“A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” – James Madison
As any first year medical or law student can probably tell you, a patient facing an invasive medical treatment must first give the doctor her “informed consent” to the procedure. As Merriam-Webster defines the term, “informed consent” is “consent to surgery by a patient or to participation in a medical experiment by a subject after achieving an understanding of what is involved.” This, of course, requires the doctor to explain to the patient both her condition and the treatment in plain enough language that a person without medical training can fully understand what will be involved and what will be happening to her. Explaining to a patient, for example, that she has a serious heart condition and describing for her the various treatment options certainly protects the doctor from future legal action. More importantly, however, this discussion allows the patient to participate in a decision-making process that involves her health and what will happen to her body.
Ironically, the health of hundreds of thousands of people across the West is impacted by governmental regulators every year who make environmental permitting decisions with little or no effort to obtain the informed consent of the people who reside in the affected communities. Today, public participation in environmental decision-making, if it occurs at all, usually involves some broad governmental notice about a proposed project that will impact public health and the environment, coupled with some limited opportunity for public feedback. State and federal environmental agencies are increasingly fond of holding public “listening sessions” for purposes of obtaining “stakeholder input” on regulatory considerations. During these sessions, the public is “welcome” to give “brief (three-minute) statements” regarding the proposal, assuming of course that they register for the session in advance. The role of the EPA at these sessions is to listen; very little effort is made by the regulator to explain to the public the precise impacts associated with the project, let alone advise the community on how best to mitigate environmental harms.
Citizen participation in government decision-making is, in the words of Professor Jim Rossi, “sacrosanct to modern democracy.” But participation is meaningless, like consent to a medical procedure, without the ability to be fully informed about the issues.
The reality of our world is that modern environmental regulatory issues involve vast technical and legal expertise that is often unavailable to the very members of the public who are in most need of that information. By fashioning public participation in the context of “the agency is listening” as opposed to “the agency is informing the debate,” government has produced a climate in which many Americans either avoid involvement in or loathe the environmental decision-making process. There is simply a feeling in many communities that the government interest is in protecting the polluter, not public health and environment.
Nearly 75 years ago, Yale botanist Paul Sears recommended that the United States hire a few thousand ecologists to directly advise citizens on how to participate in government decision-making in order to put the whole nation on an environmentally and economically sustainable track. Sears’ advice, which was not taken then, is as relevant as ever today. Communities across the West are ready and willing to participate in shaping their environment futures. What is wanted most is a government willing to work in partnership with them; willing to open up a two way street of communication to help inform public deliberation on the technical, scientific and economic aspects of the environmental issues that our communities face.
Our government is, as set out in the Declaration of Independence, one whose powers are derived from “the consent of the governed.” The environmental justice movement is teaching us that it is a specific type of “consent” that is most important. That being, of course, informed consent of those who are most likely to be impacted by environmental decision-making. So government, are you still listening?
Michael Harris is Assistant Professor of Law and Director of the Environmental Law Clinic at the University of Denver Sturm College of Law. He has worked as a Senior Deputy District Counsel for the South Coast Air Quality Management District in Los Angeles, as an Associate Environmental Counsel for the Los Angeles Unified School District, and as a Project Attorney with Earthjustice. He can be reached at email@example.com.