Government Capacity

A People-centered, Power-conscious Regulatory Democracy Balancing Distributive Justice and Delivery Efficacy

04.08.26 | 50 min read | Text by James Goodwin

Building Blocks to Make Solutions Stick

People-centered, power-conscious rulemaking, using deliberate stakeholder engagement strategies, produces faster and better results. 

Implications for democratic governance:

Capacity needs: 

One of the biggest obstacles confronting meaningful action to address climate action are power disparities. Among our governing institutions, the federal administrative state is unique in its potential for overcoming these power disparities by offering an effective mechanism for redistributing political power from corporate interests committed to maintaining the status quo to the general public who are already bearing the costs of global climate disruption. The key to realizing this potential is “regulatory democracy.” 

At present, though, the means for conducting public engagement in the administrative state generally fail to meaningfully engage the public, but instead have the perverse effect of reinforcing power disparities, as has been ably documented by the burgeoning Abundance movement. What is needed, instead, is a better approach to regulatory democracy – one that is people-centered and power-conscious. 

This paper sketches out what a people-centered and power-conscious approach for improving regulatory democracy in the rulemaking process: a reform called “Public Participation Planning.” This reform consists of two major procedural components. First, it calls upon agencies to develop “public engagement strategy blueprints” as a mechanism for deliberately creating a tailored public engagement strategy for each rulemaking. The key innovation here is a recognition that different kinds of “expertise” (democratic vs. technocratic) are required at different stages of a regulatory development – a concept referred to here as “sequential participation.” Second, it calls upon agencies to document the actual performance of that strategy, by including a group of documents called the Initial and Final Public Participation Plan Statements. These statements would capture the impacts that the public engagement actions have on the development of the rule. They would be included in the rulemaking document along with the notice of proposed rulemaking and final rules, respectively, where they can help inform judicial review of the rule. In theory, a president could implement a rigorous version of Public Participation Planning without new statutory authority. Still, the full potential of this reform could be enhanced with additional actions by Congress and the judiciary. Properly implemented, Public Participation Planning would both improve the quality of agency decision-making and permit for more expeditious policy implementation by reducing the ability of powerful interests to use the rulemaking process to reinforce a bias toward maintaining the status quo.

Addressing the Climate Crisis Through Better Regulatory Democracy

One of the underappreciated features of the federal administrative state – at least within our contemporary context – is its potential capacity to prevent politically and economically destabilizing concentrations of power from taking hold by continually redistributing it to the general public. That the architects of the modern administrative state – turn-of-the-20th century policymakers, thinkers, and movement leaders alike – designed it with this particular goal in mind seems to have been lost to history, however.

The key to their radical vision of the administrative state was “regulatory democracy” – that is, the notion that administrative agencies would work cooperatively (and sometimes competitively) with the public to shape policy priorities, design, and implementation. At its best, regulatory democracy would take the form of a working relationship that was ongoing and durable. The dynamic it was meant to yield would be a much thicker form of engagement in our governing institutions than ordinary Americans would experience through the episodic opportunities of casting a ballot and the often-binary choices they would be presented with during those opportunities.

This vision should be particularly resonant today, though it may sound esoteric and peripheral at first blush. For the reformers of the early progressive era, creating a new venue for translating public power into policy change was essential for effectively meeting the then-emerging challenges that many Americans faced due to such societal changes as industrialization and urbanization. Today, we face cascading challenges – climate change, globalization, and rapidly evolving forms of computational technology such as Artificial Intelligence and quantum computing – which have similarly exposed the limits of our governing institutions. Then, as now, society was characterized by vast disparities of economic and political power that further threatened effective policy implementation. The administrative state’s comparatively decentralized and democratized design – relative to Congress – was meant to mitigate these effects.

More to the point, if we are to avert the worst consequences of the climate crisis, we will need to quickly revive these robust democratic traditions of the administrative state. After all, as the Green New Deal movement correctly taught us, power disparities are a root cause of this crisis; effectively decarbonizing our economy and investing in infrastructure that is hardened to withstand the unavoidable impacts of climate change will require confronting these same power disparities. Among our governing institutions, the administrative state is best equipped to meet this kind of challenge under these kinds of circumstances.

Achieving the full democratic potential of the administrative state will require some important reforms, however. As the primary law governing the operations of the administrative state, the Administrative Procedure Act (APA) establishes many of the mechanisms that agencies use for democratic engagement. For informal rulemaking, which has become a leading vehicle for administrative policymaking, the APA creates the notice-and-comment procedures. The benefit of decades of experience has revealed that these procedures not only fail to meaningfully engage large segments of the population; they also reinforce status quo inaction and the underlying power disparities that benefit from such inaction.

This white paper argues that what is needed instead is an approach to public engagement that distinguishes between the different kinds of stakeholders implicated by a given policy action and accounts for the underlying power disparities that define their relationships to the policy problem that the action is intended to solve. As discussed below, the passive, power-agnostic posture of notice and comment fails to accomplish either of these objectives. Among other things, a people-centered, power-conscious approach would require carefully cataloging the universe of relevant stakeholders, the barriers they face to meaningful engagement, and the kind of input those individuals would likely bring to inform a policy decision.

A people-centered, power-conscious regulatory democracy would also require deliberate attention to how best to obtain public input. It would demand that agencies have a ready toolbox of engagement tactics and solutions tailored to effectively obtain different kinds of input from different kinds of stakeholders. It would also require agencies to plot out in advance the different stages in their rule development process for deploying those tactics and solutions – a concept this white paper refers to as sequential participation.

This approach would depend for its success upon a sincere commitment to transparency and reciprocity with stakeholders. Agencies would need to continually communicate with stakeholders and be completely forthright in those communications – even when the news is not what those stakeholders will want to hear. They will also need to carefully document how public engagement was conducted throughout the rulemaking process and the role it had, if any, on the progression of decision-making at the different stages of that process.

Lastly, and perhaps most controversially, this approach should draw on the agonistic model of democracy. Practically speaking, that means the goal of regulatory democracy should be to surface and channel productive disagreement, rather than embark on a quixotic search for consensus or near-consensus on controversial policy matters. As explained below, powerful interests have used consensus-based approaches to decision-making as a kind of veto-gate to defend their preference for the status quo. Reorienting our expectations for regulatory democracy in this manner will thus permit meaningful engagement without unduly sacrificing timely policy implementation – a concern that has achieved greater prominence due to the Abundance movement.

These lessons could, of course, just as readily apply to reforming state- and local-level administrative procedures as well. Indeed, subnational governments are already playing a pivotal role in addressing the climate crisis, particularly while steadfast Republican obstruction has left Congress incapacitated on this issue. The state rulemaking procedures or public utility commission proceedings that are responsible for implementing these policies could be strengthened through a people-centered, power-conscious regulatory democracy program. For simplicity, however, this white paper will focus on developing a version of this approach that applies to the federal rulemaking process.

While there may be several different methods for institutionalizing a people-centered, power-conscious regulatory democracy, this white paper proposes the use of what it calls Public Participation Planning. Under this reform, agencies would develop tailored plans called public engagement strategy blueprints. The purpose of these blueprints is to ensure meaningful engagement by relevant stakeholder groups – especially those representing communities that are structurally marginalized or that historically have been excluded from democratic processes. Critically, these blueprints would account for the entire rulemaking process with the aim of proactively engaging particular stakeholders at stages where their input is most likely to be relevant and useful. This proposal would also call on agencies to document their outreach and engagement actions and any impacts they had on the proposed and final rule in a special report called a Public Participation Planning Statement, which would be made part of the rulemaking record.

The practical advantage of Public Participation Planning is that it could be instituted by a president with existing legal authority. Still, the proposal also outlines how the other federal governing institutions – including Congress and the judiciary – can help ensure that the benefits of public participation plans achieve their full potential. One important task for the coordinate branches would be to address whether and to what extent existing administrative law doctrines, such as Vermont Yankee, present barriers to achieving the full potential of Public Participation Planning for advancing regulatory democracy. It is also worth emphasizing that parallel efforts to reinvigorate the most important democratic institution in our constitutional framework – Congress – will also be necessary to realize the full potential of regulatory democracy. After all, the administrative state can only implement the laws that Congress passes. It will thus be more effective for the administrative state to leverage regulatory democracy to tackle something like the climate crisis if Congress were to pass legislation explicitly directed at that issue.

If properly implemented, a comprehensive reform program to accomplish regulatory democracy that is people-centered and power-conscious could be essential for addressing complex policy changes such as the climate challenge. As Public Participation Planning demonstrates, this approach would both improve the quality of agency decision-making and permit expeditious policy implementation.

Background: Regulatory Democracy at a Crossroads

Regulatory democracy – represented not just by the APA’s notice-and-comment procedures but also the National Environmental Policy Act’s analytical requirements and their state– and local-level analogs – has come under increasing criticism from several directions in recent decades. Concerns that the regulatory system is undermined by too much public participation stretch back to at least the Obama administration. At the behest of Cass Sunstein, then Office of Information and Regulatory Affairs (OIRA) Administrator, agencies during this era strongly embraced cost-benefit analysis and other technocratic decision-making tools as an apparent antidote to the irrationality and “mistakes” that ordinary lay people make. Under this approach, public participation was to be viewed with extreme skepticism – if not outright hostility – and thus minimized as much as possible.

More recently, the Abundance movement that has emerged in recent years has come to single out for criticism many of the existing public participation requirements in administrative law. According to this criticism, powerful entities often abuse such requirements as a means for delaying policies that they oppose. Conservatives have also begun to reject public participation, with President Trump having directed agencies to evade notice-and-comment procedures whenever possible during this second term. This move seems in keeping with his overall crusade to centralize administrative power in the White House and build something akin to an authoritarian administrative state.

At the same time, we have seen a growing movement among policymakers and advocates focused on expanding public participation opportunities. Notably, as part of his administration’s larger Modernizing Regulatory Review project, President Biden issued a memorandum providing agencies with guidance on how to strengthen public engagement in the rulemaking process – with a particular focus on marginalized communities. Among other things, this memo encouraged agencies to deploy various strategies for engaging members of these communities at the earliest stages of the rulemaking process. Separately, a group of progressive members of Congress have promoted a comprehensive regulatory reform bill called the EXPERTS Act. One of its provisions would create the Office of Public Advocate, which would be charged with supporting individuals and other underrepresented groups in the notice-and-comment process.

What these competing movements reveal is that almost no one is satisfied with the current approaches to regulatory democracy. This dissatisfaction, in turn, arises from both practical flaws and theoretical disagreements associated with these current approaches.

Practical Flaws of Regulatory Democracy

Due to poor design, the prevailing approaches to regulatory democracy generally fail to effectively engage most members of the public in critical administrative state tasks of decisionmaking and implementation. Worse still, in many cases, these design flaws can combine in ways that function to systematically exclude members of many structurally marginalized communities, thereby reinforcing the very power disparities that are often at the root of the policy problems that regulations are often designed to address.

Many of these approaches follow a rigid, one-size-fits-all design that prevents their implementation from being adapted to meet the unique demands that can arise in different policymaking contexts. This can be seen in the APA’s informal rulemaking context. The same basic notice-and-comment process applies for policies as varied as setting Medicaid reimbursement rates and regulating the use of non-compete clauses in employee contracts. Yet, each of these policymaking contexts involve very different kinds of stakeholders whose relationships are characterized by different kinds of power structures. As such, effectively obtaining input from these different kinds of stakeholders is likely to require different, tailored engagement tactics.

To be sure, the procedural requirements setting out the public participation mechanisms set a legal floor; a president generally has the authority under Article II of the Constitution to go above and beyond by adding new public participation strategies aimed at alleviating the flaws that arise from the mandatory approaches. Indeed, as noted above, the Biden administration undertook some steps along these lines. In general, presidents are unlikely to undertake such steps without a clear strategy for doing so due to budget constraints and the growing criticism of public participation in the regulatory system noted above.

One important adjustment a future president could take to help make regulatory democracy opportunities more inclusive for structurally marginalized communities is to introduce them earlier in the policy development process. Presently, most public engagement opportunities tend to occur relatively late in policy development, as the APA notice-and-comment process illustrates. By this point in regulatory development, many of the foundational decisions leading up to the regulatory proposal have been resolved, including problem definition and solution scoping (not to mention the decision to prioritize this particular rulemaking at all). The remaining issues left open for public input are the kind of esoteric or technical details that are typically well beyond the knowledge or expertise of ordinary people.

Put differently, the manner in which regulatory democracy is currently conducted fails to account for the “sequential logic” of the policymaking process – a logic that necessarily draws on different kinds of expertise at different steps. An agency’s authorizing legislation, of course, sets the key parameters for what regulatory actions an agency might undertake and how it might design those actions. From there, though, important decisions remain such as which “public problems” are worthy of priority attention and how best to begin constructing the scope of policy solutions to meet those problems. These earliest stages in the policy development process call for a more democratic form of expertise that finds its source in stakeholder’s lived experience and situated knowledge. This kind of input might, for instance, spur the EPA to prioritize tackling pollution from industrialized agriculture or determine how stringently the Consumer Financial Protection Bureau regulates the use of forced arbitration clauses in consumer contracts.

In contrast, the more conventional understanding of technocratic expertise tends to become more relevant at later stages, such as when decision-makers must refine policies to account for such complex questions as applicable legal constraints, economic factors, the state of technology, or the body’s toxicological mechanisms. These issues might include what control equipment should be required to limit emissions of a toxic air pollutant or the potential energy use impacts of strengthened appliance efficiency standards. Not incidentally, social philosopher and an early intellectual force behind the modern administrative state John Dewey memorably captured the ordinal nature of the policymaking process with his observation that “the man who wears the shoe knows best that it pinches and where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied.”

The upshot of this failure is that the regulatory democracy currently privileges the kind of technocratic input that well-resourced interests committed to maintaining the status quo are uniquely well positioned to provide. Those who lack access to this expertise – including the resources and training to obtain it – are thus effectively prevented from meaningful participation.

Another important adjustment that agencies could make to improve public engagement is to conduct more affirmative outreach to specific stakeholders. Instead, current regulatory democracy approaches adhere to an “open door” model by which agencies invite input on equal terms from all interested stakeholders and then passively wait to receive whatever input is provided. The notice-and-comment procedures, of course, best illustrate this model, and it has been replicated in other regulatory forums as well, such as the “lobbying meetings” during OIRA’s centralized regulatory review process. At best, this model favors stakeholders with the resources to monitor and answer open door invitations for participation. In contrast, individuals and smaller community-based organizations are unlikely to consult the Federal Register on a daily basis or to have the technical capacity to parse a large rulemaking proposal to identify whether and how it implicates their unique interests.

In the worst cases, entrenched interests can abuse the open-door model by leveraging their vast superior resources to excessively voluminous comments containing information of only marginal utility or relevance – a practice known as “packing the record.” As legal scholar Wendy Wagner noted, it is not uncommon for industry interests to submit hundreds of pages worth of highly technical comments, resulting in rulemaking records that are more than 10,000 pages in length. These stakeholders engage in this kind of gamesmanship because they treat the notice-and-comment process more as a prelude to litigation over the final rule rather than as good faith attempt to improve the quality of the rule. Significantly, from a power perspective, this record-packing scheme only works if the party engaged is able to back it up with a credible threat of bringing litigation – something individuals and community-based organizations are unable to do. 

In effect, this gamesmanship has enabled powerful interests to install the courts as the primary locus of regulatory decision-making, on the apparent presumption that they will afford a more sympathetic audience for their policy arguments – usually in favor of maintaining the status quo – than what they may find at the agencies. This tactic has the additional benefit of contributing to regulatory ossification, as agencies seek to “bulletproof” their rules as much as possible to avoid adverse results on subsequent judicial review. The advent of Artificial Intelligence suggests that this problem could grow even worse in the future.

Significantly, various studies on the practice of regulatory democracy have documented the vast quantitative and qualitative disparities in participation that exists between unaffiliated individuals and organized interest groups. Empirical research on the APA’s notice-and-comment process in particular seems to confirm that the design of those procedures has the effect of systematically excluding most members of the public, particularly those from structurally marginalized communities. These results suggest that the notice-and-comment process is failing at its purported task of assembling something approximating comprehensive policy-relevant information for agency decision-makers by systematically depriving them of critical forms of “expertise” that tend to be in the exclusive possession of the individuals and communities who live closest to the problems that the policies are meant to solve. They are left to fix shoes without knowing where exactly they pinch their wearers.

The results of these studies also suggest that these kinds of shortcomings in the notice-and-comment process do not merely limit effective engagement; they also serve to exacerbate underlying power disparities. That is because the skewed perspective that agency decision-makers obtain through these procedures necessarily favors entrenched sites of political or economic power. In terms of substantive results, the public input obtained through the notice-and-comment process often translate into a strong status quo bias toward inaction – or, at best, towards actions that only minimally inconvenience empowered stakeholders. Thus, for example, the public comments for a rulemaking to address the climate crisis are likely to be dominated by fossil fuel interests – as opposed to those who are disproportionately harmed. To the extent that this public input creates a skewed picture for agencies of the harms that significant disruption to our climate systems will create, it risks militating against the kind of aggressive climate policies needed to avert these harms.

Lack of a Coherent Theoretical Basis for Regulatory Democracy

One of the major sticking points is that students of the administrative state have never really achieved something like a real universal agreement on why regulatory democracy is important in the first place. The business community and conservatives have questioned the legitimacy of the modern administrative state within the U.S. tripartite constitutional governing framework at least since the advent of the Great Society programs. In response, scholars have invoked a variety of democratic theories to salvage the constitutional legitimacy of the administrative state. (Though, for the most ardent of conservative critics, such as Philip Hamburger, no theory is likely to suffice.) In turn, the lack of a clear theoretical basis has hampered efforts to design effective public participation mechanisms – contributing to many of the practical flaws described above.

According to the pluralist model, the administrative state’s democratic features provided a forum in which competing interests could shape policy. As long as the forum provides a reasonably fair opportunity for engagement for all interested stakeholders, this theory assumes that the substantive results that emerge roughly approximate the common good.

Another theory is the civic republican model. Unlike the pluralist model, which holds that the administrative state becomes imbued with democratic legitimacy through the balancing of competing interests, civic republicanism starts from the position that some idealized notion of the common good exists externally from the administrative state. Revealing this concept of the common good – which, presumably, all stakeholders would recognize as worthy of their consent – can only be achieved through a process of careful reason-giving and deliberation. The administrative state’s democratic legitimacy thus hinges on its ability to enable such a process to take place.

The influence of these competing schools of thought can be seen in institutional and legal reforms over the last several decades. For instance, the Regulatory Flexibility Act’s procedural requirements aimed at ensuring that regulators account for small business concerns reflects the pluralist model, while the embrace of cost-benefit analysis sounds more in the key of civic republicanism. Regardless of the theoretical grounding, both have tended to promote the addition of new procedural embellishments to the existing notice-and-comment framework that produce suboptimal results. Specifically, they slow down the rulemaking process without improving the quality of regulatory decisionmaking, and they have reinforced power inequality by giving entrenched interests new tools for blocking or weakening new policies they oppose – that is, maintaining a status quo bias towards inaction. In turn, these consequences seem to be artifacts of a characteristic that pluralism and civic republicanism both share: an abiding belief that consensus can be achieved and should be the goal of regulatory decision-making.

Third Theory of Regulatory Democracy: Agonism

Yet, this shared belief has come under increasing criticism in recent years, leading scholars to entertain a third theory of regulatory democracy: agonism. This model begins from the premise that consensus is impossible to achieve in many policy contexts, particularly during times such as now marked by polarized discord and seemingly incommensurable division over values and worldviews. If conflict is inevitable, agonism posits, then the appropriate function for our democratic institutions is to channel that conflict so that it is as productive as possible. Under this view, the legitimacy of policy outcomes comes not from how they are ultimately resolved, since they will not be accepted as such by many stakeholders. Instead, legitimacy flows from affording dissatisfied stakeholders with an ongoing realistic opportunity to contest and displace those outcomes with those that more closely align with their preferences. Administrative law already contains agonistic features. Adherents of this model envision other institutional and legal reforms that would infuse a more agonistic orientation to regulatory democracy. For instance, they would require more frequent use of retrospective review for regulations and greater use of adjudication for policymaking in place of rulemaking where possible.

One of the practical benefits of redesigning regulatory democracy mechanisms consistent with agonism is that it could help prevent some of the abusive gamesmanship practices in the notice-and-comment process described above. By demanding consensus, prevailing theories of pluralism of civic republicanism create perverse incentives for entrenched interests to manipulate public participation mechanisms in order to prevent consensus from ever being achieved. For instance, such interests might seek to delay final action on a rule by packing the rulemaking record with the intent to manufacture uncertainty or continually raise new issues – rather than productively inform a regulatory decision. In this way, public participation becomes a tool for translating power into paralysis. This concern is well worth considering given, as adherents of Abundance liberalism have noted, such paralysis can be exploited by would-be authoritarians to support an agenda of democratic backsliding.

Modernizing Regulatory Democracy Through Public Participation Planning

In light of these challenges, it is time to consider not just incremental changes, but a fundamental rethink of how public engagement is conducted within the administrative state. In contrast to current approaches, effective regulatory democracy must be both people-centered and power-conscious.

This paper will concentrate on applying this reform framework to the rulemaking process, though it could also be applied to other aspects of the federal administrative state that involve public participation, such as NEPA and permitting. Likewise, they could be applied to state-level administrative analogs. While there might be several ways to build a people-centered, power-conscious, rulemaking process, this paper outlines what it refers to as Public Participation Planning. This would involve agencies:

  1. developing and executing a strategy that is
  2. tailored to each of their planned regulatory actions in order to
  3. engage relevant stakeholders throughout each step of the rulemaking process
  4. with the explicit purpose of building a reasonably comprehensive record of the public’s views on the action for the rulemaking record.

The validation of Public Participation Planning as a viable mechanism for achieving truly meaningful engagement comes through its embrace of four cross-cutting principles: proportionality transparency, communication, and pragmatic learning. First, the rigor of a particular plan should be fairly proportional to the significance of the rule under development. Second, strenuous adherence to transparency is essential for achieving the agonistic goal of productive disagreement. In particular, agencies must always be completely forthright with all stakeholders about how decisions were reached and what evidence and arguments proved determinative. Third, and related to transparency, agencies should strive to maintain open lines of communication with stakeholders throughout the entire rulemaking process. This will enable agencies to serve as the effective mediators of productive disagreement through the rule’s development and beyond.

Fourth, it requires agencies to commit to an ethic of pragmatic learning. Implementing Public Participation Planning is not as simple as plugging a few numbers into an equation and expecting an optimal result to emerge; it is impossible to predict ex ante what will work in any given situation. Instead, to make the most of Public Participation Planning, agencies will need to become adept at building and rebuilding the proverbial plane, even as they are flying it. Moreover, what has worked in the past will have to be continually reassessed in light of underlying power inequities. If history is any guide, powerful incumbents will eventually devise ways to use their resource advantage to corrupt even the best public participation mechanisms for engaging structurally marginalized communities.

As discussed in greater detail, one of the obvious objections to Public Participation Planning is that its apparent emphasis on proceduralism will exhaust scarce agency resources and contribute to excessive delays in a rulemaking process that has already become too bogged down to permit for effective and timely policy implementation. These four cross-cutting principles, however, are intended to alleviate those concerns – adherence to them will help to strike the needed balance between public engagement and expeditious policymaking.  

Putting Public Participation Planning into Action

Public Engagement Strategy Blueprints

One of the distinguishing features of Public Participation Planning is the requirement that agencies assemble a public engagement strategy blueprint for engaging stakeholders for each planned regulation at the time that the action is initiated that is tailored to the unique circumstances of the rule. This step provides agencies with a mechanism to anticipate potential challenges and think through and identify effective solutions that are calculated to enable them to build a reasonably comprehensive record of the stakeholders’ views on the rule. 

It is worth emphasizing at the outset that the development of a public engagement strategy blueprints need not be a resource-intensive and time-consuming task. As noted above, these should be tailored to match the significance and controversy level of the rule. In addition, agencies will learn by doing, resulting in increased efficiencies over time. For instance, analyses used for past rules will often be readily usable for future rules addressing similar subjects. Another crucial source of efficiencies will be for agencies to use their existing institutional resources to perform these tasks. Most rulemaking agencies already have various forms of public engagement offices and regional and local offices that can and should be tapped. Public affairs offices can also be brought into the rule development process earlier, rather than announcing decisions – such as proposals and final rules – after the fact. Lastly, agencies may build new institutions that increase efficiencies for implementing public engagement strategy blueprints. For instance, agencies may consider creating a standing process for conducting periodic townhalls or other listening sessions. This relatively modest investment could in turn yield significant value for informing the development of public engagement strategy blueprints for future rulemakings covering a wide variety of issues.

More broadly, as explained in greater detail below, the implementation of all aspects of Public Participation Planning, including the public engagement strategy blueprints, should be thought of in terms as an investment. There is no denying they will involve the dedication of resources and time – mostly at the front end of the rulemaking process. But, by directly addressing power disparities and by more constructively channeling irreconcilable disagreements over the competing values implicated by a given rulemaking, Public Participation Planning will mitigate the sources of delay that crop up later in the regulatory process, including, most notably, litigation and the problem of ossification it creates. And to be perfectly frank, much of this work involves things agencies should be doing anyway. The failure to do so often helps to explain why many agency rules have fallen short of accomplishing their stated goals.  In short, more “process” at the beginning will lead to less process and less delay overall.

Step 1: Public Engagement Strategy Blueprint

The first step in assembling a public engagement strategy blueprint is to conduct a thorough and deliberate stakeholder mapping exercise. By the time an agency has completed this exercise, they should be in a position to identify the relevant range of stakeholders for a given rulemaking and the anticipated role or roles they might be expected to play in the rulemaking process. For each category of stakeholders, agencies should also perform a general capacity assessment. Specifically, they should seek to answer such questions as what kind of input or expertise members of a given stakeholder group are likely to bring, whether and how those individuals have participated in similar rulemaking processes in the past, and what barriers might prevent them from participating effectively in the current rulemaking process.

Step 2: Examine Power Disparities and Structural Injustice

The second step is to assess the role, if any, that underlying power disparities or other forms of structural injustice (e.g., racism or patriarchy) play in contributing to the problem that the regulation is meant to solve. To be sure, agencies should be performing such assessments anyway since a failure to do so could yield policy responses that either fail or have other unintended perverse effects, including making the underlying problem worse. With this background in place, the agency should then give careful consideration to how stakeholders identified through the mapping exercise might help them to better understand these underlying power disparities.

Step 3: Stakeholder Engagement to Inform Rulemaking

The third step is to use any learnings from the stakeholder mapping exercise and power disparities assessment to construct a strategy for conducting stakeholder engagement to inform the development of the rulemaking proposal before it is formally published. Most agencies already have an established “action development process” they follow for drafting proposals and building a supporting evidentiary record. Agencies can build off the procedural framework that process creates when designing this engagement strategy. They can ask which types of stakeholders are likely to have input that would help with the successful completion of each stage of the policy development process and what specific engagement tactics would likely be most successful in obtaining that input at a reasonable cost in terms of time and resources. For example, agencies might use more time-consuming and resource-intensive focus groups for particularly weighty matters such as scoping out alternative regulatory designs. In contrast, they might employ informal remote public hearings to quickly gather ideas for sourcing certain kinds of evidence related to the rulemaking. (A bonus of this process is that it might reveal ways in which an agency policy development process could be strengthened, by adding, removing, or combining steps, or by altering their order.)

In preparation for this step, agencies will likely also want to have created a general library or “menu” of engagement tactics, with a brief assessment of their strengths and weaknesses. This will enable agency staff to quickly pull tactics “off the shelf” and insert them into the individual public engagement strategy blueprint. Indeed, this is an example of how moving along the learning curve will help agencies to implement Public Participation Planning more quickly and at reduced cost.

The capacity assessment performed during the stakeholder mapping exercise will especially be important for successfully implementing this step of plan development. For instance, if that exercise revealed that an important group of stakeholders is unlikely to have reliable access to high-speed internet, then the agency should refrain from relying on something like a remote public hearing to obtain input from those stakeholders. This assessment will also help agencies to identify potential affirmative steps they can take to eliminate barriers to public participation. For example, agencies can take steps to provide translation services if a large number of crucial stakeholders do not speak English as a first language. At the same time, the capacity assessment might reveal that a particular stakeholder group exercises an unusually high degree of dominance over a particular issue. In such cases, the agency may find that imposing certain constraints on their participation during the pre-proposal time period. These might include limiting or barring ex parte contacts or placing reasonable page limits on documentary submissions. (Such actions will also have the advantage of expediting the rulemaking process by preventing well-resourced contacts abuse these contacts as a means for delay.)

Step 4: Identify Mechanisms to Include Marginalized Communities, Including Storytelling

The fourth step in building a public engagement strategy blueprint is to identify mechanisms for ensuring that even stakeholders from structurally marginalized communities are able to participate in the notice-and-comment process as effectively as possible. As noted above, the notice-and-comment procedures often systematically exclude such individuals. While agencies cannot completely obviate this dynamic, they should still strive to sand off its worst effects – especially as these procedures are likely to remain part of the rulemaking process for the foreseeable future. Somewhat regrettably, the general consequence of these auxiliary mechanisms would be to get ordinary individuals to more effectively behave like sophisticated lobbyists instead of their true, authentic selves. This means providing various kinds of educational resources and specialized training to individuals so that their input can fit the “technocratic” mold, much as the Federal Energy Regulatory Commission’s (FERC) Office of Public Participation (OPP) undertakes now. It might also involve creating institutional mechanisms to serve as representatives or ombudsmen on behalf of unaffiliated individuals, though this would likely require significant additional resources and perhaps even legislative change to effectuate.

A more radical option would be to undertake institutional reforms that make notice-and-comment procedures more amenable to obtaining and utilizing non-technocratic forms of input, such as storytelling. This approach has the advantage of permitting individuals to share their more authentic expertise – including their situated knowledge and lived experiences – though such input may be of limited relevance at this later stage in the rulemaking process. The degree of institutional reforms required to fully realize this procedure – ranging from changes in agency hiring practices to modifications of administrative law doctrines to recognize these different kinds of “expertise” – makes it unlikely that this approach will bear fruit any time soon.

Step 5: A Plan for Public Engagement After Rulemaking

The fifth and final step in building a public engagement strategy blueprint is to create a plan for how the public might remain engaged after the rule is finalized – that is, to identify opportunities, if relevant and possible, for the public to participate in the rule’s implementation and ensure those are reflected in the rule’s final design. Examples of such engagement include the public’s role in monitoring compliance, measuring the rule’s impacts through citizen science activities, and holding regulated entities accountable for violations of the rule’s requirements through citizen suits when legally available. The final rule may also seek to explicitly incorporate opportunities for the public to participate in any future retrospective review actions for the rule, though Congress will need to ensure agencies receive sufficient budgetary resources to carry out such reviews. Similarly, many statutes authorize agencies to grant individual businesses different kinds of compliance relief, such as deadline extensions, variances, waivers, and exceptions. The final rule could provide the public with a meaningful role in considering and awarding these grants of relief.

As noted above, the rigor and detail of the blueprint should be roughly proportional to the rules’ economic and social consequences as well as to the level of controversy it is anticipated to engender. As with other aspects of implementing Public Participation Planning, accomplishing this proportionality goal in practice will improve with practical experience.

Resource constraints and political pressure for expeditious policy implementation are likely to provide strong incentives for agencies to fall short of the desirable level of rigor and detail. Consequently, countervailing incentive structures will be necessary to offset that tendency. Perhaps that could be accomplished through well designed judicial review standards, as noted below. Political leadership – including from the White House agency appointees – could also signal the importance of careful implementation of Public Participation Planning. For instance, this could be institutionalized through agency strategic planning exercises or encouraged as part of performance review and promotion decisions for career staff. Of course, Congress can do its part by fully funding agency implementation. And over time, as agencies advance along the learning curve for implementation, they will achieve increased efficiencies that will alleviate some of the incentives to do insufficiently rigorous Public Participation Planning.

Strategy Blueprint Implementation, Tracking, and Public Participation Plan Statements

As indicated above, each public engagement strategy blueprint that an agency develops should focus on creating meaningful participation opportunities for members of structurally marginalized communities early in the pre-proposal process, since that is when their input is likely to be of greatest relevance and utility for agency decision-makers. Rather than be a mere “check the box” exercise, the execution of these early participation mechanisms (informal hearings, focus groups, etc.) should have a discernible impact on the structure and substance of the proposal. Thus, as agencies turn to implementation of these mechanisms, they should carefully track whether and to what extent the public engagement strategy blueprint is accomplishing what they expected it would.

This, of course, is not to say that the agency should use these engagement activities to build evidence for decisions that were already made by other means – much as occurs with cost-benefit analysis now. Rather, it means that agencies should base their monitoring on other more objective benchmarks. One question agencies should ask is whether the quantity of participants matches the predicted expectations. (Again, agencies will likely struggle at first to make these kinds of predictions with much accuracy – there will be a learning curve. But, as noted above, a crucial ethic for Public Participation Planning is a commitment to learning by doing.) Similarly, agencies should find that the input they are receiving through these early engagement mechanisms are providing answers to the questions they need to answer to develop the proposal – whatever those answers happen to be. Another good indicator that the early engagement mechanisms are working well is that they are uncovering important “unknown unknowns” – things that the agency did not realize it did not know when it launched the rulemaking.

If, on the other hand, agencies are not finding that the early engagement mechanisms are working as expected – that they are not helping to build a reasonably complete record of public input on important policy-relevant questions undergirding the proposed rule – then they should make adjustments to the engagement strategy. This goal, of course, does not mean agencies should strive to accomplish something akin to comprehensive accounting for all relevant views from the impacted public. Instead, the goal should be to obtain a reasonably representative level of input from each of the major stakeholders included in the agency’s initial mapping exercise. What constitutes a reasonable level of input will necessarily be a subjective determination, and one that agencies will improve on as they learn through implementation of the Public Participation Planning scheme over time. In making this determination, though, agencies will want to be especially attentive to the concern that they have not adequately engaged members of stakeholder groups they have initially identified as being structurally marginalized or as facing particularly high barriers to participation. When in doubt, an agency may wish to attempt other forms of engagement for these groups. As in other forms of research, if the input they obtain sounds repetitive, that would indicate a good stopping point has been reached. 

Drawing on lessons learned from actual practice, agencies may want to consider employing different forms of affirmative outreach to targeted stakeholder groups, undertaking alternative engagement tactics, or finding other creative ways to minimize barriers that might be preventing effective engagement. For example, if an important stakeholder category is young families, then the agency may consider securing resources to provide childcare during in-person hearings. To be sure, agencies may encounter legal constraints that may prevent them from instituting strategies like this. One suspects that these constraints are not as significant as feared, however, and that agency counsel have been overly cautious in interpreting these constraints. Nevertheless, clarifying legal authority from Congress on these matters would be welcome.

As it carries out the specific components of its public engagement strategy blueprint, the agency should begin assembling a comprehensive Initial Public Participation Plan Statement, which documents its outreach and engagement activities, carefully summarizes the input that was received through each component, and briefly explains what impact, if any, that input had on the agency’s proposal. Consistent with the principles of transparency and communication noted above, it is particularly important that the agency use this document to identify instances when a stakeholders’ input did not influence a particular outcome and explain why that was the case.

Explaining the Democratic Basis for a Rule

The agency should include the completed Initial Public Participation Plan Statement in the rulemaking docket when the rule proposal is formally published so that it is available to the public when they are developing the comments. In this way, the Initial Public Participation Plan Statement will function similarly to an Initial Regulatory Impact Analysis (i.e., the initial cost-benefit analysis), only it explains the “democratic” basis for the rule instead of its “economic” basis. Ideally, as the Initial Public Participation Plan Statement becomes more institutionalized, it can even replace the Initial Regulatory Impact Analysis that agencies now perform as the most prominent supporting document for a proposal. This would conserve agency resources and symbolize that democracy has replaced technocracy as the key driver of regulatory decision-making.

After the proposal is published, agencies should likewise carefully monitor the implementation of any specific components from the public engagement strategy blueprint for supporting public participation while the public comment period is open. Again, they should strive to make appropriate adjustments whenever they discover that these mechanisms are not producing expected or helpful results. During this period, agencies should continue documenting their progress in implementing the public engagement strategy blueprint by updating Initial Public Participation Plan Statement.

In conjunction with releasing the final rule, agencies should then include in the rulemaking docket a Final Public Participation Plan Statement. (Again, this final statement would be democratic analog to the Final Regulatory Impact Analysis.) This document should describe the public engagement strategy blueprint that was originally created, any changes that were made during the rulemaking process, what input was received through the agencies’ engagement mechanisms, and what impact they had on the proposed and final rules, if any. Again, agencies should be forthright in identifying the input that did not impact the rule and briefly explaining why.  

Lastly, after the final rule has been published, agencies should dedicate resources and time to reflecting on lessons learned from the implementation of public engagement strategy blueprint. They should be prepared to incorporate these lessons into the design and implementation of future public engagement strategy blueprints. This will lead to implementation of Public Participation Planning that is more effective, less expensive, and quicker. In addition, agencies will also need to be prepared to track the implementation of any public participation mechanisms related to implementation incorporated into the final rule design. As noted above, these mechanisms might relate to compliance monitoring and enforcement, retrospective review, and grants of compliance relief.

Advantages of Public Participation Planning

Public Participation Planning stands in stark contrast to the largely one-sized-fits-all approach to public engagement – basic notice-and-comment procedures with occasional public hearings – that characterize the current rulemaking process. As noted above, essentially no deliberation goes into the creation of this engagement strategy – it is effectively reflexive – nor does it recognize, much less attempt to address, realistic concerns that important categories of stakeholders may not be accounted for in its strategy or that such incomplete input risks aggravating the very power disparities and social inequities that gave rise to the problem that the rule is meant to address in the first place.

In addition, successful implementation of Public Participation Planning will promote better regulatory democracy in the following ways. First, it will provide agencies with a mechanism for systematically identifying all the relevant stakeholders for a given policy, particularly members of communities who might otherwise be systematically excluded from such decision-making processes by structural or other barriers. Second, it will ensure that input is elicited from these stakeholders consistent with the sequential logic of the rulemaking process, providing agency decision-makers with the information they need when it is most useful.

Third, it will empower agencies to tailor their outreach and engagement strategies to the unique policymaking context implicated by the rule under development. Fourth, it will enable agencies to use public engagement to surface and account for any underlying power disparities that contribute to the policy problems a rule is meant to address, leading to more effective and durable policies. Fifth, it will highlight productive disagreement among stakeholders rather than engage in a quixotic pursuit of consensus – that is, it seeks to move regulatory democracy in a more agonistic direction. This is essential to recalibrate public engagement so that it is more attentive to power disparities and to avoid being a source of excessive delay in the policy development process.

How Other Federal Institutions Can Support the Successful Implementation of Public Participation Planning

The White House

With the advent of presidential administration under Reagan, the White House has played an increasingly active role in coordinating and steering the actions of the administrative state. The White House would thus be well-positioned to support the effective implementation of public participation planning. Indeed, as noted above, the Biden administration took some important initial steps on strengthening public participation in the rulemaking process as part of its broader Modernizing Regulatory Review initiative.

A logical place to start would be for staff at the White House Office of Management and Budget (OMB) to produce a comprehensive list of public outreach and engagement tactics for agencies to use to inform their own public engagement strategy blueprints. They could create this list by surveying the relevant academic literature, reviewing agencies’ past experiments with innovative approaches, and even looking at examples offered by peer democratic states abroad.

To support ongoing agency learning, OMB could also convene a standing working group composed of representatives from the public engagement offices at the various agencies. This working group could provide a forum in which these offices regularly share their best practices and lessons learned. Just as significantly, by signaling that public engagement is a priority of administration leadership, the working group would also by its mere presence help to reinforce a broader ethic and commitment to democratic inclusiveness across the administrative state.

Inviting OMB support in the implementation of Public Participation Planning is not without risk, given its historic role of interfering with and unduly politicizing the rulemaking process. It would certainly be preferable if Congress created a new standalone office outside of the White House that is explicitly charged with these tasks, as suggested below. But short of that, OMB is institutionally best positioned to play this role – provided that it does so in a strictly auxiliary fashion, leaving individual agencies the ultimate discretion on how to implement Public Participation Planning. In addition, carrying out such an auxiliary role would be a far better use of OMB’s resources than its current practice of superintending agency decisionmaking through the centralized regulatory review process.

The implementation of Public Participation Planning would also benefit greatly from having staff with different kinds of skillsets and life experiences. For instance, staff with backgrounds in social work or community organizing and specialized training in sociology might be particularly valuable. The White House Office of Personnel Management (OPM), the main human resources agency for the administrative state, could be instrumental in helping agencies to identify and hire such individuals. OPM could also help make necessary revisions to hiring standards and practices to make it easier and quicker to bring them on board.

Congress

Agencies have adequate legal authority to undertake Public Participation Planning. Still, Congress can ensure that even future administrations that might be hostile to the goals of regulatory democracy will implement this reform, even if reluctantly, by codifying this procedure into law through an amendment to the APA.

Similarly, implementation of Public Participation Planning likely would not require a significant commitment of agency resources – especially, if agencies are able to redirect resources to it from other rulemaking requirements, such as cost-benefit analysis or the myriad energy-related analyses that agencies must conduct pursuant to various executive orders. Ideally, Public Participation Planning will also reduce the incidence of legal challenges against final rules, which would promise to save on direct litigation costs. With these reduced litigation risks, agencies may also find that they are no longer compelled to “bulletproof” their rules through elaborate rulemaking records and gargantuan preambles to their final rules. This resulting streamlining effect of Public Participation Planning could also yield significant cost savings for agencies over the long run.

Nevertheless, Congress should still commit adequate appropriations for agencies to launch this reform, especially while they are still overcoming the incremental additional costs required to move through the early stages of the learning curve. With increased experience and specialization, agencies will likely be able to implement Public Participation Planning in an increasingly cost-effective manner.

Congress can take other steps to affirmatively support Public Participation Planning. For instance, they can authorize and fully fund a new institution that affirmatively supports public participation in the notice-and-comment process. The EXPERTS Act, a comprehensive progressive regulatory reform bill now pending in Congress, offers one potential model. Specifically, it would create something called the Office of the Public Advocate, which would be charged with this responsibility.

In addition, Congress can tap the Administrative Conference of the United States (ACUS) – which is effectively the federal government’s in-house “think tank” on administrative law – to study existing administrative law doctrines that might present a barrier to effective implementation of Public Participation Planning (to the extent that the doctrines arise from statutory, as opposed to constitutional, law). Such doctrines might include Vermont Yankee’s bar on judicially created administrative procedures (the codification of public participation planning, recommended above, would obviously address this), Loper Bright (which gives the judiciary, instead of agencies, the primary responsibility in interpreting agencies’ statutory authority), and the “logical outgrowth” test (which constrains how significantly a final rule’s substance can deviate from what’s contained in the proposal). ACUS could develop recommendations for how agencies and reviewing courts can avoid running afoul of these doctrines or propose legislative fixes for Congress to adopt.

Lastly, it goes without saying that Public Participation Planning would benefit immeasurably from having a functional Congress in place. According to the common conservative myth, an empowered Congress is necessary to restrain the administrative state. Just the opposite is true, however. By recommitting to doing the people’s business and passing public interest legislation again, Congress would provide agencies with fresh opportunities to put Public Participation Planning into action with up-to-date legal authority to tackle the new and emergent problems that pose a great threat of harm to structurally marginalized populations.

The Judiciary

The most obvious way that the judiciary could support the implementation of Public Participation Planning is by devising new judicial review doctrines that reward rulemakings with exceptional democratic pedigrees with enhanced levels of deference. This, of course, would require conservative judges to apply an even hand to all regulations challenged on judicial review before them. That means they would have to deploy enhanced deference consistently and in the service of promoting regulatory democracy, rather than wield it as a weapon to justify striking down rules they oppose on policy grounds. Under present circumstances, one might be forgiven for doubting this will take place. Yet, since we cannot avoid this institution either, we must still do the best we can with our politicized judiciary until such time as we are able to accomplish significant judicial reform – a topic beyond the scope of this paper.

Such enhanced deference might have a role to play in assessing the statutory authority for the agency’s rule, even under the new Loper Bright review framework. For instance, reviewing courts might modify the application of Skidmore to apply a special degree of “respect” for agency interpretations that rest on public input received during the rulemaking process.

More likely, though, the influential weight of public input would be greatest during the review of agency policy decisions under the arbitrary-and-capricious standard. In theory, courts already employ a “super deference” for agencies’ determinations based upon science and other forms of technocratic expertise, though courts rarely follow this approach in practice. Courts could easily create (and actually follow) an analogous super-deference doctrine for agency determinations based on “democratic expertise.” The inclusion of the Final Public Participation Plan Statements in the rulemaking record, as outlined above, would provide the essential informational foundation for the application of such a doctrine. In developing this doctrine, courts would have to account for applicable doctrinal constraints, including, most notably, Vermont Yankee.

Short of that, though, much of the analysis involved in assessing Final Public Participation Plan Statements would fit comfortably within the “hard look review” that courts already perform as part of the arbitrary-and-capricious standard of review. In other words, implementation of Public Participation Planning would not create any insurmountable barriers for courts conducting judicial review pursuant to the APA.

Courts have long recognized that the APA’s arbitrary-and-capricious judicial review standard implies a general duty for agencies to build a sufficiently complete rulemaking record to enable such review. Contained within this broader duty is a more specific responsibility to have procedures or mechanisms in place for ensuring that the information before the agency meets some minimal level of quality. While this responsibility might traditionally be thought of as applying to more technocratic inputs, there is no reason why it should apply equally to the unique on-the-ground expertise of individuals and community-based organizations. Similarly, this general duty also implies a more specific requirement that agencies ensure that the scope of information available to them be sufficiently broad to permit for evidence-based, reasoned decision-making required by arbitrary-and-capricious review. Again, this concern should apply equally to all forms of expertise, not just those regarded as technical or scientific in nature.

Importantly, this same judicial review standard would also guard against attempts by any president who is hostile to regulatory democracy to implement Public Participation Planning with insufficient rigor. Just as the Trump administration is now seeking to bypass the notice-and-comment process altogether, a future administration might reduce this process to a mere check-the-box exercise or conduct woefully inadequate outreach and consideration of input. The Final Public Participation Plan Statements would afford a reviewing court with a basis for applying the arbitrary-and-capricious standard to the agency’s public engagement efforts and, ultimately, to remand an agency rulemaking to correct this aspect of the record where any flaws or gaps are identified.

The notion of courts policing Public Participation Planning raises a separate concern that this aspect of arbitrary-and-capricious review could be abused by conservative activist judges who are opposed to climate policy or other aspects of the progressive policy agenda. The Supreme Court’s recent extreme application of the arbitrary-and-capricious standard in Ohio v. EPA confirms that this is not an idle concern. Still, it seems clear that activist judges will find plenty of opportunities for abusing arbitrary-and-capricious review even in the absence of Public Participation Planning. On balance, then, the benefits of this reform would still seem to outweigh these risks.

Public Participation Planning as Part of a Broader Agenda to Increase Administrative Effectiveness

The past year has seen the Abundance Liberal movement spark a robust debate within the broader liberal community over the appropriate role of legal procedure in our governing institutions. Under the circumstances, then, it may seem like an unusually inopportune time to champion something like Public Participation Planning – an essentially proceduralist reform. As explained below, though, this reform strives to take seriously Abundance’s critiques and is consciously predicated on the recognized imperative to strike an appropriate balance between, on the one hand, public engagement and, on the other, effective, responsive administrative action that delivers concrete results.

The Abundance Liberal movement, as best captured in the recent book by its most prominent advocates Ezra Klein and Derek Thompson, argues that the Left’s reflexive embrace of proceduralism and litigation is an antiquated relic from a bygone era and is already becoming a political liability. That is because many of the progressive movement’s policy priorities – from addressing the climate crisis to promoting affordable housing – requires quick policy implementation, a goal that is ultimately defeated by excessive proceduralism. Instead, the book argues, the Left should dispense with most procedures as a mechanism for legitimizing government action and instead let the popular results of those actions (e.g., affordable housing, cheap clean energy, etc.) serve that legitimizing function after the fact.

Significantly, Klein and Thompson’s book singles out public participation in the policymaking process as emblematic of the broader problem they are trying to solve. Indeed, their specific critiques of notice-and-comment procedures largely tracks with those that have motivated the proposal Public Participation Planning, as detailed above. In particular, they correctly identify these procedures as excluding structurally marginalized communities and reinforcing broader power disparities in our society.

Where the Public Participation Planning proposal departs from Abundance adherents such as Klein and Thompson is its core claim that the problem is not procedure per se, but power disparities. More specifically, it posits that the dysfunctional procedures that cause excessive and unnecessary delays in policy implementation are better understood as a symptom of the deeper problem of power disparities in our society. After all, even if we were to remove all existing procedural requirements – that is, to take Abundance to its logical extreme – it is by no means clear that we would see more expeditious policy implementation, particularly where those policies go against the preferences of entrenched elites. Such interests would simply find other, non-procedural mechanisms for blocking policies they opposed.

Given that we are unlikely to eliminate the structural sources of power disparities in our society any time soon, it is worth exploring more practicable near-term mechanisms for alleviating the worst consequences of those power disparities. What Abundance potentially misses with its black-and-white diagnosis of the procedure problem is that procedure actually holds a lot of promise for accomplishing this goal. After all, if procedures can aggravate power disparities, as Abundance Liberals would freely stipulate, then it also follows that well-designed procedures can do the opposite as well. Legal scholar Nicholas Bagley, who has provided part of the intellectual foundation for Abundance, highlighted this intrinsic feature of procedure when he wrote: “government action — whether it involves dispensing public benefits or regulating private conduct — allocates resources, risk, and power within the United States.”

To put Bagley’s point differently, procedure can never be neutral in its effects on underlying power dynamics; it will tend to cut in the favor of one set of stakeholders or another. Taking this reality seriously means that policymakers have a lot of tools at their disposal to shape and reshape those power dynamics in more productive ways through carefully designed procedures. More to the point, Abundance overlooks the tantalizing possibility that, by effectively redistributing power within the administrative state, well-designed procedures can actually expedite policy implementation – or at least add value, such as improving the quality of decision-making, without causing new or undue delay. This is precisely the project that Public Participation Planning sets out.

As described above, Public Participation Planning illustrates how procedures might be designed with the goal of affirmatively redistributing power from entrenched interests committed to maintaining a suboptimal, unjust status quo to members of structurally marginalized communities that are both underrepresented in our political processes and disproportionately burdened by the harms that arise from status quo economic, social, and political arrangements. Specifically, it seeks to carve out new spaces in the rulemaking process for bringing in the unique expertise of historically underrepresented populations at precisely the points in that process when their expertise is most germane. At the same time, it contemplates placing reasonable constraints on the participation opportunities available to entrenched powers such that their input is channeled to maximize its utility for agency decision-making. This would also have the additional benefit of preventing these interests from abusing their resource advantages to overwhelm agency decision-makers with extraneous information for the purpose of causing unnecessary delay.

Public Participation Planning’s commitment to transparency and ongoing communication with stakeholders plays an important contributing role in this power shifting dynamic. For structurally marginalized stakeholders, it will be essential for them to know concretely how their input is materially shaping the policy and factual determinations that undergird agency decision-makers. Otherwise, it will be entirely rational for members of these communities to assume that their participation is little more than a check-the-box exercise, rather than a genuine effort at promoting regulatory democracy. Understandably, members of such communities will still harbor some degree of skepticism even despite agencies’ good faith commitment to transparency and communication. Trust will take time to build, but it can be built. Somewhat counterintuitively, one way that agencies can do this is by always honestly explaining to these stakeholders when their input did not substantively influence a particular decision – that is, by delivering the bad news as well as the good.

Equally as important, Public Participation Planning demonstrates how these kinds of investments in well-designed procedures can actually pay off in terms of more expeditious policy implementation. In other words, it helps to refute the commonly held belief – one clearly embraced by the Abundance Liberal movement – that public engagement and expeditious policy action are fundamentally at odds. Instead, these tradeoffs can effectively be mitigated when such public engagement procedures are designed to correct power disparities that are implicated by a given rulemaking.

The key to accomplishing this seeming procedural alchemy is by addressing the primary driver of rulemaking delay: litigation over final rules. (To be sure, Public Participation Planning would also endorse Abundance’s more general call to clear out unnecessary procedural requirements that have accreted over the years, such as cost-benefit analysis, the Regulatory Flexibility Act, and the Unfunded Mandates Reform Act, to name a few. Doing so would be entirely consistent with its analytical framework. These procedures tend to aggravate power disparities – often by design – and thus contribute to delays in the rulemaking process.) Litigation is time-consuming in its own right, often taking several years to reach a definitive conclusion. During this time, agencies are increasingly subject to court orders barring them from implementing the rule’s provisions.

In addition, as noted above, the near certainty of legal challenges creates strong incentives for agencies to “bulletproof” their rules to reduce the chances they will be struck down on judicial review. While some degree of deliberative and evidence-based rigor underlying rules is desirable, of course, the perverse result of this incentive structure is that agencies go far beyond what the law reasonably requires for substantiating rules, an increasingly resource-intensive undertaking that significantly delays the completion of new actions.

As noted above, many of Public Participation Planning’s distinguishing features are designed to reduce the incidence of litigation. Particularly significant in this regard is its emphasis on early engagement. Not only does engagement provide agencies with better and more timely input; it also has the additional benefit of promoting greater buy-in from stakeholders, which in turn defuses litigation risk down the road. In other words, frontloading public engagement seems to shorten the length of the rulemaking process even if agencies are technically conducting a greater number of procedural steps overall.

Several empirical studies of the implementation of the National Environmental Policy Act’s (NEPA) analytical requirements appear to confirm this effect, finding that NEPA processes that involve early public engagement are statistically shorter than those that do not. Reduced litigation and, by extension, the reduced incentives for bulletproofing NEPA analyses seem to explain this discrepancy. (Not incidentally, extensive NEPA-related delays are also the subject of extensive criticism by the Abundance movement) It is reasonable to expect that this dynamic would translate to the functionally similar rulemaking context as well.

Also important, Public Participation Planning seeks to institutionalize a more agonistic orientation into the regulatory process. As explained above, agonism seeks to avoid the pursuit of near-universal consensus over policy outcomes, which is typically impossible to achieve in practice anyway, and instead create conditions for productive disagreement. Similar to early engagement, one of the desired effects of administrative agonism is to reduce litigation risk and the perverse effects such risks create. Instead, final regulations would be treated as more contingent and subject to realistic mechanisms for ongoing revision and refinement or to various forms of implementation flexibility. In this way, agonism enabled by Public Participation Planning would attempt to lower the stakes on final rules, such that stakeholder focus could be gradually shifted from post-finalization litigation to implementation where it can be put to more productive use.

To be sure, achieving the full agonistic potential of Public Participation Planning would require other legislative changes. For instance, Congress could amend agencies’ authorizing statutes to give them greater authority to deploy back-end implementation adjustments and flexibilities, such as waivers, exemptions, and compliance extension deadlines (all subject to vigorous public participation mechanisms, as noted above). For agencies that already enjoy these kinds of authorities, implementing this general approach could serve as a valuable proof-of-concept demonstration that could help catalyze this legislative action in the near future.

Another option would be for Congress to incorporate more rigorous schedules for reviewing and updating regulations into their statutory design, such as those that exist for appliance energy efficiency standards. To ensure that these reviews are carried out expeditiously, Congress could also experiment with different kinds of “hammer provisions” that would kick in automatically – setting default regulations or standards, for instance – if an agency is unable to work with relevant stakeholders to adopt the update according to the statutory schedule. Ultimately, the goal of these reforms would be to rebuild a rulemaking process in which stakeholder contestation is increasingly shifted to the implementation phase, where dynamism and flexibility can be permitted to flourish.

Even better, the judiciary could further reinforce this litigation-dampening effect of Public Participation Planning by adopting a strong deference doctrine based upon a rule’s democratic pedigree, as noted above. Such doctrines have the potential to substantially alter the calculus for stakeholders who are contemplating a challenge against the rule. If a rule’s legal and policy bases are strongly supported by public input such that it is likely to earn some measure of enhanced judicial deference, stakeholders may refrain from undertaking the expense of bringing a legal challenge, given the reduced likelihood that the challenge would succeed.

Even with all this careful attention to the design and implementation of Public Participation Planning, ongoing vigilance from policymakers will still be required to ensure that its performance delivers on its promises of better-informed decision-making and more expeditious policymaking. Regrettably, while effective use of this tool can help to alleviate the consequences of power disparities, those underlying power disparities will still remain in place, absent other more radical power interventions. The practical upshot is that over time entrenched interests may learn to “capture” parts of the Public Participation Planning program and deploy them to advance their narrow policy preferences at the expense of the broader public. (Both the APA notice-and-comment process and NEPA’s analytical requirements appear to illustrate this general dynamic.) This is why Public Participation Planning demands that agencies continually reevaluate and update their public engagement and outreach actions. Ideally, though, the general Public Participation Planning framework will remain resistant to such capture risks, even if more specific tactics and strategies for instituting that framework do not.

Conclusion

An effective response to the climate crisis faces numerous obstacles. One of these is a regulatory system that inadvertently reinforces underlying power disparities that help to maintain status quo conditions on how we obtain and use energy. A better approach to the practice of regulatory democracy – one that takes seriously and affirmatively addresses power disparities – will be essential for overcoming this obstacle.

This paper proposes a comprehensive reform to how agencies engage the public during the rulemaking process called Public Participation Planning. The distinguishing feature of this reform program is that it would require agencies to develop tailored public engagement strategy blueprints for each of their planned rulemakings. The purpose of these blueprints is to enable agencies to draw on a variety of engagement tactics that are calculated to build a reasonably comprehensive record of the stakeholders’ views on the rule. Importantly, the blueprint would also enable agencies to determine when best to engage different stakeholders throughout the various stages of the rulemaking process – a concept known as sequential participation. This reform would also require agencies to assemble Initial and Final Public Participation Planning Statements, which document the implementation of the blueprints and the ultimate impact that the resulting public input had on the substance of the rule. These Statements would be made part of the rulemaking record where they could be considered by judges, if necessary, during judicial review of the rule.

Public Participation Planning offers two major advantages. First, and most directly, by improving the quality of public input, it will lead to better decision-making, and thus better policy outcomes. Second, its implementation is likely to expedite rulemakings in many instances. Public Participation Planning would help to accomplish this outcome by using procedures to alleviate power disparities among relevant stakeholders. Properly understood, such power disparities appear to be the root cause of delayed rulemakings in the past. Taking these two advantages together, Public Participation Planning would offer a crucial piece in the larger puzzle of addressing the climate crisis effectively and with the urgency needed to avoid its worst consequences.

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