EPA sees a potential solution to public comment challenge of e-rulemaking

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When it comes to rulemaking, the Environmental Protection Agency has found a practical way to deal with a growing challenge. Mass comment campaigns in which the agency receives thousands, or tens of thousands of nearly identical comments. Steven Balla has done a detailed study of EPA’s strategy as the government embarks on a project to modernize e-rulemaking. The George Washington University political science professor joined Federal Drive with Tom Temin for more on what he’s learned, and for the second installment in a three-part series on e-rulemaking modernization.

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Interview transcript: 

Tom Temin: Professor Balla, good to have you on.

Steven Balla: Hi Tom, great to be there.

Tom Temin: Let’s begin with the bigger question of mass comment campaigns. They’re nothing new in particular, but they seem to have accelerated in the e-rulemaking age. Tell us the background here and are they really a bad thing?

Steven Balla: Mass comment campaigns are collections of identical and near duplicate comments that are sponsored by organizations and submitted by group members and supporters. Mass comment campaigns are not a new phenomenon. They’ve occurred in rulemaking for decades. In the old days, there were postcard campaigns, and since the advent of e-rule making, mass comment
campaigns have moved online.

Tom Temin: Yeah, and so does the EPA Tend to get more mass comments? I think they do just because of the controversial nature and the back and forth politics of that agency from administration to administration.

Steven Balla: Sure, the reason we focus on the EPA in our study is because it’s obviously an important regulatory policy making agency, but also because it documents mass comments campigns in a systematic and transparent manner. And so what we found is where we studied a recent five year period of EPA rule making, it had received more than 1000 mass comment campaigns. So the phenomenon is quite common in EPA rulemaking.

Tom Temin: Yeah, so 1000. And how many rulemaking activities did that 1000 occur over? Do we know that number?

Steven Balla: Well, it’s certainly the case that there are small number of EPA rule makings that attract the vast majority of attention. So, for example, the waters of the United States rule making, the clean power plan. These were Obama era EPA rule makings that were quite notable, large scale and controversial in certain circles. And so those handful of headline making rule makings attracted the vast majority of mass comment campaigns. And so For example, one single EPA rulemaking attracted more than 300 of the mass comic campaigns in our analysis.

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Tom Temin: So 300 different groups. And how many comments did they actually get from those 300 mass comments?

Steven Balla: Well, what’s interesting is the EPA doesn’t put a definition on mass comment campaigns in terms of what’s the minimum number of duplicate and near identical comments that’s required for it to be called a mass comment campaign. And so we found that some mass comment campaigns are what you might expect that is, they’re composed of thousands, tens of thousands, hundreds of thousands, and in rare cases, you know, more than a 1,000,000 identical and near duplicate comments. But there are other mass comment campaigns that are much smaller in scope, so they might just be a couple hundred or even a few dozen comments that are identical and or nearly duplicate in their content.

Tom Temin: And what is an agency legally obligated to do with respect to mass comments?

Steven Balla: Well, going back to the Administrative Procedure Act of 1946, the notion is that agencies are required to consider relevant matter, so the issue then becomes what is relevant matter in the context of a public comment. And so when you talk to agency officials, one thing you’ll hear across the board nearly is that rule making isn’t a plebiscite. And so agencies don’t view their obligation as tallying up comments in favor of or opposed to a proposed rule and letting that dictate the direction that they ultimately go. So agencies are typically looking for material and comments that’s in some respect substantive. It deals with the underlying economic, legal, technical, scientific issues that the rulemaking is considering.

Tom Temin: So basically, then, if that’s the case and agencies have fidelity to that requirement, then the mass commenters are sort of wasting their time?

Steven Balla: What I would argue is that most directly, the rule making process is a legal administrative exercise. It’s governed by statute. It’s governed by judicial review. And so from that point of view, certainly relevant matter carries the day. But we also have to realize that we step back, rulemaking occurs in a larger political context, and agencies are exercising delegated authority, authority delegated by Congress under the supervision of the president. And so the currents of a mass comment campaign can deliver two agencies valuable information about the larger public political concerns regarding a proposed rulemaking. And so in that respect, you can imagine an indirect pathway of influence from the commenter, from the organization and the members who are engaging in this mass vocalization through channels such as the media, members of Congress. Eventually, then who put pressure on the agency. So what I say that that mass comment campaigns are a waste of time, not necessarily because there is a larger political element to to rule making.

Tom Temin: Getting back to the EPA. You did a study of their handling of mass comments. And what do they do that other agencies could learn from to be able to make sure that they’re transparent and fair in how they do handle them?

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Steven Balla: Well, what we found in our analysis of the EPA is what they do, when they identify a mass comment campaign, they create a single record on regulations dot gov, which is the platform where proposed rules, final regulations, public comments, supporting analysis, all of that information is posted. So they’ll post a single record to regulations dot gov that contains a variety of pieces of information. One, who’s the sponsoring organization of the mass comment campaign? If they know that. Secondly, how many comments were submitted as part of the campaign. And then third, the agency will include in its record on regulations dot gov, an illustrative example of the comments that were submitted as part of the campaign. And that’s usually through a PDF or Word attachment. So the bottom line is, you can find out who did it, how big of a campaign was it, and you can read essentially what the campaign was all about through that illustrative comment.

Tom Temin: And do we know whether that satisfies the desires of the people doing the mass comments? Do we know whether they feel that they are getting the hearing that they hope their bulk, I guess, will produce?

Steven Balla: I don’t know of any information about stakeholder satisfaction or dissatisfaction with that particular approach. And, of course, it’s certainly not the only approach that an agency could take. And in fact, there are other agencies that take an alternative approach, which is to post every single comment that’s submitted during the comment period. And so those agencies, when they receive duplicate or near identical comments, they will post every single one of them to their docket. So there’s certainly not a single strategy that’s utilized across the federal government. At least not at this point.

Tom Temin: Yes, because the FCC I think when it was doing the proposed rule making to change the Obama era policy on the net neutrality issue, didn’t they get millions of comments? And how do you post all those? I guess storage is cheap.

Steven Balla: I can speak specifically in the context of the EPA. The EPA is not throwing out those duplicate comments in any sense, right? Those comments are still catalogued and maintained on the back end server, if you will, that the EPA is operating. It’s just that on the public facing platform, it’s that single record that’s posted. So certainly, agencies could be overwhelmed by the submission of mass comment campaigns. The case you mentioned of the FCC and net neutrality. There were over 20 million comments, the servers went down. That happened on a number of occasions. So certainly agenies have a management issue when it comes to in taking these comments and storing them. And then this sort of outward facing presentation of the comments that is one particular element of how they approach documented what happened during their comment period.

Tom Temin: Now, as the GSA ponders ways to reform the rulemaking, what in your opinion should they look to be doing?

Steven Balla: Well, for starters, I would not suggest that the agencies take any actions to limit or discourage the submission of mass comment campaigns. It strikes me that they’re a legitimate form of democratic expression in what has always been an open process of public participation. Now, on regulations dot gov, there is a document that lays out what are the elements of a quote, effective comment. And that document highlights issues such as, well rukemaking is not a plebiscite, we’re interested in new information that bears on the substance of the rule we’re writing. My recommendation to the agencies and to GSA as they move the e-rulemaking program forward is to get that information out there more effectively because right now it’s on regulations dot gov, but it’s a little bit hidden and I suspect that many commenters who aren’t regular participants don’t have a good sense of what really matters in this process in terms of the law and an administrative process. So I would encourage better outreach in explaining what makes an effective comment.

Tom Temin: I guess in some sense, then if they are more transparent, agencies, about what is going on, what rules that proposing and how the process works, that might actually encourage fewer mass comments if people understand that mass comments won’t have any more weight than a few comments that are identical.

Steven Balla: My sense is that even if agencies do what I’m recommending, which is to educate the public more effectively, they still will be inundated with mass comment campaigns because the organizations mainly here in Washington, D. C., but certainly all around the country, they understand the process and are orienting these mass comment campaign toward larger audiences again, the media members of Congress and so forth. And so these organizations that sponsor mass comment campaigns have every incentive, I think, to continue to do so, and I expect that they will. So the issue, as I see it, is the mass public, the people, the ordinary citizens who participate in mass comment campaigns. They might not have the correct impression about the purpose of these campaigns, and so they would be the targets of any kind of outreach. The organization already understands the role of mass comment campaigns, but it’s the members of their groups that they’re mobilizing that don’t have a great sense. And that’s what I’m worried about legitimacy. Because if ordinary Americans see that 95% of the comments are opposed to a proposed rule and the agency goes ahead and finalizes it anyway, that might be deflating in the sense that, well, why did I participate in the first place? This doesn’t seem very legitimate, doesn’t seem very democratic. And so I think in that sense, educating the mass public is the crucial thing, because the organizations are going to sponsor these campaigns no matter what, because they have these larger audiences in the political sphere that they’re targeting.

Tom Temin: So for agencies, then build a better surfboard, but you’re not going to get rid of the waves.

Steven Balla: I don’t think so. I think mass comments campaigns are here to stay. Like we said at the outset, they’ve been occurring for decades. So I would expect that to continue in the future. One thing I’ll add, is if we compare the old postcard campaigns to the current electronic mass comment campaigns that we see today. The mass common campaigns today are on average, I think, larger than it was in the old days, so to speak. It used to be that if an agency gets 50,000 postcards 100,000 postcards. That was a big deal. Nowadays, again, if we just take the extreme example of net neutrality, the ceiling has really increased and that now we’re receiving millions or tens of millions of these identical and nearly duplicates submissions. So I do think the phenomenon has changed in scope, and it’s here to stay on that large scale. But that sounds like a pessimistic story. The optimistic part of this is that with technology not only comes ease of submission, comes ease of detection and processing on the part of agencies, and so the EPA and other agencies have the tools to automatically detect identical and near duplicate submissions in their dockets and stack them, if you will, into virtual piles. And so the good news is that even though agencies are being inundated in a sense with mass comment campaigns, they do have the tools to handle them relatively effectively.

Tom Temin: Steven Balla is associate professor of political science at George Washington University. Thanks so much for joining me.

Steven Balla: Thank you Tom.

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