Mandate for Public Participation

Numerous nations have laws requiring stakeholder identification and invitation for involvement in planning that addresses sig­nificant environmental issues. Most of these laws, however, do not specify how to structure public participation nor do they mandate how information gathered from the public should be incorporated into management decisions.

The U.S. National Environmental Policy Act (NEPA) of 1969 probably is the most historically significant national law currently mandating public participation. Although legal jurisdiction is limited to the United States, “NEPA’s influence has been far-reach­ing, with its progeny in the statute books of 19 states and over 130 of the world’s nations” (Salzman & Thompson, 2010, p. 275). In the United States, NEPA was preceded by the Administrative Procedures Act (APA) of 1946, which required agencies to allow public comment on draft rules and allowed citizens access to the courts to request judicial review of actions taken by federal agencies. NEPA was signed into law on January 1, 1970. NEPA dictates that “every recommen­dation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human envi­ronment” must prepare detailed statements regarding the “environmental impacts of pro­posed action” (42 U.S.C. § 4332c). While the earlier APA had required that citizens take the initiative to become involved in public partici­pation, NEPA requires that agencies actively solicit input from the public on any federal decisions that might significantly affect the environment.

The Aarhus Convention (formally UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), which entered into force in 2001, moves beyond NEPA to mandate that governments will incorporate public participation into all deci­sions regarding environmental matters in more than 40 European and Central Asian coun­tries, the European Union, and the European Community (Mason, 2008). Although most public participation research has been con­ducted in postindustrial Western democracies, scholars are beginning to examine participation in other nations. For example, China has insti­tuted requirements for public hearings regard­ing water tariffs as part of a move toward more transparent, decentralized, and participa­tive governance (Zhong & Mol, 2008).

Though these laws require solicitation and response to public comment, they have failed to satisfy public demands for a variety of rea­sons. Members of the public complain that the documents are too technical, that agen­cies have frequently determined the outcome of the situation before the public is allowed access to the process, and that agencies do not make sufficient effort to identify and involve affected stakeholders. Both NEPA and Aarhus Convention processes lack specifica­tion regarding how much weight public com­ment should be given in the decision-making process. Essentially, public involvement still spans a broad gulf ranging from the right to know what information was used to arrive at a decision to direct participation in the decision-making process itself.

Regulatory agencies in the United States, Canada, the European Union, and many other political jurisdictions are now required to identify and then invite impacted stakeholders and other members of the interested public to provide comment on significant actions that are likely to modify the environment. How these public participation processes should be structured and how the information gathered from the public should be incorporated into management decisions has been at the center of environmental controversies since long before public participation was mandated.

Arnstein (1969) posited that public partici­pation is essentially a redistribution of power from government to citizen. Supporters of broad public participation posit that the public can best judge and represent its own interests and that participation will further enhance the public’s ability to participate in the democratic system of government, reduce public feelings of powerlessness and alienation, and increase the legitimacy of the governing body. Public participation and deliberation can benefit society by creating public policy that is reflec­tive of public values and opinions and that nurtures social, psychological, and political empowerment.

Given the regulatory context for environ­mental conflicts and the expectation for civic participation, government agencies are tasked with gathering data from diverse groups and individuals and incorporating these data into policy decisions. Data are often internally conflicting, with competing claims of validity dependent on multiple goals for participating in the process, as well as multiple ideologies for resource management. Dustin, Schneider, McAvoy, and Frakt (2002) used the contro­versy between rock climbers and American Indians at Devils Tower National Monument in Wyoming (the United States) to point out that conflict over something so appar­ently mundane as outdoor recreation pits people with fundamentally different world­views against each other. A special section of American Indian Quarterly (Martin & Piper, 2001) provides an extended description of environmental conflicts between American Indians and other land users and also argues that public participation processes must improve opportunities for self-representation among American Indians. Given the multiple publics involved in environmental decisions, it is nearly impossible for agencies’ decisions to align with the interests of all stakeholders.

The public expects government decision makers to represent the public interest and to protect the public good when addressing environmental resource issues.

Public expectations for participation in environmental policy deliberations, then, sug­gest that it should provide an opportunity to examine scientific and technical information and result in well-informed governmental deci­sions that are accepted by most stakehold­ers. The existence of scarce, and sometimes fragile, nonrenewable resources and the dis­tributive negotiation structure of most public participation processes, however, means that environmental disputes frequently focus on dis­tributive allocation of a finite set of resources rather than the pursuit of mutually beneficial and satisfactory decisions. Communication researchers and practitioners, then, are chal­lenged to develop processes that enhance col­laborative potential without ignoring material realities such as correlations between child­hood asthma and air pollution, the rates of human population increase and species extinc­tion, and low-income neighborhoods and toxic waste facilities.

Various methods have emerged to engage stakeholders in the public participation pro- cess—the most common being written public comment periods, public hearings, listening sessions, workshops, negotiated rule making, and consensus-based decision making (for more details, see T. R. Peterson & Franks, 2006; see also Table 19.1). The degree of involvement may range from providing a spontaneous reaction to specific questions, such as a telephone survey, to engaging in extended consideration and study of an issue, with direct influence over the final decision.

Several researchers have used legitimacy as a unifying construct for evaluating public participation. Mascarenhas and Scarce (2004) drew on the concept of legitimacy, as articu­lated in alternative dispute resolution (ADR) theory, to study natural resource planning in British Columbia and found that successful public processes must have fair representa­tion, appropriate government resources, and be consensus driven. They stated that the most fundamental criterion for a successful public process was legitimacy. Webler, Tuler, and Krueger (2001) found that a public par­ticipation process was deemed legitimate if it (a) was popular, (b) facilitated an ideological discussion across interest groups, (c) high­lighted the reality of power struggle, or (d) provided strong leadership heading toward compromise. Drawing from decades of pro­cess work in environmental conflicts through­out the state of New York, Senecah (2004) argued that a legitimate conflict management process must provide all stakeholders with access, standing, and influence, requiring that conflict resolution practitioners have a broad expertise in ADR principles. Arnstein (1969) developed a model of citizen participation based on the analogy of a ladder. As citizens climb the ladder, the process gains increased legitimacy as it empowers them to determine the outcome of policy deliberation.

No term associated with environmental conflict has enjoyed more widespread pub­lic legitimacy than sustainable development. Our Common Future (World Commission on Environment and Development, 1987), which linked sustainability to development and inter- generational and international equity, suggested sustainable development as a concept that could resolve environmental conflict (M.

As these frameworks illustrate, various approaches to public participation provide diverse combinations of opportunities to voice opinions, participate in dialogue with deci­sion makers, and influence the outcome of environmental dilemmas. Moreover, multiple communication processes can be present in a single public participation venue. For example, a public workshop may involve soliciting and gathering information, consulting with stake­holders, and direct negotiation leading to a final decision.