Visual Rulemaking

• Date: 01 August 2018

48 ELR 10698 ENVIRONMENTAL LAW REPORTER 8-2018

complexities, appeal to emotions over intellect, and fuel

partisan politics.

Visual rulemak ing also implicates signicant doctrinal

questions, including fundamental provisions of the Adm in-

istrative Procedure Act (APA) and prohibitions on agency

lobbying. While none of these doctrinal issues threaten to

obstruct visual rulemaking entirely, they do suggest that

agencies’ use of visuals may need to cha nge some around

the margins. Ultimately, we conclude that administra-

tive law doc trine and theory can and shou ld welcome the

arrival of visual rulemaking.

II. The Ad Hoc Emergence of

Visual Rulemaking

Until recently, visual communication played little role in

the rule making rea lm, even among e-ru lemaking sc holars.1

However, beginning in the Obama Administration, the

president, Congress, members of the public, and repeat-

player institutions are all using the tools of the modern,

quintessentially visual, information age to wield inuence

over the regulatory state.

A. Agencies

An evolving group of visually adventurous agencies—

nearly all of which are executive agencies under the con-

trol of the president—is beginning to deploy the power of

visuals in the context of high-stakes, politically charged

rulemaking proceedings. ese agencies—wh ich currently

include, among others, the Food and Drug Administ ration

(FDA), Department of Transportation (DOT), Depart-

ment of Labor (DOL), and Environmental Protection

Agency (EPA)—are not monolithic in their use of visua ls.

Nonetheless, their collective vi sual exploits show that r ule-

making is no longer a solely textua l endeavor.

1. See, e.g., Michael Herz, Using Social Media in Rulemaking: Possibilities

and Barriers, Final Report to the Administrative Conference of the Unit-

ed States 24 (Nov. 21, 2013), https://www.acus.gov/sites/default/les/

documents/Herz%20Social%20Media%20Final%20Report.pdf (“[O]ne

of the dening characteristics of social media is that it is multi-media and

therefore allows communication other than through words. at is breath-

taking and wonderful and valuable in many settings. But writing regulations

just is not one of them.”).

ARTICLE

Visual Rulemaking

by Elizabeth G. Porter & Kathryn A. Watts

Elizabeth G. Porter is an Associate Professor and Charles I. Stone Professor of Law at the University of Washington School

of Law. Kathryn A. Watts is the Jack R. MacDonald Endowed Chair at the University of Washington School of Law.

I. Introduction

is Article uncovers an emerging and signicant phe-

nomenon that has gathered momentum only within the

last few years: the use of visual media to develop, critique,

and engender support for (or opposition to) high-stakes,

and sometimes virulently controversial, federal rulemak-

ings. Visuals have played little historica l role in rulemak-

ing. Instead, the rarie d realm of rulemaking has rema ined

technocratic in its form—dened by linea r analysis, black-

and-white text, and expert reports. Now, due to the explo-

sion of highly visual social media, a visual tra nsformation

in rulemaking has resulted in what might at rst appea r to

be two separate universes: on one hand, the ocial rule-

making proceedings, which even in the digital age remain

text-bound, technocratic, and dicult for lay citizens to

comprehend, and on the other hand, a newly visual—

newly social—universe in which agencies, the president,

members of Congress, and public stakeholders sell their

regulatory ideas. But these universes are not in fact dis-

tinct. Visual rulema king—even when it is outside the four

corners of ocial rulemak ing proceedings—is seeping into

the techno cracy.

is has signicant theoretical implications for admin-

istrative law. We conclude that agencies’ use of visuals to

market their regulatory agendas—often in direct coor-

dination with President Barack Obama’s sophisticated

exploitation of digital media—furthers two fundamental

theoretical justicat ions underpinning the regulatory state:

transparency and politica l accountability. In addition,

visual tools have the potential to democratize public par-

ticipation and to enable greater dialogue between agencies

and the public. Despite these theoretical advanta ges, visual

rulemaking raises serious risks. Visua ls may oversimplify

is Article is adapted from Elizabeth Porter & Kathryn Watts,

Visual Rulemaking, 91 N.Y.U. L. R. 1183 (2016), and is

reprinted with permission. e authors wish to thank Kaleigh

Powell, Cynthia Fester, Devon King, and the librarians at the UW

School of Law for their excellent assistance; and Sanne Knudsen,

Lisa Manheim, Peter Nicolas, Rafael Pardo, Rebecca Tushnet,

Todd Wildermuth, David Zi, and participants in the UW Legal

Methods Workshop.

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