Expanding public participation in rulemaking
Expanding Public Participation in Rulemaking
What is Rulemaking?
Rulemaking is the process by which administrative agencies create regulations that have the force of law.
It is a core administrative function that affects businesses, individuals, and the public.
Rulemaking can be formal (requiring trial-like hearings) or informal (notice-and-comment).
Importance of Public Participation in Rulemaking
Public participation ensures transparency, accountability, and democratic legitimacy.
It gives stakeholders a chance to influence agency decisions.
The Administrative Procedure Act (APA) requires agencies to provide notice of proposed rules and allow interested parties to comment.
Courts have played a key role in interpreting and enforcing these participation rights, expanding them beyond the bare minimum.
Key Cases on Expanding Public Participation in Rulemaking
1. Citizens to Preserve Overton Park v. Volpe (1971)
Facts: Citizens challenged a highway construction approval, arguing the agency did not adequately consider public input.
Issue: Whether agencies must provide a meaningful opportunity for public participation.
Holding: The Court held agencies must provide a full and fair hearing when required and carefully consider public comments.
Significance: Established judicial willingness to scrutinize agency procedures, ensuring public participation is substantive, not merely formal.
2. American Mining Congress v. Mine Safety & Health Administration (1977)
Facts: The Mine Safety agency issued safety regulations without full informal rulemaking procedures.
Issue: Whether agencies must allow extensive public participation in informal rulemaking.
Holding: The court emphasized the importance of adequate notice and meaningful opportunity to comment.
Significance: Reinforced that informal rulemaking under the APA must be genuinely open to public participation.
3. Chrysler Corp. v. Brown (1979)
Facts: Challenge to an agency rule that involved limited public input.
Issue: Whether the agency’s limited disclosure and participation violated the APA.
Holding: The Court held agencies must provide adequate opportunity to comment and must consider all relevant material submitted.
Significance: Emphasized transparency and responsiveness to public input in rulemaking.
4. Public Citizen v. NRC (1989)
Facts: Public Citizen challenged the Nuclear Regulatory Commission for insufficient public participation.
Issue: Whether the NRC failed to provide sufficient notice and comment opportunities.
Holding: The Court ruled that the agency must allow meaningful public participation, especially when public safety is involved.
Significance: Highlighted that public interest and safety concerns heighten the need for extensive public participation.
5. Perez v. Mortgage Bankers Association (2015)
Facts: The Department of Labor tried to change a rule interpretation without going through notice-and-comment rulemaking.
Issue: Whether agencies must use notice-and-comment rulemaking to change interpretative rules.
Holding: The Supreme Court held that the agency was not required to use notice-and-comment for interpretive rule changes.
Significance: While limiting public participation for interpretive rules, this case reaffirmed the importance of notice-and-comment for substantive rule changes, maintaining the overall framework for public participation.
6. Long Island Care at Home, Ltd. v. Coke (2007)
Facts: Challenge regarding overtime regulations under the Fair Labor Standards Act.
Issue: Whether the Department of Labor’s informal rulemaking process met APA’s notice-and-comment requirements.
Holding: The Court upheld the agency’s informal rulemaking as compliant with APA.
Significance: Affirmed that informal rulemaking with notice-and-comment remains the primary method for public participation.
Summary Table: Expanding Public Participation Cases
| Case | Year | Issue | Holding/Principle |
|---|---|---|---|
| Overton Park v. Volpe | 1971 | Meaningful public participation | Agencies must provide full and fair hearings when required |
| American Mining Congress v. MSHA | 1977 | Adequate notice and comment | Informal rulemaking requires genuine public input |
| Chrysler Corp. v. Brown | 1979 | Transparency in public comments | Agencies must consider all relevant public input |
| Public Citizen v. NRC | 1989 | Public participation in safety matters | Heightened participation required when safety is at stake |
| Perez v. Mortgage Bankers Ass’n | 2015 | Notice-and-comment for interpretive rules | Agencies not always required to use notice-and-comment for interpretive rules |
| Long Island Care v. Coke | 2007 | Informal rulemaking process compliance | Notice-and-comment remains essential for substantive rulemaking |
Conclusion
The Supreme Court has played a critical role in expanding and enforcing public participation in rulemaking.
While the APA sets baseline procedural requirements, courts ensure agencies do not treat participation as a mere formality.
Public participation is especially emphasized in rulemaking that affects public safety, health, and fundamental rights.
However, some limits exist for interpretative rules, where notice-and-comment may not always be required.
Overall, these judicial decisions promote transparency, accountability, and democratic legitimacy in administrative governance.
RELATED Blog
0 comments