Public Participation in Environmental Decision Making

Public Participation

Public Participation in Environmental Decision Making

Sponsors
American Bar Association
Standing Committee on Environmental Law
Section of Administrative Law and Regulatory Practice
Section of Litigation
Section of Environment, Energy, and Resources

BE IT RESOLVED , that the public participation provisions of local, state, territorial and federal environmental laws and international environmental agreements and treaties should recognize and express the principle that the public and all affected interests should be provided meaningful and effective involvement and should be expected to participate in consensus building efforts to ensure that government decision-making regarding the administration, regulation, and enforcement of environmental laws is open, fair, efficient and credible.

BE IT FURTHER RESOLVED, that the public participation provisions of local, state, territorial and federal environmental laws should include express authority allowing government agencies to choose innovative public participation, stakeholder-involvement and shared decision-making models, including site-specific, negotiated consensus-building processes and negotiated rulemaking, which involve all affected stakeholders, such as citizens, potentially responsible parties, and affected federal, tribal, state, territorial and local governments.

BE IT FURTHER RESOLVED , that federal agencies should use more fully the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act for making environmental decisions, and state agencies should follow similar procedures permitted under generally applicable provisions of administrative law.

BE IT FURTHER RESOLVED , that Congress should reauthorize the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act on a permanent basis, and, in doing so, Congress should revise provisions that inhibit their wider use to resolve environmental matters by clarifying:

  1. that the Administrative Dispute Resolution Act authorizes the use of the full range of dispute resolution processes for making administrative decisions, including general consensus building and the resolution of issues between private parties that otherwise would be decided by the environmental agency;
  2. that the decision of an arbitrator, where applicable, should be final when issued, without the authority of an agency to unilaterally override such decision;
  3. that communications between a party and the neutral should be protected from disclosure except for the circumstances defined in the Administrative Dispute Resolution Act; to that extent the Administrative Dispute Resolution Act should be regarded as a Section (b)(3) exemption under the Freedom of Information Act; and
  4. that a federal agency should not be required to secure the permission of the Office of Management and Budget or the General Services Administration before it impanels a committee under the Negotiated Rulemaking Act or the Administrative Dispute Resolution Act, and that such agencies must continue to comply with the substantive requirements of the Federal Advisory Committee Act, including openness and balance on committees.

BE IT FURTHER RESOLVED , that the procedures described in the Negotiated Rulemaking Act should be used for making policy decisions under environmental statutes.

BE IT FINALLY RESOLVED , that the framework established under the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act provide the means by which the U.S. Environmental Protection Agency ("EPA"), community and business interests, state, tribal and local governments, and environmental and other non-governmental organizations can reach agreement on the appropriate issues. For example, in addition to existing alternative dispute resolution provisions in the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), potentially responsible parties are encouraged to use the Administrative Dispute Resolution Act to make allocation decisions, while environmental agencies are encouraged to use the Negotiated Rulemaking Act for making policy decisions. In doing so, EPA should appoint a single, relatively senior official to represent the agency and various components of its staff in such negotiations, and policy negotiations and allocation decisions should be coordinated to the extent appropriate.

Adopted by the ABA House of Delegates, February 7, 1995, Miami, FL.

For a copy of the complete report, contact Katie Jennings at scel@americanbar.org.

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