How Can Community Campaigns Leverage Regulatory Comments & Complaints?
The slow-paced and technical world of regulatory agencies can seem far removed from the urgency motivating community-led justice campaigns. And yet regulatory decisions from permit approvals to penalty rates often underlie the success or failure of these campaigns. For instance, communities need the Environmental Protection Agency to enforce pollution limits on chemical plants or the Federal Highway Administration to stop unnecessary highway expansion that will dislocate people of color from their homes. The formal vehicles for citizens to influence these decisions are regulatory comments and complaints. People generally have the option to submit comments on proposed projects, such as a planned highway expansion, and complaints on ongoing ones, such as a permitted facility that is dangerously polluting local drinking water.
Yet despite regulatory decisions’ profound effects on people and despite agency processes for including the public, public input from low-budget groups often makes little difference. Must the community-agency interaction always be one-sided and top-down or can communities also influence regulators? Do they in practice? If so, how? These questions arose at the recent Critical Legal Empowerment conference hosted by NYU Law’s Bernstein Institute for Human Rights and the NYU Law Review. The overall question shaping the conference was “How can lawyers and knowledge of the law support community-led justice campaigns?” The panels and workshops explored various legal and para-legal tools at communities’ disposal, from litigation to accompaniment (in which community members accompany individuals to hearings to provide emotional support and encourage better treatment from law enforcement officials). Given the regulatory focus of our work at Policy Integrity, particularly our investment in amplifying community voices in agencies’ public participation processes, and my previous involvement in a campaign that used comments and complaints to oppose a highway expansion, I was particularly interested in the discussion of how communities could effectively leverage regulatory comments and complaints. The organizers and movement lawyers at the conference shared some key takeaways that can help inform community engagement with regulatory agencies.
1. Use the Statutory Language
Whether filing comments on a proposed project or rule or submitting a complaint about an ongoing project, using the language of the statute in question helps to get the attention of agency staff. This involves identifying the statute(s) you believe would be violated by a proposal (for a comment) or are being violated (for a complaint) and invoking their language to increase the chances that an agency reader takes the possibility of a violation seriously. This may result in redesigning a proposed project or opening an investigation into an ongoing one. Additionally, issues raised in public comments become part of the public record for the decision, allowing them to become the basis for future litigation against agency actions.
2. Be Persistent
Unlike comments, for which submission windows are limited in number, complaints can be submitted any time a violation is suspected. This means it’s possible to increase the pressure on decisionmakers by submitting complaints regularly. As Jay Monteverde, director of the U.S. Environmental Justice Program at Namati explained, groups can get the agency’s attention by submitting spurts of complaints regularly — for instance, every quarter — instead of just submitting once and waiting. Doing so can help the complaints stand out in agencies’ extensive backlogs of unresolved complaints and challenge the inertia that often keeps agencies from formally finding a violation. The resulting documentary trail can also lay the groundwork for litigation challenging the project by showing that the agency failed to respond to complaints in a timely fashion.
3. Face-to-Face Meetings & Public Pressure
The agency staff who issue permits for pollution-intensive projects from pipelines to petrochemical plants “are basically never exposed to the people,” noted Monteverde. Consequently, they rarely face costs for failing to resolve community concerns. Monteverde suggests ramping up the personal pressure on regulators by exposing them to public scrutiny and direct engagement with affected people. “Often, when community members complain about a project, the regulators will just tell them to work it out with the developers,” he said. Instead, activists should try to speak directly with agency staff and publicize their decisionmaking through traditional and social media to increase the chances of favorable decisions.
The Bottom Line
Communities can transform the decision calculus for regulators by using the above strategies when submitting comments and complaints. However, formal legal engagement is just one tool in the toolbox — and one that relies heavily on the soft power of public opprobrium and the nebulous threat of litigation years down the line that may or may not succeed. Comments and complaints are therefore probably most effective as part of a larger strategy that harnesses harder kinds of power as well, such as the economic leverage of workers involved in the project.
That said, the influence of regulatory comments and complaints — when optimally leveraged — should not be understated. In Monteverde’s campaign, community members filed complaints on 12 counts, resulting in three new violations on the company’s record. This frustrated the company’s attempts to present itself as a good corporate citizen with a clean record.
Complaints can also provide messaging opportunities simply by resulting in formal investigations into the allegations. In the anti-highway campaign I was involved in, community Title VI complaints sparked an investigation by the Federal Highway Administration into whether the Texas Department of Transportation’s highway expansion plan was discriminating against the low-income people of color who would be displaced by the project. The investigation itself bolstered the narrative that something was wrong, drew press coverage, and motivated more people to get involved with the cause. It also led FHWA to suspend construction and property buy-outs until the investigation was completed.
Carefully orchestrated comment and complaint campaigns can be a powerful, low-risk tool at communities’ disposal, and the organizers and lawyers convened by the Critical Legal Empowerment conference provide important insight into how to get the most out of them.
The views expressed here are only the author’s and do not represent those of the Institute for Policy Integrity or NYU Law.
