The results are in: EPA good, China bad
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If EPA Administrator Scott Pruitt hoped for a wave of fact-based arguments from the American public in response to the agency’s public notice on April 17 about regulations to consider for change or repeal, he must be disappointed. 

The vast majority of publicly viewable comments made in response to President Trump’s Executive Order 13777 were anonymous, broad statements of support for the EPA.

Most commended the agency's positive performance during the last four decades, citing it as a force for improving the nation’s air and water quality. 

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As a caveat, my analysis here is limited by the fact the EPA has only made 36,040 of the 182,488 comments viewable to the public — a glaring lack of transparency for reasons unclear.

 

In other words, a preponderance of the public comments attacked the very legitimacy of the president’s executive order itself, which invited criticism of the nation’s entire environmental regulatory system, based on cost-benefit analyses. Instead, what was submitted were tens of thousands of general comments along the lines of “keep your hands off the EPA.”

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In the preponderance of direct references to the EPA itself, sentiment indicates a mostly favorable opinion of the agency. Phrases such as “I like,” “regulations are important,” and “I support protections,” characterize the overall tenor of comments surrounding the agency.

The online page provided by the EPA for submitting comments was an overly simple form that did not require any specific data fields — neither the submitter’s name, address, nor organizational affinity, if any. 

This basic info would have established personal identities and/or discernible political agendas, as well as enable the mining of geospatial insights about public opinion and sentiment from the comment dataset.

The submission form could have been designed instead to ensure public comments were directly responsive to the criteria defined by the executive order, prompting submitters to cite relevant grounds for the EPA to consider regarding regulations ripe for change or repeal.

The list of six defined criteria were made plain in the president’s order, including whether a regulation inhibits job creation; is outdated, unnecessary, or ineffective; or imposes costs that exceed benefits.

Each of the specified criteria could have been made a simple checkbox in the submission form, thus allowing reviewers to immediately understand on what basis a commenter requested that the EPA review a specific regulation. 

Instead, all submitters were provided was a blank comment box, requiring less detailed info than one typically provides when ordering a pizza online.

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A quick survey of the sentiment expressed in the 671 comments where China is mentioned indicates the country is mostly cited in negative contexts, typically as a nation where environmental conditions are deplorable, thanks to the absence of an effective regulatory agency such as the EPA.

With such a lack of clear guidance from the EPA’s submission form, I would argue the resulting vague and overly general comments were probably predictable. The skeptic in me wonders whether the entire exercise was intended from the start to elicit the type of nonspecific arguments actually received. 

The EPA can plausibly argue now it followed the president’s executive order, but that the public failed to produce much in the way of substantive arguments to repeal or replace any specific regulations.

On second thought, perhaps the landslide of “hands-off the EPA” responses are not so irrelevant to the process after all. The Administrative Procedures Act, which provides legal authority for the notice and comment process, requires public arguments to be duly considered in rulemaking. 

This includes “do nothing” as a legitimate position to take against a regulatory proposal. “Leave the EPA alone,” the apparently dominant theme of public comments responding to the regulatory reform notice, in effect is an argument to do nothing.

Beyond a lack of guidance contained in the comment submission form, I would argue there was a notable lack of public outreach as well by the EPA to create awareness about such an important regulatory reform process. 

Considering roughly 300 million citizens in the U.S., the 182,488 comments made represent less than one-tenth of one percent of the population — people who knew about the notice and responded within the 30-day comment period.

When the IRS wants to find a person, chances are highly likely they will make contact. 

Why can’t the federal government demonstrate similar diligence and creativity when it comes to seeking input from citizens on critical issues of governance, such as the president’s Executive Order 13777?

Participation rates could be greatly expanded through mass media outreach on all the obvious channels. 

Public service announcements about open comment periods on broadcast stations, news outlets, social media platforms, and traditional snail-mail, would encourage broader citizen awareness and engagement.

Under the president’s order, all federal agencies are required to undertake similar regulatory reform initiatives similar to the EPA’s public notice in April. 

Can we at least expect a somewhat more detailed submission forms to guide the public in making more relevant comments going forward, and to make the resulting data sets more useful for gaining insights with advanced analytics?

The economic impact of federal regulations is estimated at $2 trillion annually. Shouldn’t the government spend a little money if necessary to spread the word to the public about important regulatory reform processes underway, and when and how they can have an influence?

Creating comment submission forms with more than just one field, and broadcasting some public awareness messages doesn’t seem too much to ask.

John W. Davis II is founder and chief executive officers of N&C, provider of the regulatory data analytics solution Regendus. Davis previously served as director of the Homicide and Major Crimes Bureau as a federal prosecutor for the U.S. Virgin Islands Justice Department.


The views expressed by contributors are their own and are not the views of The Hill.