Executive Order 14,094 (“the Order”), signed by President Biden in April, 2023, breaks ground to make regulatory decisionmaking more equitable and inclusive, continuing a theme the Biden Presidency began with Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Agencies must, of course, hear from those who are regulated, but genuinely equitable decisionmaking also requires agencies to hear and engage the concerns of affected individuals and communities, including underserved communities. This recognizes that many Americans have a distinct and substantial interest in the benefits promised by legislatively created regulatory programs, whether those include safe food supply, clean air and drinking water, safe and effective drugs, or safe workplaces. The Order accordingly contains several requirements aimed at making agency engagement with the public, including regulatory beneficiaries, more inclusive and equitable. As with all the regulatory review executive orders, however, whether Executive Order 14,094 actually results in meaningful progress towards these goals will depend on agency commitment and capacity and that of the Office of Management and Budget’s Office of Information and Regulatory Analysis (OIRA) as it guides and monitors the agencies.
The Order adds to a bipartisan executive order edifice that has, since 1981, established and defined the centralized regulatory review process conducted by OIRA. As readers of this publication know, presidents of all political stripes since at least President Reagan have relied on centralized regulatory review to accomplish presidential objectives and to check executive agency regulatory work. Under the foundational Clinton-era order, Executive Order 12,866, an executive agency may not propose or finalize a “significant” rule—whether significant on legal, policy, or economic grounds—without OIRA’s say-so. An executive agency seeking to issue an “economically significant” rule, moreover, must prepare and submit to OIRA a “regulatory impact analysis” considering costs and benefits. All this is layered upon Administrative Procedure Act (APA) Section 553’s notice and public comment requirements for agency rulemaking.
Agency rulemaking under the APA is formally open to all, but regulated entities have typically punched above their weight in that process. A few highly visible rulemakings have drawn millions of comments. But in run-of-the-mill rulemakings, well-organized, well-funded interests file the bulk of comments, and their perspectives typically receive more government attention. As a practical matter, regulated entities are overrepresented among these groups.
Meanwhile, regulated entities typically also can more easily obtain judicial review of agency decisions. As Justice Scalia observed in Lujan v. Defenders of Wildlife, regulated entities can readily establish standing to challenge agency regulation. But neighbors, consumers, workers, or others may find constitutional standing “ordinarily substantially more difficult to establish.” 504 U.S. 555, 562 (1992) (internal quotation marks omitted). Obtaining judicial review of agency inaction in court, furthermore, is far more difficult than challenging agency action, since courts will generally find inaction unreviewable. This, too, undercuts the ability of regulatory beneficiaries to hold agencies accountable in court for regulatory policy, since beneficiaries are the ones more likely to seek not just more protective agency regulation, but more agency regulation generally.
These systemic doctrinal limitations highlight the importance of agency process for a more inclusive approach to regulatory policy—and the importance of OIRA in holding agencies accountable for improving equity and inclusion. The Order directs agencies to take several steps in this direction. Section 3 of the Order, for example, instructs agencies conducting regulatory impact analysis specifically to recognize distributional impacts and equity. Essays by Professors Cecot and Livermore in this issue examine the proposed changes to Circular A-4’s guidelines on regulatory impact analysis that would help implement Section 3’s requirements.
Beyond this, Section 2 of the Order asks agencies not simply to passively receive the public “data, views, or arguments” referred to in the APA’s public comment requirements, but instead to proactively engage segments of the public. Earlier executive orders had acknowledged the importance of an “open exchange of ideas,” and the opportunity for “meaningful participation.” But Section 2(a) specifically mentions that agencies should “design” opportunities for public participation to promote equitable participation, including by “underserved communities.” Section 2(c) suggests that agencies conduct community-based outreach and use their field offices and alternative platforms for engaging the public.
All of this, particularly the references to field offices and underserved communities, suggests a welcome energy to affirmatively engage the outside-the-Beltway public. In my home state of Michigan, the residents of Flint, Michigan will soon mark the tenth anniversary of a lead-contaminated drinking water crisis that exemplifies the tragedy that can follow government failure to engage citizen concerns. Residents of southwest Detroit bear disproportionate pollution burdens from nearby steel mills, petroleum processing facilities, and a sewage treatment plant. These sources of pollution are regulated under programs that may, as a practical matter, be siloed from one another despite a substantial cumulative burden on nearby communities. These communities also bear the burdens of racism and poverty. Federal regulatory agencies need to be able to more effectively engage communities such as these to gather relevant information and understand and address community concerns.
Section 2(b) also addresses, apparently for the first time in any executive order or memorandum, the right to petition an agency for a rulemaking under Section 553(e) of the APA. The petition right is one of the very few formal mechanisms to address an agency’s regulatory inaction. The State of Massachusetts’ challenge to the Environmental Protection Agency’s 2003 denial of a petition for a so-called “endangerment” finding under the Clean Air Act for automotive greenhouse gases was what led to the Supreme Court decision in Massachusetts v. EPA. 549 U.S. 497 (2007). The Supreme Court famously held that greenhouse gases were regulable air pollutants under the Clean Air Act, eventually leading to EPA issuing automotive greenhouse gas rules. Without the petition, judicial review of the agency’s inaction would have been highly unlikely. But the petition right is a relatively weak one, largely because agencies typically have no deadline to answer such petitions, except that courts may “compel agency action … unreasonably delayed.” 5 U.S.C. § 706(1). EPA took four years to deny the endangerment petition; meanwhile current doctrine tolerates multi-year delays.
Section 2(b) seeks to raise the visibility and effectiveness of the petition right by ordering executive agencies to publicly clarify opportunities to file Section 553(e) petitions, to respond efficiently, and to maintain a log of petitions and their status that OIRA can review upon request. All this is aimed at ensuring that filed petitions do not simply fade away over time, and Section 2(b) may support regulatory beneficiaries challenging agency inaction.
So far, so good. But more may be needed for the Order’s provisions to elicit concrete improvements. With respect to participation, in 2018, the Administrative Conference of the United States issued a recommendation to agencies on public engagement that suggests targeted outreach to communities otherwise unlikely to fully engage. ACUS, Recommendation 2018-7, Public Engagement in Rulemaking, 84 Fed. Reg. 2146 (Feb. 6, 2019). The recommendation also suggests that agencies consider and address obstacles to meaningful participation, including geographic, language, and resource barriers. Earlier this year, OIRA issued similar useful suggestions—as well as examples—in a document entitled “Broadening Public Engagement in the Federal Regulatory Process.” That document appears to be posted only online, and OIRA is inviting further feedback at this time. As OIRA finalizes its views, it should take additional steps to institutionalize this guidance and monitor agency engagement. OIRA could publish the document as a Circular and request that agencies briefly explain outreach plans and efforts when they submit proposed and final rules to OIRA for review.
The Executive Order also includes a placeholder indicating the need for OIRA to develop “guidance or tools” to handle the large volumes of individual comments submitted through Regulations.gov on certain high-visibility agency rules. As OIRA addresses this issue, OIRA should recognize, critically, that these comments, as with targeted community outreach, can represent important sources of both “data,” including local information or situated knowledge, and “views,” in the words of the APA. The vaguely pejorative term “mass comments” perhaps could also be upgraded to “large-volume individual comments.”
As to the right to petition, the Executive Order usefully requires agencies to log petitions and make that log available to OIRA. But OIRA should supply more specific guidance on the time for an agency to act on a petition. If significant numbers of petitions are expected, such guidance might differentiate, for example, between a petition to revisit a recently decided issue (less pressing) and a petition to address inaction (more so). OIRA should also take a position on whether the petition right under Section 553(e) extends to guidance documents (interpretive rules and general policy statements), as courts and scholars are not in agreement on this. Nina Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397, 439-440 & notes 226-227 (2007) (summarizing disagreement and citing sources).
In short, Executive Order 14,094 gestures importantly toward engaging regulatory beneficiaries, especially underserved communities, in regulatory decisions, both by encouraging agencies to reach out to affected interests and focusing for the first time on the right to petition an agency. Ideally, OIRA and the agencies will take more steps to regularize outreach and engagement in agency rulemaking practices to achieve these critical equity and inclusion goals.
