Mervyn L. Tano
Tano & Associates
Denver,
Colorado
ABSTRACT
The report of the Federal Facilities Environmental Restoration Dialogue Committee encouraged the creation of site-specific advisory boards at Department of Defense, Department of Energy and other federal facilities involved in environmental cleanup. Since then, these advisory boards have become a standard part of federal facilities environmental restoration programs. Mr. Tano argues that the scope of these advisory boards' responsibilities to the general public is unclear and encourages federal agencies to clean up those ambiguities and to provide the training, cross-fertilization and evaluative criteria that will increase the accountability of federal facilities environmental restoration public participation programs.
BACKGROUND
One of the dramatic changes in environmental protection in recent years has been the expansion of the role of the public in setting environmental protection priorities. The National Environmental Policy Act made national policy, the right of affected publics to have their concerns considered by federal decision-makers. NEPA established the baseline for public participation. However, many federal agencies have gone far beyond the public review and comment requirements of NEPA and have moved public involvement into arenas thought to be exclusively the purview of agency discretion in the not too distant past.
Public participation in federal facility environmental restoration has grown considerably since NEPA was enacted. The Department of Defense has established over two hundred restoration advisory boards for base cleanups. The Office of Environmental Management in the Department of Energy is supporting site-specific advisory boards for the cleanup of the nuclear weapons complex and for specific programs such as transportation, technology development and risk evaluation. The Nuclear Regulatory Commission, long a bastion of secrecy, went on the road with a series of hearings to get public participation on proposed decommissioning regulations. These changes are revolutionary. The notion that the public is essential to decision-making represents a fundamental shift in the culture of some federal agencies that long viewed the public as an impediment to efficient decision-making.
CHALLENGES
Although the change in agency attitude is revolutionary, the process is evolving and there remains the possibility that, notwithstanding the general perception that public participation is good and necessary, restoration advisory boards, site-specific advisory boards and their ilk are all perched on a branch of the tree of public administration slated for extinction. Understand that there are several forces that challenge and compete with public participation for its environmental niche and encourage it toward an evolutionary dead end. Perhaps the most powerful of these forces is the Congress. It will not come as a surprise to discover that public participation does not enjoy unanimous support from the Congress. The calculus of Congressional detractors of public participation is powerfully and perhaps deceptively, simple and understandable. Taxpayers' money is appropriated for cleanup, but like the near mythic studies and legal fees, public participation not only is not cleanup, it is expensive, unnecessary and actually hinders actual restoration of the environment. Ergo, federally-supported public participation is a waste of taxpayers' money.
And although agency leadership generally champions increased public involvement in decision-making, that attitude is not pervasive. Some agency personnel object because they believe that decision-making is ultimately their responsibility and that the public's involvement does not carry with it the same degree of legal and financial accountability that their exercise of discretion bears. Others are concerned that the public lacks the requisite scientific and technical expertise to participate in a knowing and intelligent manner in agency decision-making.
It is important to note that not all segments of the public support the openness and transparency of current agency public participation efforts. Restoration advisory boards and site-specific advisory boards are broadly representative and accordingly, lack the ideological purity of long-standing special interest organizations. For example, the participation of tribal representatives in decision-making often results in advice diametrically opposed to that provided by state legislators, attorneys general and environmental organizations, but not always. Similarly, the advice preferred by representatives of environmental organizations often conflict with that provided by representatives of labor and business development organizations, but again, not always.
As broadly representative committees with the cachet that accompanies federal funding and official recognition, the site-specific advisory boards may appear to challenge the long-standing primacy of special interest groups in federal facility environmental restoration work. We see that concern expressed in the report of the Federal Facilities Environmental Dialogue Committee which recommends that site-specific advisory boards not replace current public involvement activities and further, not hinder the continued ability of citizens to comment and participate individually or in groups of their own selection.
SOME RECOMMENDATIONS
Federal agencies, confronted by seemingly intractable siting, technology selection and cleanup problems, now look to public participation as a means of avoiding and cutting through the thicket of litigation and protest that created expensive delays in the federal facilities environmental restoration effort. Whether public participation becomes ingrained as a normal way of doing business in this country, or whether it ends up as a historical footnote of artifact of policy faddishness, will depend in large measure on agency and public participation practitioners success in bringing accountability to the process.
The bring accountability to the public participation process, agencies and the public participant should consider four questions: First, to whom are public participation programs accountable? Second, how will such participation be evaluated or who should establish the evaluative criteria? And third, what are the agency and public responsibilities to enhance the accountability of their public participation efforts?
Obligations to the Commonweal
As conceived and operated by federal agencies, public participation programs are inherently fraught with ambiguities and contradictions, at least at the outset. This is so because although federal facilities environmental restoration programs operate at both local and national levels and require extensive inter-facility activities, the site-specific advisory boards are usually composed solely of local stakeholder representatives. If, as I argue, that one of the primary responsibilities of public participation is to the commonweal, federal agencies should resolve the ambiguities and contradictions by requiring that the mission statements of all advisory boards include a statement that sets out these larger responsibilities. Doing so will make it clear that advisory boards are not only responsible to their city, tribe or region, but also to the public in general. Accordingly, these advisory boards should be responsible for and judged on their effectiveness is addressing larger questions of equity, environmental protection, human health and safety, and efficiency.
But federal agencies must exercise leadership and reassess their public participation programs if we expect advisory boards to carry out their responsibilities to the commonweal. First, agencies must design a national strategy that integrates local public participation. Failure here will create disagreement and divergent public input that cannot be generalized. Agencies must take a larger role in defining the objectives of public participation. This is a responsibility that can be shared with stakeholders but cannot be abrogated. Agencies should expand the base of membership in site specific advisory boards to include members with local, regional and national or perhaps even international perspectives. They should resist the tendency to round up the "usual suspects" for their advisory committees.
Broadening Stakeholder Perspectives
My experience has been the federal agencies often expect tribal participants of advisory boards to have a purely Indian perspective ignoring the dynamics that occur between Indian tribes and federal and state regulators, environmental organizations, industry, educators, local government officials and myriad of other organizations and interests. My sense is that this is also the expectation of other interest groups. I know that in the case of Indian tribes, this perspective is not valid. Environmental regulatory jurisdiction issues between tribal and state governments will influence tribal perspectives. Likewise, litigation between environmental organizations and Indian tribes will likewise color tribal opinions. The point is here is that federal agencies should promote dialogues between and among stakeholder representatives and between different advisory boards. I don't believe that a national consensus will evolve, but I think that federal agencies will get closer to a national perspective.
Mutuality
My sense is that the role of public participation should be expanded. Federal agencies such as the Department of Energy will still need to consult with and obtain advice on how to meet their cleanup obligations from a wide spectrum of stakeholders, but these agencies should use the public participation process to identify stakeholder cleanup obligations as well. For example, the Nez Perce Tribe believed that Indian tribes were not as aware of plutonium management and disposition issues as they needed to be. So last year the tribe conducted a plutonium forum for tribal decision-makers. This year the Nez Perce Tribe prepared a Briefing Book for Tribal Decision-Makers on Weapons-Usable Plutonium Management and Disposition and is working with the Physicians for Social Responsibility, Council of Energy Resource Tribes, Consortium for Risk Evaluation with Stakeholder Participation and League of Women Voters Education Fund to plan a follow-up forum for a larger tribal audience later this year.
Evaluation
Ultimately, accountability in public participation will not occur without evaluation. Agencies and the public must establish evaluative criteria and conduct periodic self-assessments. Evaluation process must be open and transparent as well.