Academic journal article Fordham Urban Law Journal

Keynote Address: Consensus Building, Public Dispute Resolution, and Social Justice

Academic journal article Fordham Urban Law Journal

Keynote Address: Consensus Building, Public Dispute Resolution, and Social Justice

Article excerpt


It's a great pleasure to be invited. I want to talk about democracy. I also want to talk about public dispute resolution, social justice, and how these three topics fit together.

Imagine the following scenario: a small city, wherever you like; a proposed industrial development project of whatever kind is proposed. The city council and a number of other boards and permitting agencies in the city must say yes if this is to go forward. It involves something bigger than what the general regulatory system is set up to handle. Thus, it will require a special permit. Indeed, a number of different boards and departments will have to give approvals.

There is no question that this project is desirable from the standpoint of producing jobs and sorely needed tax revenue. It's pretty clear that the environmental and public-health risks associated with this project are substantial enough to cause concern, especially if impacts are not appropriately mitigated and design options that would reduce those impacts are not pursued. So how will the decision about whether and in what form to permit this project get made? What is the normal democratic decision-making process in such situations in the U.S.?

The city council, which has to give at least a primary permit, taps one or more agencies to undertake studies of what is being proposed. The city council might hold hearings, supplementing those required under the zoning law with additional public meetings. There would probably be a lot of lobbying behind the scenes by people for and against the project, speaking through and to members of the city council as well as various agencies. There would undoubtedly be a lot of letters written to the newspapers protesting and supporting the project. There would probably be a lot of direct public appeals--in other words, the proponents would take ads in the paper, contribute op-eds, contribute editorials on the local TV channel, while the groups opposed would mobilize, in whatever ways they can, to sway public opinion against the project because of their worries about the environmental risks as well as their concern that the gains will all go to a small number of out-of-city gainers, and not to local people who ought to be benefiting from the project.

At some point, the city council will vote. The majority will rule. Then there's likely to be litigation. It is highly unlikely that the vote in favor, granting the permits, will be definitive. Rather, we would expect somebody to say, "I want another bite at the apple. I don't like that decision." It doesn't matter which side; it could even be both sides. So they will litigate, because the primary venue for democratic decision-making in these kinds of cases is the court. Other opportunities are insufficient to convince those adversely affected that their interests have been adequately addressed. Then, whether the litigation succeeds or not, we'll look to the next election to change the membership of the council so that those who were unhappy can try again to make sure the outcome is different the next time a project like this is proposed.

I call this the conventional procedure for making decisions of these kinds in our democratic society. It offers a measure of accountability through the electoral process. It incorporates technical and expert input via the staff of public agencies. It builds on freedom of speech, so people can have a say. How and whether that say gets taken into account by our elected and appointed officials, however, is not clear. Nor is it clear what democracy requires in that regard.

Now consider this alternative. A project is proposed, conceptually, at a very early stage, to the council. The council says to the proponents, "Terrific. We want to set in motion a process to see if consensus can be reached on whether a project like that in the place you have in mind ought to go forward. If so, what stream of benefits and costs--gains and losses--are likely to be associated with it in the minds of those who see themselves as stakeholders? …

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