CHAPTER 6 PUBLIC INVOLVEMENT AT THE ENFORCEMENT LEVEL: ENVIRONMENTAL AGENCY INTERVENTIONS
| Jurisdiction | United States |
(Nov 1981)
PUBLIC INVOLVEMENT AT THE ENFORCEMENT LEVEL: ENVIRONMENTAL AGENCY INTERVENTIONS
University of Denver
Denver, Colorado
If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost.
— Aristotle, Politics, Book IV
The public be damned.
— William H. Vanderbilt
I. INTRODUCTION
Somewhere between the views of an Aristotle or a Vander-bilt must lie an appropriate level for public involvement in the work of our government regulatory agencies. Defining the proper level or "model" of public participation has been a source of endless fascination for legal scholars1 and, conversely, of anguish and not a little paranoia for those actually affected — the regulatory agencies, the regulated industries, and the public representatives.
It is customary for us now to speak — complacently or disparagingly as befits our point of view — of "the recent and dramatic expansion" of citizen intervention rights.2 The complacency of the public or disparagement of the regulated may not be warranted in fact. True, there has been a dramatic
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verbal expansion of public interventionism, in the wording of statutes, regulations, case law, and media attention. But inherent restraints on the public sector — restraints of time, funding, attorney and expert resources,3 and even of identity4 — reduce its interventions to a very minor role in overall government regulation.
This paper first addresses the verbal expansion and its rationales, then analyzes the actual public-involvement opportunities in illustrative federal environmental and natural resource agencies. This involvement can focus on either of the two major agency-action areas: (1) rulemaking (formal/"on-the-record" and informal/"notice-and-comment") and (2) adjudication (formal/"trial-type" and informal) including most rate-making.5 The involvement also falls into two basic categories of participation rights: (1) the right to intervene in agency proceedings already initiated by others and (2) the right to require the agency to initiate such proceedings.6
II. ROOTS OF THE "EXPANSION"
The traditional model of administrative law,7 characterizing the first half of this century, envisioned administrative agencies as "institutions in which disinterested experts would be able to order certain areas of life by means of comprehensive and rational planning."8 Thus, it was the role of the agency itself to represent the "public interest." Reality, however, generally resulted in agency decisions with a persistent policy bias favoring regulated interests, the so-called "capture syndrome."9
Over the past twenty years increasing dissatisfaction with regulated industry domination of administrative agencies has resulted in the emergence of a new model of administrative law. This model — the "public interest representation model" — allows for a diversity of public input in all stages of the administrative process by expanding the rights of participation of the "affected public."10
The potential advantages of public involvement are impressive:
(1) Information content: "Outsider" participation provides agencies with a greater range of ideas and information on which to base their decisions and helps assure responsive and responsible agency determinations.11
(2) Safety valve: Interested parties can assert their views prior to announcement and implementation of policies, increasing public acceptance of the decision.12
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(3) Procedural safeguard: Multiparty involvement can better ensure that agencies observe the highest procedural standards.13
(4) Enforcement: Public input may ease enforcement problems and expand the policing capabilities of budget-strapped agencies.14
(5) Confidence: The interest representation model measurably enhances public confidence in agency performance and fairness.15
(6) Objectivity: Broader participation promotes agency autonomy, and therefore objectivity, by providing an alternative basis for political support.16
(7) Diversity: Open participation may induce regulated parties to seek accommodation of other viewpoints, thereby expanding public benefits.17
(8) Record: Presentation of alternative perspectives contributes to the building of a complete record for judicial review, increasing the likelihood an agency will give outside viewpoints fair consideration.18
(9) Policy-forcing: Finally, interventions have "policy-forcing" advantages, the potential for elevating a paper-processing routine into a careful consideration of major issues of regulatory policy.19
The major disadvantages perceived in public involvement are several:
(1) Obstructionism: Multiparty participation is viewed (by the regulated) as giving rise to delay or (by the agency) as overtaxing time and personnel resources. However, the courts have been notoriously unsympathetic to such defenses, preferring instead to accord the agencies "broad discretion" in structuring public participation to maximize involvement while minimizing delay.20
(2) Representation: Legitimate debate rages over what constitutes the "public interest" in a pluralistic society and whether given intervenors qualify to represent "it."21 Again, this selection issue is viewed by the courts, not as a barrier, but as lying within the agency's task of properly structuring interventions.22
(3) Contribution: The non-expert nature of many public interventions raises the question of how much they contribute
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substantively to the proceedings. However, as discussed above, new information content is only one of the advantages of public intervention; controlling irrelevancy again would seem to be a function of agency procedural structuring, both in selection and scope of allowed involvement.23
(4) Harrassment: Primary parties are always concerned lest an intervenor utilize its status to harrass: using discovery demands, motion practice, or other tactics to distract from the merits or otherwise embarrass the primary parties. Courts seldom give this concern credence before the fact, preferring to take a wait-and-see approach through protective orders.
III. THE COURTS' ROLE IN EXPANSION: STANDING
A. INTERVENTION
Reacting to these "roots," the courts have in recent years taken the lead in expanding public participation in agency decisionmaking, principally by relaxing the requirements of "standing."24
In the first part of this century, standing to seek judicial review of an agency determination was limited to those with a "legal right" adversely affected by the agency decision.25 Originally this right applied only to legal interests protected by common law but, by the late 1930s, included those protected by statute as well. At first, however, arguable "statutory beneficiaries," such as consumers, were generally denied standing in the absence of an express statutory warrant, because of the traditional assumption that the agency would adequately protect such public interests.
As discussed above, faith in this assumption waned, leading to two landmark decisions — Scenic Hudson Preservation Conference v. FPC26 and Office of Communication of the United Church of Christ v. FCC27 — which greatly expanded standing rights of implied statutory beneficiaries.
In Scenic Hudson, environmentalists sought review of an FPC decision to license a pump-storage electric generating plant on the Hudson River. The court granted standing under a statute which allowed judicial review to a party "aggrieved" by an FPC order and required FPC approval of a project if it was "best adapted to a comprehensive plan...for other beneficial public uses, including recreational purposes." The court ruled that the term "aggrieved party" impliedly granted standing to petitioners with aesthetic, conservation, and recreation interests.28
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In Church of Christ, the court specifically found agency inability to represent consumer interests adequately sufficient reason to grant listeners standing both to intervene in an FCC licensing proceeding and to seek judicial review of an FCC decision. Suggesting undue agency deference to regulated interests and concluding the agency failed effectively to represent listener interests during license renewal proceedings, the court stated "responsible and representative groups" must be allowed input.29
The Supreme Court decision in Association of Data Processing Service Organizations v. Camp30 further liberalized standing. That decision found that, even where the governing statute is silent as to judicial review, the Administrative Procedure Act31 will confer standing on those suffering "injury in fact" due to agency action and who fall "arguably within the zone of interests to be protected or regulated" under a relevant statute.32
A combined reading of these cases, and cases such as National Welfare Rights Organization v. Finch,33 shows the scope of potential public involvement rights. Any party generally within the "zone of interests" to be protected or regulated under a statute arguably has the right to participate in an agency proceeding if there exists a possibility of material "injury in fact" to the relevant interest.34
B. INITIATION
The right to intervene in on-going proceedings is of little value if the agency settles controversies or develops (or rejects) policies by informal processes, where there is nothing to "intervene in." This problem usually arises in the context of public attempts to initiate (1) agency inspection or enforcement proceedings and (2) rulemaking, in order to uphold statutory or administratively promulgated mandates.
Here, as well, the traditional approach was that an agency decision whether or not to institute enforcement or rulemaking proceedings was generally not subject to judicial review, "despite the possibility that agency...
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