Turning Participation Into Power: A Water Justice Case Study

• Date: 01 August 2022
• Author: Jaime Alison Lee

52 ELR 10622 ENVIRONMENTAL LAW REPORTER 82022

ARTICLE

TURNING PARTICIPATION INTO

POWER: A WATER JUSTICE CASE STUDY

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

permission.

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.”

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