A civic Republican perspective on the National Environmental Police Act's process for citizen participation.

I. INTRODUCTION

For the last twenty-five years, the United States has conducted a grand experiment in democracy. The administrative agencies of the executive branch of the federal government have opened their decision-making processes to unparalleled levels of citizen input and scrutiny. Environmental statutes have led this massive attempt to allow and encourage citizen participation.(1) Virtually every federal environmental law passed in the 1970s contains significant provisions for citizen participation in the decision making of implementing agencies.(2)

This experiment in democracy does not fit well with a civics textbook understanding of American government.(3) Citizen involvement has traditionally focused on the legislative branch, through periodic elections, not the executive branch.(4) The precise role for citizens in the execution of the law remains unclear. Two decades of practice have, to be sure, firmly embedded in the American psyche the notion that people have a "right" to participate when execution of the law affects them.(5) Nevertheless, the purpose of that participation remains vague, at best. Administrators must listen to citizens. But what are they to do with the information they hear?

The time seems ripe for an evaluation of this experiment in citizen participation. Sufficient time has passed that one can no longer argue that it is too early in the experiment to conduct a meaningful evaluation. In addition, public confidence in the administration of government appears to have gone down, not up, during this period. If so, this trend suggests that one touted purpose of citizen participation, greater confidence in government,(6) has not been achieved.(7)

In evaluating this experiment, this Article focuses upon whether existing modes of citizen participation encourage deliberation in decision making. Calls for a more deliberative democracy have become quite commonplace.(8) According to proponents of deliberation, the long-term health of American democracy depends on certain forms of discussion.(9) The purposes of deliberation include the creation and implementation of the common good of the community and the inculcation of civic virtue in the participants.(10)

In examining whether the current form of citizen participation in environmental decision making encourages deliberation, this Article evaluates the National Environmental Policy Act (NEPA).(11) NEPA provides an appropriate focus for several reasons. First, citizen participation in the creation of NEPA-mandated Environmental Impact Statements (EISs) has, in all likelihood, spawned the largest amount of citizen participation in environmental decision making over the last two decades.(12) Second, many have often touted NEPA as a model of how federal environmental laws allow for useful citizen input, leading many states to adopt so-called "baby-NEPAs" governing state action.(13)

Part II introduces the deliberative ideal of democracy, discussing its theoretical justifications and comparing it to two alternative understandings of decision making: synopticism and pluralism. Based on the justifications for a deliberative approach to democracy, this part develops criteria to judge whether a citizen participation program is deliberative.

Parts III and IV examine the evolution of citizen participation under NEPA. Part III discusses the Act itself, along with implementing regulations adopted in 1973 and 1978. Part IV examines the cultural paradigms under which NEPA public participation has developed. Further, Part IV tells the two dominant "stories" of NEPA, each based on its respective belief in either synopticism or pluralism as the appropriate mode of collective decision making about environmental issues.

Part V evaluates NEPA's citizen participation process in light of the criteria developed in Part II, concluding that NEPA fails as a means for encouraging deliberative democracy. In both design and implementation, NEPA processes serve the synoptic and pluralist models. Each model fails to satisfy the deliberative ideal. As a result, NEPA citizen participation generates more heat than light, creating citizen participation pathologies that leave both citizens and agencies frustrated by the process. In closing, Part VI suggests possible reforms to NEPA that would make the process more deliberative.

II. THE DELIBERATIVE IDEAL

A. The Deliberative Ideal Introduced

The concept of deliberative democracy has recently gained significant attention. It has helped explain such diverse phenomena as public health law,(14) campaign finance regulation,(15) voting rights,(16) term limits,(17) and environmental law.(18) At the risk of great oversimplification, deliberative decision making refers to a mode of discussion in which participants engage in reasoned discourse about what action serves the common good of the community involved.(19)

The political philosophy of civic republicanism provides the theoretical underpinning of the deliberative ideal.(20) Civic republicanism is a constellation of beliefs centering around 1) the existence and legitimacy of public values and the common good, 2) the use of citizen deliberation as the principal democratic decision-making tool, and 3) the state's legitimate role in fostering civic virtue among its citizens.(21) While modern civic republicans often disagree as to specific moral underpinnings of the philosophy, most civic republicans advocate some form of deliberative democracy.(22)

The deliberative ideal can best be introduced by distinguishing it from two other common modes of discussion, pluralism and synopticism. Pluralist decision making refers to a mode of discussion in which private interests bargain with each other over how to maximize their own interests.(23) From this perspective, the competitive economic market, where citizens may express their individual desires on a level playing field, provides the ideal.(24) However, the pluralist recognizes that governments must sometimes make decisions without the use of markets. In those instances, the pluralist analogizes the government decision to that of a market, arguing for the creation of a level playing field in which all parties may use political pressure to influence the final outcome of a decision. Political posturing and strategic bargaining become the principal mode of discussion that ensues from a belief in the pluralist model.(25) Philosophically, the core of the pluralist thought is the belief that there is no such thing as common good or "public interest," just private interests in aggregate forming an overall social utility.(26)

Synoptic decision making, in contrast, refers to a mode of discussion in which professionals exchange data so that they can then apply preset scientific rules to determine the optimal decision.(27) Synoptics generally agree with pluralists that the goal of government decision making is the maximization of overall social utility.(28) According to synoptics, however, most of the time government professionals can best determine the means to reach that goal. The technical nature of disputes, requiring decision makers to arrive at solutions in a reasoned discussion focused upon data and methodology, synoptics believe, place professionals in a better position than individual citizens.(29) Rather than creating a level playing field for political action, synoptics prefer to divorce environmental decision making from politics. Public participation is consistent with the synoptic process only so long as it conforms to the scientific model.(30)

Pluralists and synoptics, while disagreeing as to what mode of decision making best aggregates individual interests, share a core belief that such a maximization of aggregate individual utility provides the goal of government policy.(31) Civic republican advocates of deliberation, in contrast, do not believe that individual utility, however aggregated, can entirely capture the range of goals appropriately pursued by a democratic society.(32) Community, from the civic republican perspective, denotes not just a collection of individuals, but a set of relationships that can give rise to goals not capable of being expressed in individual terms.(33) Civic republicans believe that citizens can work together to "create" a common good for the community.

1. Common Good

Descriptions of the common good often refer to the concept of public values. For civic republicans, public values differ categorically from a mere summation or accommodation of private preferences.(34) Mark Sagoff defined public values as

goals or intentions that people ascribe to the group or community of

which they are members; such values are theirs because they

believe and argue they should be theirs; people pursue these values not as

individuals but as members of the group. They then share

with other members of their community intersubjective intentions or,

to speak roughly, common goals and aspirations, and it is by

virtue of these that a group or community to a group or community.(35)

Sagoff devoted much of his book, The Economy of the Earth,(36) to refute the notion that one can reduce all such public values to individual preferences. For civic republicans, public values are not "merely matters of taste."(37) More importantly, some public values can find expression only through state action.(38)

For many civic republicans, environmental legislation provides a paradigmatic example of public values at work.(39) As Sagoff noted, much of environmental law "expresses what we believe, what we are, what we stand for as a nation."(40) Sagoff further wrote:

Statutes enacted during the 1960s and 1970s . . . resulted from political

deliberation about what a decent, self-respecting society with a particular

history would do about the workplace, the environment, civil rights, and

public safety and health. These laws express a common perception of ourselves

and the values we stand for as a moral community; they are not intended to

satisfy personal preferences.(41)

Professor Cass Sunstein similarly explained the concept of public values through the use of the word "universalism," referring to the belief that some normative disputes have substantively correct answers for a given community.(42) Thus, a belief in public values "amounts to a belief in the possibility of mediating different approaches to politics, or different conceptions of the public good, through discussion and dialogue."(43)

2. The Process of Deliberation

According to advocates of deliberation, public values develop through the deliberative process.(44) During deliberation, citizens reason together about what course of action would promote the common good. The "creative" aspect of deliberation must be emphasized. Advocates of deliberation do not believe that the common good is "out there" to be "found" through dialogue. Public values do not stem from a pre-existing consensus that one need only discover.(45) Nor can one find public values through some form of abstract moral reasoning.(46) Rather, public values are "forged through the act of public participation, created through common deliberation and common action and the effect that deliberation and action have on interests, which change shape and direction when subjected to these participatory processes."(47) Or, put another way, Civic republicans believe that citizens create the common good through discourse.(48)

Because deliberation produces public values, it becomes important for citizen participants to not just espouse their preferences, but to also acknowledge that listening to others shapes their preferences.(49) Indeed, advocates of deliberation reject the notion that private preferences on political issues can exist outside (or exogenous to) the decision-making process.(50) The process by which Citizens express their preferences Can have an enormous effect on such preferences.(51) As Professor Benjamin Barber explained, "preferences and opinions earn legitimacy by forcing them to run the gauntlet of public deliberation and public judgment. They emerge not simply legitimized but transformed by the processes to which they have been subjected."(52)

Through the deliberative process, collective debate plays a role in shaping public values.(53) As Robert Reich explained,

public deliberation allows people to discover latent public values that they

have in common with others, and in the process to create new public values.

Together, citizens begin to define targets of voluntary action, to identify

what they value most about the community, and to uncover goals and

commitments that transcend their narrower self-interests.(54)

Thus, personal preferences play a role in deliberation, but the public judgments or values produced are much more than mere aggregations of personal preferences.

3. Civic Virtue

A final aspect of deliberation is the concept of civic virtue. Civic republicans implicitly assume that citizens are capable of virtue. Thus, they believe that citizens "are not supposed to ask only what is in their private interest, but also what will best serve the community in general."(55) One should not characterize this pursuit of the common good as a form of sacrifice, as some republicans occasionally suggest.(56) Rather, the process represents a positive experience of moral freedom.(57)

Civic republicans do not stop with belief in the existence of civic virtue, but additionally presume that government legitimately functions to instill the values of civic virtue in its citizens.(58) A government should not merely gratify the present desires of the citizenry. Just as "we are not good parents if we simply make our children happy without helping them become autonomous and independent, . . . so it is with a nation that gratifies desires with no regard for the character of its citizens."(59) Thus, government can and must inculcate the virtues associated with deliberation.

In the long run, a society in which deliberation is the decision-making norm requires citizens who have both the ability and desire to participate in their self-government.(60) Civic virtue presupposes that citizens can reason together about their common interest, rather than just using speech as a strategy.(61) Deliberation requires such virtue. Contemporary proponents of deliberation describe the "good citizen" as "someone who participates eagerly and competently in the conversations that are central to . . . [an] understanding of good political life."(62) Indeed, the absence of an actively participating citizenry fatally undermines the very concept of community. Without broad participation public values will not be properly forged through the participatory process.(63)

Some commentators have challenged the presumption that citizens have the ability or desire to participate effectively, pointing to the apathy and ignorance of the public on important social issues.(64) This criticism, however, misses the crucial point citizen participation proponents make about why the average citizen lacks participation skills. Participation advocates argue that precisely the lack of meaningful participation opportunities today causes ignorance and apathy.(65) Those who favor deliberation presume that citizen participation "engenders civic competence" and overcomes the apathy that comes from one's sense of powerlessness.(66) In that sense, participation creates a form of feedback loop in which participants become more effective participants the more they participate.(67)

Aside from the desire to participate, civic virtue also refers to the ability to think critically and rationally regarding the common interest.(68) This ability serves as a necessary check on the inculcation of public values, for if people cannot think independently, community feeling may regress into mere unconscious patriotism and blind acceptance of governmental authority.(69) The ability to think independently is also essential to the deliberative process.(70)

Finally, civic virtue also encompasses the concept of respect that citizens must have for their fellow citizens. Citizens must acknowledge each other's different perspectives in the deliberative process.(73) Only through such a respectful relationship can discussion ever hope to mediate people differences in a search for the common good. It is worth emphasizing that this respect engenders more than mere "tolerance" of the other, but rather, a recognition that as co-citizens people participate in an interdependent relationship with each other that demands an initial willingness to listen respectfully to each other in the deliberative process.(72)

Of course, some might question whether the American populace has sufficient respect for those who differ from them to meaningfully participate in the deliberative process.(73) Once again, however, deliberation proponents would respond by pointing to the cause of this disrespect. They argue that such lack of respect results from a lack of engagement in meaningful discussions in which different perspectives are shared. Participation creates the type of civic attitudes that yield respect.(74)

B. Criteria Suggested by the Deliberative Ideal

A philosophical defense of civic republicanism and the deliberative ideal lies beyond the scope of this Article. Rather, this Article presumes the desirability of the deliberative ideal(75) as compared to pluralism and synopticism, and then asks the following question: Are our efforts at citizen participation under NEPA a step toward or away from deliberation? To begin answering this question, this section develops criteria by which to evaluate whether a citizen participation process is deliberative. They are:

1) Does the citizen participation process encourage dialogue?

2) Does the process focus upon the common good?

3) Does the process engender critical reflection on the values underlying the proposal?

4) Does the process inculcate civic virtue?

5) Do participants communicate in person, face to face?

6) Does the process involve citizens, as opposed to individuals hired to represent .citizens?

7) Do the participants represent all significant sectors of the community?

Each of the criteria will be explained in turn.

1. Does the Process Encourage Dialogue?

Dialogue refers to a direct exchange of back and forth communication, between participants in which individuals may ask each other questions and have the flexibility to respond to each other's points.(76) For communication to be dialogue, the individual or group with the actual decision-making authority for the community must participate in the communication. Dialogue contrasts with a communication situation in which either one side does all the speaking, or in which the two sides are, in effect, speaking past each other toward some other audience.(77)

Dialogue becomes deliberative primarily when it refines the opinions of participants.(78) Articulating one's opinion can, by itself, influence the opinion.(79) As Ronald Beiner explained,

[i]t is mistaken to assume that we necessarily enter into dialogue with an

already consolidated view of where we stand and what we are after, conceiving

of speech merely as a means to be used for winning over others, rather than as

an end to be pursued for its own sake. On the contrary, communication between

subjects joined in a community of rational dialogue may entail a process

of moral self-discovery that will lead us to a better insight into our own

ends and a firmer grasp upon our own subjectivity.(80)

Dialogue is also deliberative because it requires participants to listen. Listening to the perspective of others, according to advocates of deliberation, "provides distance, hence perspective, for judging our own opinions and preferences, assuming that we listen to others with an open mind."(81) Listening also provides an invaluable means of community building. Only by listening to our fellow citizens can citizens expect to hear the "strains of commonality in their dialogue."(82)

2. Does the Process Focus upon the Common Good?

The second criteria considers whether the public discussion engendered revolves around the common good. In contrast to a bargaining situation, in which individuals will discuss how a "deal" will affect them individually, deliberation demands a focus on whether a decision is in the interest of the community.(83) By forcing participants to articulate their demands in community terms, the nature and tenor of the discussion changes. Instead of teaching participants to look out for number one, discussion reinforces in participants a community-oriented ethic.(84) Indeed, some proposals may prove incapable of being brought forward at all when framed in this light.(85)

Centering the discussion on the common good does not mean that participants may not articulate what they need as individuals.(86) Indeed, participants must articulate such needs for others to understand what is at stake. A focus on the common good as the "decision rule," however, will undercut the tendency for individuals to simply make deals--you satisfy my need, I satisfy yours, we form a majority. Instead, the deliberative model forces citizens to take the step of translating their own needs into the terminology of community needs.(87)

3. Does the Process Engender Critical Reflection upon the Values Underlying the Proposal

The third criterion asks whether the process engenders critical reflection on the values underlying a position or proposal. This criterion consists of two separate parts: 1) critical reflection about 2) underlying values.

Critical reflection consists of a willingness to examine the premises of one's own and others' beliefs and positions. Deliberation requires critical reflection for two reasons. First, critical reflection leads to the clarification of values.(88) As the process forces individuals to think about their own values, they become more aware of why it is they think like they do. When they then articulate their viewpoints, the communication will become more meaningful, and, therefore, more enduring public values will emerge. Second, critical reflection as a learned skill provides an important safeguard against the potential inherent in deliberation for "community-think." That is, an emphasis on the common good may risk citizens becoming unthinking followers, feeling compelled to obey and champion the community's apparent consensus, often at the expense of minority views.(89) Instilling and building the skill of critical reflection provides a key brake against this threat.(90)

For the critical reflection to best serve its deliberative purpose, it should examine the values underlying the proposal at issue. The ability to critically reflect on positions and proposed policies may be a useful skill, but the benefits of deliberation flow from a focus upon values.(91) Through the process of deliberation, the community creates its identity, and a key component of this identity lies in community values.(92) Values, therefore, furnish the proper focus for critical reflection.

4. Does the Process Inculcate Civic Virtue?

The fourth criterion considers whether the process inculcates civic virtues consistent with deliberative decision making. As discussed above, deliberation requires citizens who share character traits such as a willingness to work toward the long-term good of the community,(93) respect and empathy for their fellow citizens,(94) and critical self-reflection.(95) Traits such as selfishness, bigotry, and inflexibility, in contrast, would undermine the deliberative process.

Advocates of deliberation believe that these character traits at least partly imbue in citizens through interaction with political structures.(96) Participation, if channeled properly, can serve this educative function, while helping to create a sense of belonging to the community.(97) If structured poorly, however, participation may well have the opposite effect of increasing cynicism and dividing communities. It follows that structures that inculcate civic virtues consistent with deliberation are preferable.

5. Do Participants Communicate in Person, Face to Face?

A fifth criterion concerns whether the communication takes place face to face. Other things being equal, a face to face process comes closer to the deliberative ideal than one carried out in text or over the phone.(98) This criterion may seem anachronistic given the growing trend toward computer telecommunications. Nevertheless, face-to-face communication has certain advantages that justify its inclusion among our criteria for deliberation. First, it is primarily in face to face human contact and communication that individuals develop the traits of empathy and respect necessary for the deliberative process to work.(99) Second, face to face communication makes dialogue more meaningful because communication can occur at many levels simultaneously, with such things as gestures, apparent interest, and facial expressions all signalling information not transmittable using other modes.(100)

6. Does the Process Involve Citizens, as Opposed to Individuals Hired to Represent Citizens?

The sixth criterion asks whether it is citizens or their representatives who participate. A process is more deliberative to the extent that citizens meaningfully participate. This criterion should not suggest that citizen organizations (or corporations) that hire individuals as full-time staff are somehow illegitimate in their participation. Given the complexity of many issues and the time constraints on individual participation, citizens inevitably will need to utilize organizations if their voice is to be heard.

A preference for citizens over paid representatives is justified.(101) For one, the inclusion of citizens among those in the conversation forces other participants to voice their concerns in language accessible to lay citizens, as opposed to the technical jargon that so often predominates among those steeped in an issue. More importantly, citizens, unlike paid representatives, will always experience a greater degree of freedom in deliberation to critically reflect on their values, because paid staff will inevitably face a tension in their participation as they feel they must represent others and not critically examine the values of those they represent.(102)

7. Do the Participants Represent All Significant Sectors of the Community?

Modern civic republicans highly prize political equality.(103) A public process is more deliberative to the extent it fulfills this ideal by involving citizens from a diverse set of backgrounds. However, more than equality of access is needed; citizens must utilize the access to a reasonable degree. If significant sectors of the community do not take part in public deliberations, the resultant values will not be truly "public values" in the republican sense.(104) Community will not form. Indeed, as Professor Paul Brest notes, deliberation "among people who . . . represent a relatively narrow spectrum of perspectives may create or reinforce a distorted but strongly held consensus."(105) Moreover, the airing of meaningful disagreements, and thus meaningful dialogue, requires diverse participation.(106)

III. THE EVOLUTION OF NEPA'S PARTICIPATION REQUIREMENTS

A. National Environmental Policy Act

The National Environmental Policy Act (NEPA)(107) has been described as the nation's basic environmental charter.(108) The Act declares a congressional intent to "encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man."(109) Unlike later, complex environmental regulatory statutes, NEPA is surprisingly brief. Moreover, as interpreted by the Supreme Court, it establishes no substantive environmental standards.(110)

A single statutory section embodies NEPA's procedural requirements. Section 102 requires that all federal agencies, when proposing actions that will significantly affect the environment, prepare Environmental Impact Statements (EISs).(111) The preparing agency must provide copies of the EIS to the public.(112) Specifically, the Act requires that "[c]opies of such statement and the comments and views of the appropriate Federal, state, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public."(113)

Apart from this general requirement of public disclosure, NEPA provides no guidance as to what procedures should govern the process by which the public may comment on EISs. Nor does the Act appear to envision public circulation or comment of draft EISs. The Act only suggests that views of "Federal; State, and local agencies" should accompany the EIS--it does not mention comments from ordinary citizens.(114)

Indeed, public participation under NEPA might never have materialized if NEPA had not included a second major provision that created the Council on Environmental Quality (CEQ) as part of the Executive Office of the President.(115) While Congress did not formally charge the CEQ authority to develop regulations governing agency implementation of NEPA, the first decade following NEPA's passage could be described as a gradual process in which CEQ, prodded by the judiciary, took over the process of establishing NEPA procedures.

In March 1970, President Richard Nixon issued Executive Order 11,514(116) which authorized CEQ to develop guidelines for agency compliance with NEPA. CEQ published Final Guidelines in late 1970.(117) These guidelines marked the first clear step toward turning the NEPA process into a meaningful opportunity for public participation. For one, the Final Guidelines provided for public distribution of draft EISs.(118) More importantly, they established a time-line designed to increase the likelihood that the agency would consider public comment. The guidelines stated that agencies could not proceed with the action less than ninety days after circulating a draft EIS to the public for comment.(119) Moreover, agencies could also not take action less than thirty days after circulation of the final EIS, along with accompanying comments.(120)

CEQ revised its NEPA guidelines in 1973, and for the first time, codified them in the Code of Federal Regulations.(121) The 1973 regulations further expanded the procedures for complying with the Act's public participation requirements. According to the guidelines, "[t]he procedures established . . . [were] designed to encourage public participation in the impact statement process at the earliest possible time."(122)

Specifically, the 1973 Guidelines changed the public participation requirements at both the draft and the final EIS stages. At the draft stage, the 1973 Guidelines added the "public" to those informed of the EIS process at its inception.(123) CEQ intended this early information to serve as an "appropriate early notice system for informing the public of the decision to prepare a draft environmental statement."(124) The 1973 Guidelines also expanded public participation following the drafting of the EIS. First, they encouraged notice of the draft EIS's availability by publication in local papers and by mail to affected interests.(125) Second, the Guidelines established criteria for when an agency should hold a public hearing on a draft EIS.(126) Third, the Guidelines expanded the time-line used by agencies, requiring a forty-five (rather than thirty) day comment period for responding to draft EISs.(127) Finally, the 1973 Guidelines explicitly required the final EIS to respond to comments received on the draft,(128) with "responsible" opposing opinion included in the final EIS.(129)

The 1973 Guidelines, despite their publication in the Code of Federal Regulations, had questionable authority as a means of binding other agencies.(130) Indeed, every federal agency missed CEQ's deadline for proposing changes to their internal procedures so as to conform to the 1973 Guidelines.(131)

In response, President Carter issued Executive Order 11,991,(132) making CEQ regulations binding on other federal agencies.(133) To implement this Executive Order, CEQ engaged in an extensive series of public hearings and meetings that culminated in major changes to the regulations.(134)

B. Thee Mechanics of Citizen Participation Under NEPA

The revised regulations, published in 1978 by the CEQ, established the current framework for public participation under NEPA.(135) This section analyzes each step in the NEPA process as it relates to citizen participation.

In the first step under the NEPA regulations, the action agency must decide whether to prepare an EIS. Under the regulations, each agency is required to develop a classification system that includes three types of agency actions: 1) actions that normally require an EIS, 2) actions that normally require an Environmental Assessment (EA), but not necessarily an EIS, and 3) actions that normally do not require either an EA or an EIS.(136) If an agency determines that the third category applies, the regulations require no further work under NEPA.(137) If an agency determines that the first category applies, the EIS process begins. If the second category applies, the agency must prepare an EA.

An EA, a public document, provides information from which an agency determines if an EIS is required.(138) Generally speaking, the inquiry in an EA focuses on whether the possible proposed action may have a significant impact on the human environment.(139) If the answer is yes, the agency prepares an EIS. If the answer is no, the agency makes a finding of no significant impact (FONSI).(140) An agency generally does not consult with the public in writing an EA or in issuing a FONSI.(141)

Assuming the agency must prepare an EIS, the agency begins with a process known as scoping.(142) During scoping, an agency identifies the range of issues for consideration in the EIS, as well as their relative significance.(143) Most significantly, the scoping process reqUires the agency to actively seek the participation of other agencies and the public.(144) Scoping comments can occur both in writing and through public meetings held by the agency.

Following scoping, the agency prepares a draft EIS. Because it serves as the lightning rod for public comment, understanding the contents of the draft EIS is critical to understanding the nature of public participation engendered by the NEPA process. In general, an EIS must include the following sections:

1) A summary stating the central conclusions, controversies, and issues.(145)

2) A short statement of the "underlying purpose and need to which the

agency is responding in proposing the alternatives including the proposed

action."(146)

3) A section identifying and comparing the alternatives under consideration

by the agency, their environmental effects, and the "preferred" alternative,

if one exists.(147) An agency must include all reasonable alternatives,

subject to the rule of reason.(148)

4) A section describing the affected environment in its existing state.(149)

5) A section outlining the "environmental consequences" of each

alternative.(150) This section should form "the scientific and analytic

basis for the comparisons" made in the section on alternatives.(151)

The agency then distributes the draft EIS to the public for written comment,(152) with a minimum time of forty-five days to respond.(153) The regulations require the agency to "affirmatively solicit[ ] comments from those persons or organizations who may be interested or affected."(154) The agency must also establish criteria to determine when to hold public hearings or meetings to receive oral input.(155) The agency must hold a hearing or meeting 1) when there is "substantial environmental controversy concerning the proposed action or substantial interest in holding the hearing," 2) when another agency with jurisdiction over the action requests a hearing, or 3) when another statute so requires.(156)

After receiving comments from the public and other agencies, the agency then revises the draft EIS to produce a final EIS. The final EIS must include and respond to "responsible" opposing viewpoints.(157) Thirty days after distribution of the final EIS, an agency may make its decision, embodied in the "record of decision" (ROD).(158) Ideally, the ROD should reveal the agency's "decisionmaking soul to public" scrutiny.(159) Its purpose is "to see that the decisionmaker considers and pays attention to what the NEPA process has shown to be an environmentally sensitive way of doing things."(160) The ROD should state an agency's decision, identify the alternatives considered, specify the environmentally preferable alternatives, discuss factors that the agency balanced in making its decision, and indicate whether all practical means of avoiding or minimizing environmental harm were incorporated into the decision.(161)

IV. THE CULTURE OF NEPA CITIZEN PARTICIPATION

The formal structure of NEPA citizen participation only tells part of the story. It tells only that significant flows of information are occurring from agencies to citizens and back to agencies. Voluminous documents are created, which to some degree take into account public input. The process appears to have some influence on actions taken by agencies, but it is difficult to document the effects.(162)

NEPA's formal structure does not, however, provide sufficient information to determine if the process is "deliberative." This determination requires an understanding of the cultural lens through which the agencies and citizen participants view the process. For instance, if A and B hear a speech, and A thinks the speaker is trying to persuade, and B thinks the speaker is trying to entertain, they are likely to be affected in different ways. Viewed from A's perspective, the participation may qualify as deliberative; viewed from B's perspective, the same participation might be anything but deliberative. By analogy, if both participants and decision makers in a citizen participation event think that they are engaged in a political bargaining process, their views of the events will differ from those similarly situated who think that they are engaged in an objective determination of the scientifically optimal decision.

Those two understandings just expressed, political bargaining and objective science, represent the two dominant cultural paradigms through which agencies (and by extension citizens) have understood citizen participation over the last twenty-five years. Political bargaining and objective science also correspond, respectively, to the pluralist and synoptic models introduced briefly in Part II. The pluralist sees citizen participation as a form of political bargaining.(163) The synoptic sees citizen participation as a data input for objective decision makers.(164) This Part recasts the "story" of NEPA citizen participation evolution from these two competing perspectives.

A. Story One: Synoptic NEPA

The synoptic story of NEPA is best introduced through its historical genesis in the early years of administrative law. When administrative agencies first began to receive broad grants of congressional authority, concerns arose regarding the legitimacy of Congress's delegation of such powers to agencies.(165) As a result, commentators turned to two related concepts to explain the legitimacy of administrative action. The first concept, labelled by Professor Richard Stewart as the "transmission belt" model, holds that administrative agencies simply implement the rules enacted by the legislature.(166) After New Deal legislation granted broad authority to various agencies, however, this model became untenable as a means to cabin agency discretion. Thus, proponents of agency power turned to a second concept, "expertise," as a solution to unfettered discretion.(167) From this perspective, agencies rely upon professionals to set policy based upon a congressional goal and an examination of the facts. Professor Stewart noted, under this theory, "the discretion that the administrator enjoys is more apparent than real. The policy to be set is simply a function of the goal to be achieved and the state of the world."(168) The expertise concept, therefore, portrays public administration as both "professional" and "objective."(169)

Often using the term synopticism, many authors have attempted to explain expert decision-making processes.(170) Synopticism envisions a four-step decision-making process: 1) the specification of the goal, 2) identification of all possible methods of obtaining the goal, 3) the evaluation of the effectiveness of each method, and 4) the selection of the alternative with the greatest progress toward the goal.(171) Under this model, the administrator must use objective, preset rules in following these steps. In doing so, agencies must utilize professionals because only they have the necessary technical expertise(172) or political independence.(173) While true synopticism is clearly impossible,(174) a synoptic would suggest the model remains the ideal for analyzing administrative decision processes.(175)

The first step of the synoptic model, specification of the goal, presents the biggest problem for the theory. In a democratic society, experts should not control the specification of goals. To make sense, the model requires an outside party, such as Congress, to establish the goal. Most statutes covering natural resources, however, call for attaining very broad goals such as the "multiple use" of the public lands.(176) Yet, the goal of multiple use is inherently utilitarian--seeking to maximize the overall social benefit derived from the land.(177) As a result, synopticism as applied to environmental issues has almost always reflected the goal of aggregating individual interests.(178)

Not surprisingly, environmental and natural resource agencies have historically championed the synoptic model. Congress established early natural resource agencies during the rise of the Progressive Movement, a movement that advocated centralized planning by unbiased professionals.(179) Gifford Pinchot, the first chief of the U.S. Forest Service, enthusiastically advocated the scientific management of the newly created federal forests.(180) A core belief that scientific management of the public lands could efficiently maximize resource extraction--for the benefit of human kind-formed "the religion of public land management."(181) These agencies continue to construe their "multiple use" mandate by reference to overall social utility.(182) As a result, environmental and natural resource agencies remain steeped in this culture of scientific management.(183) In part, agencies champion the synoptic model because it increases their relative authority over others. Advocates of synopticism deem science (performed by the agencies) as more "legitimate" than opponents' "mere" politics.(184)

To some degree, NEPA furthers the synoptic cultural paradigm. As discussed above, NEPA calls for a "systematic interdisciplinary" planning process to evaluate the environmental impacts of a proposed action.(185) In addition, NEPA's text allows only for public disclosure of agency planning, not public comment.(186) Subsequently, CEQ required agencies to solicit and respond to public comments.(187) However, this requirement was tempered by the limitation of responses to "responsible" opposing views.(188) Bald assert;ions of interest require no response because they do not analyze the environmental impacts, while data or statements that challenge an EIS's scientific basis do require a response.

Other synoptic-appearing statutes, passed during the early years of the modern environmental movement, reinforce a synoptic understanding of NEPA. For example, both the National Forest Management Act of 1975 (NFMA)(189) and the Federal Land, Planning, and Management Act of 1976 (FLPMA)(190) established elaborate scientific planning processes to govern resource management of the public lands.(191)

The NEPA story from the synoptic perspective, therefore, is that before NEPA, agencies had been failing to consult all of the proper experts--for whatever reason. As a result, agencies were not giving environmental consequences adequate attention in the agencies' determinations, leading to a failure to maximize overall social utility. Congress enacted NEPA as an "internal" reform of agency decision making in which scientific analyses of environmental impacts would become part of the decision-making process.(192)

Public participation under the synoptic story of NEPA serves a narrow role: information exchange.(193) Foremost, NEPA serves as a means of providing information from the government to the public.(194) To the extent NEPA solicits citizen input, it serves to improve the quality of information used by government decision makers.(195) NEPA public participation takes the form of pseudo peer review science, in which the agency uses public participation to ensure that agency experts have, indeed, considered all the relevant information.

B. Story Two: Pluralist NEPA

The evolution of NEPA's citizen participation provisions under the 1973 Guidelines and 1978 CEQ regulations makes only partial sense from the synoptic perspective just discussed. These regulations went far beyond the textual mandate of NEPA and far beyond what one would imagine the synoptic paradigm requires. Affected interests, not experts, were to be solicited for input.(196) The CEQ public participation emphasis can only be explained by viewing NEPA from the perspective of a second story: pluralism.

Like the synoptic story, the pluralist story best begins prior to NEPA's adoption. Pluralist political theory came into popular culture after World War II.(197) Political scientists came to place an increasing emphasis on the role that competing groups played in fighting for their interests in the political system.(198)

While much of this political science was overtly descriptive, not normative, the pluralist model implied a set of normative premises. Pluralism starts with the Lockean presumption that individuals form society to protect their private interests in life, liberty, and property.(199) These private interests have at least two important characteristics. First, they are inherently subjective(200) and therefore understood as an exercise of private will, formed outside the public sphere.(201) As a consequence, pluralists are deeply skeptical of the synoptic claim that experts can "objectively" ascertain an individual's interest.(202) Second, because pluralists believe that preferences are private and subjective, society may not accord one individual's preferences greater weight than another's.(203)

If all preferences are private and equally valid, it follows that the only acceptable role for government is to serve as a forum through which individuals can bargain with each other over whose preferences will prevail when they conflict. It follows that pluralists understand legislation as the output of such bargains.(204) The only role of discussion, under pluralism, is appeal to another's self-interest.(205)

For the pluralist, one may find the common good (if that term has any meaning at all), in the aggregation of individual preferences.(206) These preferences, because they result from the exercise of private will, exist exogenous to the actual bargaining practices.(207) As Martin Shapiro explained the theory, "[t]he process of making public policy consisted of groups competing with one another for what legislators, administrative agencies, and courts had to offer. The result of this group struggle would be an aggregation or summating of group preferences in the way that elections summated individual preferences."(208)

Although pluralists often emphasize group dynamics, an individualist assumption underlies pluralism. The pluralist sees groups as engaging in conflict; but the pluralist does not argue that group preferences have any meaning. Rather, groups are simply the means by which individuals collectively press their demands(209) when their individual interests happen to converge.(210)

While the pluralist model seems straightforward in its application to the legislative arena, where groups can directly influence outcomes through input into periodic election of representatives,(211) its translation to the administrative arena is more complicated. Given the vast growth of the federal bureaucracy, it became apparent that the periodic election of a President could not, by itself, serve as sufficient leverage for bargaining to make administrative decisions conform to the pluralist model. Moreover, evidence generated in the 1950s and 1960s suggested that agency decision making in the post-World War II era favored the very industries they were charged with regulating.(212) At this same time, the fiction that agencies were merely applying expertise in following preset goals established by Congress evaporated. From broadcasting, to consumer protection, to the environment, agencies were making policy judgments that inherently required choices among values.(213)

The resulting transformation of administrative law allowed for a more comfortable fit with the pluralist model. The original Administrative Procedure Act of 1946 (APA)(214) contained the seeds of this model. It provided for citizen involvement in the formal rulemaking process by allowing them to present evidence and testimony.(215) Professor Richard Stewart outlined the subsequent evolution of this model in his article, The Reformation of American Administrative Law,(216) and argued that by the mid-1970s, the pluralist understanding was "widely shared by judges, legislators, practitioners, and legal commentators."(217) Reforms included increased public intervention in administrative proceedings, the formalization of the rulemaking record to allow for later judicial review, and limitations on ex parse communication.(218)

Most importantly, however, these reforms included an explosion of citizen participation.(219) Born in part from the citizen activism of the Civil Rights Movement and the Vietnam War protest movement, a growing segment of American citizens demanded of their government the ability to participate in decision making by federal agencies.(220) The first large-scale experiments of this type took place in the anti-poverty programs of Lyndon Johnson's Great Society.(221)

The environmental movement naturally latched onto this explosion. Environmentalists perceived a cozy relationship in which agency bureaucrats, along with the regulated parties, made decisions without regard to the preferences of the vast majority of Americans.(222) In response, virtually every environmental statute passed during the period contained citizen participation programs.(223) For example, in addition to NEPA, the Clean Water Act of 1972 (CWA)(224) allowed citizen participation in section 1O1(e), which required that "public participation [in the administration of the CWA] . . . shall be provided for, encouraged, and assisted by the Administrator and the states."(225) Similarly, section 7004(b) of the 1976 Resource Conservation and Recovery Act (RCRA) states that "[p]ublic participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under this [Act] shall be provided for, encouraged, and assisted by the Administrator and the States."(226) Agencies often adopted extensive regulations to implement the citizen participation mandates of these statutes.(227)

In this context, the CEQ regulations expanding NEPA citizen participation made eminent sense. The environmental movement used citizen participation, including NEPA, as a strategy to restructure the power relationships involved in agency decision making.(228) The pluralist model provided a tremendous perceived advantage over a synoptic model that was perceived as biased.(229) Environmentalists could freely bargain with other interests over the use of natural resources,(230) a significant step forward from the day when they had no say over the disposition of those resources. The goal was a level political playing field.

From the pluralist perspective, therefore, the story of NEPA is one in which, prior to NEPA, the agency decision-making process was skewed to consistently benefit certain private interests at the expense of others. NEPA provided a means of destroying this imbalance of power by virtue of opening the decision-making process to public review and comment. The EIS process, by design, forced agencies to give proper account to competing interests by "internaliz[ing] opposing viewpoints"(231) into their decision making.

Public participation under the pluralist story of NEPA serves an important role: political posturing.(232) The process of public comment, public hearings, and the associated political fights that surround the process serve to make explicit the previously ignored resource clashes. Citizens could use the NEPA process to engage in political bargaining on behalf of their private interest in environmental protection.

V. ON THE (DYS)FUNCTION OF NEPA AS A MECHANISM FOR DELIBERATION

Participation without community merely rationalizes individualism, giving it the

aura of democracy.(233)

Both of the stories of NEPA hold much truth. As should be clear, the process established by NEPA represents some combination of the procedures that fit within the pluralist and synoptic models. As one commentator explained,

a conspicuous feature of NEPA is the simultaneous

requirement of scientific thinking and the allowance of public participation

in preparing EISs. These two components seem contradictory because they

aim at two diametrically opposed targets. The former seeks

one best alternative and solution, but the latter places its virtue in

bargaining among many plausible alternatives and solutions.... NEPA, without

foreseeing its complications, forced government agencies to adopt these two

conflicting means to achieve its fundamental goal, the protection of the

human environment.(234)

Yet, Congress apparently paid little attention to how public agencies would mediate "[t]he inherent tension between science and politics."(235)

The result produced a confusing hybrid of pluralism and synopticism. The NEPA EIS process is synoptic in format.(236) The contents of an EIS fit resolutely within the scientific framework. Nobody is likely to confuse the technical jargon of a typical EIS with either fine literature or political text. Comments, whether written or delivered orally at a public hearing, must fit the synoptic format by being "responsible."(237)

While the NEPA process may appear generally synoptic in form, this form overlays a decision-making situation that is usually pluralist in orientation. The cause of this situation lies in the "black box" that surrounds the actual decision as far as the public is concerned. As Owen Olpin noted, [t]hose citizens who appear and speak at hearings are not present at the final decision point."(238) Nor do final EISs typically reveal reasons for a decision.(239) The public can only imagine what goes on behind the closed doors. Given the heavy pluralist bent of recent political culture, the public generally imagines NEPA decision making as pluralist, despite the synoptic format.

The Supreme Court's Robertson v. Methow Valley Citizen's Council decision(240) has exacerbated the "black box" perception. Often, final EISs will identify mitigation actions designed to limit the environmental consequences that flow from a proposed action. Yet, in Methow Valley, the Court went out of its way to make clear that the inclusion of mitigation measures does not impose on an agency "a substantive duty to mitigate."(241) The agency need not do what the document says. From the citizens' perspective, this can only reinforce their belief that continuous pluralist bargaining, not the synoptic substance of an EIS, comprises the real mode of decision making.

The question begged is whether this combination of a synoptic format and pluralist substance is "deliberative." The answer, as discussed below, is a resounding no. To the contrary, the NEPA citizen participation process is thoroughly anti-deliberative, failing virtually every criterion. The following part discusses each criterion developed in Part II in turn.

A. Does NEPA Encourage Dialogue Among Citizens?

Very little dialogue occurs as a result of NEPA. The usual exchange in NEPA takes place within an EIS statement--response from citizen, and agency response to the response. While some commentators refer to this exchange as a "dialogue,"(242) it is so limited as to be virtually meaningless.

The synoptic format and pluralist substance of NEPA undercut any hope that NEPA could encourage dialogue. The synoptic format does not encourage give and take among citizens. On the simplest level, the heavy emphasis on scientific analysis makes it difficult for lay citizens to engage in meaningful dialogue regarding EIS substance.(243) In addition, the synoptic format emphasizes written over oral dialogue, sharply limiting the number of dialogic iterations possible. Nor is the typical NEPA public hearing process designed to encourage give and take. Usually, the agency gives a short presentation, followed by audience testimony. The process provides little opportunity for dialogue between citizens and agency representatives,(244) let alone dialogue directly between citizens.(245) As one Minnesota citizen complained regarding public hearings held by the Minnesota Pollution Control Agency (PCA):

We are not able to sit down at a table with industry and the PCA and

have an open discussion. Instead we drive 120 miles, take a day off

work from our jobs, pay large babysitting fees and have the PCA tell us we

have 15 minutes total to talk.(246)

The pluralist substance of NEPA only exacerbates the problems associated with the synoptic format. Pluralism necessarily begins with the premise of "public preferences as given, merely to be revealed through group interaction."(247) NEPA hearings, given this premise, simply elicit these preferences, not allowing dialogue that might alter these preferences.

The public, not surprisingly, takes this cue and turns the public hearings, to the extent possible, into an opportunity for strategic speech. If the public is convinced that the synoptic format does not count and that the agency will make political decisions behind closed doors, what use is the hearing process other than to serve as political "theater?"(248) Citizen participants, therefore, routinely use hearings as the setting for a broader political maneuver.(249) They use it as an opportunity to make their case not to the EIS agency, nor to the opposing side, but to the broader public through the lens of the media. However, the media tends to cover the emotional and heated parts of a hearing, distorting the wider public's perspective of the hearing.(250) Dialogue is decidedly not the result.(251)

B. Does the Discussion Focus upon the "Common Good?"

The typical NEPA process also fails to meet the goal of encouraging discussion about the common good, as that term is understood by advocates of deliberation.(252) The synoptic format, once again, causes part of the problem. The EIS itself does not justify a preferred alternative by analyzing what is in the common good. Rather, it simply states the environmental effects of various alternatives. Citizens receive a proposed action, and usually a preferred alternative, yet their "responsible" comments are those providing information on the environmental impacts. The choice of goal, which drives the synoptic process, appears in the EIS's statement of "needs and purposes."(253) Yet, agencies have considerable discretion in setting this goal, rendering comments about the goal itself irrelevant.(254) Ideally, the Record of Decision (ROD) might prompt discussion of the common good. It lays out the reason for the decision.(255) However, the agency releases the ROD only after the end of the public participation process. Moreover, it is generally not widely publicized or utilized.(256)

The failure of NEPA to encourage discourse about the public good is not surprising. After all, under the synoptic model citizen participation serves only to exchange information.(257) To be sure, synoptics often state that the public has a legitimate role in setting the goals toward which the managers work, with goals synonymous with the common good. Most often, however, agency professionals are so steeped in the biases of their own professional culture that they become incapable of recognizing goals other than those already implicit in their scientific models. For example, Susan Schectman, in an article on NEPA's effect on wildlife management, lauds goal-setting as a legitimate function of public participation.(258) Yet, Schectman begins with the premise that the goal of wildlife management is to maximize the "biotic potential" of a population.(259) Unable to move beyond a technocratic understanding of the process, she then criticizes as "emotional" and "irrational" those who appear to be advocating a different goal,(260) concluding that such public participation is "incompatible with sound resource management."(261)

The blame for NEPA's failure does not lie with agency professionals. The problem goes to the very heart of the synoptic model. Simply put, the synoptic model is incapable of dealing with certain types of cultural concerns. The scientific world view cannot analyze the public interest in terms of ethical relationships and value choices. The method is very powerful as a form of reductionism--taking problems apart into pieces, and then trying to understand the relationship among policies. Resource maximization might be amenable to this process. Ethical values choices are not because they cannot be quantified.(262) Citizens attempting to live out an ethical relationship with their local national forest, for example, most likely cannot express their true concerns in the resource maximization language of professional forestry.(263) It is like asking them to place a square peg in a round hole, leaving them frustrated and angry.

More often, citizens do not even try. They instead turn the process into a public display of political power, firmly embedded within the pluralist paradigm. Not allowed to discuss their true view of the common good, their level of cynicism only increases.

The shift of the public hearing process into a political-pluralist battle does not bring the common good back into the picture. As Daniel Kemmis has noted, "[p]eople in this situation do not speak of what they have in common, or of how the common good might be guarded and enhanced. What they speak of is how a proposed initiative . . . either enhances or threatens their individual rights."(264) This result is not surprising; indeed, it is inevitable given the pluralists' rejection of the very concept of public values.(265)

C. Does the Discussion Engender Critical Reflection on the Values Underlying the Proposal?

The NEPA process does not encourage critical reflection upon the underlying values at stake in the proposed action. For starters, the timing of citizen involvement does not encourage critical reflection. By the time most citizens become aware of the existence of a draft EIS, they must assume a reactive posture. Rather than being asked to engage in problem-solving, citizens must comment upon solutions devised by others.(266)

Even if the citizens became involved in the process at times allowing for greater reflection, the synoptic format would not easily allow the reflection to focus upon values. As should be clear from the earlier discussion, the concept of public values does not fit with the synoptic world view.

The typical NEPA public hearing offers precious little opportunity to overcome this obstacle. To be sure, citizens often break out of the synoptic model to address their concerns, but generally only by adopting a pluralist orientation. Yet, pluralist culture is no friendlier to those who wish to critically reflect upon values. From the pluralist perspective, preferences and values are identical--the arbitrary choices of individuals. One can comfortably state one's values in the EIS process, but one should not expect reflection on those values by those present. As Kemmis noted, "out of everything that happens at a public hearing--the speaking, the emoting, the efforts to persuade the decision maker, the presentation of facts--the one element that is almost totally lacking is anything that might be characterized as `public hearing."'(267) Under the pluralist model, citizens have no responsibility to listen and reflect upon what other citizens say.

D. Does the NEPA Process Inculcate Character Traits Consistent with Deliberative Decision Making?

The NEPA process does not inculcate character traits consistent with deliberative decision making. Rather than satisfying the citizenry's need for fulfilling involvement in community life, and thus serving a positive educative role, the NEPA process undermines those traits most needed for deliberation.

In general, the synoptic format encourages passivity and overreliance on experts.(268) Agencies present material in a way that discourages participation. At best, citizens walk away from the process feeling they lack the ability to participate.(269) At worst, when faced with information presented in a technically unintelligible format, citizens may become increasingly cynical and distrustful of government.(270)

Both the pluralist model and synopticism share a further vice--selfishness. Rather than reinforcing the trait of community mindedness, both models encourage and legitimize the view that there is no such thing as the common good. The pluralist approach is particularly troubling. As compared to republican theory, which calls for participation out of a sense of duty and responsibility, pluralists analogize citizens to consumers, expressing their preferences. This symbolic change leads participants to think more in terms of their self-interest and less in terms of community responsibility.(271)

Pluralism also encourages strategic behavior. If only individual desires count, there is no reason not to maximize one's own interest. Indeed, that is the citizen's role under this model--get as much as you can.(272) Strategic posturing inevitably results: ask for more than you really need, so the ultimate agreement is closest to your true desires. This is not a form of dialogue likely to enhance the participants' sense of empathy for their fellow citizens.

E. Is the Communication In Person, Face to Face?

Some of NEPA's citizen participation occurs face to face. However, even that communication has a very low value for deliberation. Most of the substantive commenting process takes place through an exchange of written comments. Citizens reading through draft EISs receive few, if any, opportunities to directly ask substantive questions to those who prepared the draft. The agency also answers public comments in writing.

There are some face-to-face public meetings. The scoping process often involves public meetings. But these tend to merely provide opportunities for citizens to state what subject matters should be covered in the EIS. Dialogue on this subject does not occur. Moreover, the scoping process rarely includes key decision makers. Public hearings afford the other face-to-face opportunity. They tend to accompany controversial EISs. However, the typical public hearing is so far from providing dialogue about the common good, that its face-to-face value is quite limited.

F. Does NEPA Process Involve Citizens, as Opposed to Individuals Hired to Represent Citizens?

NEPA gets a mixed grade from the perspective of involving amateurs. As a matter of access, citizens have full rights to utilize NEPA. The bulk of NEPA comments on controversial EISs tend to come from citizens. However, the synoptic format detracts from this opportunity. The nature of the synoptic format requires organizations and resources, especially at the national level. As a result, citizen participation tends to occur indirectly through groups.(273) Indeed, only through such groups do most citizens hear about the existence of a pending EIS. Few citizens skim the Federal Register looking for proposed EISs that arouse their interest. Even on issues with a high degree of local concern, scholars tend to discount citizen participation, focusing only on group comments when evaluating the impact of NEPA. For example, one scholar, in evaluating the impacts of EIS comments on U.S. Forest Service decisions, felt free to ignore letters from individuals because "most comment letters from private individuals are either emotional expressions of personal preferences or form letters with the same content but different signatures."(274)

G. Does the NEPA Process Include Participants Representing All Significant Sectors of the Community?

NEPA would probably meet this criterion if the criterion dealt solely with access. All sectors of the community have an equal right to utilize NEPA processes. This criterion, however, demands more--some level of actual participation from all significant sectors.

Broad public participation generally does not occur under NEPA. When public hearings are held, only those who have particularly strong interests in the decision usually attend.(275)

Once again, the synoptic format causes part of the problem. As Reich concludes, "[t]he very complexity of the [synoptic] analyses has tended to discourage the involvement of a wider range of participants, who feel that they have nothing legitimate to add to this form of public debate."(276) Many groups would like to participate, but lack the resources to develop sufficient expertise.(277)

Nor does the public involvement process offer inducements to overcome the barrier of complexity. To the contrary, NEPA public involvement efforts tend to go after the usual suspects, leading to public hearing attendance only by those with particularly strong interests in a decision and further exacerbating the tendency of such hearings to devolve into antagonistic "heater.

VI. CONCLUSION

The contemporary United States remains a great leap away from the type of participatory society envisioned by modern civic republicans. Achieving this goal presents great difficulties.(278) Establishing the decisionmaking structures necessary to encourage deliberation, and hence virtue, will involve time and money. Success will be difficult to measure. It should be understood as a very long-term project. Those interested in preserving the environment should not regard the long-term nature of the project as disabling. The transformation of American society to one that is sustainable in its use of natural resources is itself a very long-term project. NEPA is an excellent place to start.

As discussed above, NEPA's present patterns of usage completely fail to encourage deliberation. Under virtually every criteria, NEPA is defective. While much of the "blame" for this lies with the cultural paradigms under which NEPA participants operate, NEPA's structure also contributes to the problem. Reformulating NEPA to create deliberation will not be an easy task. The suggestions below should be taken as a starting point for discussion, not a blueprint for reform.

In determining how to restructure NEPA, the most promising avenue of inquiry would be to utilize lay "juries" that would have authority over the development of EISs.(279) Evidence suggests that this form of citizen involvement can effectively deal with issues thought to be highly technical.(280) For example, Bruce Jennings studied the output of a citizen's advisory group working on the issue of DNA research and concluded:

[T]he rDNA case provides one of the most interesting and promising examples of

productive citizen participation in recent years.... [A]fter the initial

period of sensationalism and political posturing had passed, the

deliberations of the citizen's advisory group demonstrated that when a

participatory body is given sufficient time, information, and opportunity to

make decisions that will have a real impact on issues that truly matter to

the participants, it can achieve a high level of sophistication and

understanding. And it can produce decisions and recommendations on complex

technological problems that are as well informed and reasonable as those made

by expert, professional elites.(281)

History also provides support for the use of "grand juries" in the administration of government. Professor Ronald Wright outlines a "forgotten" history of nineteenth century grand jury use to administer government.(282) During that period, such grand juries not only offered criminal indictments,(283) but performed a variety of functions that included the initiation of policy.(284) Wright offers a number of useful proposals for how such juries could be integrated into current administrative processes,(285)

In the NEPA context, the precise authority given these juries could include approval of an EIS text or approval over the substantive decision at issue. Or, as an alternative to giving the juries binding authority, their decisions could create a rebuttable presumption that an agency must overcome to pursue a project notwithstanding disapproval from the jury.(286)

The most challenging issue in utilizing juries will be one of representation. From what geographic area will the jury be drawn? If the decision involves federal land, will the jury represent a national pool, or only the nearby vicinity?

While there will no doubt be controversy about this and other difficult questions, the benefits of some reform justify inviting the controversy. NEPA citizen participation does a disservice to democracy as presently structured. Change is needed. By taking amateurs into the development of EISs and giving them authority, citizens take on the mantle of citizenship and deliberate with each other over the common good. The establishment of citizen juries represents not a replacement for the existing process, but a refinement to it. Citizen juries could prove useful in subsequently molding broader citizen participation.

Whatever modifications take place, the explanation of their purpose and use should focus on the concept of citizenship.(287) The goal is to create structures that take citizens out of the role of advocate, or passive by-stander, and place them in the role of decision maker. This transformation will force them to take responsibility for their fellow citizens. In the long run, citizens willing to take responsibility for the future of their community are essential to environmental progress.

(1) See infra notes 223-27 and accompanying text.

(2 )See infra note 223 and accompanying text.

(3) Lester W. Milbrath, Citizen Surveys as Citizen Participation Mechanisms, 17 J. Applied Behav. Sci. 478, 478 (1981) ("Citizen participation in bureaucratic decision making seems not to have been contemplated by the founding fathers of the U.S. government."). (4) Cass R. Sunstein, Participation, Public Law, and Venue Reform, 49 U. Chi. L. Rev. 976, 985-86 (1982) ("[In the last twenty years], Congress has delegated considerable discretion to unelected officials who make regulatory decisions for which the governing statutes fix only vague limits. This development has placed considerable strains upon the original constitutional understanding that public officials would be more or less directly accountable to the electorate ....", (footnote omitted)). (5) See, e.g., Norman Wengert, Citizen Participation: Practice in Search of a Theory, 16 Nat. Resources J. 23,25

(1976) (noting that citizen participation literature often voices the "'right' to be involved in decisions affecting" oneself); Rick Applegate, The Multiple Use Planning Process: Descent into the Maelstrom?, 8 Envtl. L. 427, 450 (1978) ("It is a basic tenet of American political theory that those affected by a particular decision must be represented in its making.").

(6) See, e.g., Daniel A. Mazmanian & Jeanne Nienaber, Can Organizations Change? Environmental Protection, Citizen Participation, and the Corps of Engineers 27-32 (1979) (noting increased public confidence in the U.S. Corps of Engineers as one of the principal goals of the Corps's public participation program); Susan M. Schectman, The "Bambi Syndrome" How NEPA's Public Participation in Wildlife Management Is Hurting the Environment, 8 Envtl. L. 611,632 (reducing distrust of government is one of the key functions of participation programs). (7) See Daniel J. Fiorino, Environmental Risk and Democratic Process: A Critical Review, 14 Colum. J. Envtl. L.501, 502-03 (1989) (citing Seymour M. Lipset & William Schneider, The Confidence Gap During the Reagan Years 1981-1987, 102 Pol. Sci. Q. 1

(1987)) (noting the lack of public confidence caused by the ineffectiveness of institutional problem solving); Daniel H. Henning & William R. Mangun, Managing the Environmental Crisis: Incorporating Competing Values in Natural Resource Administration 14 (1989) (suggesting that the lack of public confidence in government is symptomatic of larger societal changes such as urbanization and the loss of traditional values). (8) See infra notes 14-19 and accompanying text. (9) See, e.g., Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment 14 (1988) (asserting that the attainment of the ideal society depends upon the existence of deliberation). (10) See infra Sections II.A.1. & 3. (11) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1988 & Supp. V 993). (12) NEPA "appear[s] to be among the few public participation arrangements of the early 1970s with continuing vitality." Walter A. Rosenbaum, The Bureaucracy and Environmental Policy, in Environmetal Politics and Policy: Theories and Evidence 206, 229

(James P. Lester ed., 2d ed. 1995). (13) For a comparison of NEPA to the mini-NEPAs of California, Michigan, and New York, see Valeries M. Fogleman, Guide to the National Environmetal Policy Act: Interpretations, Applications, and Compliance 213-42 (1990); see also, e.g., California Environmental Quality Act, Cal. Pub. Res. Code [subsections] 21000-21177 (West 1986 & Supp. 1996); New York state Environmental Quality Review Act, N.Y. Envtl. Conserv. Law [subsections] 8-0101 to 8-0117 (McKinney 1984 & Supp. 1996). (14) See Dan E. Beauchamp, The Health of the Republic: Epidemics, Medicine, and Moralism as Challenges to Democracy (1988). (15) Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539, 157-78 (1988).

(16) Symposium, Conceptions of Democracy: The Case of Voting Rights, 41 Fla. L. Rev. 409 (1989).

(17) See George F. Will, Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy passim (1992).

(18) Sagoff, supra note 9, at passim (1988).

(19) See, e.g., Frank Michelman, Law's Republic, 97 Yale L.J. 1493, 1503-07

(1988) (describing republican perspective).

(20) Use of the term "civic republicanism" or "republicanism" presents some difficulties. For one, traditional republicanism incorporated certain noxious views, such as the subjugation of women. See Sunstein, supra note 15, at 1539, 1565 (distinguishing modern forms of republicanism from classical republicanism); see also Robin West, The Supreme Court, 1989 Term--Foreword: Taking Freedom Seriously, 104 Harv. L. Rev. 43, 60-61 (1990) (arguing that modern civic republicanism differs from classical republicanism by rejecting the classical theory's "conformity, homogeneity, and militaristic zeal"). While these views are not inherent to republican theory, the association remains troubling.

More importantly, the term civic republicanism admits to no one meaning. Modern republicans often use the term differently, leading legal scholars who use the term with the need to write lengthy qualifying footnotes. See Miriam Galston, Taking Aristotle Seriously: Republican-Oriented Legal Theory and the Moral Foundation of Deliberative Democracy, 82 Cal. L. Rev. 329, 333-35 nn.13-16 (1994). The version of republicanism described in this text draws from various scholars, none of whom might agree with everything said. (21) For an introduction, see generally Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493 (1988). Scholars having particular influence on the version of republicanism presented here include Cass Sunstein, Frank Michelman, Suzanna Sherry, Benjamin Barber, and Mark Sagoff. See generally Sunstein, supra note 15; Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29 (1985) [hereinafter Sunstein, Interest Groups]; Frank I. Michelman, The Supreme Court, 1985 Term-Traces of Self Government, 100 Harv. L. Rev. 4 (1986); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543 (1986); Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (1984); Sagoff, supra note 9. (22) Galston, supra note 20, at 355.

(23) Sunstein, Interest Groups, supra note 21, at 32-33; Barber, supra note 21, at 143-44. A more complete explanation of the pluralist model appears infra at Section IV.B.

(24) See Barber, supra note 21, at 143-44 (defining pluralist democracy and criticizing its reliance on the illusions of the free market--the invisible hand and simplistic utilitarianism).

(25) Id.

(26) For a defense of pluralism, see Robert A. Dahl, Dilemmas of Pluralist Democracy: Autonomy Versus Control (1982), cited in Barber, supra note 21, at 144 n.5.

(27) See Colin S. Diver, Policymaking Paradigms in Administrative Law, 95 Harv. L. Rev. 393, 396-99, 413-21 (1981) (describing the synoptic model as "comprehensive rationality"). A more complete discussion of the synoptic model appears infra at Section IV.A.

(28) One could interpret synopticism to allow scientists to pursue goals in terms other than individual utility. However, throughout its history in this country, this mode of thought as applied to natural resources has remained resolutely utilitarian. Natural resource agencies have predicated their decisions on the belief that their role is to maximize social utility, defined as an aggregation of private utility. See infra notes 176-84 and accompanying text. (29) See Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration 15-16 (1988) (noting that synoptic decision making is the process of technical analysis, not group struggle); see also infra note 170-73 and accompanying text.

(30) See infra notes 170-73 and accompanying text.

(31) See supra note 28 and accompanying text.

(32) Mark Seidenfield, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1528-29 (1992).

(33) See Sagoff, supra note 9, at 118-21 (describing the concept of community).

(34) Daniel Kemmis, COmmunity and the Politics of Place 74-75 (1991).

(35) Sagoff, supra note 9, at 100.

(36) Id.

(37) Sunstein, Interest Groups, supra note 21, at 32. The term "intersubjective" is sometimes used to convey this concept. Benjamin R. Barber, The Conquest of Politics: Liberal Philosophy in Democratic Times 203 (1988) ("Intersubjectivity is meant to convey the ideas of minds in congruence, minds that produce identical judgments, which, though less than objective, may nonetheless be regarded as more than merely subjective.").

(38) Joseph L. Sax, The Legitimacy of Collective Values: The Case of the Public Lands, 56 U. Colo. L. Rev. 537, 550-52 (1985) (suggesting that some collective values can gain expression only through the political community). (39) See generally Jonathan Poisner, Comment, Environmental Values and Judicial Review After Lujan: Two Critiques of the Separation of Powers Theory of Standing, 18 Ecology L.Q. 335, 388-90 (1991) (citing Cass Sunstein, Mark Sagoff, Robert Reich, and Dan Beauchamp). (40) Sagoff, supra note 9, at 16-17. (41) Id. at 122-23. For examples of environmental statutes that fit Sagoff's description, see the Endangered Species Act of 1973, 16 U.S.C. [sections] 1531(c) (1994) (declaring federal policy to conserve endangered and threatened species); Federal Water Pollution Control Act

(Clean Water Act), 33 U.S.C. [sections] 1251(a) (1994) (establishing national goal to "restore and maintain the chemical, physical, and biological integrity of the nation's waters"); National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4331 (1988) (declaring national policy to "create and maintain conditions under which man and nature can exist in productive harmony"). (42) Sunstein, supra note 15, at 1554. Public values gain their strength as something more than mere preferences based on the fact that they are, in part, constitutive of the identities of individual members of the community. Cf. Michelman, supra note 19, at 1503 (noting that the self is partially constituted by political engagement); Sarah F. Bates, Public Lands Communities: In Search of a Community of Values, 14 Pub. Land L. Rev. 81, 81

(1993) ("Each of us defines our identity, at least in part, based on our association with a community.").

Under this view, personal identity is partly formed as community members internalize public values as their own. If the formation of public values is crucial to the formation of one's self identity, it follows that the creation of public values is necessary for moral freedom. See Seidenfield, supra note 32, at 1528 (Under civic republicanism, the development of the common good is Unecessary for individual self fulfillment."); cf. Nomi M. Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 652 (1993) ("The recognition that individual self-rule requires participation in collective self-rule transforms political participation into a species of individual liberty." (footnote omitted)).

(43) Id.; see also Jane J. Mansbridge, Beyond Adversary Democracy 77-78 (1980)

(describing a New England town meeting as a process in which the participants reach the common good through reasoning together).

(44) Sunstein, supra note 15, at 1548-51.

(45) Barber, supra note 21, at 152; Seidenfeld, supra note 32, at 1528.

(46) Barber, supra note 37, at 199.

(47) Barber, supra note 21, at 152; see also Seidenfeld, supra note 32, at 1528 (For civic republicans, one arrives at the common good through "an ongoing deliberative process, inclusive of all cultures, values, needs, and interests."). (48) See Sunstein, supra note 15, at 1554.

(49) Sunstein, Interest Groups, supra note 21, at 31; Sunstein, supra note 15, at 1548-51. 50 Michelman, supra note 21, at 27 ("Any view in which the true, primary interests of individuals are 'exogenous' or prior to politics is unrepublican."); Sunstein, supra note 15, at 1549; Sagoff, supra note 9, at 41; Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 Yale L.J. 1617, 1631 (1985). In contrast, both pluralists and synoptics presume private preferences, and then provide competing models for how to best aggregate those interests. As Robert Reich explained, "[b]oth procedural devices [pluralism and synopticism] presume that administrative accountability is largely a matter of putting public authority to the service of what people want. What they want is predetermined. People's preferences are assumed to exist apart from any process designed to discover and respond to them ...." Id. at 1625. (51) Reich, supra note 50, at 1625-30. Or, as organizational theorist Karl Weick asked, "How can I know what I think until I see what I say?" Karl E. Weick, The Social Psychology of Organizing (2d ed. 1979), quoted in Michael M. Harmon & Richard T. Mayer, Organization Theory for Public Administration 64

(1986) [hereinafter Weick/Harmon & Mayer].

(52) Barber, supra note 21, at 136.

(53) Sunstein, supra note 15, at 1549 (contending that existing desires should be revisable in light of collective discussion and debate); Frank I. Michelman, Politics and Values or What s Really Wrong with Rationality Review? 13 Creigton L. Rev., 487, 509 (1979) (describing collective politics as an indispensable means for making social choices); Barber, supra note 21, at 136 (describing deliberation as the "politics of transformation"). (54) Reich, supra note 50, at 1636 (emphasis omitted). (55) Sunstein, supra note 15, at 1550; see also Beauchamp, supra note 14, at 15; Suzanna Sherry, Without Virtue There Can Be No Liberty, 78 Minn. L. Rev. 61, 69 (1993)

("Virtue also meant letting reason control passion, letting longterm community interests override selfish individual wants.").

(56) See Sunstein, Interest Groups, supra note 21, at 31 (observing that in the view of republicans, citizens must "subordinate" individual preferences to the public good). (57) Galston, supra note 20, at 344 (Given the civic republican concept of public values as a form of positive freedom constitutive of our identity, "participation should entail not sacrifice, but its opposite."). (58) Sunstein, supra note 15, at 1556.

(59) Sherry, supra note 55, at 71.

(60) Michelman, supra note 19, at 1503; see Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1279

(1982); Michelman, supra note 21, at 19.

(61) See Sherry, supra note 55, at 69-70. As Barber explained, "in assuming the mantle of citizenship, the I becomes a We. This transformation naturally requires an understanding of citizenship more vigorous and mutualistic than the one favored by modern social scientists, which identifies citizens as private agents pursuing private interests in a political marketplace." Barber, supra note 37, at 200-01. (62) Shelley Burtt, The Politics of Virtue Today: A Critique and a Proposal, 87 AM. POL. Sci. Rev. 360, 361 (1993).

(63) Robert N. Bellah et al., Habit of the Heart: Individualism and Commitment in American Life 30 (1985) (Republicanism can function only "where the citizens actually participate."); Kemmis, supra note 34, at 11-12

(explaining that republicanism depends upon active engagement of citizens in collective problem solving).

(64) See, e.g., Curtis Ventriss, Emerging Perspectives on Citizen Participation, 45 Pub. Admi. Rev. 433, 435 (1985) (noting that many feel that "citizens do not possess the proper political knowledge . . . [or] political judgment to be actively involved in the deliberation of complex policy issues").

(65) Carole Pateman, Participation and Democratic Theory passim (1970).

(66) Daniel J. Fiorino, Citizen Participation and Environmental Risk: A Survey of Institutional Mechanisms, 15 Sci., Tech. & Human Values 226, 229

(1990); see Pateman, supra note 65, at 105 (arguing that participation breeds political efficacy). (67) Fiorino, supra note 7, at 533 (noting that feelings of citizen competence, opportunities for participation, and actual participation are related and mutually reinforcing); see also id. at 535-36

(observing that participation theorists assume that current low levels of citizen awareness, information, and interest are a sign of deficient social and political institutions, not inherent limitations in individual capacity).

(68) Sherry, supra note 55, at 79, 81; Burtt, supra note 62, at 361

(commenting that modern republicans such as Sunstein and Michelman demand citizens who maintain a critical distance from prevailing ends). Civic republican "[e]ducation must ultimately produce adults who are both willing and able to deliberate rationally about the public good. It must therefore encourage both the capacity for independent thought and the inclination and courage to use education for the good of the community." Sherry, supra note 55, at 79. (69) Sherly, supra note 55, at 81-82.

(70) As Professor Miriam Galston has similarly argued, "if a person cannot recognize situations in which there is a public interest at variance with that person's private interest, the person's ability to deliberate effectively about the best course of action will be impaired." Galston, supra note 20, at 338 n.24. (71) Seidenfeld, supra note 32, at 1529 ("Civic republicans encourage people to understand and empathize with others whose values reflect different experiences and cultural backgrounds.").

(72) See Barber, supra note 21, at 182-86 (discussing the need for communication to explore mutuality).

(73) Racial polarization is only one area in which this lack of mutual respect is visible. (74) Sunstein, supra note 15, at 1556 (noting empathy as one character trait inculcated through participation). Professor Hanna Pitkin provided a particularly compelling description of the process:

[A]ctual participation in political action, deliberation, and conflict may

make us aware of our more remote and indirect connections with others, the

long-range and large-scale significance of what we want and are doing. Drawn

into public life by personal need, fear, ambition, or interest, we are there

forced to acknowledge the power of others and appeal to their standards, even

as we try to get them to acknowledge our power and standards. We are forced to

find or create a common language of purposes and aspirations, not merely to

clothe our private outlook in public disguise, but to become aware ourselves of

its public meaning. We are forced, as Joseph Tussman has put it, to transform

"I want" into "I am entitled to," a claim that becomes negotiable by public

standards. In the process, we learn to think about the standards themselves,

about our stake in the existence of standards, of justice, of our community,

even of our opponents and enemies in the community; so that afterwards we are

changed. Economic man becomes a citizen.

Hanna F. Pitkin, Justice: On Relating Private and Public, 9 Pol. Theory 327, 347 (1981) (quoting Joseph Tussman, Obligation and the Body Politic 78-81

(1960)). (75) The reader should note that this Article does not argue that deliberation presently describes politics in the United States. Rather, deliberation should serve as the norm toward which to strive. (76) Professor Paul Brest used the term "discursive participation" for a similar concept. Paul Brest, Further Beyond the Republican Revival: Toward Radical Republicanism, 97 Yale L.J. 1623, 1624 (1988). (77) See Daniel Mazmanian & David Morell, The "NIMBY" Syndrome: Facility Siting and the Failure of Democratic Discourse, in Environmental Policy in the 1990s 125, 133 (Norman J. Vig & Michael E. Kraft eds., 1990) (describing a discourse structure in which participants "talk past one another" as a failure of democratic discourse). (78) Fiorino, supra note 7, at 536 (noting research on small group processes that shows dialogue more effective th,an passive communication in changing attitudes); see also Brest, supra note 76, at 1624

(noting value of "discursive participation" that "induces us to listen to other people's positions and justify our own").

Deliberative dialogue recognizes the need to make opinions endogenous (not exogenous) to the political process. See supra note 50 and accompanying text.

(79) Paul Brest, Constitutional Citizenship, 34 Clev. St. L. Rev. 175, 194

(1986); cf. Weick/Harmon & Mayer, supra note 51, at 64 ("How can I know what I think until I see what I say?"). (80) Ronald Beiner, Political Judgment 152

(1983), quoted in Lawrence B. Solum, Virtues and Voices, 66 Chi.-Kent L. Rev. 111, 122 n.56 (1990).

(81) Galston, supra note 20, at 357-58.

(82) Cynthia V. Ward, The Limits of "Liberal Republicanism". Why Group-Based Remedies and Republican Citizenship Don't Mix, 91 Colum. L. Rev. 581, 602

(1991). (83) Sunstein, supra note 15, at 1544-45; see also supra notes 44-52 and accompanying text. (84) See Mansbridge, supra note 43, at 261 (observing that a consensual form of decision making in which participants strive for the common good can encourage individuals to care for one another).

(85) Sunstein, Interest Groups, supra note 21, at 83-84; Sunstein, supra note 15, at 154-445. (86) Sunstein, supra note 15, at 1574-75 (Deliberation does not require citizens to "put their private complaints to one side when they come to politics . . . . [But it does] require public-regarding justifications offered after multiple points of view have been consulted and

(to the extent possible) genuinely understood."). (87) Pitkin, supra note 74, at 347. (88) Such reflection is necessary to advocate not personal preferences but public values. See Sunstein, supra note 15, at 1548-51

(noting the desirability of public values advocacy). (89) According to George Kateb, "[u]nless it is correct to posit the individual as the basic unit in the discourse of moral and political philosophy" with "general or abstract rights and dudes . . . seen as helping to constitute the individual self," democracy is impossible. George Kateb, On the Legitimation Crisis, in Legitimacy and the Modern State 180, 191 (William Connolly ed., 1984).

(90) See supra note 68 and accompanying text.

(91) See Sunstein, supra note 15, at 1548 (asserting that deliberation must focus on ends as well as means).

(92) See supra notes 34-38 and accompanying text.

(93) See supra note 55 and accompanying text.

(94) See supra note 71 and accompanying text.

(95) See supra note 68 and accompanying text.

(96) See Harold A. McDougall, The New Property vs. the New Community, U.S.F. L. Rev. 399, 408 (1990) (asserting that the individual, as a sum of beliefs, is continually recreated through the deliberation process).

(97) Ronald F. Wright, Why Not Administrative Grand Juries?, 44 Admin. L. Rev. 465, 504 (1992). Put starkly, if the process treats citizens with contempt, they are likely to become overly cynical. In contrast, if the process treats them with respect, they are likely to become respectful.

(98) Michelman, supra note 19, at 1531; see Barber, supra note 21, at 245-51

(discussing the difficulties of large-scale democracies).

(99) Fiorino, supra note 66, at 229-30; Mansbridge, supra note 43, at 10, 33-34. Jane Mansbridge discussed a study in which half the subjects were introduced to another person, face to face, for less than a minute. That person then went into an adjoining room and soon thereafter feigned an epileptic seizure, including a loud cry. Half of the subjects faced the same scenario, absent the face to face introduction. One hundred percent of the first group of subjects responded to the cries; only sixty-two percent of the second group did so. Mansbridge, supra note 43, at 272 (citing Bibb Latane & John M. Darley, The Unresponsive Bystander: Why Doesn't he Help? (1970)).

(100) See Mansbridge, supra note 43, at 33-34, 270-72.

(101) Cf. id. at 275-76 (comparing direct and representative democracy); Barber, supra note 21, at 144-47 (criticizing representative democracy).

(102) See Fiorino, supra note 66, at 229 (contending that reinvigoration of citizenship requires participation by "amateurs" in their role as citizens, not those in "professional or career roles"). (103) Sunstein, supra note 15, at 1552-53. (104) See id. at 1557 (commenting that the "norm of equality" constrains the inputs and outputs of deliberation).

(105) Brest, supra note 79, at 196.

(106) Sunstein, supra note 15, at 1575

(107) 42 U.S.C. [subsections] 4321-4370d (1988 & Supp. V 1993).

(108) 40 C.F.R. [sections] 1500.1(a) (1994); see also Michael C. Blumm, A Primer on Environmental Law and Some Directions for the Future, 11 Va. Envt'l. L.J. 381, 382 (1992) (describing NEPA as "[t]he centerpiece of U.S. environmental law"). (109) 42 U.S.C. [sections] 4321 (1988 & Supp. V 1993).

(110) Early circuit courts split on whether NEPA imposed any substantive standards. See Environmental Defense Fund, Inc. v. Corps of Eng'rs, 492 F.2d 1123, 1139 (5th Cir. 1974) (noting split in the circuits). Compare Calvert Cliffs' Coordinating Comm'n v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1115

(D.C. Cir. 1971) (holding that NEPA has substantive law to apply) and Conservation Council v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973) (same) and Envtl. Defense Fund, Inc. v. Corps of Eng'rs, 470 F.2d 289, 298 (8th Cir. 1972) (same) with Envtl. Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973) (holding that NEPA requires only procedural compliance), cert. denied, 416 U.S. 974 (1974) and Nat'l Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971) (same).

In 1978, however, the Supreme Court described the Act as "essentially procedural." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978). Several later Supreme Court decisions have made it clear that as long as an agency follows NEPA procedures, the agency has no obligation to protect the environment. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) ("[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process."); Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1979) ("[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences."). (111) The Act does not contain the term "Environmental Impact Statement"; the Act instead refers to a "detailed statement." The Act requires detailed statements to contain the following:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the

proposal be implemented

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment

and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would

be involved in the proposed action should it be implemented

42 U.S.C. [sections] 4332(2)(C) (1988).

(112) Id.

(113) Id. (emphasis added).

(114) Id.

(115) 42 U.S.C. [subsections] 4341-4346b (1988).

(116) Exec. Order No. 11,514, 3 C.F.R. 531 (1971), reprinted as amended in 42 U.S.C. [sections] 4321 (1988)

(117) Statements on Proposed Actions Affecting the Environment, 36 Fed. Reg. 7724 (1971). (118) Id.

(119) Id. at 7726. However, the 1970 Guidelines did not require draft statements in all cases. Herbert F. Stevens, Comment, The Council on Environmental Quality's Guidelines and Their Influence on the National Environmental Policy Act, 23 Cath. U. L. Rev. 547, 555 (1974). Beginning with the 1973 Guidelines, discussed infra at notes 121-31 and accompanying text, all cases required a draft EIS. (120) 36 Fed. Reg. at 7726. Congressional oversight hearings in which several members of Congress had indicated that they were needed, prompted these time-lines to a large extent. Stevens, supra note 119, at 554-55 (citing Hearings on the administration of NEPA before the Subcomm. on Fish and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess. 67 (1970)).

(121) 40 C.F.R. pt. 1500 (1974) (current version at 40 C.F.R. pts. 1500-1508

(1995)). The regulations applied to all draft and final EISs filed after January 28, 1973. Preparation of Environmental Impact Statements, 38 Fed. Reg. 20,557 (1973). (122) 40 C.F.R. [sections] 1500.9(d) (1974)

(123) Id. [sections] 1500.6(e). Previous guidelines required informing only federal, state, and local officials. Statements on Proposed Federal Actions Affecting the Environment, 36 Fed. Reg. at 7724.

(124) 40 C.F.R. [sections] 1500.6(e) (1974). Publication in the Federal Register accomplishes this notice. Id.

(125) Id. [sections] 1500 9(d)

(126) Id. [sections] 1500.7(d). The criteria are described infra at note 156 and accompanying text. 127 (127) Id. [sections] 1500-g(f)

(128) Id. [sections] 1500 2(b)

(129) Id. [sections] 1500.10. This last requirement satisfied developing case law, such as Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (D.C. Cir. 1971). See Robert S. Lynch, The 1978 CEQ Guidelines: Cautious Updating of the Environmental Impact Statement Process, 11 Cal. W. L. Rev. 297, 335 n.217 (1974) (discussing the need to synthesize opposing comments in the final EIS). In Seaborg, the Atomic Energy Commission had failed to include in a final EIS on a proposed Alaskan nuclear test. Responsible opposing scientists had submitted comments that suggested earthquakes could result from the test. The court held this to be error, stating that the agency must include opposing views in the final EIS so that the decision maker would consider them. 463 F.2d at 787.

(130) Lynch, supra note 129, at 299-301 (discussing lack of authority for guidelines to bind other agencies).

(131) Fogleman, supra note 13, at 33.

(132) Exec. Order No. 11,991, 3 C.F.R. 123 (1978).

(133) However, some agencies, such as the Nuclear Regulatory Commission, disputed whether President Carter's Order was legally capable of binding independent federal agencies. Fogleman, supra note 13, at 36-37.

(134) Id. at 34; National Environmental Policy Act Regulations, 43 Fed. Reg. 55,978 (1978) (codified at 40 C.F.R. pts. 1500-1508 (1995)).

(135) The regulations became effective on July 30, 1979. 43 Fed. Reg. 55,978. CEQ's regulations have remained nearly unchanged since the adoption of the 1978 regulations. The one exception is that CEQ withdrew the requirement that an agency analyze the worst-case scenario. Fogleman, supra note 13, at 35. The Supreme Court upheld this change in Robertson v. Methow Valley Citizens Council, 409 U.S. 332, 355 (1989). Indeed, the Supreme Court has held that CEQ's Regulations, as an interpretation of NEPA, are entitled to "substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358 (1979); Robertson, 490 U.S. at 355-56.

In addition to CEQ's regulatory scheme, two structural factors complicate any analysis of NEPA citizen participation. First, full implementation of CEQ's NEPA regulations requires the active participation of each agency, and, indeed, each agency has its own internal procedures to accomplish just that. These NEPA procedures should, among other things, identify the agencies' unique decision points around which the agency develops EISs, state the means by which documents and comments are to be made available to the public, and ensure that the agency actually uses EIS documents in decision making. 40 C.F.R. [sections] 1505.1 (1995); Fogleman, supra note 13, at 38-41. Agency responses to these requirements have varied. Some agencies, such as the Environmental Protection Agency (EPA), have adopted and published in the Code of Federal Regulations separate sets of procedures for different programs. Fogleman, supra note 13, at 38-39; see, e.g., 40 C.F.R. [sections] 6.600-.905

(1995) (detailing an EPA review procedure for new air pollution sources). Others, such as the Department of the Interior (DOI) simply include its NEPA procedures as part of its Departmental Manual, with separate appendices for each separate DOI entity. Fogleman, supra note 13, at 39 (citing Department of Interior, Department Manual pt. 516).

A second factor that also adds to the complexity of understanding NEPA is the necessary coordination of NEPA procedures with the "public participation" and other planning requirements imposed by other statutes. For example, the Federal Land, Management, and Planning Act (FLPMA), 43 U.S.C. [subsections] 1701-1784 (1988 & Supp. V 1993), requires that in planning, agencies must make extensive efforts at public participation, id. [sections] 1712(f). The National Forest Management Act of 1976 (NFMA), 16 U.S.C. [subsections] 1600-1614 (1994), contains a similar provision, id. [sections] 1604(d). To deal with this situation, CEQ regulations caR for the integration of such processes with NEPA. 40 C.F.R. [sections] 1502.25(a) (1995). Therefore, preparation of an EIS has become part of the regular planning process for the U.S. Forest Service under NFMA and the Bureau of Land Management under FLPMA.

(136) 40 C.F.R [sections] 1507.3(b) (1995).

(137) This category is known by the name "categorical exclusions." The regulations limit categorical exclusions to those actions that "do not individually or cumulatively have a significant effect on the human environment." Id. [sections] 1508.4. (138) Id. [sections] 1508 9(a)(1)

(139) See Sierra Club v. Marsh, 769 F.2d 868, 875 (1st Cir. 1985).

(140) 40 C.F.R. [sections] 1508.13 (1995). Through the FONSI, the agency explains why the action "will not have a significant effect on the human environment." Id. (141) See, e.g., Richland Park Homeowners Ass'n v. Pierce, 671 F.2d 935, 943 (5th Cir. 1982) (no obligation for public input at this stage); Como-Falcon Community Coalition, Inc. v. United States Dep't of Labor, 609 F.2d 342, 345 (8th Cir. 1979) (same), cert. denied, 446 U.S. 936

(1980).

The EA and FONSI documents themselves, however, are available to the public and become important when a party challenges in court a decision not to prepare an EIS. 40 C.F.R. [sections] 1501.4(e)(1). Moreover, under certain circumstances CEQ regulations recommend a 30-day delay between the issuance of a FONSI and the final decision not to prepare an EIS. Id. [sections] 1601.4(e)(2) (setting forth the circumstances). (142) Id. [sections] 1501.7. Scoping begins when the agency publishes, in the Federal Register, its intent to prepare an EIS. Id. [sections] 1508.22. (143) Id.

(144) Id. [sections] 1501.7(a)(1); James P. Kalp, The NEPA Regulations, 19 AM. Bus. L.J. 295, 311 (1981) (contending that the success of scoping depends on public and agency participation). (145) 40 C.F.R. [sections] 1502.12 (1995).

(146) Id. [sections] 1502.13

(147) 42 U.S.C. [sections] 4332(2)(C)(iii) (1988); 40 C.F.R. [sections] 1502.14 (1995). (148) See Fogleman, supra note 13, at 130 (citing authorities holding that the agency must consider reasonable alternatives). The draft EIS must also include a no-action alternative. 40 C.F.R. [sections] 1502.14(d)

(1995).

However, it is worth emphasizing that the EIS must analyze only those alternatives that satisfy the "underlying purpose or need" of the action. Thus, in City of New York v. United States Department of Transportation, 715 F.2d 732 (2d Cir. 1983), cert. denied, 465 U.S. 1055 (1984), the Department of Transportation set up regulations on the highway transportation of radioactive materials. The agency defined the underlying purpose as safe highway transportation. The city sued, alleging that the Department failed to consider the alternative of barging. The court upheld the agency's EIS, stating that the agency could limit its discussion of alternatives to those that satisfy highway safety. Id. at 744; see also Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986) (The "'alternatives' [analysis] mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action."); Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377

(D.C. Cir. 1981), cert. denied sub nom. Atchison, T. & S. Ry. Co. v. Marsh, 454 U.S. 1092 (1981), Sylvester v. U.S. Army Corps of Eng'rs, 884 F.2d 394, 400 (9th Cir. 1989). (149) 40 C.F.R. [sections] 1502.15 (1995).

(150) Id. [sections] 1502.16.

(151) Id. For an examination of what effects the agency must include in the EIS, see Fogleman, supra note 13, at 132-34.

(152) 40 C.F.R. [sections] 1502.19 (1995). Notice of the draft's availability is published in the Federal Register. Id. [sections] 1506.10. The agency must then send a copy of the draft EIS to any member of the public who requests it. Id. [sections] 1502.19(c). (153) Id. [sections] 1506.10(c). The U.S. Environmental Protection Agency, not the lead agency, may for "compelling reasons of national policy" provide for shorter comment periods. Id. [sections] 1506.10(d). (154) Id. [sections] 1503.1(a)(4)

(155) Id. [sections] 1506.6(C)

(156) Id.

(157) Id. [sections] 1502.9(b). The requirement that the EIS contain responsible opposing viewpoints satisfied early case law. See Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (D.C. Cir. 1971). In Seaborg, the Atomic Energy Commission omitted from the EIS the views of scientists who feared that earthquakes could result from the agency action. The court held the agency in error, stating that the agency must include opposing views in the EIS so that the decision maker would consider them. Id. at 787; see also Lynch, supra note 129, at 335 n.217 (1974) (discussing the need to synthesize opposing comments in the EIS). (158) 40 C.F.R. [subsections] 1505.2, 1506.10(b)(2) (1995). (159) Karp, supra note 144, at 316.

(160) 43 Fed. Reg. 55,978, 55,985 (1978).

(161) 40 C.F.R. [sections] 1505.2(a)-(c) (1995)

(162) Paul J. Culhane, NEPA's Impacts on Federal Agencies, Anticipated and Unanticipated, 20 Envtl. L. 681, 692-93 (1990) (noting that resource policy scholars believe that the impact has been significant, but to an unknown degree). For two examples of attempts to determine the effect of public commenting on specific final EISs, see Paul Mohai, Rational Decision Making in the Planning Process: Some Empirical Evidence from RARE II, 17 Envtl. L. 507 (1987); Young-Seok Oh, Public Participation in the Environmental Impact Statement Process: Policy Influence in Forest Service Land Management Planning (1992) (unpublished Ph.D. dissertation, Northern Illinois University).

(163) See supra notes 25-26 and accompanying text.

(164) See supra notes 27-29 and accompanying text.

(165) During the new deal era, the U.S. Supreme Court twice held statutes unconstitutional under the delegation doctrine. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). For a discussion of the delegation doctrine, see Arthur E. Bonfield & Michael Asimow, State and Federal Administrative Law 431-40 (1989).

(166) Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1673 (1975); see also Bonfield & Asimow, supra note 165, at 14. (167) Stewart, supra note 166, at 1678; Bonfield & Asimow, supra note 165, at 14-15. (168) Stewart, supra note 166, at 1678.

(169) Id.; see Ann Bray, Comment, Scientific Decision Making: A Barrier to Citizen Participation in Environmental Agency Decision Making, 17 Wm. Mitchell L. Rev. 1111, 1118-119 (1991) (noting that scientific model of agency decision making relies on so-called "objective" data to avoid appearance of bias). (170) See, e.g., Shapiro, supra note 29, at 14-18

(1988); see also Fiorino, supra note 7, at 507-08 (referring to synopticism as the "net-benefit maximization model"); Diver, supra note 27, at 395

(referring to synopticism as "comprehensive rationality").

(171) Diver, supra note 27, at 396. Diver contrasts this model with "incrementalism" as a policy making paradigm. Id. at passim; see also Shapiro, supra note 29, at 30-32. (172) See, e.g., Schectman, supra note 6, at 634 (The "general consensus [of resource managers is] that the public just does not comprehend professional resource management."). (173) Robert H. Nelson, Government as Theater: Toward a New Paradigm for the Public Lands, 65 U. Colo. L. Rev. 335, 346 (1994) (In the scientific mode of management, "politics [must] be strictly excluded.").

(174) Diver, supra note 27, at 396 ("Only a superhuman decisionmaker could faithfully adhere to the ideal of comprehensive rationality."). The impossible tasks assigned to the ideal synoptic decision maker include unambiguous goal selection, reconciliation of numerous competing objectives, cognizance of every possible means to attain the selected goal, accurate comparison of each alternative, and anticipation of every possible consequence. Id. (175) Shapiro, supra note 29, at 33; see Diver, supra note 27, at 430 (noting that synopticism offers unique advantages in some situations, such as when small errors in policy selection may cause catastrophic and irremedial harm). (176) See, e.g., The Multiple-Use Sustained Yield Act of 1960, 16 U.S.C 528-531 (1994); National Forest Management Act, 16 U.S.C. [sections] 1604(e) (1994). (177) See Michael C. Blumm, Public Choice Theory and the Public Lands: Why "Multiple Use" Failed, 18 Harv. Envtl. L. Rev. 405, 414 (1994) (Multiple use "promises the greatest good to the greatest number over a long-term period.").

(178) Cf. Shapiro, supra note 29, at 15-16 (noting that synopticism's goal, exact attainment of the greatest good for the greatest number, is impossible because the decision-making structure affects the policy outcome); see also supra note 28. (179) See Nelson, supra note 173, at 335 ("The progressives sought to install a regime of scientific management guided by expert professionals serving the public interest."); id. at 343-46; Dortha M. Bradley &c Helen M. Ingram, Science vs. the Grass Roots: Representation in the Bureau of Land Management, 26 Nat. Resources J. 493, 508 (1986); Kim H. Goslant, Citizen Participation and Administrative Discretion in the Cleanup of Narragansett Bay, 12 Harv. Envtl. L. Rev. 521, 524 n.12 (1988).

(180) Nelson, supra note 173, at 344-45 (noting that Pinchot helped found the American Society of Foresters to spread scientific forestry and shaped a National Academy of Sciences report recommending scientific management of forests). (181) Id. at 353

(182) Blumm, supra note 177, at 414.

(183) Culhane, supra note 162, at 702 ("Environmental professionals tend to see technical rational-comprehensive analysis as the way to address environmental problems."); Bradley & Ingram, supra note 179, at 508 (noting current long-range comprehensive planning in natural resource agencies as the "legacy" of the Progressive Movement's emphasis on scientific management); Nelson, supra note 173, at 346. (184) See, e.g., Goslant, supra note 179, at 521 (viewing expert decision making as legitimate based on professional, as opposed to political, considerations); Harvey Brooks, Environmental Decision-Making: Analysis and Values, in When Values Conflict 115, 118 (1976)

(Laurence H. Tribe et al. eds., 1976) (Science, as "the one legitimating process that most can agree on" adds legitimacy in a suspicious society.).

(