Public participation in environmental decisionmaking at the new millennium: Structuring new spheres of public influence

Boston College Environmental Affairs Law Review, Winter 1999 by Spyke, Nancy Perkins

In recent years, commentators and government officials have realized the importance of effective solicitation and integration of public participation in environmental decisionmaking. A plethora of theories and strategies designed to encourage decisionmakers to consider public input an integral part of policy development and implementation have been introduced. A similar number of methods to increase the public's feeling of connection to the decisionmaking of their government have been suggested. This article suggests a framework in which the various forms of public participation may be organized, so that participants can become cognizant of the role they play in the overall process of environmental control. Such a framework will enable presentation of the many diverse forms of public participation as a cohesive system, as opposed to a jumble of unrelated efforts. As such, the framework can be used as a guide for decisionmakers and the public alike, to coordinate efforts and foster an understanding of how individual forms of participation combine to animate public involvement as a whole.

INTRODUCTION

Nearly thirty years ago, the United States Court of Appeals for the Second Circuit resolved a protracted power plant licensing dispute in the case of Scenic Hudson Preservation Conference v. FP.C.1 Lamenting the inadequacies of public participation in the plant's siting decision, Judge Irving R. Kaufman remarked:

[I]f I were an environmental activist, I would not have any great feeling of satisfaction that the procedures leading to the final decision permitted or, perhaps more importantly, encouraged maximum input and participation by interested and affected groups .... I fear that public participation was far from full or effective in any sense that looks beyond the boundaries of technical openness. The basic defect in the process, as I see it, was the inevitably narrow scope of the decision the agency had to make .... 2

The decisionmaking process has evolved in ensuing years, and numerous attempts have been made to address the deficiencies noted by Judge Kaufman.

Today's environmental decisionmaking invites extensive public participation, guided by ecosystem-wide factors3 and neorepublican theory.4 These developments target the narrowness that troubled Judge Kaufman, but they do not represent a panacea. The fact remains that public participation occasionally triumphs where narrow interests predominate. Some localized problems, for example, can be adequately resolved by focusing on isolated issues.5 Other environmental problems can be addressed by putting values aside and yielding to technical expertise.6 A successful approach to public participation in environmental decisionmaking must accommodate these realities as well as the newer, more comprehensive and value-based insights.

In the relatively brief history of modern federal environmental law, public participation in the decisionmaking process has played an important role. Numerous authors have analyzed its promises and shortcomings: some point to public participation weaknesses in general, others offer suggestions for improvement, some focus on public participation in discrete environmental areas, while other commentators consider public participation in the context of larger issues. Not surprisingly, the diverse scholarship fails to reveal a comprehensive solution that would erase existing problems; neither does it disclose a unifying theme to help shape the next generation of public participation in environmental decisionmaking.

A handful of separate trends emerges, however. First, there is no question that federal agencies are becoming increasingly committed to improving the quality and quantity of public input in the decisionmaking process. An ecosystem or regional approach to environmental decisionmaking is also taking hold, as are efforts to assure widespread consideration of environmental justice issues. Additionally, agencies are making conscious efforts to compile data to measure the success or failure of public participation programs. Finally, the utilitarian or pluralistic approach to environmental regulation is beginning to give way to one that is more fully informed by public values.7

These trends inevitably suggest that a one-size-fits-all approach to public participation in environmental decisionmaking is no longer acceptable. In its place is a system that promotes inclusiveness and flexibility, but runs the risk of being unwieldy, incoherent and ad hoc. The ideal form of public input no doubt depends on the environmental decision at hand, but some type of overall framework is needed to assure that those involved in individual decisions are cognizant of the relationship between their decisions and the entire process of environmental control. Any such framework must be adaptable enough to allow localized participation programs to operate primarily under a limited universe of considerations, must allow common values to inform policy formation as well as implementation, and must make use of an ecosystem approach to environmental planning.