Should Mass Comments Count?

I am grateful to the Michigan Journal of Environmental & Administrative Law for the opportunity to reply to “Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts,” a terrific article by Professor Cynthia Farina, Mary Newhart, and Josiah Heidt of the Cornell eRulemaking Institute (“CeRI”). Farina, Newhart, and Heidt’s continuing commitment to structuring public engagement in e-rulemaking, both through scholarship and CeRI’s Regulation Room project, is one of the most hopeful signs for the future of that process. In their Article, the authors are concerned with agency treatment of large volumes of public comments in rulemaking, an increasingly common phenomenon. In the first six months of 2012 alone, a quarter-million comments were filed on the Regulations.gov website. In 2011, I noted that agencies apparently gave so-called mass comments short shrift, sometimes acknowledging them but typically offering no answer. But agencies often must resolve value-laden policy questions in issuing a rule and ought to do so in a democratically responsive fashion. Accordingly, I argued that agencies should consider more seriously engaging the large volumes of comments they receive, even when those comments amount to simple statements of preference or value.1 All agree that public comments cannot serve as a plebiscite on the issue before the agency. But large volumes of comments could, as I argued, trigger more thoughtful consideration and evaluation by the agency