Pouring New Wine Into Old Wineskins? Promulgating Regulations in the Era of Social Media

• Date: 01 August 2018

48 ELR 10716 ENVIRONMENTAL LAW REPORTER 8-2018

ing invariably—if not inevitably—leads to litig ation. e

greater the precipitating problem, the more likely we will

encounter stakeholders d isappointed with the a gency’s

solution. erefore, from the very beginning of any rule-

making eort, c ounseling entails an a nalysis and man-

agement of legal risk. Simply put, the successful defense

of an agency rule rests on a three-legged stool: statutory

authority, record support, a nd procedu ral proprie ty. If any

leg gives way, the rule collapses, taking with it years of

investment by agencies a nd stake holders, along with the

solution itself. Engaging the public within and outside the

formal public comment process can strengthen each leg

of the stool. At the threshold of rulemaking, agencies can

use stakeholder meetings, socia l media engagements, and

Advanced Notices of Proposed Rulemaking (ANPRMs)

to explore the nature and extent of the perceived prob-

lem, elicit possible solutions, and evaluate the intensity

and character of public support or opposition. Feedback

owing into an agency through a ll of these channels not

only equips the agency to make better r ulemaking choices,

but also highlights potential legal vulnerabilities. Having

spent my career defending challenges to agency actions, I

highly value early insights into future litigants’ objections.

I want to know what the public considers to be dubious

legal authority or insucient factua l or analytica l bases for

regulatory ideas. My goal is to strengthen at least two legs

of our rulemaking stool. At t he very least, I want to apprise

agency decisionmakers fu lly of the legal risks a ssociated

with various options and to build the best legal and fac-

tual case in support of their nal choices. Early and active

engagement between an agency and the public allows

agency counsel to minim ize surprises and prepare, prepare,

prepare. By testing the waters, agency outreach through

stakeholder meetings, social med ia, and ANPRMs can a lso

build better regulatory choices: regulate, deregulate, or do

nothing at all.

COMMENT

Pouring New Wine Into Old

Wineskins? Promulgating

Regulations in the Era

of Social Media

by Carol Ann Siciliano

Carol Ann Siciliano is an Associate General Counsel at the U.S. Environmental Protection Agency.*

In their rich, lucid, and engagingly illustrated article

entitle d Visual Rulemaking, Prof. Elizabeth G. Porter

and Prof. Kathryn A . Watts challenge agencies to break

free of dense text and to explore a new universe of “visual

rulemaking.” Citing colorful examples from the past few

years, the authors urge agencies to make greater use of

videos, images, and socia l media to promote transparency

and expand public engagement. e authors also fully

acknowledge the legal risk s of pouring such new wine into

old winesk ins. And so t hey invite lega l scholars, cour ts, and

agency attorneys to help move administrative law toward a

warmer embrace of these dynamic new practices.

Profs. Porter and Watts create three elegant categories

to describe agencies’ use of visual rulemaking: outow,

inow, and overow. e authors use the term “outow” to

describe agencies’ eorts to engage the public in rulemak-

ing processes and to educate and persuade t he public about

the rule’s value. e term “inow” refers to the public’s use

of visual media to convey information and feedback to the

rulemaking a gency. Finally, the authors capture an agency’s

search for legislative solutions within the term “overow.”

I. Building Better Decisions Through

Public Engagement

As an agency attorney with decades of experience in rule-

making, I wa s captivated by the authors’ insights regarding

“inow.” In this Comment, I intend to analyze the authors’

proposals in relation to agencies’ responsibilities under the

Administrative Procedure Act (APA).

I’ll begin by laying a foundat ion from the perspective

of a rule-counseling attorney. For many of us, rulemak-

*e views expressed in this Comment are the author’s own and

do not necessarily represent the views of the U.S. Environmental

Protection Agency.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.