I’ve pointed out in a previous post some of the reasons why environmental permitting processes include public comments (and public hearings).  It is important to understand a lot more about commenting on documents such as the draft Supplemental Generic Environmental Impact Statement developed by NY State for permitting drilling activities in the Marcellus Shale (the comment period is open until November 30th of this year).

The bottom line is that the only comments that will have an actual effect are those that show definitively that something was left out that ought not to have been, that there are laws and/or regulations that have not been interpreted correctly, or things that otherwise have not been properly followed.  Basically, this means creating comments by cutting and pasting from the documents or permits under scrutiny, and then cutting and pasting from relevant regulations or laws, and stating explicitly how that regulation or law was either misconstrued or otherwise not properly followed.

Digging through these documents, laws and regulations is difficult, painstaking work, and it requires questioning all assumptions.  Why do it?  (I’ll get to who should do it shortly.)  For one thing, stuff flat out does get missed, for a number of reasons.  The regulators, including their attorneys, are strapped for time.  Often, they have not had the time they would have liked to thoroughly analyze things.  They are  deadline driven.

Also, there is often an implicit assumption that information the regulators are provided is fully correct and complete, but assuming so can be fraught with difficulty.  Consulting firms are often brought in to help, and these firms may not always have sufficient  time and expertise themselves, yet they have to produce on a deadline.

Further, legal analyses provided by those being regulated can be predicated upon bad assumptions.  (There usually are no negative ramifications when that occurs:  once a problem is pointed out, the attorneys on all sides huddle, and then fix things.)  Many attorneys are recycling old documents with approaches that worked in the past simply because the accompanying details were not thoroughly scrutinized.  (Who has the time, money and expertise to go through things, line by line?)

In my experience, it is very important to get the right expertise to  evaluate such things.  In my view,  a properly trained technical person (who can do research and dig through the laws and regulations) can do a number of important things.  The regulations by and large reflect both technical and legal expertise and input.  At some stages, however, attorneys are needed.  Still, in the case of an out and out, critical omission, one need not be an attorney to explain it in a letter to all relevant parties, thus  getting the word out.  Such comments, if accurate, are ignored at the peril of those who must respond, and usually people of good will not knowingly ignore substantive comments.


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