Effective and meaningful public engagement are “foundational principles of Federal regulatory development” and the Biden Administration has sought to remove barriers to public participation in the regulatory process.

We have written about various Biden Administration regulatory reform efforts including Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA)’s preliminary study on broadening public involvement in regulatory processes and the US Environmental Protection Agency’s (EPA) Equity Action Plan, discussed here.

In another step intended to advance public participation, OIRA released a memorandum this week guiding agencies on broadening public participation and community engagement in the regulatory process. The memorandum outlines obstacles to public engagement; why agencies should engage in “intentional early planning” for public engagement; and provides various strategies that agencies can take to support public engagement, including by underserved communities. The memorandum was developed through engagement including two public comment periods and four listening sessions and is intended to be reviewed following another listening session next year.

The memorandum builds upon authorities including Executive Order 14094, Modernizing Regulatory Review, issued in April, discussed here. EO 14094 directed agencies to:

• Promote opportunities for “equitable and meaningful participation by a range of interested or affected parties, including underserved communities”;
• Broaden “the development of regulatory agendas and plans” through proactive engagement of “interested or affected parties, including members of underserved communities,” including through requiring more direct outreach to these communities in terms of meeting requests; and
• Requiring the OMB Circular A-4, which deals with regulatory analysis, to be revised to allow for broader public input. (We recently discussed other potential changes to Circular A-4 here.)

In the memorandum, increased public engagement is tied directly to equity concerns, including by those living in underserved communities. Suggested reforms run the gamut from providing earlier notice of regulatory priorities through better interface with community groups to agencies providing clearer explanations of how public input shaped final regulation. On the last point, the memorandum notes that “[d]oing this illustrates the potential impact of public participation and helps increase the public’s trust that agencies do not ignore the public’s investments of time and resources” and instead values “their comments, personal experience, collected observation, and technical information.”

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