How the notice-and-comment record is narrowing, and what it means for agencies
Congress wrote public comment into every major U.S. environmental statute over the past half-century, yet procedural choices made since 2025 are narrowing who gets heard and when. Agencies have said they will stop circulating draft environmental impact statements, dropped some cumulative-impact analysis, and invoked the Administrative Procedure Act's "good cause" exception to skip proposal-stage input.
The news hook is an opinion piece by Jody Freeman, published October 8, 2026, by Yale Environment 360. It is her argument, not settled fact, and the legal record is still developing.
For practitioners, the stakes are practical: a thinner comment file is faster to build, but it is also easier to challenge and harder to defend years later.
What actually happens between an agency's proposal and a binding environmental rule? The sequence is narrower than most people assume, and knowing how public policy works here tells you where your influence lands.
Under section 553 of the Administrative Procedure Act, an agency publishes a notice of proposed rulemaking in the Federal Register. That notice sets out the proposed regulatory text, the legal authority claimed, and the reasoning behind it. The supporting materials, including technical studies and economic analyses that inform evidence-based policymaking, go into a public docket, typically hosted on Regulations.gov. Anyone can file a comment during the open window. The agency then issues a final rule whose preamble is supposed to respond to significant comments and explain any changes, or explain why no change was made. That preamble is the record a reviewing court reads when someone challenges the rule as arbitrary.
Comment windows commonly run 30 or 60 days for proposed rules, and draft environmental impact statements carry a minimum 45-day period. Actual windows vary by agency, statute, and executive order, and agencies sometimes extend them when demand is heavy. Always check the closing date in the notice itself rather than assuming a standard length.
Readers conflate two different processes constantly, and the distinction matters for where you spend effort.
NEPA, enacted in 1969, requires federal agencies to evaluate and disclose the foreseeable environmental impacts of major projects they build, fund, or approve. It is a disclosure and analysis statute, not a substantive mandate to choose the greenest option. Its participation hooks come at scoping and at the draft EIS stage.
A single federal action can trigger both tracks: an agency may write a rule governing how it conducts reviews, then apply that rule to individual projects. Commenting on the rule shapes the framework; commenting on the project shapes one decision.
The firmest evidence concerns policy decision-making, not comment counts. Several agencies, including Interior, Agriculture, Energy, and Transportation, announced they will no longer share draft environmental impact statements with the public. Some dropped requirements to analyze indirect and cumulative impacts, such as climate change, without first taking comment. The administration has also invoked the Administrative Procedure Act's "good cause" exception to skip proposed-rule publication. Congress, for its part, limited the scope and length of environmental reviews in 2023. Each of these can be verified in agency announcements or statute.
Quantitative trend data is thinner than the debate suggests. A GAO review of 2013 to 2017 covered ten high-volume agencies and its authors caution that the findings are not generalizable.1 GAO also found that Regulations.gov totals were sometimes inaccurate.2
Academic work shows how uneven participation is. In one sample of 42 rules, the median was 30 comments per rule.3 At the other extreme, EPA's 2014 greenhouse-gas rule drew more than 4 million comments, and a Forest Service roadless rule drew over a million, mostly form letters. Among more than 1,500 EPA comments examined in one study, individuals wrote fewer than 6%, and industry and corporate commenters made up the majority.45
Two other findings matter. A 2025 study of 108 environmental impact statement processes over 22 years found substantive decision changes in 62%, though it does not isolate comments as the sole cause.6 Ontario offers a loose comparison: a 2008 study of 1,000 permit decisions found few drew any public comment7, while the province's Environmental Bill of Rights Registry logged more than 27,400 comments in 2024/25.8 Ontario's legal system differs, and the registry figure is an aggregate with no annual trend, so the two numbers cannot be read as a decline.
Little systematic data on 2025 and 2026 comment volume exists yet. No source reviewed here establishes a continuous federal time series or a reliable annual split between individual and organizational commenters. Raw counts also mix form letters, coordinated campaigns, and duplicates, so fewer comments is not the same as less useful input.
The more defensible claim is about opportunity. Earlier GAO work found that about 35% of major rules and 44% of nonmajor rules lacked a proposed-rule notice between 2003 and 20109, a reminder that access has long been uneven. When a draft statement is never released or a proposal is never published, the public cannot comment however motivated it is. Any drop in participation therefore reflects fewer chances to participate, not only public apathy.
Participation is not falling mainly because the public lost interest; it is falling because the procedural openings that invite comment are being narrowed, one discretionary choice at a time.
In her October 2026 Yale Environment 360 opinion, Harvard law professor Jody Freeman reports that beginning in 2025 the Interior, Agriculture, Energy, and Transportation departments announced they would stop sharing draft environmental impact statements with the public. A draft EIS is the document comment is built on: without it, the public is asked to react to conclusions rather than to analysis. Freeman also reports that several agencies dropped requirements to analyze indirect and cumulative effects, including climate impacts, without taking comment on the change first. The evidentiary weight here is limited. The specific agency announcements, their exact text, dates, and claimed legal authority have not been fully corroborated outside the opinion piece, and independent sources do not identify which agencies abandoned cumulative-impact analysis or whether the shift applied uniformly.
The Administrative Procedure Act lets an agency skip notice and comment when following it would be impracticable, unnecessary, or contrary to the public interest. Courts have long read that exception narrowly, because it is the one door that lets an agency write a rule without a public record. Freeman writes that the administration has invoked good cause to issue rules without prior input, and has separately leaned on emergency declarations and national-security rationales to compress participation. Only the opinion piece supports these characterizations; the number of invocations, the agencies involved, and whether any have survived judicial review are not independently documented. The statutory backdrop is firmer: Congress itself limited the scope and length of environmental reviews in 2023.
The September proposal is the best-documented piece of this picture. The Bipartisan American Affordability and Jobs Act of 2026 (S. 5653), introduced September 30, 2026, runs 417 pages and would reshape remedies as much as procedure. Legal analyses describe a 150-day window to file NEPA challenges, standing generally restricted to parties that participated in the administrative process1, and a direction that courts remand with a cure period of up to 180 days rather than vacate a deficient review1. It also sets a one-year deadline for environmental assessments and two years for impact statements. It was not law as of early October 2026.
For practitioners, the throughline is executive procedural discretion: disclosure practices, analytical scope, and exception doctrines are being used to reallocate who participates and when. Skipping review does not eliminate error; it relocates the cost downstream into remands, redesigns, and lost legitimacy. One practical irony deserves attention: if standing narrows to those who commented, filing a comment becomes the price of admission to any later challenge.
The changes reshaping public participation in environmental review run through four channels: regulation, agency procedure, the courts, and Congress. They carry very different legal weight. The table sorts each change by whether it is proposed, final, or litigated as of October 2026, and notes what it means for anyone planning to comment. The two most consequential pieces, CEQ's rescission and the Seven County decision, operate together and shift both implementation and judicial review toward agency discretion.
| Change | Mechanism | Legal Status (as of Oct 2026) | Effect on Public Comment | What It Means for Commenters |
|---|---|---|---|---|
| CEQ NEPA regulation rescission | Final rule adopting CEQ's February 25, 2025 interim final rule without changes, after a 30-day comment period | Final and effective since January 8, 2026; all CEQ NEPA regulations removed from the Code of Federal Regulations | No government-wide participation baseline remains; implementation now rests mainly with individual agencies | Look up each agency's own NEPA procedures instead of relying on a single federal rulebook |
| Federal agency NEPA procedure revisions | Agency-specific NEPA regulations and procedures, many under revision after the rescission | Final and operative, though many are being revised; agencies remain bound by existing procedures until they change them | Comment opportunities vary by agency and may narrow as revisions are completed | Track revision notices for the agencies you follow, since the rules can change mid-project |
| Department of the Interior NEPA procedure revisions | Agency guidance and revised procedures narrowing which environmental effects must be analyzed | Revised guidance in use; the formal status of each procedural revision is unclear from available sources | Fewer comment opportunities, and publishing draft environmental impact statements is now optional | Do not assume a draft EIS will be released for review, so engage at the earliest notice |
| Seven County Infrastructure Coalition v. Eagle County | Supreme Court interpretation of NEPA's scope and of the standard of judicial review | Final Supreme Court decision, May 29, 2025 | Comment requirements are not eliminated, but a narrower view of required analysis can shrink the topics open to comment | Focus comments on effects squarely within the project's scope, since courts now defer heavily to agencies |
| Fiscal Responsibility Act of 2023 NEPA amendments | Statutory amendments to NEPA enacted by Congress | Final and binding law since 2023 | Comment is required in only one specified circumstance: when an agency issues a notice of intent to prepare an EIS | Treat the notice of intent as the one guaranteed window and file substantive input then |
| Senate permitting reform bill | Proposed legislation limiting legal remedies when agencies violate NEPA | Proposed in the Senate in September; enactment not confirmed as of October 2026, so check current status | Would bar courts from delaying projects even when agencies make blatant errors in environmental reviews | If enacted, comments become the main lever before approval, because later litigation may not stop a project |
Two cases described in Jody Freeman's October 8, 2026 opinion piece for Yale Environment 360 show what a working comment process can deliver. Neither depended on the size of the docket.
Utah's Legacy Parkway was redesigned to largely avoid the Great Salt Lake wetlands after the public weighed in. The change came through the environmental review record, not through litigation or a political deal. Commenters pressed the agency on a resource that mattered locally, and the project that emerged looked different from the one first proposed.
For urban planning and public policy practitioners, the point is timing. A redesign is cheap on paper and expensive after construction begins. Comment periods put alternatives in front of decision-makers while changing course is still feasible.
The Department of Energy amended its permitting plan for Los Alamos National Laboratory to include a comprehensive wildfire-mitigation program after commenters raised wildfire risks. A fire later burned the region. That sequence matters because it shows a risk flagged in the record before the event, and an agency that built a response into its plan as a result.
This review does not claim the amended plan prevented any particular outcome. The documented fact is narrower and still useful: outside commenters identified a hazard, and the agency took it up.
In both cases, comments changed outcomes because of what they contained, not how many arrived. They worked for two reasons:
That is the standard to hold in mind when judging participation rules. A process can look robust by counting submissions and still fail if it shuts out the specific, informed input that improves a decision and that governance by consent requires. It can also lose that input quietly when draft documents are never shared and comment is never invited.
Agencies do not have to answer every comment, but they must consider and respond to significant issues raised during the comment period, as the Congressional Research Service's Agency Response to Public Comments explains. The Supreme Court has described the core requirement as an agency's duty to consider and respond to significant comments.1 Courts generally define a significant comment as one that raises a relevant point and, if adopted, would require a change in the proposed rule. That two-part standard also underlies the logical outgrowth inquiry used to decide whether a final rule differs so much from the proposal that a new comment period is needed. The agency's obligation is to engage with material points, not to tally submissions, a standard detailed in The Duty to Respond to Rulemaking Comments.
When an agency receives hundreds or thousands of identical or near-identical letters, it does not owe each one an individualized reply.2 Agencies commonly group duplicate, mass, and form comments together and respond once to the shared concern. They are not required to treat comments as votes, and a large stack of identical letters does not by itself change the outcome.2 The final rule should still show that the agency considered the substantive arguments behind those submissions.
Start with the final rule's preamble. Look for a "Response to Comments" section or a separate response-to-comments document posted in the docket. Search the docket for your own comment's tracking number or for the topic you raised. Then compare the final rule text with the proposed rule. If the agency changed a definition, deadline, monitoring requirement, or analytical method after the proposal, the preamble usually explains whether public input drove that change. Checking the docket for a response-to-comments document can also reveal how agencies organized comments by topic, which helps you see whether your issue was considered even if your exact wording was not quoted.
A detailed response is not agreement. An agency can explain why a comment was considered but rejected, why a suggested change was impracticable, or why the record supports a different approach. Agencies may also group many comments under one theme, so a specific question may be answered indirectly within a broader discussion. If the final rule's rationale does not address a significant issue you raised, that gap can be a basis for later challenge; the absence of a line-by-line reply alone is not a defect.
The difference between a comment that shapes a rule and one that gets tallied as "opposed" often comes down to whether it gives an agency something it can actually use. A comment that only states a position is a vote; a comment that cites the docket ID, identifies a specific section, and supplies evidence is a work product for the administrative record.
Open every comment by naming the docket ID and the exact section or proposed language you are addressing. If you want a change, say so in the first paragraph: "Delete the 30-day comment window and replace it with 60 days" is more useful than "This timeline is too short." Then explain why the request is justified and cite data, studies from public administration journals, or local conditions where possible.
The timing matters as much as the content. Raising an issue for the first time in litigation is usually too late; agencies and courts expect it to appear in the comment record first. During the comment period, frame objections as requests for specific revisions so they are preserved for later review.
Technical, empirical, and local-knowledge comments are the most actionable. Agency staff can use monitoring data, cost estimates, engineering analyses, cost-benefit analysis, or firsthand observations about a site that the draft environmental document missed. Opinion-only comments rarely change a rule because they give the agency nothing to respond to beyond disagreement. For environmental rulemaking, a neighbor's description of flooding or a permit applicant's emissions calculation can influence a final decision when it is specific enough to verify.
A practical comment structure can look like this:
Sample comments and template descriptions show what a complete comment looks like, but the strongest comments treat a template as a skeleton, not a finished product.
Mass form letters that repeat identical language arrive in the docket as volume, not as argument. They can signal public interest, but they are low-impact as deliberative material because they do not add new information or a distinct local perspective. If you use shared talking points, add your own data, location, or professional experience to convert them into something agency reviewers can weigh.
Filing under your own name builds credibility, while filing anonymously protects your privacy. Federal agencies generally allow either, but neither choice is as safe as it looks unless you understand what a docket actually publishes.1
Comments filed through Regulations.gov are treated as public records.2 Agencies do not require identity verification, so a name is voluntary.1 If you give one, it is typically posted along with the comment text and anything you type into the body or attach.2 The Fish and Wildlife Service, for example, does not require personal information and does not post email addresses, phone numbers, or street addresses from the Regulations.gov form.3 It also does not promise to withhold them if they appear in your text or attachments.3
Policies on redaction vary by agency. The Labor Department's Wage and Hour Division posts comments and attachments without change.4 The Employee Benefits Security Administration generally posts without redaction but may redact sensitive identifiers.5 The Executive Office for Immigration Review removes personal information on request.6 The Centers for Medicare & Medicaid Services posts comments publicly,7 and the Bureau of Ocean Energy Management keeps personal information as part of the public record.8
The dominant rule is simple: do not put confidential business information in a public comment unless the agency has a dedicated confidential-submission process. CMS warns that such material may be posted.7 The Wage and Hour Division asks commenters not to send proprietary information.4 For paper filings, the Food and Drug Administration asks you to mark the material confidential and submit both an unredacted and a redacted copy, and only the redacted version is posted.2
The current debate over permitting reform treats public comment as friction to be minimized, but that framing understates what agencies lose when the record thins out. A comment file is not a formality. It is the evidentiary foundation that courts examine when a rule is challenged, and it is the paper trail that lets Congress and inspectors general reconstruct how an agency reached a decision.
When agencies narrow draft disclosure or skip cumulative-impact analysis before taking input, they build rules on narrower records. Under conventional administrative law, that invites remand: a reviewing court can find the agency failed to consider an important aspect of the problem or ignored significant comments. The Senate permitting legislation proposed in September 2026 responds to exactly this exposure by seeking to limit legal remedies when agencies violate NEPA, barring courts from delaying projects even where reviews contain blatant errors. That is a revealing counter-pressure. Rather than strengthen the record, the proposal would shield weaker records from the consequences that normally police them. For practitioners, the durability question remains: rules built without stakeholder vetting are easier to unwind under a later administration precisely because the justification is thinner.
Stakeholder vetting is not only about legitimacy; it surfaces technical and local problems agencies cannot see from Washington. Commenters routinely flag site-specific hazards, data gaps, and feasibility concerns that reshape a proposal before it causes harm. Closing those channels raises error costs, and errors in environmental decisions tend to materialize downstream, when they are costlier to fix.
Agencies that want constructive input earlier have a documented playbook. EPA's public involvement framework emphasizes plain-language notices, adequate time to review before comment, and matching the participation level to the significance of the action. Its 2023 meaningful involvement policy directs teams to choose tools deliberately, drawing on channels that include Federal Register comment, internet-based dialogues, surveys, and requests for information. Public hearings, workshops, and forums remain central, with guidance favoring times, places, and remote or hybrid formats that let affected communities actually attend. Under its FY 2025-2026 environmental justice guidance, program and regional offices are expected to develop meaningful engagement plans, and the agency's public involvement policy requires reviewing input and providing responsiveness summaries that close the feedback loop. EPA frames these approaches as producing earlier, more practical input; documented, quantified participation gains are not yet established.
For readers pursuing an MPA or MPP degree, this is where process meets employment. Agencies and the contractors supporting them need people who can run docket management systems, analyze and categorize large comment volumes, draft responsiveness summaries, and design public engagement plans that reach communities tailored outreach might otherwise miss. These are durable skills for an environmental policy analyst career, a field where the rules about participation keep shifting.
