Public Participation and Superfund Decision Making

by John Ray (MEIC consultant and former Board Chair)

The Superfund decision-making process mandates public involvement, and numerous mechanisms are pro vided for public comment. The U.S. Environmental Protection Agency has a policy that says it is “imperative that EPA pay close attention” to citizen input, and that citizens need to be “involved in the decision-making process.” But the question often arises: does public participation make a difference? Or do these opportunities simply provide environmental theatre and stylized ritual?

This issue came to the fore recently in connection with EPA’s proposed consent decree regarding the cleanup of the Berkeley Pit in Butte (see also: EPA's Plan for Butte Priority Soils). Prior to submitting the consent decree to the federal court for ratification, the EPA held numerous public meetings and accepted public comments. Although the EPA received extensive input from both the public and from local governments, not one suggestion made by either group was accepted. As a result, people have raised the legitimate question whether they were wasting their time in commenting.

It is a basic tenet of democratic decision-making that “on all matters where social action is substituted for individual action, liberty exists only through participation either in decision making or in control of leaders who make the decisions.” (Emmette Redford, Democracy in the Administrative State.) It is not just the ethics of democracy that mandates citizen participation. In fact, the quality of public decisions is enhanced by public participation. The more people who are substantively involved, the more information and the more perspectives will be brought to a decision. Public participation means more alternative solutions will be considered, and the resulting decision will have greater credibility and legitimacy. Meaningful public participation also promotes public civic education and increases trust in government. And efficiency may be enhanced in that public acceptance of an agency decision should decrease the likelihood of a prolonged challenge.

Yet research has shown that only about one-third of public comments are accepted by decision-making agencies. There are a number of reasons for this:

1. the public does not speak with one voice; segments of the public may support a decision, while others may oppose it;
   
2. not all public comment is of equal discernment, and environmental decision making is not a popularity contest;
   
3. agencies often have invested their prestige in their proposed decisions;
   
4. there is a view that government is supposed to aggregate all of the articulated interests into sound public policy;
   
5. government decision-makers can be influenced by their own interests, values, and perceptions; and
   
6. there can be a distrust of the public by government officials and a view that public participation is time-consuming, wastes money, and allows for too much obstructionism.
   

The issue of public participation in environmental decision-making is a subset of the larger question of how one makes a government agency accountable and responsive to the public. No totally satisfactory answer has ever been given to the question. It is hard to balance the desired independence of decision-makers with accountability to the public.

As is the case generally in this country, the most effective public participation is usually participation through a group. The requirements for effective public participation—awareness of proposed decisions, organizing ability, knowledge of the opportunities for participation, ability to mobilize others, and access to decision makers, resources, and expertise needed to make effective comments—generally mean that the most effective participation is done by groups. Groups such as MEIC can mobilize support or opposition to an agency decision, hold agency decisions up to public scrutiny, and, if necessary, appeal agency decisions. Without groups such as MEIC, public participation would clearly be of limited utility.