Testifying, Commenting, and Consultation

Or better known as 1) “public consultation” to help to write rules, regulations, and laws; otherwise afterwards, we can 2) testify or comment during trials to seek justice in Court.

Part of the Climate Steps Politics Pages.

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Part 1 – For rules and regulations

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 while being drafted.

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 here 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 (17th and 18th 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 classificaton, 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 interpreted the regulations with the statement that “the public must be given an opportunity to comment on draft EAs and EISs.” Anderson v. Evans, 371 F.3d 475, 487 (2004).

For those interested in providing comments during the comment period, it is important to know how to make input as effective as possible. In most cases in the U.S., comment periods last 30 days and comments should be submitted within the required window. The focus of a comment should be how the new development or other action would impact you personally, as agencies and courts are looking for potential impact on humans.

The NEPA act 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 to allow commenting on a variety of types of issues. In Australia, public commenting is common: Making a submission to a Committee inquiry – Parliament of Australia (aph.gov.au) and 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 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 Indigenous Languages Act (the Act) states “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. [5]

Similar laws exist in most other counties now. In Australia, public commenting is common: 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.) New Zealand has this site: 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, in 2019, the Canadian government issued the following statement in reference to the 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.”  Further 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 largely ineffective at the federal level, compared to the influence of industry lobbyists.[6] But first, see our page: “Talking with your Representative” for the best tips for how to connect with them land make a difference. These approaches are even more effective at a local level.

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

  • Filing a formal complaint.  (More research and information is coming on this.)
  • 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 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 opinions, 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 balanced. 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/.

Via Jessica, CS Facebook (FB) member. “From Georgia’s March for Science page: Georgia is revising its education standards for various sciences, including ecology, and they are now open for public comments. If you’re a scientist in any of these disciplines, please comment and share with your colleagues. And if there’s anything particularly problematic, let us non-ecologists (etc.) know so we can amplify your voice.” https://www.georgiastandards.org/Pages/Science-GSE-Courses-Survey.asp.

  • Consultation, cont’d.
    • Testifying and Commenting sometimes can be used in overlapping ways, both referring to formal ways that people or groups can provide input to help identify problems and to form 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).


Dr. Olson, Climate Steps Director and Green Neighbors DC Lead, is speaking on the right. Photo courtesy of Max Broad, Citizen Climate Lobby.

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 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 commenting periods becomes 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 (usually) comment period, followed by the official publishing of the regulation/law. `This final public commenting period has a disproportionate impact, at least 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, especially because of NEPA. Thus, the government has to at least listen to you. And this documentation provides later grounds for suing at a later time if you can show evidence of personal harm your comments were not addressed. Critically, public comments on a regulation have been shown to change the tone and substance of the regulation (REF; Examples of How to Write Comments). (See the end of this article for online sites that you to opportunities for public commenting 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 by installing solar panels to generate 200% of their previous electrical use instead of what was allowed before, 104% of their average use. 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 and 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. This process is time-consuming for all participants – us and the government – yet effective in cost, addressing issues, acceptance, long-term implementation, and more.

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

“I sometimes see these calls for making public comments, but I’ve never actually done it. Here’s why:

  • I feel intimidated…
  • I never know much about the issue being raised and
  • I often am not directly affected (or don’t know how I’m affected), and
  • I know it becomes public record for all posterity and I don’t want to do it “wrong.”

I suspect there are a lot of people who are in the same boat as me, so a helpful climate step for someone who *does* comment would be to put together a tutorial on 1) how to find things to comment on, 2) how to gather whatever information needed to make an effective comment, and 3) how to actually comment (with a step-by-step how-to and examples).

If this kind of tutorial were available, I bet a lot more people would actually take these steps when someone posts a commenting call-to-action, and the poster would just have to link to the pre-made tutorial. One might even already exist?”  

                                    From CS FB member Jesssica.

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 regulation/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

———

“WE WON! The Morrison Government has just conceded defeat in our court case against its assessment of Adani’s plans to suck-up billions of litres of Queensland’s water.

Just days before our court case was due to kick off, they’ve admitted they didn’t properly consider some pretty crucial material: over 2000 public submissions from people like you. And it turns out they actually lost an unknown number more. [italics mine …. Government decision makers have a fundamental obligation to carefully consider all materials, especially when assessing gigantic projects that will suck billions of litres of groundwater from this drought-stricken continent. The Morrison Government failed to apply their own laws and they’ve learned – in no uncertain terms – that ignoring the people has very real consequences. Your voices were loud and together we won.

THANK YOU to all of you who signed petitions and wrote submissions and raised your voice. If it wasn’t for you this would never have happened. Your advocacy matters.

(Australian Conservation Foundation via Alex, a CS FB member; it turns out that the petitions and comments didn’t stop it fully, it just delayed one permit; I don’t know the latest status, this was in 2019 summer.)

By Anshika S. and Annette Olson. 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. More information about Dr. Olson can ve found on the About page.

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 the NEPA Act, 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:

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Part 2 – For litigation in the courts

  1. Basic understanding

When you suffer injuries or harm because of negligence from someone legally responsible for that harm, you are eligible to claim compensation for personal injury. This includes injuries related to the environmental issues.  Personal injury lawsuits are filed against a person or entity that caused you harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases by people or an entity legally responsible for the consequences of activity (even if the intent is not criminal).[i]  

Personal injury cases provide a stage for the general public, i.e., citizens, to be compensated for the actions of people or entities who have caused them harm, and these cases are an important way to hold corporations and people at power accountable; however, it is important to note that an injury inflicted does not mean that there is an actionable claim. There must be legal grounds to hold the defendant accountable, and personal injury claims usually revolve around instances of neglect caused by the defendant who legally owes a duty to the victim and breached his duty. Note, however, that the victim may have a limited amount of time to bring forth a personal injury claim because once the statute of limitations is expired, after which a claim can be forever barred.  Although the statute of limitations can differ for each country, many countries and states have a three-year statute of limitations for personal injury claims; this may be shorter or longer depending on state laws and the identity of the defendant.[iv] For more information on how the overall court system works and how to start a court case, please see our Politics Courts page. Largely speaking, this legal pursuit acts in favor of public rule where corporations and influential people have their power limited or questioned, if and when they impose any form of harm onto the communities. This judicial pursuit plays a significant role in balancing powers and prioritizing public interest.

Within this legal arena, when you make a statement or declare a fact in court – whether on your own case or someone else’s — you become a witness, and the statement given becomes a form of evidence. In cases of personal injury, there are usually two types of witness “testimony:” lay witness testimony and expert testimony. Lay witnesses are individuals who were eyewitnesses but do not have any specialized knowledge, education, or training related to the subject of their testimony; they testify about their actual observations before, during, and after an incident where harm was inflicted.[ii] Expert witnesses are professionals who probably did not see the accident, but who possess some form of specialized knowledge, training, education, or experience about the subject matter that they can present to back up a claim.[iii] For instance, environmental damage claims often involve injuries caused by exposure to a toxic substance or hazard in your environment, such as injuries due to toxic waste, lead paint, water contamination, air pollution, or, toxic mold, and experts are needed for a clear statement about their impact.

Personal injury cases are extremely important in climate action where people have commented and testified against entities that have caused environmental damage to their community and have imposed harm onto society. [v]

Sora Shimazaki, via Pexels.com
  1. What is the difference between testimony and commenting?

Testimony is a form of evidence given by a witness who makes a solemn, factual statement or declaration, anyone providing testimony is under oath to do so honestly – and there can be criminal consequences if they do not. Unless testifying as an expert witness, opinions are usually limited to rational interpretations of what the witness has seen or heard. Even an expert witness, while he or she may draw on his or her specific industry or sector experience, will be providing testimony embedded in fact even when asked to give an opinion.[vi]

A comment, on the other hand, is a statement made by a judge or an attorney during a trial and is based on an alleged fact, but not necessarily a proven fact. If made in the presence of the jury, the judge should follow procedure and remind jurors that it is not evidence.[vii] While testimony takes the form of a factual description of the events and circumstances relating to the dispute, a comment serves to explain the logical reason behind the testimony and evidence, and is typically used to persuade the judge, jurors, and witnesses of something.[viii]

  1. Chevron v/s Ecuador (1993 – 2018)
wood landscape water mountain
Photo by ERICK ALFREDO SASI on Pexels.com

In 1993, a class-action lawsuit was filed by local residents of Nueva Loja (Ecuador) against the then Lago-Agrio oil field-well operator Texaco (later acquired by Chevron Corporation in 2001) for dumping over 30 billion gallons of toxic waste and crude oil into the Amazon rainforest in the north-east region of Ecuador. Nearly 4400 square kilometers of the forest region were contaminated, and river bodies turned black, and there was a severe spike in cancer and birth defects among local residents. The lawsuit demanded the corporation clean up the area and provide for the care of the nearly 30 thousand inhabitants who were harmed by the environmental damage; thus, the plaintiffs demanded a $27 billion compensation for the inflicted harms. The 18-year legal battle within Ecuador against Chevron finally concluded in 2011 with the Ecuador court declaring that the corporation was guilty of extensive damage and pollution to the region and ordering Chevron to pay a compensation of $18 billion (although, later, the compensation was reduced to $9.5 billion).

Chevron, however, challenged the case on two grounds. First, they claimed that the case had already been settled in a 1998 legal agreement with the Ecuadorian government. Second, they claimed that the 2011 verdict was based on fraud and corruption. The Ecuadorian government had signed a settlement agreement in 1998 that released the company from further responsibility for the disaster; however, it is important to note that (1) the corporation was released only from further responsibility, and (2) the agreement clearly noted that third-party claims (like those brought up by communities harmed by the Amazon rainforest destruction) were not included in the settlement, i.e., their claims for compensation were valid in the court. It also emerged that despite said claims of environmental restoration efforts by the corporation in the Amazon, six different tests revealed that the company tried to conceal contamination by piling dirt on top of the polluted oil pits.

Chevron then hired a team comprised of former US trade representatives to lobby the U.S G.H.W. Bush and B. Obama administrations to pressure Ecuador to make a deal via a proposed threat to cancel bilateral trade benefits for Ecuador – to no avail. If Chevron had succeeded in passing the proposal to cancel benefits for Ecuador, then an estimated 350,000 jobs would have been lost.[ix]

Chevron also hired several public relations firms and law firms to advocate on its behalf and to launch countersuits against the legal team of the Ecuadorian indigenous residents who were harmed.  Even while the residents’ case was in court, the company sued Ecuador in 2009 in the Permanent Court of Arbitration (CPA) in The Hague claiming that the country had violated the 1993 Bilateral Investment Treaty between Ecuador and the United States. On September 7, 2018, the Permanent Court of Arbitration in The Hague unanimously declared the ruling in favor of the Chevron and Texaco Petroleum Company and concluded that the judgment given in Ecuador court was fraudulent, corrupt, and “should not be recognized or enforced by the courts of other States,” as well as that the Ecuadorian government should pay the company a multi-million dollar compensation. [x][xi][xii][xiii][xiv][xv]  Still as of today, Chevron has neither paid compensation to the inhabitants of the region it damaged nor cleaned up the land, which has resulted in the oil wastes continuing to poison the rainforest. 

Even though the final decision ended in favor of Chevron, this case shows us the power of testimonies to influence laws and regulations. The global community united to fight against Chevron and to hold them accountable for causing severe damage and personal injury to the inhabitants of the Lago Agrio area. Despite the long struggle, this case invoked in people the need to hold corporations accountable for the impact they can cause citizens worldwide.[xvi]


For more examples of the power of individuals’ testimony, commenting, and other actions in courts, see our page: Examples of Climate Action Court Cases. Also see Climate Action: Courts, for more general information about how to take action in the courts.



Header photo courtesy of Max Broad (the guy featured on the left.)