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Public Participation in Environmental Decision Making
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6
Public Participation in Environmental
Decision-making
BENJAMIN J. RICHARDSON* AND JONA RAZZAQUE**
A. Introduction: The Importance of Participation
Public participation in environmental decision-making has become an indelible

feature of many environmental regulatory systems world-wide over the past few
decades. Individuals and organisations affected by development approvals, pollu-
tion licences, land use plans and other types of regulatory processes have increas-
ingly demanded greater consultation, and more transparent and accountable
decisions. Parliamentary democracy ratified through periodic electoral contests is
widely viewed as insufficient to provide meaningful public input into day-to-day
environmental decision-making. Governing elites’ hostility to independent
protest and community self-expression has encouraged the creation of ‘surrogate
political processes’,1 wherein citizens’ views are channelled into and considered in
alternate administrative and judicial structures.2
In these structures, public participation assumes a variety of forms. It can occur
through education, information dissemination, advisory or review boards, public
advocacy, public hearings and submissions, and even litigation.3 By these means,
public participation may assist decision-makers to understand and identify pub-
lic interest concerns while formulating environmental policies.4 Greater citizen
* Professor, Osgoode Hall Law School, York University.

** Senior Lecturer, University of the West of England, and recently Staff Lawyer, Foundation for
International Environmental Law and Development (FIELD).
1 RB Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard L Rev 1660, 1712.
2 See generally C Offe, ‘New Social Movements: Challenging the Boundaries of Institutional
Politics’ (1985) 52 Social Research 817.

3 S Stec and S Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide (UNECE, 2000)
85. On definition of the ‘public’, see DN Zillman, ‘Introduction to Public Participation in the 21st
Century’ in D. Zillman et al, Human Rights in Natural Resource Development: Public Participation in
the Sustainable Development of Mining and Energy Resources (Oxford UP, 2002).
4 E Petkova, C Maurer, N Henninger and F Irwin, Closing the Gap: Information, Participation, and
Justice in Decision-making for the Environment (World Resources Institute, 2002) 66–67.
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166 Richardson & Razzaque

input may promote environmental justice and help integrate ecological and social
considerations in governmental decisions.5 Further, participation may enhance
the accountability, and thus acceptability, of environmental decisions.6 This may
lead to less litigation, fewer delays and generally better implementation of deci-
sions.7 Thus, as Lawrence Tribe once warned, the way policy decisions are made
has important implications for the outcomes of those decisions.8
Public participation is particularly significant in the context of sustainable
development. Sustainability depends largely on the way economic, social and envi-
ronmental considerations have been integrated in decision-making. The principles
of inter- and intra-generational equity in sustainable development discourse reflect
the centrality of public involvement and social justice.9 Implementation of the pre-
cautionary principle, another part of sustainability discourse, also depends on
public input into the assessment of acceptable risks. Environmental threats, such
as climate change or genetically modified organisms, are often characterised by
scientific and technical uncertainties and risks for which people often hold very
different and competing preferences.10 Public participation can help assess these
uncertainties and risks, and weigh them against perceived benefits.11
Several interrelated factors have fuelled the growth of participatory processes in
decision-making. The first is increased public awareness and concern about the
relationships between ecological health and human well-being.12 Secondly, the
growth of human rights in legal and political systems has heightened people’s
expectations of participation in policy-making.13 Thirdly, the prevailing concerns
of the international community for ‘good governance’ and the strengthening of
civil societies have contributed to increasing interest in the use of participatory
mechanisms.14 Also, weaknesses in the legitimacy of the state and lack of trust in
5 M Lee and C Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’
(2003) 66 MLR 80, 82–85.

6 NP Spyke, ‘Public Participation in Environmental Decision-making at the New Millennium:
Structuring New Spheres of Public Influence’ (1999) 26 Boston College Envtl Affairs L Rev 263, 269–70;
see also J Habermas, Communication and the Evolution of Society (Beacon Press, 1991).
7 DA Wirth, ‘Public Participation in International Processes: Environmental Case Studies at the
National and International Levels’ (1996) 7 Colorado Journal of International Law & Policy 1.
8 L Tribe, ‘Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental
Rationality’ (1972) 46 Southern California L Rev 617.

9 I Voinovic, ‘Intergenerational and Intragenerational Equity Requirements for Sustainability’
(1995) 22(3) Envtl Conservation 223.

10 J. Ebbesson, ‘The Notion of Public Participation in International Environmental Law’ (1997) 8
Yearbook of International Environmental Law 59.

11 J Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem Solving
Approach’ (2001) 21 Oxford Journal of Legal Studies 426. B Doherty and M de Geus, Democracy and
Green Political Though: Sustainability, Rights and Citizenship (Routledge, 1996).
12 B Barton, ‘Underlying Concepts and Theoretical Issues in Public Participation in Resource
Development’ in Zillman, above n 3, at 81–3.

13 Ibid.
14 M Pimbert and T Wakeford, ‘Overview-Deliberative Democracy and Citizen Empowerment’
(2001) PLA Notes, available at www.iied.org/docs/pla/pla_fs_5.pdf.

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Public Participation in Environmental Decision Making 167

governments have fuelled popular demands for more grass-roots, direct involve-
ment in decisions.15
Different models have been proffered to analyse the range of forms of public
participation. One model, known as Arnstein’s ‘ladder’, shows the spectrum of
participation opportunities, beginning with mere notification, and extending to
consultation and even joint decision-making power.16 The lowest levels of partic-
ipation may effectively amount to non-participation.17 The highest level of par-
ticipation, says Arnstein, is where the public has the power to negotiate with
decision-makers and to veto proposed decisions. Another model of participation
distinguishes between ‘top-down’ and ‘bottom-up’ approaches. The former is
where the government initiates participation, the latter where communities do
so.18 Thirdly, some commentators distinguish between substantive and procedural
dimensions of participation.19 Participatory rights may derive from substantive
human rights, such as a right to live in a healthy, unpolluted environment, and
may be enshrined in a constitution or statutory bill of rights.20 By contrast, pro-
cedural rights concern the methods of decision-making, and typically encompass
public consultation, information provision and access to the courts.21 Substantive
and procedural rights are often intertwined: for instance, a substantive right to a
healthy environment usually requires procedural rights to be heard in decisions
that might affect those substantive rights.22
Law plays a crucial role in all these approaches. Open-ended discursive experi-
ences based on custom or current controversy may be too fragile and insufficient
to sustain the desired policy and political transformation. Law can provide two
remedial functions in this respect. First, through decision rules and procedures it
can enable democratic will to emerge. Secondly, through its ability to codify
norms and structure institutions, it can effectively channel this political power
throughout society, as a force for social coordination. In other words, law creates
a structure for participation that helps crystallise and protect society’s environ-
mental goals.
This chapter is divided into five parts. Section B traces briefly the historical evo-
lution of public participation reforms. Section C considers their theoretical con-
text. Sections D and E survey legal reforms for participation, including the seminal
Aarhus Convention. The final part canvasses some problems commonly associated
with the democratisation of environmental decision-making.
15 Ibid, 24–5; see also A Dobson, Justice and the Environment (Oxford UP, 1998).
16 SR Arnstein, ‘A Ladder of Citizen Participation’ (1969) 35(4) Journal of the American Institute of
Planning 216.
17 Ibid, 217.
18 S Langton (ed), Citizen Participation in America (Lexington Books, 1978).
19 Steele, above n 11, 415–6.
20 Ibid.
21 Ebbesson, above n 10, 70–5; P Birnie and A Boyle, International Law and the Environment
(Clarendon Press, 1992) 261.

22 Ebbesson, above n 10, 63–9.
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B. Historical Perspectives on Participation
Public participation provisions began to appear in the planning and environmen-

tal regulations of some states during the late 1960s and 1970s,23 coinciding with
the political upheavals of these times when publics agitated for more democratic
governance and stronger environmental protection.24 During the 1970s and early
1980s, commentators increasingly emphasised the value of a ‘bottom-up’, people-
centred approach to economic development.25 Economists such as Schumacher
stressed the value of grass-roots, small-scale decision-making to promote social
welfare.26 By the 1990s, consultation and participation became the buzzwords of
successful environmental decision-making, feeding into broader discourses on
‘good governance’, ‘environmental justice’ and ‘environmental citizenship’.
In developing countries, the participation agenda often manifested in calls for
greater local community involvement in development planning and poverty alle-
viation projects, especially in the context of development aid schemes.27 Post-
colonial commentators argued that the post-War decolonisation process was
‘prematurely celebratory’, given the persistence of widespread oppression and
poverty in many developing countries.28 They advocated further reforms to
recently-independent states to widen community participation in government to
ensure social and economic policies addressed people’s primary needs.29 Recent
development policies have sought to decentralise decision-making and enhance
local institutional capacities (eg, through strengthening local government and
NGOs) to create a more participatory milieu.30 These trends have been accentu-
ated by recent global policy initiatives, such as the ‘Local Agenda 21’ movement
for sustainable development.31
In developed nations, the public participation agenda achieved similar promi-
nence, though it has tended to take a more legal form than in many developing
23 Eg, in the UK, in its planning legislation of the 1960s. The creation of the Royal Commission on
Environmental Pollution (1969) and the Department of the Environment (1970) is the governmental
response to these public pressures: see generally J McCormick, The Global Environment Movement
(Wiley, 1995). In the USA, the National Environmental Policy Act of 1969 provided for participation
by the general public: see S Kuhn, ‘Expanding Public Participation is Essential to Environmental Justice
and the Democratic Decision Making Process’ (1999) 25(4) Ecology Law Quarterly 647.
24 Barton, above n 12, 81.
25 Spyke, above n 6, 269;
26 EF Schumacher, Small is Beautiful: Economics as if People Mattered (Harper and Row, 1973).
27 M Aycrigg, Participation and the World Bank: Successes, Constraints and Responses (World Bank,
1998).
28 A McClintock, Imperial Leather (Routledge, 1995) 12–13.
29 A Memmi, The Colonizer and the Colonized (Beacon Press, 1991); G Rajan and R Mohanram
(eds), Postcolonial Discourse and Changing Cultural Contexts (Greenwood Press, 1995).
30 BJ Richardson, ‘Environmental Law in Postcolonial Societies: Straddling the Local—Global
Institutional Spectrum’ (2000) 11(1) Colorado Journal of Environmental Law & Policy 1, 45–7.
31 J Agyeman and B Evans, ‘Sustainability and Democracy: Community Participation in Local
Agenda 21’ (1995) 22(2) Local Goverment Policy Making 35.

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countries where it has typically been confined to policy mechanisms.32 Some eco-
activists saw the best prospects for change in parliamentary electoral contests
through the formation of green political parties. Although green parties have sur-
vived in several Western polities, notably Germany and Australia, they have yet
seriously to challenge the electoral dominance of the mainstream parties.33 Most
public participation has thus occurred not through legislative fora but in the pro-
liferation of administrative-based consultation, information and review mecha-
nisms established pursuant to environmental and planning laws.34
Numerous societal conflicts over development choices in the 1970s and 1980s
fuelled popular demands for more participation in decision-making. For example,
in Australia, a series of protracted and often violent conflicts over logging in World
Heritage forests caused governments to look for more peaceful means by which cit-
izens could be involved in resource management policy.35 In the urban areas of
many countries, community groups mobilised for more say in decisions about
brownfield redevelopment and urban amenity planning.36 Public participation
reforms in Canada, New Zealand, the US and other countries with indigenous
minorities were also influenced by the Aboriginal self-determination movement.37
The emergence of Aboriginal land claims and demands for self-governance provid-
ed another lever for legal reforms to enhance community involvement in environ-
ment and development decision-making.
Internationally, the rhetoric of good governance has received considerable atten-
tion. Empowerment of civil societies has been identified as one of the best means to
promote good environmental governance.38 Major international environmental
policy statements in the 1980s and 1990s routinely called for increased community
involvement in environmental decision-making.39 International financial institutions,
32 O Renn, T Webler and P Wiedemann (eds), Fairness and Competence in Citizen Participation:
Evaluating Models for Environmental Discourse (Kluwer, 1995).

33 SP Hays, ‘The Structure of Environmental Politics Since World War II’ (1981) 14 Journal of Social
History 719; E Bomberg, Green Parties and Politics in the European Union (Routledge, 1998).
34 Stewart, above n 1.
35 BJ Richardson, ‘A Study of Australian Practice Pursuant to the World Heritage Convention’ (1990)
20(4) Environmental Policy & Law 143.

36 See eg A Jakuhowicz, ‘The Green Ban Movement: Urban Struggle and Class Politics’ in J Halligan
and C Pairs (eds), Australian Urban Politics (Longman, 1984) 143.

37 PG McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self-
determination (Oxford UP, 2005) 315–65.

38 J Steffek and P Nanz, ‘Deliberation and Democracy in Global Governance: The Role of Civil Society’
in S Thoyer and B Martimort-Asso (eds), Participation for Sustainability in Trade (Ashgate, 2005).
39 See eg World Commission on Environment and Development, Our Common Future (Oxford UP,
1987); World Conservation Union, Caring for the Earth (IUCN, 1990). This realisation is also evident
in a growing body of international legal instruments: eg Stockholm Declaration (1972) 11 ILM 1416,
Rio Declaration on Environment and Development (1992) 31 ILM 874, Declaration of the World
Summit for Sustainable Development (2002), and UNECE Convention on Access to Information,
Public Participation in Decision Making and Access to Justice in Environmental Matters (Aarhus
Convention) (1999) 38 ILM 517, discussed below.
ch-06.qxd 12/9/2005 8:38 PM Page 170

like the World Bank and its ‘sister’ regional banks, also reformulated their lending pro-
cedures to require more information disclosure and consultation with affected par-
ties.40 These initiatives acknowledge that civil society can also play an important role
in making the decision-making processes of international organisations more trans-
parent.41
C. Theoretical Approaches to Public Participation
There has been a plethora of academic writings on the virtues of public participa-
tion in policy-making, especially in relation to environmental policy.42 Not all
environmentalists however have always championed democracy: for example,
during the 1970s, several commentators such as Ophuls and Hardin believed that
the intensification of societal conflict over an ever-decreasing pool of natural
resources could be dampened only through the enlightened despotism of an
authoritarian state.43 Today, the complex and multi-faceted nature of sustainabil-
ity, involving various social objectives flanking and supporting environmental
protection, suggests that no single institution can be expected to hold all of the
expertise and knowledge needed for good decision-making.44 Popular involve-
ment in environmental decision-making has been rationalised from two main
perspectives, a process perspective and a substantive perspective. The latter is based
on arguments that public participation improves the substantive outcomes of
decision-making processes; the former that it bolsters the democratic legitimacy
of those decisions. Across these two perspectives, several schools of thought on the
rationale and role of public participation have arisen.
First, there is the ‘rational elitism’ school, which treats environmental policy as
complex and technical, requiring primarily technical and administrative expert-
ise. This doctrine emphasises decision-making by experts, and concedes limited
participation to the general public when they hold information that may assist
experts.45 Technical environmental risk assessments and economic cost-benefit
analyses of development proposals are situations in which governments often
40 Barton, above n 12, 84.

41 S Oberthür et al, Participation of NGOs in International Environmental Governance: Legal Basis
and Practical Experience (FIELD and Ecologic, 2001); see also J Razzaque, ‘Transparency and
Participation of Civil Society in International Institutions Related to Biotechnology: A Brief Study of
the Bio-safety Protocol, WTO and Codex Alimentarius’ in Thoyer and Martimort-Asso (eds), above n
38.
42 See discussion in Barton, above n 12, 84–98.
43 W Ophuls, ‘Leviathan or Oblivion?’ in HE Daly (ed), Toward a Steady-State Economy (WH
Freeman, 1973); G Hardin, Exploring New Ethics for Survival (Viking Press, 1972).
44 See generally K Ginther et al (eds), Sustainable Development and Good Governance (Nijhoff, 1995).
45 Barton, above n 12, 86–7.
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favour ‘expert’ participation.46 But this approach, which pretends that science is
‘objective’ and ‘apolitical’, obfuscates the fundamental way in which social values
influence decision-making. For example, even if the scientific information about
a hazard and its likelihood is relatively clear, the acceptable level of environmen-
tal risk is arguably a political question.47 Another strand of the rational elitism
model is known as ‘corporatism’. Corporatist modes of interest group intermedia-
tion, for instance, have been widely used in round-table negotiations of economic
policy-making in Scandinavia and Germany.48 Corporatist styles of participation
have also been used in the environmental policy round-tables adopted in Australia
and Canada.49 However, corporatism offers only a ‘functional representation’ to
representatives of large strategic groups such as trade unions, industry and busi-
ness councils, and sometimes renowned environmental NGOs.50
A second approach to participation is the ‘liberal democratic’ one, which stresses
procedural rights for individuals and NGOs to be consulted and heard in decision-
making. When electoral legitimacy is weak, procedural legitimacy assumes greater
salience. The traditional polyarchal mechanisms (eg, elections and political parties)
of liberal-democratic systems have been criticised as unable to manage the demands
of competing interest groups in modern societies. To Offe, the ‘conflict-generating
potential of the institutions of the democratic polity by far outweighs their conflict-
resolving capacity’.51 Consequently, most liberal-democratic states have sought to
create supplementary public consultation and information processes in administra-
tive and legislative decision-making.52 Thus, the propensity of modern environ-
mental legislation is to identify the factors relevant to agency decision-making, one
of which is the input made by the public consulted. Through procedural reforms,
concerned persons have rights of access to relevant information, to make submis-
sions on environmental decisions, and to use courts to enforce environmental laws.
Apart from bolstering the legitimacy and public acceptability of policy deci-
sions, the procedural reforms of liberal-democratic systems may also shape sub-
stantive policy outcomes. For example, simple obligations of openness may
illuminate the uncertainties and value judgements inherent in experts’ advice,
allowing political decision-makers to reach conclusions on the basis of a wider
array of evidence. Public involvement can also facilitate community co-operation
46 See S Jasanoff, The Fifth Branch: Science Advisors as Policymakers (Harvard UP, 1990); S Breyer
and V Heyvaert, ‘Institutions for Regulating Risk’ in RL Revesz, R Sands and RB Stewart (eds),
Environmental Law, the Economy and Sustainable Development (Cambridge UP, 2000).
47 P Slovic, The Perception of Risk (Earthscan, 2000); M Douglas and A Wildavsky, Risk and Culture
(U California P, 1983).
48 PC Schmitter and G Lehmbruch (eds), Trends Toward Corporatist Intermediation (Sage, 1979).
49 M Howlett, ‘The Round Table Experience: Representation and Legitimacy in Canadian
Environmental Policy-making’ (1990) 97 Queen’s Quarterly 580.

50 C Offe, Contradictions of the Welfare State (MIT Press, 1987) 167.
51 Ibid, 164.
52 See J Habermas, Legitimation Crisis (Beacon Press, 1973), Offe, above n 50.
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in implementing environmental decisions, such as anti-littering and recycling
campaigns. The sense of ownership and responsibility for decisions that comes
from being part of decision-making can encourage more thoughtful environmental
behaviour. Regulation theorists often see third party involvement and transparency
as a way to keep regulators accountable, again a means of improving outcomes.53
Opening decision-making processes can reduce the risk of agency ‘capture’ by their
industry clientele.54 However, not all commentators share such a sanguine view of
participatory proceduralism. Liberal-democratic procedural reforms may hardly
challenge the structure of governing elites’ power: citizens may be heard, but their
views are given weight in discretionary decision-making only insofar as they are
seen as consistent with the ‘seamless web of bureaucratic control and coordina-
tion’.55 Further, liberal-democratic methods hardly provide an institutional
framework for active citizen interaction, learning and ethical transformation.
These limitations have engendered a third model of participation, known as
deliberative democracy, which seeks to empower citizens in the actual making of
decisions and to reorient decision processes to fundamental ethical and social val-
ues.56 While sustainable development cannot be guaranteed, wide participation in
political debate is seen as essential to allow for the pedagogic cultivation and
exchange of environmental values.57 Deliberative models of decision-making
dovetail closely with the deep and radical ecological schools of thought. For the
self-styled ‘eco-anarchist’ Murray Bookchin, the human domination and exploita-
tion of nature are largely a consequence of hierarchical social relations, being a
reflection of the domination of human by human.58 Deep ecologists thus often
stress the value of egalitarian, community-based means of decision-making.59
Whether citizen participation is ‘deliberative’ depends on many factors, includ-
ing whether the participants represent all sectors of the community.60 Touraine
has identified popular social movements as the most creative source of new norms
to regenerate dialogue in public institutions.61 But, because the complexity of
53 I Ayres and J Braithwaite, Responsive Regulation (Oxford UP, 1992); N Gunningham and P
Grabosky, Smart Regulation: Designing Environmental Policy (Oxford UP, 1998).

54 M Levine and J Forrence, ‘Regulatory Capture, Public Interest and the Public Agenda: Toward a
Synthesis’ (1990) 6 Journal of Law, Economics and Organisation 167.

55 A Fraser, ‘Legal Theory and Legal Practice’ (1976) 44–45 Arena 123, 147.
56 J Bohman and W Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (MIT Press,
1997).
57 See B Doherty and M de Geus (eds), Democracy and Green Political Thought—Sustainability,
Rights and Citizenship (Routledge, 1996); G Smith, Deliberative Democracy and the Environment
(Routledge, 2003).
58 M Bookchin, The Ecology of Freedom: The Emergence and Dissolution of Hierarchy (Cheshire
Books, 1982).
59 B Boer, ‘Social Ecology and Environmental Law’ (1984) 1(3) Envtl & Planning LJ 233.
60 J Elster (ed), Deliberative Democracy (Cambridge UP, 1998); B Barber, Strong Democracy:
Participatory Politics for a New Age (U California P, 1984); J Dryzek, Deliberative Democracy and
Beyond: Liberals, Critics, Contestations (Oxford UP, 2000).
61 A Touraine, The Voice and the Eye: An Analysis of Social Movements (Cambridge UP, 1982).
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modern life probably makes it impossible to assume or develop shared social val-
ues on many environmental and economic issues, some commentators argue that
at best we can hope to agree on the institutional processes by which we can delib-
erate policy. Habermas has posited an ‘ideal speech situation’, or a set of rules for
communication and discourse, by which rational decision-making is most likely
to flourish.62 Dryzek has argued that mediation and negotiation are institutional
means to achieve such a rational discourse in an environmental policy setting.63
Other methods are some forms of social impact assessment and public environ-
mental inquiries.64
The foregoing approaches to public participation are not necessarily mutually
exclusive, and elements of each have featured in the related ‘environmental citi-
zenship’ and ‘environmental justice’ movements. The former sees public partici-
pation as a means of nurturing a new ethos of environmental responsibility,65
while the latter champions democratic decision-making as a way to ensure social
equity in the distribution of the environmental costs and benefits of policy deci-
sions.66 The complex, normative and political nature of environmental decisions
means that public involvement is necessary at many levels. Active citizen involve-
ment in environmental decisions would be hampered, for instance, without the
presence of basic rights to access information and to receive notice of pending
development proposals. Most examples of public participation canvassed in this
chapter are of the liberal-democratic variety. They emphasise public access to
environmental information, participation in administrative decision-making (eg,
environmental assessments and development applications) and access to justice
(eg, standing in courts to enforce regulations). While these participatory reforms
have improved the quality of many environmental decisions, they have hardly
engendered a major paradigm shift to ecologically sustainable development. Most
participatory techniques so far hardly seem to threaten existing political institu-
tions, since they operate within those institutions, and leave power and authority
mostly unfettered.
Apart from the theoretical debates about participation in public government, it
should be noted that numerous commentators also advocate more openness and
public involvement in corporate governance. The ethical investment movement
62 J Habermas, The Theory of Communicative Action 1: Reason and the Rationalization of Society
(Beacon Press, 1984); see also K Popper, The Open Society and Its Enemies (Routledge, 1986).
63 JS Dryzek, Rational Ecology, Environment and Political Economy (Basil Blackwell, 1987).
64 See LM Lake (ed), Environmental Mediation: The Search for Consensus (Westview Press, 1980); D
Craig, ‘Social Impact Assessment: Politically Oriented Approaches and Applications’ (1999) 10 Envtl
Impact Assessment Review 37; see also Bosselmann, this vol, on the philosophical dimensions of this
debate.
65 R Engel ‘The Faith of Democratic Ecological Citizenship,’ (Nov 1998) Nature, Polis, Ethics S31.
66 KS Shrader-Frechette, Environmental Justice: Creating Equality, Reclaiming Democracy (Oxford
UP, 2002); E Gauna, ‘The Environmental Justice Misfit: Public Participation and the Paradigm
Paradox’ (1998) 17 Stanford Envtl L J 3.
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has long championed greater shareholder activism in business decision-making to
give more attention to the social and environmental effects of corporate policies.67
This can be applied through corporate–shareholder dialogue and submission of
shareholder proposals. Further, many company law theorists advocate a ‘stake-
holder’ approach to corporate management, whereby a wider range of social
interests including workers, consumers and local communities are given a voice in
company policy, alongside shareholders.68 The German system of corporate gov-
ernance, guaranteeing representation of employees on company governing
boards, comes closest to this model.69 Apart from these major structural reforms,
public participation in corporate governance may also be advanced by modest ini-
tiatives such as corporate social and environmental reporting obligations.70
D. The Aarhus Convention and its Implementation
1. Public Participation Provisions of the Aarhus Convention

One of the unique developments in the public participation arena is the 1998
Aarhus Convention.71 While there are other international environmental treaties
that contain public participation clauses,72 only the Aarhus Convention is dedi-
cated exclusively to participation. Although the Convention is a product of the
United Nations (UN) Economic Commission for Europe, it is open to accession
by any UN member state (with the approval of the parties). The Convention is a
globally significant example of the legal consolidation of measures to enhance
public participation in relation to administrative decision-making, freedom of
information and access to justice.
The Aarhus Convention imposes participation standards for decision-making
by public authorities. They relate to activities that may significantly affect the
environment (eg, construction of a power plant), or policies, programmes and
67 R Sparkes, The Ethical Investor (HarperCollins, 1995); R Sparkes, Socially Responsible Investment.
A Global Revolution (John Wiley and Sons, 2002)

68 JE Parkinson, Corporate Power and Responsibility: Issues in the Theory of Company Law (Clarendon
Press, 1995); D Campbell, “Towards a Less Irrelevant Socialism: Stakeholding as a ‘Reform’ of the
Capitalist Economy” (1997) 24 Journal of Law & Society 65.
69 D Charny, ‘The German Corporate Governance System’ [1998] Columbia Business L Rev 145.
70 Mandatory environmental reporting has been introduced in Australia, Britain, France and the US,
among many countries: see KMPG Environmental Consulting, International Survey of Environmental
Reporting (KPMG, 1999).
71 (1999) 38 ILM 515.
72 Eg Convention on Environmental Impact Assessment in a Transboundary Context (1991) 30 ILM
800, Art 16; North American Agreement on Environmental Cooperation (1993) 32 ILM 1480, Arts
13–14.
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plans relating to the environment.73 The procedural rights are to be applied with-
out discrimination as to citizenship, nationality or domicile.74
The first pillar of the Convention is participation in administrative decision-
making. Article 6 requires public notice of environmental decision-making to be
given when ‘all options are open’, to allow public comment and input into the
process.75 Public authorities76 must also take public feedback into account in their
final decisions.
Secondly, governments must make relevant information available to the public
when requested, and the Convention stipulates time-frames for responding to
these requests.77 Article 4 creates a presumption in favour of information disclo-
sure and public authorities may deny a request for information only on the basis
of the list of specific grounds for refusal.78 Further, public authorities may refuse
to disclose information that would impair the ability of a person to receive a fair
trial, or would adversely affect national defence or public security.79
The third pillar of the Convention is ‘access to justice’. These provisions are close-
ly tied to the other two pillars of the treaty. Article 9(1) provides for review of a
refusal or failure to respond to a request for access to information. Article 9(2) pro-
vides for the challenge of substantive or procedural legality of decisions subject to
Article 6 (above) and also ‘where so provided for under national law’. Finally, Article
9(3) mandates access to administrative or judicial procedures to challenge acts and
omissions by private and public bodies that contravene national law relating to the
environment. The Convention also requires proceedings to be ‘fair’, ‘equitable’ and
‘not prohibitively expensive’, and that there be ‘adequate and effective remedies’.80
Overall, the Aarhus Convention provides a useful framework for public partic-
ipation along the lines of the liberal-democratic model. Its participatory rights are
linked to various legislative, administrative and judicial decision-making points.
Implementation of these provisions however depends on strong political support
by state parties.
2. Implementation of the Convention

The Aarhus Convention signalled the culmination, rather than the beginning, of
public participation reforms made since the 1970s. States’ enthusiasm to ratify the
73 Arts 6–7. Annex I lists those activities that must be subject to the requirements under Art 6.
74 Art 3(9).
75 Art 6.
76 Public authority is defined in Art 2(2) and covers any body or any natural or legal persons per-
forming public administrative functions, and may include privatised companies providing public
services: Stec and Casey-Lefkowitz, above n 3, 44.
77 Arts 4 and 5.
78 Art 4(3).
79 Art 4(4).
80 Art 9(4).
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treaty reflects the fact that many governments already provide for similar kinds of
public involvement in environmental decision-making. Within the European
Union (EU), virtually all Member States have either signed or ratified the Aarhus
Convention. However, scope for public participation at the EU level itself is less
developed, making the EU’s ratification of Aarhus especially significant.81
The European Commission has undertaken necessary measures to implement
the Convention by adopting regulations to align EU legislation to the
Convention.82 The EC’s enthusiasm for the Aarhus Convention partly reflects a
desire to shore up its own democratic legitimacy. The Convention is of particular
importance to the EU institutions (eg, the Commission, the Parliament and the
Council) as they are covered by its definition of ‘public authorities’.83 The EU has
adopted a directive concerning public access to environmental information,
reflecting the first pillar of Aarhus.84 In addition, two important pieces of EU
environmental legislation85 have been amended to take account of the public par-
ticipation in certain environmental decision-making procedures. Directive
2003/35/EC86 updates provisions on public participation in national procedures
on environmental impact assessment and integrated pollution prevention and
control, and introduces rules on access to justice. In addition, provisions related
to access to justice are introduced in the Directive on environmental liability.87
However, the latter provisions fail to specify that access be fair, timely and not pro-
hibitively expensive. The European Commission has also adopted a proposal for a
directive to address the requirements of access to justice in environmental mat-
ters.88
81 See list of parties to the Convention, at www.unece.org/env/pp/ctreaty.htm.

82 Proposal for a Council Decision on the conclusion, on behalf of the European Community, of the
Convention on access to information, public participation in decision-making and access to justice
regarding environmental matters, COM(2003)625 final.
83 See the proposed Regulation of the European Parliament and of the Council on the application
of the provisions of the Aarhus Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies, COM
(2003) 622 final.
84 Directive 2003/4/EC on public access to environmental information and repealing Council
Directive 90/313/EEC [2003] OJ L/41/26.

85 Directive 85/337/EEC concerning the environmental impact assessment for certain public and
private projects (EIA Directive [1985] OJ L/175/40); and Council Directive 96/61/EC concerning inte-
grated pollution prevention and control (IPPC Directive) [1996] OJ L/257/26.
86 Directive 2003/35/EC providing for public participation in respect of the drawing up of certain
plans and programmes relating to the environment and amending with regard to public participation
and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L/156/17.
87 See Arts 12 (Request for Action) and 13 (Review Procedures) of Directive 2004/35/EC on envi-
ronmental liability with regard to the prevention and remedying of environmental damage [2004] OJ
L/143/56.
88 Commission proposal for a Directive on access to justice (COM(2003)624); see further J
Razzaque, ‘Access to Justice in Environmental Matters at EU Member State Level’ (2005) 5 Yearbook of
European Environmental Law, 63.
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At the EU Member State level, all 25 parties have national laws to enable some
participation in their decision-making processes. However, the contexts in which
these procedural rights operate are diverse, and reflect differences of legal and dem-
ocratic traditions. Mindful of this, the European Commission’s proposed directive
on access to justice on environmental matters addresses only the acts and omis-
sions of public authorities, and does not extend to private entities. On the ground
of the ‘subsidiarity’ principle (ie, that decisions should be made at the lowest level
of government where feasible), the Commission believes that administrative or
judicial review of the environmental behaviour of private entities is best left to
individual Member States to determine. Even in relation to the public sector,
‘standing’ rules vary considerably among EU Member States.89 Similar variations
in national practice have been documented in relation to the other limbs of Aarhus
concerning participation in administrative decisions and access to information.90
E. Legal Mechanisms for Public Participation
1. Constitutional Provisions and Environmental Rights

National constitutions often lay down fundamental human rights, sometimes
known as a bill of rights. Increasingly, constitutions also incorporate fundamental
environmental rights.91 These rights can support public interest litigation or judi-
cial review for environmental protection.92 Constitutional norms that oblige gov-
ernments to protect the environment or give citizens enforceable rights to a clean
and healthy environment may be more secure than statutory rights, which are
more vulnerable to change or repeal by the government of the day. On the other
hand, constitutions do not provide a suitable framework for prescribing in detail
environmental standards and rules including participation provisions, which are
better elaborated through legislation. Thus, because of their generality, the effec-
tiveness of constitutional norms in shaping environmental law hinges considerably
on the willingness of the courts to interpret and elaborate on their application.93
89 J Ebbesson, ‘Comparative Introduction’ in J Ebbesson (ed), Access to Justice in the Environmental
Matters in the EU (Kluwer, 2002) 20, 23.

90 United Nations Economic Commission for Europe, Synthesis Report on the Status of Imple-
mentation of the Convention ECE/MP.PP/2005/18 (ECOSOC, Apr 2005).

91 Numerous examples are contained in C Bruch, W Coker and C Van Arsdale, ‘Constitutional
Environmental Law: Giving Force to Fundamental Principles in Africa’ (2001) 26 Columbia J Envtl L
131; EF Brown, ‘In Defense of Environmental Rights in East European Constitutions’ (1993) University
of Chicago Law School Roundtable 191.
92 J Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (Kluwer,
2004) ch 2.
93 Eg the role of Canadian courts in developing Aboriginal rights, which are merely ‘recognised and
affirmed’ by s 35(1) of the Constitution Act 1982.

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In many Asian and African countries, constitutions incorporate a panoply of
human rights, including rights to life, free expression and assembly, along with
specific environmental protection clauses.94 But often these rights tend to be
merely rhetorical and consequently are ignored by policy-makers. For example,
the Constitution of South Korea was amended in 1980 to provide its citizens with
the right to live in a healthy and clean environment,95 but the Supreme Court of
Korea has construed this provision as not self-executing and enforceable in its
own right.96 By contrast, constitutional norms play a much greater role in the legal
systems of Western countries such as the US, Canada and Australia.97 Even
nations without a written constitution, such as Britain, have acquired an extensive
body of human rights through the common law and from international treaties
such as the European Convention on Human Rights,98 which the UK incorporat-
ed domestically via the Human Rights Act 1998.
Apart from constitutional entrenchment, participatory rights can be articulat-
ed through a statutory environmental bill of rights (EBR), as seen in Ontario and
Michigan, for instance.99 To illustrate, the Ontario EBR of 1994 established an
Environmental Registry as part of a framework for notifying and consulting the
public with regard to proposed legislation, policies, regulations and other legal
instruments that may significantly affect the environment.100 Although the EBR
does not provide a substantive right to a healthy environment, it does expand pro-
cedural rights.101 While it is a significant precedent, it remains difficult to assess
whether the improved participation has per se changed the quality of authorities’
environmental decisions.102
94 B Ajibola, ‘Individual Human Rights in African Context’ in A Anghie and G Sturgess (eds), Legal
Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Kluwer, 1998); L Beer
(ed), Constitutionalism in Asia (U California P, 1979).
95 Constitution of the Republic of Korea, Art 35, available at: www.oefre.unibe.ch/law/icl/ks00000_.
html.
96 Eg Dae-bup-won [DBW] [Supreme Court] 94 ma 2218 (23 May 1995) (S Korea).
97 DP Kommers, JE Finn and GJ Jacobson, American Constitutional Law (2nd edn, Rowman, 2004)
425, 432–5.
98 (1950) ETS 5/213, UNTS 222.
99 DK Slone, ‘The Michigan Environmental Protection Act: Bringing Citizen-initiated
Environmental Suits into the 1980’s’ [1985] Ecology Law Quarterly 271; P Muldoon ‘Ontario
Environmental Bill of Rights’ (1992) 3(1) Earthkeeper 44; C Miller, Environmental Rights: Critical
Perspectives (Routledge, 1998).
100 MA Schofield and DS Thompson, ‘Access to Justice and the Right to a Healthful Environment in
Canada: Public Participation in Environmental Decision Making’ (1994) 3/4 RECIEL 232.
101 DP Emond, ‘An Environmental Bill of Rights—Ontario Style’ (1994) 1 Government Information
in Canada/Information Gouvernementale au Canada 1(2–3) (1994), available at www.usask.ca/library/

gic/v1n2/emond/emond.html.
102 RD Lindgren, ‘The Environmental Bill of Rights Turns 10 Years-old: Congratulations or
Condolences?’, Environmental Commissioner’s EBR Law Reform Workshop (16 June 2004).
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2. Participation in Administrative Decision-making

One of the pillars of the Aarhus Convention is public participation in administra-
tive decision-making. Such participation can arise in a variety of contexts, includ-
ing in decisions concerning specific development proposals, plans and policies,
and in regulation-making processes.103 Most public participation reforms adopt-
ed in this field entail rights to make written submissions and to be involved in
public inquiries, with concomitant obligations on decision-makers to take into
account public opinion. The oldest and most basic of these reforms are simple
‘notice and comment’ provisions, in place since the 1960s in most US environ-
mental regulatory regimes and subsequently adopted in many other jurisdictions.
Modern environmental legislation, delegating powers to administrative agencies,
often makes participation a central agency function.104 These participation mech-
anisms can be illustrated by environmental impact assessment (EIA) regulation.
Public participation in the EIA process can assist the integration of economic,
social and ecological objectives in decision-making.105 Although historically expert
specialists dominated EIA procedures, in many jurisdictions these procedures have
evolved to allow for extensive public input in the assessment process.106 At the
‘screening stage’, which is an initial consideration of whether a proposal may have
significant impacts on the environment, people may help identify potential impacts
of the proposal. If the proposal is deemed to require an EIA, the ‘scoping stage’
serves to identify the range of significant impacts that need to be evaluated. This
stage provides an opportunity to identify public interest and priorities for assess-
ment.107 Although most jurisdictions have legislated public rights to access informa-
tion and to make submissions during these stages, in some cases such as Canada the
scoping phase remains entirely up to the responsible authority.108 The weight given
to public comments in the environmental assessment is also usually a matter of
agency discretion in many jurisdictions. A major analysis of the Canadian, US and
European EIA processes concluded that the degree of public participation affects the
quality of the assessment process, which in turn affects the quality of the decision.109
Although it is argued that public participation slows down the EIA process, one
underlying rationale of EIA is to ensure socially acceptable environmental results.110
103 See A Boyle and MR Anderson (eds), Human Right Approaches to Environmental Protection
(Clarendon Press, 1996).

104 Eg Australia’s Environmental Planning and Assessment Act 1979 (NSW) s 5.
105 See also the discussion of EIA regulation in Abbot’s ch, this vol.
106 See J Holder, Environmental Assessment: The Regulation of Decision Making (Oxford UP, 2004).
107 See CM Wood, Environmental Impact Assessment: A Comparative Review (Prentice Hall, 2002); J
Glasson, R Therivel and A Chadwick, Introduction to Environmental Impact Assessment (UCL Press, 1999).
108 Canadian Environmental Assessment Act, SC 1992, c 37, as amended SC 2003, c 9.
109 Wood, above n 107, chs 2, 3 and 5.
110 WA Tilleman, ‘Public Participation in the Environmental Impact Assessment Process: A
Comparative Study of Impact Assessment in Canada, the United States and the European Community’
(1995) 33 Columbia Journal of Transnational Law 337.
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The public environmental inquiry is another means for concerned citizens to
be heard.111 It provides an opportunity for direct community dialogue in the spir-
it of deliberative democracy. The public inquiry technique was pioneered in the
UK and is used in much of its planning legislation. For instance, once a planning
application is submitted to a Local Planning Authority (LPA), community groups
can submit comments on the environmental statement. In addition, if there is a
public inquiry against the decision taken by the LPA, the local community can
send written comments or present its views in person.112 Moreover, the Secretary
of State has the discretion to ‘call in’ for a public inquiry any application for his or
her own determination if the proposal involves planning issues of more than local
importance.113 However, these processes can be time consuming and expensive:
the public inquiry on Heathrow Terminal 5 lasted almost four years and cost over
£80 million.114 Public environmental inquiries have been used extensively in
several other jurisdictions as an adjunct to EIA processes. Australia’s Industry
Commission and Resource Assessment Commission each conducted numerous
public inquiries into contentious resource management proposals during the
1990s.115 Some major environmental assessment inquiries have also been estab-
lished under New Zealand’s Resource Management Act 1991.116
An EIA may come too late to result in major changes in proposed activities that
can protect the environment. In those cases, a strategic environmental assessment
(SEA) process may be more beneficial as it allows people to participate at the
policy- (or plans or programmes) making level, which in turn shape future, spe-
cific development projects. SEA is a procedure integrated in the political decision-
making process that is intended to ensure that the long-term environmental
sequelae of various plans and programmes are identified and assessed before
being adopted.117 In the EU, the SEA Directive118 stipulates that prior to the adop-
tion of a plan or programme, or its submission to the legislative process, the com-
petent national authority must carry out an environmental report. The public are
to be given an opportunity to comment on the draft plan or programme and the
111 G Hart, ‘The Value of Inquiries System’ (1997) 25 Journal of Planning and Environmental Law 8.
112 Town and Country Planning Act 1990 s 78.
113 Ibid, s 77.
114 K Thorpe, ‘The Heathrow Terminal 5 Inquiry: An Inquiry Secretary’s Perspective’ (1999) 15
Planning Inspectorate Journal 8.

115 TL Hundloe, ‘The Role of the Industry Commission in Relation to the Environment and
Sustainable Development’ (1992) 51 Australian Journal of Public Administration 476; BJ Richardson

and BW Boer, ‘Federal Public Inquiries and Environmental Assessment’ (1995) 2(2) Australian Journal
of Envtl Management 90, 92.
116 BJ Richardson, ‘Public Environmental Inquiries: Lessons for New Zealand’ (1996) 1 Butterworths
Resource Management Bulletin 252.

117 R Therivel and MR Partidario (eds), The Practice of Strategic Environmental Assessment
(Earthscan, 1996).
118 Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the
environment [2001] OJ L/197/30.

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accompanying environmental report. The relevant public authority has a duty to
inform the parties concerned and all consultees of the result of the consultation,
and the reasons for choosing the final plan or programme.
2. Access to Information
Liberal access to environmental information has many advantages. It makes it eas-
ier for the public to participate in administrative and judicial processes; it helps
promote more rational, informed decision-making; and it fosters transparent and
accountable decision-making.119 Apart from ensuring access to a broad range of
information, effective access to information laws should include obligations on
agencies to collect and maintain relevant information, to meet information
requests in a timely manner, and to keep information application fees low and
within the means of all people.120
So far, most environmental information reforms have targeted the public sec-
tor, and few address disclosure of information by the private sector. The relevant
Aarhus Convention provisions deal only with government information.
Nonetheless, the right of citizens to access information is becoming widespread
and even recognised in constitutional law. For example, the constitutions of
Uganda, South Africa and Thailand guarantee the right of the public to informa-
tion.121 In addition, as of 2004 over 50 countries worldwide passed access to infor-
mation legislation, of which most included provisions related to environmental
information.122 In some countries (eg, South Africa, Thailand) environmental
protection laws provide specific provisions for environmental information123
complementing access to information laws. There are also examples of countries
having specific legislation on access to environmental information.124 In addition,
some countries have constitutional provisions, specific freedom of information
legislation and environmental protection laws with specific provisions on infor-
mation.125
Omnibus access to information legislation is often complemented by sector-
specific information regulations and business self-regulation initiatives. The cor-
porate social responsibility movement has fuelled increased public disclosure of
119 JR Robinson, et al, ‘Public Access to Environmental Information: A Means to What End?’ (1996)
8(1) Journal of Environmental Law 19, 20.

120 Petkova et al, above n 4, 37–40.
121 D Banisar, ‘Global Survey: Freedom of Information and Access to Government Record Laws
Around the World’ (May 2004), available at: www.freedominfo.org/survey/global_survey2004.pdf.

122 Ibid.
123 World Resources Institute (WRI), World Resources 2002–2004—Decisions for the Earth: Balance,
Voice and Power (WRI, 2004) ch 3.

124 In Britain, the Environmental Information Regulations 2004 implement the EU Directive on
Access to Environmental Information, Sl 2004 No 3391.

125 Eg, Mexico, South Africa and Thailand: Petkova et al, above n 4, ch 3.
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corporate environmental policy and performance information.126 Some of this

disclosure is voluntary, while some is associated with regulation. There are sever-
al ways in which environmental disclosure is occurring, principally:127 (i) public
inventories of uses and releases of toxic chemicals;128 (ii) environmental auditing
of business operations;129 and (iii) eco-labelling programmes that identify prod-
ucts with preferable environmental characteristics.130 For instance, in order to
enhance public accountability by industry, the US enacted the Emergency
Planning and Community Right to Know Act 1986131 to require certain industries
publicly to disclose their annual emissions, recycling of chemicals, accidental
releases and source reduction measures. Mandating disclosure of environmental
information can help regulators, consumers, financial sponsors, as well as the
companies themselves, better to understand the environmental impacts. Through
education and awareness, pressure can be exerted on companies to improve their
environmental behaviour.
2. Access to Justice
(a) Judicial review
A traditional means by which environmentally concerned persons can participate
is through court action to challenge the legality of administrative decisions made
pursuant to legislation. Judicial review is a procedure by which decisions of pub-
lic bodies exercising environmental responsibilities can be challenged in court and
a means by which the courts can supervise public bodies’ exercise of their statu-
tory authority. Judicial review is usually concerned with the decision-making
process rather than the decision itself.132 The basic principle is that it is not for the
judges to interfere in the decision as this is within the remit of the decision-maker,
unless the decision is ‘manifestly unreasonable’ or the way in which the decision
126 See further ch 7, this vol.

127 F Irwin and MF Repko, ‘From Public Disclosure to Public Accountability: What Impact will it have
on Compliance?’ (1999), available at www.inece.org/2ndvol1/irwin.htm.

128 SM Wolf, ‘Fear and Loathing About the Public Right to Know: The Surprising Success of the
Emergency Planning and Community Right to Know Act’ (1996) 11 Journal of Land Use & Envtl Law
217.
129 Environmental auditing describes a technique for allowing a company or a regulator to assess the
impact of its activities on the environment, which includes procedures beyond the scope of a tradi-
tional financial audit: see N Gunningham and J Prest, ‘Environmental Audit as a Regulatory Strategy:
Prospects and Reform’ (1993) 15 Sydney L Rev 492.
130 In the EU, companies are using product labelling to make environmental claims. Eco-labels are
used to communicate that the environmental impacts are reduced over the entire life-cycle of a prod-
uct without specifying the production practices. See FIELD, ‘Legal and Policy Issues in the Market
Access Implications of Labelling for Environmental Purposes’, Briefing paper (FIELD, 2003).
131 Pub L 99–499, Title III, 17 Oct 1986, 100 Stat. 1729, codified at 42 USC §§ 11001–11050.
132 Lord Woolf, J Jowell and AP Le Sueur, De Smith, Woolf and Jowell’s Principles of Judicial Review
(Sweet and Maxwell, 1999) part I.

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was arrived at is flawed.133 But the success of a judicial review application may not
secure the desired outcome. A court may find the agency’s decision to be unlaw-
ful and, while reconsidering the matter, the public body may come to the same
conclusion in a lawful way.134 In judicial review proceedings in common law sys-
tems, such as in the UK, courts do not directly consider the merits of any public
decision, act or omission.135 However, in some cases they will indirectly consider
the merits through the doctrine of ‘manifest unreasonableness’.136 Judicial review
proceedings do not therefore usually examine whether the decision taken was
good or bad from a broad policy or ethical perspective, but merely check to see
whether the public body has acted within its statutory powers.
Apart from the narrow focus of judicial review on procedural and jurisdic-
tional issues, the judicial forum is not conducive to the deliberative model of
democratic decision-making. The rigidly structured format for the presentation
of evidence and cross-examination of participants is far removed from the com-
municative discourse championed by theorists.137 Argument transpires through
the language of ‘rights’, ‘duties’ and ‘procedures’, which tends to squeeze out less
precise, ethical and policy considerations to the dispute.138 The wider policy sig-
nificance of a case can be lost, as judges tend to decide cases on as narrow
grounds as possible.
(b) Public Interest Litigation

Public interest litigation (PIL) is a legal mechanism allowing individuals and
NGOs to vindicate a ‘public interest’, and it has been widely used to uphold envi-
ronmental law.139 It is a form of legal proceeding in which redress is sought in
respect of injury to the public in general. In a PIL, the collective rights of the pub-
lic are affected and there may be no direct injury to any individual member of the
public.140 Although PIL for environmental causes originated in the US,141 the
concept of PIL has arisen in numerous jurisdictions and today is most widely
practised in India.142 The growth of PIL in India was facilitated by the inclusion
133 M Supperstone and J Goudie, Judicial Review (Butterworths, 1997) ch 3.

134 Ibid.
135 H Southey and A Fulford, Judicial Review (Jordan, 2004) ch 1.
136 Supperstone and Goudie, above n 133, ch 3.
137 AR Lucas, ‘Legal Foundations for Public Participation in Environmental Decision-making’ (1976)
16(1) Natural Resources Journal 73, 100.

138 Dryzek, above n 63, 146–7.
139 Cassels identified four characteristics of PIL: liberalisation of locus standi; procedural and reme-
dial flexibility; ongoing judicial participation and supervision; and creative and active interpretation
of legal and fundamental rights: J Cassels, ‘Judicial Activism and Public Interest Litigation: Attempting
the impossible?’ (1989) 37 American Journal of Comparative Law 498.
140 S.J Sorabjee, ‘Introduction to Judicial Review in India’ [1999] Judicial Review 128.
141 J Sax, Defending the Environment: A Handbook for Citizen Action (Vintage Books, 1970).
142 CD Cunningham, ‘Public Interest Litigation in Indian Supreme Court: A Study in the Light of
American Experience’ (1987) 29 Journal of the Indian Law Institute 495.

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of fundamental duties in the Constitution, the promotion of legal aid at the
national level and the adoption of various social-justice related laws.143 The
historical development of PIL in India shows that the judiciary has been very
active in relaxing the standing rules giving access to marginalised communities
to the court and interpreting the constitutional rights in a liberal manner in
order to enhance the rule of law.144 The judiciary has also taken an inquisitor-
ial role and appointed commissions of enquiry, monitored its own directions,
initiated suo motu proceedings,145 accepted amicus curiae briefs, supervised
implementation of its orders and awarded compensation to the aggrieved.146
Over the years, the subject matter of PIL in environmental matters has become
more complex. The Indian case studies of the 1980s on PIL related to the envi-
ronment show that they were mainly covering various sectoral issues, eg, air,
water, mining or forest conservation.147 In the 1990s, the categories have
become more sophisticated and dealt with complex areas of waste manage-
ment, protection of bio-diversity, access to environmental information, and
groundwater management.148
Among the various types of civil suits or actions that can be brought through
PIL, the class action can be one of the most empowering. A class action may be
allowed in some tort claims that have an impact on a large number of people (eg,
tobacco litigation in the US).149 Separate adjudication of common questions of
law or fact could give rise to inconsistent decisions. Moreover, an action brought
by an individual member of the class may achieve a result affecting the interests
of other members and may substantially impede their ability to protect their
interests. Therefore, class actions can be cost-effective, easier to finance, may
reduce courts’ time and delay, and may spread the cost of litigation among the lit-
igants. The courts, however, are also required to consider whether the class action
overrides any question affecting an individual member and whether it would
bring a fair and efficient result to the controversy. In recent years in the US there
has been an increase in the number of class actions and the size of damages
143 S Ahuja, Public Interest Litigation in India: A Socio-legal Study (PhD thesis, University of London,
1996) 115.
144 R Dhavan, ‘Whose Law? Whose Interest?’ in J Cooper and R Dhavan (eds), Public Interest Law
(Blackwell, 1986) 21.

145 In order to provide complete justice, the Constitution of India allows the Supreme Court (Art
142) and the High Court (Art 226) to take account of letter and petition from individuals or groups
and move the matter as PIL.
146 Razzaque, above n 92, ch 5.
147 A Rosencranz and S Divan, Environmental Law and Policy in India (Oxford UP, 2001).
148 Razzaque, above n 92, ch 1.
149 Eg, Federal Rules of Civil Procedure, Rule 23 (US); Federal Court of Australia Act 1976, Part IVA,
enacted by Federal Court of Australia Amendment Act of 1991; Class Proceedings Act 1992 (Ontario).
For a useful discussion of class actions, see C Loveday, ‘Multi-Party Rules: US, Canada, Australia and
the UK’, International Business Lawyer, (Feb 1998) 77.
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awards.150 The US recently enacted legislation to alleviate the impact of class

actions against the corporate sector.151
(c) Standing
Public interest litigation, along with other types of litigation, is possible only if the
court gives the applicant standing to argue its case. The traditional rule of stand-
ing suggests that judicial redress is available only to persons who have suffered a
direct injury by reason of a violation or threatened violation of his or her right
or interest.152 For instance, in the Australian case of Australian Conservation
Foundation v Commonwealth, the NGO applicant was expected to demonstrate a
‘special interest’ in the proceedings, rather than a mere ‘intellectual’ or ‘emotion-
al’ concern.153 Often rights to seek judicial review or other appeal mechanisms are
limited to parties directly involved in the initial administrative decision and do
not extend to so-called ‘third parties’. Thus, in the UK, for instance, there are no
third party rights of appeal against some decisions made under planning legisla-
tion.154 It is frustrating for affected communities as they, unlike the developers,
cannot appeal against the planning decision. Though the Royal Commission on
Environmental Pollution has recommended expanding third party rights of
appeal,155 the UK government has rejected its proposals.156
In recent years, courts in many jurisdictions have become willing to hear argu-
ments from environmental groups and concerned individuals who have no direct
economic or other concrete interests at stake.157 Often, the increased flexibility is
150 AH Barnett and TD Terrell, ‘Economic Observations on Citizen Suits Provisions of Envi-
ronmental Legislation’ (2001) 12 Duke Environmental Law& Policy Forum 1.

151 The Class Action Fairness Act of 2005, Pub L 109–2 (17 Feb 2005), 118 Stat 4, seeks to keep large
class actions out of state courts (where awards tend to be higher and defendants are often faced with mul-
tiple court actions) and to limit what its proponents see as exorbitant settlements and attorneys’ fees.
152 P Cane, ‘The Function of Standing Rules in Administrative Law’ [1980] Public Law 303; C Hilson
and I Cram, ‘Judicial Review and Environmental Law: Is there a Coherent View of Standing?’ (1996)
16 Legal Studies 1.
153 (1980) 54 ALJR 176.
154 In a planning decision, local communities are the third party; the first party is the developer and
the second party is the Local Authority. Report by the Environmental Justice Project (WWF, Leigh Day
and Co and the Environmental Law Foundation, 2004) 33; Green Balance et al, Third Party Rights of
Appeal in Planning (Friends of the Earth, 2002).
155 Royal Commission on Environmental Protection (RCEP), 23rd Report on Environmental Planning
(RCEP, 2002) ch 5, paras 30–47.

156 The Government’s Response to the Royal Commission on Environmental Pollution’s Twenty-Third
Report Environmental Planning (England) (Cm 5888, TSO, July 2003). The UK government argued that
the public has the opportunity to participate in the land-use plan-making process. Secondly, the
majority of the decisions are made by elected local authority members who are directly accountable to
the local electorate: Department for Transport, Local Government and the Regions (DTLR), Planning:
Delivering a Fundamental Change (DTLR, 2001) paras 6:21 and 6:22. At present, Scotland is consider-
ing whether to widen third party right of appeal in planning applications.
157 Eg, R v Inspectorate of Pollution and Another, ex parte Greenpeace (No 2) [1994] 4 All ER 329; R v
Secretary of State for Foreign Affairs [1995] 1All ER 611; Algonquin Wildlands League v Ontario (Min.
of Natural Resources [1996] 21 Canadian Environmental Law Reports (New Series) 102 (Ontario
Divisional Ct); Sierra Club of Canada v Canada (Min. of Finance) [1999] 2 FC 211 (Fed Ct Trial Div).
ch-06.qxd 12/9/2005 8:38 PM Page 186

a direct result of statutory reforms. For example, the Environmental Planning and
Assessment Act 1979 (NSW) in Australia gave open standing to ‘any person’ to
challenge a decision made under the legislation.158 New Zealand’s Resource
Management Act 1991 provides that ‘any person’ may participate in any of the
planning and development decision-making processes and the enforcement pro-
visions of the Act.159 In Britain, however, reforms to the rules of standing made in
1977 still left the judiciary with considerable discretion.160 Civil Procedure Rules
made under the Supreme Court Act 1981 provide that any applicant for judicial
review should have a ‘sufficient interest’ in the matter to which the application
relates.161 No test or formula is provided as to how the court should determine the
sufficiency of interest.162
In the US, citizens bringing suit over environmental laws in federal court must
satisfy a three part test to survive a standing challenge: ‘injury in fact’ (concrete,
particularised injury that is actual or imminent, not conjectural), causation (causal
connection between the injury and the conduct complained of) and redressability
(likelihood that the injury will be redressed by a favourable ruling).163 Injury suf-
fered by individuals may be redressed by litigation brought on their behalf by
organisations representing them.164 An organisation must allege and prove that its
individual members have suffered injury and would themselves satisfy the require-
ments of standing, and that the general purpose of the organisation is consistent
with the interest the group is pursuing in the suit.165 ‘Injury in fact’ requires harm
to the recreational, aesthetic or economic interests of the plaintiffs themselves,
rather than harm to the environment per se,166 and a series of Supreme Court deci-
sions in the 1990s took a particularly narrow view of this requirement.167 However,
158 S 123.
159 S 86, 311, 316.
160 For a discussion on the reform: R Gordon, Judicial Review and Crown Office Practice (Sweet and
Maxwell, 1999) Part 3. For changes in 2000, see the Crown Office Digest (2000) 382.
161 For a discussion on cases where the standing issue has been examined: S Grosz, ‘Access to
Environmental Justice in Environmental Law’ in D Robinson and J Dunkley (eds), Public Interest
Perspectives in Environmental Law (Wiley Chancery, 1995) 194; C Harlow, ‘Public Interest Litigation in
England: The State of the Art’ in J Cooper and R Dhavan (eds), Public Interest Law (Basil Blackwell,
1986) 107.
162 Sufficiency of interest is described as ‘a mixed question of fact and law; a question of fact and
degree and the relationship between the applicant and the matter to which the application relates, hav-
ing regard to all the circumstances of the case’: Supreme Court Practice 1993, vol 1, para 53/1–14/11.
163 Lujan v Defenders of Wildlife, 504 US 555, 112 S Ct 2130 (1992).
164 Sierra Club v Morton, 405 US 727, 2 ELR 20192 (1972).
165 For a discussion on standing in the USA, see DH Robbins, ‘Public Interest Environmental
Litigation in US’ in Robinson and Dunkley (eds), above n 161.

166 Eg Sierra Club v Morton, 405 US 727, 92 S Ct 1361 (1972).
167 Lujan v National Wildlife Federation, 497 US 871, 110 SCt 3177 (1990); Lujan v Defenders of
Wildlife, 504 US 555, 112 S Ct 2130 (1992).

ch-06.qxd 12/9/2005 8:38 PM Page 187

evidence of a recent more liberal approach to standing may assist public interest
groups to bring environmental cases in the US courts. 168
The reasons for such restrictions on a standing test relate in one way or anoth-
er to the ‘flood-gates’ argument.169 A relaxed standing rule may mean a flood of
applications to the courts, requiring public bodies to spend more time preparing
their defences. Moreover, an increase in cases could result in further delays in
determining cases. In addition, an increase in the number of applications would
put pressure on the already constrained time of existing judges or require extra
judges experienced to deal with environmental matters. This may detract from the
quality of judgments. Lastly, there is another fear that the judiciary will engage in
settling the disputes better resolved through political process.170
(d) Environmental courts and ADR processes

Environmental courts and alternative dispute resolution (ADR) mechanisms pro-
vide a means for facilitating public access to justice. They are institutions that have
significant public participation implications. The rationale for special environ-
ment courts is that, because many environmental issues are assumed to be highly
complex and technical problems, they require specialised institutions for evalua-
tion of the claims and evidence.171 It would also enhance the role of specialist
judges in developing a consistent environmental jurisprudence.172 However, the
appropriate jurisdiction and structure of a separate environmental forum has
been the subject of much debate.173 Arguments for environmental courts based
on the need for specialist judicial and technical expertise sit uncomfortably with
some theories of public participation that are critical of expert, elite decision-
making bodies that work to exclude lay people. Therefore, environmental courts
may be more congruent with the rational elitist models of participation rather
than those championing active, community involvement in decision-making. At
168 See: Friends of the Earth Incorporated v Laidlaw Environmental Services, 528 US 167, 120 S Ct 693
(2000). Here, the aesthetic and recreational interests of members of the plaintiff organisation were
injured by the defendant’s discharge of mercury into the North Tyger River in North Carolina in vio-
lation of a permit issued under the Clean Water Act. The Supreme Court held that the plaintiff had
standing under the Clean Water Act’s citizen suit provisions to seek the assessment of civil penalties
for the violations.
169 GR Nicol, ‘Rethinking Standing’ (1984) 72 California L Rev 68.
170 B Hough, “‘Standing’ for Pressure Groups and the Representative Plaintiff ” [1991] Denning LJ 77.
171 R Carnwarth, ‘Environmental Enforcement: The Need for a Specialist Court’ [1992] Journal of
Environment & Planning Law 798.

172 Lord Woolf spoke of a specialist tribunal with a general responsibility for overseeing and enforc-
ing safeguards provided for the protection of the environment. According to him, ‘It would be a “one
stop shop” which should lead to faster, cheaper and more effective resolution of dispute in the envi-
ronmental area’: ‘Are the Judiciary Environmentally Myopic?’ (1991) 4(1) Journal of Environmental
Law 1.
173 Eg, in the UK, the debate has continued on for more than 15 years: Lord Justice Carnwarth,
‘Judicial Protection of the Environment: At Home and Abroad’ (2004) 16 Journal of Environmental
Law 315.
ch-06.qxd 12/9/2005 8:38 PM Page 188

present, only a few countries have successfully established environmental courts
with a liberal approach to standing.174
An alternative to the formality of environmental courts are informal ADR175
measures, including negotiation, arbitration and mediation. All of these measures
potentially offer less costly and less adversarial means of dispute resolution, and
in theory create a decision-making milieu more accommodating of policy, ethical
and other non-legal arguments. Negotiation is a process by which the parties vol-
untarily seek a mutually acceptable agreement to resolve their common dispute.
Arbitration is an adjudicative process in which one or more arbitrators issue a
judgment on the merits (which may be binding or non-binding) after an expedit-
ed, adversarial hearing in which each party has the opportunity to present evi-
dence and arguments.
Mediation, in particular, has been praised for its potential to offer a participa-
tory, informal and amicable setting whereby a wide variety of parties can be
involved.176 Essentially, mediation is a process under which an impartial person,
the. mediator, facilitates communication between the parties to promote reconcil-
iation or settlement.177 Mediation has been successfully used to deal with a wide
variety of environmental disputes related to local planning and development, par-
ticipatory forest management, and community fisheries.178 Drzyek sees mediation
as a potential ‘discursive forum’ that can institutionalise the promise of deliberate
democracy.179 In contrast to the hearing of cases in courts, mediation procedures
emphasise win-win solutions for all. This helps to create a stronger commitment
among participants to respect decisions.
There are however some drawbacks to the effectiveness of ADR as a participa-
tory tool. For example, regulatory agencies overseeing the ADR processes could
174 Eg, the Land and Environmental Court of New South Wales, the Planning and Environment
Court in Queensland, and the Environment Court in New Zealand. Malcolm Grant, in his report,
commented that ‘the performance of Australasian model is impressive in terms of assembling and
deploying appropriate expertise, operating advanced case management techniques with rapid turn-
around of business, incorporating systems of alternative dispute resolution (ADR) and in providing
and effective mechanism for enforcement’: M Grant, Environment Court Project: Final Report (DETR,
2000) 4–11.
175 HT Edwards, ‘Alternative Dispute Resolution: Panacea or Anathema?’ (1986) 99 Harvard L Rev
668.
176 See further J Harrison, ‘Environmental Mediation: The Ethical and Constitutional Dimension’
(1997) 9(1) Journal of Environmental Law 79.

177 R Lyster, ‘Should We Mediate Environmental Conflict: A Justification for Negotiated Rulemaking’
(1998) 20 Sydney L Rev 579.

178 D Shapiro, ‘ADR and the Environment’ (2001) 1(3) Journal of ADR, Mediation and Negotiation 16,
discussing examples of environmental mediation, including two from the USA (cleaning up of
Hanford Nuclear Military base and Cape Cod endangered species conservation) and the UK (Brent
spar floating oil storage buoy and dead fish River Eden), and Canada (Winnipeg Bridges Dispute). In
all these examples, many public interest groups, tribal groups, or low-income communities were
involved in the mediation.
179 Dryzek, above n 63, 212–4.
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become less accountable if judicial oversight were removed from the dispute set-
tlement process. Some parties might be omitted from the process, or the media-
tor might be unable to balance the unequal power of the disputants.180 Even
though mediation and other ADR processes are usually less expensive options to
litigation, the equal participation of all groups may still be hampered by financial
constraints. A corporate developer is more likely than a community group to have
the resources to hire a lawyer, scientific consultant or mediator in the ADR
process.181 Secondly, because the decisions of ADR are often unenforceable in
court, developers might use ADR processes for tactical reasons to waste time while
pushing ahead with their project.182 The lack of monitoring afterwards to ensure
that an ADR-derived settlement is complied with can also undermine the value of
these mechanisms.
(e) Legal Aid and Intervenor Funding

Public participation in environmental decision-making often hinges upon finan-
cial resources. Financial constraints are particularly acute for those seeking reme-
dies through the courts, where the costs of hiring counsel and researching evidence
can be exorbitant, in addition to the risk of an adverse costs award should the case
be lost. Therefore, government provision of legal aid and intervenor funding are
vital complements to participation reforms.
Most developed countries have legal aid schemes, where assistance depends on
various criteria including: (i) the applicant’s disposable income and capital; (ii)
the subject matter and merits of the case, including the presence of public inter-
est considerations; and (iii) the lack of other funding. Some developing countries
such as India have also established successful legal aid schemes.183 Through the
Legal Services Authorities Act 1987, the Indian government has sought to provide
free and competent legal services to the weaker sections of the society.184 Only a
few jurisdictions offer legal aid specifically for environmental litigation. In
Australia, for instance, the New South Wales government offers legal aid for pub-
lic interest environmental litigation.185 In Britain, the Legal Services Commission
180 J Harrison, ‘Environmental Mediation: The Ethical and Constitutional Dimension’ (1997) 9(1)
Journal of Environmental Law 85.

181 M Doyle, Advising on ADR: The Essential Guide to Appropriate Dispute Resolution (Advice Service
Alliance, 2000).
182 Ibid.
183 For the history of legal aid in India, see S Singh, Legal Aid: Human Rights to Equality (Deep and
Deep, 1996); SL Whitson, “Neither Fish, Nor Flesh, Nor Good Red Herring” Lok Adalats: An
Experiment in Informal Dispute Resolution in India’ (1992) 15 Hastings International and
Comparative Law Rev 391.
184 The Act establishes a National Legal Aid Fund (ss 15–17), and specifically targets legal aid to
scheduled castes and tribes and persons of particular social placement (s 12).
185 Legal Aid Commission Act 1979 (NSW) s 47l; see B Boer, ‘Legal Aid in Environmental Disputes’
(1986) 3(1) Environmental & Planning LJ 22.

ch-06.qxd 12/9/2005 8:38 PM Page 190
provides legal aid that can also extend to environmental cases.186 In both jurisdic-
tions, if the case is lost, legal aid offers some measures of protection against
adverse costs awards.
As a system, legal aid can be criticised for its bias towards expensive, court-
based solutions. Under most legal aid schemes, where claims vastly exceed avail-
able funds, it is difficult to target resources to the priority areas.187 Often, legal aid
does not cover the whole cost of the litigation and fails to attract experienced
lawyers to take on environmental cases.188 Moreover, almost all legal aid schemes
have some form of means testing, which may arbitrarily exclude certain deserving
sections of the community. Most fundamentally, legal aid is not particularly effec-
tive as an instrument for systemic social change: it does challenge the basic cost
and accessibility of the judicial system.
Intervenor or participant funding also aims to increase public participation in
judicial and administrative processes, such as EIA procedures. It provides funds
to people who otherwise could not afford the necessary legal or expert consult-
ant fees and who have no alternative funding sources. Canada has pioneered the
intervenor funding model,189 at both a provincial level with Ontario’s Intervenor
Funding Project Act 1988 and federally through the Canadian Environmental
Assessment Act 1992. These schemes channel public funds to individuals, NGOs
or Aboriginal organisations seeking to contribute to environmental assess-
ments.190 However, their budget is limited and those eligible for participant
funding are parties with a direct local interest, community knowledge or
Aboriginal traditional knowledge, or expert information relevant to the likely
environmental effects of the project. 191 The Canadian Environmental
Assessment Act (CEEA) has designated eight distinct areas to which participant
funding may apply, including professional fees and the purchase of information
materials.192 The CEEA gives higher priority to measures increasing local partic-
ipation and the dissemination of third-party expertise.193 In some jurisdictions
including Canada, intervenor funding and concomitant environmental legal aid
186 J Dunkley, ‘Legal Aid Rules for Environmental Cases’, ELFline, 10 Jan 2004, available at
www.elflaw.org/news/showarticle.php?action=display&id=36&type=elfline.
187 For criticisms RK Gordon and JM Lindsay, ‘Law and the Poor in Rural India: The Prospects for
Legal Aid’ (1990) 5 American University Journal of International Law and Policy 658.
188 MI Jeffrey, ‘Intervenor Funding as Key to Effective Citizen Participation in Environmental
Decision-Making’ (2002) 19 Arizona Journal of International and Comparative Law 643.

189 This innovative legislation was repealed in 1996.
190 AR Lucas, ‘Canadian Participatory Rights in Energy Resource Development: The Bridges to
Empowerment?’ (2004) 24 Journal of Land Resources & Envtl L 195, 200.

191 Canadian Environmental Assessment Agency (CEAA), Canadian Environmental Assessment Act,
Participant Funding Program (CEAA, Apr 2004); Jeffrey, above n 188, 674–5.
192 Guide on Participant Funding Program (Apr 2004) 11, available at www.ceaa-acee.gc.ca/012/013/
Participant-Funding_e.pdf.
193 Ibid.
ch-06.qxd 12/9/2005 8:38 PM Page 191

programmes have been drastically slashed or withdrawn altogether owing to
government fiscal constraints.194 Both initiatives are very sensitive to fluctuations
in fiscal policy.
F. Conclusion: Constraints to Public Participation and

Future Reforms
The actual practice of public participation in environmental decision-making
often differs markedly from theoretical models. The legal provision of opportuni-
ties for participation in environmental decision-making does not itself ensure that
participation will occur or be meaningful. There are numerous barriers to effec-
tive public participation.
For a start, the classical vision of an Aristoleian-style deliberative democracy
has been criticised as unrealistic in contemporary mass societies.195 Collective
decisions may reflect conformity rather than genuine unanimity. Janis argues that
groups of people who deliberate together ‘tend to maintain esprit de corps by
unconsciously developing a number of shared illusions and related norms that
interfere with critical thinking and reality testing’.196 Another concern is that indi-
viduals or groups do not have an equal chance to use participation reforms. If the
best arguments are to prevail, participants must have an equal ability to partici-
pate. This is rarely, if ever, true. Marxist theory posits that the ability to participate
in policy-making is closely tied to one’s economic and political power.197 Feminist
theory also shows that participation is tied to gender; for instance, Agarwal shows
that the exclusion of women from public institutions is a widespread problem in
many countries.198 The environmental movement itself has been criticised for its
social elitism, supposedly dominated by the better educated and wealthier seg-
ments of society with little representation from blue-collar workers or the poor-
est.199 It is no coincidence that many of the most polluted and unattractive places
to live are occupied by the most disadvantaged groups of society, victims of the
NIMBY (‘not in my backyard’) attitude and power of privileged classes.200 Thus,
many of the benefits from increased opportunities in environmental policy-
making may, without additional corrective action, accrue to those who already
194 Eg R Lindgren, ‘Harris Government Kills Intervenor Funding Law’, Intervenor Mar/Apr 1996
(describing cuts to Ontario’s intervenor funding regime).

195 J Elster, Sour Grapes: Studies in the Subversion of Rationality (Cambridge UP, 1983) 35–42.
196 I Janis, Groupthink (Houghton Miffin, 1982) 35.
197 See N Poulantzas, State, Power, Socialism (New Left Books, 1978).
198 Eg B Agarwal, A Field of One’s Own: Gender and Land Rights in South Asia (Cambridge UP, 1994).
199 DE Morrison and RE Dunlop, ‘Environmentalism and Elitism: A Conceptual and Empirical
Analysis’ (1986) 10 Envtl Management 581.

200 RD Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (Westview Press, 1999).
ch-06.qxd 12/9/2005 8:38 PM Page 192

enjoy considerable advantage in society. Consequently, strategies to promote pub-
lic participation should be linked to a broader strategy of social change.201
The notion that what is to be represented in decision-making has priority over
who is to do the representing has been criticised by post-colonial theorists who
ascribe pre-eminence to questions of identity such as race, gender and ethnici-
ty.202 Rationalist conceptions of discussion may distort and constrict both what is
counted as legitimate speech and who is regarded as qualified to be a speaker.
When Spivak asks, ‘Can the subaltern speak?’, she raises the question whether
oppressed minorities are able truly to represent and speak for themselves when
they are constituted as subjects only through the positions that have been permit-
ted by their colonisers.203 Their voice, argues Spivak, is invariably modulated
through some colonising discourse or narrative. There is also the enduring prob-
lem of how to give a voice to nature per se, a problem first raised by Stone in his
polemic on ‘Should Trees Have Standing?’.204 Since Western deliberative norms,
argues Young, are dominant and agnostic, different ‘voices’ and styles of commu-
nication need to be recognised and accorded equal legitimacy in policy-making
processes.205 The problems of cross-cultural dialogue and representation of
minority interests most obviously occurs in relation to Aboriginal peoples. The
Berger Inquiry of the 1970s into a proposed natural gas pipeline in Canada is a
rare example of a participation process sensitive to these concerns.206 The case for
a politics of identity thus provides a crucial supplement to the communicative
politics of ideas.
Many deficiencies with public participation can be traced to flaws in the en-
abling legal and institutional frameworks. For example, the terms of reference of
an EIA or an environmental inquiry may be drafted narrowly by authorities to
exclude certain contentious issues. More seriously, participation exercises can be a
charade, to legitimate government policies already approved. For example, during
the famous environmental inquiry into the Ranger uranium mine in Australia, the
federal government was surreptitiously searching for potential buyers of uranium
from the would-be mine.207 If inputs from people are not integrated into final
decisions, ultimately people will become disillusioned with the process as a whole,
harming the quality of environmental decisions and of the environment itself.
201 K Graham, The Battle for Democracy (Wheatsheaf Books, 1986) 150.
202 S Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political (Princeton
UP, 1996).
203 GC Spivak, ‘Can the Subaltern Speak?’ in P Williams and L Chrisman (eds), Colonial Discourse and
Post-colonial Theory (Harvester Wheatsheaf, 1994) 66, 103.

204 C Stone, ‘Should Trees Have Standing?’ (1972) 45 Southern California L Rev 450.
205 I Young, Justice and the Politics of Difference (Princeton UP, 1990).
206 TR Berger, Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline
Inquiry (Minister of Supply and Services, 1978).

207 Ibid.
ch-06.qxd 12/9/2005 8:38 PM Page 193

The costs and procedural technicalities of participation procedures are a relat-
ed concern. Excessively technical and bureaucratic procedures for public involve-
ment can be a major hurdle for fruitful consultation. Complex, encyclopaedic-size
EIA reports, for instance, tend to hinder rather than facilitate public scrutiny of
proposed developments. Lack of technical support and difficulties in gaining
access to clear information can diminish the public’s ability to provide a mean-
ingful voice in decisions. There are also financial costs of widening public partic-
ipation in decision-making. These are costs to the participants themselves (eg,
gaining access to information, preparing submissions, attending hearings and lit-
igating), costs to governments faced with slower and more complex decision-
making, and costs to developers concerned about stalled investments. The most
expensive participation institution is the public environmental inquiry.208 Access
to the courts is also prohibitively expensive for most individuals, and therefore
public interest litigation is unlikely in the absence of generous state legal aid and
intervenor funding schemes.
One way to overcome some of these barriers would be to shift the onus from
people to governments to initiate and ensure participation. Agencies should be
obliged to initiate consultation with persons or organisations identified by some
fair means as having a stake in a proposed decision. This already occurs to a limit-
ed extent in some environmental legislation.209 Further, governments should estab-
lish public participation watchdogs, to monitor and verify that environmental
decision-making processes are in fact transparent, participatory and accountable.
The creation in Canada and New Zealand of environmental ombudsman-type posi-
tions, answerable to parliament, illustrates this approach.210 Negotiation and real
power-sharing processes should also be more widely used, as already demonstrated
by Canada’s comprehensive land claims agreements negotiated with Aboriginal
peoples.211 These are only a few of many possible reforms.212
For the long term, the theory and practice of public participation in environ-
mental law need to pay more attention to the hollowing out of the state, as more
and more public assets are privatised, policy functions delegated to the market
and other deregulation reforms sweep the world. To focus on participation ‘in the
state’ may become less relevant when market institutions increasingly call the
tune. We need to consider how corporate governance, financial institutions and
208 Richardson and Boer, above n 115, 101.

209 Eg New Zealand’s Fisheries Act 1996, s 12, requires the Minister to initiate consultations with cer-
tain groups including Maori when making resource management plans.
210 Canada has a Commissioner of the Environment and Sustainable Development, www.oag-
bvg.gc.ca; and New Zealand a Parliamentary Commissioner for the Environment, www.pce.govt.nz.
211 BJ Richardson, D Craig and BW Boer, Regional Agreements for Indigenous Lands and Cultures in
Canada (Australian National University, 1995).

212 For further examples, see WM Lafferty and J Meadowcroft (eds), Democracy and the Environment:
Problems and Prospects (Edward Elgar, 1996).

ch-06.qxd 12/9/2005 8:38 PM Page 194

other features of modern markets can be made more transparent and open to par-
ticipation and control by civil society. The values we hold as consumers partici-
pating in markets are arguably quite different from the values we would express as
citizens participating in political processes.213
The encroachment of capitalist market systems into nearly all spheres of life
poses a related, very serious challenge. Global capitalism has eroded the norma-
tive-generating capacities of civil society. Apathy over social values and public pol-
icy is an endemic feature of politics today. We live in a world of more information
but less meaning. This is an abstract world Baudrillard characterises as ‘hyper-
reality’, where a decentralised consumer society floods us with images and infor-
mation but little normative guidance.214 The moral indeterminacy and nihilism of
our so-called ‘post-modern’ consumer society may emasculate attempts to moti-
vate citizens to participate in their public governance.
213 M
Sagoff, ‘Economic Theory and Environmental Law’ (1991) 79 Michigan L Rev 1393.
214 J
Baudrillard, ‘The Hyper-realism of Simulation’ in C Harrison and P Wood (eds), Art in Theory
1900–1990: An Anthology of Changing Ideas (Blackwell, 1993) 1043.
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Public Participation in Environmental Decision Making

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BENJAMIN J. RICHARDSON* AND JONA RAZZAQUE**

A. Introduction: The Importance of Participation

Public participation in environmental decision-making has become an indelible

* Professor, Osgoode Hall Law School, York University.

Politics’ (1985) 52 Social Research 817.

166 Richardson & Razzaque

(2003) 66 MLR 80, 82–85.

Rationality’ (1972) 46 Southern California L Rev 617.

(1995) 22(3) Envtl Conservation 223.

Yearbook of International Environmental Law 59.

Development’ in Zillman, above n 3, at 81–3.

(2001) PLA Notes, available at www.iied.org/docs/pla/pla_fs_5.pdf.

Public Participation in Environmental Decision Making 167

(Clarendon Press, 1992) 261.

168 Richardson & Razzaque

B. Historical Perspectives on Participation

Public participation provisions began to appear in the planning and environmen-

Agenda 21’ (1995) 22(2) Local Goverment Policy Making 35.

Public Participation in Environmental Decision Making 169

Evaluating Models for Environmental Discourse (Kluwer, 1995).

20(4) Environmental Policy & Law 143.

and C Pairs (eds), Australian Urban Politics (Longman, 1984) 143.

determination (Oxford UP, 2005) 315–65.

170 Richardson & Razzaque

C. Theoretical Approaches to Public Participation

40 Barton, above n 12, 84.

Public Participation in Environmental Decision Making 171

Environmental Policy-making’ (1990) 97 Queen’s Quarterly 580.

172 Richardson & Razzaque

Grabosky, Smart Regulation: Designing Environmental Policy (Oxford UP, 1998).

Synthesis’ (1990) 6 Journal of Law, Economics and Organisation 167.

Public Participation in Environmental Decision Making 173

174 Richardson & Razzaque

D. The Aarhus Convention and its Implementation

1. Public Participation Provisions of the Aarhus Convention

A Global Revolution (John Wiley and Sons, 2002)

Public Participation in Environmental Decision Making 175

2. Implementation of the Convention

176 Richardson & Razzaque

81 See list of parties to the Convention, at www.unece.org/env/pp/ctreaty.htm.

of the provisions of the Aarhus Convention on Access to Information, Public Participation in

Directive 90/313/EEC [2003] OJ L/41/26.

Public Participation in Environmental Decision Making 177

E. Legal Mechanisms for Public Participation

1. Constitutional Provisions and Environmental Rights

89 J Ebbesson, ‘Comparative Introduction’ in J Ebbesson (ed), Access to Justice in the Environmental

Matters in the EU (Kluwer, 2002) 20, 23.

mentation of the Convention ECE/MP.PP/2005/18 (ECOSOC, Apr 2005).

affirmed’ by s 35(1) of the Constitution Act 1982.

178 Richardson & Razzaque

in Canada/Information Gouvernementale au Canada 1(2–3) (1994), available at www.usask.ca/library/

Public Participation in Environmental Decision Making 179

2. Participation in Administrative Decision-making

(Clarendon Press, 1996).