Marc B. Mihaly
citizen participation, lay participation, public participation, Intervenor Compensation
This article examines the evolving obstacles to effective citizen participation in environmental decision-making. It contends that effective participation requires a partnership among such lay participants, attorneys and experts. Part I of this article briefly reviews theories of public participation and contends that, regardless of the underlying political theory applied, the valuable societal benefits of public participation accrue only where the involvement makes a true difference in the decision-making process. Part II examines the developing obstacles to unassisted citizen involvement. I propose that in this era of implementation, environmental decisions present issues sufficiently complex that lay participation cannot successfully affect environmental decision-making unless assisted by attorneys and experts. This complexity combines with the evolution of environmental decision-making, away from traditional public processes, toward contract and private stake-holder negotiations, to render unassisted citizen participation problematic and ineffectual. Utilizing the National Environmental Policy Act (“NEPA”) as an example of these obstacles, Part III contrasts the participatory ideals embodied in the structure of the Act with the reality of formalized and ineffectual participation regimes designed by compliance bureaucracies and communications consultants. Finally, Part IV examines the benefits of a productive citizen-attorney-expert team in the context of NEPA, in formal environmental proceedings, and in informal processes such as negotiated rulemaking, suggesting regimes by which such representation could be provided.
(2009) 27 Pace Environmental Law Review 151