Clean Power: An Overwhelming Avalanche of Public Comments

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Under the Administrative Procedure Act, the Environmental Protection Agency must allow members of the public the opportunity to comment on their proposal and then consider those comments. The Clean Power Plan inspired 4,327,541 comments. Jonathan Ernst/Reuters

Do you ever feel like there are a lot of people commenting on and criticizing your work? If so, considering the recent experience of the Environmental Protection Agency (EPA) may make you feel quite unnoticed by comparison.

In June 2014, the EPA proposed the Clean Power Plan, an ambitious new regulatory program that will govern greenhouse emissions from the nation's existing power plants. Under the Administrative Procedure Act the agency must allow members of the public the opportunity to comment on their proposal and then consider those comments.

For routine Clean Air Act rulemakings, the agency generally receives a handful or perhaps a couple dozen pieces of input, which it is able to respond to fairly comprehensively in a "Response to Comments" document. For bigger regulatory decisions, notice and comment rule-making might entail wading through more like a hundred comments, with the agency's response filling a few hundred pages.

And then there is the Clean Power Plan, which inspired 4,327,541 comments.

To put that number in context, consider the following: if EPA staffers worked on nothing else, and spent just one minute on each of these comments, it would take them 72,126 hours to get through them, or about 36 work-years. Quite a tall order considering that the last comments were accepted in December 2014 and the final rule is now expected to be released in August of this year.

Luckily for the EPA, more than 99 percent of these comments are generated through mass mailing campaigns in which advocacy organizations' supporters submit identical messages. According to the agency (all of this information comes from e-mail correspondence with an agency spokesperson), it has contractor support and makes extensive use of filtering software both to cull duplicates and organize substantive comments according to issue areas.

The agency received around 33,000 unique comments, of which it notes that "1,700 are more in depth," sometimes offering hundreds of pages of detailed legal and technical arguments. From this body of commentary, the EPA prepares a summary that attempts to cover all of the arguments made. Rather than millions of submissions, agency staff must instead grapple with what is now "close to 7,000 pages of summarized comments."

That number no longer boggles the mind, but upon consideration it is still incredibly daunting. Surely many arguments will be frivolous and hardly slow staffers down, but many more are genuinely substantive and challenging.

In a new Brookings Institution study, Curtlyn Kramer and I looked into just 48 submissions made by state environmental agencies—who will be crucial partners with the EPA as the Clean Power Plan is implemented.

We teased out five recurring strands of serious criticism of the plan: it treats states that have taken early environmental action unfairly, it threatens the reliability of the electric grid, its targets are unattainable on the proposed timeline, that the plan is simply illegal and that the plan should be withdrawn.

But the comments we analyzed also brimmed over with technical and geographically-specific concerns. Considering and thoughtfully addressing (which need not mean accepting), all of these substantive issues will cause EPA's final Response to Comments document to run many thousands of pages: a truly gargantuan task.

But is it a worthwhile one? That is, are EPA's enormous efforts in sorting through the country's anxieties well-spent? One might doubt it on several different grounds.

First, you might question whether administrative procedures designed in a different era are well suited for the Internet age and its ultra-low cost communications. Given the logistical challenges of dealing with the huge volume of comments and the nonexistent benefits of mass mailings for the agency's policy development, one might think it worthwhile to make the barriers to "participating" a bit higher, thereby saving our public servants a great deal of unnecessary work.

Second, you might worry that the task is truly Sisyphean: that legal and political challenges to the Clean Power Plan are going to force large enough changes to it that this work will effectively have to be redone, if not during this administration then during the next one.

Finally, you might simply wonder whether this kind of rulemaking process is capable of making sense of such a huge variety of concerns—which is another way of wondering whether the job of regulating greenhouse gas emissions is just too big to be adequately handled through Clean Air Act rulemaking.

When in 2007 the Supreme Court told the EPA that it had to make up its mind about whether greenhouse gases should be treated as "pollutants" subject to Clean Air Act regulation, most everyone thought that the threat of moving forward with such an unwieldy regulatory program would cause Congress to take action and set policy on this crucial issue.

Eight years later, that hasn't happened and expectations have shifted; now a great many people seem to think the alternatives are the Clean Power Plan and other Clean Air Act regulations or nothing.

Looking at the EPA's burden in trying to reconcile thousands of conflicting considerations through notice and comment rulemaking ought to remind us why the present approach is so far from optimal and get us thinking about pursuing better options.

Phil Wallach is a fellow in Governance Studies at the Brookings Institution.

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