EPA Needs to Listen to the Public. Will New Public Participation Guidance Help?

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Last month, the US Environmental Protection Agency (EPA) issued updated final guidelines for how the agency plans to “meaningfully engage” the public in health and environmental protection. While this may sound abstract, it could have significant implications for how the agency engages people like you and me in decision-making processes.

This is a matter of justice, but it’s also a practical necessity: after all, we can’t create effective solutions to problems unless the people actually affected by those problems have a say in the process. And without effective tools for public participation, these decisions will be disproportionately informed by the actors with the most power, resources, and access—namely, the polluting industries themselves. We can’t afford to have self-interested industry actors as the only voice at the table.

This guidance is an update to EPA’s 2003 Public Involvement Policy, aimed at establishing clearer processes around how the agency engages with the public in regulatory and non-regulatory decisions, and “ensure that EPA makes decisions with an understanding of the interests and concerns of the interested and affected public.” This means that whether an EPA office is updating an enforceable rule like pollution emissions standards, or designing a voluntary grant program, agency staff can use the guidance to “meaningfully engage” the public in that decision-making process. My colleagues and I at the Union of Concerned Scientists submitted comments on the draft guidance earlier this year, which can be found here.

The guidance also comes on the heels of efforts by the White House’s Office of Information and Regulatory Affairs (OIRA), which recently issued a report outlining how the federal government as a whole can better incorporate public participation in rulemaking processes.

The updated “meaningful engagement” policy lays out a process by which EPA offices and staff can ensure that people who are interested in or affected by a decision can participate and influence the process. The agency lays out a “Public Participation Spectrum”, adapted from the International Association for Public Participation, with different levels of engagement:

Inform/outreach – information is provided to the public for awareness
Consult/information exchange – additional data or comments are gathered once or twice
Involve/recommendations – additional data and comments are gathered multiple times over an extended period
Collaborate/agreements – agreement or decision is made between agency and interested or affected group
Empower – opportunities for the affected or interested group to make decisions and develop and implement the project

It is up to the EPA office to decide what level of engagement is needed in a decision-making process. The guidance urges EPA staff to use its Public Participation Model in developing public engagement tools, such as evaluating the public’s interests and demographic characteristics, providing technical or financial assistance to the public, conducting outreach and activities to solicit feedback, and using public input.

So, what does this mean in practice? As an example: suppose EPA issued a “request for public comment” on a draft rule related to toxic air pollutants. Then, EPA’s Office of Air and Radiation could use the guidance to inform its efforts for soliciting public feedback on that regulation. The office may use the Public Participation Model to design a process for soliciting comments that could include public notices provided in multiple languages, a social media campaign to inform the public about the comment period, in-person and online meetings where people can submit written or oral comments, and a follow-up meeting to discuss how public input informed the final decision. The guidance itself is detailed–offering best practices on how to ensure meetings are accessible to caregivers, people with disabilities, and people who do not speak English as a first language; as well as the types of information that should be included in public notices.

The final guidance is an improvement from the earlier draft, expanding accessibility considerations and providing additional examples and best practices on specific public participation activities. Critically, the final guidance also added a process by which EPA staff can evaluate the success of the public participation activities undertaken. EPA’s guidance offers a set of self-assessment questions that the agency office or team can use to assess whether it “meaningfully engaged” the public in that decision or action. Importantly, this also includes evaluating how public input influenced the outcome of the decision. This is a critical consideration as it is not always clear how public comments, hearings, or other opportunities to engage with EPA actually influence the outcomes of such decisions.

While the guidance provides a strong foundation that EPA offices can use to inform their efforts, it is missing a critical element: enforceability. The final guidance is simply that: guidelines for agency staff, not a requirement. While the agency may not have the resources to enforce this requirement across all offices and teams, failing to require practices that ensure meaningful engagement works directly against the aims of this policy. Without accountability measures, there is no guarantee that this policy will substantively, and meaningfully, change existing public engagement practices. Furthermore, it is unclear whether internal evaluations of the public participation activities would be made available to the public.

The final policy also pared back the recommendations for evaluating the effectiveness of the policy itself, compared to the draft version. EPA states that the agency will “continue to develop instructions on how the agency will conduct the evaluation,” leaving the door open on how it plans to assess whether offices are even using the guidance at all.

For most of us, providing input on decisions made by the federal government – especially decisions that impact our everyday lives – can be obscure, confusing, and frustrating. Most of the time, we don’t know who to call, what information the agency needs, whose opinion matters most, and when the decision will be made. People affected by EPA decisions are at a disadvantage in this process compared to well-funded industry lobbies that put enormous effort into tracking and influencing decisions. Oftentimes, public interest groups rush to fill in these gaps, assisting the public in navigating the public comment process.

This updated guidance is a small step toward alleviating that burden and shifting the onus to agency decisionmakers to meet people where they are. While there are important best practices, particularly related to equitable decision-making, that are embedded throughout EPA’s updated guidance, it’s unclear whether agency offices will consistently apply them. Without requirements that hold the agency accountable for meaningfully engaging the public, we are still left wondering—did my input actually influence the outcome of this decision?  We’ll be watching closely to see how this guidance gets implemented.

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