the EU, Germany, and the United States


EU Law Analysis: Strengthening democracy through public participation in policy-making: the EU, Germany, and the United States

Strengthening democracy through public participation in policy-making: the EU, Germany, and the United States

Susan Rose-Ackerman (Henry
R. Luce Professor of Law and Political Science, Emeritus, Professorial Lecturer
in Law, Yale University) and Lena
Riemer
(Fox Fellow at Yale University; Doctoral candidate at Freie
Universität Berlin)*
The European Union
and some of its Member States are beginning to introduce enhanced public
participation in executive regulatory processes at the same time as the United
States, long the leader in such procedures, is cutting back by making the
promulgation of rules increasingly difficult. We outline developments in the EU
and Germany to provide a contrast with the US.
Regular elections
for political representatives and referenda are the hallmarks of citizen
participation in democratic politics, but both have serious limitations. The
policies enacted by sitting governments may only weakly relate to constituents’
votes in elections. Votes in referenda may be based on misinformation, and the
options may be posed in over-simplified or vague language. These difficulties
have led critics of representative democracy to propose direct civil society
input into policy-making. Yet, that goal is difficult to operationalize in any
large polity. Constraints of time and space limit input, and many policies
require esoteric technical data and a complex balancing of facts, values, and
law.
As a result, some
argue for radical decentralization to the grassroots to give citizens direct
control over local policies and finances. In the ideal, the polity rejects
hierarchy and decides on the basis of a consensus reached in a town meeting.
Clearly, this is an unrealistic model for anything other than a small
homogeneous community. Localism fails to accommodate policies with a large
geographical extent, such as many environmental harms. Furthermore, even a
local decision reached by consensus needs to be implemented and that will
involve both a division of labor and a source of funds. Yet, the ideal of an
involved citizenry advising on policy remains an aspiration behind many
supporters of representative democracy.
Some, however,
reject that ideal. To them, a chain of legitimacy operates where citizens vote
for political parties and/or candidates. The winners take power and enact
policies supported by the elected politicians. That chain is clearer in a
parliamentary system than in the US presidential system or in the EU. In
parliamentary systems such as Germany or the UK, a coalition of political
parties forms a government and, with the nominal approval of the president or
the monarch, appoints the prime minister/chancellor and the cabinet. In the US
there is no single chain linking the government to the voters because the
president may come from a different party than one or both houses of the
legislature. The EU is also complex with the popularly elected parliament in a
relatively weak position relative to the Commission and the Council, even if
the legislature has gained increased clout in recent years.
However, even in a
parliamentary system, the policy messages sent down the chain from the voters
may be unclear and conflicting, especially in areas that are both technically
complex and of deep concern to citizens. To us, this implies that mechanical
efforts to justify controversial policies by reference to the chain of
legitimacy are inadequate. Policymakers need to make direct connections to the
citizenry on a policy-by-policy basis in all political systems. However, it is
challenging to organize a policy-making process that is both responsive to
public concerns and realistic about the difficulties of organizing
participatory procedures in large, diverse polities.
This essay
considers public input into executive branch policy-making in the EU, Germany,
and the US. For large polities, consensus is obviously impractical. Open-ended
invitations to provide input will, of necessity, feed into a
political-bureaucratic structure where citizen input is only one factor in the
final decision. Realistic public participation procedures both seek to elicit
public input and articulate how it will feed into the ultimate policy choice.
Courts may or may not be involved in reviewing the adequacy of public participation;
some processes are only prudential exercises that do not give participants or
potential participants legal rights.
We begin with the
European Union because it has been frequently criticized for lacking sufficient
public participation in policy-making. Over time, the role of the democratically
elected parliament has increased, but the Commission still must initiate
legislative proposals, and it plays a major role in the implementation of EU
law. The call for more and early participation of the public was reignited in
the aftermath of the 2008 financial and economic crisis and has grown stronger
all over Europe. A consortium of administrative law professors established the
ReNEUAL project to reform EU administrative law. One chapter of its model rules
deals with rule-making and recommends a notice and comment process similar to
the US model. However, so far, the EU has not adopted these recommendations.
In May, the
citizens of the EU will have the right to vote once again for the European
Union Parliament which represents 512 million people in 28 member states.
European voter turnout has decreased since the first European elections in
1979. Less than 50% of the eligible citizens are expected to cast votes in the
2019 elections. The reasons for this decreasing turnout are various and
multilayered, but one explanation is citizens’ disengagement from the EU
because of the lack of opportunities to participate in the political process
outside the parliamentary elections. One possible solution is to introduce public
participation at the early stage of policymaking processes. The EU seems to
have understood this linkage; EU officials acknowledge that increasing
deliberative public participation could be the key to increasing the acceptance
of EU institutions and decisions and to increasing voter turnout in elections.
The EU has recently
taken several concrete measures to offer citizens the possibility of starting a
conversation, offering feedback, making suggestions, and raising concerns via
online platforms on existing and proposed EU legislation. They can also suggest
new items for future legislative agendas. The consultation database of the
European Commission
offers an overview of all the public consultation
projects sponsored by the EU. There are currently 51 consultation projects on
EU directives in areas such as the environment, waste legislation, natural
disasters, market, business and industry public health, consumers, and many
more.
Another tool to
foster public participation is the EU’s “better regulation agenda”. The agenda
aims to design and evaluate EU policies and laws more transparently and to
incorporate the views of citizens and stakeholders into policy-making. Public
participation in all stages of the process is an essential part of the agenda.
Feedback is welcome from the “in preparation”-stage when EU rules are evaluated
or new initiatives are proposed, all the way to feedback on acts to be adopted
by the Commission as tertiary norms or “rules” in US terminology.
During the process
new and old ideas for policies and legislation are outlined, and citizens can
give feedback during a period of 4-8 weeks via the “Have your say”-portal. One
example in the early “roadmap-phase” is the process on “cross-border
enforcement of road traffic rules”. Here, participants (even anonymously) can
submit comments online that are visible to everyone. In this example, 16 public
authorities, associations, trade unions and citizens from different countries
expressed their support, disagreement and concern in English, French and
German. The Commission will next make public the final legislative proposal,
accompanied by its impact assessment report. Citizens and stakeholders then
will have another chance to submit feedback on the proposal when it goes to the
EU legislature. In this case, the assessment of the initial feedback and
another public consultation is planned for the first quarter of 2020 before the
EU Commission adopts proposed rules on cross-border enforcement.
Furthermore, the EU
is also beginning to include the public in assessing the performance of
existing EU law and to suggest changes necessary to keep laws up-to-date. The
Commission’s “Regulatory Fitness and Performance Programme” which aims at
evaluating the effectiveness and performance of current directives enhances
public participation, using an online platform. For example, the evaluation of
the Strategic Environmental Assessment Directive in summer 2018 invited
participation from any interested party, including private citizens, companies,
organizations, public authorities. Respondents could contribute to the
assessment of the effects of certain public plans and programs on the
environment (SEA Directive).
The EU consultation
platform included an online questionnaire for participants that could be
submitted in any EU official language. There were 249 respondents,
significantly more than the 16 responses in the traffic rules consultation.
Individuals submitted 111 or 45% of the total.
A report prepared
after the consultation found that 88% of the respondents considered it very important
for stakeholders and the public to be informed and consulted about the
potential environmental impacts of public plans and programs. However, there
are two problems with the report. First, 249 is a small number relative to the
EU’s population of over 500 million, even if some comments were posted by
organizations representing civil society groups. Second, feeling good about
consultation is hardly a measure of its importance. One would also like if any
of the input from the public influenced the final EU decision. Are the
suggestions taken seriously by EU officials, as the EU claims?
Commission
consultations are seldom subject to judicial review so it is difficult to check
for the impact of public participation procedures. However, the environment is
a special case because of the Aarhus Convention,
an environmental agreement of the United Nations Economic Commission for
Europe, ratified by both the EU and Germany, along with most other European
countries. Its three pillars are access to environmental information for any
citizen; public participation in administrative decisions on environmental
issues, and access to justice on environmental law matters. It does not apply
to legislative processes, and the Convention’s provisions are less stringent
for regulations with the force of law than for the individual projects or plans
and programs.  For regulations, countries
that ratify the treaty must only “strive” to promote public participation and
“should” take certain steps.  Thus, the
ECJ let
stand a Commission decision
not to allow two Dutch NGOs to participate in
Commission decisions regarding environmental matters.
However, courts in
Europe are beginning to acknowledge and uphold democratic justifications for
public participation, especially in the environmental area. In September 2018
the ECJ
sided with the NGO plaintiff
in requiring publication of Impact Assessments
(IAs) used to prepare legislative proposals. The judgment, based both on the
EU’s own open government policy and its implementation of Aarhus, explicitly
stressed the democratic value of open information and its role in stimulating
debate. The court held in favor of the NGO, in part, because the decision would
limit future Commission attempts to limit access to IAs. This decision may
signal a new willingness of the ECJ to promote democratic values, but it
remains to be seen if that perspective will extend to policy-making inside the
Commission.  At least, the ECJ has
recognized the democratic consequences of administrative practices.
In the Member
States, public participation in policy-making processes is gaining support in
the hope that it will encourage citizen acceptance of political/policy
decisions. For example, Germany has moved from one extreme to the other. In the
late 1990s, after reunification, statutes sought to speed up approval of
large-scale infrastructure projects by limiting public participation. After
massive public protests in the early 2000s, the trend reversed (Gard, Andre
“Die frühe Öffentlichkeitsbeteiligung: Die Regelung zur frühen
Öffentlichkeitsbeteiligung nach § 25 Abs. 3 VwVfG” (Nomos 2018)). Reflecting
the special status of environmental harms, recent domestic laws require public
consultations for major projects affecting the environment (see, for example
the “Öffentlichkeitsbeteiligungsgesetz” (Public Participation Act) or the
Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment
Act)). A good example is the Netzausbaubeschleunigungsgesetz
(network-expansion-acceleration-act) that mandates public consultations at
several stages in the rollout of the expansion of the electricity supply
system. The statute demands access to relevant information and public
participation from an early stage The German courts have interpreted and
generally enforced these procedural requirements in cases brought by
environmental groups (see, for example: Administrative Court Berlin
“Gigaliner”-decision of 18 April 2018).
The newest step,
taken under the second pillar of the Aarhus Convention, is the publication of
the “Leitlinien für gute Bürgerbeteiligung” (guidelines for good public
participation) published by the German Federal Ministry for the Environment in
January 2019. The guideline was developed by ministry officials, experts, and
the public. The Environmental Ministry invited ministry officials and the
public (irrespective of nationality) to provide input in several workshops  The guideline stresses the relevance of
public participation in environmental questions from the planning phase to the
final proposal, but it also makes clear that the decision rests with the
ministry. The guideline refers to past pilot-projects using public
participation that served as a basis for the new document. Successful measures
were, for example, online platforms where people could post suggestions and
comments, such as “an action-program for the protection of insects” or the
climate protection plan 2050 where “civil dialogues” were held in several
German cities and where randomly selected citizens could discuss and offer
their suggestions. Nevertheless, it remains true that the Government can issues
Rechtsverordnungen (rules with the force of law) without any required public
consultation or reason-giving. Of course, it may be politically expedient to
involve the interested public and organized civil society groups, but
consultation is not a legally required.
In contrast,
administrative law in the United States has required open-ended public
consultation in rule-making since the passage of the Administrative Procedure
Act (APA) in 1946. [USC chapter 5, sub-chapter II, 551-559; chapter 7, 701706]
The informal
rule-making provisions require notice in the Federal Register with publication
of a proposed rule, open-ended public participation, and a statement of reasons
to accompany the final rule. Thus, public participation is built into the
framework of the US law of rule-making, but the statute does not require
outreach to potential participants beyond public notice. However, the APA gives
the government an incentive to organize a credible process because those
procedures are subject to judicial review along with the requirement that the
rule be consistent with the underlying statute and not be “arbitrary and
capricious”. Large infrastructure projects are also subject to procedures that
require public input. The open-ended comment process in US rule-making sometimes
overwhelms the system with hundreds of thousands of submissions, but most are
duplicate emails from supporters or opponents. The more serious problem is the
bias toward the well-organized and the well-financed. However, as in the EU and
German cases the aim is not to produce a policy through a consensus of the
participants, but rather to provide an additional input for the regulatory
authority to consider in drafting a policy.
Probably the more
serious threat to effective public participation in executive branch rule-making
is the shift of regulatory power to the Executive Office of the President
(EOP). The Office of Information and Regulatory Affairs (OIRA) in the EOP
reviews rules before they are issued by applying cost/benefit criteria [E.O.
12866]. The Trump Administration’s executive orders stress the cost side of the
equation, and new rules must be balanced by the repeal of old ones [E.O.
1277182 Fed. Reg. 9339 (Feb. 3, 2017) (entitled “Reducing Regulation andControlling Regulatory Costs”).
These are executive orders, not statutes, but they aim to chill rule-making
activity so that processes that would require public participation are not even
initiated. Many current rule-makings repeal or modify existing rules, but they
must go through the notice and comment process providing a possibility for
opponents, at least, to place their objections on the record [Motor Vehicle
Manufacturers’ Asso. v. State Farm Mutual Automobile insurance Co., 463 U.S. 29
(1983)].
In the United
States public participation in executive rule-making has a long pedigree; hence,
it is troubling and ironic, that some politicians and commentators are
suggesting cutbacks in procedures that require public input. In contrast, the
EU, Germany and other European countries are experimenting with alternative
routes to public input that could enhance the democratic accountability of
executive policy-making. Although neither the EU nor its Member States have
legally enforceable requirements for public participation in rule-making, it
seems likely, at present, that innovations along that dimensions are more
likely there than in the US.
Photo credit: Bird
Aware Solent



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