Understanding citizen perspectives on government decision making processes as a way to improve the administrative state.

• Author: Markell, David L.

1. INTRODUCTION II. AN OVERVIEW OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION AND ITS CITIZEN SUBMISSIONS PROCESS A. An Overview of the CEC B. The CEC Citizen Submissions Process III. THE TRACK RECORD OF CITIZENS' USE OF THE CEC CITIZEN SUBMISSIONS PROCESS. A. Overall Use of the Process B. A More Nuanced Review of the CEC Track Record. IV. USING THE LITERATURE ON "PROCEDURAL JUSTICE" AS A POSSIBLE FRAMEWORK FOR CONSIDERING THE DESIGN AND IMPLEMENTATION OF GOVERNMENT DECISION MAKING PROCESSES, INCLUDING THE CEC CITIZEN SUBMISSIONS PROCESS V. ASSESSMENTS OF THE CEC CITIZEN SUBMISSIONS PROCESS IN LIGHT OF ITS TRACK RECORD AND THE PROCEDURAL JUSTICE LITERATURE A. Opportunities for Meaningful Participation B. Neutrality and Trust VI. CONCLUSION I. INTRODUCTION

   Agency officials in the contemporary administrative state have enormous power to carry out the work of government. (1) While the President, (2) Congress, (3) and Judiciary (4) each has some capacity to serve as an institutional check on the actions of agency officials, (5) it is widely believed and understood that despite these checks agency staff have "staggering discretion" in carrying out their responsibilities. (6)

   The enormous power that unelected agency officials wield, with limited oversight, has spawned an extensive literature concerning the legitimacy of the administrative state. (7) Indeed, Professor Jody Freeman has suggested that "[a]dministrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy." (8) These accusations have focused on a variety of purported flaws, including unaccountability of agency officials, (9) a lack of transparency in the operation of the state, (10) limited opportunities for public participation, (11) and dissatisfaction with agency performance. (12)

   The question of how institutions build legitimacy is an extraordinarily difficult one that remains largely "unanswered." (13) There has been strong support for increasing citizens' opportunities to participate in governance as a way to increase government legitimacy and to address some of these perceived flaws in the operation of the administrative state. Professor Jim Rossi, for example, suggests that "[o]ver the last thirty years or so, courts, Congress, and scholars have elevated participation to a sacrosanct status." (14) He notes that "recent reform efforts are consistently geared to enhance broad-based participation in the agency decision making process." (15) Dean Edward Rubin similarly has observed that "[p]articipatory democracy is a very fashionable idea these days." (16) Proponents suggest that greater opportunities for public involvement in agency decision making processes may help to enhance accountability and transparency in governance, contribute to more informed, and thereby improved, results, (17) and foster a greater degree of connection between the governed and the governing (and a blurring of the line between the two) that leads to greater social capital and societal trust. (18)

   This Article explores the design of governance mechanisms that are intended to incorporate meaningful citizen involvement as a strategy to enhance legitimacy. (19) It does so by focusing attention on what is a central, threshold question: what is it that citizens like (and dislike) about government decision making processes (particularly administrative agency decision making processes) that purport to value citizen involvement? (20) A potentially valuable step in fostering citizen participation in government decision making processes is to incorporate in these processes features that are important to citizens. (21) Processes that citizens value are likely to be processes that citizens use and that enhance citizen confidence in government, while processes with features that citizens find unsatisfactory are likely to be processes that do not engender meaningful citizen input; they may even operate to undermine citizen confidence. (22)

   This Article explores ways in which the "procedural justice" literature on citizen satisfaction makes it possible to shed some light on this question of citizen preferences in government decision making processes--i.e., to develop some insights about the types of features citizens think are most valuable or important in decision making processes that incorporate a role for them. (23) The procedural justice literature provides a conceptual framework for considering citizen satisfaction with opportunities for involvement in agency decision making. This literature offers a framework for structuring decision making processes in order to engender citizen satisfaction by identifying features of government decision making processes that are likely to be of particular salience to citizens. (24)

   After reviewing a basic framework that the procedural justice literature proposes for assessing citizen satisfaction with decision making processes, I apply this framework to a decision making process that relies heavily on citizen participation, the Commission for Environmental Cooperation's (CEC) citizen submissions process. This process, which empowers citizens to file complaints in which they claim that any of the North American countries is failing to effectively enforce one or more of its environmental laws, was created with the hope that it would increase government accountability and transparency, that it would inform the exercise of agency discretion, and that it would bolster government effectiveness. As Part III reflects, there is considerable evidence that the process is floundering (or at least not flourishing), at least in the United States. I consider this performance (the track record of the process) in light of the procedural justice literature in order to explore why this may be the case, and what might be done to improve citizen perceptions of the process. The premise, as noted above, is intuitively quite straightforward: understanding the features that citizens like (and dislike) in decision making processes is a potentially important step in structuring decision making processes that are intended to enhance the quality of governance by incorporating meaningful citizen involvement. (25)

   Parts II and III of this Article provide contextual information about the CEC. Part II provides an overview of the CEC including a brief history, a summary of the purposes of the CEC citizen submissions process, and an overview of the actual operation of the process. Part III reviews the track record of the CEC citizen submissions process with a particular focus on patterns of citizens' use of the process. A key finding discussed in Part III is that citizens' use of the process in the United States has slowed dramatically.

   Part IV reviews the procedural justice literature on citizen satisfaction with decision making processes. This literature suggests that citizens' assessments of the fairness of third-party decision making procedures is important to judgments about the legitimacy of such processes, independent of the outcomes of such procedures, a result that some have characterized as "counterintuitive." The procedural justice literature provides a framework for considering the extent to which citizens are likely to judge particular processes to be fair or just.

   Part V contains an assessment of the citizen submissions process in the context of the procedural justice literature, the track record of the CEC process, and commentary about the process. This Part identifies various features of the process that seem potentially to raise procedural justice concerns. Part VI reinforces the potential value of empirically-based research for the design and evaluation of processes of governance and suggests additional research that will advance understanding of processes that are intended to incorporate meaningful citizen involvement. The yield from this effort, hopefully, will be to encourage greater consideration of empirical work in the design and implementation of institutions of governance, (26) and, ultimately, to motivate creation of government decision making processes that embody the lessons learned from such work and hopefully prove more effective than current approaches in enhancing citizen confidence in governance.

2. AN OVERVIEW OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION AND ITS CITIZEN SUBMISSIONS PROCESS (27)

   1. An Overview of the CEC

      The North American Free Trade Agreement (NAFTA) Environmental Side Agreement, the North American Agreement on Environmental Cooperation (NAAEC), (28) emerged from the NAFTA negotiations among the three North American countries, Canada, Mexico, and the United States, to liberalize trade throughout the continent. (29) While proponents of NAFTA touted it as the "'greenest' trade agreement ever," (30) skeptics and other opponents were dubious. (31) Some participants in the NAFTA debate pushed for creation of an "environmental side agreement" that would create an environmental commission that would focus on strengthening North American environmental governance and protecting the North American environment. (32) There was considerable jockeying about the need for such an institution and about its possible shape and powers. (33) Ultimately, these negotiations produced sufficient support for NAFTA to allow its passage, accompanied by adoption of an "Environmental Side Agreement," the NAAEC. (34)

      The NAAEC created a new international institution, the CEC. The CEC has been termed a "brave experiment in institution-building." (35) Among other things, the CEC: 1) is the "first of its kind in the world in linking environmental cooperation with trade relations", (36) 2) has "innovative tools and almost unlimited jurisdiction" (37) to address "almost any environmental issue anywhere in North America", (38) and 3) "provides unprecedented opportunities for participation by civil society at the international level." (39)

      The CEC has three players: 1) a...