EPA publishes draft Meaningful Involvement Policy

The Periodic | By WALKER LIVINGSTON, ESQ

Nov. 16, 2023

The Environmental Protection Agency has released a draft of its Meaningful Involvement Policy, an update of a 2003 policy, which seeks to improve the interactions of the agency with stakeholders about agency actions. The policy is intended to be tailored by agency program or regional office and contains a wide swath of actions the agency can take to better engage with the public.

Environmental justice and the EPA

  • The Environmental Protection Agency (EPA) is most commonly associated with involving environmental justice concerns within its regulations, guidance, and other agency actions. The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” The agency’s environmental justice arm, the Office of Environmental Justice and External Rights focuses on providing leadership on the agency’s environmental justice priorities, including implementation of those policies across EPA headquarters and regional offices.
  • In 2003, the EPA released the agency’s Public Involvement Policy, which sought to provide for better and more meaningful public involvement in the agency’s actions. The policy states that this public involvement “promotes democracy and civic engagement, and builds public trust in government,” and that the agency should seek to provide for meaningful public involvement in all its programs. The policy also includes a focus on searching for new ways to enhance public input and ensuring that the decision-making processes are “open and accessible to all interested groups.”

The basics of the draft policy

  • On November 16, 2023, the EPA announced a draft Meaningful Engagement Policy, an update to the Public Involvement Policy for the first time in two decades. The draft policy, Achieving Health and Environmental Protection Through EPA’s Meaningful Involvement Policy, builds on the previous policy and aims to provide the agency with a series of tools to better involve the public in its program and regional decisions.
  • The agency’s major aim is to improve the acceptability, efficiency, feasibility, and sustainability of EPA decisions, a critical task when the agency faces significant litigation over its own decisions. The agency is also looking at reaffirming the agency commitment to “early and frequent involvement” with stakeholders as well ensuring that the agency makes its decisions with an “understanding of the interests and concerns of affected people and entities.”
  • The EPA explains that the policy is targeted towards “everyone in EPA providing opportunities for meaningful involvement,” including staff, interns, appointees, and more or less everyone within the agency. The agency states that the term meaningful involvement is used to refer to how the public participation process actually works and how it the process could better include a more representative public. The EPA notes that “EPA actions” refers to almost all key activities from the agency, including “proposed and final rules and permits, policy or significant guidance documents, strategic documents and strategic plans, and development of EPA initiatives or programs.”

Public participation model under the draft policy

  • The first step in the policy is to provide the basis of the interaction: identifying the specific EPA action, selecting a level of participation, and securing resources for public involvement. The agency stated that the EPA teams should proactively identify the decisions that can be influenced by public input as well as the anticipated timeline for the process. This leads to determining what level of public participation is appropriate depending on the context of the situation in addition to creating a common understanding for how that public input is expected to be used.
  • The next step in the policy aims to identify the specific groups or members of the public who may be interested in or affected by the upcoming EPA action. This includes entities that might be affected due to geographical location, such as community members, local businesses, Tribal representatives, or local government staff. Based on the severity of the potential impact of the action, the EPA should also take into account what level of public involvement should be utilized. The document notes that assessments of the potentially involved public entities should address whether a segment of that population may experience disproportionate burdens or effects from the action. As part of the step, the EPA is supposed to consider which ways it can obtain information that complies with applicable legal requirements.
  • The third step in the process implores the agency staff to consider providing technical or financial assistance to the public when issuing regulations or taking other agency action. The agency notes that the public may require substantial time commitments to properly digest agency actions and provide feedback to the agency on technical or complex elements of its work. The policy explains that the agency could, in its discretion, consider providing some form of financial support for travel or per diem for persons potentially affected by the regulation for the person to provide information or advice directly to EPA officials. The policy is quick to note that although the agency cannot fund the public directly, it can utilize mechanisms like contracts, grants, or cooperative agreements “as a vehicle to administer funds” to the public and for the benefit of eligible recipients.
  • The fourth step in the process details how the agency can better provide information and outreach for the public for agency actions. This includes providing the public with better access to accurate and understandable information to facilitate public participation in the agency decision-making process. The document notes that the agency should consider creating outreach plans for the public with clear timelines and sequenced actions on what they plan to do. These outreach plans could include materials like background information on the proposed action and area, a timetable of the proposed action or actions, summaries of technical documents, and more. Additionally, the policy details how the EPA may send notices to the public and how it can use communication mechanisms to distribute outreach materials.
  • The next step in the policy process details how the agency should conduct public consultation and participation activities within the context of the agency action. The document requests that EPA staff consider processes appropriate for the scope of the decision itself, as well as weighing the time and resources that could be spent on public interactions and participation. The policy also offers the option of using participatory science to advance public participation itself when formulating research questions or collecting data. Additionally, the step request that EPA staff anticipate accommodation needs, such as translation or interpretation services to address language-access needs or cultural considerations, as well as any internet accessibility challenges in the target geographical area.
  • The sixth step in the policy looks at methods of public participation and how the EPA should maximize the use of its existing resources to better inform public consultation and participation processes. The step looks at the options for that the agency during the decision-making process, aiming towards the EPA’s Federal Advisory Committees as the major option. The agency notes that the information exchange should allow the public to share data, ideas, and more while also allowing input from a wide range of stakeholders to better compile a knowledge base that represents the sum total of received input.
  • The final steps in the policy review how the agency should review and use input to provide feedback to the public. The policy notes that the EPA should consider information expressed by the public in how to best protect the public’s health and environment and to demonstrate in its actions that it has appropriately considered public comments. Additionally, the policy requests that OEJECR evaluate and measure the effects of the Meaningful Involvement Policy at least every five years, targeting how the effectiveness of the public participation processes and activities work out on a continuing basis.

Next steps

  • The EPA is accepting comments on the policy until January 16, 2024. Comments may be submitted via the Regulations.gov docket linked here.
  • Although the policy is specifically nonregulatory, a finalized version will likely change and increase how the EPA weighs and interacts with public participation for agency actions. The new draft represents the first major update to the policy in two decades, including all the relevant technical updates that have come in the past twenty years to better inform the public of agency actions and allow easier solicitation of public feedback. The document could lead to a more robust public participation scheme in EPA actions, meaning that stakeholders from disproportionately affected areas that may be affected by EPA actions could begin to have a heftier voice in how the EPA regulates.

To contact the author of this analysis, please email Walker Livingston.

To contact the editor of this analysis, please email Patricia Iscaro.

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