Every proposed law raises the question: Would its benefits outweigh its costs? To answer that question, lawmakers need a way of comparing seemingly
incommensurable things like health and buying power. The most common method is to ask how much people are willing to pay for goods. This approach is called cost-benefit analysis (CBA), and it has long been the dominant method of systematic analysis for evaluating government policy. Despite CBA’s prominence, it

In Our Place in the World, Purdy laments the resort to cost-benefit analysis (CBA) as the primary functional tool in policy and decisionmaking and encourages the creation of a new way of thinking about environmental ethics. The issue with Purdy’s argument is that he characterizes CBA as the inadequate alternative left over when environmental lawyers and policymakers turned away from the questions the ethicists were pursuing early in the modern environmental movement.

Professor Purdy’s interesting article, Our Place in the World: A New Relationship for Environmental Ethics and Law, provides a nice springboard to examine his
points in more depth in the context of climate change. Professor Purdy argues that ethics and law is a two-way street, and they feed each other and interact with each other. In my experience, this is very true.

Prof. Jed Purdy makes a valuable contribution bypointing out that environmental law shapes public values, with votes in Congress and decisions by courts merely chapters in a longer story. His is a valid, interesting and important point, although not as original as his subtitle (“A New Relationship for Environmental
Ethics and Law”) lets on.

The values that orient a political community are the products of that community’s struggles and efforts at persuasion and discernment. The history of  environmental law and politics and a structured sense of the vocabulary of ethical change can guide us in this terrain.

Cynthia Farina and her colleagues provide a sensible analysis of the problems attendant increased public participation in rulemaking. The “magical thinking” they address—more public engagement in rulemaking equals better policies and regulatory outcomes—strikes at the very heart of democratic access to decisions and decision-makers. Their analysis provides a strong basis for concluding that there is some public input that is, or perhaps should be, more highly valued than other public input.

Farina et al. mostly concentrate on the value of mass comments to the agency rule writer, and seem resigned to the fact that mass comments will continue. They suggest an intriguing, multitiered system called Regulation Room that can help rule writers distinguish between comments that express preferences and comments that provide expertise. But that isn’t the whole story. In this response, I argue that public participation should both facilitate meaningful input into a rule and help shape public dialogue around the rule.

In answer to the question “What kind of participation should we value?” our response would be: “All of it.” While nudging public participation that provides substantive feedback is certainly a worthwhile effort, agencies should also continue to facilitate the “cheap and easy” participation that Farina et al. characterize as to-be-resisted and of little value. We do not have to choose: public participation is not a zero-sum game.

An underlying assumption of many open government enthusiasts is that more public participation will necessarily lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. Yet, experience thus far with technology-enabled rulemaking (e-rulemaking) has not confirmed this “if-then” causal link. This Article considers how this flawed causal reasoning
around technology has permeated efforts to increase public participation in rulemaking.

Prof. Cary Coglianese’s article—A Truly “Top Task”: Rulemaking and Its Accessibility on Agency Websites—explains the importance of the agency rulemaking
process and describes obstacles encountered by members of the public who wish to participate in that process. During the almost 40 years I have been practicing administrative law, I have participated in hundreds of agency proceedings. Over the years, agencies have improved the procedures for obtaining such information, but there is still room for improvement.