Public Participation and Communicative Interaction: The Structural Mechanisms of Institutional Bias

Introduction

The primary purpose of public participation is to allow the public to have influence on decisions made. Early proponents argued that it would reduce institutional bias and encourage more equitable decision making. ¹ But, as several scholars, advocates, and activists have shown, environmentally inequitable decisions continue to be made.^1–5 In order to understand why this is the case, and more importantly, to determine how to eliminate institutional bias, we need to understand the institutional mechanisms that create bias. Given that public participation is a legal process, we should focus on the legal structure of public participation and how the law creates the conditions for biased decision making.

Using a qualitative descriptive approach, I investigated whether the laws around environmental review in Massachusetts are structured in a way to promote communicative interaction and cooperation with certain stakeholders at the expense of others. This policy analysis focuses on how laws structure communicative interaction, and whether this structure creates the conditions for certain actors, specifically the applicants for environmental permits, to have more frequent and better quality interaction with regulatory decision makers, and therefore greater influence on agency decisions.

Literature Review

A variety of scholars have argued that the frequency and character of communicative interaction contributes to influence and cooperation in decision making. Few of these have studied public participation in regulatory decision making directly. Fewer still have looked specifically at environmental decision making. ⁶ Nevertheless, this interdisciplinary scholarship provides a framework with which we may be able to investigate the legal structure of public participation in order to uncover the mechanisms of institutional bias.

If public participation is going to be effective in reducing or eliminating institutional bias, and thereby environmental inequity, it needs to be structured to allow participants to have influence on the decisions made. Jürgen Habermas' Theory of Communicative Action suggests that an analysis of public participation policies should look at the communicative interactions between decision makers and stakeholders.^7–8 Habermas argues that social conflict is more effectively resolved under conditions that foster discourse; it is through discourse that mutual understandings between decision makers and stakeholders are generated. Institutional bias occurs when decision makers develop understandings with certain stakeholders to the exclusion of other important stakeholders.

Habermas' theory tells us to focus on communicative interaction, but it does not provide us with a detailed structure to uncover the mechanisms of institutional bias. Archon Fung has written extensively about the role of public participation in modern life.^9–10 He applies the broad concept of communicative interaction to public participation specifically. Fung's interest is in how participatory processes contribute to justice, effectiveness, and legitimacy. He argues that exclusion from decision-making processes, or the inability to influence decisions, is simply unjust. Similarly, exclusion, or the lack of influence, almost inevitably results in decisions that do not meet the goals of the agency or other stakeholders; in short, no participation and bad participation make for ineffective decisions. Finally, problems with legitimacy arise when decision makers are disconnected from those affected by the decision. According to Fung, public participation processes that are inclusive, representative, and more discourse oriented, help to reduce this distance and allow for decisions to be made that are viewed as legitimate by affected stakeholders.

Fung's work is important because it forces us to pay attention to who participates, how they participate, and how that participation relates to the decisions that are made. His framework, however, does not tell us how we would recognize the mechanisms of institutional bias when we see them. Practical guidance on this can be found in the work of game theorists and behavioral economists focusing on the development of cooperation.

Both game theory and behavioral economics research have found several factors that facilitate cooperation.^11–15 Any form of communication is better at creating cooperation compared to no communication. Face to face communication has consistently been found to be the most important factor in the development of cooperation between individuals and in group settings. Additional factors are listed in Table 1.

Probably the most interesting finding from this line of work is the conclusion that the “rules of the game” shape the level of cooperation among the participants. In short, the rules structure the interaction between participants, which in turn may result in cooperation or non-cooperation. ¹⁶ This insight is consistent with law and policy research and legal scholarship that has long recognized that laws advantage some and disadvantage others.^17,27

Public Participation In Massachusetts

In order to explore how stakeholders are expected to interact with decision makers and under what conditions, this policy analysis focuses on the frequency and type of interaction, as well as the form and function of discourse, as specified in the laws, regulations, or policies that structure the environmental review process in the Commonwealth of Massachusetts. I focus on this process because environmental justice activists in Massachusetts are concerned that the environmental review process continues to allow for inequitable siting and permitting decisions. Moreover, environmentally unjust land use proposals and decisions continue to be made despite the institutionalization of public participation in decision-making processes. This suggests that low income and socio-politically marginalized communities continue to lack influence in these decision-making processes. In this policy analysis, I compare the types and quality of communication and interactions between permit applicants, public participants, and environmental agency staff.

The analysis looked at the current (through 2008) environmental laws and policies related to the Massachusetts Environmental Policy Act (MEPA) review process, as well as the Environmental Justice Policy.^18–20 In Massachusetts, environmental permit applicants must undergo two phases of review: MEPA review process and the more technical, engineering oriented review by the permitting agency. I focused on the MEPA review process, rather than the agency permit review process, for three reasons. First, MEPA review is required in almost all environmental permit applications, and regulatory agencies are required to use the information gathered during MEPA review in their permit application review process. ²¹ Second, while all stages of environmental review are open to varying levels public involvement, the MEPA review process is also the most accessible. Finally, the ability to challenge a permit decision generally requires that the challenger have participated in the MEPA review process.

The goal of the MEPA review process is to better understand the consequences of, and alternatives to, state decisions before any permits are issued or state funds committed. ²² The MEPA office facilitates the review process. The typical MEPA review process is broken up into three general stages, oriented around some type of environmental impact report. Each of these stages involves the creation of a review document, a period of comment and review, and a decision by the Secretary of the Executive Office of Energy and Environmental Affairs.

In reviewing the laws and policies related to MEPA review, I looked at which actors were cited in the law and how each actor's participation is defined and given importance. ¹⁷ The stated purpose of MEPA is to provide meaningful opportunity for the public to review the potential environmental impacts of any project that requires an environmental permit or receives public financing. ²³ The laws around public participation describe four types of participants in the MEPA process: the MEPA office, the applicant or proponent, ²³ other reviewing/permitting agencies, and everyone else (i.e., the public).

Despite the stated purpose of the MEPA review process, the public is the least involved participant in this process. The MEPA office is not required to interact with the public except to accept, catalogue, and review comments received, and respond to general inquiries. Indeed, the public participants may never once meet a person from the MEPA office. Information dissemination is provided to the public through the Environmental Monitor, a Web site on which MEPA posts all of the notices it is required to give to the public.

For the public, submitting comments is the extent of their participation as structured in the law. It is expected that comments will be submitted in writing. This clearly limits participation among non-English speakers and the functionally illiterate. In addition, comments are expected to be restricted to the environmental impacts of the project, alternatives, mitigation, and the “adequacy” of the review document. The MEPA office is not required to accept comments interpreted to be outside the parameters of the scope of review.

The only mandatory opportunity for face to face interaction between the public and the MEPA office is during the site visit, which occurs during the first stage of the review. However, the scheduling of the site visit must accommodate the proponent and the other agencies required to attend, and therefore may not be convenient for participation by community stakeholders. More important, the date and time are not published in the Environmental Monitor. A separate public meeting may be scheduled if a municipal official requests one in writing. A public hearing is required for projects proposed to be built in or near an environmental justice community. However, the thresholds established in the Environmental Justice Policy that trigger this requirement are so high that, in one case, a proposed diesel fueled power plant did not meet the thresholds in this policy. Public meetings, when scheduled, are intended to be forums in which information about the project is provided to the public, and through which the public can make comments and asks questions. However, these public meetings are structured like quasi-judicial hearings, with all of the adversarial qualities that often characterize these settings.^25–26

The permit applicant's experience is quite different. The laws governing environmental review provide plenty of opportunities for the proponent to interact with the decision-making agencies. Every project under review is assigned an analyst who acts as the proponent's main point of contact within the agency. There may be consultation meetings before and during MEPA review, and before and after filing a permit application. The MEPA office itself may initiate contact when additional information is needed, and the proponent must respond to those requests. The MEPA review process is clearly set up to guide the proponent through the process.

As can be seen in Table 2, during the entire process of environmental review, the MEPA office may interact with the proponent as many as 19 times. Many of the interactions between the proponent and the agency can be characterized as forms of discourse insofar as they are efforts on the part of each party to try to understand the other's position or request, explain or justify a viewpoint or position, or argue for a specific view of an issue. In contrast, the MEPA office may interact with other stakeholders a total of nine times in the entire process. Among these, one potential interaction is contingent on the public initiating the interaction with the MEPA office (making inquiries). Another possible interaction is dependent on a municipal leader requesting a public meeting about a project, or the MEPA office taking the initiative and scheduling one. All opportunities for direct or face-to-face interaction require public stakeholders to take the initiative to insert themselves into the process. There is very little meaningful discourse that occurs between the public and the MEPA office. Most of the communication that occurs is one way, remote, and occurs through the filing of comments. Published notices and received comments comprise almost the entirety of interactions between the host community and the reviewing agency.

Discussion

The strength of the MEPA review process is that it is open to anyone. However, the laws, regulations, and policies around the review process place the proponent at the center of the MEPA office's attention. The legal structure of environmental review in Massachusetts creates a structural bias that creates the conditions for greater communicative interaction with project proponents. MEPA review requires a greater frequency and depth of interaction between agency staff and proponents while simultaneously de-emphasizing interaction with the potential host community. This bias reduces the potential influence that public stakeholders, and particularly community residents, may have.

If we evaluate the MEPA review process through the theoretical lenses provided by social theorists, game theorists, and behavioral economists, we can only conclude that the game is stacked against the public. The structure of participation provides greater frequency and depth of communicative interaction between the proponent and the agency staff. Relative to the proponent, the frequency and quality of interaction between the public and agency staff is considerably lacking. The process is open to anyone who elects to participate, which contributes to a form of procedural justice insofar as no one is excluded from the process. However, the agency is not required to do any outreach to support participation. According to Fung, effectiveness and legitimacy require that those affected by a decision have influence in the decision making process. Because the public participation process is not structured to support the form of communicative interaction that would allow for influence, the decisions made are likely to be ineffective and risk lacking legitimacy, at least from the community perspective.

The results here resonate with classic public administration literature regarding clientelism. Marver Bernstein wrote in 1955 that the legal structure of federal independent commissions created a narrow view of the public's interest and resulted in the bias seen in decisions made by these commissions. In short, if the agency's view of environmental regulation is restricted to the regulated entity, the needs of the regulated entity will likely take precedence over the needs or priorities of other stakeholders. ²⁷ Similarly, Bernstein found that one of the mechanisms that created this narrow view of the public's interest was the quasi-judicial structure of communicative interaction between regulators and other stakeholders. The environmental review process in Massachusetts is similarly structured towards this very same bias.

However, just because the legal structure appears to be biased in favor of project proponents does not necessarily mean that bias in fact occurs. The laws pertaining to environmental review also provide wide discretion in the actual form the process can take. The structural bias may be mitigated by an institutional culture that is sensitive to environmental justice. Institutional norms that ensure that the public's concerns are at least attended to may in fact be operating. Comparative case studies of environmental reviews focusing on the public participation process are needed to confirm whether the biased structure results in biased decisions. Nevertheless, a biased legal structure is problematic because it puts meaningful public participation at risk for “failures in agency vigilance.” ²⁸

Conclusion

Biased decisions are made when one stakeholder has greater influence on decisions than other stakeholders. I argue that one way in which this influence may develop is through increased communicative interaction. In this article, I looked at how the law structures who participates in environmental review and how they are expected to participate. What I found was that the legal structure of environmental review is biased in favor of project proponents. Massachusetts law institutionalizes unequal frequency and quality of interaction between different types of stakeholders and agency decision makers. The strength found in the MEPA review process is in its openness; literally anyone from anywhere can participate. However the law is structured in a way that facilitates the ability of proponents to have the most influence on decision making and reduces the potential influence of community stakeholders. For environmental justice communities, this legal bias exists in addition to existing socio-structural biases that make participation difficult and reduce their potential influence.

If we assume that the purpose of the public participation process is to allow or even require additional voices to have influence on agency decisions, Massachusetts law fails to do that. This can be mitigated in several ways. First, either the statutes or the regulations around environmental review should be restructured in order to balance the number and kinds of interactions that the MEPA office has with all of the participants in the process. In order to create more balance, the environmental agencies should also be required to pro-actively engage the potential host community. MEPA office staff should have consultation sessions throughout the review process with community members and their leadership in order to fully explain the process, the limitations of the process, and what is considered relevant to the process.

These community consultation sessions would accomplish three things. First, they would moderately de-center the proponent from the agency's attention. By adding host communities as one of the actors with whom the agency must interact, the proponent's concerns would not be the only issues brought to the agency's attention. This would mitigate the bias that results when a regulatory agency's view of the public interest is narrowly defined in terms of the regulated entity with whom it interacts. Second, a community consultation session establishes an opportunity for MEPA staff to interact with community members in a less adversarial setting than is currently found in the quasi-judicial structure of the public meeting. Also, in a consultative setting, the MEPA office would not appear to be working on behalf of the proponent. This may reduce the animosity that communities often develop toward environmental agency staff members by allowing residents to understand what agency staff do and why, as well as work cooperatively with agency staff on a common goal. Finally, by creating opportunities for communicative interaction through which participants can actually have influence, it would contribute to more effective participation by community members.

Meaningful participation in government decision making requires that we pay more attention to the social mechanisms that create barriers to influence, and specifically how laws and policies create those structures. It is not sufficient to simply call for increased participation in the environmental review process. For public participation to be effective at promoting environmental equity, the voices of the community must matter. We need to make the effort to restructure the decision-making process so that all community residents, whatever their position on a proposal, can have influence on decisions that affect their communities and their lives.