The Potential of Visual Rulemaking to Strengthen and Democratize Rulemaking

• Date: 01 August 2018

8-2018 NEWS & ANALYSIS 48 ELR 10707

Comment by oering several recommended guidelines for

federal agencies to consider as they inevitably develop a

framework to engage in visual rulemak ing.

Rulemaking ha s emerged as one of the most signi-

cant powers exercised by the federal government, so it is

essential that the process promote increased transparency,

political accountability, and public participation. From

rules ensuring the sa fety of food and consumer products,

to controlling environmental pollution, to providing over-

sight over nancial institutions and ma rkets, agencies pub-

lish thousands of regulations each year and collectively

the impacts are enormous.5 e fundamental objective of

the rulemaking process is for agencies to balance compet-

ing values, expertise, and politics when developing federal

policy, and visual rulemak ing is a valuable tool for agencies

to use.6

Rulemaking by its very nature “is the most transpar-

ent and participatory decision-making process used in

any branch of federal government.”7 So it is not surpris-

ing, then, that many of us who professionally par ticipate

in the regulatory process inherently believe that “increased

public participation will lead to better policymaking.”8

Administrative law doctrine has created legal str uctures

and processes to promote clarity, transparency, political

accountability, and public participation. As the co-authors

illustrate, the regulatory process will benet from the

growing phenomenon of visual rulemaking a nd its contri-

butions to these same qualities.

For all its good and bad, there is little doubt that social

media has transformed the way individuals communicate

Water Rule: Denitions of “Waters of the United States,” 80 Fed. Reg.

37054 (June 29, 2015).

5. M P. C, C. R S., R43056, C R-

: A O  R, T  F R,

 P   F R 1 (2016).

6. Cynthia R. Farina et al., Rulemaking vs. Democracy: Judging and Nudging

Public Participation at Counts, 44 ELR 10670 (Aug. 2014).

7. Cynthia R. Farina et al., Rulemaking 2.0, 65 U. M L. R. 395, 402

(2011).

8. Farina et al., supra note 6.

COMMENT

The Potential of Visual

Rulemaking to Strengthen and

Democratize Rulemaking

Julia Anastasio

Julia Anastasio is the Executive Director and General Counsel of the Association of Clean Water Administrators (ACWA).*

Profs. Porter and Watts’ article, Visual Rulemak-

ing, is a timely examination of the increased use

of visual images in the rulemaking process by the

admini stration, i nterested stakeholder groups, and the

public. e article explores the potential of visual images

to “strengthen and further democratize” the rulemak-

ing process by promoting transparency, accountability,

and increa sed public participation.1 e authors d iscus s

the power of visuals to simplify a nd powerfully convey

complex messages and emotions while also addressing the

shortcomings and risks associated with the use of these

visual tools. ey conclude with an importa nt discussion

of the legal implications raised by the emergence of visu als

in the rulemaking process.

I agree that the shortcomings a nd risks associated with

visual rulema king are not insurmountable, that the ben-

ets associated with the use of visu als outweigh these risks,

and that their use supports the objectives of administra-

tive l aw. 2 I agree that strengthening and increasing t rans-

parency, politic al accountabil ity, and public pa rticipat ion

are fundamentally important values to encourage in the

regulatory process. I therefore focus my Comment on

highlighting some of the limitations associated with visual

rulemaking , drawing upon my experience3 participat-

ing the Clean Water Rule: Denition of “Waters of the

United States” (CWR) rulemaking eort.4 I conclude my

1. Elizabeth G. Porter & Kathryn A. Watts, Visual Rulemaking, 91 N.Y.U.

L. R. 1248 (2016) (“Ultimately, we conclude that the benets of visual

rulemaking outweigh its risks and that the administrative law doctrine and

theory can and should welcome the use of visuals in rulemaking.”).

2. See id.

3. While my comments draw upon my experience participating in the Waters

of the United States (WOTUS) rulemaking process on behalf of the mem-

bers of the Association of Clean Water Administrators (ACWA), the views

presented here are my own and not the views of ACWA.

4. I use the phrase Clean Water Rule (CWR) to distinguish between the rule-

making activities under the Obama Administration versus the rulemaking

activities that are currently underway in the Trump Administration. Clean

*e opinions and statements outlined in this Comment are the

personal opinions of the author and should not be interpreted to

represent any opinion other than those of the author.

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