We know that human industry can be extremely destructive to the environment. And we also know that risks require rules. That’s where laws and public policy comes in. This article is a very basic rundown of what rulemaking is, and how rules become public policy. (To learn more about rulemaking in Oregon, see our post and video Rulemaking 101.)
Rules and Law-Making
Rulemaking is an essential part of the process of lawmaking.
Humans enact laws to address environmental problems such as air pollution, water contamination and climate change. A law can come from the legislature, or as an executive order. The passing of a law or the signing of an executive order is only the first step for a brand new law. The very next thing that needs to happen with a new law is to figure out how that new law will be put into effect.
A new law rarely includes specifics about how the law will be enacted. A new law is mostly a directive about what needs to be done in general. So, a law might decree that we ‘reduce fossil fuel emissions to zero.’ Okay, great start! Next, tho, for a new law to actually work, we have to figure out how we are going to do it: ‘how do we reduce fossil fuel emissions to zero?’
Rules and State Agencies
When it comes to how, a new law moves from the legislators to the state agencies, agencies such as DEQ (Department of Environmental Quality) or ODOT (Department of transportation). Depending on how comprehensive a new law is, one or many state agencies might be involved. The agencies are staffed with experts who know the territory they are being asked to deal with. It is the role of the state agencies and state experts to figure out how a law will be carried out. They will need to figure out new rules for how things will be done.
Rules and Environmental Protection
Environmental law has a lot of rules because many things in our everyday industrial world from our cellphones to our cars to the rain run-off from our roof have chemicals, heavy metals, and other components that can impact our environment. Some rules specify how old cellphones are disposed of, or what types of fuel can be used in cars. These rules change if the law changes. The idea with environmental laws is to protect public and planetary health. It doesn’t always play out this way, however, so that is why citizen participation is important.
Draft Rules and Public Comment
So. A new law is written and put into effect. This new law goes to the agencies and their experts. And the experts in these agencies work on figuring how the new law can and should be implemented. They need to get into the specific details as to what new rules the new law requires.
Their first effort in writing new rules is a draft. Nothing yet is set in stone. The agencies draft what they believe the new rules could/should be. Then, and this next part is really important; then this draft goes to the public for comment.
Public Comment Periods
Agencies not only draft new rules, they also set up a calendar with times, dates, and places set out for the public to come and address the proposed rules. Public comment is the chance for everyday people and all kinds of experts outside the agency to speak up and give their take on whether or not the draft rules that are being proposed are a good idea. Are the rules effective? Will any proposed rules be too onerous? Or harmful? Do the proposed rules go far enough to actually address the problem they are designed to address?
You can usually find the calendar and current drafts on the agency web pages. Comment periods are scheduled to offer opportunities for the public to give testimony in person, and/or via written comments.
How extensive a comment period is depends on the complexity of the proposed new rules, and the potential impart of those rules. With proposed environmental rules, there can be a lot of energy spent in arguing. There are many interested parties, each with something to gain or lose. How many jobs might the project provide? How much water might be used? How much of that water can be contaminated before all the fish die? Does it really matter if a little arsenic gets in there. Who gets to decide?
With so much at stake, agencies that draft environmental rules often hold multiple comment periods across the state. This is to ensure the public–those who are impacted by what is decided–and businesses–who often are the ones facing regulation–have a chance to speak to the draft.
Why Public Participation Matters
Lawmakers and agency experts don’t and can’t know everything. Public participation is a really important part of the process because the public is like a whole big group of experts who can offer insight into everything from air quality impacts on children, to the cares of teachers, students, and grandparents for the future they envision for their communities and their state.
There are many things that agency members may not know to consider prior to public comment. For example, when regulating, say, the transportation of crude oil by train, agency experts might not know how inadequate last-century train technologies is for transporting highly flammable materials. They may know that air quality is important, but they might not know how important. They may not see the consequences of an inevitable accident the same way members of a community might who actually face that danger near their schools and homes. Lawmakers and agency folks may have seen the beautiful brochures from business interests, without realizing that many, many people want nothing to do with a proposal no matter how slick the trifolds.
Public input is important to lawmakers and state agencies. Public input is essential to the making of good rules.
Rulemaking and Public Policy
A new law goes to the state agencies. The state agencies draft proposed rules so that it is clear how the law will be put into effect. The state agencies hold public comment periods where businesses, experts, and the public can offer their feedback on those draft rules. Based on all of that, the state agencies recommends a final draft of rules, which at some point are codified into public policy. This policy will govern how the law plays out. How much arsenic will get into the water? The policies created in the rulemaking process will be the standard set, and the standard to be met.
For a great conversation about rulemaking and public comment, see our video Rulemaking 101.
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