Peer Review in the Regulatory Process

For close to four decades, administrative decisionmaking in the United States has been carried out under a presumption of openness. The rulemaking provisions of the Administrative Procedure Act (APA), the Freedom of Information Act (FOIA), Federal Advisory Committee Act (FACA), the Government in the Sunshine Act, and the procedural requirements of numerous environmental and health and safety statutes all reflect an impressive consensus on one basic principle: That the legitimacy of government depends on exposing the rationale for official decisions to the fullest possible public scrutiny. The presumption of openness has survived fundamental changes in the character of regulatory decisionmaking. Administrative policies, particularly those aimed at controlling technological risks, rest on an increasingly elaborate foundation of scientific and technical information. Regulatory programs generate endless debates about experimental data, theories, and methodologies that are accessible only to highly specialized experts. Yet, even in the most complex and technical areas of risk regulation, the U.S. Congress has shown little inclination to retreat from the paradigm of open public access to the basis for agency decisions. By comparison with decisionmaking in other technologically advanced nations, the U.S. ad-