Administrative Law is the cornerstone of effective environmental activism. Many may question that statement. After all, isn’t it more effective and empowering to stage a large protest? Let’s look at the recent protest of the Dakota pipeline. The protest captured the imagination of the nation and the world, but what happened? In the end the protests and public marches did not derail the administrative agency’s review of the scientific issues posed by the developer’s application for permits, and the permit was granted allowing the construction.
The massive outpouring of public sentiment may be effective in swaying the emotional response of an elected official, at least as long as the issue is in the news, but it will not have a sustained convincing impact on the decision making of the bureaucratic machinery which processes permits that are essential to those who wish to undertake projects which have environmental impacts. The reviewing agencies are bound by principles of administrative law and procedure. In this sense, a procedural error is as significant in delaying or stopping a permit as an unacceptable environmental impact. The administrative agency must make decisions which pass the standard of “reasonable, not arbitrary”. Decisions which are made in reliance on materially defective science can be challenged as failing to meet this standard. Further, failure to address comments pointing out the defective science during the administrative process may be a material procedural error.
On the federal level through the National Environmental Policy Act (NEPA), and on the state level through numerous state programs which operate in much the same way, any time a company or person wants to undertake a project which will impact the environmental conditions, they are likely to need to apply to a governmental entity to get a permit to allow the development. Those permits are reviewed under standards set by statute and regulation. These are procedural reviews, not laws to prevent environmental degradation. Under NEPA an agency may approve an action which will be expected to cause significant environmental damage. However, they cannot do so without properly evaluating the impacts and taking into account the public comments on the project.
Where an agency fails to take relevant comments into account, that failure may, if it is material, make the permit vulnerable to a procedural challenge and reversal by a court for failure to properly follow the NEPA, or comparable state level procedures. One of the common administrative law principles is that if you do not object in a timely manner then your ability to object is waived. If there are no comments, then there may not be a basis for challenging or protesting that the agency did not follow the required procedures.
Thus, making comments, pointing out both procedural errors and errors in the science being relied upon during agency reviews, is the foundation for an effective challenge to an administrative approval of a project which will have undesirable adverse environmental consequences. The visible protests may be effective for generating buzz and funds to support a challenge, but to win the day the foundation in science and administrative procedure must be properly laid.
Besides that, with the proliferation of officials who prefer to rely on “alternate facts” rather than good science, the defense of truth and honesty requires even greater diligence to correct sloppy work by administrative agencies and reliance on what is simply bad science. Not every error is actionable, but where there is no comment pointing out the errors then there is no basis for action.
Thank you for your volunteer efforts which support this greater diligence.