The European Union and some of its Member States are beginning to introduce enhanced public participation in executive regulatory processes at the same time as the United States, long the leader in such procedures, is cutting back by making the promulgation of rules increasingly difficult. We outline developments in the EU and Germany to provide a contrast with the US.
Regular elections for political representatives and referenda are the hallmarks of citizen participation in democratic politics, but both have serious limitations. The policies enacted by sitting governments may only weakly relate to constituents’ votes in elections. Votes in referenda may be based on misinformation, and the options may be posed in over-simplified or vague language. These difficulties have led critics of representative democracy to propose direct civil society input into policymaking. Yet, that goal is difficult to operationalize in any large polity. Constraints of time and space limit input, and many policies require esoteric technical data and a complex balancing of facts, values, and law.
As a result, some argue for radical decentralization to the grassroots to give citizens direct control over local policies and finances. In the ideal, the polity rejects hierarchy and decides on the basis of a consensus reached in a town meeting. Clearly, this is an unrealistic model for anything other than a small homogeneous community. Localism fails to accommodate policies with a large geographical extent, such as many environmental harms. Furthermore, even a local decision reached by consensus needs to be implemented and that will involve both a division of labor and a source of funds. Yet, the ideal of an involved citizenry advising on policy remains an aspiration behind many supporters of representative democracy.
Some, however, reject that ideal. To them, a chain of legitimacy operates where citizens vote for political parties and/or candidates. The winners take power and enact policies supported by the elected politicians. That chain is clearer in a parliamentary system than in the US presidential system or in the EU. In parliamentary systems such as Germany or the UK, a coalition of political parties forms a government and, with the nominal approval of the president or the monarch, appoints the prime minister/chancellor and the cabinet. In the US there is no single chain linking the government to the voters because the president may come from a different party than one or both houses of the legislature. The EU is also complex with the popularly elected parliament in a relatively weak position relative to the Commission and the Council, even if the legislature has gained increased clout in recent years.
However, even in a parliamentary system, the policy messages sent down the chain from the voters may be unclear and conflicting, especially in areas that are both technically complex and of deep concern to citizens. To us, this implies that mechanical efforts to justify controversial policies by reference to the chain of legitimacy are inadequate. Policymakers need to make direct connections to the citizenry on a policy-by-policy basis in all political systems. However, it is challenging to organize a policymaking process that is both responsive to public concerns and realistic about the difficulties of organizing participatory procedures in large, diverse polities.
This essay considers public input into executive branch policymaking in the EU, Germany, and the US. For large polities, consensus is obviously impractical. Open-ended invitations to provide input will, of necessity, feed into a political-bureaucratic structure where citizen input is only one factor in the final decision. Realistic public participation procedures both seek to elicit public input and articulate how it will feed into the ultimate policy choice. Courts may or may not be involved in reviewing the adequacy of public participation; some processes are only prudential exercises that do not give participants or potential participants legal rights.
We begin with the European Union because it has been frequently criticized for lacking sufficient public participation in policymaking. Over time, the role of the democratically elected parliament has increased, but the Commission still must initiate legislative proposals, and it plays a major role in the implementation of EU law. The call for more and early participation of the public was reignited in the aftermath of the 2008 financial and economic crisis and has grown stronger all over Europe. A consortium of administrative law professors established the ReNEUAL project to reform EU administrative law. One chapter of its model rules deals with rulemaking and recommends a notice and comment process similar to the US model. However, so far, the EU has not adopted these recommendations.
In May, the citizens of the EU will have the right to vote once again for the European Union Parliament which represents 512 million people in 28 member states. European voter turnout has decreased since the first European elections in 1979. Less than 50% of the eligible citizens are expected to cast votes in the 2019 elections. The reasons for this decreasing turnout are various and multilayered, but one explanation is citizens’ disengagement from the EU because of the lack of opportunities to participate in the political process outside the parliamentary elections. One possible solution is to introduce public participation at the early stage of policymaking processes. The EU seems to have understood this linkage; EU officials acknowledge that increasing deliberative public participation could be the key to increasing the acceptance of EU institutions and decisions and to increasing voter turnout in elections.
The EU has recently taken several concrete measures to offer citizens the possibility of starting a conversation, offering feedback, making suggestions, and raising concerns via online platforms on existing and proposed EU legislation. They can also suggest new items for future legislative agendas. The consultation database of the European Commission offers an overview of all the public consultation projects sponsored by the EU. There are currently 51 consultation projects on EU directives in areas such as the environment, waste legislation, natural disasters, market, business and industry public health, consumers, and many more.
Another tool to foster public participation is the EU’s “better regulation agenda”. The agenda aims to design and evaluate EU policies and laws more transparently and to incorporate the views of citizens and stakeholders into policymaking. Public participation in all stages of the process is an essential part of the agenda. Feedback is welcome from the “in preparation”-stage when EU rules are evaluated or new initiatives are proposed, all the way to feedback on acts to be adopted by the Commission as tertiary norms or “rules” in US terminology.
During the process new and old ideas for policies and legislation are outlined, and citizens can give feedback during a period of 4-8 weeks via the “Have your say”-portal. One example in the early “roadmap-phase” is the process on “cross-border enforcement of road traffic rules”. Here, participants (even anonymously) can submit comments online that are visible to everyone. In this example, 16 public authorities, associations, trade unions and citizens from different countries expressed their support, disagreement and concern in English, French and German. The Commission will next make public the final legislative proposal, accompanied by its impact assessment report. Citizens and stakeholders then will have another chance to submit feedback on the proposal when it goes to the EU legislature. In this case, the assessment of the initial feedback and another public consultation is planned for the first quarter of 2020 before the EU Commission adopts proposed rules on cross-border enforcement.
Furthermore, the EU is also beginning to include the public in assessing the performance of existing EU law and to suggest changes necessary to keep laws up-to-date. The Commission’s “Regulatory Fitness and Performance Programme” which aims at evaluating the effectiveness and performance of current directives enhances public participation, using an online platform. For example, the evaluation of the Strategic Environmental Assessment Directive in summer 2018 invited participation from any interested party, including private citizens, companies, organizations, public authorities. Respondents could contribute to the assessment of the effects of certain public plans and programs on the environment (SEA Directive).
The EU consultation platform included an online questionnaire for participants that could be submitted in any EU official language. There were 249 respondents, significantly more than the 16 responses in the traffic rules consultation. Individuals submitted 111 or 45% of the total.
A report prepared after the consultation found that 88% of the respondents considered it very important for stakeholders and the public to be informed and consulted about the potential environmental impacts of public plans and programs. However, there are two problems with the report. First, 249 is a small number relative to the EU’s population of over 500 million, even if some comments were posted by organizations representing civil society groups. Second, feeling good about consultation is hardly a measure of its importance. One would also like if any of the input from the public influenced the final EU decision. Are the suggestions taken seriously by EU officials, as the EU claims?
Commission consultations are seldom subject to judicial review so it is difficult to check for the impact of public participation procedures. However, the environment is a special case because of the Aarhus Convention, an environmental agreement of the United Nations Economic Commission for Europe, ratified by both the EU and Germany, along with most other European countries. Its three pillars are access to environmental information for any citizen; public participation in administrative decisions on environmental issues, and access to justice on environmental law matters. It does not apply to legislative processes, and the Convention’s provisions are less stringent for regulations with the force of law than for the individual projects or plans and programs. For regulations, countries that ratify the treaty must only “strive” to promote public participation and “should” take certain steps. Thus, the ECJ let stand a Commission decision not to allow two Dutch NGOs to participate in Commission decisions regarding environmental matters.
However, courts in Europe are beginning to acknowledge and uphold democratic justifications for public participation, especially in the environmental area. In September 2018 the ECJ sided with the NGO plaintiff in requiring publication of Impact Assessments (IAs) used to prepare legislative proposals. The opinion, based both on the EU’s own open government policy and its implementation of Aarhus, explicitly stressed the democratic value of open information and its role in stimulating debate. The court held in favor of the NGO, in part, because the decision would limit future Commission attempts to limit access to IAs. This decision may signal a new willingness of the ECJ to promote democratic values, but it remains to be seen if that perspective will extend to policymaking inside the Commission. At least, the ECJ has recognized the democratic consequences of administrative practices.
In the Member States, public participation in policymaking processes is gaining support in the hope that it will encourage citizen acceptance of political/policy decisions. For example, Germany has moved from one extreme to the other. In the late 1990s, after reunification, statutes sought to speed up approval of large-scale infrastructure projects by limiting public participation. After massive public protests in the early 2000s, the trend reversed (Gard, Andre “Die frühe Öffentlichkeitsbeteiligung: Die Regelung zur frühen Öffentlichkeitsbeteiligung nach § 25 Abs. 3 VwVfG” (Nomos 2018)). Reflecting the special status of environmental harms, recent domestic laws require public consultations for major projects affecting the environment (see, for example the “Öffentlichkeitsbeteiligungsgesetz” (Public Participation Act) or the Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Act)). A good example is the Netzausbaubeschleunigungsgesetz (network-expansion-acceleration-act) that mandates public consultations at several stages in the rollout of the expansion of the electricity supply system. The statute demands access to relevant information and public participation from an early stage The German courts have interpreted and generally enforced these procedural requirements in cases brought by environmental groups (see, for example: Administrative Court Berlin “Gigaliner”-decision of 18 April 2018).
The newest step, taken under the second pillar of the Aarhus Convention, is the publication of the “Leitlinien für gute Bürgerbeteiligung” (guidelines for good public participation) published by the German Federal Ministry for the Environment in January 2019. The guideline was developed by ministry officials, experts, and the public. The Environmental Ministry invited ministry officials and the public (irrespective of nationality) to provide input in several workshops The guideline stresses the relevance of public participation in environmental questions from the planning phase to the final proposal, but it also makes clear that the decision rests with the ministry. The guideline refers to past pilot-projects using public participation that served as a basis for the new document. Successful measures were, for example, online platforms where people could post suggestions and comments, such as “an action-program for the protection of insects” or the climate protection plan 2050 where “civil dialogues” were held in several German cities and where randomly selected citizens could discuss and offer their suggestions. Nevertheless, it remains true that the Government can issues Rechtsverordnungen (rules with the force of law) without any required public consultation or reason-giving. Of course, it may be politically expedient to involve the interested public and organized civil society groups, but consultation is not a legally required.
In contrast, administrative law in the United States has required open-ended public consultation in rulemaking since the passage of the Administrative Procedure Act (APA) in 1946. [USC chapter 5, subchapter II, 551-559; chapter 7, 701706]
The informal rulemaking provisions require notice in the Federal Register with publication of a proposed rule, open-ended public participation, and a statement of reasons to accompany the final rule. Thus, public participation is built into the framework of the US law of rulemaking, but the statute does not require outreach to potential participants beyond public notice. However, the APA gives the government an incentive to organize a credible process because those procedures are subject to judicial review along with the requirement that the rule be consistent with the underlying statute and not be “arbitrary and capricious”. Large infrastructure projects are also subject to procedures that require public input. The open-ended comment process in US rulemaking sometimes overwhelms the system with hundreds of thousands of submissions, but most are duplicate emails from supporters or opponents. The more serious problem is the bias toward the well-organized and the well-financed. However, as in the EU and German cases the aim is not to produce a policy through a consensus of the participants, but rather to provide an additional input for the regulatory authority to consider in drafting a policy.
Probably the more serious threat to effective public participation in executive branch rulemaking is the shift of regulatory power to the Executive Office of the President (EOP). The Office of Information and Regulatory Affairs (OIRA) in the EOP reviews rules before they are issued by applying cost/benefit criteria [E.O. 12866]. The Trump Administration’s executive orders stress the cost side of the equation, and new rules must be balanced by the repeal of old ones [E.O. 1277182 Fed. Reg. 9339 (Feb. 3, 2017) (entitled “Reducing Regulation and Controlling Regulatory Costs”), available at: https://www.whitehouse.gov/presidential-actions/presidential-executive-order-reducing-regulation-controlling-regulatory-costs/]. These are executive orders, not statutes, but they aim to chill rulemaking activity so that processes that would require public participation are not even initiated. Many current rulemakings repeal or modify existing rules, but they must go through the notice and comment process providing a possibility for opponents, at least, to place their objections on the record [Motor Vehicle Manufacturers’ Asso. v. State Farm Mutual Automobile insurance Co., 463 U.S. 29 (1983)].
In the United States public participation in executive rulemaking has a long pedigree; hence, it is troubling and ironic, that some politicians and commentators are suggesting cutbacks in procedures that require public input. In contrast, the EU, Germany and other European countries are experimenting with alternative routes to public input that could enhance the democratic accountability of executive policymaking. Although neither the EU nor its Member States have legally enforceable requirements for public participation in rulemaking, it seems likely, at present, that innovations along that dimensions are more likely there than in the US.
Susan Rose-Ackerman is the Henry R. Luce, Professor of Law and Political Science, Emeritus, Professorial Lecturer in Law, Yale University.
Lena Riemer is a Fox Fellow at Yale University and a Doctoral candidate at Freie Universität Berlin.