CHAPTER 11 PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING
| Jurisdiction | United States |
(Mar 1997)
PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING
Avra Rubalcava 2
University of Chile Faculty of Law
Santiago, Chile
INTRODUCTION
I. THE CONCEPT OF PUBLIC PARTICIPATION
II. THE LAW OF PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING: INTERNATIONAL AGREEMENTS AND MULTILATERAL LENDING INSTITUTIONS
A. International Law
B. International Lending Institutions
III. PUBLIC PARTICIPATION UNDER NATIONAL LEGAL REQUIREMENTS:
A. General Observations
1. Access to Information
2. Judicial Remedies
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3. Environmental Impact Assessment Processes
(a) The Example of Peru
B. National Systems
1. Argentina
(a) Environmental Impact Assessment Regulations in Argentina
(b) Public Participation in the Federal and Provincial Argentine EIA Regulations
1 Hydrocarbons
2. Natural Gas
3. Hydroelectric Projects
4. The Mining Industry:
5. EIA Regulations for the Province of San Juan
6. EIA Regulations for the Province of Mendoza
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7. EIA Regulations for the Province of Cordoba.
2. Bolivia
(a) Bolivia's EIA System
(b) Public Participation
1. Public Participation Provisions in the General Environmental Management Regulation.
2. Public Participation Provisions in the Regulation on Environmental Prevention and Control.
3. Chile
C. Conclusions
V. STRATEGIES FOR PUBLIC PARTICIPATION
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INTRODUCTION
A wide variety of legal, administrative, and business concerns march under the banner of "public participation." On one level, these interests amount to no more and no less than a general concern for observance of the most fundamental human political rights guaranteed by the Universal Declaration of Human Rights or the Charter of the United Nations on the international level, and innumerable constitutions and charters at the national level: rights such as the right to petition government for the redress of grievances, the right to freedom of expression on public issues, the right peaceably to assemble to discuss matters of common interest, and the right to expect that one's life, health, and property will be protected against arbitrary and unwarranted invasion.3
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These concerns seem so basic as hardly to merit a mention from the comfortable perspective of developed countries where they are often deeply ingrained in the national political tradition. From the perspective of a citizen of China with some anxiety about being relocated, along with 1.2 million fellow citizens, by the Three Gorges Dam project,4 or an Indonesian community group with some questions about why the fish on which the village depends for its livelihood are disappearing from the river, or a resident of southern Iraq worried about the dramatic consequences of draining of wetlands, or Nigerian activists with some problems with environmental impacts of oil production, these very basic rights may seem a very distant dream.
On a very basic level, the proposition that all of us have a joint interest in preserving the productive capacity of the Earth's natural systems, and in protecting human health, would seem to be relatively noncontroversial. When we move from that general level to specific ideas about how to achieve those
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very general goals, few areas present more potential for political controversy. It is vital to our common future that these issues be discussed, but the very fact of discussion can appear threatening to those with an interest in the status quo.
In repressive political systems which attempt simply to suppress that controversy, the result is predictable: a growing honor roll of those who have had to endure all the abominable techniques of compulsion the human imagination can devise, in most cases simply because they insist on discussing issues which almost all of us would clearly concede are the legitimate subject of public discourse. For the bravest and the most outspoken, this has in too many instances resulted in death, not of the issues, but of those who have taken a leadership role in espousing them.
In contrast, the most developed countries not only generally respect at least the basic political rights to discussion of environmental issues, but have well articulated legal and regulatory provisions designed to give those general rights concrete effect. These are the tools necessary to provide effective access to information, judicial control over arbitrary actions by administrative bureaucracies, requirements for hearings, publication of environmental impact assessments, notification of impending decisions, and effective specific remedies when generally expressed political rights are infringed.
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The focus of this paper is on the developing countries which fall into neither of these groups: countries in which basic political rights of the citizens are generally respected, within rather broad limits, but which are still in the process of working out the specific statutory, regulatory, and judicial measures to provide just, speedy, and inexpensive means of ensuring effective public participation in the making of environmental decisions. This paper will discuss specific examples of how this body of law is growing in a number of South American countries with which the authors have some experience.5
This is not to say that there is nothing of interest presented by the other two groups of countries. Many developed countries still have major flaws in their systems of public participation, and there are obvious examples of areas in which more modern legislation in developing countries presents ideas which improve on older systems in the developed world. The U.S. system of environmental impact statements under the National Environmental Policy Act is just one example of a system which could benefit by incorporating newer ideas.
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And just as international standards of human rights in general can serve, if nothing else, as a base line against which to measure the shortcomings of the world's surviving authoritarian regimes, recognizing international principles of public participation is one way to move toward their broader application.
This paper will discuss the concept of public participation (Section I); the growing international recognition of rights to public participation in environmental decisions (Section II); developing bodies of law regarding rights of public participation in several South American countries (Section III); and some aspects of business strategies for dealing with public participation in these regulatory climates (Section IV).
I.
THE CONCEPT OF PUBLIC PARTICIPATION
Environmental management of a project involves dealing with a three dimensional matrix, in which a proposed project interacts with the physical environment around it and with the social system with which they both coexist. Changes in any one of the three dimensions create changes in the other dimensions. All of these have consequences in the short and long run, cost consequences, and consequences in the form of changes in associated levels of risk.
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Typically, good project management involves mediating a series of adjustments in all three dimensions to create a project which is optimized in the very broad sense of its overall value to its proponent.
Increasingly, this optimization of the total value of the project — including the social dimension — is seen as a more appropriate corporate goal than "optimization" in the narrow technical sense of maximizing short term output, or minimizing short term cost.6 It involves a recognition that
"[a]s companies improve the identification and allocation of existing internal costs, they are finding that it is in their own interest to plan ahead and incorporate future impacts in the planning process. Environmental problems should be anticipated and managed while also recognizing and capitalizing on new opportunities arising from efficiency gains."7
This has enormous implications for the public participation process.
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If environmental protection is nothing more than a purely technical process of identifying physical impacts and adjusting them until all of them fit within "acceptable" ranges, it is hard to imagine a role for public participation beyond letting an independent party check the company's math, and letting the corporate consultants explain how everything has been taken care of. Assuming that the company has done its technical job right, and all the numbers fit within the acceptable ranges, that should, in this view, end the issue. If we accept this "technical" model of environmental decisionmaking, any further concern expressed by the public is (1) a result of ignorance and a stubborn refusal to listen to the answers, which have all been presented, (2) a product of irrational fears, or (3) a result of hidden agendas, rather than genuine concern about environmental issues. Often, the opposition is seen as a combination of all three: the people with the hidden agendas skillfully playing on ignorance and deviously stirring up irrational fears in order to further their undisclosed but presumably wicked goals.8
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If the process is seen as two dimensional: the project one hand and its interactions with the environment on the other, and the task at hand as simply assuring that all the identifiable interactions fall within specified numerical limits, it is not at all clear what these "non-technical" citizens are doing in the middle of the process, gumming up what would otherwise be a
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straightforward engineering exercise. A public participation process approached with this perspective is likely to turn conflictive and produce unsatisfactory results in the view of all concerned.
If we accept instead the more complex three dimensional model, in which there are also important reciprocal...
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