Visualizing Accountability and Transparency Measures

• Date: 01 August 2018

8-2018 NEWS & ANALYSIS 48 ELR 10713

Subsequent eorts have built on this foundation. Execu-

tive Order 12866, which built on the Reagan-era Exec utive

Orders 12291 and 12498, underscores the need for a regu-

latory process that is “accessible and open to the public.”1

As such, Executive Order 12866 emphasizes the need for

agencies to “provide the public with meaningful par tici-

pation in the regulatory process” including “a meaning-

ful opportunity to comment on any proposed regulat ion.”2

It also stresses that “[a]ll information provided to the

public by the agency shall be in plain, understandable

language”3— recognizing that engaging the public requires

rst that they understa nd the issue.

Executive Order 12988, which was issued almost three

years after Executive Order 12866, directly stresses the

importance of using plain la nguage in regulations.4 Cit-

ing the important consequences that regulations can have

for the public, Executive Order 12988 emphasizes a need

to draft regulations that clearly inform the public about

their applicability and eect, a nd urges that clea r language

should be a main regulatory priority.

Other reforms have focused on illuminating specic,

critical aspects of ru lemakings. Executive Order 12898, for

instance, requires ag encies to “identify[] and addre ss[] . . .

disproportionately high and adverse human health or envi-

ronmental eects of its programs, policies, and ac tivities on

minority p opulations and low-income p opulations.”5 Exec-

utive Order 13045, similarly, requires agencies to include

in the administrative record “an evaluation of the environ-

mental health or safety eects of the planned regulation

on children [] and [] a n explanation of why the planned

regulation is preferable to other potentially eective and

reasonably feasible alternatives considered by the agency.”6

As a result of these Executive Orders, the Environmen-

tal Protection Agency (EPA) provides an environmental

1. Exec. Order No. 12866, 58 Fed. Reg. 51735 (Oct. 4, 1993).

2. Id. at 51740.

3. Id. at 51742.

4. Exec. Order No. 12988, 61 Fed. Reg. 4729 (Feb. 5, 1996).

5. Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994).

6. Exec. Order No. 13045, 62 Fed. Reg. 19885, 19887 (Apr. 23, 1997).

COMMENT

Visualizing Accountability and

Transparency Measures

by Martha Roberts and Surbhi Sarang

Martha Roberts is a Senior Attorney with the U.S. Climate Legal and Regulatory Program at the

Environmental Defense Fund. Surbhi Sarang is a Legal Fellow at the Environmental Defense Fund.

Porter and Watts’ article helpfully underscores the val-

ues that should be reected in the regu latory process,

including the worthy goals of mak ing regulatory

activities more transparent, increasing political account-

ability, and encouraging public participation. ere is a

long, bipartisan history of eorts to further these aims in

the rulemaking process; Porter and Watts’ piece illumi-

nates one new emerging strategy to support these goa ls.

As the authors point out, visual rulema king has the abil-

ity to increase transpa rency of agency act ion, better convey

how agency actions aect the public, and engage a more

diverse segment of the public in agency rulemak ings—all

of which can help assure accountability in implementation

of public health and safety protections. In an era during

which foundational rulemak ing values are under threat,

reecting on the history and f uture of rulemaking trans-

parency and accountability is a n opportunity to examine

the importance of these qualities and evaluate current and

potential sources of support.

I. A Long History of Reforms to Enhance

Rulemaking Transparency

Recent eorts to enhance agency communication through

compelling visuals build from and advance the aims of

text-focused bipartisan reforms over several dec ades that

have similarly aimed to encourage approachable, dige stible

regulatory documents and processe s. Both aim to increase

public understanding of the implications of the a gency

action at issue.

e Administrative Procedure Act (APA) itself was

intended to bring transparency, public participation, and

political accountability into the ru lemaking process. e

APA requires that agencies must provide notice when pro-

posing new rules, allow the public to comment on pro-

posed rules, consider seriously each comment they receive,

and submit to judicial review of nal agency actions. e

APA was accordingly an early eort to embed democratic

values into agency procedures.

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