Notice and Comment in the United States

Notice and Comment in Environmental Law

A procedure used in administrative law to allow interested parties to review proposed rules and participate in making rules and finalizing proposals. Since environmental law is a type of administrative law, the concept underlies most actions the agencies take [see administrative agency].

When the Environmental Protection Agency (EPA) wishes to create a new regulation (a process called promulgation), it is required to notify the public. The notice appears in the Federal Register, a publication that covers all official activity of federal agencies and is published almost every work day of the year. The Federal Register includes notices of proposed regulations, notices of proposed settlements of lawsuits, final regulations, and requests for information. The EPA, like other federal agencies, must record final actions, proposals, and offer the opportunity for interested parties to comment.

Comments on proposed regulations must be answered by the agency, so the final regulation generally has a lengthy preamble in which the EPA responds to the most significant comments. The comments from the public may influence the final form of the regulation. If the regulation will be radically different than the proposal, the EPA must go through the notice and comment process again before issuing the rule.

Notice and comment provisions are protections from unrestrained lawmaking by administrative agencies. Since agencies are specialized and are not elected officials, they could become isolated from voters. Public involvement increases agency accountability and prevents the agency from acting in a vacuum.

Agency activities other than rulemaking may be of concern to the public as well, and they also go through notice and comment. For example, a settlement with the EPA may cut off the rights of an interested party in a lawsuit. Therefore, consent degrees are not entered into court records immediately; they are lodged, or placed with the court until the comment period is over.

Concerning remedial actions at hazardous waste sites, Congress believes community involvement is crucial in formulating the cleanup plan and eliminating the threats posed by the site’s condition. Therefore, the EPA must keep the process open through notice and comment. Virtually all decisions, from placing the site on the National Priority List (a list of targeted hazardous waste sites) to removing it after the remediation is complete, are subject to notice and comment.

Permitting of facilities that will discharge pollutants may also affect the rights and interests of the public, an individual, or other facilities in the area. Notices of proposed permits are not placed in the Federal Register, but they are published in the local newspaper. The notice will specify where additional information can be obtained and where to submit comments or request a hearing.
Based on “Environment and the Law. A Dictionary”.