Don’t Skimp on the Public Participation Process

Introduction

If your operation involves risk to the environment or human health, it is not a matter of if but when, the public will weigh-in on an important permit application or request for approval through a mandated public participation process. The nature of these mandated public participation processes has matured and expanded over the last 50-plus years. In the mid-1960s environmental interest groups broke new ground with lawsuits that gave them standing to challenge permits. By the 1980s, raucous public meetings became a catalyst for the field of environmental risk communication. Most recently, advances in en masse video conferencing spurred by the COVID-19 pandemic have ushered in virtual participation, including public meetings and hearings.

Regardless of the regulatory trigger for a public participation process or the forum in which it will be conducted, your success will depend in large part on pre-established relationships and shared knowledge among those involved. In addition, to the extent that you can be flexible, inclusive, and open to opportunities of mutual benefit, the greater your potential for positive outcomes.

Your success in conducting public participation will also require you to tend to the process as much as to the content of the technical material you present. Risk communicators often focus on the content of the technical material at the expense of the communication process itself. Certainly your content must be technically correct and tailored, but if you do not effectively engage your audience, you may be wasting your time.

Evolution of Environmental Public Participation Mandates

The roots of modern-day public participation in environmental regulatory matters may be traced back to a landmark ruling in 1965 by the U.S. Second Court of Appeals. In this case, a group of citizens, the Scenic Hudson Preservation

Vineyard Wind Public Comment. Oral testimony on the Vineyard Wind project planned for the coast of Massachusetts was provided by virtual public meeting during the COVID-19 pandemic in 2020. The Vineyard Wind project comes on the heels of the proposed Cape Wind offshore wind project that was ultimately dropped in 2017.

Conference, sued the Federal Power Commission over its approval of plans for Consolidated Edison to construct a power plant on Storm King Mountain in New York. The court determined that the interest group had standing, and thus the case established a precedent for allowing public-based environmental groups to engage in legal processes (Spyke, 1999).

As the Consolidated Edison case played out in court, industries across the nation were drawing nearer to the environmental revolution. The days were numbered when plant managers touted the success of their work-horse industries in terms of spent resources—tons of this and tons of that per day. Local laws to curb pollution in heavily impacted areas, such as early particulate matter control regulation by health departments in Allegheny County (Pittsburgh) and Los Angeles County, began to grow teeth. On the federal level, major legislation such as the Clean Air Act and Clean Water Act were being drafted with built-in citizen suit provisions.

At this developing stage of the environmental movement, written opinion from the 1965 decision on the Consolidated Edison case provided a glimpse of the shortcoming that would plague early public participation mandates: transparency does not equal participation. Wrote Judge Irving R. Kaufman:

[I]f I were an environmental activist, I would not have any great feeling of satisfaction that the procedures leading to the final decision permitted or, perhaps more importantly, encouraged maximum input and participation by interested and affected groups ... I fear that public participation was far from full or effective in any sense that looks beyond the boundaries of technical openness...

Spyke, 1999

Just more than a decade following the Consolidated Edison Case came three environmental disasters that bolstered citizen's interest in having a hand in the polices that affect them: Love Canal (1978), Three-Mile Island (1979), and the Union Carbide gas tragedy in Bhopal, India (1984). These incidents helped to shape the environmental public participation and right- to-know laws that are the foundation of today's mandates. (Appendix В contains an archive of the Three-Mile Island case study that was included in the first edition of Environmental Risk Communication. The partial meltdown that occurred at Three Mile Island remains the worst nuclear accident in U.S. history.)

In the years following these incidents, federal environmental programs began rolling out regulations, policies, and guidance to help agencies and regulated entities navigate the new requirements. Table 6.1 provides a summary of key EPA regulations that provide public participation provisions.

Because the public participation (also referred to as public involvement) requirements were new, the language of many early guidance documents was sometimes disconnected from the reality on the ground. For instance, the introduction to the U.S. EPA Resource, Recovery, and Conservation Act (RCRA) Public Involvement Manual printed in September 1993 states: "Part of your responsibility to implementing any of these activities is to allow those who are interested in or affected by a decision to have the opportunity

TABLE 6.1

Examples of EPA Regulations Containing Public Participation Provisions

Source: Public Involvement Policy of the US Environmental Protection Agency, May 2003. EPA 233-B-03-002, http://www.epa.gov/policy2003/policy2003.pdf

to participate in the decision-making process." (Emphasis added.) In recognizing that public participation rarely involves the collaborative activities necessary to participate in actual decision-making, later updates to this manual, triggered by the need for earlier and more robust public involvement, did not include this language.

U.S. EPA's current universal public participation guidance more closely connects the level of public involvement with the potential for stakeholders to influence decisions or actions. The guidance makes reference to the International Association of Public Participation's Public Participation Spectrum, which lays out five levels of participation. The levels of participation range from no influence, where public stakeholders are merely being informed of a project, possibly with one or two opportunities to comment, to total influence, where public stakeholders are empowered to help make decisions.

When organizations practice "no-influence" public participation, this process is often referred to as the Decide, Announce, and Defend (DAD) approach. While today's public participation processes may be dressed up and tweaked a bit, many continue to reflect the DAD approach to engaging stakeholders. Figure 6.1, adapted from U.S. EPA's Public Participation Guide (undated), provides an overview of the spectrum of public participation. As discussed in the figure caption, the first level of involvement, which involves merely informing stakeholders, represents the majority of public involvement in permitting and approval efforts.

As shown in Figure 6.2, regulatory mandates make up only part of the factors that should come into play when determining the right level of public involvement in a project. For instance, communication plans for sites with low public interest would likely look very different from those with high public interest. Appendix C provides a guide for determining whether public interest in a facility is likely to be low, medium, or high. While the summary was prepared for RCRA-regulated facility projects, the guide should prove useful for other types of facilities.

Whether your project is off the radar or guaranteed to be an all-out battle with deeply rooted activist groups, regulatory public participation mandates should be check-the-box minimums, rather than the thrust of your communication and involvement plans.

Meet Both the Letter and Spirit of Your Public Participation Obligations

Public participation requirements for environmental approvals generally vary depending upon the potential for the project to impact human health or the environment. For instance, an administrative modification to an existing air permit may have no public comment component while applying for a permit for a waste treatment facility may involve multiple public comment periods, public hearings, radio and TV advertising, and postings near plant entrances.

FIGURE 6.1 Public Participation Spectrum. In the public participation spectrum, most permitting and approval efforts do not go far beyond informing the public of plans. (Adapted from U.S. Environmental Protection Agency Public Participation Guide, undated, https://www.epa.gov/internationalcooperation/ public-participation-guide.)

HCiUKt ь.г Public participation Drivers. Compliance with public participation regulations should serve as the mere starting point for designing your environmental public participation process. The goals and objectives of the process you design should take into account the bigger picture for your organization and facility.

Giving more weight to public participation. In an unprecedented cause for denial, the Maryland Public Service Commission, in 2006, denied an application for a certificate of public conveyance and necessity by a utility company on the grounds that the company initially had not met expectations for public participation opportunities. Historically, robust public participation had not been required for these certificates (Image by Paul Brennan from Pixabay. With permission.)

If these requirements form the whole of, rather than the bare minimum of, your public involvement effort, you are jeopardizing your chances for a good outcome; you are also jeopardizing opportunities for building relationships that are so important for long-term success.

As a hypothetical example, imagine that you have applied for an approval to perform a dye study of your internal plant drains as part of an engineering project. The aim of the dye study is to uncover any illicit legacy discharges to surface water discharges (a commendable goal). Imagine also that the receiving water for any illicit connections is a stream used by fishing and boating enthusiasts who access the water through a downstream neighboring property owned by a civic club. Because your property spans dozens of acres, the civic club, which generously allows public access and often hosts community fundraisers, is out of sight from your facility.

If, on the one hand, you are an unengaged organization looking to meet the bare minimum needs, you may have no relationship with the civic club and be unaware of the recreational use of the property You might also feel averse to advertising the dye test because you do not want to raise any unnecessary questions about the integrity of the facility. As a result, you might only pay for a tiny legal notice that can be buried in the classified section of the newspaper, rather than a more expensive display ad that people are more likely to see. Thus, you might end up performing the dye study on a day where the civic club is hosting an "anything floats" fundraiser. Since they were not aware of the dye test, they might think the worst when they see the fluorescent-tinted water heading their way. The result might be a lot of upset people and viral videos on social media. Many of those seeing the viral videos of fluorescent water likely will not see the simple explanation that would follow at some point.

If, on the other hand, you are an engaged community member aware of the club and its recreational activities, you may have talked with them before scheduling your dye test. In fact, you may not have needed to contact them, since you contributed money for the fundraiser and were thus aware of it. Even if these early connections were missed, a more expensive display ad placed in the paper likely would have caught someone's eye and have rung a bell regarding the fundraiser. Since the newspaper reader would know your plant manager from prior outreach efforts, the person might make a call to alert him or her about the event. If your relationship is more established, plant employees may even plan to volunteer or take part in the fundraising, mingling with local residents and answering casual questions about the facility. The result of this outcome would be the continued development of a relationship between the facility and the community, as well as residents who are more knowledgeable about what actually goes on at the plant and the employees who work there.

While hypothetical, these scenarios provide a good example of the differences in outcomes that can occur with an engaged versus unengaged approach to the public involvement process. When weighing the costs of the project investment in the two scenarios, small investments in long-term relationship building and the cost of a larger display ad pale in comparison to the costs of negative press and annoyed, suspicious residents.

As another example, imagine your company is tasked with connecting a resident's conventional gas well to a transmission line. The last area for which you need an easement spans a few hundred feet of unused township property that abuts a neighborhood development. You will have to get the township to agree to the line and negotiate payment for the easement. The extent of mandated public involvement is limited to the township's approval at an open public meeting. The planned line is a four-inch diameter pipe that no one will notice once it is buried. The township will be glad to pocket some extra money. Slam dunk, right?

Not so fast. If the project manager is mindful of the high visibility of the project due to its proximity to homes, and the public sensitivity to gas lines, particularly those associated with fracking (though not the case here, the public is not likely to distinguish), she would do more than fill out the paper work. She might seek out the council member familiar with that section of neighborhood and explain the project. She might also take an hour out of her schedule to meet with that council member and a few neighbors, to show them the area that will be surveyed, and explain the project and the safety measures involved. Perhaps she will present them with a simple overlay map showing other possible routes for the four-inch line that are less desirable. The map might also show other local easements, one of which happens to be for a 20-inch main gas line right behind the neighborhood. She would negotiate a fair and reasonable price for the easement. When the time comes for the township approval at its monthly meeting, she would be in attendance with the overlays. Most in attendance would already be aware of the scope of the project and would not likely have outstanding concerns.

If the project manager were not mindful of sound communication planning, she would just send out the surveyor to determine the most direct path through the park to limit the length of the easement. Curious residents would be eyeballing the surveyor from behind kitchen curtains. Some would talk to him, and would grow concerned because he said something about a new gas line. The project manager might fill out the minimum paperwork, negotiate a bare-minimum payment for right-of-way, and send a junior staff member to the public meeting to button up the approval.

The junior staff member would attend with no handouts and no images to help people visualize what he is talking about. And when people at the meeting bring up concerns about fracking and explosion hazards, he would tell them it has nothing to do with fracking. He might also ask them why they care about a four-inch line but not about the actual high-risk 20-inch gas transmission line that runs behind their properties. He might even grin when they look like deer caught in the headlights because they had no idea they bought properties near a 20-inch gas line. They will feel like chumps and likely demand that the township postpone the vote until they can learn more. And they will likely not have much good will toward the company asking for the approval.

While the facts in each of our gas-line scenarios are the same, the outcomes could be very different. If you managed the planning, relationships, and knowledge-sharing well, it is likely that the gas line would be a non-issue at the public meeting. If you did not manage these issues well, you may be faced with a crowd of people upset about what they think is a major fracking gas line planned for their backyards, and you will spend the meeting trying to dig your way out of a hole. Such an outcome could result in major delays, bad press, a host of higher costs in the form of consulting or legal fees and a higher negotiated settlement.