Proceduralization

Proceduralization is a term that refers to processes by which procedures of public input are integrated into the regulatory regimes. While not the full scope all the procedures included here are directed toward such integration, they all have at least significant, if not substantial, impacts in this direction. While each is described normatively, its relevance to proceduralization is emphasized.

Environmental/Social Impact Assessments

Many regimes of environmental regulation require newly proposed enterprises to undergo environmental impact assessment (EIA). Ideally, such assessment entails comprehensive investigation into the probably consequences of the enterprise on both the natural and social environment. In addition, to requiring that the assessment of such enterprises’ impact on the natural environment not violate the regulator’s objectives, these procedures usually also entail a social impact assessment (SIA).

The SIA is concerned with determining the impact of the enterprise on those who will experience its influence. Often both cultural and economic impacts are considered: e.g., quality of life as well as cost of living considerations. There is variance though in the inclusion of the stated perspectives of the impacted population. Often different methods are used to solicit public input, though even these can be distorted by the parameters of inquiry. And there is always the possibility of an objectifying methodology on the part of social scientists, economists and demographers that reduce the impact population to inert variables of their analysis.
Lo, C.W.H., and Plato Kwong-To Yip, "Environmental impact assessment regulation in Hong Kong and Shanghai: A cross-city analysis", Journal of Environmental Planning and Management,42(3) May 1999, 355-374

Pugh, Anna J. , "Too much for a nation to bear: Questions of sustainability and consultation in environmental reviews; the case of the Tulsequah chief mine," Dalhousie Journal of Legal Studies, 13 2004, 211-37

The author questions whether the Canadian government’s open promotion of development compromises its emphasis on sustainability on an equal footing with economic gain. She argues that current policies of ignoring demands for land claim settlement, while supporting income development proposals, run contrary to the 1977 Berger Report recommendations. She concludes that communities that are affected by development must be empowered to accommodate the ensuring impacts.

Alternative Dispute Resolution

Arbitration

Arbitration involves the choice of an arbitrator that all parties agree to, who will hear the cases from all sides. Unlike a judge in a courtroom, an arbitrator may hand back a decision based no exclusively on an interpretation of the letter of the law, but grounded in a nuanced assessment of the specific issues at hand, and how they impact on the parities involved. Ideally, all parties will have entered the process by waiving their right of reference to the courts and agreeing to accept the decision of the arbitrator – who only acts as a function of all participating parties’ agreement. With regulatory disputes, in this case the public purse will have been spared the expense of costly multiple appeals. However, often convincing parties to agree to forego subsequent legal action as a precondition to arbitration will reduce their predisposition to entering an alternative process. In the absence of such agreement though the arbitration appears to be something of a charade. Also, while offering potential cost savings, arbitration still tends to emphasize adversarial interactions.

Mediation

The fuller promise of ADR lies in mediation. Again the parties agree upon a mutually acceptable “third” party (in reality of course there may be many more than two disputing parties in and ADR process). This mediator, however, quite unlike an arbitrator, never exhibits any judgement of the cases presented by the parties. The mediation acts as facilitator and referee, working with the parties to establish a mutually acceptable process for expressing their positions and working toward a compromise agreement, and there after supervising the process – ensuring that all the parties do indeed adhere to their mutually agreed upon process. An experienced mediator will also bring a toolbox of techniques that can be used to help the parties get past blocks in their process. The desired end result is a compromise that will not likely fully satisfy any one party, but which all parties can live with.

A successful mediation will be not only considerably more cost effective for all involved but by exposing the parties to each others interests and affective experiences of the dispute – beyond mere clashes of conflicting right’s claims – it opens the door to greater understanding. In this greater understanding is the opportunity to build the trust and respect that could facilitate more amicable and efficient resolution of future disputes.

O’Leary, Rosemary, and Susan Summers Raines, "Lessons learned from two decades of alternative dispute resolution and processes at the U.S. Environmental Protection Agency," Public Administration Review, 61(6) November-December 2001, 682-692

The authors conduct an evaluation of alternative dispute resolution (ADR) use in enforcement actions at the U.S. Environmental Protection Agency EPA during the last two decades. They find an extremely high level of satisfaction with the historical operation of the EPA’s ADR processes among their four target study groups: EPA ADR specialists; potential defendants; mediators and facilitators to EPA cases; and agency enforcement attorneys who have participated in agency ADR processes. Despite the high level of satisfaction, the authors do consider potential obstacles and suggest possible improvement of the ADR process at the EPA. They draw lessons for other public programs and organizations looking at ADR options, based on the EPA’s success.

Smyth, Gemma, "Considering democracy and ADR: Diversity based practice in public collaborative processes," Windsor Review of Legal and Social Issues, XIX 0, 13-43

The author critically examines neutrality-based approaches to alternative dispute resolution practices, particularly as they bear upon governance dialogue processes. She argues instead that diversity-based approaches offer a more rigorous achievement of genuine equality in such deliberative exercises.

Challenges in a Regulatory Context

ADR in the field of regulatory disputes poses some unique problems. As the regulator must in the end authorize the results, what role should it play? Does the regulator act as arbitrator and mediator? In the case where the disputes is primarily between regulator and regulated an unacceptable conflict of interest would result. However, even in a conflict between the regulated and representatives of the public, the regulator who will have final say, acting as mediator will distort that process. The parties will address their cases to the regulator/mediator not to each other. Their objective will be to convince the regulator/mediator, not reach an understanding with the other parties. Hence mediation becomes arbitration, losing some of the less tangible but most valuable social benefits of the process, while simultaneously undermining the integrity of the process – and quite possibly thereby tarnishing the reputation of the regulator responsible for authorizing what may be regarded as a sham.

A solution to those problems would be to bring in an independent arbitrator or mediator and for the regulator to act as an equal party along with the other disputants. However, such an approach by the regulator can be accused of being an abdication of responsibility to fulfill its mandate of securing the public interest. If regulation presumes the states use of its moral and legal authority to protect the public interest, how can that be assured in a process whereby the public’s agent willingly reduces its latitude of action to that of those it is supposed to be regulating?

Democratic Public Input

Consultation

Consultation is a process whereby the public’s input on specific issues and decisions are sought in a formal and focused practice. Traditionally such consultation is conducted at public meetings organized and operated by the regulator. A presentation of the issues, as framed by the regulator, is provided and this is followed by a, usually, structured discussion. With the increasing development of new information and communication technology (ICT), such consultation is increasingly possible online, creating processes that are more convenient for the public and often less constricted by time constraints.

The presumption is that the regulator takes the input offered by the public through such venues and incorporates it into the decision making process, consultation’s challenge though is that of accountability. The public often regards consultations as public relations exercises in which they are provided opportunity to vent on matters of controversy, but have no impact on substantive decisions that in reality will be reserved for putative experts and authorities. The development of ICTs provides an opportunity to create systems of accountability for decision-making that would allow the public to evaluate the consultant’s use of its input. There seems to be little movement in this direction at the moment.
Brandon, Barbara H., and Robert D. Carlitz, "Online rulemaking and other tools strengthening our civil infrastructure", Administrative Law Review,54(4) Fall 2002, 1421-1478

Crase, Lin , et al. "Community consultation in public policy: The case of the Murray-Darling Basin of Australia," Australian Journal of Political Science, 40(2) June 2005, 221-37

The authors develop a rational choice model of community consultation to encapsulate the major elements involved in optimizing consultation efforts. The framework helps in understanding and explaining why actual community consultation processes maybe sub-optimal. The rational choice model is then applied to a debate over water resources in Australia.

Participation

articipation is distinguished from consultation in three ways: it may be instigated by the public; the public’s input has substantive and observable impact; and the public’s interaction with the regulator is not that of a petition, as in consultation, but of a dialogue. The public’s role in the regulation of privatized utilities of public interest in the U.S. is an example of how such participation may work. The representatives of the public are full and equal partners with the regulator and regulated in all aspects that affect the public good or public purse. They may initiate whatever challenges to proposed budgets that they see fit. They have access to all documents, and the right to standing in all hearings. The results of these complex and demanding processes are that the U.S. has the lowest priced and highest quality public services in the world.

The development of new regulatory practices, such as those in this toolkit, while breaking down the traditional command-and-control rulemaking and enforcing regulative regime, also erodes the conditions for traditional accountability in the public interest. This is especially so in the context of the state’s privatization and liberalization, which has removed much enterprise of public interest from the direct control of elected representatives given an evident appetite on the part of the public for increased input into governance and regulative processes, a concerted project of establishing the for a and venues to formalize, cultivate and facilitate public participation could provide the remedy to what could yet become a crisis of accountability.
Palast, Gregory, et al. "Democratic regulation: A guide to the control of privatized public services through social dialogue", Working Paper 166, Sectoral Activities Programme, International Labour Office, Geneva, May 2000

Black, Julia, "Proceduralizing regulation: Part I," Oxford Journal of Legal Studies, 20(4) 2000, 597-614
The author explores what is involved in the much-vaunted promotion of democratic participation as the remedy to a range of regulatory challenges. She uses the term “proceduralization” to identify these developments. In the first part of the essay she contrasts what she calls “thin” and “thick” proceduralization, which she characterizes as “liberal” and “deliberative” democratic models, respectively. Black uses a critical appropriation of the much-celebrated work of Jurgen Habermas to lay the foundation of her position, though she finds Habermas’ approach to be ultimately inadequate.

Black, Julia, "Proceduralizing regulation: Part II," Oxford Journal of Legal Studies, 21(1) 2000, 33-58

The author explores the extensions of Habermas necessary to develop a thick, deliberative proceduralization. Central to her analysis is the necessity of “mediation” to successful public participation in and democratization of regulation. Implied for her in this term is “translation,” mapping and resolving discourse, and the adoption of a relevant dispute resolution strategy. Different groups participating in the regulatory process – members of local neighbourhoods, expert advisors, business owners or managers, public administrators, etc. – are likely to speak different languages, in cultural terms. They have incompatible worldviews. Even a presumption to fall back on “rational discourse” occludes the way that such a language implicitly excludes other kinds of equally legitimate expression. In a very real sense, she argues, ecologists and economists, accountants and artists, scientists and ethicists, speak different languages. Therefore, a genuine and effective, what she calls “thick,” proceduralization requires translation between these languages. She offers warning about several dangers in the regulator playing this role as translator. However, acknowledging circumstances where public administrators have played this role with success, she concedes that it might be the best option currently available – although never a substitute for a vigour civil society.

Buccino, Sharon, "NEPA under assault: Congressional and administrative proposals would weaken environmental review and public participation," New York University Environmental Law Journal, 12(1) 2003, 50-73

The author analyzes what she sees as executive and congressional propoals to weaken the National Environmental Policy Act (NEPA) in the U.S. and its legal framework for providing the affected public a say in agency decisions. She argues that the NEPA's benefits are more needed than ever today, and that improved technology now makes it even more practical to manage data and facilitate public input.

Rothstein, Henry F., "Precautionary bans or sacrificial lambs? Participative risk regulation and the reform of theUK food safety regime," Public Administration, 82(4) 2004, 857-81

The author considers the impact of contemporary trends towards participative risk regulation on policy processes and outcomes. He argues that the potential benefits of the stakeholder process were mitigated by a number of institutional factors, including: interpretative flexibility in representing consumer interests and the concept of precaution; restricted openness and exclusion of key stakeholders; and the supra-national regulatory context. He aconcludes that while broadened participation may not produce more democratic or robust policy, it may have value in improving public confidence in the regulatory process.

Murdock, Barbara Scott, et al. "Stakeholder participation in voluntary environmental agreements: Analysis of 10 Project XL case studies," Science, Technology and Human Values, 30(2) Spring 2005, 223-50

Based on a study of ten pilot projects, the authors examine the Environmental Protection Agency (EPA) Project XL efforts to enhance public participation in regulatory policy. They argue that frequently the public's participation was diminished or constrained in ways that prevented the success of the project. However, there was also evidence that companies can work collaboratively and constructively with residents of local communities, members of national environmental organizations and other interest groups, and government regulatory officials to craft voluntary environmental agreements. Such success, they argue, depends on a fair stakeholder process that promotes competence, as well as a willingness on the part of the company and the government to respect and be open to citizen participation and influence.

Rutherford, Susan, and Karen Campbell, "Time well spent? A survey of public participation in federal environmental assessment panels ," Journal of Environmental Law and Practice, 15(1) November 2004, 71-83

The authors argue that, despite the many associated challenges, public participation in environmental assessment processes, through the Canadian Environmental Assessment Act, has been critical: people can and do affect the process, decisions and outcomes of project reviews in a variety of ways. Public input has resulted in significant improvements in the process of consultation and in the planning and implementation of projects.

Lane, Marcus B. , and Geoff McDonald, "Community-based environmental planning: Operational dilemmas, planning principles and possible remedies," Journal of Environmental Planning and Management, 48(5) September 2005, 709-31

The authors examine the operational challenges of community-based environmental planning (CBEP), with particular attention to the “bottom-up” vs. “top-down” dichotomy. They argue that environmental governance is more complex, dynamic and multi-scaled than this simple dichotomy implies. They identify six key issues: conceptualizations of community that inadequately account for difference; problems of inequality; organization capacity and inefficiency of community groups; scale of practice; conflicting types of knowledge; and parochial concerns effecting priorities and agendas. Among the remedies they suggest are efforts to respect diversity and difference; more equitable participation; and a deliberative process that respects and utilizes both indigenous and scientific knowledge. Though these constitute difficult operational challenges, the authors offer planning principles that flow from these challenges.
Matta, Jagannadha Rao , et al. "From forest regulation to participatory facilitation", Journal of Environmental Planning and Management,48(4) July 2005, 475-90

Bignami, Francesca , "Three generations of participation rights before the European Commission," Administrative Law of the European Union, 68(1) Winter 2004, 61-83

Drawing out the significant meeting of a widely held view that public participation in government administration is a valuable means to reinvest democratic citizenship in the face of increasing centralism, technocracy and specialization, and that the history of the European Union has been one driven by administrative integration, the author observes the need to understand the role of public participation in that European context. She examines three phases in the process: first, in the 1970s, there was the right to a hearing for those to be impacted by decisions; in the 1990s the procedural rights of transparency arose; and most recently there has been a debate about the appropriate conditions for individuals, firms, and their associations, to take a direct part in law- and rulemaking.