The Importance of Legal Arguments in Public Comments on Environmental Issues

  • Posted on 2 August 2021
  • By Everette Phillips
As we have discussed in other articles over time, sometimes public goods are protected explicitly, and sometimes they are protected by process.  When a protected public good is threatened explicitly, it is important to understand the specific laws that protect it.  When a public good is protected by process, then it is important to understand the process and the laws that protect the process. Most government agencies exist at the interface of “private goods:”and “public goods” and laws determining protections and processes like permits.
As a review,  by “private goods”, it is meant those goods and services which can be packaged, marketed and sold so that the purchaser knows exactly what he or she is getting. For example, a piece of land, a house or boat, the right to conduct some kind of business, etc. A “public good”, however, is one which cannot be packaged, marketed or sold in that manner. It is a good or service which accrues to a group of people whether or not they pay for it, and in a way which makes it difficult for an individual to assess the cost and benefit on a personal basis. Examples of a public good are clean air, protected species, clean waterways, public view and beach access.
An explicitly protected public good could be a specific species of plant or animal listed as threatened or the boundary of a public space like a preserve or park. A protected process might be the review process for a permit or access to documents through the “Freedom of Information” laws.
Many activists claim that one has to write a letter or make a position known with a government agency to preserve a right to bring a lawsuit regarding the entity's decision regarding some conservation item of interest. However, as Environmental Attorney and Sierra Club activist Dean Wallraff once explained to me, “There is no need for a “position paper.” The error most non-lawyer activists make when commenting on public agency decisions is that they don’t understand the legal bases for a potential lawsuit. So their comments explain why they don’t like the project, but don’t explain how the agency, in approving the project, is doing something that violates the law. Those violations must be explained specifically in comments in order to preserve one’s right to sue over those violations.”
Generally, before suing a government agency over a decision with which the activist disagrees, the activist must apprise the agency of the claim during the administrative procedure leading to the decision. The exhaustion requirement applies to many different situations. It was originally created by judges in case opinions, but has become statutory — enacted by the legislature — in many of the situations we encounter as environmental activists.  The legal concept that allows one to bring a lawsuit against a government agency is called “exhaustion of administrative remedies.” 
The mistake of not referring to specific laws is one of the most common mistakes a Sierra Club activist can make when making public comments. Agencies are guided by laws, and we must be specific as to which laws we feel are not being followed or need to be followed. I have had some commissioners complain that Sierra Club members gave passionate appeals on issues that the commissioner wants to vote against, but, since the activist did not cite the laws that guide the decision of the government body, they were helpless in having to approve something that could have been avoided with the correct legal argument - an argument within the boundaries that the agency is allowed by law to consider.
One final note is that comments must include all laws that are involved. An activist cannot cite law A in their comments and “because they made an objection” preserve the right the bring a lawsuit because of a violation of law B.
Also, remember that lawsuits are expensive, and the Sierra Club has a process that must be followed before any member threatens a lawsuit in the name of the Sierra Club.  Members are also personally responsible for their actions, so never make the mistake that since you were commenting or protesting as a Sierra Club member that you might be covered by some perceived protection of the Sierra Club.  It is important to communicate with the leadership of the Conservation Committee and Political Committee before submitting comments made in the name of the Sierra Club.
If you disagree with a project, do your homework as soon as possible and reach out to find other Sierra Club members who share your concern and the first place to start is the Conservation Committee in LA or in Orange County. If others are already working on the issue, please consider joining their ranks, and, if no one is focused on the issue, consider becoming the voice of the Sierra Club through research and presenting to the Conservation Committee the details of your concern, coordinate action and get approval so the Sierra Club can make an objection with one voice. Remember to identify legal issues early and list them in your comments.  It is best for experienced members of the Sierra Club Conservation Committee to review these things with staff members of the agency in advance of a hearing or meeting. Most staff members will appreciate your efforts and help you remove errors or misunderstanding that could harm your argument. Also, if violations of the law are listed in advance, the agency may act in a way to avoid a lawsuit, which can save the Sierra Club and your team the time and costs of an actual lawsuit.

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