Wagner, Wendy --- "Participation in the U.S. administrative process" [2016] ELECD 1087; in Bignami, Francesca; Zaring, David (eds), "Comparative Law and Regulation" (Edward Elgar Publishing, 2016) 109

Book Title: Comparative Law and Regulation

Editor(s): Bignami, Francesca; Zaring, David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781782545606

Section: Chapter 4

Section Title: Participation in the U.S. administrative process

Author(s): Wagner, Wendy

Number of pages: 20

Abstract/Description:

At least on paper, U.S. administrative law places a premium on ensuring complete and meaningful participation in agency rulemakings. Participants are not only guaranteed the opportunity to comment on agency proposals, but agencies are legally required to consider participant comments. If an agency fails to comply with these requirements, it can find itself defending its rule in court. Since each commenter is a potential litigant, U.S. agencies have legal incentives to take the comments seriously. What actually happens in practice, however, can be quite different. Even though legal requirements impress upon agencies the need to provide formal opportunities for participation, agencies are not required to ensure that the opportunities they provide are effective. Administrative law also does not require that all significantly affected parties be actively represented in rulemaking that affects their interests. Instead, in the model contained in the Administrative Procedure Act (APA) the agency operates as a passive recipient of stakeholder input. Agencies are generally not required to monitor the intensity or diversity of stakeholder engagement, subsidize or actively solicit underrepresented groups, or otherwise ensure that the actual participants bear any resemblance to those who are actually affected by the agency’s action. The success of U.S. participation requirements ultimately relies on the stamina and resources of the affected parties, a dependence that can lead to significant imbalances in representation. Exacerbating these limitations are gaps in the formal participation requirements themselves.