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The role of citizen groups in environmental issues.

Citizen groups are spoilers. How often do you hear of a citizen group celebrating the announcement of a new real-estate development, neighborhood solid-waste incinerator, or wastewater discharge pipe? No, they exist only to block these critical monuments to social progress. To listen to some, the country would be a better place without them.

This attitude is simply wrong. Citizen activism is a fundamental aspect of this nation's culture. In environmental matters, citizen advocates play one of the most critical roles in defining, setting priorities for, and resolving the issues of our daily lives. Citizen groups are spoilers, to be sure, but we would all be the worse for the absence of their essential voice.

Boston Harbor is a case in point. From the original Boston Tea Party in 1773, when tax-protesting colonists dumped tea into the harbor, to 1991, when a group of Cape Cod citizens mounted an effort to block construction of an offshore outfall they considered an ecological threat, Boston Harbor has been synonymous with citizen activism.

Reviewing the past 10 years' attempts to reverse the decades-long contamination of Boston Harbor from failing Deer Island and Nut Island sewage treatment plants provides an interesting context for exploring the complex role of citizen groups in contemporary environmental issues.

A private individual, William B. Golden, is generally credited with--or blamed for--initiating the current Boston Harbor and Quincy Bay cleanup, when after a storm he jogged into some excrement washed onto Wollaston Beach. Since the failing treatment plants of the metropolitan sewage system were by that time bypassing billions of gallons of raw sewage and industrial wastes annually, their operator, the Metropolitan District Commission (MDC), was the obvious culprit.

Golden, solicitor for the City of Quincy, Massachusetts, at the time, did not, however, take action as an individual. Instead, he pursued a traditional approach: He brought a nuisance action on behalf of the City of Quincy against the system operators and the Commonwealth of Massachusetts. Indeed, prior to the 1970s, nuisance actions were virtually the only legal means available for redress of environmental problems; these are very difficult cases and not available to ordinary citizens.

"Public nuisance" actions must involve demonstrable injury to public resources, and they must be brought for the public by a narrowly defined category of public representative, usually the state's attorney general. In such actions, the courts are given the difficult task of balancing the respective rights of the polluter, in this case the MDC, and the victim of the pollution, the public beach in Quincy, here represented by the city officials.

Private citizens have no "standing" to bring such public nuisance actions in court, even if they cannot persuade the necessary "official" to act. Without court access, citizens are constrained to act indirectly through the political process to abate pollution through changes in the law or through politically pressured changes in the regulators.

Role: Enforcing Environmental Laws

Beginning in the early 1970s, public nuisance law diminished in importance when Congress empowered citizen groups through a series of court-access provisions written into federal environmental laws. These provisions allow any person to act as a private attorney general for the US in a "citizen suit," to ensure enforcement of the newly enacted environmental laws. Under a typical provision, the legal action is straightforward: A person files an action in federal court to force a discharger of pollutants to comply with the federal law. The new citizen attorney general only has to meet two criteria: injury, usually demonstrated by damage to some active use of the resource by the plaintiff; and an ongoing law violation, a simple affair because of other provisions that require extensive and publicly available self monitoring. As added enticement, attorneys' and experts' fees can be recovered by a successful plaintiff from the polluting defendant, even including government agencies. It is difficult to overstate the pivotal importance that access to the court system has had to modern citizen-group activism.

The 1983 Conservation Law Foundation, Inc. (CLF) Boston Harbor lawsuit was brought as such a "citizen suit" in federal district court. An unelected, self-described advocate of the public interest, CLF sued MDC and the Commonwealth of Massachusetts for polluting Boston Harbor, and the Environmental Protection Agency for not doing its job as the chief federal enforcement agency.

CLF brought its lawsuit in its own name based on a doctrine known as "association standing," which allows an association with legal status as a person (such as a corporation) to bring a lawsuit on behalf of its membership. Using this doctrine, CLF has appeared as the plaintiff in a variety of cases throughout New England, where it has a geographically diverse membership base.

The impact of CLF's lawsuit on the decades of regulatory delay was immediate. Years of debate and negotiation between federal and state regulators and MDC over the continuing pollution were brought to a halt with the filing of a twenty-some page complaint. Backed by hundreds of pages of MDC-documented federal Clean Water Act violations, the suit's success was a foregone conclusion; only the remedial program and schedule for construction of new facilities would be at issue. Yet even here, the citizen group, CLF, would be negotiating these items directly with the polluter, not simply powerlessly observing the course of debate between the regulators and the polluter. Access to the courts was power for CLF, and power for a citizen group virtually always translates into action.

Role: Forcing a "Hard Look" at Environmental Controversies

Citizen advocacy tends to fall into two categories: broad policy goals and specific project-related disputes. The information requirements for these two categories are vastly different, and a group's understanding of and position on an environmental issue can be completely driven by this difference.

Policy objectives are generally defined by debate, either formal or otherwise, within the advocacy organization or in consensus decisions reached with other organizations. While the scientific and technical sophistication of these policies will necessarily be limited by the sophistication of the participants in the debate, general environmental knowledge and interest are usually sufficient to define and sort out most groups' broad policy objectives.

Issue-specific positions are another matter for two fundamental reasons. First, specific environmental decisions are scientifically or technically complicated--the devil is often in the details. Controlling regulatory frameworks rarely empower an opponent to "just say no." Many environmental problems are difficult--and expensive--to understand and resolve. Second, many citizen-advocate groups are volunteer, ad hoc organizations with scarce financial resources, little technical expertise, and few friends. Unlike membership groups such as CLF, which has a treasury and has been developing staff resources and expertise for over 20 years, most neighborhood groups must start from scratch to raise money and to detail specific objections to a proposal within a narrow 30- or 60-day comment period.

To gain information, groups like CLF can often hire experts on staff or acquire expertise through their board of directors. Smaller groups must often hold bake sales and comb their neighborhoods for local experts. Selling cookies, however, is generally more useful as an organizing tool than for generating the sort of money needed to hire experts in an environmental battle, and "volunteer" experts may be limited, and sometimes unreliable. The answer to this information gap is that citizen groups have become masters at forcing the opposing side to develop the needed information.

A classic example of this strategy is the use of the environmental impact statement (EIS) that is required, under the National Environmental Policy Act of 1969 (NEPA), for federal projects and federally permitted or financed projects like the metropolitan Boston sewage treatment plant. A remarkable legacy of the first Earth Day, NEPA requires preparation of a detailed EIS, most often by the entity that is the potential defendant in a lawsuit. NEPA also requires a "worst case" analysis, demonstrating that the federal government has taken a hard look at potential environmental problems.

Once prepared, the EIS serves as a "free consultant" to any citizen advocacy group and offers a built-in quality assurance program that creates a catch-22 situation for the agency trying to bury or ignore a stubborn problem. If the EIS is not a serious, hard look at the problem and the agency continues to promote the project unchanged, the project can be stopped under NEPA until the deficiencies are corrected. If the ElS is a serious, hard look and the agency elects to continue with the project unchanged, as it can under NEPA, the exposed problems are available as a form of admission in any later proceeding or negotiation about the project under a different law, for example, the Endangered Species Act.

Given this quality assurance aspect of the final document, perhaps the most critical phase of any environmental review is the "scoping session." The quality and usefulness of an ElS is often defined by the predetermination made for each ElS and by the range and nature of the potential environmental, economic, and social issues to be analyzed, known as the "scope" of the review. It is critical that citizen groups participate fully and intensively in the negotiations concerning the scope of an ElS. If a group lacks technical capacity and its funds for experts are limited, their money is perhaps best spent on scope development and review of the draft EIS to evaluate its responsiveness to the scope.

In the case of the Boston Harbor lawsuit, CLF did not have access to any environmental review documents or other information sources from which to build its case against the extended construction program being proposed by the Massachusetts Water Resources Authority (MWRA). Additionally, CLF experienced some difficulty in retaining local engineering and scientific expertise, because most firms were unwilling to bite the MWRA hand that might feed them for years during reconstruction of the metropolitan Boston system.

In order to assemble a team of experts to back up its case that the treatment plant could be built more quickly than proposed, CLF had to retain mostly out-of-area construction contractors and financial consultants. This approach, while it successfully forced the defendants to shave numerous years off the end dates of the construction program, was extremely costly and would be beyond the means of most citizen groups.

Role: Bringing Specific Interests to Abstract Regulatory Proceedings

The federal judicial system has a constitutional requirement that the litigants in federal lawsuits present a real "case or controversy" for judicial resolution. Although there are other jurisprudential and historical reasons for limiting the jurisdiction of federal courts in this manner, the most-often stated justification for the "case or controversy" requirement is insuring that the court is presented with concrete facts by advocates who have an obvious stake in the outcome. Hypothetical or speculative interests are not sufficient to insure that the matter will be energetically argued and "justice" done.

Regulatory actions have no such "case or controversy" requirement. While a project proponent assuredly has a palpable stake in the specific outcome of, say, a permitting decision, the regulators do not. Their interests lie in more generalized program policy and bureaucratic matters. In addition, the "revolving door" phenomenon is well established in the environmental regulatory world; regulators and consultants often have long-term personal or professional connections independent of the particular matter under review. While such collegial relationships often facilitate review interactions without any compromise of project quality, they also create the potential for conflicts of interest for the regulators. These conflicts need not always involve the exchange of money or promises of future employment in return for valuable regulatory treatment; they can consist of a simple inclination to protect a professional friend from any criticism or scrutiny of an analytical deficiency or defect.

Citizen groups change the regulatory dynamic radically. The local and specific interest in neighborhood that is pejoratively labeled the "not-in-my-backyard" syndrome is, in fact, critical if regulatory justice is to be done. This natural and very real "backyard protective mechanism" provides citizen advocates with the specific adverse interest that so often is lacking between permit applicants and regulators. Citizen groups, accordingly, play a legitimate and fundamental role in these proceedings by holding the feet of regulators to the fire, albeit only figuratively, and producing a result that better represents a fair legal, as well as social, solution.

This aspect of citizen advocacy can be clearly observed in the case of Boston Harbor. CLF, as the citizen advocacy group plaintiff attempting to bring MWRA into compliance with the Clean Water Act, did not have a particular stake in how that compliance was accomplished, and decided early in its involvement to remain as neutral as it could on permitting matters, consistent with insuring that MWRA achieve a sound environmental result, on schedule. In communications with other advocacy groups around Massachusetts Bay and in MWRA's service territory, CLF made this position clear and indicated that other groups would have to be responsible for raising specific challenges to the remedial program elements. Like the elephant in the Chinese proverb, it was clear that the massive MWRA project would look very different to different groups based on their geographical and programmatic perspectives, and CLF resolved to let these groups "carry their own water."

Such regional concern first arose about the massive treatment plant outfall location during the early stages of the facilities planning process in 1986. SWIM, a Nahant citizen group, had already suffered decades of pollution as material from the Deer Island plant and the Inner Harbor followed currents northward from time to time and degraded SWIM's "backyard." The location of the new outfall pipe was of obvious concern to these citizens, who immediately joined the debate. Soon SOB, representing residents of the southwestern shore of Massachusetts Bay, joined SWIM. These groups wanted the outfall moved farther offshore.

Their effective lobbying and scientific sophistication (supported by scientists from the Northeastern University Marine Sciences Laboratory in Nahant) as well as their mere presence during facilities planning ensured that MWRA consultants and federal and state regulators considered the full range of potential impacts at a number of locations, and then carefully documented the final selection. Although the final site selection can also be explained on technical grounds, it is probably no coincidence that it is roughly equidistant from Nahant and the southwestern shore, and far, although not the farthest possible, from land into Massachusetts Bay.

In order to fully appreciate the impact of this citizen role on decision making, one only has to reflect on the interests that were not concretely represented in these early phases of the outfall siting decision, namely, Massachusetts Bay and Cape Cod Bay. The baywide advocacy group Save the Harbor/Save the Bay had just been formed, and was still very much in its infancy during the early stages of outfall planning. The rich marine resources of Stellwagen Bank were unrepresented. Finally, many of the Cape Cod groups who presently figure significantly in the outfall siting debate either didn't exist, as in the case of STOP (Stop The Outfall Pipe), or were unable to participate because of resource limitations.

Partly because of the sequencing of regulatory actions, but also quite clearly because of the absence of any participation by advocates attempting to represent the environmental interests of the eastern and southern resource areas of Massachusetts Bay, early facilities planning was limited in terms of its analysis of the outfall pipe's potential impacts on endangered species, on Stellwagen Bank, on toxic algae, and on Cape Cod Bay resources.

By 1993, that dynamic has changed dramatically. SWIM and SOB are now in the background of the public debate as the outfall moves into serious construction. Current debate is being driven by a different mix of citizen and other advocates, from the extreme position of STOP, whose constituents call for cessation of outfall construction, to the Center for Coastal Studies, the Association for the Preservation of Cape Cod, and Save the Harbor/Save the Bay, groups that have continuing concerns about the wisdom of an outfall pipe in Massachusetts Bay and the use of dilution to reduce the impact of pollutant loadings.

From the perspective of these groups, the MWRA outfall is simply a mechanism to export pollution from Boston Harbor into Massachusetts Bay without proper treatment, at the expense of bay resources. While the "truth" regarding their point of view may never be known as scientific fact, regardless of whether the outfall comes on line as presently proposed or is moved, these groups have accomplished three concrete objectives that are likely to improve the project's overall impact.

First, they have forced the regulatory agencies to focus specifically on four issues that were not thoroughly analyzed in the original documentation: the impact of nutrients from the 400 million-gallon-per-day (average) effluent flow on the bay's food chains, the bay's geophysical circulation patterns, the effect(s) of the effluent on endangered species, and the design and implementation of an adequate monitoring program. Second, they used their political strength to force the state to allocate funds to the politically neutral Cape Cod Planning Commission for the express purpose of hiring experts to critique the analysis of these issues on behalf of Cape Cod. Third, they forced Congress to authorize $1.2 million for a federal study of the nutrient and physical oceanography questions presented by the outfall siting.

These maneuvers--successful as a result of both the groups' political power and the underlying merits of the issues--solved the groups' informational limitations while insuring that the agencies took a "hard look" at the hard problems. Ultimately, the "outside" consultants may even be called as expert witnesses in a court action challenging the outfall decision when final outfall permits are issued, particularly if the technical comments are not seriously considered or adequately addressed in the administrative record.

Role: Educating the General Public

Citizen-group action on Boston Harbor issues has generally raised public awareness of the environment and of human impact on it, especially in Massachusetts Bay. How was this accomplished? Press coverage. It is no secret that the press responds most quickly to controversy, particularly public controversy. While the periodic reporting of a boiling environmental controversy is no doubt inferior as an educational forum to sitting in a laboratory or a classroom, the truth is that most people are educated about the environment by the popular press.

While disagreements and scientific debates between MWRA consultants and regulators or the professional staffs of groups like CLF are virtually daily occurrences in any large project, they simply are not newsworthy. For most reporters and their readership, such esoteric exchanges--notwithstanding their technical value and environmental importance--are simply boring or unintelligible. Distribute a press release saying that the MWRA outfall threatens whales, however, and reporters will be at the door. Citizen groups are intuitively brilliant when it comes to framing the public debate over environmental issues through their access to the press and the "newsworthiness" of their positions. This is a serious responsibility, and, for the most part, it is taken very seriously by all effective citizen advocates.

The press's educational function is also taken very seriously by most environmental reporters. Certainly, they want to write a good story, particularly if it involves political ego-busting, but most reporters also want to tell a complete story and will make a strong effort to include its various sides. In the process and over time, the general public becomes informed and educated about environmental issues.

Citizen groups, then, are spoilers: They disrupt the smooth unfolding of carefully designed and expensively developed project timeliness; they often can't get their collective acts together until the last minute when it is late in the game to make fundamental project changes; they say things in the press that are not always flattering or, sometimes, even accurate; they seem to have disproportionate political and legal power; and their positions are sometimes plain wrong with regard to the law and the science.

Similar observations could be made about anyone and any group. In the main, citizen groups play an indisputably positive and indispensable role in environmental policy formation and decision making in this country:

* They make sure that laws are enforced.

* They require project applicants and regulatory agencies to take a serious, detailed look at environmental issues, particularly those that cannot be reduced to simple equations.

* They bring specific and concrete interest and passion to abstract regulatory proceedings.

* They educate the general public about the nature of environmental decisions and the environment itself.

In a world of scientific, technical, and political uncertainty, what more can be asked? With limited funding, volunteer staffing, and often (shudder) no advanced academic credentials, citizen groups must fumble around a good deal in the beginning of a public debate. On the other hand, citizen groups, especially the good ones, have an unerring eye for the Achilles heel of any project; in defense of a resource to which they have every right and reason to lay special claim, citizen advocates are not afraid to challenge convention or fancy facades, no matter how elaborate or well-intentioned. That they do this in defense of their "backyard" is irrelevant: What higher stake would anyone seeking the best result ask a player to bring to the table?

Peter Shelley is a Senior Attorney at the Conservation Law Foundation in Boston where he is Director of the marine and water programs and serves on the management group. He has been muddling around with environmental law and policy since 1978 when he graduated from the evening division at Suffolk Law School, where he degraded much of his already-limited gray matter. A student of Zen Buddhism, Peter practices a form known as zazen-nodishdo, that is, the art of using meditation to avoid household chores.

The groups mentioned in this article are in Massachusetts. All are membership-based.

APCC: Association for the Preservation of Cape Cod is an Orleans-based groups with a mission to protect and preserve Cape Cod's natural resources and environment.

Center for Coastal Studies of Provincetown is an independent organization dedicated to research, preservation, and intelligent use of coastal resources through conservation and public education.

CLF: Conservation Law Foundation uses law to improve resource management, environmental protection, and public health. Offices are in Boston, Montpelier, Vermont, and Rockland, Maine.

Save the Harbor/Save the Bay formed to foster a positive vision of Boston Harbor and Massachusetts Bay, and to help restore and protect these waters.

SOB: Save Our Beaches was an active 1980s advocate for coastal resource protection, especially of the Massachusetts and Cape Cod Bay shorelines south of Boston.

STOP: Stop The Outfall Pipe is a West Dennis group that organized to halt construction of the MWRA outfall.

SWIM: Safer Waters in Massachusetts is an advocacy group at the Northeastern Marine Science Laboratory that focuses on Nahant's nearby waters and natural resources.
COPYRIGHT 1993 Woods Hole Oceanographic Institution
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Author:Shelley, Peter
Date:Mar 22, 1993
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