Public engagement is a critical element in the implementation of environmental laws and policies. Different levels of government, and types of agencies, implement a variety of public engagement methods to improve environmental decision making (Akerboom and Craig 2022). In 2021, the state of Washington passed the Climate Commitment Act which required the Washington Department of Ecology to develop rules to implement a cap-and-invest program to reduce Washington’s greenhouse gas (GHG) emissions to net zero by 2050 (Ecology 2022c). This state-level agency utilizes public comment periods to allow for feedback to improve the rule development during the rulemaking process. After rulemaking announcements, stakeholder meetings, and public hearings, the public comment period for Chapter 173-446 Washington Administrative Code (WAC) was open from May 16 to July 15, 2022 (Ecology 2022c). The state agency provided an opportunity for the public to shape environmental outcomes regarding the Climate Commitment Act’s rulemaking process through the public comment process.

Public Participation Process

Public participation allows businesses, organizations, and citizens to provide comments during rulemaking. This allows for a collaborative approach to help develop a comprehensive set of rules for a new environmental law or policy. However, various obstacles can prevent the effectiveness of public comments. Public participation is a useful element to environmental rulemaking but often the effectiveness and influence of those comments is minimal for the average citizen.

One of the primary obstacles in public comments is that a respondent must be familiar with the proposed law. Reading the lengthy legal documents can be a daunting task to citizens not trained in these areas. New laws can also reference existing statutes that require even more detailed understanding of the policy landscape. For the general public, this makes the effort of providing useful comments very challenging. Ecology requests that comments include citations for the specific sections at issue and to provide comments and sources for further details and potential revision solutions, however, many submissions from individuals end up being simple statements whether they are for or against the new rules (Ecology 2022b). By this point in the process, the general public has already missed the opportunity to be part of the conversation about the law in a high level as the law was being passed, so the only actions that can be taken are more detailed in nature and not suited to a layperson. This creates an issue where the only comments that Ecology will act on are those with substantive and directly- referenced issues.

The level of understanding and amount of time required to make useful comments creates large barriers to public participation as well. The timeline where public comments are implemented in law and policy development can be confusing and useless to citizens who are not aware of the entire law and rulemaking process. During the rulemaking for another section of the Climate Commitment Act, the Department of Ecology provided a concise explanatory statement that covers their responses to all the public comments made. During this public comment period, many of the detailed comments by larger organizations still resulted in no changes to the rules even where there were some substantial issues (Ecology 2022a). The obstacles, timing, and response to public comments appears to be more of a procedural process than a substantive review process. For these reasons, the public comments made for Chapter 173-446 WAC are not likely to lead to any significant changes to the rules as was seen in the Chapter 173-441 WAC public comments process (Ecology 2022a).

Lessons Learned

Participating in the public engagement portion of policy rulemaking was an eye-opening experience. To make effective and useful public comments requires a deep understanding of the topic at hand and how rulemaking procedures work for environmental laws. The public comment period aspect of the regulatory process feels more like a check-the-box activity for agencies more than it feels like a platform for a citizen’s voice to be heard on a topic. I think there should be more formal public comment periods before a law is passed instead of only after all the important high-level decisions have been made.

While not effective for average citizens, it can be an effective mechanism for businesses and other organizations that have financial interests in the laws. A business is provided an opportunity to work within the rules to lessen the administrative and financial burdens created from the new law. This can be seen as a benefit, but it could also be a potential method for reducing the impact and effectiveness of rules if those organizations have more political sway. This can also create equity issues where well-funded and interested parties have more influence on the process than an individual.

However, filing my own individual comments was a satisfying experience. It did make me feel like at least my opinion could be heard, even if it did not change the outcomes. It also inspired me to utilize my background in energy, and my new understanding of environmental policy and law, to file more comments and help shape the rulemaking processes in my state. Like many environmental laws themselves, the public engagement process for rulemaking is not perfect and has room for improvement, but it is still a useful element to any environmental law.

References

Akerboom, Sanne, and Robin Kundis Craig. 2022. “How Law Structures Public Participation in Environmental Decision Making: A Comparative Law Approach.” Environmental Policy and Governance 32 (3): 232-246. https://doi.org/10.1002/eet.1986.

Ecology. 2022a. “Concise Explanatory Statement Chapter 173-441 WAC Reporting of Emissions of Greenhouse Gases.” Washington Department of Ecology. February. Accessed July 27, 2022. https://apps.ecology.wa.gov/publications/documents/2202002.pdf.

—. 2022b. “Rulemaking – Chapter 173-446 WAC, Climate Commitment Act Program: Public Comments.” Washington Department of Ecology. Accessed July 27, 2022. https://aq.ecology.commentinput.com/comment/extra?id=6Nx2J.

—. 2022c. “Rulemaking: Chapter 173-446 WAC.” Washington Department of Ecology. Accessed July 27, 2022. https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-446.

Salzman, James, and Barton H. Jr. Thompson. 2019. Environmental Law and Policy. 5th ed. St. Paul, MN: Foundation Press.

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Author: Logan Callen