Final Report (all chapters)

10.9 Public Participation at the Federal Level
The post-World War II era has witnessed a continuous expansion of public participation
efforts in administrative decision-making. “Public participation” originates in the concept of selfgovernance,
a concept that, like accountability, is at the core of many American institutions of
government. Numerous instances of federal statutes include provisions for public involvement
above and beyond the requirements of the Administrative Procedure Act. Among these statutes
are the National Environmental Policy Act of 1969, the Resource Conservation and Recovery
Act of 1994, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, and the Endangered Species Act of 1973. Other statutes that mandate public participation
are the Clean Water Act of 1972 72 and the Federal Advisory Committee Act of 1972. 73 The
Onshore Oil and Gas Leasing Reform Act of 1987 requires public participation before issuing a
lease of public lands. 74 Agencies such as the EPA and the DOE have promulgated regulations
that mandate public involvement for a variety of federal statutes. For example, 40 C.F.R. 25.7
(1989) requires establishing citizen advisory groups under the Clean Water Act, the Resource
Conservation and Recovery Act, and the Safe Drinking Water Act.
Statutes requiring broader public participation in the rule-making process reflect mainly the
expectation that public involvement will increase confidence in federal agencies operating in
controversial regulatory environments and prevent conflicts and reduce litigation. For this
reason, federal regulators’ experience in implementing these provisions is of considerable
interest to our discussion. As we show in the remainder of this chapter, these expectations often
are not met, partly because Congress provides precious little guidance on how an agency should
implement these provisions, but also because these statutes do not address the inherent tension
between administrative prerogatives and public demands. Confronted with a host of difficult
implementation questions, an unpredictable, noisy, and uninformed public, and aggressive
interest groups, federal agencies have responded by adopting administrative strategies that
minimize public input by restricting the scope of public comments, by soliciting public input at a
late stage in the policy-making process, and by relying heavily on public hearings. In short,
statutory provisions mandating public involvement have often not produced the expected results.
In the next two sections, we elaborate on these themes by focusing on two statutes, the National
Environmental Policy Act (NEPA) and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA).
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73
74
See 33 U.S.C. 1251(e) (1994).
See 5 U.S.C. 1-15 (1972).
See 30 U.S.C.A. 226(f) (1986).
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