An Investigation into Public Participation Motivated by Memories and a Connection to Home

As an incoming first-year medical student, I cannot help but think of how having seamless access to participate in our democratic system can improve health outcomes just as much as going to the doctor.

I remember seeing photos of the pink smoke billowing from the chimney of the garbage incinerator in my home state of New Jersey in 2019. It was both an unusual sight and an alarming indicator of toxic gas from burning iodine.

The incinerator is in an industrial park that is less than a 15-minute drive from the Ironbound Community, a Newark neighborhood with a significant BIPOC and immigrant community as well as more than five decades of environmental activism. The nearly 30 years of complaints against the facility showed me how pollution had disproportionate impacts and how communities wanted to share their experiences to bring about positive change. Those moments became my first experiences with environmental justice. I was already learning about pollution as a social determinant of health before I even considered medicine as a future career.

I spent the past 6 months at UCS as a science policy scholar because I wanted to join a team developing resources to support communities like the Ironbound of Newark, New Jersey.

A federal democracy is more than Capitol Hill

As stated by UCS' Dr. Jenn Jones in her recent blogpost about the new UCS Election Science Task Force, "A strong and healthy democracy reflects the will of the people." With the upcoming presidential election, we have been looking into how our democratic institutions function, including how decisions are made on environmental regulations.

Communities with lots of cumulative impacts are touched by a greater number of environmental decisions, and so residents seeking to protect their health and safety have more meetings to attend, permits to read, and more complex laws and rules to wade through.

This increased complexity is a barrier to procedural equity, so it is no surprise that cumulative impacts laws include enhanced public participation requirements. Procedural equity is defined by the Environmental Protection Agency (EPA) as "inclusive, accessible, authentic engagement and representation in decision-making processes regarding programs and policies."

Our first blog in this series discussed the fundamentals of procedural equity and White House efforts to address key barriers through Executive Order 14096 and the EPA policy on Meaningful Involvement.

More recently, UCS helped provide comments to the White House's Office of Management and Budget (OMB), including four main recommendations on how the federal government can improve public engagement and decision-making. As UCS continues to keep tabs on federal procedural equity, we are also studying how states enable-or don't enable-public participation, especially states with cumulative impacts laws.

Comparing requirements, theory, and practice

In this internship, I compared Minnesota's Pollution Control Agency (currently drafting its cumulative impacts rule, which it started in 2023) and New Jersey's Department of Environmental Protections, which approved its cumulative impacts rules in 2023. This provided an excellent opportunity to develop a snapshot analysis and establish a reference point for monitoring implementation and efficacy of the approved rules.

I first analyzed the states' administrative codes that govern the rulemaking process to answer the question: what are government agencies required to do to draft and enact new rules? Concurrently, we combed through scientific studies of public participation in decision-making and developed evidence-based classifications of good and bad practices. Finally, I examined publicly available video recordings and documents of these states' public engagement during rulemaking to see if they were meeting requirements and if they were using any science-based practices found to enhance public participation.

Enhancing public participation would mean that people most impacted by a decision could have greater influence on outcomes. Any states using such practices could be examples for other states or organizations looking to advance procedural equity.

Good practices promote public participation while bad practices discourage it. If poor practices are rooted in minimal requirements, then we know where to target solutions. Researchers use metrics like level of learning, participant feedback, and the amount of community input integrated into a final product to learn more about community education and to better encourage future participation.

The research shows that the following actions are effective in public engagement: creating sustained and trustworthy relationships, early identification of community needs, and acknowledging and eliminating the impact of power inequities. Power inequities are when certain groups can influence and benefit from policies more than others. Studies also support establishing a consistent dialogue between government and the public to ensure a regular exchange of information throughout the decision-making process, from proposal feedback to crafting feasible solutions.

Above all, we read that communities should seek out early and consistent opportunities for public engagement in government decision-making, even if those opportunities are imperfect. Avoiding public participation altogether is problematic because this eliminates community agency, such as when government agencies make decisions in isolation, then announce them, and then defend their decisions without adequately hearing from the impacted communities. Even if comments are invited within this 'decide-announce-defend' approach, diving into rulemaking together works better by allowing agencies to learn from the diverse expertise of the community.

Good and bad? Following legal requirements?

First the good news. Both agencies followed the requirements set by the administrative code. This means that changing the administrative code could change agency actions.

Watching the agency videos and perusing documents highlighted both commendable and problematic practices. The Minnesota Cumulative Impacts Conversations demonstrated a model practice by inviting experts from academia, other state governments, and NGOs. These experts educated the agency and public together on how the rulemaking process works, plainly 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 publish their answers. Those responses on the department's website promoted transparency in the rulemaking process by showing how public comments were included in the rulemaking process.

It's notable that some states don't accept both written and oral comments. Accepting both removes barriers related to language, internet access, and educational attainment, yet Minnesota is only required to accept written comments, while New Jersey accepts both.

In both states, participation practices do not apply in evaluating and approving the draft rule as the enforceable, final rule. In Minnesota, an administrative law judge is the final arbiter of last-minute edits and draft rule approval. New Jersey executive agencies are not required to publish a public notice or hold hearings for edits to the draft rule unless it meets the definition of a "substantial change."

Plain and simple, communities need better public participation practices

It is important to note that some of these good practices come from agencies acting of their own volition. Minnesota was not required to hold its cumulative impacts conversations or inform the public of rulemaking via social media, but they did. New Jersey held a series of online stakeholder meetings on rulemaking topics even though that practice is not a part of the administrative code. Executive agencies can improve public participation without being required to do so, although sometimes communities may need to advocate to be included.

An ideal process would seek many perspectives to inform a draft rule. To see how your state approaches this, check your state's department of environmental protections to see if your state follows the 'learn together' approaches in the Minnesota's Cumulative Impacts Conversations or New Jersey's transparent response to comments process in their rulemaking (English, Spanish).

Public participation can be improved in many states. It is especially crucial for overburdened communities and community organizations have spent decades advocating for these improvements. State legislatures can pass cumulative impacts laws with enhanced public participation requirements to ensure that impacted communities are heard and some barriers blocking their political power are reduced.

This quick look into state practices is a hopeful sign that procedural equity is valued in some spaces. We at the Center for Science and Democracy at UCS intend to keep looking into state and federal practices that reduce barriers and advocating for processes that enhance community participation.

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