Environmental Law & LitigationPODCASTEnvironmentally Speaking EP 3: Public Notices

August 13, 20210

Transcript: Public Notices

MARISA: All right. Here we go. Hi. This is Environmentally Speaking. I am Marisa Desautel an environmental attorney with a few decades of experience.CLARICE: Hey, everybody. I’m Clarice. I’m a paralegal here bringing your questions and topics to the table. And today, Marisa, you specifically wanted to talk about public notice.

MARISA: I did.

CLARICE: Public notice. What’s on your mind?

MARISA: Yeah. Yeah. You know, every week you come up with a list of topics that are relevant to what is happening in the practice and I have to say that for some reason public notice – today’s Thursday. Public notice has come up every single day this week and a couple of days it came up multiple times, so I’m not sure what’s going on. It could be that the governor’s new order requiring public meetings to be back in person, maybe that’s kind of sparking additional attention and conversation about this issue. But in any event I feel like it’s timely and, yes, it was my idea to talk about it.

CLARICE: I like it, yeah. Yeah. We’ve been discussing public notice for what seems like over a week but definitely the full week. It’s like the preclude to [inaudible] that might happen. So tell us a little bit about what public notice is.

MARISA: In the environmental context, which is what we do environmental law, the two main state agencies that you see this public notice issue come up with are the Rhode Island Department of Environmental Management and the Rhode Island Coastal Resources Management Counsel. Public notice generally is about the process that any government agency or entity has to comply with to make sure that the public is made aware of actions that it’s taking or not taking, regulations that it’s promulgating, sometimes enforcement action.

It’s a way to keep the public informed and a way to ensure that the agency is being transparent about topics that are not confidential and allows an opportunity for the public to be involved, to provide comment, to ask questions to a certain extent and give feedback on topics because the government has a role, but it doesn’t know everything. And so it’s good for the government, too, to have the public involved so that they can hear what the stakeholders’ concerns and issues might be.

CLARICE: So you had said that it’s for the government to – or what that state agency is to alert people of whatever actions they’re taking. Is it only actions that they’re taking, or is it also including the actions of others?

[0:03:08] MARISA: That depends. The most common example I can think of is when you’ve got an applicant, a party, that is applying for an approval or a permit to undertake a certain activity. And let’s use DEM as the example. DEM the Department of Environmental Management will issue a public notice document. It’s usually on their website. Sometimes it’s advertised in The Providence Journal or another local newspaper and the Secretary of State’s website.

And in the example that I’m giving, the public notice would include information about either the department’s intended action. Like if it’s an air resources permit they always issue a draft permit. It’s not final. Kind of the same thing for the Freshwater Wetlands Program. They issue a draft permit that people can then review and provide feedback on. And then the department has the opportunity to change its mind. And in a lot of cases that’s exactly what the public is looking for. People generally don’t get involved with the public notice process if they are supportive of something. People just showing up, clapping and cheering, that doesn’t happen.

CLARICE: It sounds like reviews. Nobody leaves five-star reviews, but everybody always leaves one star.

MARISA: Oh, yeah. People find time to leave that one-star review, but the good experiences are like, whatever, onto the next.

CLARICE: So the public notice says what the planned intended action is. What else is on the notice?

MARISA: The notice will contain a deadline by which the public is required to submit their written comments. It’s sometimes a 45-day deadline, sometimes a 30-day deadline, but it has to – by state law the public notice document has to include the deadline on it so that people know how much time they’ve got to participate.

CLARICE: Will it also tell public how to make their public comments?

MARISA: Yes. Yes. It will indicate either an e-mail address that you can submit your written comments to or, you know, not so much anymore but back in the day you could mail your comments in. Some folks still like to do that. And let’s say in the situation where an agency is putting together or proposing a new rule or a change to a rule or regulation. They have to provide a 30-day public notice period and that’s set by statute. The statute is called the Administrative Procedure Act and it’s procedural as the title indicates that agencies have to follow the mandates of the Administrative Procedure Act.

So we get a lot of questions from clients and potential clients about whether an agency has met the standards in the Administrative Procedure Act. The example that I was just talking about with rulemaking, there’s a 30-day public comment period that begins 30 days after publication of the notice itself. So once the notice is published you’ve got 30 days from that date.

[0:06:38] CLARICE: The clock starts ticking at the [inaudible].

MARISA: Yes. That’s right. And it’s not business days. It’s days, Monday through Sunday. And with the case of rulemaking, public notice can also lead to something called a public hearing. These get confused quite a bit, so I’m glad we’re talking about it.

CLARICE: [inaudible].

MARISA: Yeah. Public notice is just an opportunity for the public to submit comments. A public hearing is when everybody gets together. And post-COVID it seems like we’re going to be going back to those public hearings where everyone gets together. If there’s enough interest the department will schedule a public hearing. People get word of it either by e-mail or there’s another notice that goes out explaining when the public hearing will be held, what time and where it will be held. And the process that a public hearing follows is a little different than public notice where you can actually get up and provide testimony.

You’re not sworn in or anything, but you provide a statement about what your objections or supportive statements are about a rule in this example that I’m giving. The agency is not required to respond to anything that is said that night. I know, which is kind of antithetical. You’re face to face with an agency employee and you want a response, but they’re not required to provide one. And it makes a lot of sense because then what happens. Then you’re in a fight. You’re potentially yelling at a state employee and they’re yelling at you. It’s just not a good scene. So you do have an opportunity, though, to provide a statement.

And some clients really feel heard following the public hearing process and that’s a lot of the reason why they’re scheduled. So following the public hearing process, you sometimes can still submit written comments depending on what the agency tells you. But following the close of the public hearing, that’s pretty much it. The public’s opportunity to participate ends when the public hearing and the public comment period end. And once that occurs then the agency is back to its internal activities in rendering a decision about, again in this example, how they’re going to promulgate a new rule or change a rule.

CLARICE: If I don’t submit comment during the public notice period but want to submit, say, some sort of statement during the public hearing –

[0:09:30] MARISA: Yeah.

CLARICE: — because I missed notice am I barred from saying anything at the hearing?

MARISA: No. No. You can come in brand new and say whatever you’d like. Depending on the number of people that turn out they limit each speaker’s allotted time to five minutes or ten minutes. And you’re allowed to also submit a statement at that point. A lot of people get up there and they have a typed-out statement and then they can hand that in for additional consideration.

CLARICE: That sounds pretty efficient.

MARISA: Yeah. Some hearings more than others, but, yeah.

CLARICE: The intent to be efficient is there.


CLARICE: Now, you had said stakeholder earlier.


CLARICE: What is a stakeholder? Is that different from the general public getting notice?

MARISA: Yes. So a stakeholder is a party that has a particularized interest in a certain issue. I’m a stakeholder in terms of DEM issuing a wetlands permit where I represent and my client is a stakeholder also in that context if my client owns a property that’s adjacent to the wetlands. So a person at the end of the street might not care, but someone that’s going to be directly affected by an action will care. And then they’re qualified as a stakeholder.

CLARICE: Do their comments get any different weight since it’s directly impacting them?

MARISA: In theory, no. But common sense, sure. If a party is going to be suffering direct damages, the attorney for the agency is going to take a look at that a little more closely.

CLARICE: Is there anything else about public notice or even public hearing that we’d want to talk about?

MARISA: Yeah. You just want to make sure you adhere to the deadlines because once the opportunity to provide either testimony or comments is over you are foreclosed from doing that. So a lot of times people don’t hear about a project or learn about a public hearing or public notice until after the fact and they’ll, you know, want to get involved and ask what can I do, but there’s really no – I mean, the whole purpose of this public notice and comment process is to allow for participation. So it’s got to come to an end at some point and so once it’s over, it’s over. So that would be, I think, the biggest takeaway message to just track the deadlines.

[0:12:14] CLARICE: So your public notice is your gateway and your message board about what’s going to happen.


CLARICE: And staying within that deadline allows you to be heard.

MARISA: Yes. That’s exactly right.

CLARICE: All right. Well, thanks for that. And if anybody has any questions or wants to reach out to Desautel Browning Law you can e-mail us at Help@ DesautelESQ.com. Thanks, guys. We’ll see you next week.

MARISA: See ya.

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