A Comment Response Discussion with Top Environmental Planners
Thomas Mullen
April 30, 2016
Earlier this month, SmartComment joined hundreds of environmental consultants and agency planning directors and staff at the Association of Environmental Planners conference in San Diego. It’s the kind of event where it’s perfectly normal to have a ten-minute coffee-break conversation about the triggers for a mitigated negative declaration, and where we saw at least one person in a “NEPA Nerd” T-shirt.
In other words, this was our kind of place.
As makers of public comment software, one session in particular caught our attention. “Navigating a Sea of Response to Comments” focused on the challenges and duties of responding to public input related to an environmentally impactful development proposal. Since comment management for these projects is kind of our thing, we joined this standing-room-only forum where an intimate audience of environmental peers engaged in a frank and constructive discussion about the pitfalls and best practices of this crucial part of the environmental process.
Here are five of our biggest takeaways:
Comment Responses Aren’t Just for EIRs
If a project is subject to an environmental impact report (EIR), the law is clear that public comments bringing up significant environmental points must be responded to by the lead agency and included in the final document. But panelists were equally clear in recommending that agencies and consultants also respond to public comments facing less rigorous environmental processes, such as a milder Environmental Assessment and even a Categorical Exclusion, which allows bypassing both an EA and EIR. While an EIR requires a “good-faith” effort be made to respond to all relevant submissions that come out of a public comment period, panelists agreed that it’s wise to extend this philosophy to all classes of projects — both to ensure the best project possible and to proactively address the increasing importance of transparency in governmental actions. Just like your mom told you in elementary school, doing the bare minimum just isn’t going to cut it anymore.
Lumpers vs. Splitters
A civil war rages within the environmental consultant community between two deeply entrenched, ideologically-opposed factions. Okay, so maybe it’s not a civil war. More of a polite divergence of technique, really. Essentially it comes down to how a consultant parses a submission from a citizen or outside agency into the individual public comments that will be separately documented and responded to within the final document of the EIR. And in this process, there are apparently two diametrically opposed forces. “Splitters” are consultants or agency staff members who have been known to break even a three-line paragraph into seven or eight different comment topics. On the opposite end of the comment-seeking spectrum are “lumpers”, who might very well get through a ten-page letter from a fellow interested agency and bracket out no more than three or four total comments. Who’s right? Neither probably, if the previous extreme examples are to be believed. The key, panelists agreed, is to find a healthy medium that as closely as possible reflects the intent of the submission’s author. After all, splitting and lumping as front-line consultant practices tend to be addressed by project team supervisors anyway, who will likely find a healthy medium in the quality control stage of the comment response process. And that brings us to another key point when it comes to public comment bracketing.
Consultants Hate Manual Re-Bracketing
Boy, do they hate it. And why wouldn’t they? If you’re a consultant manually bracketing a letter, and your supervisor sees the comment topics within it differently than your initial bracketing attempt, guess what? You’re either printing out a fresh copy of the letter and re-doing it all in pen, or you’re opening up Photoshop just so you can re-draw and re-number all those delicate brackets you so perfectly drew on the first version. And if the project managers add or tweak topic categories in the middle of the project? Now ALL of the bracketing you did on every single submission could be subject to change, and your whole bracketing world just got thrown into chaos. The easiest solution to this problem is, of course, SmartBracket™, SmartComment’s digital bracketing tool, which allows users to re-draw brackets and re-classify comments with the click of a mouse. And because your project’s comment topics can easily be changed with the software — or even broken into sub-categories — comments with now-obsolete topics can be automatically updated and transferred into the newly created categories. Bye-bye, manual bracketing. Hello, on-time project schedule.
A Recirculated EIR Has Benefits
It’s understandable if a project team doesn’t exactly do cartwheels when the EIR they just spent months or even years preparing is stopped in its tracks and ordered back to the drawing board. But, panel speakers said, there are some distinct advantages to a recirculated EIR — even if they might be hard for project managers to see in the initial wave of mind-bending frustration. Namely, a second go-round often does make the project better for all concerned parties — which of course is the whole point of the environmental process in the first place. Often ordered as a result of new information that comes to light after the original EIR is initiated, a recirculated environmental document takes into account the latest circumstances facing the project and surroundings, allowing the public to weigh in on it with the benefit of the most accurate picture of the project backing them up. Further, with the experience of the initial EIR fresh in their minds, project staff and public outreach consultants can often be better prepared to address specific concerns regarding the project.
Subjectivity & Objectivity Both Important
No matter your diligence, there’s always a chance that a legal challenge could find your final document — along with all of your comment responses — in front of a judge, who will be asking two big questions. The first question is subjective: Did the project managers do everything within their power to address public concerns about the project? The second question, conversely, deals with objectivity: do the public comment responses in the final document maintain a fair and neutral point-of-view? To the first point, panelists said, it’s important that the judge see evidence — big and small — that the project team was meticulous and vigilant in their comment response process. Responding seriously to even non-environmental questions, ensuring that responses are well thought-out and grounded in scientific study, and even using comment management software to accept electronic comments as well as ensure transparency and accountability throughout the process — all of these could be important factors. To the second point, it’s crucial that comment responses maintain their objectivity in both tone and content and avoid any hint of “cheerleading” on behalf of the project. Opinionated or incomplete responses, a dismissive tone regarding opposing viewpoints, and over-reaching on the facts are all very efficient ways to potentially halt a project firmly in its tracks. Of course, these pitfalls are often mitigated with the hiring of an independent environmental consultant to form front-line comment responses. But this safeguard can be strengthened even further if the consultant uses comment management software, which eliminates busy work like cutting-and-pasting comment spreadsheets and pulling together project updates for the agency. This allows the consultant to focus only on the big picture of providing thorough and balanced responses to valid public concerns — and help the project avoid an appointment with a judge.