Commentary: Worth the Effort? NIMBY Public Comments Offer Little Value Added

Date01 September 2014
Published date01 September 2014
Worth the Effort? NIMBY Public Comments Offer Little Value Added 629
Michael J. Walker is director of the
National Enforcement Training Institute
with the U.S. Environmental Protection
Agency in Washington, D.C. He is also
adjunct professor of law at the University
of Maryland College of Law and the
William & Mary College of Law.
popularity contests. Regulatory agencies are charged
with the informed, expert implementation of their
organic statutes and resultant regulations.  at is what
Chevron deference is all about.  e contrary attitude
stems from a lack of sophistication about the underly-
ing technical issues or, as Eckerd suggests, a predispo-
sition to object to any proposal on the grounds that
it risks changes to the status quo. Or, perhaps, there
is simply a sense of frustration that the decision has
already been made, and a NIMBY response at least
provides some measure of satisfaction.
In some circumstances in which controversial regula-
tions have been put out for notice and comment under
the Administrative Procedure Act, some citizen activists
have mobilized campaigns to submit comments. But
hundreds of postcard “comments” to ban mountaintop
mining, for example, rarely reach the technical, scien-
tif‌i c, or economic merits of the proposal and of‌f er little
insight to government decision makers.
While, of course, the voices of citizens should and
must be heard and often add real value, practitioners
can rely on Eckerd’s careful scholarly analysis to give
them conf‌i dence in their own judgment in the face of
occasional public reaction to the contrary.
From the perspective of nearly 40 years of
experience as a state and federal agency lawyer
and practitioner dealing “with the public,”
I read with great interest Adam Eckerd’s article “Risk
Management and Risk Avoidance in Agency Decision
Making,” in which he assesses the role of the public in
agency decision making. Of particular focus was his
evaluation of “risk” from the standpoint of the regula-
tor, the regulated community, and the larger “public.
From the enactment of the National Environmental
Policy Act (NEPA) in 1969 to President Barack
Obama’s contemporary pronouncements for “more
transparency” in government, there has been a popular
though largely unexamined belief that citizen involve-
ment will somehow result in better decision making
or at least resolution, acceptance, and “buy-in.”
My experience in numerous permit and siting con-
troversies, many in the context of civil enforcement
litigation, bears out Eckerd’s conclusion that citizen
involvement often has little impact on government
decision making. Where citizen involvement is limited
to “not in my backyard” (NIMBY) stock objections,
such input adds little objective value to the substan-
tive discussion. NEPA decisions and agency decision
making generally are not subject to referenda or
Worth the Ef‌f ort? NIMBY Public Comments
Of‌f er Little Value Added
Michael J. Walker
U.S. Environmental Protection Agency
Public Administration Review,
Vol. 74, Iss. 5, pp. 629. © 2014 by
The American Society for Public Administration.
DOI: 10.1111/puar.12262.

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