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Silencing Public Dissension | Public Comment Periods are No Guarantee of Coordination

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By Fred Kelly Grant esq.

In an effort to allow the public a cathartic release, many federal agencies have a mandatory comment period before they implement new rules and regulations.

Why do I say it is a cathartic release?

In ​ EVERY CASE I HAVE WORKED ON FOR 25 YEARS the federal agency​ ​has​ already predetermined its decision before the public comment period ever begins. Think about it. Who prepares the “proposed decision” to be submitted to the public? The agency does. When put to you, the public, a “preferred alternative” who DECIDED on the PREFERRED alternative? The agency did. So, why submit public comment? Because Congress ordered it.

Congress had the right idea – that federal agencies should be receptive to public opinion when making decisions and rules. But agencies are run by unelected, human bureaucrats who have an agenda, and public opinion might not support their agenda.

Here’s an example. Suppose you are in charge of the school carnival for NEXT YEAR, twelve months from now. You go decide on a “Mardi Gras” theme for the carnival, and spend weeks preparing, setting up committees – one committee for a parade, another for games and prizes, another for food, and so on. But when the committees and you are all organized and ready to go, the school board decides that you have to ask what the entire district thinks. So you put the theme and its implementation plans out for public comment. Now that you have everything in place, are you really going to change the carnival theme based on comments by people who have had no part in your planning or the reasons for your decisions?  You are simply asking for public comment as a basis​ for fabricating rationalizations if the School Board questions your plans.

That same exact scenario that plays out with federal agencies planning to implement a regulation or program. Agencies have no obligation to do anything with public comments. The only real purpose of feedback is to allow the agency to prepare for any pushback on unpopular rules and regulations.The more you study public feedback for rules and regulations, the more you realize federal agencies no longer “serve us.” Instead, they serve either special interests or those with a political agenda.

HAVE YOU EVER SEEN A FEDERAL AGENCY CHANGE ITS DECISION BASED ON PUBLIC INPUT?  I HAVE NOT IN 25 YEARS OF DAILY WORK WITH FEDERAL AGENCIES AND THEIR WORK.​

In ​no case have I seen​ public comment periods alter the outcomes pursued by federal agencies.

Public comment periods are futile. They serve no purpose other than to let an angry public “get it out of their system” as agency leaders often put it.

​In fact sometimes an agency will purposely submit for public comment a conclusion that’s so outrageous, no sane person would act on it. Then when the public comments on the flaws in the conclusion, the agency can say “we’ve listened to the people” and withdraw the conclusion, and submit another that it already decided on anyhow.  ​

Many Americans ​are just waking to the tyranny of federal agencies acting through regulations, ​whether they involve​ massive land grabs, the “War on Coal”, declaring carbon dioxide a pollutant, ​eliminating diesel trucks from the highways on a flawed theory that diesel particulates pollute the air, ​and even the persecution of former smokers through the “War on Vaping.”

Yet, many still passionately participate in public comment periods, even though these efforts have proved to be fruitless.

I invite you to pick a case, find the federal notice for public comment, read the thousands of pages of public comment, then read the responses to those comments by the agency. I challenge you to find me ONE CASE in which the preferred decision announced in advance by the agency WAS CHANGED.

Anyone who suggests differently to you is new to the regulatory watch game and very naive, or is deliberately misleading you.

​HOWEVER, CONGRESS HAS PROVIDED A PROCESS WHICH CANNOT BE IGNORED OR  MANIPULATED BY AGENCIES. IT IS CALLED COORDINATION.​

The legal premise of “coordination”​ does not rest on “public comment”. It rests on a position taken by A LOCAL GOVERNMENT in support of its citizens, and it requires the federal agency to act consistently with the position taken by the LOCAL GOVERNMENT.

The process​ puts local communities in an equal bargaining position with federal agencies. Coordination does not allow federal agencies to simply disregard ​the interests of the public as expressed through its local government. Through coordination, federal agencies can be – and have repeatedly been – forced to vacate a predetermined regulatory outcome.

I have seen this process, and been part of the process more than 50 times where this has happened. Most notable were the federal agency retreat from the NAFTA superhighway in Texas, the re-routing of a railroad  purchased by Warren Buffet, the closing of roads in all the northern forests of California, and the destruction of dams on the Klamath River in California.

In all these cases government agencies IGNORED PUBLIC COMMENT that was opposed to the “PREFERRED” action already decided on by the agencies. However, the local governments in each of those cases used COORDINATION to force federal agencies to vacate predetermined outcomes and restored power to the people. Coordination equates to greater freedom and helps to instill public confidence in our federal government.

To help understand the difference between the coordination process and public comment, let’s go back to the school carnival.

If the school district is divided into sub-districts, and has a policy that says “the Carnival Committee must reach consistency with sub-district policies, and the public convinces leaders of a sub-district that the Carnival Committee’s plans are flawed – maybe a Mardi Gras parade would interfere with a sub district school calendar, or parking lot flow. If the public can convince the subdistrict of such a legitimate inconsistency, the Committee then has to sit down with that sub-district and other sub-districts and reach consistency and agreement. The process defeats the predetermined (Mardi Gras) decision by the Committee. In other words, the school carnival committee has to go back to the drawing board.

THE COORDINATION PROCESS IS A FUNDAMENTAL TOOL TO ASSURE THAT THE SYSTEM OF FEDERALISM IS FOLLOWED.

​Federalism, which our national Founders chose as the basis for our constitutional government, rests on a balance of powers between the national government (the President and the Congress), the states (the Governors and the state legislatures), and local government (the towns, cities and counties). Coordination is the process by which the public – indeed, you, the citizen – can have your direct say through your local government.

Good public policy should always be arrived at through the use of the scientific method. A good scientist does not bias ​himself with a predetermined outcome of an experiment and then build data around ​that bias to rationalize the outcome ​he wants.

A good scientist puts bias aside and lets ​observations and data drive the conclusions.

This is not even happening with science in America. Science has been replaced by advocacy science, which is not science at all. Where scientists used to cherish their credibility through bending over backward to ​avoid the influence of bias, the majority of scientists today either work for the federal government​ or under a government-funded grant, and are thus biased to reflect the will of whatever administration is in power.

​Failing to reflect that will in their findings means grants are not renewed, and the institutions they represent are hurt financially. There is heavy monetary reason for them to find the way to rationalize the desired decision.

Why is advocacy science bad?

Think of a King decreeing the world is flat and his scientific council bringing to the table data that justifies the King’s conclusions. No one would be any the wiser that the world is not only round but it is spherical. We only advance as a society when we allow the truth to set us free from manmade constructs like the impediments imposed by special interests.

In the vaping world, it is hard for the public to buy, when the scientific data and observations are reviewed, that vaping is detrimental to public health. Common sense would dictate that in the name of public health that policy be that the world’s best smoking cessation tool and should be nurtured and embraced by public health officials.

Clearly the FDA has a bias toward vaping that does not work in the best interests of the public.

This is why pursuing coordination is vital to the health and longevity of the vaping industry.

It is clearly evident that FDA leaders have prioritized special interest agendas ahead of public health. If the FDA were a legal prosecutor and public health were put on trial, ethically, the FDA would have to disclose its conflict of interest with big Pharma and recuse itself from the trial, while asking for an unbiased special prosecutor to be appointed. Unfortunately, very few federal agencies have the temerity to act ethically and responsibly

We must always remember that the “Law” is a minimum standard ​of what we are required to do. Ethics imposes a higher standard and is based upon what we ought to do.

Federal agencies only operate within the confines of the law and have no equivocations about acting unethically. Just because something is legal does not mean it is ethical. ​So often the question posed by government officials to their counsel is “CAN we do this?” without any concern about “SHOULD we do this?”

I have been there, spending many years as counsel to federal agencies, two Governors, county governing boards, zoning boards, as well as city and town councils. So many agency leaders have ​either forgotten to ask the “SHOULD” question or know that it would interfere with the path of action they have already set upon.

Coordination is a tool that holds federal agencies accountable and helps agency leaders remember that their role is first and foremost to serve us.

Coordination helps the public have a say through local officials to whom all of us have ready access. You see your council person in the supermarket line, or at lunch in the diner, or at the service station, or in church, or at the school carnival. He or she is responsive to you because your vote is far more important percentage wise than it is to the Congressman or Senator.  When those local officials voice your position, they push agency leaders to act in a more ethical manner or suffer the consequences of their actions.

  • Coordination helps society to gain value from diverse opinions and build consensus rather than allow federal agencies to act within a vacuum.
  • Coordination helps federal agency leaders honor the public’s expectations rather than special interest expectations.
  • Coordination helps promote equality and recourse for all people to be treated equitably.
  • Coordination supports the public’s right to know and promotes a robust public involvement in policy decision making.

This is why all Americans should not only support the use of coordination,  BUT INSIST ON IT.

If you advocate building increased confidence in the decision making of federal agencies consistent with ethical behavior that benefits the public, if you specifically advocate freedom of choice for those that would rather vape and protect their health and lives, then I hope you will join us in our efforts to promote coordination.

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