Lessons to Be Learned: Public Participation and Transparency in Norm Creation within the European Union and United States

The European Union (“EU”) has become the locus of an extraordinary range of activities that the academic and professional community in the United States (“US”) associates with the field of administrative law. This range of activity is of special interest because no other regulatory regime outside the US affects American businesses and individuals as regularly and intensively as the EU, and no other regulatory regime constitutes as steady a frame of reference for comparison with American administrative law processes. The European Union is an unusual transnational regime. Unlike the US, the EU is not — though some people would like it to be — a federation, but the EU is moving in this direction. It evolved over a period of sixty-odd years from a group of six member states focused on the manufacture of coal and steel into a political and economic union of twenty-seven member states. It is a vast regime geographically, economically, and culturally. It stretches from the Baltic to the Mediterranean and from the western shores of Ireland to the borders of Turkey. The EU accounts for twenty percent of global imports and exports. Its members speak more than twenty-three languages. “[I]t is home to four out of every five Europeans.” Simply put, its creation has had and will continue to have enormous impact on the world. Established via numerous treaties, the EU is much more than an international treaty organization, but not yet a state. Like an international treaty organization, EU membership is voluntary, and sovereignty lies with the member states. Decisionmaking is mostly cooperative and based on negotiation and consent, although not completely. The EU has limited taxing authority and no military. Like a state, the EU has recognized borders, has its own system of binding law, has its own established government and financial institutions, and is recognized as such by other countries. Additionally, the EU has a directly elected, representative Parliament, unlike other international treaty organizations, such as the United Nations or World Trade Organization. Indeed, one might say that its “stateness” is increasing with time. Irrespective of whether it is an international treaty organization or a state, the EU has a powerful established and unique legal order, which can offer important comparisons regarding the creation of laws.Laws can be categorized based on their binding nature. In the EU there are two kinds of binding law: (1) directives, which require state-implementing legislation, and (2) regulations, which do not. In other words, regulations have direct effect, while directives require implementing legislation. Note that the EU uses the term “regulation” to refer to a law that requires state implementation measures, while the US uses that term to refer to a law that requires no implementation measures, which can be confusing. The EU also has non-binding law, often called soft law in US terminology; however, this category plays a minor role in the EU, unlike in the US. In the US, binding regulatory law also falls into two categories: (1) statutes, and (2) regulations. These binding laws are categorized by their implementing actor: Congress enacts statutes; agencies promulgate regulations. In the EU, the type of law is not classified by the implementing actor. Rather, laws are characterized by their self-executing nature; making comparisons challenging. The US also has a great number of soft laws, which are not technically binding. The creation of law within the EU and US differs dramatically. This article compares norm creation in the US and EU to identify lessons US administrators can learn from EU lawmakers regarding public participation and its effects on transparency. Public participation, broadly defined, includes participation by both those parties to be regulated and those to be benefitted by regulation, often the citizenry. Both types of participation enhance the political legitimacy and the exactness of ensuing norms. While parties to be regulated have an incentive to provide relevant information, these parties also have an incentive to withhold information that may hurt them by, for example, increasing costs to their particular industry. In contrast, parties who will benefit from the regulation have an incentive to correct misinformation. Hence, participation by both parties can help ensure that all relevant information reaches lawmakers, who can then formulate the best norm in a transparent process. In drafting its laws, the EU encourages public participation early in the legislative process. During this process, participants must identify themselves and their interests in the proposed legislation. This approach differs markedly from that in the US, where participation occurs much later, if at all, can be anonymous, and rarely involves the public. In the US, public participation occurs most commonly during the development of regulations via the notice and comment process. The Administrative Procedures Act delineates an involved, some would say ossified, notice and comment process designed specifically to foster public participation. At the conclusion of this process, agencies are required to respond generally to the public comments that were received, encouraging broad public participation and making agency policy choices transparent. Or, at least that is the theory. In reality, public participation and transparency could be improved. First, public participation at the statutory and soft norm level is non-existent. Increasingly, agencies are opting to proceed via soft law avenues and negotiated rulemaking, avoiding public participation and transparency altogether. Second, even at the notice and comment level, public participation may not be occurring as fully as originally envisioned. The citizenry is much less involved in notice and comment rulemaking than are large organizations — businesses, labor unions, and specialized interest groups, which have the interest and finances to keep abreast of and respond to proposed regulations. “Very few people other than professional lobbyists or lawyers employed by such organizations read the Federal Register, send comments to agencies regarding proposed rules, or challenge the legality of such rules in federal court.” Because big business and organized interest groups are the primary participators, the role of the public is minimized. In addition, unlike the EU, anonymous participation is allowed in the US, allowing some to participate without being accountable. Without accountability, there can be no transparency. Finally, in the EU, unlike the US, public participation occurs early in the norm creation process, beginning when laws are being drafted. Because accurate information is a prerequisite for informed participation, timing public participation is critical. In the US, one might question whether public participation has become irrelevant and transparency lost.