A Civic Republican Perspective on the National Environmental Police Act's Process for Citizen Participation
Poisner, Jonathan, Environmental Law
For the last twenty-five years, the United States has conducted a grand experiment in democracy. The administrative agencies of the executive branch of the federal government have opened their decision-making processes to unparalleled levels of citizen input and scrutiny. Environmental statutes have led this massive attempt to allow and encourage citizen participation.(1) Virtually every federal environmental law passed in the 1970s contains significant provisions for citizen participation in the decision making of implementing agencies.(2)
This experiment in democracy does not fit well with a civics textbook understanding of American government.(3) Citizen involvement has traditionally focused on the legislative branch, through periodic elections, not the executive branch.(4) The precise role for citizens in the execution of the law remains unclear. Two decades of practice have, to be sure, firmly embedded in the American psyche the notion that people have a "right" to participate when execution of the law affects them.(5) Nevertheless, the purpose of that participation remains vague, at best. Administrators must listen to citizens. But what are they to do with the information they hear?
The time seems ripe for an evaluation of this experiment in citizen participation. Sufficient time has passed that one can no longer argue that it is too early in the experiment to conduct a meaningful evaluation. In addition, public confidence in the administration of government appears to have gone down, not up, during this period. If so, this trend suggests that one touted purpose of citizen participation, greater confidence in government,(6) has not been achieved.(7)
In evaluating this experiment, this Article focuses upon whether existing modes of citizen participation encourage deliberation in decision making. Calls for a more deliberative democracy have become quite commonplace.(8) According to proponents of deliberation, the long-term health of American democracy depends on certain forms of discussion.(9) The purposes of deliberation include the creation and implementation of the common good of the community and the inculcation of civic virtue in the participants.(10)
In examining whether the current form of citizen participation in environmental decision making encourages deliberation, this Article evaluates the National Environmental Policy Act (NEPA).(11) NEPA provides an appropriate focus for several reasons. First, citizen participation in the creation of NEPA-mandated Environmental Impact Statements (EISs) has, in all likelihood, spawned the largest amount of citizen participation in environmental decision making over the last two decades.(12) Second, many have often touted NEPA as a model of how federal environmental laws allow for useful citizen input, leading many states to adopt so-called "baby-NEPAs" governing state action.(13)
Part II introduces the deliberative ideal of democracy, discussing its theoretical justifications and comparing it to two alternative understandings of decision making: synopticism and pluralism. Based on the justifications for a deliberative approach to democracy, this part develops criteria to judge whether a citizen participation program is deliberative.
Parts III and IV examine the evolution of citizen participation under NEPA. Part III discusses the Act itself, along with implementing regulations adopted in 1973 and 1978. Part IV examines the cultural paradigms under which NEPA public participation has developed. Further, Part IV tells the two dominant "stories" of NEPA, each based on its respective belief in either synopticism or pluralism as the appropriate mode of collective decision making about environmental issues.
Part V evaluates NEPA's citizen participation process in light of the criteria developed in Part II, concluding that NEPA fails as a means for encouraging deliberative democracy. …