Comments on Taking Public Access to the Law Seriously

• Date: 01 August 2015

45 ELR 10786 ENVIRONMENTAL LAW REPORTER 8-2015

C O M M E N T

Comments on

Taking Public Access to

the Law Seriously

by Lois Schier

Lois Schier is General Counsel for the National Oceanic and Atmospheric Administration (NOAA).

Professor Mendelson’s article is extremely important.

Although I have worked on federal regulations and

environmental law for over 40 years, until I read Pro-

fessor Mendelson’s ar ticle I had not focused on this critical

issue. e idea that the government has a body of law that

the public cannot access for free is quite startling from the

perspective of the enforceability of federal rules, govern-

ment transparency, and public access to material that may

bind the public. It also raises serious questions about basic

due process and fairness.

I am in complete agreement with Professor Mendelson.

If the government is going to use privately-developed stan-

dards as part of its rules, it is important that the public

can review the standards and participate in those rules. I

may go further than Professor Mendelson in adding that in

order for there to be meaningful public comment, the gov-

ernment should make it a component of its use of private

standards that the standards-developing entity maintain

an adequate record and that the public has an opportunity

to review the standard.

For example, while I certain ly can understand that the

tensile streng th of a pipe might not be riveting to many,

someone somewhere is making an assumption about how

protective the standard is going to be, the nature of that

strength, and what kind of testing is required. If people

who will be bound by the proposed regulation want to

understand the standard and comment on the draft regu-

lation but they do not have free access to the standard and

what underlies it, I do not know how their comments can

be meaningful. In addition, the idea that most interested

parties will have the resources to buy private standards is

problematic. It is the rare public rule that does not have

a wide range of interested parties. In fact, I am surprised

there have not been more legal challenges to the use of

private standards in federal regulations, especially i f the

standards are not publicly available for free.

I would like to suggest a glimmer of hope for remedy-

ing the problem of public access to private sta ndards—an

approach that arises in a dierent context. Specically, in

February 2013, the Oce of Science and Technology Pol-

icy (OSTP) in the White House issued a policy that builds

on the U.S. Open Data Policy.1 e OSTP policy seeks to

increase public acce ss to federa lly-funded research results.

e idea is that if federal money pays for research, then

the public should have access to the research—preferably

for free.

Federal agencies are expected to develop their own poli-

cies for making t his research publicly available. e core

principle in t he NOAA policy is t hat publications and

environmental data funded through taxpayer dollars will

be made publicly accessible in a timely fashion.2 In the case

of articles published by limited access journa ls—journals

that are similarly situated to standards issued by private

organizations because their work is funded by people who

purchase their products— eorts are underway to gure

out how that information can be made available for free.

For example, this could include embargoing the research

results so that the journal could sell its product for the rst

12 months, after which the research results would be pub-

licly available— or it could be through other methods yet

to be developed.

I raise public access to research results as an analogue,

because the policy makes very clear that when govern-

ment activity uses material to which the public really

needs to have access, the government is beginning to think

1. Memorandum from John P. Holdren, Dir., Oce of Sci. & Tech. Policy,

Exec. Oce of the President (Feb. 22, 2013), available at https://www.

whiteho use.gov /sites /defau lt/file s/micr osites/ ostp/o stp_pu blic_ac cess_

memo_2013.pdf.

2. Na’ O  A A., NOAA P  I

P A  R R (Feb. 2015), available at http://docs.

lib.noaa.gov/noaa_documents/NOAA_Research_Council/NOAA_PARR_

Plan_v5.04.pdf.

Author’s Note: is Comment is based on a transcript of Ms.

Schier’s remarks at the April 10, 2015 Environmental Law and

Policy Annual Review conference in Washington, D.C. e views

expressed here are Ms. Schier’s own and not those of NOAA or the

Department of Commerce.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.