templates
for disseminating material.
Templates and Online Guides. At page
10 of the ELI Report l there is a request for fact sheets or "one-pagers"
written in layperson's language explaining national rules. This
is a perfect web function. Such templates should be developed on
a variety of issues and could be modified by the Regional offices
where appropriate. It would be useful to have an assessment of EPA's
current efforts by asking local stakeholders to evaluate the materials
that the Agency released when it proposed its new Total Maximum
Daily Load rules this past summer. These materials not only attempted
to explain the proposed rule but also sought to educate the public
about the water quality planning process in each state.
Online Workshops and Streaming Video.
EPA should develop two types of resources in this area. First EPA
should develop step-by-step mechanisms for teaching stakeholders
how to learn statutory and regulatory basics on the web. EPA should
also begin to develop an online library of lectures as broadband
access expands. Some existing training materials for inspectors
and new employees should be made available to local citizens that
want to learn more about environmental programs and processes. EPA
could also use videotaped lectures to spoon feed the necessary background
material. These could be made available through Regional offices
and state and local environmental agencies
Online Guides. EPA should develop an
analog to the small business sector notebooks for local stakeholders.
Just as it disseminates materials for gas station owners on their
generic environmental problems, EPA should develop guidebooks that
address the common concerns of local stakeholders. The Agency could
ask existing local groups to write, "how we learned the basics"
pamphlets; these could cover topics on how to participate in permitting
activities under the Clean Air and Water Acts or how to comment
meaningfully on a Superfund ROD. This would allow the more sophisticated
groups to convince the neophytes that they must master the substance
if they want to be a player. Like the small business sector notebooks
these materials should be posted on the Web.
Improved Online Tools
New Online Tools. Admittedly, EPA's Web
site can overwhelm a neophyte with data. The big problem is creating
the tools for citizens to learn about features of the particular
regulatory program that they are interested in. Creating the appropriate
tools for stakeholders to comprehend the statutory and regulatory
universe more easily should be the principal focus of any capacity
building project. This will not only level the playing field for
activists squaring off against the regulated, but over time it should
increase the value and effectiveness of citizen input to EPA and
the states.
Drop-down Dictionaries. A simple improvement
would be creating an online dictionary on a pull-down menu that
would mimic the Thesaurus feature on Microsoft Word. This would
easily allow the reader to understand the technical terms embedded
in the document or the data; it could also decode the multitude
of acronyms. While the present site does have a dictionary feature,
it has two drawbacks. It is not easy to find and sometimes it is
missing an acronym.
Frequently Asked Questions. More FAQ features
could be installed to explain programs to a lay audience. As we
suggest in item 2, we think stakeholders should be asked to assess
EPA's current online outreach efforts and their input could suggest
where improvements like this should be made.
New Search Engines. A redesigned set
of search engines should be provided to work better for less sophisticated
audiences. Thought should be given to whether a design like Google
would provide more useful data for local stakeholders using the
site.
Hotlines. ELI suggested a new generic
citizen hotline in its Report. [pages 21-24] One of us has been
a satisfied customer of the RCRA Hotline but we have trouble envisioning
this as a successful model for citizens. A neophyte can't be successfully
educated about an environmental problem on a hotline. We have an
alternative suggestion. Rather than provide a new generalized hotline,
we would suggest that EPA provide an information hotline for citizens
groups where the staff could help the citizens obtain useful data
online. For instance if local citizens were concerned about a company
plans to build a new coke plant, they could call the hotline and
the staff could suggest that they read the iron and steel sector
notebook which would serve as an excellent introduction to the industry
and its environmental problems. By having a trained staff perform
a search for materials on the EPA site, the agency could maximize
the dissemination of information to groups that are less sophisticated.
Online Models. The Internet allows citizens
to easily use online models to review or challenge a particular
complex environmental analysis. For instance the Web allows a local
group to challenge a power plant's air quality models by doing alternative
runs very cheaply. This is an important tool whereby more sophisticated
stakeholders can use the Web to level the playing field.
Improved Access to Agency Databases.
At present, the general public has to register and pay a fee to
obtain access to EPA's enforcement database, IDEA. Because much
enforcement data is "FOIABLE" this restrictive approach
does not seem defensible as a roadblock to citizen access to a facility's
enforcement history. In assessing the Agency's site, it appears
some programs have gone further than others in providing access
to their databases. In particular, the Air program has done an excellent
job in providing access to its TTN and AIRS networks. We think the
national NGOs should be surveyed to determine what gaps need to
be filled.
Improved Listing of Databases and Compliance
with E-FOIA. EPA should maintain a list of its private databases
that the public can view. In addition the agency should take the
necessary steps to comply with the "frequently requested document"
provisions of E-FOIA,
Increasing Data Availability and Improving
Networks [pages 34-38]. First, we would note that EPA has built
an excellent Web site in terms of providing the public with a wealth
of environmental information and data. With this as a base, it will
be much easier to build a site that will enable local stakeholders
to participate more effectively in Agency activities. Secondly,
we strongly agree with those stakeholders that viewed the Internet
as "the most powerful of capacity building tools" and
we agree that EPA should support the development of networks for
sharing and disseminating information.
At a regional level EPA should encourage the
development of networks linking universities, the NGOs and local
stakeholders on a statewide and regional basis. The emphasis here
should be broader than capacity building and should include a focus
on maximizing the interpretation of environmental data by universities
and planning bodies. Better access to this type of interpretive
data will help build the capacity of local stakeholders by providing
more approaches to data analysis.
Grants to Community Groups and NGO Networks.
EPA should consider providing computers to local groups and connecting
such groups on a statewide or a Region wide basis. This would certainly
improve group leaders' access to documents. Additional consideration
should be given to whether or not EPA should fund a network designed
to disseminate information between Washington environmental groups
and the grassroots.
The Digital Divide. The wiring of schools
and libraries offers the cheapest and best way to provide the maximum
amount of information and educational resources for low-income and
minority communities. In addition, access problems can be partially
addressed by EPA and the states focusing their activities on ensuring
Web access in inventive ways. States can provide citizens with Web
access at local offices. EPA could require PRPs to provide Web access
at a Superfund site. In addition EPA and the states can run classes
locally for stakeholders on how to use their Web sites to gain information.
Finally it may be productive to explore some of the ideas at ACCESS
AMERICA at http://gits.gov/.
Improving Access to State and Federal Documents.
The Internet is an ideal tool for assuring document availability
to a wide audience and EPA has used the Web well as a distributional
tool. At 41, ELI raises the concern that many documents may need
to be written in non-technical language but more templates, better
search engines, more FAQs and dictionaries should partially ameliorate
this problem. In contrast to the federal model where a citizen can
find the relevant federal laws, regulations and policies on the
EPA site, many states have not replicated this function on their
Web sites. EPA should require all states administering federally
approved environmental programs to post their laws, regulations,
policies, guidelines and handbooks on their Web sites. In addition,
the environmental monitoring data that states collect can easily
be posted. EPA could also require states to provide routine categories
of information on their web pages as a condition for receipt of
a program grant. EPA could also consider programmatic rule changes
in provisions like 40 CFR Part 51 if they choose not to condition
grants. Lastly, most of this material would already be available
on the states' Intranets or in computerized files.
E-mail and Listserves
E-mail should receive greater emphasis.
Regional Offices and EPA headquarters should routinely use email
to notify citizen groups about matters of interest to them. This
could be done as a listserve function. EPA should have a standard
solicitation questionnaire that would allow a group to select what
types of information it wishes to receive. EPA should also explore
what makes some lists active and successful. For instance, any subscriber
to the nonpoint source list has to be impressed by the scope and
variety of comments.
Local Stakeholders and Email. Acceptance
of email notification should be growing amongst local stakeholders.
This past September the New York Times reported that a leading community
activist in Philadelphia found that participants notified by email
were more likely to attend mass meetings than those reached through
print even where the print notification reached a broader audience
than the email. See http://www.nytimes.com/library/tech/99/09/circuits/articles/02libe-comm.html.
Timing of Public Hearings and the Perceived
Futility of Public Participation. EPA should consider modifying
its permitting regulations that routinely mandate that the public
hearing be held when the draft permit is ready to issue. Public
hearings should occur earlier in the permitting process before the
Agency becomes invested in a particular approach to a problem. Citizens
know when they look at a draft permit that they no longer have a
great opportunity to influence the process. The public hearing should
be held once the application is deemed complete, if not earlier.
Unfortunately EPA's permitting regulations impose a uniform approach
to this issue and preclude states from holding early hearings that
would provide the public with more opportunity to influence outcomes.
NOTES
August 2000
Robert D. Carlitz
Barbara H. Brandon
Information Renaissance
600 Grant Street - Suite 2980
Pittsburgh, Pa. 15219-2702
412.471.4636
412.471.1592 (fax)
rdc@info-ren.org
bhb@info-ren.org
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