A study on public participation based on memories and attachment to home

As a prospective first-year medical student, I am constantly reminded that seamless access to participation in our democratic system can improve health outcomes as much as seeing a doctor.

I remember seeing photos in 2019 of the pink smoke rising from the smokestack of the waste incinerator in my home state of New Jersey. It was both an unusual sight and an alarming indication of toxic gases from the combustion of iodine.

The incinerator is located in an industrial area less than a 15-minute drive from the Ironbound Community, a Newark neighborhood with a significant BIPOC and immigrant community and more than five decades of environmental activism. The nearly 30 years of complaints against the plant showed me how disproportionate pollution is and how communities want to share their experiences to create positive change. These moments became my first experiences with environmental justice. I learned that pollution is a social determinant of health before I even considered pursuing medicine as my future career.

I spent the last six months as a science policy scientist at UCS because I wanted to join a team developing resources to support communities like the Ironbound in Newark, New Jersey.

A federal democracy is more than the Capitol

As UCS’s Dr. Jenn Jones wrote in her recent blog post about the new UCS Election Science Task Force, “A strong and healthy democracy reflects the will of the people.” With the presidential election approaching, we’ve been looking at how our democratic institutions work, including how decisions about environmental regulations are made.

Communities with numerous cumulative impacts are affected by a greater number of environmental decisions, so residents seeking to protect their health and safety must attend more meetings, read permits, and navigate more complex laws and regulations.

This increasing complexity is an obstacle to procedural fairness. Therefore, it is not surprising that cumulative impact laws include increased requirements for public participation. Procedural fairness is defined by the Environmental Protection Agency (EPA) as “inclusive, accessible, authentic participation and representation in decision-making processes regarding programs and policies.”

Our first blog in this series covered the fundamentals of procedural fairness and the White House’s efforts to remove key obstacles through Executive Order 14096 and the EPA’s Meaningful Participation Policy.

More recently, UCS has submitted comments to the White House Office of Management and Budget (OMB), including four key recommendations on how the federal government can improve public participation and decision-making. While UCS continues to monitor procedural fairness at the federal level, we are also examining how states enable—or fail to enable—public participation, particularly states with cumulative impact laws.

Requirements, theory and practice in comparison

During this internship, I compared Minnesota’s Pollution Control Agency (currently drafting its cumulative impact rule, set to take effect in 2023) with New Jersey’s Department of Environmental Protections, which will adopt its cumulative impact rule in 2023. This provided an excellent opportunity to develop a snapshot analysis and establish a reference point for monitoring the implementation and effectiveness of the approved rules.

I first analyzed state administrative regulations that govern the legislative process to answer the question: What must government agencies do to develop and implement new regulations? At the same time, we combed through scientific studies on public participation in decision-making and developed evidence-based classifications of good and bad practices. Finally, I examined publicly available video recordings and documents on these states’ public participation in lawmaking to determine whether they meet the requirements and whether they use science-based practices that encourage public participation.

Greater public participation would mean that the people most affected by a decision could have a greater influence on the outcome. States that adopt such practices could serve as a model for other states or organizations seeking to advance procedural justice.

Good practices encourage public participation, while bad practices hinder it. When bad practices are based on minimal requirements, we know where to start with solutions. Researchers use metrics such as learning levels, participant feedback, and the amount of community input incorporated into a final product to learn more about community education and better encourage future participation.

Research shows that the following actions are effective in engaging the public: building sustainable and trusting relationships, anticipating community needs early on, and identifying and addressing the effects of power inequalities. Power inequalities exist when certain groups have more influence over policies and stand to benefit more from them than others. Studies also support establishing an ongoing dialogue between government and the public to ensure regular information exchange throughout the decision-making process, from providing feedback on proposals to developing workable solutions.

Most importantly, we read that communities should seek early and consistent opportunities to involve the public in government decisions, even if those opportunities are imperfect. Avoiding public participation altogether is problematic because it excludes community input, such as when government agencies make decisions in isolation, then announce them, and then defend their decisions without adequately consulting the communities affected. Even if comments are encouraged as part of this “decide-announce-defend” approach, diving into rulemaking together works better because it allows agencies to learn from the community’s diverse expertise.

Good and evil? Comply with legal requirements?

First, the good news. Both agencies have followed the requirements of the Administrative Code. This means that a change in the Administrative Code can change the agencies’ actions.

Watching agency videos and reviewing documents highlighted both commendable and problematic practices. The Minnesota Cumulative Impacts Conversations demonstrated best practice by inviting experts from academia, other state governments, and NGOs. These experts collectively educated the agency and the public on the legislative process, clearly explaining pollution data analyses, state procedures, and personal experiences. The New Jersey Department of Environmental Protection was required to respond to written comments submitted during the comment collection phase and to post their responses. These responses on the agency’s website promoted transparency in the legislative process by demonstrating how public comments were incorporated into the legislative process.

It is notable that some states do not accept either written or oral comments. Accepting both documents removes barriers related to language, internet access, and educational attainment. However, Minnesota is only required to accept written comments, while New Jersey accepts both.

In both states, participation practices are not considered in the evaluation and approval of the draft rule as an enforceable final rule. In Minnesota An administrative law judge is the final arbiter of last-minute changes and approval of draft rules. New Jersey executive agencies are not required to issue a public notice or hold hearings for changes to draft rules unless it is a “substantial change.”

An ideal process would consider many perspectives to create a draft rule. To see how your state is approaching this, read Contact your state Department of Environmental Protection to determine whether your state follows Minnesota’s Cumulative Impacts Conversations shared learning approaches to legislation or New Jersey’s Transparent Comment Response Process (English, Spanish).