The Importance of Legal Arguments in Public Commentary on Environmental Matters

As we have seen in other articles over time, sometimes public goods are protected explicitly, and sometimes they are protected by a process. When a protected public good is explicitly threatened, it is important to understand the specific laws that protect it. When a public good is protected by a process, then it is important to understand the process and the laws that protect the process. Most government agencies exist at the interface of “private property” and “public property” and laws determining protections and processes like permits.

As a review, by “private goods” we mean goods and services that can be packaged, marketed and sold in such a way that the buyer knows exactly what he is getting. For example, a piece of land, a house or a boat, the right to carry on a commercial activity, etc. A “public good”, however, is one that cannot be packaged, marketed or sold in this way. It is a good or service that goes to a group of people, whether they pay for it or not, and in a way that makes it difficult for an individual to assess the costs and benefits over a personal basis. Examples of public good are clean air, protected species, clean waterways, public view and beach access.

An explicitly protected public good could be a specific species of plant or animal classified as threatened or the boundary of a public space such as a reserve or a park. A protected process may be the process of reviewing a permit or accessing documents through “freedom of information” laws.

Many activists argue that writing a letter or making your position known to a government agency is necessary to preserve the right to sue over the entity’s decision on an item of conservation of interest. However, as Dean Wallraff, environmental lawyer and Sierra Club activist, once explained to me, “You don’t need a ‘position statement’. The mistake most lay activists make when commenting on the decisions of public bodies is that they do not understand the legal basis for a possible trial. Thus, their comments explain why they don’t like the project, but do not explain how the agency, by approving the project, is doing something that breaks the law. These violations should be explained specifically in the comments in order to preserve the right to sue for such violations. “

Usually, before suing a government agency for a decision that the activist does not agree with, the activist should inform the agency of the grievance during the administrative process leading up to the decision. The exhaustion requirement applies to many different situations. It was originally created by judges as part of opinions, but has become statutory – promulgated by the legislature – in many of the situations we encounter as environmental activists. The legal concept for taking legal action against a government agency is called “administrative exhaustion”.

The mistake of not referring to specific laws is one of the most common mistakes a Sierra Club activist can make when making public comments. Agencies are guided by laws, and we need to be specific about which laws we believe are not being followed or should be obeyed. Some commissioners have complained that Sierra Club members have made passionate appeals on issues the commissioner wants to vote on, but, as the activist did not cite the laws guiding the government body’s decision, they were powerless to have to approve something. this could have been avoided with the correct legal argument – an argument within the limits that the agency is authorized by law to take into account.

A final note is that comments should include all relevant laws. An activist cannot quote Law A in his comments and “because he objected” preserves the right to bring legal action for a violation of Law B.

Also, remember that lawsuits are expensive and the Sierra Club has a process that must be followed before a member threatens to sue on behalf of the Sierra Club. Members are also personally responsible for their actions, so never make the mistake that since you are commenting or protesting as a Sierra Club member, you may be covered by some perceived Sierra Club protection. It is important to contact the leadership of the Conservation Committee and the Political Committee before submitting comments made on behalf of the Sierra Club.

If you don’t agree with a project, do your homework as soon as possible and contact other Sierra Club members who share your concern. The first place to start is the Los Angeles or Orange County Conservation Committee. If others are already working on the issue, please consider joining their ranks, and if no one is focused on the issue, consider becoming the voice of the Sierra Club through research and by presenting the details of your project to the Conservation Committee. concern, coordinate the action and get approval so the Sierra Club can make an objection with one voice. Remember to identify legal issues early on and list them in your comments. It is best if experienced members of the Sierra Club Conservation Committee review these items with agency staff members before a hearing or meeting. Most of the staff will appreciate your efforts and help you eliminate any mistakes or misunderstandings that could hinder your argument. Plus, if violations of the law are listed in advance, the agency can take action to avoid a lawsuit, which can save Sierra Club and your team the time and costs of a full-blown lawsuit. .