By Anshika S. and Annette Olson

Known as Public Consultation in the British Commonwealth and in European nations, and often as Public Testimony and/or Commenting in the United States (U.S.), governments around the world that have forms of free speech have processes for seeking public inputs on laws, regulations, and other forms of policy.

Climate Steps (CS) already has a section under our Politics>Courts page that outlines how to “testify and comment” – in the courts – when debating an existing policy. But this article discusses how we can deliver our input via public consultation before laws or regulations are even created and passed. Both pages were created with the great research and writing help of our intern Anna.

Public consultation is a very critical part of policymaking, as a person or organization’s comments (1) provide government employees multiple insights into the situation behind the policy being developed, (2) highlight the needs and difficulties that people, us included, are facing, (3) bring out the potential impacts some may face with a new policy, and, in turn, (4) can provide us information about the details and process behind drafting a policy. Further, our input helps determine the specificity of the language – which could save government time (i.e., “let’s try to do it right from the start!”), in addition to adding (or failing to add) some protection to the government from future liability.[1]

Consultation for drafting new policies helps policymakers effectively address issues and what people want from a regulation or law. We, as regular folks, can actually and should impact policies by providing (pushing) our input via letters and petitions (somewhat useful), testifying, commenting on regulations, answering surveys, and even participating fully in drafting committees, as described below. Helping ensure the government incorporates public consultation is an essential process to ensure participation, efficiency, transparency, and acceptance in the drafting process of laws, regulations, and public policies. 

Some History 

In the U.S., the idea of public comments was first derived from Jean Jacques Rousseau’s beliefs on constitutional democracy during the French Enlightenment (17^th and 18^th centuries) and was further elaborated upon by the founding fathers of the U.S. following the fall of the British rule in the late 1700s. It is believed that the tradition of the New England Town Hall helped in the popularization of the concept of including public opinions and comments in official proceedings, stemming from the experience of a tyrannical period of rule of the British earlier that century. [2]

Public commenting was further and successfully formalized in the U.S. via the National Environmental Protection Act (NEPA) initiated January 1, 1970. NEPA required that federal agencies and developers needing federal permit approval, if falling under the appropriate classification, create and submit first (1) environmental assessments (EAs), and then, based on the EAs, (2) environmental impact statements (EISs) to states and federal permit approval agencies for each major construction, land-forming, or other environmentally impactful project. For #1: “The agency shall involve environment al agencies, applicants, and the public, to the extent practicable, in preparing assessments required by § 1508.9(a)(1).”[3]

Despite these regulations, some agencies consider commenting optional, and instead, promote commenting under the drafting of the environmental statements.  However, the Ninth Circuit has interpreted the regulations to mean that “the public must be given an opportunity to comment on draft EAs and EISs.” Anderson v. Evans, 371 F.3d 475, 487 (2004).

In most cases in the United States, comment periods last 30 days and comments should be submitted within the required window. The focus of the comments should be how the new development would impact you personally, as agencies and courts are looking for actual potential impact.

NEPA was huge step for public input on changes to our environment– and it also provided strong standing for later court cases if developers or the government did not follow through on activities to protect the public.[4]

Similar laws exist in most other counties now. In Australia, public commenting is common: Making a submission to a Committee inquiry – Parliament of Australia (aph.gov.au); https://www.australianethical.com.au/blog/how-to-make-a-submission-to-the-climate-change-bill-inquiry/, as is a new form of citizen input – full participation in decision-making (see below.) In New Zealand, see: Make a submission – New Zealand Parliament (www.parliament.nz). In Canada, public consultation has played an important role in the integration of First Nations Groups into effective and representative policies, with recent emphasis especially due to a 2015 report by a Truth and Reconciliation Commission (TRC) that listed 94 actions.  For instance, the Government of Canada issues the following statement in reference to the 2019 Indigenous Languages Act (“the Act”) “The Government of Canada is undertaking a variety of consultation activities across Canada on the implementation of the Act ….The Government of Canada has worked with the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis National Council on the development of the consultation materials.”  Furthermore, an online consultation portal that contains a survey has been developed to solicit additional feedback. [5]

From Tracy, a CS member: “Here in the UK [United Kingdom], because the government declared a climate emergency, many local authorities have too. The local authorities are developing Climate Emergency Frameworks and have been asking for comments. I helped the local transition town group develop a 30-page response to the local authorities’ framework. I was invited to meet with a counsellor from the district authority to discuss it. He said that some of my ideas would be included in their final report (though that’s being delayed by Coronavirus.) No such luck with the county council, though they have my report.”

We are working on gathering information on protocols in other countries and welcome your feedback on the best approaches where you live.

Forms of Public Notification, Input, and Consultation 

There are actually many forms of public input and consultation, overlapping in meaning and stages and common to many countries.  The terms Testimony and Commenting, for instance sometimes are used interchangeably. But here is what we have gathered together:

• Notification by the government. A one-way form of communication of information on policy considerations and decisions by the government to the public. It is the first step when consultation is possible and can help people prepare for later testifying or commenting. It can be a formal notification to the general public or notification to select public parties and can include notice of an upcoming hearing or even the circulation of the actual proposal.

• Petitions. Petitions are another one-way form of communication, going the opposite direction from notifications – from the public to the government. They will be dealt with in another section under development [https://climatesteps.org/politics/], but they are a means to try and get public comments to representatives and public service employees in the government. They don’t always work, but sometimes magic happens.

• Letter-writing and calls.  Letter-writing and calls about specific upcoming laws, regulations, policies have been shown in the U.S. to be less effective at the federal level compared to the influence of industry lobbyists.[6] These approaches however, can be more effective at a local level where a personal connection via a shared location or other background can be made.  More about how to call and write letters to your representatives is given under https://climatesteps.org/politics/working-through-your-representatives-or-replacing-them/.  

Once upon a time, rather recently actually, a teenager in South Miami wrote a letter, which resulted in the city to require solar panels on new homes.[7] 

• Filing a formal complaint.  (This section will be coming in the future.)

• Consultation. A two-way form of communication that seeks public opinions, especially of affected and interested groups, in which there is a flow of information back and forth between the public and the government. Consultation may occur at any given stage or multiple stages of policy development:
  • Informal consultation refers to unstandardized communication between affected/interested groups and policymakers. It is used to collect information from the affected/interested groups via informal phone-calls, letters, etc. It can be hard to track and can be controversial, as when one U.S. administration only invited oil companies to help devise their energy plan and did not reveal their discussions. [8]
  • Surveys may seem like they are one-way, but in the process of a government writing a survey, there is usually information provided to the public in the document. The gathering of our opinion, in turn, is one of the most objective ways of collecting data on the desires for and potential impacts of a policy – if the survey is well constructed. Look at how the questions are written to see if the writers are looking for you to agree with them, or whether they are truly balanced. This site can help: https://zapier.com/learn/forms-surveys/writing-effective-survey/.

• Consultation cont’d.
  • Testifying and Commenting sometimes can be used in overlapping ways, but both refer to formal ways that peoples or groups can help identify problems and provide input on policy. Particular groups may be asked to provide explanations (testimony) of their role on an issue or on how they or others are/will be impacted and/or an open public session may be held to gather comments in person (or Zoom).

The impact of testifying can be impressive not only to the government officials, but to the speakers as well. Washington DC’s City Councillors held a period for testifying/commenting on a planned Clean Energy Act in 2018 that was scheduled for three hours and wound up running for seven. One city council member did not leave her seat for that entire time (pers. obs, Dr. Olson, founder of Climate Steps, pictured speaking on right in the image above.) The Act passed. But the process also had additional benefits; many of stakeholders at the session met, networked, and even became friends.

• Consultation Cont’d, again (it’s a formatting bug)
  • Commenting – as and after a law/policy/regulation is drafted, formal open comment periods become opportunities for us, the public (and experts), to evaluate and then comment on the written draft. In the U.S., the final “commenting” period is usually a formal, open 30-day comment period, followed by the official publishing of the regulation/law. `This final public commenting period has a disproportionate impact, at leasr in the U.S., because your voice enters the public record and your comments must be addressed, for or against, by the U.S. government in the final drafting of a regulation or law. Thus, the government has to at least listen to you. And this documentation provides grounds for suing at a later time if you can show evidence of personal harm because your comments were not addressed appropriately. Critically, public comments on a regulation have been shown to change the tone and substance of the regulation (REF; Examples of How to write). (See the end of this article for online sites that lead you to public commenting opportunities in the U.S.)

By writing a detailed public comment during a commenting period, one person made a huge difference in Washington, DC, with the result that the Public Service Commission will now let homeowners become basically green power suppliers (using solar to generate 200% of their previous electrical use), instead of installing solar panels just for their own use (100% of their previous electrical use) – as specified by the previous regulation. This means more lifeless rooftops can provide power, instead of having it shipped in from coal plants or even wind towers far away, with up to 10% of the electricity lost in transmission alone; http://insideenergy.org/…/lost-in-transmission-how…/) and https://pv-magazine-usa.com/2020/08/12/dc-citizen-wins-increase-in-net-metering-limit-to-200-of-past-usage/. Furthermore, local sources of energy could provide added security if there are problems with the grid.

• Participation. A process that seeks the active involvement of the public to improve the implementation of the policy being drafted and then compliance with its requirements. This could include, for example the creation of public committees and citizen assemblies to discuss and draft proposals for regulations and to make recommendations about how to incorporate other public comments. The public inclusion of affected and interested groups are especially encouraged for their input on objectives, approach, drafting, and enforcement of the policy. The process is time-consuming for us participants, but also the government – but is effective in cost, addressing issues, acceptance, long-term implementation, and more.
  • Added post-publication note: We just came across another article citizen participation, or as termed in the article: pTA – participatory technology assessment. A quote in the article from a decision-maker participating in it: “It shifted the focus of that engagement in a way that made it much more accessible for me where I could listen, and ponder things without having to be in a reactionary mode.” https://issues.org/thinking-like-citizen-participatory-technology-assessment-weller-govani-farooque/.
  • https://www.youtube.com/watch?v=lnuTXazRspw&feature=share&.  This video is a short academic discussion, very much from the side of governments, on organizing citizen assemblies in order to gain feedback and to help make decisions on climate action. It is presented primarily from a French perspective, but discusses such efforts in approximately seven European countries and Chile. But the French one was massive! However, the government in Brazil changed shortly after their citizen assembly on climate and this raises the question of what happens afterwards when countries having major governmental and policy changes?
  • This 42-page overview provides valuable information and is worth reading. https://www.uts.edu.au/sites/default/files/ACELG_Citizen_Committees_Report_.pdf.
  • This is an interesting report to Australia’s parliament about how agencies are not only listening to citizens, but incorporating them as “agents” in drafting of policy: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1112/12rp01.
  • Here is an example from New York State in the U.S.:

https://www.youtube.com/watch?v=oYCipfbrjKw&feature=youtu.be&ucbcb=1&

The Many Ways Consultation is Important

Notification, petitions, and the different types of consultation reflect a continuing gradation of dialogue that, as more diverse views are included, helps government employees collect more data for improvements and revisions of policy drafts, and if done well, critical, objective data that helps to prevent problems in the long run.  Empirical information helps make it easier for policymakers to identify areas of concerns, resources available and required, opposing perspectives and interests, and alternative solutions.

Public inputs in policy and regulation reforms also help in assessing long-term impacts, costs, and benefits. Further, public inputs for policies and regulations are necessary to ensure openness and transparency in the drafting procedure. All types of consultation help ensure public knowledge and more acceptance, but the commenting and participation options yield much deeper public support and even ownership of a policy, thus reducing future costs for implementation.

How-to’s

We’re working on it Jessica – see below!

Some Find-a-Regulation Sites:

First, here are some sites to find out what projects are open for commenting.  A good way to start.

1. For the U.S.: https://www.federalregister.gov/.
2. A great, home-made list of critical U.S. environmental regulations to keep an eye out for for commenting: https://roganslist.blogspot.com/2019/10/102119-on-mondays-roganslist-features.html
3. Search for “Commenting on Federal Agency Regulations,” which yields interesting resources, and then keep an eye out for recent requests for public commenting on subjects that affect you. And climate change affects everything for all of us.
4. “This is an incredibly useful site for tracking and commenting on proposed EPA rollbacks that will increase carbon emissions. Our local environmental group uses it routinely to keep up with and respond to the ongoing environmental assaults.” http://saveepaalums.info/Methane+rollback  (escape from the new notice, and then scroll down the page, and you’ll see an example of a call for commenting.) (via Donna)

And the state of New South Wales in Australia wrote a handy guide for citizen participation!  https://www.environment.nsw.gov.au/resources/communities/2006288-Engaging-Communities.pdf.

Again, here is an interesting report to Australia’s parliament about how agencies are not only listening to citizens, but incorporating them as “agents” in drafting of policy: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1112/12rp01.

Templates and Examples

Templates and examples for letter writing and public commenting are available – such as:

1.  via the https://publiccommentproject.org/.
2. Examples of How to write
3. https://www.regulations.gov/document?D=FS-2019-0010-0001&fbclid=IwAR0HDiCXKKCVDJ1hZ41-o0CktEnOciA-cFo4LFx_2LA0rndC_f6HIH9qDhQ

Example of testimony utilizing three key things 1) something interesting that gains their attention; 2) personal story and impact (positive or negative) of the law on the person; 3) impact of the reg/law on others – showing your concern for the many others to be affected, especially if related to the listeners’ home area; 4) the facts behind the case; and 5) return to the something interesting.

https://greenneighborsdc.files.wordpress.com/2018/10/gndc-testimony-to-the-dc-city-council-2018.docx

———

Anshika is a sophomore at Carleton University studying Global and International Studies with a specialization in Global Politics. Her main areas of interest are international security and intelligence, foreign policies, and conflict mediation and negotiations. Her interest in climate action stems from the rising importance of climate crisis in global conflicts and issues that impact people, policies, and politics.

References:

[1] https://www.darzin.com/public-consultation.

[2] https://en.wikipedia.org/wiki/Jean-Jacques_Rousseau#Effect_on_the_American_Revolution.

https://www.britannica.com/event/Enlightenment-European-history.

https://www.britannica.com/place/France/Cultural-transformation#ref465137.

[3] https://en.wikipedia.org/wiki/National_Environmental_Policy_Act#cite_note-3 (Good overview of NEPA, very similar to a NEPA textbook of mine.)

[4] Eccleston, Charles H. (2008). NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners. CRC Press.

[5] https://www.canada.ca/en/canadian-heritage/campaigns/consultation-indigenous-languages-act-implementation/discussion-guide.html

[6] https://www.cambridge.org/core/journals/perspectives-on-politics/article/testing-theories-of-american-politics-elites-interest-groups-and-average-citizens/62327F513959D0A304D4893B382B992B; https://www.vox.com/2014/4/18/5624310/martin-gilens-testing-theories-of-american-politics-explained.

[7] https://insideclimatenews.org/news/17072017/south-miami-florida-solar-roof-rules-sea-level-rise-teenager-activism?fbclid=IwAR1ValSawjRdBjxfe_AluKmYDc8fn4ifJO8A1YaGQkoekONfb1dha5Uq0Po

[8] https://www.nrdc.org/resources/cheney-energy-task-force; https://www.sfgate.com/politics/article/Enron-reps-met-6-times-with-Cheney-staff-2885242.php; https://www.sfgate.com/news/article/White-House-OKs-saving-records-2873952.php.

Additional References:

• http://www.oecd.org/mena/governance/36785341.pdf
• http://www.co.umatilla.or.us/planning/pdf/NEPA%20Presentation%20-%20Baker%20County.pdf
• https://ssir.org/articles/entry/from_petitions_to_decisions#
• http://eli-ocean.org/wp-content/blogs.dir/2/files/Written-Commenting.pdf
• http://www.teanecktoday.com/blog/teaneck/meetings/public-comment-is-not-testimony-a-primer-on-when-to-speak-at-public-meetings/
• https://www.jstor.org/stable/30000586?seq=3#metadata_info_tab_contents
• https://www.nossaman.com/newsroom-insights-nepa-rules-rewrite-public-involvement-process
• https://fas.org/sgp/crs/misc/RL33152.pdf
• https://www.everycrsreport.com/files/20110110_RL33152_69b27c980f2b1121fd078e3982ac47e9c48d7111.pdf
• https://www.epa.gov/nepa/how-citizens-can-comment-and-participate-national-environmental-policy-act-process