Final Report (all chapters)

it significantly constraints the agency’s ability to choose the clean-up plan it deems most
appropriate. In addition, a consensus solution is exposed to the risk of legal challenge by a
disgruntled affected or responsible party. Whether this argument would stand up in a court of law
depends on the details of the case. Our point here is simply that consensus solutions produced by
ad hoc coalitions consisting of representatives of the public and responsible parties may not be
regarded as acceptable by all parties involved.
In recent times, the EPA has been experimenting with community advisory groups (CAGs).
Their predecessors, community working groups, were one element of the EPA community
relations program, but they were rarely used and were generally regarded as a conduit for
efficiently conveying important information to the affected population rather than as a potentially
viable institution of public participation. The term “advisory” suggests a more rigorous and
perhaps a more dialogic approach to community relations. Convening an advisory panel is
subject to the provisions of the Federal Advisory Committee Act, 95 which, while far from
perfect, forces the convening agency to respect certain basic procedural rules, ensures some
degree of transparency, and calls for a broad representation. A recently conducted review of five
Superfund CAGs found, among other things, that CAGs are one of the most effective means of
promoting community involvement. Not surprisingly, the review also found that broadly
representative CAGs enjoy the confidence of the communities they represent, and are more
credible in the eyes of the EPA. The study emphasized the importance of appointing CAG
members without a specific agenda, possibly an indication of the distorting political influence of
interest groups at the local level. It went on to note that unlike public hearings, CAGs are wellsuited
to be institutional platforms of public deliberation and consensus finding. Finally, the
study noted that CAGs increase the influence of the affected populations on the clean-up process,
and contribute to establish a more constructive relationship between EPA officials and local
groups. 96
CAGs are certainly not the final word on institutions of public participation, but they once
again demonstrate the crucial importance of institutional design in meeting statutory goals. The
provisions of the Federal Advisory Committee Act are a weak protection against attempts to
limit the range of views represented on these committees. And CAGs operate in a purely
advisory mode. Yet nothing would prevent the EPA from strengthening the CAGs’ role by
imposing more stringent eligibility criteria. The agency could mandate appointing CAG
members through a local election. An election would almost guarantee that CAG members
would represent much broader sections of the local population, thus mitigating the risk of group
polarization. If interest group leaders were elected, they would represent the affected population
and not just a small group of activists. Increased legitimacy, in turn, would make the CAG a
much more credible partner in dealing with the EPA. Last but not least, broadly legitimate and
95
96
See chapter 2 for a discussion.
"Community Advisory Groups: Partners in Decisions at Hazardous Waste Sites, Case Studies," (Cincinnati, OH:
National Service Center for Environmental Publications, 1996).
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