On his first full day in office, President Obama issued an Executive Order and several memoranda on transparency and participation in the Federal Government. This is a welcome and significant step forward for our democracy and for the environment.
The new President’s directives aim to close the revolving door between the federal government and lobbyists, instruct federal agencies to make decisions in the open and facilitate disclosure of presidential records.
“My Administration is committed to creating an unprecedented level of openness in Government,” Obama indicated. Circulated to the heads of agencies and departments, this presidential guidance will prompt them to make government information available to the public and foster public participation in the making of decisions.
Ease Access to Information: The President is instructing the heads of federal agencies to interpret the Freedom of Information Act (FOIA) with a presumption that government information should be made available to the public. The national security and privacy exemptions contained in the 1966 law have too often been used by public officials to conceal abuses of power and errors in situations where the public had a legitimate right to know. President Obama’s statement is clear: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” “In the face of doubt, openness prevails,” he added.
Limit the Scope of Claims of Executive Privilege: President Obama’s Executive Order ensures that citizens have greater access to presidential records and communications. Executive privilege can be claimed to withhold presidential documents from the public in the narrow instances where “national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch” would be impaired. However, the new Order’s exemptions from disclosure are much narrower than its predecessor’s and aim to reduce the number of instances where former presidents and their heirs can withhold information from the public.
Affirmative Disclosure of Information: The public’s right to be informed about decisions and facts that affect it should encompass a duty on the part of the government to proactively disclose and disseminate information that is relevant to affected communities. The President, in a welcome clarification informed its Administration that “the presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government.”
Renewed Emphasis on Public Participation: This will ensure that decisions best reflect the interest of the public and benefit from the greatest level of possible expertise. “Government should be participatory,” the President wrote. “Public engagement enhances the Government’s effectiveness and improves the quality of its decisions.” He added that “executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”
New Technologies: The internet’s interactive features will be used to better disseminate government information to a wide audience and increase the level of public participation in decision-making. An early sign of this trend is the new whitehouse.gov website. This interactive platform will enable the public to track, review and comment on decisions made by the head of the executive. President Obama has also signaled his intent to follow through on a campaign promise to make all non-emergency bills available for public comment before signature.
Restoring Scientific Integrity in the Federal Government: This has been a campaign promise of Obama which was echoed in recent speeches as well as in his inaugural address. The President vowed to restore science to its rightful place. This initial statement along with the memoranda of the next day suggest a will to ensure that heads of agencies respect the advice of technical and scientific experts, pursue the non-partisan prosecution of the law and interpret legal provisions in a non-partisan and even-handed manner. President Obama should follow through on these remarks and ensure that the political review and communication of findings does not undermine the integrity and independence of scientific data and analysis.
How Does this Affect the Environment?
Respect for the rule of law and public participation are cornerstones of environmental protection. In recent years, presidents of both parties have aimed to expand the scope of their authority through abuses of executive power. These unlawful practices have weakened essential environmental laws and regulations and President Obama’s first steps suggest a welcome shift in the right direction.
The past two presidents for example, left the people out of the design of their own national health care and energy plans. The Clinton Health Care task force and the Cheney Energy Task force conducted their operations behind closed doors, resisting both participation from a wide base of informed stakeholders and judicial proceedings to retrieve the information kept secret about the content and participants of the meetings.
Our scientists’ recommendations for ozone standards were overridden at the behest of the Administration supporting laxer regulations. In 2008, President Bush made a last minute intervention in the regulatory process to overturn recommendations from the Environmental Protection Agency’s expert advisory panel which had been approved by the Administrator. Later, when asked by Congress to justify this action in the course of a subpoena, the Executive Branch withheld about 25 percent of the inter-agency communications which could have shed light on this intervention.
President Obama’s directives are the necessary first steps toward establishing a transparent Federal Government and prevent abuses such as the ones presented above.
Next steps and WRI’s Efforts to Promote Government Openness
These first steps are consistent with the principles of openness embraced by WRI and recommended to the presidential candidates and, later, to the incoming administration. They are a welcome change from an era of opacity in the making of decisions. The Obama Administration should follow through on these promising words by:
Ensuring that these principles are applied in practice at the agency level. President Obama has already directed the head of the Justice Department to issue an Executive Order to further guide the interpretation of FOIA. Similar memoranda should be issued and practical steps taken in other federal agencies, including the Environmental Protection Agency, to restore transparency and openness in the Federal Government.
Applying these principles to up-coming environmental reforms. The Obama Administration’s ability to successfully address the environmental challenges ahead hinges upon its willingness to make decisions collaboratively. For example, in the course of the design and implementation of federal climate change policy or large scale green infrastructure projects, the inevitable opposition from individuals and sector groups is more likely to be resolved if the reform process is open and inclusive.
Taking into account and acting upon the comments of the public in the consultation process. Consultation alone is not enough.
Tailoring the dissemination of information to the specific needs of communities in formats and at times that enhance the usability of the information released. While efforts to harness new technologies to improve transparency are welcome, it is essential to maintain and expand low-technology outreach to communicate with the public. The poor in particular may not have the knowledge and resources to take advantage of high-tech information sharing. Mailings, radio and television announcements as well as public signage are examples of tools which, at times, are better suited to promptly deliver important information to the public and make sure that it is understood.
Click here for a more detailed analysis of how these new presidential memoranda and executive order compare to those prevailing during G.W. Bush’s presidency.
- Remi Moncel, Senior Associate
Remi Moncel is a Senior Associate in WRI’s Climate and Energy Program. He is based in California where he is also a Dean’s Fellow and Juris Doctor candidate at UC Berkeley Law School.