UC Irvine

Nearly all government policy that shapes our lives, from the quality of our food to the air we breathe, must undergo a procedure known in the United States as “notice and comment rulemaking.” Notice and comment rulemaking is part of administrative law, which governs government actions and aims to manifest democratic values of participation and accountability. Notice and comment rulemaking does this by allowing the public to submit comments critiquing policies before they become law. How are these comments understood by the career civil servants undertaking rulemaking? The answer can help us understand how liberal democracies do the work of being democratic. Through 19 months of ethnographic research—including interviews, archival research, surveys, and participant-observation during a ten-month volunteer internship at the U.S. Environmental Protection Agency in Washington, DC—I collected data on how comments are understood in the context of environmental policymaking, how career civil servants implement administrative law, and how expertise is considered during rulemaking.

The research engages with anthropological theories of the state, arguing that the state cannot be fully understood without recognizing that it is peopled. Key to this argument is an illustration of how civil servants think of themselves within the bureaucratic structures they work and in the context of serving the public interest. These perspectives, while founded in the rule of law, are based on cultural norms and attitudes. Through these norms and processes that implement rulemaking, we can see how the state enacts democratic practices. A focus on rulemaking in the context of environmental policy allows me to reveal the different ways in which public comments (and the expertise therein) come to matter in different ways. That they matter differently is often based on what type of expertise they convey to career civil servants. This has implications for whether notice and comment rulemaking achieves the democratic ideals it was meant to manifest.