PUBLIC PPARTICIPATION Exhibits:

Box 4: Community Participation in the South San Francisco Bay TMDL Process

Box 5: Problems in Public Participation in Siting Power Plants in Ohio

Box 6: The Environmental Justice Coalition for Water

      Since the 18^th Century, the United States has been a pioneer in ensuring public participation. In the last 60 years, the principles of participatory democracy have been extended through administrative procedures generally and more recently in the environmental context.
      Public participation is incorporated into projects at several stages. NEPA and the CEQ implementing regulations provide for notice and comment during the conceptualization and environmental assessment of a project that receives federal funding or permit and could significantly affect the environment. Sectoral laws (such as the Clean Water Act) usually allow for notice and comment during the permitting phase and for reauthorization of the permit. During the enforcement of environmental laws, government authorities must provide public notice and an opportunity for comment on the terms of a settlement, if a settlement is reached. Finally, where a project has resulted in contamination of land by hazardous materials and remediation is necessary, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides for extensive public notice and comment at that point.
      Similarly, notice and comment provisions during informal rulemaking are set forth in the 1946 Administrative Procedures Act. In order for the public to have the opportunity to submit comments, an agency must provide public notice in the Federal Register of the substance of the proposed rule, the legal authority for the rule, and information on the time, place, and nature of the proceedings. The agency must allow interested persons a reasonable amount of time to submit written (and in some circumstances, oral) comments, and must consider these comments after the public comment period is over. The Resource Conservation and Recovery Act (RCRA) and other environmental statutes also allow any person to petition an agency to develop, amend, or repeal a regulation.
      Under the 1976 Sunshine in Government Act, Meetings of federal agency heads must be held in public, unless the meeting is specifically exempted. Under the Federal Advisory Committee Act (FACA), even ad hoc committees of experts assembled to advise a federal agency on specific problems must announce their meetings and open them to the public. Also under FACA, minutes and transcripts of the committee meeting must be made available for public inspection and dissemination at a single location in the offices of the advisory committees.
      Federal agency policy has provided guidance in implementing public participation mechanisms in the United States. For example, in 1981 EPA produced a Policy Statement on Public Participation, which is in the process of being updated and is anticipated to be finalized in the spring of 2002. The policy seeks to strengthen EPA’s mechanisms for public participation and establish uniform procedures for public participation in EPA’s decision-making process. Agency officials are expected to provide for, encourage, and assist public participation. The 2002 update will likely include guidance on public participation provisions in light of statutes adopted after 1981 and technological advances. It is also expected to promote providing notices and information in an easy-to-understand, non-technical manner; informing the public earlier; and increasing the use of the Internet.
      At the state level, innovative approaches have evolved to more effectively incorporate members of the public -- particularly those affected by proposed decisions -- to participate in decision-making. Sometimes, the specific approaches take place within the framework of a federal law (such as the experience described in Box 4). In other cases, state law has been the impetus for these innovations. For example, in California, advocates have used the state’s public trust doctrine and environmental justice laws to promote the participation of low-income communities of color in the development of a major water restoration program. In Ohio, innovative participation practices outside the formal legal procedures have made a significant difference. Thus, slow but growing practice of the Good Neighbors Agreements and citizen audits have significantly contributed to more effective and meaningful public participation.
      Internet access in the United States has proliferated in the last decade and is poised to become a key tool in public participation through communication and information exchange between individual citizens and government agencies. The growth rate in number of people who regularly use the Internet is 15% per year. In the United States, web use jumped by 4% in a single month -- between October and November 2001. Publicly accessible data (including government documents and re-formatted TRI data) is posted on websites (see Box 2), and there are opportunities for members of the public to file FOIA requests over the Internet. Low-cost or free Internet access is widely available in the United States in homes, at work, or at local libraries, making web-based communication and information dissemination a very powerful tool.
      Other conditions also facilitate effective public participation. Non-profit status, which allows for exemption from federal income tax and the ability to collect tax-exempt donations, is an example of another opportunity for furthering the public’s ability to participate in decision-making processes.
      In practice, public participation has not always been guaranteed or effective. Sometimes, government agencies view public participation as a required part of the process, but fail to effectively consider public input (see Box 5). In fact, the growth in good neighbor agreements and citizen audits, noted above, represent extra-legal responses to ensure that the public still has the opportunity to participate, even if it is not in the formal structures of a regulatory framework. Similarly, the development and success in the state of California of the Environmental Justice Coalition for Water represents a popular response to failures in established procedures for public participation.

Recommendations on Public Participation Public participation in decision-making regarding activities, policies, and programs can be strengthened if federal and state governments: designate specific requirements for public participation in developing agency policies, plans, and programs that implement environmental laws and regulations; utilize new technology, such as video conferencing and on-line discussions, as vehicles for gathering a larger and more diverse base of public comments ; and examine some of the novel experiences at the state and local levels that may be extended to other states or scaled-up to the national level.