Turning Participation Into Power: A Water Justice Case Study

Date01 August 2022
AuthorJaime Alison Lee
by Jaime Alison Lee
Jaime Alison Lee is Associate Professor of Law and Director of the Community
Development Clinic at the University of Baltimore School of Law.
I. Introduction
is Article oers a reva mped model of participatory
governance—t he Constituent Empowerment Model (CE
Model)—which armatively shifts power to the voices of
marginalized constituents so that they can inuence gov-
ernmental policy. e CE Model focuses on three concepts
necessary to produce this shift in power to those who are
traditionally unheard: operationalized (feasibly realized)
participation; constituent primacy; and str uctural account-
ability. To illustrate how a CE system might be construc ted,
this Article examines a model recently adopted in the city
of Baltimore, Maryland, that is designed to shift the bal-
ance of power between the water utility and its customers.
Baltimore oers a blueprint for how this new form of par-
ticipatory governance could make local institutions more
responsive to the needs of disempowered constituents.¹
II. Participatory Governance:
Foundations and Vulnerabilities
A. A Brief Introduction to the Foundations
of Participatory Governance and
Its Vulnerabilities
Participator y governa nce encoura ges problem solv ing that
is meaningfully inuenced by broad constituent input
Editors’ Note: This Article is adapted from Jaime A. Lee,
Turning Participation Into Power: A Water Justice Case
Study, 28 GEO. MASON L. REV. 1003 (2021), and used with
1. See, e.g., Nestor M. Davidson, Localist Administrative Law, 126 Y L.J.
564, 572 (2017):
Local agencies also often operate at the edge of a blurry line be-
tween governmental action and public participation. Community
engagement in zoning regulation, school board decisions, police
review commissions, and other examples of the blending of public
and private underscore the breadth of citizen participation in local
agency work that is uncommon at the federal level.
during each stage of the process, including problem iden-
tication, solution development a nd implementation, and
long-term monitoring, renement, and accounta bility.²
Many laud the potential of participatory sys tems to include
more diverse perspectives and thus improve government
policy. However, participatory systems ca n also be appall-
ingly ineective.³ Participatory systems too frequently
solicit constituent input, yet ultimately disregard it, result-
ing in procedures that are merely cosmetic and produce no
meaningful reform or benet.
e core critique is that consensus-based “roundtable”
discussions amount to little more than a negotiation, which
favors those with preexisting power. is is problematic
2. Other scholars use dierent formulations and denitions. E.g., Orly Lobel,
e Renew Deal: e Fall of Regulation and the Rise of Governance in Contem-
porary Legal ought,  M. L. R. 342, 405 (2004); Charles F. Sabel &
William H. Simon, Minimalism and Experimentalism in the Administrative
State,  G. L.J. 53, 79 (2011).
3. See, e.g., Cristie Ford, New Governance in the Teeth of Human Frailty: Les-
sons From Financial Regulation, 2010 W. L. R. 441, 477-80; 484-86;
Michele E. Gilman, Five Privacy Principles (From the GDPR) the United
States Should Adopt to Advance Economic Justice, 52 A. S. L.J. 368, 437-
39 (2020) (discussing “many barriers to eective public participation that
must be addressed to ensure that participation is meaningful, rather than
mere window dressing”); Jaime Alison Lee, Can You Hear Me Now?”: Mak-
ing Participatory Governance Work for the Poor, 7 H. L.  P’ R.
405, 413-17 (2013); Douglas NeJaime, When New Governance Fails, 70
O S. L.J. 323, 327, 329, 347-48 (2009); Jocelyn Simonson, Copwatch-
ing, 104 C. L. R. 391, 406 (2016) (explaining that participatory
structures may mean shutting out the “disempowered”); David A. Super,
Laboratories of Destitution: Democratic Experimentalism and the Failure of
Antipoverty Law, 157 U. P. L. R. 541, 559-63 (2008); Shelley Welton,
Non-Transmission Alternatives, 39 H. E’ L. R. 457, 462 (2015)
(FERC’s heavy reliance on participatory reforms to promote non-transmis-
sion alternatives pays lip service to these alternatives without meaningfully
changing planning processes.”).
4. See Lee, supra note 3, at 414-15; NeJaime, supra note 3, at 362.
5. See, e.g., Angela M. Gius, Dignifying Participation, 42 N.Y.U. R. L. 
S. C 45, 58 (2018):
[ere is] a real concern that participatory processes are too of-
ten driven by idealistic beliefs in the “transformative force of truth
and justice”—the idea that powerful institutions will change when
confronted with the truth of marginalized peoples’ stories, regard-
less of the group’s actual social power... . [T]his belief wrongly
assumes that “problems in our society occur because the ideas and
experiences of oppressed people are excluded from democratic de-
bate and not because of a struggle between groups of people with
competing interests.”
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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