Public Comment vs Coordination – Part 1: What is Public Comment, Really?

 
 

By Fred Kelly Grant

Note: This is the first of three posts that explain the difference between federal agencies’ “Public Comment” periods for new regulations, and “Coordination,” a legal obligation of agencies but rarely obeyed. Click links to read Part 2 and Part 3.

In an effort to allow the public a cathartic release, many federal agencies have a mandatory comment period before they implement new rules and regulations.

Why do I say public comment is a cathartic release?

In ​ EVERY CASE I HAVE WORKED ON FOR 25 YEARS the federal agency​ ​has​ already predetermined its decision before the public comment period ever begins. Think about it. Who prepares the “proposed decision” to be submitted to the public? The agency does. When put to you, the public, a “preferred alternative” who DECIDED on the PREFERRED alternative? The agency did. So, why submit public comment? Because Congress ordered it.

Congress had the right idea – that federal agencies should be receptive to public opinion when making decisions and rules. But agencies are run by unelected, human bureaucrats who have an agenda, and public opinion might not support their agenda.

Here’s an example. Suppose you are in charge of the school carnival for NEXT YEAR, twelve months from now. You go decide on a “Mardi Gras” theme for the carnival, and spend weeks preparing, setting up committees – one committee for a parade, another for games and prizes, another for food, and so on. But when the committees and you are all organized and ready to go, the school board decides that you have to ask what the entire district thinks. So you put the theme and its implementation plans out for public comment. Now that you have everything in place, are you really going to change the carnival theme based on comments by people who have had no part in your planning or the reasons for your decisions?  You are simply asking for public comment as a basis​ for fabricating rationalizations if the School Board questions your plans.

That same exact scenario that plays out with federal agencies planning to implement a regulation or program. Agencies have no obligation to do anything with public comments. The only real purpose of feedback is to allow the agency to prepare for any pushback on unpopular rules and regulations.The more you study public feedback for rules and regulations, the more you realize federal agencies no longer “serve us.” Instead, they serve either special interests or those with a political agenda.

HAVE YOU EVER SEEN A FEDERAL AGENCY CHANGE ITS DECISION BASED ON PUBLIC INPUT?  I HAVE NOT IN 25 YEARS OF DAILY WORK WITH FEDERAL AGENCIES AND THEIR WORK.​

In ​no case have I seen​ public comment periods alter the outcomes pursued by federal agencies.

Public comment periods are futile. They serve no purpose other than to let an angry public “get it out of their system” as agency leaders often put it.

​In fact sometimes an agency will purposely submit for public comment a conclusion that’s so outrageous, no sane person would act on it. Then when the public comments on the flaws in the conclusion, the agency can say “we’ve listened to the people” and withdraw the conclusion, and submit another that it already decided on anyhow.  ​

Many Americans ​are just waking to the tyranny of federal agencies acting through regulations, ​whether they involve​ massive land grabs, the “War on Coal”, declaring carbon dioxide a pollutant, ​eliminating diesel trucks from the highways on a flawed theory that diesel particulates pollute the air, ​and even the persecution of former smokers through the “War on Vaping.”

Yet, many still passionately participate in public comment periods, even though these efforts have proved to be fruitless.

I invite you to pick a case, find the federal notice for public comment, read the thousands of pages of public comment, then read the responses to those comments by the agency. I challenge you to find me ONE CASE in which the preferred decision announced in advance by the agency WAS CHANGED.

Anyone who suggests differently to you is new to the regulatory watch game and very naive, or is deliberately misleading you.

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