The Art of Commenting.

It is an irony of modern life that laws designed to protect the natural environment and conserve natural resources often generate enough paperwork to fell a good many trees. Environmental laws typically mandate that federal, state, or local government agencies prepare reports, plans, regulations, studies, permits, guidelines, and numerous other paper documents, some of which are voluminous.(1) Similarly, those laws frequently require regulated parties to keep written records, conduct studies, or prepare reports, plans, and permit applications for submission to government officials.(2)

These documents, and the decisions that are based upon them, often have important implications for a wide range of institutions, communities, and individuals. They may affect human health and the environment, the profitability of private firms, the timing of important government activities, the livability of neighborhoods, or the relationships between or among different branches and levels of government.(3) As a result, numerous parties, including private citizens, environmental organizations, government officials, private corporations, and trade associations commonly prepare written comments on drafts and final versions of environmental documents. Those comments may be prepared in-house--before an early draft of the document is released--or in response to an opportunity for public comment and public participation that is provided by a government agency or department.

Elizabeth D. Mullin's new book, The Art of Commenting,(4) is a concise, thorough, thoughtful, and easy-to-follow guide to commenting on environmental documents. Ms. Mullin is an experienced environmental professional who has worked for a public interest group, the Environmental Protection Agency (EPA), and the private sector. Her work should provide considerable practical assistance to consultants, lawyers, supervisors, managers, nonprofit employees, citizen activists, students, agency staff members, corporate personnel, trade association staffers, and anyone else interested in participating effectively in the process of environmental decision making.

In straightforward prose, The Art of Commenting offers a sensible, step-by-step approach to reviewing and preparing comments on environmental documents. The introductory chapter sets the stage by describing both the purpose and structure of the book itself and the typical review-and-comment process (both inside and outside of government agencies).(5) The author notes the extraordinary significance of commenting in environmental law and the important role played by environmental attorneys in the commenting process.(6) She also makes sound suggestions for finding, selecting, and using environmental legal assistance.(7)

Preparing to comment on environmental documents may be nearly as important as the comments themselves. In the next three chapters, Ms. Mullin proceeds to provide practical advice on what is required before actually writing comments on a document. In Chapter Two, Ms. Mullin offers concrete recommendations for preparing to review an environmental document. The chapter contains valuable tips on how to obtain early warnings about when draft documents will become available for comment and how to identify key individuals and prepare to coordinate comments with them.(8) This chapter also explains how to obtain and review pertinent background materials (such as legislation, regulations, agency guidelines, scientific studies, and reports) and how to prepare a comprehensive checklist indicating the items that the environmental document to be commented on must or should contain.(9) The third chapter includes sensible step-by-step instructions for reviewing the environmental document itself. Appropriately, it highlights the importance of checking the document for substantive errors or omissions, internal accuracy, and consistency with other information available to the reviewer.(10) In Chapter Four, Ms. Mullin notes the importance for potential commenters to take adequate time at the outset to identify their objectives and priorities.(11) She indicates circumstances in which not commenting on a document may have more benefits than commenting.(12) Moreover, she sensibly admonishes those who do choose to comment to "focus on what you care about the most."(13)

Chapter Five is, in certain respects, the heart of The Art of Commenting. This chapter contains a set of highly logical, workable tips on how commenters should present themselves through cover letters or memoranda, as well as valuable suggestions on how to organize and format comments, how to write crisp and effective comments, and how to frame comments so as to increase the likelihood that a commenter's views will be noticed and addressed.(14) The chapter includes eleven clear tables, logically interspersed with the text, that provide very helpful information on matters such as the effective uses of headings, general comments, and cross references, as well as formatting tips and the effective uses of sentences, topic sentences, strong verbs, and the active voice.(15) She also sagely advises on the great value of civility and respectfulness in tendering environmental comments.(16)

Chapter Six, pithily titled "What to Say," successfully identifies and discusses typical types of comments.(17) The chapter includes concrete examples of what to say and what not to say, and with the assistance of several readable and well-integrated tables, suggests ways in which commenters can effectively carry out a number of important tasks.(18) Ms. Mullin narrates a number of ways to point out violations of the law, note factual deficiencies and omissions in the documents, attack the fairness or validity of the commenting process itself, use specific language for inclusion in the final document, give specific examples and hypothetical situations to illustrate concerns, provide supplemental information, and offer constructive solutions to problems raised.(19)

The final chapter offers a range of useful steps that commenters may take to follow up on their written comments. Of course, "[e]xactly what you do depends on the type of document you are commenting on, your role in the commenting process, and whether you have commented on an internal or external document."(20) The chapter presents recommendations regarding such varied activities as reviewing other people's comments, submitting additional comments, speaking at public meetings or hearings, rallying support for one's position, meeting with government staff members and decision makers, and involving legislators and members of the press.

Following the text, the book contains three appendices with an abundance of data useful to the environmental commenter. The first appendix presents an alphabetical list of websites for "federal agencies that routinely produce environmental documents or may have information of interest."(21) It also mentions other helpful websites and written research guides that could not necessarily be accessed from federal agency sites. That appendix is followed by a list of major federal environmental laws (with citations), as well as key programs and sets of regulations authorized by those laws that may result in the generation of environmental documents.(22) Finally, the work contains a three page appendix with a clear explanation of the Freedom of Information Act (FOIA)(23) process and a catalogue of effective ways to make and follow up on FOIA requests.(24)

The Art of Commenting is not a flawless work. For example, in Chapter Two Ms. Mullin very soundly suggests that outsiders wishing to comment on government environmental documents and to influence government decisions, should "find a buddy at the agency" who can help them stay abreast of contemplated agency actions and opportunities for commentary.(25) However, her book does not note the difficulties that an outsider may have in trying to find such a "buddy" in an underfunded, understaffed agency. Those agency staff members may have scant time or patience for, and/or little interest in, the outsider's specific needs or concerns. Similarly, in the book's final chapter, Ms. Mullin's numerous (and potentially valuable) suggestions for following up on previously submitted comments do not explore the potential pitfalls of some of the strategies she advocates. Thus, while it may be useful for environmental commenters to contact federal or state legislators and enlist their assistance in particular matters, those commenters need to be cautioned that such a step may come across as "grandstanding" to the influential agency staff members and decision makers who are often the ones called upon to set aside other pressing work to respond to those legislative concerns. The same type of counterproductive intra-governmental resentment may also result from outside attempts to increase pressure on agency decision makers through the use of the press.

These relatively trivial omissions, however, detract little from the originality, grace, and practical utility of this work. The Art of Commenting is an incisive, succinct, well organized, and carefully crafted guide to commenting on environmental documents. It deserves an accessible place on the bookshelves of anyone who creates, influences, or is affected by environmental policies and decisions.

(1) See, e.g., Clean Air Act, 42 U.S.C. [sections] 7502(b) (1994) (requiring states to "submit a plan or plan revision" when an area is designated as in nonattainment with respect to a relevant national ambient air quality standard).

(2) See, e.g., Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [sections] 1361(c) (1994) (requiring "[e]ach recipient of financial assistance [to keep] records which fully disclose" all costs related to projects undertaken pursuant to the Act).

(3) Environmental laws and the documents and decisions those laws produce can have effects that sweep across both the private and public sectors. For example, the Clear Air Act requires states to develop implementation plans that meet national ambient air quality standards. 42 U.S.C. [sections] 7407(a) (1994). Those plans, which address the quality of air we breathe, affect not only human health, but also affect private businesses by requiring air emission controls and affect other states, due to the transboundary nature of air quality. Similarly, the Clean Water Act has wide reaching effects by prohibiting anyone (including private and government entities) from discharging any pollutants into navigable waters without a permit. 33 U.S.C. [sections] 1311(a) (1994).

(4) ELIZABETH D. MULLIN, THE ART OF COMMENTING: HOW TO INFLUENCE ENVIRONMENTAL DECISIONMAKING WITH EFFECTIVE COMMENTS (2000).

(5) Id. at 1-13.

(6) Id. at 6.

(7) Id. at 10-13.

(8) Id. at 16-19.

(9) Id. at 19-35.

(10) Id. at 38-39.

(11) Id. at 41.

(12) Id.

(13) Id. at 42.

(14) Id. at 46.

(15) Id. at 51-62.

(16) For example, Ms, Mullin suggests that "[w]hen you have an overwhelming urge to rant, try to pretty up what you are really thinking." Id. at 64.

(17) Id. at 65.

(18) Table 6.2 shows the reader how to effectively raise legal issues by contrasting a "less appropriate" sentence with a "more appropriate" way. Id. at 69.

(19) Although Ms. Mullin recognizes that comments should always be tailored to the "particular document" being analyzed, the point of the tips is to create "a checklist to help ensure that [authors of comments] are not missing anything important." Id. at 65-66. At the same time, she subtly reminds readers never to disregard all of her tips, mentioning that the "best comments offer solutions to the problems raised." Id.

(20) Id. at 85.

(21) Id. at 95. The list includes twenty-three sites, beginning with the Department of Agriculture and ending with the General Accounting Office. Since it is difficult to keep an exhaustive log of websites in our technological era, Ms. Mullin smartly points readers to the Federal Web Locater, which compiles links to other agencies. Id. at 96.

(22) The list refers to both the section number in the bill as passed by Congress before placement in the United States Code and the United States Code provision. This provides a helpful resource for commenters because, according to her, environmental lawyers "invariably refer to statutes by [bill number]." Id. at 97.

(23) Freedom of Information Act, 5 U.S.C. [sections] 552 (1994 & Supp. II 1996).

(24) The final paragraph even addresses the common concerns of money that many environmental commenters may face, reminding people to "[e]xercise caution with [their] requests as the government can charge both for search time and copying." Id. at 105.

(25) Id. at 16.

JOEL A. MINTZ, Professor of Law, Nova Southeastern University Law Center; J.S.D. 1989, Columbia University Law School; LL.M. 1982, Columbia University Law School; J.D. 1974, New York University School of Law; B.A. 1970, Columbia University. Professor Mintz commented on numerous environmental documents when he was an attorney and Chief Attorney with the U.S. Environmental Protection Agency in Chicago and Washington, D.C. in the late 1970s, as well as during the past 19 years, while an environmental law professor.