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EPA Rule Eliminates Mandatory Newspaper Notice

Posted October 21, 2016 by Public Notice Resource Center

The Environmental Protection Agency (EPA) recently announced it was eliminating the mandatory requirement to provide newspaper notice of permitting and other actions under the Clean Air Act (CAA). The rule requires notification on EPA’s new “National Public Notices Website” and allows other agencies that implement EPA-approved CAA programs to publish notices on their websites as well.

The rule doesn’t prevent permitting authorities from supplementing notice on their own websites with newspaper notice. In addition, it doesn’t override state laws requiring state and local environmental agencies to use newspapers to notify the public about EPA-approved permitting actions under the CAA. In those states, new laws would have to be passed to eliminate the newspaper-notice requirement.

Here are several reasons why newspaper notice is preferable to notice by government website:

  • Increasing public notice through government websites should be applauded, but eliminating notice in newspapers would leave the public less informed about vital civic matters. In addition to removing the notices from local newspapers, it would scrub them from newspaper websites and the press association websites that aggregate public notices in each state.
  • Newspaper notice is more effective than notice by government website because newspapers have a broader readership. Over 44 million people subscribed to a daily newspaper in 2014.[1] Although the public conversation about newspapers tends to focus on the shift to digital, over 80 percent of readers continue to read a print version of their newspaper[2]. Moreover, newspaper readership in small communities is especially strong; two-thirds of the adults in such communities read a local newspaper at least once a week. More than four in 10 of those readers say newspapers and their websites are their primary source of information.[3]
  • By contrast, government websites lack the dynamism that newspapers and their website and mobile versions use to draw regular readers, such as current sports, local news, weather and politics. Perhaps that is why only 5 to 7 percent of adults think federal, state or local governments are very effective at sharing data with the public, and 47 to 54 percent think they ineffective.[4] Moreover, government websites are primarily venues for transactional business, like permit applications, licenses, and tax payments, and for seeking information about government operations and facilities.[5]
  • Public notices in newspapers reach a civically engaged, influential audience that doesn’t read government websites. Of those who always vote in local elections, 27 percent are more likely to read the daily newspaper than a typical adult[6]. Seven in 10 of those voters read newspaper media in print, online or on mobile devices in a typical week, and nearly eight in 10 contribute money to political organizations.[7] History is replete with examples of newspaper readers who acted on a public notice after finding it in their local paper, or after reading a story in which the paper reported on the subject of the notice.
  • Relying solely on government-website notice disadvantages a wide swath of Americans who still do not access the Internet. Even EPA concedes, “in some instances, communities that are potentially affected by a proposed permitting action may have limited access to the Internet, and therefore may rely more on newspapers for receiving their information.” The latest research indicates that as of July 2015, 15 percent of U.S. adults did not use the Internet.[8] That figure was significantly higher for older adults in rural areas, for most of whom newspapers remain the primary source of news and information about local events. Lack of Internet access is also higher among minority populations, and among adults with less education and income.[9]
  • Moving public notices to government websites runs counter to a long-standing tradition in the U.S. Understanding intuitively that it is not a good idea to allow the “fox to guard the henhouse,” lawmakers have for over two centuries required public notices to be published in independent forums. In this time of heightened partisanship and suspicion, when significant segments of the population assume the worst about government agencies and the people who work for them, the state should be especially careful before deciding to eliminate this long-standing tradition. Allowing the government to publish the official record of its own activities removes an extra layer of confidence that having an independent publisher provides.
  • Notices published on government websites are not properly archived in a secure and publicly available format to be preserved for future reference. Once a notification is removed from a government website, or the platform on which it is published is changed, there will be no record that the public notice ever existed, frustrating researchers and historians. By contrast, notices published in newspapers are easily preserved. Newspapers are typically archived both by their publishers and by state and local libraries, where they can be easily retrieved for many years after their date of publication.
  • Notices published on government websites are not properly verifiable. Verification is vital because notice is an element of due process. When it is missing, it often becomes the cause of action in a lawsuit months after the notice was originally given. Printed notices are self-authenticating in court and newspaper publishers agree to provide an affidavit that can be used in evidentiary proceedings. Digital information, on the other hand, has not yet matured to a point where common standards are recognized in evidence, and presumptions of authenticity are undermined by regular reports of hacking and other problems in public websites.
  • The cost savings of eliminating newspaper notices are most likely illusory, and fail to account for digital expenses like server and digital storage cost; administrative salaries and ancillary costs to develop, proof, and upload the notices, and to administer the site; development of archiving capacity or ongoing links to other government repositories; affidavits and/or human witnesses in court proceedings to attest to the accuracy and publication date of contested notices; and the marketing cost of promoting government websites and their public notices.
  • EPA eliminated its newspaper-notice requirement under the Clean Water Act over a decade ago. If it had still existed, the problems with water quality in Flint, Michigan may have been discovered much earlier.
 

[1] “State of the News Media 2015,” Pew Research Center, April 29, 2015

[2] Ibid.

[3] “Two-thirds of residents in small towns and cities read community newspapers,” National Newspaper Association, Feb. 3, 2014

[4] “Americans’ Views on Open Government Data,” Pew Research Center, April 21, 2015

[5] Ibid.

[6] Nielsen Scarborough 2014 Newspaper Penetration Report, Feb. 18, 2014,

[7] Ibid.

[8] “15% of Americans don’t use the internet. Who are they?” Pew Research Center, July 28, 2015

[9] Ibid.

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