As stated previously, these posts on environmental permitting have broad applicability.  In the present instance we are beginning a deep dive into a major permitting issue, that of drilling in the Marcellus shale.  The NY state’s Department of Environmental Conservation has released a draft Supplemental Generic Environmental Impact Statement on permits for drilling there, and comments are in the offing.

One reason for this broad applicability is the fact that most of our environmental regulations operate through permitting. Some call this approach “command and control,” in the sense that the regulations command certain actions (meeting discharge limits, for example), which are controlled through a permit.

The permitting process opens things up to the public in a couple of ways. One way is through commenting on draft permits, as we have now for the Marcellus shale drilling permitting. Another is through challenges to permits after they are granted. This is called “a permit appeal.” Permit appeals come from both directions: that is, in objecting to a permit that has been granted, but also in objecting to a permit denial.

The whole permit appeal business is huge, and is driven largely by cadres of attorneys who work for all the different parties: government, industry, developers, Non-Governmental Organizations (NGOs), environmental groups, citizens, and groups of citizens.

Now, permits appeals can’t be filed willy-nilly. There must be substance to an appeal or it won’t get through the gates. In my experience, substantive comments at the permit commenting stage usually should be structured as if they were going to form part of an appeal later, which must be filed within a very strict time limit.

Thus, in the event that an important issue raised by a comment is not properly addressed by the regulators, then one has a jump on filing an appeal. Further, and very importantly, when the comment is structured in this manner (that is, with careful references and a cogent, accurate analysis), it makes it far easier for the regulators to take the appropriate action, helping negate the need later to file an appeal. All this can save a lot of money in legal fees, also.


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