A civic Republican perspective on the National Environmental Police Act's process for citizen participation.

• Author: Poisner, Jonathan

1. INTRODUCTION

   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. In both design and implementation, NEPA processes serve the synoptic and pluralist models. Each model fails to satisfy the deliberative ideal. As a result, NEPA citizen participation generates more heat than light, creating citizen participation pathologies that leave both citizens and agencies frustrated by the process. In closing, Part VI suggests possible reforms to NEPA that would make the process more deliberative.

2. THE DELIBERATIVE IDEAL

   1. The Deliberative Ideal Introduced

      The concept of deliberative democracy has recently gained significant attention. It has helped explain such diverse phenomena as public health law,(14) campaign finance regulation,(15) voting rights,(16) term limits,(17) and environmental law.(18) At the risk of great oversimplification, deliberative decision making refers to a mode of discussion in which participants engage in reasoned discourse about what action serves the common good of the community involved.(19)

      The political philosophy of civic republicanism provides the theoretical underpinning of the deliberative ideal.(20) Civic republicanism is a constellation of beliefs centering around 1) the existence and legitimacy of public values and the common good, 2) the use of citizen deliberation as the principal democratic decision-making tool, and 3) the state's legitimate role in fostering civic virtue among its citizens.(21) While modern civic republicans often disagree as to specific moral underpinnings of the philosophy, most civic republicans advocate some form of deliberative democracy.(22)

      The deliberative ideal can best be introduced by distinguishing it from two other common modes of discussion, pluralism and synopticism. Pluralist decision making refers to a mode of discussion in which private interests bargain with each other over how to maximize their own interests.(23) From this perspective, the competitive economic market, where citizens may express their individual desires on a level playing field, provides the ideal.(24) However, the pluralist recognizes that governments must sometimes make decisions without the use of markets. In those instances, the pluralist analogizes the government decision to that of a market, arguing for the creation of a level playing field in which all parties may use political pressure to influence the final outcome of a decision. Political posturing and strategic bargaining become the principal mode of discussion that ensues from a belief in the pluralist model.(25) Philosophically, the core of the pluralist thought is the belief that there is no such thing as common good or "public interest," just private interests in aggregate forming an overall social utility.(26)

      Synoptic decision making, in contrast, refers to a mode of discussion in which professionals exchange data so that they can then apply preset scientific rules to determine the optimal decision.(27) Synoptics generally agree with pluralists that the goal of government decision making is the maximization of overall social utility.(28) According to synoptics, however, most of the time government professionals can best determine the means to reach that goal. The technical nature of disputes, requiring decision makers to arrive at solutions in a reasoned discussion focused upon data and methodology, synoptics believe, place professionals in a better position than individual citizens.(29) Rather than creating a level playing field for political action, synoptics prefer to divorce environmental decision making from politics. Public participation is consistent with the synoptic process only so long as it conforms to the scientific model.(30)

      Pluralists and synoptics, while disagreeing as to what mode of decision making best aggregates individual interests, share a core belief that such a maximization of aggregate individual utility provides the goal of government policy.(31) Civic republican advocates of deliberation, in contrast, do not believe that individual utility, however aggregated, can entirely capture the range of goals appropriately pursued by a democratic society.(32) Community, from the civic republican perspective, denotes not just a collection of individuals, but a set of relationships that can give rise to goals not capable of being expressed in individual terms.(33) Civic republicans believe that citizens can work together to "create" a common good for the community.

      1. Common Good

         Descriptions of the common good often refer to the concept of public values. For civic republicans, public values differ categorically from a mere summation or accommodation of private preferences.(34) Mark Sagoff defined public values as

         goals or intentions that people ascribe to the group or community of

         which they are members; such values are theirs because they

         believe and argue they should be theirs; people pursue these values not as

         individuals but as members of the group. They then share

         with other members of their community intersubjective intentions or,

         to speak roughly, common goals and aspirations, and it is by

         virtue of these that a group or community to a group or community.(35)

         Sagoff devoted much of his book, The Economy of the Earth,(36) to refute the notion that one can reduce all such public values to individual preferences. For civic republicans, public values are not "merely matters of taste."(37) More importantly, some public values can find expression only through state action.(38)

         For many civic republicans, environmental legislation provides a paradigmatic example of public values at work.(39) As Sagoff noted, much of environmental law "expresses what we believe, what we are, what we stand for as a nation."(40) Sagoff further wrote:

         Statutes enacted during the 1960s and 1970s . . . resulted from political

         deliberation about what a decent, self-respecting society with a particular

         history would do about the workplace, the environment, civil rights, and

         public safety and health. These laws express a common perception of ourselves

         and the values we stand for as a moral community; they are not intended to

         satisfy...