Final Report (all chapters)

this view of politics, there is no space for lofty concepts such as deliberation, reciprocal
understanding, and the pursuit of the public good.
This rather cynical view of public involvement has immediate practical consequences.
Public administrators, not expecting participatory processes to produce anything even remotely
resembling a consensus, are very unlikely to consider the impact of alternative institutions of
public participation on the quality of the participatory process. A pluralist view of public
participation is often a self-fulfilling prophecy: By assuming that participants have fixed
preferences and that no room for compromise exists, it ignores institutional options that may
reduce group polarization and may actually contribute to exacerbating the initial differences. Not
coincidentally, then, many federal agencies, while superficially complying with CEQ regulations
and court rulings, have used their administrative power to channel and restrict public
participation in myriad ways, further exacerbating the pathologies of a technocratic decisionmaking
process. 84
10.9.2 The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
In 1976, recognizing the need to protect Americans from the health risks produced by
hazardous waste sites, Congress passed the Resources Conservation and Recovery Act
(RCRA). 85 RCRA is a prospective statute: It addresses future hazardous waste releases but
ignores the health risks created by pre-existing hazardous wastes. To reduce these risks and to
promote the cleanup of old industrial sites, Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act in 1980. 86 CERCLA instructs the EPA to develop
plans for cleaning up the nation’s hazardous waste sites and imposes “several joint liabilities” on
responsible parties. What this means exactly has been the subject of much litigation, but the
original legislative intent is fairly clear: Past and present owners of a contaminated industrial site
are jointly responsible for the clean-up costs.
From the very beginning the relationship between the affected populations –(often poor,
African-American, or Latino communities) and the agency administering the statute (the EPA)
has been strained. In its original form, CERLCA provided very limited opportunities for these
populations to comment on EPA clean-up plans. 87
The agency’s credibility was severely
undermined when several studies in the 1980s showed that the EPA was apparently much more
solicitous in cleaning up hazardous waste sites located in white neighborhoods than those in the
84
85
86
87
Perkins Spyke, "Public Participation in Environmental Decisionmaking at the New Millenium: Structuring New
Spheres of Public Influence," p.277-80; Tabb, "The Role of Controversy in NEPA: Reconciling Public Veto with
Public Participation in Environmental Decisionmaking," p.177-86.
See 42 U.S.C. 6901-6999k (1988).
See 42 U.S.C. 9601-9675 (1994).
Adam N. Bram, "Public Participation Provisions Need Not Contribute to Environmental Injustice," Temple
Political and Civil Rights Law Review 5 (1996), p.161.
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