How much effect does public comment have in the EIS?
December 9, 2017 7:26 PM   Subscribe

Is there any data that shows how often public comments submitted during the public involvement portion of an Environmental Impact Statement actually changed an alternative from one to another in the final selection?

I have always suspected that comments were taken simply because there was a federal requirement to include them, not because the agency had any responsibility or intention of listening to them when it came to whatever decision was most in line with its mission. I understand that many people who speak, comment or attend EIS or EA public meetings may have narrow agendas, or even wild ones. But for federal actions where thousands of comments are collected, categorized and summarized, there are many, very sensible and cogent arguments for alternatives. How often have they changed a federal agency's mind?
posted by CollectiveMind to Law & Government (7 answers total) 2 users marked this as a favorite
I've only worked on state level roadway projects, but we have moved highway alignments due to public comment in the EIS.
posted by hwyengr at 10:23 PM on December 9, 2017

First day of my planning program and the head of the department told us:

1. Politics a process of reaching compromise.
2. Planning is a process of muddling through.
3. Planning is a political process.

Yes, the comment process is useful and more than just box-ticking or window dressing. Impact varies from project to project.
posted by humboldt32 at 11:01 PM on December 9, 2017

I’ve specifically worked on the public comment process for EIRs in CA and yes, public comments were absolutely influential. On the projects I worked on, verbal comments at the formal EIR hearings were most influential, followed by written comments.
posted by samthemander at 12:24 AM on December 10, 2017 [1 favorite]

39 years in NEPA work for a Federal land-management agency, now retired:

Comments that raise a substantive issue that hasn't been covered in the draft can cause real re-thinking of the selected alternative, often additional mitigation. And if it would require something that's completely outside the "range of alternatives" in the DEIS (such as discovery of a new endangered species in the area, to use an example with which I am familiar), it can require a new draft. However, it's pretty rare that a comment will totally stop an otherwise-legal project.

What doesn't work, though, are non-substantive comments that merely express an opinion or a preference. "I'm mad as Hell!", "I hate your guts!", "You're awful people!" etc. are water off a duck's back to anybody who's been doing NEPA for a while. And it doesn't matter haw many there are. As we often say, it's not a voting exercise. The voting takes place every other November.

That's why e-mail floods have no effect, either, except to slow things down a bit. And with modern analysis tools, it doesn't even slow things down that much.

The only exception to the above is if it attracts the attention of a politician with the clout to do something about it. But I think it's more effective to contact your politicos directly about it.
posted by dono at 7:50 AM on December 10, 2017 [2 favorites]

Let me try again, CM, because I see I completely missed the point of your question in my pre-coffee fog this morning. You were asking for hard data.

I doubt if any agency collects this data. I know mine didn't. It would be very hard to quantify. Based on my own experience, my extremely unscientific estimates would be:

Do you mean by "changes":

Minor text changes, errata, clarifications? Happens all the time - 99.5%

Addition of mitigating measures or minor modification of alternatives? Or project proponent consent to modification? Not so much, maybe 60 - 70%

Complete re-draft and re-issuance of the DEIS? Rare - maybe 5%

Outright rejection of the Proposed Action? Almost never - < 1%

The EPA does rank DEIS's as Acceptable, Acceptable With Modification, and Unacceptable, and probably collects this data. That's the closest I can come to what you're looking for.
posted by dono at 2:42 PM on December 10, 2017 [1 favorite]

I have always suspected that comments were taken simply because there was a federal requirement to include them, not because the agency had any responsibility or intention of listening to them when it came to whatever decision was most in line with its mission.

Yes and no. Agencies are obliged to read and respond to comments; there are enormous databases for tracking public comments and sorting/compiling them. Where the comments point out either a new alternative or impacts that were not addressed in the draft report, those comments will get special attention. The agency could decide the alternatives or impacts are either incorrect or out of scope, and would say so in their response.

However if the new alternative or issue is reasonable, practicable, and based on commonly-accepted science, the agency is much more likely to react by updating the analysis in the EIS. If a regulating agency also identifies the issue as a concern, that's your best bet, because the lead agency for a federal project also needs the Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers, and possibly other agencies (local coastal authority, regional water quality board, etc etc) to review and approve the project. Any major federal project requires a lot of permits from other federal or state agencies, and failure to obtain any one of them could tank the project.

I have certainly worked on multiple projects that stopped at the draft phase because of unexpected or unresolvable environmental problems. Most of those problems involved being able to get the permits for the project because the regulators didn't like the project, but regulators are also able to read the room: if the entire local environmental community rises up against a project, the regulators are going to be examining the project and its impacts very carefully.

Remember, the agency is required to make a reasonable decision based on what's in the administrative record, and the decision cannot be arbitrary or capricious. Failure to include analysis of a reasonable new alternative could be seen as arbitrary and thus could put the project at risk if challenged.

I don't know if anyone keeps records of this sort of thing, but the Council on Environmental Quality in the past did some big-picture studies on NEPA compliance within the federal government. Additionally, the Dept of Energy has a comprehensive set of NEPA data on their website, and BLM and Forest Service both maintain a lot of information about ongoing NEPA projects.
posted by suelac at 5:29 PM on December 10, 2017

I am in agreement with all suelac has said above, though I do suspect we are approaching the issue from somewhat different angles.

I like her description of "reasonable, practicable, and based on commonly-accepted science" - this is much better than my jargony "substantive comment" - and we would be more likely to react. In fact, we could not avoid reacting, or risk embarrassment on appeal or in court.

And her point that a major project often involves permits from many agencies other than the Lead Agency is a good one - other agencies concerns are a huge factor in the process. I spent a lot of my career in consultation with my colleagues in other Federal and state agencies.

> Failure to include analysis of a reasonable new alternative could be seen as arbitrary
- Yes it could - if the new alternative is outside the range of alternatives considered in the DEIS. If it is, back to the ol' drawing board!
posted by dono at 7:09 PM on December 10, 2017

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