Photo: theparadigmshifterBecause the political arena is often fraught with hyperbole, misinformation, and special interest pandering, facts and reason don’t count for as much as they should. Despite that, green advocates have smartly and effectively engaged in the political arena to help protect the environment and public health.
But to augment that advocacy, it is equally important for greens to engage in the regulatory process, which offers a refuge from the dysfunction of political discourse. Because of the legal structure that undergirds it, it is one of the few bastions in American government where truth can trump rhetoric.
Whenever a federal agency proposes a rule it must, by law, allow time for the public to give feedback. This is an opportunity to raise serious concerns, insert new ideas, or provide substantive support.
The legal weight behind this public comment process makes its use particularly important. Agencies must consider reasonable comments they’ve received, or risk being found arbitrary and capricious during litigation. As a result, agencies devote significant portions of final rules to discussion of issues raised by commenters.
Industry and other groups that oppose regulation often submit comments that focus on the costs of regulation. It is equally important for greens to argue that adequate attention musts be paid to the economic benefits of protecting the environment and public health. If that point of view is not put forward, it is less likely to be part of the conversation.
When rules are proposed, environmental advocates can help fill in the blanks and provide a fuller picture of its impact. This is not always an easy task — it requires significant legal, economic, and scientific expertise to counter the sophisticated arguments industry groups make. It is also a time-consuming endeavor as regulations can take years to play out.
But devoting resources in this forum pays dividends because the requisite for fact-based decisionmaking is so entrenched and because the potential gain is so great.
For example, the EPA and the National Highway Traffic Safety Administration (NHTSA) have been working together to improve fuel efficiency and reduce greenhouse gas emissions from cars. In May of last year, the agencies issued an early draft that tightens standards for vehicles that come out between 2012 and 2016 model year vehicles, but then really clamps down on emissions from model years 2017 to 2025. The rule will make a major dent in U.S. greenhouse gas emissions, improve public health, and keep a big chunk of cash in consumers’ pockets.
But when the agencies start releasing the first drafts of the rules for public comment (probably this summer) the auto industry may be quick to argue that people might not like smaller vehicles, or less horsepower. Green groups should be prepared to weigh in with their side of this story: that the environmental and economic benefits of the steeper emissions cuts outweigh any lost consumer welfare.
If all of the most powerful arguments are presented by automakers, it weakens the ability of the agency to move forward with tighter rules. It is up to environmental advocates to provide a counterweight of equally hefty information.
This rule started off strong — but sometimes proposed rules are too weak and need to be strengthened. Other times they are irredeemable and should be scrapped. But in every scenario, there is a role for environmentalists to play.
Grassroots campaigning and engaging in the daily back-and-forth of the political process are essential, but participating in the long and often tortured journey as regulations are adopted is also crucial. And while advocates must often pry their way into closed-door political negotiations, the public comments process creates an entry point for engaging in rulemaking at the most substantive level, when the best policy (not just the best connected interest group) stands a chance of coming out ahead.
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