Voices in regulations

Rick Mihelic Headshot
Updated May 2, 2024

Sincerity clouds quickly when it meets monied interests.

For example, current industry groups claim anything but electric trucks are right for trucking’s future; that BEVs are too costly; that the market isn’t buying them; that net lifecycle emissions are worse than those of current diesels; that the infrastructure can’t be built; that past progress in diesel emissions reductions is sufficient.

At the other end of the spectrum,  proponents claim anything but electric trucks are ultimately going to hurt the environment. Those non-BEVs are incapable of competing with BEVs and are poor interim choices on the road to emissions reduction.

In the background are nagging questions about who is funding all the arguments and which vested interests are trying to control the narratives.

Let’s ignore that some of these same groups protested that similar past emission improvements were too costly, ineffective and technically impossible, only to be proven wrong by time. Let’s forget that past emissions reductions advocates overestimated savings or market adoption rates, or underestimated costs, as also proven by time.

If your advocacy is entirely about defending the status quo or advocating revolutionary change, credibility can wear thin with time.

I’ve been “in the room” a few times in my career with respect to programs like SmartWay, and the 2010 and 2016 emissions rules. I’ve heard and read quite a few passionate arguments by proponents and opponents of regulations. Few people seem to go back and read the volumes of federal government docket submissions that were submitted before rules become law.

It’s kind of like very few groups seem to revisit the accuracy of market trend assessments by brokerages and financial advisors summarized in the famous quote from Paul Samuelson, “Wall Street indexes predicted nine of the last five recessions.” Yes, you read that right. It was a quip. Some of the brokerages now keep track of how often these predictions are correct. Wouldn’t it be great if we had that history on regulatory comments?

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Going down the rabbit hole of docket submissions demands some energy. There are often thousands of pages of comments officially submitted to the government on pending regulations.

The law generally requires lengthy formal public comment periods that can stretch into years before a regulation actually takes effect. The government agencies involved often times go to extremes to hold public comment sessions across the country to facilitate feedback.

Those comments do not go into a black hole, never to be seen. Regulators go to some effort to document the comments and respond to them by published Regulatory Impact Analyses (RIAs). The RIAs can be as lengthy as the regulations themselves, trying to address the comments.

Public comments sometimes spark additional research to validate and adjust regulations. Regulators sometimes issue specific responses to comments in addition to the RIAs, such as the 2011 example EPA Response to Comments for Joint Rulemaking document on the Phase 1 Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles for Joint Rulemaking. That document provides a list of commentators and the crucial “docket ID” needed to see their original unedited comments. That example lists more than 100 organizations submitting comments. Some groups made more than one submission.

Regulators have to meet a lot of documentation requirements in asking for and then addressing public comments.

This is where formal feedback from the public, industry organizations, researchers, drivers, fleets and OEMs is critical to helping fine tune regulations before they are implemented. Social media commentary, editorials and blogs are not particularly meaningful if they are not done in parallel with submitting formal, written comments to regulatory agencies. They can be like shouting at the wind.

OEMs tend to have specific staff assigned to compliance work. One of the best backgrounds for this is to have experience in both law and engineering. I’ve had the fortune to work with a few of them. While this background may not make one the “life of the party,” the perspectives both engineering and law vocations provide are invaluable for actively participating in the regulatory process.

For the curious, some examples of RIAs where public comments were addressed are:

• Phase 3 GHG RIA in 2023: Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles: Phase 3 Draft Regulatory Impact Analysis

• Phase 2 GHG RIA 2016: Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles - Phase 2 Regulatory Impact Analysis

• Phase 1 GHG RIA 2011: Final Rulemaking to Establish Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles Regulatory Impact Analysis

The formal processes for expressing positions on regulations is one of the keys to having an impact on them. The fact they are permanently documented also means they can be revisited later. That seems like a great opportunity for researchers to go back and see how prescient inputs and responses have been. That history is also a starting point for investigating the motives for the positions taken by advocates and detractors.

Wouldn’t it be great if we had a scorecard for all those submitted comments?

Where did they actually impact the final regulations? Where were they right? Where were they wrong? Where were they ultimately settled later by lawsuits? How long did it take to resolve issues?

Perhaps automation can be engaged in the future. An AI system for scoring regulatory comments and commentors seems no more challenging than analyzing past sporting statistics or the history of stock recommendations.

We might even simplify the comment process to common submissions, possibly making responses multiple choice. For opponents of regulations, for example, it could be selecting from a) Too expensive, b) Too infeasible, c) Too insufficient, d) All of the above, and for proponents, a) Very reasonable, b) Extremely effective, c) Very possible, d) All of the above.

The final choice for both opponents and proponents might be e) Disagree with the regulation and go directly to court. 

How much time and energy could streamlining regulatory commenting save?

Rick Mihelic is NACFE’s Director of Emerging Technologies. He has authored for NACFE four Guidance Reports on electric and alternative fuel medium- and heavy-duty trucks and several Confidence Reports on Determining Efficiency, Tractor and Trailer Aerodynamics, Two Truck Platooning, and authored special studies on Regional Haul, Defining Production and Intentional Pairing of tractor trailers.