Much Work Remains for Meaningful Public Participation in North Carolina

On January 7, 2022, NC Gov. Roy Cooper signed Executive Order (EO) 246, “North Carolina’s Transformation to a Clean, Equitable Economy.”  The EO 246 required, among many things, that each of the Governor’s agencies appoint an EJ Lead and updated Public Participation Plans for “meaningful, fair, and equitable public engagement in state agency decision-making.”

In March, the Governor’s office began accepting comments via a “NC Access Survey” and similar efforts were conducted by the Andrea Harris Taskforce and DEQ Secretary’s Environmental Justice and Equity Advisory Board.  Clean Water for NC, as well as numerous other environmental, social justice, and community members submitted comments and even met with Governor’s representatives to flesh out the details of our concerns regarding meaningful public participation in NC.  Over the last several months, Governor’s agencies began appointing an EJ Lead and on June 1st, DEQ released its updated Public Participation Plan and Language Access Plan (Plan).

We appreciate that DEQ took heed of some items we and numerous other folks raised, particularly efforts to reduce barriers to accessibility of hearings and meetings, as well as language barriers.  However, DEQ’s draft Plan does not address a number of concerns we raised. Specifically, we are concerned with inadequate notification and comment periods, limited transparency with limited tools, and community disempowerment during decision-making processes.

Meaningful Public Participation should mean that people:

  • Have an opportunity to be heard AND
  • That their concerns carry weight.

Adequate Notice & Comment
We applaud DEQ for recognizing that notification about permitting decisions need to go beyond a single newspaper notice. Flyers should be posted where the impacted community can see, such as grocery stores, post offices, or other local centers or information boards frequently used by the public. For rural areas with limited community centers, mailers would be used. The Plan also mentions potential use of social media and radio. We appreciate the acknowledgement that “current statutory requirements for disseminating information for public notice have not kept pace with evolving media communications.” This is an aspect in which DEQ recognizes an existing barrier with negative ramifications and goes beyond the explicit limitations and requirements of agency-authorizing statute in a manner that is equitable and fair for the needs of North Carolina’s residents.

Yet, the way in which DEQ implemented its review and comment period for this Plan came across as a bit disingenuous and in opposition to DEQ’s claimed effort for enhancing public participation and engagement.

The Plan itself was only open for 30 days for public review and comment, a standard DEQ applies to most of its actions.  However, a 30-day review and comment period is simply not enough time, especially considering that agencies often spend months and years developing their rules as do polluting industries when they apply for permits—leaving the public scrambling to catch up and provide timely, thoughtful, and necessary comment to often highly technical matters.  Statutorily, 30 days is only the floor and DEQ certainly has the authority to allow for more public review and comment time.  A more appropriate timeframe is at least 60 days, even though the public is nonetheless at a disadvantage compared to the agency’s and permittee’s preparation time.

Enhanced Public Engagement
Another major concern is what the agency considers “enhanced” public engagement, which we deem to be the standard by which DEQ should apply all of its public outreach and engagement. According to DEQ’s Plan, enhanced engagement entails “project-specific and community-oriented communications methods” which may include, but does not require, (1) distributing flyers in locally-owned business, libraries, places of worship, and other community gathering places; (2) non-English language social media and other media outlets; (3) providing vital documents in non-English language; and (4) coordinate with community, faith-based, and other organizations to implement public engagement; among others.

These “enhanced” approaches should be applied across the board, but the Plan would only allow DEQ to apply them if a community first qualifies to receive enhanced engagement. The systems used to determine whether enhanced approaches may be implemented include an EJ Report and the Community Mapping System (CMS).  These are two helpful but flawed tools that ultimately do not provide for anticipated outcomes.  For example, the EJ Report carries no bearing or weight on the decision of whether a permit will be approved. Rather, it is purely a tool to determine whether the enhanced engagement may be appropriate.  According to the Plan, the CMS is to be used to identify community demographic, socioeconomic, and health data that may fit the definition of underserved communities, but it does not provide this data at the same scales for comparison, such as county-wide vs. the census block level vs. the extent of the map view in the tool.

Our past two newsletters from Spring 2022 and Fall/Winter 2021 have discussed some of these CMS deficiencies and efforts at progress to better account for inequities.

Equitable Outcomes or Continued Disempowerment?
The Plan outright acknowledges the need for equity and claims to “strive to be transparent and accountable, to seek equitable outcomes through inclusive processes,” and uses the US Environmental Protection Agency (EPA) definition of meaningful involvement as one in which the “public’s contribution can influence the regulatory agency’s decision” and in which “community concerns will be considered in the decision-making process.” It even provides a process for distributing and posting Title VI material.  However, DEQ has time and again stated that its authority is limited and cannot consider disparate, health, or cumulative impacts, nor can it consider the non-technical comments and concerns of community members.  This means that DEQ will not consider or weigh community concerns about disparate, health, or cumulative impacts— that is, not without an explicit statutory framework.

Ultimately, the purported limitation of authority begs the question of whether the Plan will have any efficacy or whether it simply checks a box for an “opportunity” to be heard where those voices ultimately fall on deaf ears.

Conclusions & Next Steps
With these pitfalls in mind, we do appreciate DEQ’s effort to provide for increased public engagement, opportunity to be heard, and make improvements to further build DEQ’s relationship with the public.  We hope for continued opportunities to provide input on the Plan and look forward to continuing to communicate with DEQ officials.

We will continue to work towards a robust and equitable Plan that ensures robust notification and comment periods, increased transparency and effective tools, and overall decreased barriers to hearing and meeting accessibility, language barriers, and community disempowerment during decision-making processes. We look forward to meaningful public participation where the people not only have an opportunity to be heard, but one in which their non-technical disparity/EJ, cumulative, and health impact concerns carry weight in decision-making processes.

We reiterate: Meaningful participation should mean that people have an opportunity to be heard and that their concerns carry weight.

Check out some additional talking points Clean Water for NC put together for better understanding meaningful public participation, as well as a joint-submission of comments to DEQ in response to their draft Public Participation Plan.

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